Wanders, Re application for bail
[2001] VSC 423
•23 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1513 of 2001
| IN THE MATTER of an Application for Bail by PATRICK WANDERS |
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JUDGE: | McDONALD J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2001 | |
DATE OF JUDGMENT: | 23 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 423 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | M. Dann | Berry & Maroney |
| For the DPP | R. Carlin | Solicitor for Public Prosecutions |
HIS HONOUR:
The application before the court, made on behalf of Patrick Wanders, is that he be granted bail by this court.
On 21 September 2001 the applicant was charged with the murder of David John Murray on 20 September 2001. The deceased Murray was the son-in-law of the applicant.
By virtue of the provisions of s.4(2)(a) and s.13 of the Bail Act I am obliged to refuse bail to a person charged with murder unless I am satisfied that exceptional circumstances exist which justify the making of an order granting bail.
On 27 September 2001 the applicant appeared before the Magistrates' Court at Melbourne and was remanded in custody to appear at a committal hearing on 18 January 2002. Before appearing in the Magistrates' Court on 27 September the applicant had been held in police cells at Shepparton, Craigieburn, Moonee Ponds and then at the Melbourne Custody Centre. At the time that his solicitor Maloney swore his affidavit in support of the application, on 11 October 2001, the applicant was held in the police cells at the Fitzroy police centre. I am informed that the applicant is now held at the Melbourne Assessment Prison.
The applicant was born on 5 September 1937 and is now 64 years of age. During the applicant's working life and until 1991 he was employed in some 13 different occupations. Since 1991 the applicant has not been engaged in formal employment. At the time that the applicant was arrested he was not engaged in employment. He was in receipt of a mature age pension, and resided at a caravan park at Yarrawonga with his son William.
One of the applicant's children, Lisa Murray, is aged 37 years of age. She was married to the deceased, David Murray.
At the time that the applicant was charged with the murder of David Murray he had no prior convictions and had never been charged with any criminal offence. He has instructed his solicitor, and I have been so informed by his counsel this morning, that the applicant intends to plead not guilty to the charge of murder.
In the affidavit sworn by Christopher Carr, an articled clerk in the employment of the Director of Public Prosecutions, in response to the application presently before the court, he has sworn that on 20 September 2001 the deceased was at his home with his wife, the daughter of the applicant, and that during the afternoon and evening of that day the deceased drank a large number of cans of beer. The deceased was a person who habitually became aggressive when drunk. That evening, at about 11.30 p.m., the applicant's son William visited the home of his sister and the deceased. Later that evening the applicant visited the deceased's home. At a later time an argument occurred between the deceased and the applicant. It is alleged that during this argument, which occurred in the kitchen, the applicant made a comment to the deceased to the effect that he felt like killing the deceased and that in response to that remark, the deceased then threw a knife on a kitchen bench and goaded the applicant by uttering words to the effect "come on, stab me". It is alleged that while the applicant was holding the knife the deceased lunged across the bench which separated he and the applicant at the time, that the applicant pushed the knife forward and the result was that the deceased was stabbed in the heart. The deceased collapsed and died in the kitchen. Subsequent to the applicant being taken into custody he was interviewed and later charged with the murder of the deceased Murray.
The daughter of the applicant and the wife of the deceased has made a statement to the police that on 20 September 2001, and shortly after midday on that day, the deceased was at home and commenced drinking a slab of beer which he had brought to the home. She stated that later in the evening her brother called at the home and after that, as I have referred to, the applicant came to the home. She has further stated that some time after the applicant came to the home the deceased pulled a knife from a bench block and threw it on to the bench and sought to goad the applicant to use the knife. The applicant's daughter has said that the deceased leaned across the bench while he was goading his father-in-law and that the applicant, while holding the knife, pushed it forward, the result being that the deceased was stabbed. She said that her father, after the deceased fell, said he was sorry. She has said that her father commented , "I haven't killed him, I've just given him a fright".
When interviewed by the police the applicant re-enacted the events which he said had occurred immediately before and at the time that the deceased was stabbed in the chest. During the interview with the applicant, the applicant informed the police that he was holding the knife and he moved it forward. He said that he did not think it would cause any injury or death to the deceased but unfortunately, at this time, the deceased threw himself forward. The applicant said that he thought that the deceased had just been nicked with the knife. The applicant also said to the police that when the deceased fell to the ground he thought that the deceased had fallen over because he was drunk.
The matters that have been put before me that are relevant to the circumstances which I should have regard to when determining whether exceptional circumstances exist in this case are as follows: firstly, the age of the applicant to which I have referred; the fact that the applicant has no prior convictions and has never been charged with a criminal offence, to which I have referred; that until ceasing work the applicant had a good work record; that his former wife, Wilma, has, in a statement to the police, said that while married to the applicant he was a good husband and a good father. Further, it has been put that a relevant circumstance is that the applicant intends to plead not guilty to the charge, again a matter to which I have referred. Again, it has been put to me as a matter relevant to be had regard to, is that if granted bail the applicant would have a secure home in which to live, namely the home of his daughter, Mrs Cooper, and her husband.
Mrs Cooper has given evidence before me. I accept that she is prepared to have her father live with her and her husband if he is released on bail. I am also satisfied, having heard the evidence from Mrs Cooper, that the guns that were formerly held in the Cooper home by her husband have now been removed from the home and there are no guns or weapons in the home. She has informed me, and I accept, that her husband accepts and is prepared to have his father-in-law live with him if granted bail. Her husband is in employment and he works as a motor mechanic.
Further, it has been put before me that a relevant matter to be had regard to is that there has been no case put forward on behalf of the respondent that should the applicant be granted bail he is likely to not answer his bail or that there is any risk that he would interfere with witnesses if granted bail.
It has been held previously in this court, on numerous occasions on applications such as the present, that to be satisfied that there are exceptional circumstances existing, it is necessary for the court to be satisfied, when looking at all the circumstances and taking into account all the factors in combination that there exist unusual, uncommon, out of ordinary circumstances . If the Court is satisfied that such circumstances exist it is then that the Court may be satisfied that exceptional circumstances exist such as to permit the court, in cases such as the present, to allow an applicant to be granted bail.
Having regard to each of the matters that I have referred to, including the circumstances in which the deceased met his death and the fact also that the applicant intends to plead not guilty to the charge, and also taking into account that the committal proceeding in respect of the applicant is not likely to take place for some six months and thereafter there is likely to be a delay of a further six months before the trial of the applicant, when taking into account all these matters, I have reached the conclusion that there does exist in the circumstances of this case exceptional circumstances which justify me making an order granting bail to the applicant.
I propose to and do order that the applicant be admitted to bail on his own undertaking with one surety, namely that of Mrs Michelle Anne Cooper, in the sum of $10,000 conditioned in the proper form for his appearance as required by law at the committal mention hearing on 18 January 2002 and upon the following special conditions:
1. That the applicant reside at 41 Tom Street, Yarrawonga;
2.That the applicant report on Monday and Friday of each week to the officer-in-charge of the police station at Yarrawonga or his nominee between the hours of 9 a.m. and 4 p.m.;
3.That the applicant give three days notice to the informant or his nominee of any proposed change of address;
4.That the applicant surrender any passport that he may hold to the informant within 24 hours of being admitted to bail and not apply for another passport.
I have given consideration to whether I should make an order that the applicant not contact, directly or indirectly, any witness for the Crown. In the circumstances of this case, I am satisfied that there exists a close family relationship between the applicant and his son William and his daughter who was the wife of the deceased. Both of those two persons are witnesses for the Crown. It seems to me in the circumstances of this case that I should not make such order as a condition for granting bail to the applicant.
Accordingly, I propose to grant the applicant bail on his undertaking and a surety in the amount I have mentioned and on those special conditions.
The bail order will be drawn up and when signed by me, the applicant can be released on bail.
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