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[2006] VSC 450
Supreme Court of Victoria
2006-12-01
Hollingworth J
Original judgment source is linked above.
CRIMINAL LAW - Bail - Murder - Whether "exceptional circumstances" made out - Bail refused
1 On 2 February 2000, the applicant's father, Marius Kristian Jensen, died from a single gunshot wound to his head, on the family farm at Tarrington in western Victoria.
2 On 7 May 2004, the applicant was arrested and charged with his father's murder. This is his third application for bail. His trial is due to start in about 2 months.
3 Given the nature of the charge against him, bail must be refused unless the applicant can demonstrate that there are exceptional circumstances which justify the grant of bail. The does not define "exceptional circumstances". There must be factors present which take the case out of the norm and which would answer the description of "exceptional". Exceptional circumstances might exist as a result of the interaction of a variety of circumstances which, of themselves, might not be regarded as exceptional. Ultimately, each case must be assessed on its own facts.
4 Even if exceptional circumstances are demonstrated, the court must refuse bail if it is satisfied that there is an unacceptable risk that if the applicant was released on bail, he would do any of the following: fail to answer bail; commit an offence whilst on bail; endanger the safety or welfare of members of the public; or interfere with witnesses or otherwise obstruct the course of justice. The burden of establishing unacceptable risk lies on the Crown.
5 The applicant seeks to rely on the following matters as demonstrating exceptional circumstances: delay, his ill-health and the alleged weakness of the Crown case.
Delay
6 Inordinate delay can constitute exceptional circumstances, either on its own or in conjunction with other factors. There is no particular time at which a delay necessarily becomes inordinate. Whether the delay between incarceration and trial is so inordinate that it exceeds what our society regards as an acceptable period for a person to be incarcerated without trial must obviously vary from case to case.
7 The applicant has been in custody since 7 May 2004. It is desirable to look at relevant events during that period, to understand why there has been such a delay.
8 On 19 July 2004, Ashley J refused an application for bail, on the basis that "exceptional circumstances" had not been demonstrated.
9 After a five day committal hearing, on 4 February 2005, the applicant was committed to stand trial on the charge of murder. An application for bail made at the conclusion of the committal was refused on the same basis.
10 The trial was first listed for 19 September 2005. At a mention hearing on 5 September 2005, the defence applied to adjourn the trial because the defence experts needed more time to analyse the evidence. The adjournment was granted.
11 The trial was re-listed to commence on 8 May 2006 at the Supreme Court sitting at Warrnambool. On the 4th day of pre-trial argument, the trial was aborted. One reason was that stickers had been posted around that town, asserting the applicant's guilt; understandably, the trial judge was concerned that it might contaminate the jury pool. Another reason was that the defence needed more time to prepare its expert evidence and one of the defence experts was overseas and not available to give evidence. When the trial was re-listed, it was transferred to the Geelong circuit commencing on 31 January 2007.
12 Unlike the defence, the Crown has been ready to proceed with the prosecution for more than 12 months.
13 The period of incarceration from arrest until trial at the end of January 2007 will be some 32 months. Such a lengthy period of incarceration would certainly be a matter of concern if looked at prospectively. But here, 30 of those months have already been spent in custody, and the applicant only seeks to be released from custody for the final 2 months. The applicant made no further bail application on either occasion when the trial was listed before a judge of this Court last year or this year. For example, had the applicant sought bail at the trial in May of this year, after 24 months in custody and still facing another 8 months in custody, delay might have loomed more prominently in a judge's consideration. In making those observations, I do not seek to criticize the applicant for not bringing this application earlier; rather, to say that delay may take on a different character if looked at prospectively or retrospectively.
14 Given the reasons for the two adjournments of the trial and the fact that the trial is to start soon, I am not persuaded that exceptional circumstances have been demonstrated on the basis of delay.
The applicant's health
15 The applicant is 41 years old. Before going into custody, he was unemployed and in receipt of a disability support pension. Around 1989, the applicant's hearing was damaged in an incident which occurred whilst he was in the Army Reserve. Ever since then, he has suffered from tinnitus with associated vertigo and depression. He is frustrated and distressed at being unable to control the level of noise around him in the prison environment, and the impact this has on his tinnitus. It is argued that the custodial environment in which he is detained provides greater deprivation for him than the average person.
16 For most of his time in custody, he was held in Port Phillip Prison. The prison authorities moved him around numerous times, in an attempt to get him into quieter areas of the prison.
17 In September 2006, he was moved to the new Metropolitan Remand Centre. The applicant believes this to be the worst prison placement he has experienced so far, as the centre is largely constructed from concrete and is therefore very noisy. Announcements are made regularly and unpredictably over the intercom, and sudden noises like that can cause agitation and distress. Although he has been supplied with ear plugs, he finds them of little assistance. He has a medical certificate which excuses him from prison work. He prefers to spend most of his days in his single cell, reading or writing letters to his brother or a friend.
18 Dr Ruth Vine, a psychiatrist, saw the applicant on 7 October 2006 for the purpose of preparing a report for his bail application. She also reviewed some psychiatric and psychological reports from the 1990s, as well as the applicant's prison medical file. She noted that his ongoing experience of tinnitus caused him great distress and resulted in reactive, chronic depression. Between 1996 and incarceration, he regularly sought psychiatric treatment, assessment and support, and was treated with a range of antidepressant and hypnotic medications.
19 Dr Vine reports that he is currently on an antidepressant medicine. He has been seen by psychiatrists and psychiatric nurses whilst in custody, although he believes their assessments have been of little assistance. He informed Dr Vine that he continues to suffer from poor sleep, frequent crying and some suicidal ideation.
20 Dr Vine reported that during her interview the applicant appeared relaxed, albeit subdued and restricted in affect. He gave his history with considerable attention to detail. Although he presents as a person suffering from moderate depression, he did not appear anxious or in any way disorganised or illogical in his thinking. He also had no difficulty following what she was saying or hearing questions put to him and did not appear distracted during the interview.
21 I would be most concerned if the applicant's physical or mental state was such that he could not adequately instruct his lawyers in his defence, or give evidence at his trial if he chose to do so. However, based on Dr Vine's report and my own observations of the applicant in court, particularly his presentation in the witness box, I have no doubts about his abilities in either regard.
22 I accept that the applicant's tinnitus would be easier for him to manage out of prison, and that his distress would be thereby reduced. The same might be said of many other prisoners suffering from a broad range of pre-existing medical or psychiatric conditions. His condition is not life-threatening or so severe as to compromise his ability to defend himself at the forthcoming trial. I am not persuaded that exceptional circumstances have been demonstrated on the basis of ill-health.
The case against the applicant
23 The Crown case is a circumstantial one. The applicant argues that it is a weak case and that the evidence is consistent either with suicide, or murder by another person, namely the applicant's brother, Colin Jacob Jensen. In support of those submissions, the applicant points to the following features of the proposed Crown evidence.
24 The applicant lived with his father and was present on the family farm on the day his father died. The deceased was found on the kitchen floor, having apparently fallen from a kitchen chair. He died of a single gunshot wound to the head, apparently fired from close range. Gunshot residue was found on the deceased's hands, and a pistol was located near him.
25 The applicant drove into Hamilton to report his father's death to police. When the applicant's hands were subsequently examined for gunshot residue, none was found.
26 The applicant was interviewed by police on three occasions and made no admissions.
27 The pistol was a home-made weapon, using components from a firearm formerly owned by the deceased. There is no evidence as to when, where or by whom the pistol was made. A high level of welding skill would have been required to produce it. The applicant's brother is a qualified welder and had a history of antipathy in relation to his father. Some materials which may comprise gunshot residue were found on the brother's hands.
28 Alternatively, the deceased would have had a motive to kill himself, because he had been depressed since the death of his wife some 6 years earlier, and his apiary business was facing problems.
29 The Crown says that the prosecution case is not a weak one when regard is had to a number of additional matters, including the following.
30 The applicant gave several quite different explanations as to where he was when he heard the gunshot.
31 The applicant knew about gunshot residue and said things to them which indicated that he clearly expected to be tested for it.
32 The applicant told the police that he could not get the phone to work, so he drove into town to inform them of his father's death. He said there had been past malfunctions with the phone. When they arrived at the farm, the police found that there was nothing wrong with the phone, it had simply been unplugged. Subsequent enquires revealed that no reports had been made to the telephone company about problems with the phone.
33 Burning in a pot-belly stove when the police arrived was a pair of jeans of a type worn by the applicant, but not his father. Even though it was a hot summer's day, the stove was still burning intensely when the police arrived. Contrary to what the applicant told police, forensic testing shows that the fire must have been stoked almost immediately before the applicant drove into town.
34 When the police arrived, the farmhouse was generally untidy and dirty. The only room that was any different was the bathroom, which showed signs of very recent cleaning. On all subsequent visits by police, the bathroom was as dirty as the rest of the house.
35 Forensic tests suggest the movement of chairs in the kitchen by someone other than the deceased, after the deceased was shot. The applicant says he was the only person on the farm at the time.
36 The applicant has been described by his treating psychiatrist and his associates as having an obsession with firearms, including a long history of owning different firearms.
37 A book entitled "Forensic Clues to Murder - Forensic Science in the Art of Crime Detection" was found amongst the applicant's possessions. It is heavily creased at a page which contains a detailed description of a shooting of a person seated at a kitchen table that was staged to appear as a suicide.
38 There are a number of pieces of evidence which are inconsistent with the deceased being a person with suicidal tendencies. On the other hand, there are several different matters which might demonstrate ill-will on the part of the applicant towards his father.
39 There are other suspicious post-incident actions and statements by the applicant which may or may not indicate consciousness of guilt.
40 Given the nature of the evidence in this case, it is not feasible or appropriate for a judge hearing a bail application to minutely examine each piece of evidence, to determine its likely admissibility and importance to the jury. There are clearly serious matters for the jury to consider. In my opinion, it cannot be said that the Crown case is so weak as to constitute exceptional circumstances.
Conclusion
41 I am not satisfied that the factors relied upon by the applicant, either individually or in combination, constitute exceptional circumstances. It is therefore unnecessary for me to consider whether the applicant presents an unacceptable risk of interfering with witnesses or committing other offences. It follows that the application for bail is refused.
[1] Moloney (unreported, Supreme Court of Victoria, 31 October 1990); Re Whiteside; Re Andrea Mantase (unreported, Supreme Court of Victoria, 21 September 2000); R v Cox [2003] VSC 245.
Jensen
DPP [2006] VSC 450