Aplication for bail by John Whiteside [1999] VSC 413 (6 October 1999)

Supreme Court of Victoria|1999-10-06|Before: Warren J

The applicant says that he and his co-accused sought to assist the young woman and made inquiries on a fairly urgent basis of other persons in the precinct of the Fitzroy Gardens as to whether the alleged sexual offender had been sighted. For various reasons the applicant and his co-accused approached two men in the gardens, the deceased and Mr Campbell. As a result of the reaction and conduct of the deceased and his partner, Mr Campbell and the fact that they ran away, there was a pursuit by the applicant and the co-accused of those two individuals. Following the pursuit which occurred over some distance, the parties found themselves in the precinct of the Peter McCallum Hospital in Lansdowne Street East Melbourne. An altercation ensued, and as a result of the altercation the deceased suffered serious injury. Eventually or shortly thereafter the police and ambulance services attended.

The events of the altercation outside the hospital were observed by a person who is now to be, it seems, a Crown witness. Essentially, the applicant from the outset has said that he did throw some blows at the deceased, but they were in circumstances where he had been the subject of attempted assault and direct assault by the deceased. The view of the Crown witness from the precinct of the upper levels of the Peter McCallum Hospital is that a number of blows were rained on the deceased by the applicant together with the co-accused. In any event, after the encounter, the deceased was lying unconscious, it seems, on the roadway. The applicant made no attempt to quit the site, nor did it seems, the co-accused. The police arrived shortly thereafter and the applicant was taken away for questioning.

The applicant remained in the custody of the police, and it is conceded by the informant that at all times the applicant was totally co-operative with the police. The level of this co-operation included that notwithstanding legal advice not to do so the applicant was prepared to undergo a full interview with the police and co-operate fully. These, broadly, are the circumstances surrounding the death of the deceased.

Before turning to the consideration of the merits of the application for bail there is one further circumstance that must be described in setting out the events that led to the death of the deceased. The young woman who apparently made the complaint of sexual assault to the applicant, the co-accused and other passers-by was taken to hospital and interviewed by police shortly thereafter. The woman maintained her story as I have broadly described it. However, a couple of days later the young woman changed her story and told the police that the sexual assault she apparently complained of was fabricated. I am informed that these matters are the subject of criminal charges in the Magistrates' Court.

For the purposes of the application before me the starting point is the fundamental principle enshrined in the Bail Act that an individual accused of an offence is entitled to bail except in certain circumstances. Those circumstances are dealt with in s.4 of the Bail Act. One of those circumstances comes before me, namely that a court under sub-s.2 of s.4 shall refuse bail in the case of a person charged with murder unless the court is satisfied that exceptional circumstances are made out which justify the grant of bail. I must, therefore, turn myself to consideration as to whether or not exceptional circumstances are made out in this matter.

At the outset, I observe that the informant has stated the position of the police to be: "The police view in relation to this application is that we do not have any strong opinion as to whether or not bail should be granted. The accused has no previous criminal history and actually remained at the scene of the assault until police arrived. He admitted his involvement in the matter, but his version of what occurs differs from independent witnesses". Further, this morning the informant was called to give evidence and he confirmed this attitude.

In determining exceptional circumstances, it is a well accepted principle in this court that the hurdle is a high one, but I would interpolate that the hurdle should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail. The issue of exceptional circumstances is a matter that has been the subject of extensive consideration by this court on many occasions. I have been referred this morning by Mr Siracusa, who appeared for the Crown, to the observations of Beach J, in the matter of Hanna El Rahi. In that matter, His Honour expressed the view at page 25 of his unreported judgment delivered on 18 January 1996 as follows:

"the question really comes down to this. Is it an exceptional circumstance that a person charged with murder is of previous good character, has a good work record and has a supportive family? The short answer to that question is, no it is not."

I would have to agree largely with the observations of the learned judge. However, His Honour on that occasion was, it seems, only concerned with those three discrete matters put forward apparently as constituting exceptional circumstances for the purposes of the bail application. A reading of the reasons of His Honour discloses that there were other matters that would have weighed heavily in the exercise of the discretion including the circumstances surrounding the death of the deceased and the conduct of the bail applicant. I note in particular the distinguishing circumstances in Hanna El Rahi compared with this matter, namely that the applicant for bail at the time of engaging in the assault on the deceased used a weapon. I also note that the applicant in that case immediately left the scene after having assaulted the deceased. Those circumstances distinguish the matter from the matter before me. The present matter can also be distinguished on the basis that there are additional matters put forward as exceptional circumstances over and above the three matters considered by His Honour Beach J.

I was referred also by Mr Siracusa to the observations of His Honour Gillard J., in the matter of Abbott, an unreported judgment of 23 September 1997. It was in that case in particular that the learned judge stated the principle that the burden of establishing exceptional circumstances is a heavy one. I, with respect, agree. However, each case turns on its own facts and its own merits. There are again circumstances in the Abbott matter that are distinguishable from the present application. Firstly, it was a matter concerned with drug trafficking; secondly, the applicant for bail had a history of criminal conduct. Those circumstances do not arise here.

I was helpfully provided by Mrs Morrish on behalf of the applicant with a thorough and comprehensive analysis of various authorities concerned with circumstances that will constitute exceptional circumstances. In my view, the most helpful judgment and observation is that of His Honour Vincent J, in the unreported judgment of John Dennis Moloney delivered on 31 October 1990. In that matter His Honour observed:

"A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that, viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified".

Applying that principle to the present matter, I make the preliminary observation as, I have already indicated, that each case will be different and each set of facts and circumstances will need to be considered and weighed up before determining whether or not exceptional circumstances are made out.

It is said by Mrs Morrish for the applicant that there are a number of bases upon which exceptional circumstances are made out. I now turn to those matters. The first matter put forward is that the nature of the Crown case against the applicant and his co-accused does not demonstrate an overwhelming case for a charge of murder or manslaughter. Mr Siracusa challenges that assertion. He has directed my attention to the evidence of Crown witnesses, especially that of Mrs Baker. Mrs Baker was the independent witness who observed from the upper stories of the Peter McCallum clinic the encounter between the applicant, the co-accused and the deceased. It is Mrs Baker who says in the Crown brief that a number of blows, as many as 20, were rained upon the deceased by the applicant. However, when one considers the Crown case, it inevitably appears strong if one approaches it on a selective basis. Conversely, Mrs Morrish has drawn me to aspects of the evidence taken from the Crown brief which would place the evidence of the Crown in at a less high level than that put forward by Mr Siracusa.

On balance, and having had the opportunity to consider the Crown brief, I consider that the Crown case does appear to be a good case, but it is not a case that can be put so highly that it ought weigh against the applicant in terms of considering exceptional circumstances.

There are other matters put forward as part of establishing exceptional circumstances. It is also said that the injuries suffered by the deceased were arguably not extensive nor severe enough to cause death in their own right. Doubtlessly, the pathology evidence will be the subject of scrutiny on another occasion. Having had the opportunity to consider the pathology evidence and consider that evidence in the context of the Crown evidence, and also the statements made by the deceased to date, I consider that the matter put forward by Mrs Morrish in this respect is sufficient to establish that the injuries suffered by the deceased at this point were arguably not sufficiently extensive to enable me to form a view unequivocally with respect to the cause of death of the deceased.

The next matter put forward on behalf of the applicant is his age and the fact that he has no prior convictions. These matters are not challenged or disputed on behalf of the Crown. Furthermore, the informant in the course of his evidence this morning conceded that the applicant did not abscond from the scene. Furthermore, the applicant was totally co-operative with the police. I weigh these factors in together with the matters put forward in support of the argument of the level of strength of the Crown case.

It is further said on behalf of the applicant that there will be, "a significant delay" in the disposition of the matter leading the applicant to remaining in custody for an unduly length of time. A committal hearing I am informed is set down for 22 November 1999. It is anticipated that if the applicant is committed for trial, the trial will not commence until April or May in the year 2000. It is said by Mr Siracusa that the appropriate course would be to defer any question of bail until after the committal hearing. In considering this submission I have weighed up whether there would be any change in circumstances between this point in time and after the committal hearing. At this point I consider that the only significant change would be that the Crown might withdraw or revisit some of the charges, or alternatively, the applicant might not be committed for trial.

In terms of the matters that I weigh up to consider whether or not exceptional circumstances can be made out, I do not consider there are any changes that I can readily contemplate between now and the committal date that would lead me to adopt the view that the applicant ought remain in custody until committal and thereafter the matter be reconsidered. In any event, I note that the applicant has already been in custody for a period of some six and a half months.

That circumstance leads me to consider the next circumstance put forward on behalf of the applicant, namely that he continues to suffer emotional trauma as a result of his incarceration and contact with persons with criminal histories within the Port Phillip prison facility. This matter of itself would not be sufficient to make out an exceptional circumstance. Furthermore, there is no evidence before me of a psychological or psychiatric nature to demonstrate that the applicant is in fact suffering an emotional trauma. Nevertheless, given his background as described in the affidavit sworn by his brother, Warren Whiteside and also the fact that the applicant has no prior criminal history, it can be readily assumed that it has been emotionally difficult for the applicant to remain in custody at the Port Phillip prison or other custodial facilities for a period of six and a half months.

The next matter put forward in support of the applicant is that he enjoys strong family support from his brothers and sisters, and in particular, that of his brother Warren Whiteside. I note that there is a substantial attendance at court this morning from persons indicated by Mrs Morrish to be the members of the family of the applicant. Such family support is very important in circumstances such as these. Of itself, it would not be sufficient to constitute an exceptional circumstance, but it is a factor that weighs heavily in the exercise of the discretion, particularly in relation to the subsequent exercise upon which I must embark, that is the risk posed by the applicant if bail is granted.

In addition to the family support factor, it is put forward that the applicant has strong ties to the community, both socially and by way of employment. I note that if the applicant is granted bail he is to be shortly thereafter re-employed by his former employer. This, of itself, is a highly desirable course, and it is a factor that weighs in as to whether or not exceptional circumstances is made out.

Finally, it is said that insofar as exceptional circumstances can be put forward, they are partly made out by the fact that the informant does not oppose bail subject to the applicant demonstrating exceptional circumstances. It was submitted by Mrs Morrish that the informant and the solicitor instructing Mr Siracusa did not oppose bail on a vigorous basis. That, of itself, would not be sufficient for me to form the view that exceptional circumstances were made out or otherwise. It is a matter of assessing all circumstances before I can determine whether or not exceptional circumstances can be made out.

Having weighed all these matters up, and considering all the matters together, on the basis of the principle expressed by His Honour Vincent J, in Moloney's case, I consider that exceptional circumstances are made out in this matter.

I turn now to address the issue of the risk that the applicant poses if bail is to be granted. In assessing risk, I note that the applicant has no prior criminal history. I note also the unfortunate circumstances, largely not of the making of the applicant, that led to the encounter with the deceased and ultimately led to the death of the deceased. Weighing up all these matters, I also observe that there is no suggestion on behalf of the Crown or the informant that the applicant would interfere with witnesses.

Accordingly, assessing these matters, I am satisfied that the applicant does not pose a risk of re-offending whilst on bail. I am also satisfied that he will answer bail. I am also satisfied that there is not a risk that he would interfere with witnesses. Having formed these views, I am, therefore, disposed to grant bail subject to the applicant being placed upon strict conditions. In this respect I will hear the Crown as to the conditions that it poses. But with respect to conditions, I would require a regular reporting condition, I would require a substantial surety, and I would require a residential restriction. I note that a long-standing friend of the applicant has come forward and agreed that the applicant may reside at her address. This does appear in all the circumstances to be an appropriate course. It is also volunteered, as I understand it, on behalf of the applicant that he would surrender any passport and not attend any point of international departure during the period of bail. These matters do not appear to be in dispute.

The applicant will be granted bail subject to surety in the sum of $50,000, and subject to the following conditions:

1. The applicant reside at 1/300-304 Dorset Road Croydon.

2. The applicant report on each Monday, Wednesday and Friday to the officer in charge of the Mooroolbark police station or his nominee between the hours of 6 a.m. and 10 p.m.

3. The applicant give 24 hours notice to the informant or his nominee of any proposed change of address.

4. The applicant not contact directly or indirectly any witness of the prosecution except the informant or his nominee.

5. The applicant surrender any current passports which he may hold to the informant within 48 hours of being admitted to bail and not apply for another passport.

6. The applicant not attend any point of international departure during the period of bail.

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Judgment (33 paragraphs)

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