Application for Bail by Jake Royd Fairest [2015] VSC 375 (29 July 2015)

2 All three co-accused have been in custody for some months, the applicant having been arrested on 12 February 2015. Ms Fields was granted bail by Kaye JA on 25 June 2015. Mr Toohey has not, at this stage, made any application for bail and therefore remains in custody.

3 A contested committal is scheduled to be heard on 17 August 2015. The applicant has not thus far sought bail, and has been in custody since arrest.

4 By reason of s 13(2) of the Bail Act 1977, bail is not to be granted to a person charged with murder unless that person satisfies the Court that exceptional circumstances exist which justify the making of such an order.

5 In that regard, there is unchallenged and incontrovertible evidence regarding the applicant's personal circumstances. He is, and has been from about the age of seven, profoundly deaf. He also has severe cognitive and developmental disabilities which are the result of his having received aggressive chemotherapy when aged seven in order to treat a brain tumour. Further results of that treatment include stunted growth, a weakened spine and a growth hormone deficiency.

6 The applicant has a particularly low IQ. This has been measured as a verbal IQ of 48, and a full IQ of 60. That fact, coupled with his deafness, makes communication with him, whether verbally or in Auslan, extremely difficult.

7 The applicant has never been able to secure employment. Up until the date of his arrest, he lived with his father. He receives strong support from, and continues to have a positive relationship with, his father who sees him on a regular basis. He also maintains an amicable relationship with his mother and siblings, although it is fair to say that they are not close. He has a half-brother who is also deaf and his mother has health issues of her own.

8 The applicant is presently housed at the Melbourne Assessment Prison where he is under protection. This is the result of his having been bullied by other prisoners, who for some reason, have taken a dislike to him.

9 Relevantly, the applicant has no prior convictions of any kind.

10 It is difficult, at this stage, to assess the strength of the prosecution case. There were no eye-witnesses to the actual killing, save that the deceased was seen dangling from the balcony being held by the wrists by someone who then released him, causing him to fall some 12 metres or so to the ground. There is CCTV footage of the applicant and his co-accused, both of whom as it happens are also deaf, engaged in Auslan 'discussion' in the period immediately leading up to the killing of the deceased. The Crown alleges that they were canvassing various methods of killing Mr Wright during the course of that 'discussion'.

11 The defence contends that the Crown's Auslan interpreter, who has worked off the CCTV footage, should not be regarded as reliable. It appears that quite a lot of what was being 'discussed' cannot be interpreted, involving so it is said the use of 'slang' or its equivalent. There is also further ambiguity associated with some of the attributed 'conversation'. The defence further contends that, insofar as the applicant is said to have made admissions to the police when interviewed by them, there is a real issue as to whether those admissions will be received in evidence. The defence contends, for example, that the applicant was relevantly misled as to his status when questioned, not having been informed that he was a suspect, and was being interviewed as such.

12 There may also be an issue, in the ultimate analysis, as to whether the applicant is fit to plead.

13 The Crown disputes the defence suggestion that its case against the applicant should be viewed as weak. It contends that the case is, in fact, a powerful one.

14 There is no suggestion, on behalf of the Crown, that the applicant if released on bail would be likely to fail to surrender himself in answer to his bail. Nor is it suggested that he would commit any other offences whilst on bail, or endanger the safety or welfare of members of the public, or interfere with witnesses or otherwise obstruct the course of justice. In essence, the Crown's position is one of leaving it to the Court to assess whether there are exceptional circumstances, and if so, whether bail should be granted, and on what terms.

15 It is not without significance that Ms Fields has been granted bail. It is true that at 19 she is some years younger than the applicant. Kaye JA granted her bail despite concluding that, in his opinion, the Crown case was strong. He said that the CCTV footage of the conversations between the three co-accused, as interpreted by an Auslan interpreter, in the train en route to the deceased's premises, as well as in the foyer and lift of those premises, implicated all three in a joint agreement to kill Mr Wright by pushing him off the balcony of his residence. Because the case is presented as one of joint criminal enterprise, it makes no difference who, specifically, caused the deceased to fall to his death.

16 As was the case with Ms Fields, the question that I must determine is whether, in the context of a Crown case that, at least at this stage, is of uncertain strength, the personal situation of the applicant is such as to constitute exceptional circumstances that would justify his release on bail.

17 The Bail Act 1977 does not provide a definition of 'exceptional circumstances'. However, it has long been accepted that such circumstances may, in an appropriate case, be established through a combination of factors pertaining both to the nature of the Crown case against the applicant, and his or her personal circumstances.

18 In this case, it would be hard to imagine more compelling circumstances, pointing to the particular hardship associated with being in custody, so far as this applicant is concerned. There is before me an affidavit dated 22 July 2015 sworn by Brendan Money, Assistant Commissioner of the Sentence Management Branch Corrections Victoria, which confirms that the applicant is indeed in protection, kept in a single cell, and given coloured pencils and paper to occupy him. He is on limited time out of his cell to ensure his safety from other prisoners. He is being considered for possible transfer to a specialist unit at Port Phillip Prison, which is designed for prisoners who are intellectually disabled. However, that is dependent upon a place being available, and a formal assessment by the Department of Human Services, which has not yet occurred.

19 I also have before me evidence from Ms Catherine Dwyer, Case Manager of the Victorian Deaf Society, who has been working with the applicant since March 2015. She states that the applicant has experienced a range of communication issues which have stemmed from his deafness and cognitive disability. Unlike prisoners who can hear, the applicant has not been able to observe and absorb the surrounding prison culture. This lack of knowledge and understanding regarding the prison regime has, in her view, placed him at risk of physical harm from other prisoners. Obviously, the applicant cannot articulate complaints about such mistreatment to prison staff, whether in writing or by using Auslan. This, in turn, has resulted in his experiencing misunderstanding and isolation.

20 Finally, I have before me a report dated 10 July 2015 prepared by Professor Margaret Zacharin, an endocrinologist who has been treating the applicant since he was 10 years old. She confirms that he was diagnosed when aged seven with a malignant brain tumour, and treated with surgery as well as radiation and chemotherapy. Professor Zacharin states:

Jake has congenital deafness and has never acquired appropriate intelligible speech, although with some difficulty, it is possible to understand some of his conversation ... Any child who has been subjected to cranial radiation at the age of 7 is bound to have a significant deterioration in intellectual capacity ... Jake needs to take medication on a daily basis ... which he very frequently forgets which ... would add to memory deficit. He has growth-hormone deficiency which would contribute to significant tiredness and this is not currently treated. His cortisone levels are just adequate to get around with on a daily basis but has no ability to respond to stress whatsoever.

21 Significantly, Professor Zacharin goes on to say:

My overall assessment of Jake would be that in my experience he has always been a relatively cheerful young man with severe disabilities related to his hearing impairment and intellectual disabilities from the early malignant brain tumour and its treatment. I totally agree with your assessment that he would be absolutely incapable of understanding legal process and its implications and worse still would be incapable of understanding the implications of imprisonment and the extraordinary risks to his person that that would entail. Similarly, I do not have firsthand experience in knowing how he has fared in earlier years at school or more recently in an adult environment, in terms of socialisation but I would be very surprised if he had not been subjected to multiple taunts, insults and other adverse circumstances related to his disabilities.

22 In my opinion, the applicant has clearly established that there are exceptional circumstances, arising out of his various disabilities, which are numerous and profound, and warrant his being granted bail on suitable terms. If the facts of this particular case do not give rise to exceptional circumstances, I am at a loss to know what type of case could conceivably meet that description.

23 I propose granting bail on terms not altogether dissimilar to those imposed in relation to Ms Fields. In particular, I will order the release of the applicant on bail, on his own undertaking, subject to the following conditions:

(a) That he surrender any passport held by him within 48 hours hereof, and make no application, throughout the duration of bail, for any new passport.

(b) That he not attend any point of international departure during the period of bail.

(c) That he not leave the State of Victoria without first notifying the informant, and obtaining his permission to do so.

(d) That he reside at [Boronia address] for the duration of bail.

(e) That he remain at the above address between the hours of 10 pm and 6 am each day throughout the duration of bail.

(f) That he report to the Officer in Charge of the Boronia Police Station three times a week, on Monday, Wednesday and Friday, between the hours of 9.00 am and 9.00 pm for the duration of bail.

(g) That he not communicate, whether directly or indirectly, with his co-accused, Georgia Fields and Warwick Toohey, throughout the duration of bail.

(h) That he not communicate, whether directly or indirectly, with any prosecution witness, other than the informant or any other police officer associated with the investigation, throughout the duration of bail.

(i) That he not alight from any train at Flinders Street Station throughout the duration of bail.

I certify that this and the 75 preceding pages are a true copy of the reasons for Judgment of Weinberg JA of the Supreme Court of Victoria delivered on 29 July 2015.