Applicant v Respondent

1 The applicant is charged with murder and, in the alternative, arson causing death.

2 A jury empanelled to hear his trial was discharged without verdict on 25 February 2025.[1]

3 The discharge was occasioned by the absence of the major witness in the Crown case - Sean Warby. Mr Warby gave some evidence on 14 February 2025 but failed to reattend. A warrant was issued for his arrest on 24 February 2025. He was later apprehended in Queensland and extradited to Victoria. Mr Warby was admitted to bail by Gorton J on 17 March 2025. Dates are fixed for the pre-recording of his evidence to commence on 30 April 2025. The applicant's trial will be heard on a date to be fixed in 2025.

4 By Notice of Intention to Make an Application for Bail dated 27 March 2025, the applicant seeks bail. The Notice delineates eight matters upon which he relies, namely:

(i) He has been in custody since 27 February 2023, some 771 days.

(ii) The proceedings have been subject to delay, particularly as a result of the discharge of the jury in the February trial.

(iii) There is uncertainty whether Mr Warby will attend for the pre-recording of his evidence.

(iv) The Crown case is 'not strong'. Without the evidence of Mr Warby it is 'extremely weak'.

(v) The applicant has available a stable residence.

(vi) The applicant has mental health issues which can be supported and treated if he is in the community.

(vii) The Crown does not allege the applicant to be an unacceptable risk.

(viii) The grant of bail can be subject to appropriate conditions.

5 The Crown opposes the grant of bail, arguing that the applicant has failed to demonstrate the existence of exceptional circumstances. The Crown does not argue that there is an unacceptable risk of the applicant doing any of the matters listed in s 4E(1)(a) of the Bail Act 1977 ('Act').

6 For the reasons that follow, bail will be refused.

7 It is convenient to detail the prosecution case. This summary is drawn from the Amended Summary of Prosecution Opening and the evidence given in the February trial.

8 The applicant and the deceased - David Butler - lived in a share house at 67 Indi Avenue, Red Cliffs. Two other men, Daniel Griffiths and Jye Sherrin, also lived there.

9 The property was owned by Newton Hunt. The residence was a two-bedroom weatherboard house with a corrugated iron roof , a pressed tin ceiling and timber flooring. It had a wide front veranda with half height open brickwork walls. Behind the house were two small corrugated iron sheds and a corrugated iron garage. Opposite the garage was a toilet and a small vegetable garden. The property was fully fenced. There was access to and from Isaacs Lane at the rear via a gate in the high steel sheet fencing.

10 The condition of the house some hours before the fire which destroyed it and killed Mr Butler was captured coincidently on police body worn camera footage. (The circumstances in which that occurred is referred to below). It shows the house to be in a state of extreme disorder. It was both unclean and untidy. There were cigarette butts on the floor and furniture. Bedding and mattresses were heaped on the floor along with other items.

11 The house at 65 Indi Avenue - to the immediate west of 67 Indi Avenue - was occupied by eight seasonal fruit pickers. These men were all Vanuatuan.

12 The property at 63 Indi Avenue was the Red Cliffs Backpackers Hostel. It could accommodate up to 39 persons. On the night of the alleged offence it had 30 people. These were a mix of travellers, seasonal workers and those otherwise at risk of homelessness. Sean Warby was a resident there. The hostel is completely fenced. There are four gates: one each at the front and rear and two at the west side. The hostel has a CCTV camera system installed which covers approximately 90 percent of the common areas. This includes the front and side gates but not the rear gate.

13 On 26 February 2023 all four residents of 67 Indi Avenue were at home. In the early afternoon the applicant was drinking alcohol with Mr Griffiths and Mr Sherrin. When the alcohol ran out, Mr Griffiths and Mr Sherrin went to the local FoodWorks supermarket and stole two bottles of spirits and returned home. The theft was reported to police.

14 Just before 6 pm police attended 67 Indi Avenue. The applicant was not then at home. The body worn cameras of First Constables (now Senior Constables) Witte and Garioch were activated. They arrested Mr Griffiths and Mr Sherrin. Mr Griffiths and Mr Sherrin were thereafter removed to the Red Cliffs Police Station and remained in custody overnight. Mr Butler invited police into the house. He gave police the bottles of stolen alcohol. Police left the premises at 6:08 pm. That was the last time Mr Butler was seen alive.

15 In the meantime the applicant visited his friend Gary Russell, who lived nearby. Mr Russell's evidence was that the applicant dropped by randomly at about 1pm or 2pm and stayed for about half an hour. As the applicant left, Mr Russell gave him a half bottle of Bundaberg rum.

16 The hostel CCTV system shows that at 7:27 pm the applicant entered the hostel along with Mr Warby and another resident - Melissa Lee Connors - from Indi Avenue via the front gate. For the next few hours they remained mostly in the front courtyard, drinking alcohol and smoking cannabis.

17 In his (partially completed) evidence in chief at the February trial Mr Warby said that during this time the applicant came to him and Ms Connors and said that he was frustrated with people, angry at everyone and wanted to burn his own house down. The applicant said he was sick of the world. Mr Warby said that the applicant then left. He and Ms Connors remained where they were. Mr Warby said that the applicant came back. CCTV footage indicates that this was at about 11:08 pm. Mr Warby said the applicant was erratic and swearing, 'carrying on', and said that he had actually burnt his house down. The applicant also said that he didn't give a fuck and needed to get out of Red Cliffs and get a lift to Mildura. Although not (yet) elicited in evidence, the Crown expects Mr Warby to say that the applicant told him that there was someone in the house asleep and that he was trying to burn that person.

18 Mr Warby said that between these two conversations he moved a fuel can from a shed near to where he was sitting to the back of the hostel because he was worried that the applicant would do 'something at the backpackers'. He said that he put it in the alcove by the rear gate so that it was not sitting in plain sight. Mr Warby said that he then returned to the front courtyard.

19 There is CCTV footage of Mr Warby moving the fuel can to the rear of the hostel at the same time there is CCTV footage of the accused walking the external perimeter of the hostel towards the back gate. The time is about 11 pm. The Crown case is that the applicant obtained that fuel can and used its contents to start the fire. The Crown alleges that the can was later found in the backyard of 67 Indi Avenue and seized by police. It had the DNA of the applicant on its base.

20 Whether it was (im)possible for the applicant to obtain the fuel can from the rear of the hotel is a major issue of contention in the trial. There has been evidence as to whether the gate was or should have been locked, where the keys to the lock were routinely kept and who had knowledge of and/or access to them. The role of Mr Warby, if any, in possibly facilitating the applicant's access to the fuel can is also contentious. Some aspects of Mr Warby's evidence are seemingly inconsistent with the CCTV footage from the hostel. The Crown has indicated that it intends to make application pursuant to s 38 of the Evidence Act 2008 to cross-examine Mr Warby as to certain aspects of his evidence.

21 Mr Warby said that after the applicant had returned to the hostel, he and Ms Connors went out the front of the hostel to see if what the applicant had said was true. He said there he observed a big fire and rang 000. The time of that call was 11:14:46 pm. In total there were six 000 calls made between 11:12:34 pm and 11:15:08 pm.

22 The 000 call made by Mr Warby was played to the jury. In it Mr Warby said that there could be someone inside. In evidence at the February trial Mr Warby said that the accused had told him after he had returned to the hostel that there was someone inside the house. Two video audio recordings of the fire taken by Ms Connors were also played. In the second Mr Warby can be heard to tell Ms Connors that the accused had told him that he, the applicant, had lit the fire.

23 Other witnesses gave evidence as to the fire. These include Andrew Nasawa, one of the residents of 65 Indi Avenue and Johnathon Maloney, a neighbour from across the street. Mr Nasawa gave evidence that he was on the driveway of his house speaking on his telephone at about 11 pm when he smelt smoke and heard the dog at 67 Indi Avenue barking. Mr Maloney initially observed the scene through a glass panel to the side of his front door. He said he saw someone running past 'away from the fire as fast as they could'. Mr Maloney then made a 000 call at 11:13:16 pm. He informed the operator of that observation and gave a description of that person as perhaps wearing khaki shorts, wearing thongs or having bare feet, and being dark skinned. The operator then asked 'OK, like African dark?'. Mr Maloney replied 'yes'.

24 Firefighters from the Country Fire Authority ('CFA') attended the scene at 11.19 pm. The fire had spread to both 65 and 69 Indi Avenue. By 12.15 am on 27 February 2023 the CFA had sufficient control of the fire to begin a search of the property. The officers had been informed of the possibility that a person could be inside. Forty five minutes later the remains of Mr Butler were located towards the front of the house outside his bedroom. While there was some conflicting evidence as to the sleeping arrangements of the occupants of the house, the evidence tends to establish that Mr Butler slept in the room on the south eastern corner of the house.

25 The applicant was arrested at about 1 am. He had a cigarette lighter in his front pocket. His clothing was seized for examination.

26 On 27 February 2023 John Kelleher, a forensic scientist and arson chemist, attended the scene. He later conducted examinations on the fuel can seized from 67 Indi Avenue and the applicant's clothing. Moderately evaporated petrol was detected on the fuel can.

27 Mr Kelleher's opinion was that the fire was caused by the ignition of combustible material in the south eastern corner of the building, such as a mattress in the bedroom or the sun lounge on the veranda. He could not determine the source of the ignition. While direct ignition, by a match or cigarette lighter was 'perhaps the most likely source', ignition by a carelessly discarded cigarette butt 'could not be excluded'. Mr Kelleher said that flammable liquid was not detected in the area of origin. He further said that flammable liquid was not detected on any of the applicant's clothes or shoes except for the thongs, which had traces of ethanol at low levels - a finding indicative of a spill of alcohol onto them. Mr Kelleher said that where flammable liquid was not detected that might mean that it was never present. It might also mean that it was present but had burnt or evaporated to below the detectable level.

28 The DNA analysis showed the presence of Mr Warby's DNA on the handle of the fuel can and that of both the applicant and the deceased on its bottom.

29 A postmortem examination of Mr Butler was conducted by Dr Hans De Boer on 28 February 2023. Mr Butler's body was badly damaged by fire. Dr De Boer concluded that Mr Butler was alive at the time of the fire. He gave the cause of death as effects of fire in a man with severe coronary artery atherosclerosis.

30 The applicant was interviewed by police at the Mildura Police Station on 27 February 2023. He said that he could remember nothing about the fire or conversations he had with Mr Warby. He said had consumed about 25 drinks prior to the fire and was drunk. The applicant denied telling Mr Warby that he had lit the fire knowing someone was inside the house when he did so.

31 During the interview he was shown certain CCTV footage from the hostel. He identified himself and agreed that he was depicted approaching Isaacs Lane at 11:02 pm and returning five minutes and 40 seconds later. The applicant was bare chested when he departed the hostel and wearing a singlet upon his return. He said that he had returned home to collect it.

32 On 28 February 2023 a covert operative was placed in the holding cells at Mildura Police Station. The applicant denied to the operative telling Mr Warby that he lit the fire and knew someone was in the house when he did so.

33 The prosecution case for murder (charge 1) is put on the basis of recklessness. That is, it is alleged that at the time he lit the fire, the applicant knew that it was probable that death or really serious injury would result.

34 The charge of arson causing death (charge 2) is in the alternative. In the event that the prosecution is unable to prove charge 1, it is put that the applicant deliberately set fire to 67 Indi Avenue, an act which resulted in the death of Mr Butler.

35 The applicant does not dispute that Mr Butler died as a result of the fire. He denies lighting the fire and making any admission to Mr Warby that he did so or knew that the deceased was in the house.

36 The applicant contends that the prosecution are unable to exclude beyond reasonable doubt several possibilities consistent with innocence.

37 First, that Mr Butler started the fire as part of a suicide. There was evidence called in the trial that Mr Butler was seriously injured in a car accident about 15 years prior to his death and had experienced significant and ongoing pain since. He was prescribed oxycodone. Mr Butler's sister Belinda Harlick was called by the Crown. She was cross-examined to the effect that Mr Butler would frequently telephone his mother's landline and threaten to kill himself when talking to Ms Harlick. He had last done so about a month or month and a half before his death. Mr Butler's suicide plan was always the same. It was to purchase heroin and overdose on a beach.

38 Secondly, that the fire was ignited accidentally. There has been considerable evidence as to the presence of much combustible material in the house along with candles, cigarette lighters and other such things. The evidence establishes that Mr Buttler was a heavy smoker.

39 Third, that the fire was started by an unknown other. It seems from cross-examination of numerous witnesses that the defence will point to the possibility that a number of unknown persons with animus against Mr Bulter could have started the fire and that the police investigation has been deficient in not considering such suspects. These may include the 'African male' said to have been observed by Mr Maloney running from the scene and others who may have had a grudge against Mr Butler. Evidence has established that Mr Butler's interpersonal social skills were somewhat rudimentary and that, from police intelligence dated 2017, he was a 'local Oxy dealer'.

40 Fourth, that the fire was started by a known other. It may or may not be the case that it will be suggested to Mr Warby that he is responsible for the fire.

41 Section 1B of the Act sets out its guiding principles by which it is to be applied and interpreted.[2] First is the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.[3] The presumption of innocence and the right to liberty[4] as well as the promotion of both fairness, transparency and consistency in bail decision making[5] and public understanding of bail practices and procedures[6] are also important.

42 Section 4 of the Act establishes that a person accused of an offence and held in custody in relation to it is entitled to be granted bail unless the Act requires the bail decision-maker to refuse bail.

43 Murder is a Schedule 1 offence.[7] Accordingly, pursuant to s 4AA the exceptional circumstances test applies to the decision whether to grant bail. It follows that bail must be refused unless the applicant demonstrates the existence of exceptional circumstances that justify the grant of bail.[8] In considering whether exceptional circumstances exist, the Court must take into account the surrounding circumstances including, but not limited to, those prescribed in s 3AAA of the Act. The applicant is Aboriginal. As a consequence, in addition to any other requirement of the Act, the factors listed in s 3A(1) must be considered in making a determination pursuant to the Act.

44 If satisfied that exceptional circumstances exist, the Court must apply the unacceptable risk test.[9] Bail must be refused if the Court is satisfied by the prosecution that there is a risk that the applicant would engage in any of the s 4E(1)(a) conduct and that such a risk is an unacceptable one. In applying this test the Court must again take into account the surrounding circumstances[10] as well as the applicant's Aboriginality[11] and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[12]

45 Of the eight matters identified by the applicant in his Notice of Intention to Make Application for bail, three in particular were emphasised at the oral hearing. These were the strength of the prosecution case, delay and the respondent's concession that the applicant does not pose an unacceptable risk of any of the s 4E(1)(a) conduct. The availability of a static address and bail supports were also relied upon.

46 The argument as to the strength of the prosecution case is inextricably linked with the evidence of Mr Warby, although secondary arguments as to the (in)ability of the prosecution to exclude reasonable hypotheses consistent with innocence are pressed. It is put that in the absence of Mr Warby's evidence, the prosecution has no viable case for murder and the case for arson causing death is 'extremely weak'. The history of Mr Warby's non-attendance at court, dating from the committal proceedings to his fleeing the jurisdiction during the February trial, is argued to indicate that there is no certainty that Mr Warby will attend the Supreme Court in Melbourne on 30 April 2025 to have his evidence recorded. Indeed, it is put that there is a high likelihood that he will not. That, it is submitted, highlights the weaknesses in the prosecution case and exacerbates the issue of delay. In the event that Mr Warby gives evidence, the applicant submits that his credit is so low as to be a difficulty in the prosecution case.

47 The respondent contends that the applicant has failed to demonstrate the existence of exceptional circumstances that justify the grant of bail. In particular it is put that the arguments of the applicant as to the probable (non)attendance of Mr Warby are merely speculative. Mr Warby is compliant with his bail conditions and arrangements will be made to transport him from Mildura to Melbourne on the appropriate date. The respondent called the informant, Detective Senior Constable ('DSC') Richard Holloway, to give evidence as to these matters at the hearing of the application.

48 In the event that Mr Warby gives evidence it is argued that the jury could rely upon the evidence of the utterances made by the applicant to him as admissions to murder. It is further argued that in the absence of Mr Warby's evidence, a jury could be satisfied beyond reasonable doubt of the charge of murder based on the combined circumstantial evidence, particularly the DNA evidence, the location of the seat of the fire and the position of Mr Butler's body.

49 The respondent further submits that the delay in the matter is neither inordinate nor exceptional.

50 While the respondent does not allege that the applicant poses an unacceptable risk of any of the s 4E(1)(a) conduct, it is submitted that the applicant's prior criminal history, his poor compliance with previous court orders and unsuitable proposed living conditions 'inform' the exceptional circumstances test.

51 The phrase 'exceptional circumstances' is not defined in the Act, but its meaning is beyond controversy and has been considered many times by judges of this Court. It means that the cumulative effect of the circumstances relied upon must be something other than ordinary.

53 As noted above, the applicant has now been in custody some 771 days. Through no fault of his, the February trial did not reach conclusion. His trial will recommence sometime in 2025. Both parties made submissions as to the significance of this period of delay by reference to authority.

54 The applicant relied, by way of comparison upon the observations of Beale J in Re Application for Bail by Biba[13]:

The anticipated delay from arrest to trial is at best approximately 2 years and 7 months. Whether COVID-19 will be sufficiently under control to allow the trial to commence in April 2021 is guesswork.

In my view, this amounts to inordinate delay and of itself constitutes exceptional circumstances.[14]

55 The respondent referred to the following observations of Beach JA in Re Sipser[15]:

The most significant of the matters relied upon by the applicant in support of his case that there are exceptional circumstances is the fact that he may spend (if one accepts the estimate in the applicant's solicitor's affidavit) a little over two years in custody before trial if bail is not granted. A delay of this order 'if it occurs' is plainly less than desirable, and not at all satisfactory. Such a delay does not, however, constitute exceptional circumstances in this case - either when considered alone or in combination with the other matters relied upon by the applicant. That said, all efforts need to be made to ensure that the prosecution of the applicant's trial proceeds in a timely fashion.[16]

56 The Court of Appeal has recognised that significant delay may, in and of itself, constitute exceptional circumstances as 'the community will not tolerate the indefinite detention of persons awaiting trial'.[17] That said, '[w]hether, and when, the delays in a particular case can be so characterised will depend on the circumstances'.[18]

57 The delay in the applicant's trial, particularly the portion of that delay occasioned by the discharge of the jury in the February 2025 trial, is less than desirable. With the listing of the applicant's trial on a later date in 2025 he will have spent at least two and a half years in custody before verdict. Nonetheless in this application, the issue of delay must be considered in light of the 'relevant circumstances' being - particularly - the twin, interrelated issues of the recording of Mr Warby's evidence and the strength of the prosecution case.

59 At the time the jury was discharged during the February trial, I observed that unless Mr Warby's evidence was captured prior to the empanelment of the next jury, there was a very high risk that the subsequent trial would not proceed to conclusion for the same reason as in the February trial. That is, the lackadaisical attitude of Mr Warby to a subpoena. I adhere to that view.

60 It is unnecessary to detail here the chronology of the prosecution efforts to keep in contact with Mr Warby throughout the committal proceedings and February trial. I have had regard to the document prepared on 24 February by Mr Kail Marshall, a solicitor with the Office of Public Prosecutions, on that subject. That document was tendered by the applicant at the hearing of the application.

61 It is necessary to refer to the evidence of DSC Holloway vis-à-vis Mr Warby.

62 In examination in chief DSC Holloway said that the 17 March 2025 grant of bail to Mr Warby included a condition to report daily. He said, in accordance with the bail conditions, that Mr Warby advised him of medical appointments at Royal Melbourne Hospital on 18 and 19 March and, on request, advised DSC Holloway of a contact number to verify that those appointments were correct. He said that as at 20 March 2025 Mr Warby had returned to Mildura. Mr Warby had not notified him of any further medical appointments for the period to 30 April 2025.

63 In cross-examination, DSC Holloway accepted that he was one of the members of Victoria Police that had prepared a document entitled 'Remand/Bail Application'. The face of that document dated 14 March 2025 indicates that the remand of Mr Warby was sought with respect to his movement from the Bundaberg Magistrates' Court to the Melbourne Magistrates' Court and from there to the Supreme Court of Victoria. DSC Holloway agreed that that at the time the document was prepared Victoria Police were of the view that it was appropriate that Mr Warby be remanded because of 'significant concerns' that if he was bailed he would abscond again.

64 DSC Holloway agreed that the document included the following:

REASONS FOR REMAND

1. Flight Risk

The witness has demonstrated an active unwillingness to comply with lawful subpoenas and has evaded court proceedings despite multiple opportunities to appear. Their failure to voluntarily return, compounded by their recent arrest outside Victoria, establishes a clear flight risk. Factors indicated flight risk:

Previous non-compliance with Supreme Court orders.

Arrest in Branyan, Queensland, indicating attempts to avoid the Victorian jurisdiction.

Despite having fixed address in Victoria there appears to be no strong community ties ensuring return.

The seriousness of the case, which may act as incentive to abscond. Given these factors, it is strongly recommended that bail be refused to ensure the witness's availability for future proceedings.

Indications made to police upon their apprehension to immediately return to Branyan, Queensland where his child remains should bail be afforded. [19]

65 As to the last dot point, DSC Holloway said that the representations were made to Queensland police and concerned Mr Warby's intention should his child still be in Queensland.

66 DSC Holloway further agreed that in text messages sent by Mr Warby to police after he had been advised that a warrant had been issued for his arrest contained lies as to his intentions and whereabouts. Further, in text messages sent to his adult daughter resident in Queensland, Mr Warby told her not to speak to police as part of his effort to evade police.

67 In re-examination DSC Holloway said that Mr Warby's now child is residing with Mr Warby in Mildura.

68 The first major issue concerning Mr Warby is whether it is reasonable to assume that he will attend for the pre-recording of his evidence on 30 April, a matter of some weeks away. If he does, and the evidence is recorded, the applicant's trial will then be allocated a specific commencement date in 2025. There will be no reason to assume that the trial will not proceed to verdict. In that event, subject to the further considerations discussed below, the delay is insufficient to ground a finding of exceptional circumstances.

69 The critical question then is whether the imposition of the strict bail conditions is sufficient to make good the assumption that Mr Warby's evidence will be recorded on 30 April 2025 (and following), notwithstanding his prior behaviour. On balance I am persuaded that it is. While Mr Warby has shown scant regard for the consequences of disobeying court orders in the form of a subpoena, the consequences of breaching bail are in marked contradistinction. Further, I accept the evidence of DSC Holloway that Mr Warby has, to date, complied with his bail conditions. In essence, he is under police supervision. Mr Warby has reported daily. It is open to Victoria Police to conduct curfew checks between the hours of 10 pm and 6 am. Significantly, his child is residing with him thus eliminating his previously stated motivation to return to Queensland. Having said that, I acknowledge that Mr Warby's son was also residing with him during the February trial. I accept that arrangements will be made by the informant for Mr Warby's travel to Melbourne.

70 I note that if Mr Warby was subject to subpoena and not strict bail conditions, my conclusion would be otherwise. The suggestion that he would not attend for the pre-recording of his evidence would, in my view, be probable rather than speculative in light of Mr Warby's extensive past behaviour. In those circumstances, if the prosecution continued to rely upon the evidence of Mr Warby, the delay would have no known or reasonably estimated end point. The situation would be either that a trial would commence in the knowledge that there was a high risk that it would not proceed to verdict due to the behaviour of Mr Warby or, more likely, that the trial would not be allocated a commencement date until the evidence of Mr Warby was pre-recorded. That is a situation markedly different from the current position. And, in those circumstances, if the prosecution elected to proceed in the absence of Mr Warby's evidence, the observations made below as to the strength of the prosecution case would need to be reconsidered.

71 I further note that in the event that Mr Warby does not - for no good reason - attend to give his evidence on 30 April 2025 (and the other date currently listed), the circumstances relevant to the determination of this application will have changed materially.

72 The second major issue concerning Mr Warby is the impact of his anticipated evidence on the strength of the prosecution case. Notwithstanding the fertile ground for cross-examination, it would be open to a jury when considering the prosecution case as a whole to accept the evidence of Mr Warby as to the admissions allegedly made to him by the applicant. The Crown case, as presently formulated, is not weak. Given that, it is of little utility to separately consider in any detail the 'reasonable hypotheses consistent with innocence' identifiable from the defence puttage in the February trial. If the jury accepted Mr Warby's evidence, it would reject notions of suicide, accidental ignition or deliberate ignition by unknown other(s). In so far as it might be suggested to Mr Warby that he is responsible for lighting the fire, the compilation CCTV hostel footage tendered as part of the Crown case demonstrates, the Crown argues, that Mr Warby did not leave the hostel at any relevant time. Again, it would open to the jury to accept the argument that the CCTV footage demonstrates that fact.

73 In summary, for the purposes of determining this application, the applicant's arguments as to delay and the weakness in the prosecution case depend in very large measure upon the assumption that Mr Warby will not answer his bail on 30 April 2025. On the state of the evidence on this application, that assumption is speculative.

74 The applicant further relied upon the respondent's concession that the applicant does not pose an unacceptable risk of any of the s 4E(1)(a) conduct and made reference to the observation of Priest JA that

The concept of exceptional circumstances is an elusive one. But, as Beach JA observed in Ceylan, it is well established that exceptional circumstances for the purposes of the Act may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant. One matter that has often been regarded as important in this context, is the absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways contemplated by the Act.[20]

75 Accepting that to be so, the absence of unacceptable risk does not, when considered with the other matters in the circumstances of this case - particularly those just discussed, allow a finding that the applicant has demonstrated exceptional circumstances justifying the grant of bail. The applicant is charged with offences which carry maximum penalties of life imprisonment and 25 years imprisonment. He accepts that in the event he is convicted of either charge he will be sentenced to a term of imprisonment that would exceed the time spent on remand.

76 With respect to the other matters relied on by the applicant, I note that the proposed bail address is not without difficulty. I have received two short affidavits affirmed by Mr Ian Mennie in which he states that the applicant could live with him, his partner and his son in a house in Mildura. During the evidence of DSC Holloway the criminal records of all three residents were tendered. Of particular concern was a 25 March 2025 finding of guilt in the Magistrates' Court at Mildura against Mr Mennie for possession of cannabis. Whilst the disposition - a fine of $100 without conviction - suggests the low level nature of the offence, the applicant is a man who has a long term drug problem. He has used drugs, particularly methylamphetamine and heroin, for about 20 years. He has been on the methadone program in custody for about 18 months. That the applicant would remain drug free (and potentially crime free) without significant structured, daily support and living in anything less than a robustly pro-social household is extremely doubtful. In this regard I further note the evidence of DSC Holloway that police intelligence suggests that historically Mr Mennie and the applicant were criminal associates, albeit that such association was active in 2012.

77 The applicant further relied upon a Mallee District Aboriginal Services ('MDAS') 'SEWB Referral Form' completed by his solicitor Sasha Leon Molina on 21 March 2025. In it Ms Molina refers to the applicant's history of drug use and his 'legal issues', without expressly stating that he is charged with murder. The form notes that the applicant has been diagnosed with depression and anxiety and is prescribed a daily dose of Mirtazapine. It further notes that the applicant's family and friends are in Mildura and Melbourne, that his mother suffers Huntington's Disease and that his grandfather, aunt and uncle died of that condition. The form checks boxes for a referral for mental health, alcohol and other drugs and the local justice program.

78 There was no evidence on the hearing of the application that the MDAS had accepted the referral. It was submitted that the policy of MDAS was to provide an intake date only upon a person's release from custody. Counsel for the applicant indicated from the bar table that MDAS had said that two persons would support the applicant, one for mental health and the other for drug and alcohol counselling. No detail as to the form or frequency of that support was tendered.

79 The state of that evidence is unsatisfactory. In short, given the constellation of factors confronting the applicant, evidence of stronger and more suitable arrangements would be necessary. The evidence of a medical appointment made with a general practitioner does not alter that position.

80 As previously noted, the applicant is Aboriginal. Consequently in considering this matter I have had regard to:

(ix) The historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population.

(x) The risk of harm and trauma that being in custody poses to Aboriginal people.

(xi) The importance of maintaining and supporting the development of the applicant's connection to culture, kinship, family, Elders, country and community.[21]

81 I have further had regard to the applicant's social and economic disadvantage,[22] as is evident from the prosecution brief, and his ill health,[23] as is evident in his diagnoses of and medication for anxiety and depression.

82 The circumstances relied upon by the applicant with respect to this application for bail do not, either singly or in combination, demonstrate exceptional circumstances justifying the grant of bail.

[13] [2020] VSC 536.

[14] Ibid, [31]-[32] (footnote omitted).

[15] [2019] VSC 362.

[17] Barbaro v CDPP [2009] VSCA 26; (2009) 20 VR 717, [41] (Maxwell P, Vincent and Kellam JJA); [2009] VSCA 26.

[20] Re Gloury-Hyde [2018] 393, [30] (footnotes omitted).