Armstrong v R [2013] VSC 111

2 The attachment of criminal liability to the applicant for the death of his son raises what at first appear to be some novel issues which I will come to shortly. I should make it clear these are not issues which it is necessary or appropriate for me to finally resolve or express a concluded view about. My only role on this application is to determine whether the applicant should be released on bail. The issues about the legal viability of the prosecution case has not been the subject of complete and detailed argument and the resolution of them to the extent that they arise, will be the task, initially, of the Magistrate presiding over the committal proceedings and, later, if the applicant is committed for trial, for a trial judge. However, my consideration of these issues is relevant to my assessment of the strength of the prosecution case against the applicant for the purpose of deciding this application.

3 On 8 February 2013, the applicant gave notice of his intention to apply for bail and evidence and submissions were heard on 7 March 2013. Because the applicant is charged with murder, pursuant to s 4(2) of the Bail Act 1977, the Court is required to refuse bail except in accordance with the provisions of s 13 which provide, in effect, that I shall not grant bail unless satisfied that exceptional circumstances exist which justify the making of such an order. The onus of establishing exceptional circumstances is on the applicant and, should he succeed in so doing, the onus then shifts to the respondent to demonstrate that the release of the applicant on bail would pose an unacceptable risk that he would either:

• fail to surrender himself into custody in answer to his bail;

• endanger the safety or welfare of members of the public; or

• interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.[1]

4 For the purpose of this application, I will describe what I understand to be the factual basis on which the prosecution case against the applicant is to be put. I will then examine the means by which the prosecution contend that the applicant can be found guilty of the charge of murder.

5 The applicant is said to have been involved in a dispute with Stephen Delmo. The dispute was apparently concerned with a female known to the applicant. On 3 November 2011, over a month before the death of his son, the applicant obtained an intervention order against Delmo at the Frankston Magistrates' Court. The Crown contends that hostilities simmered. It is then alleged that in the lead-up to the events of 22 December 2011, the applicant, in the presence of one other person who is now a Crown witness, convinced his son to attend Delmo's premises at Somerville with his friends, armed with a firearm and with an intention to kill or to seriously assault Delmo.

6 As a result of that incitement, the applicant's son recruited Messrs Ward and Haver to assist him and together they went to Delmo's premises on 22 December 2011. They were armed with a baseball bat and a loaded shotgun. Delmo was at the time asleep in a rear bungalow of the premises but having awakened and become aware of the presence of these men, Delmo chased them to the front yard of the premises where he was seriously assaulted by two of the men armed with a baseball bat. A third man then ran towards him with a shotgun and Delmo was ordered onto his knees and the shotgun discharged. However, Delmo then struggled with the man holding the gun before he broke free and went to his house where he rang 000. It would appear that when the shotgun discharged it in fact shot the deceased man Anthony Armstrong, and that Wald and Haver then took Armstrong to the intersection of Hastings Road and Clarendon Street near the Frankston Hospital, where the body was later found by uniformed police officers. Armstrong had two gunshot wounds to his chest.

7 Apart from Wald and Haver, who are also both charged with murder, the case of murder against the applicant is put on the basis that the death of the deceased was caused unintentionally by either Haver or Wald during a violent act being the serious injury of Delmo and during which the shotgun they had with them was produced and fired. Therefore, the Crown will allege that the accused was an accomplice to the serious assault of Delmo because he procured the deceased to undertake that offence. Therefore it is open for him to be convicted of murder pursuant to s 3A of the Crimes Act 1958 which provides:

(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

8 The applicant was arrested and charged in relation to this matter on 17 December 2012 and remanded in custody. At around the same time, three others, Wald, Haver and a woman called Ottobre were also charged. Ottobre was charged with perverting the cause of justice, possessing one unregistered firearm and similar charges and was bailed.

9 A committal mention for these matters is to be conducted on 9 April 2013. The committal is to be a joint one and may be held later in 2013. However there is a degree of complexity to the matter and a significant amount of evidentiary material. There is no chance of the trial matter being heard in this Court much before the middle of 2014. That will mean that, if refused bail, the applicant will be spend some 18 months of pre-trial custody.

10 In his affidavit in support of the application, the solicitor for the accused has pointed to a number of factors which, it is suggested, underpin a finding of exceptional circumstances. The principal factor pointed to is the form of the prosecution case, but in addition, the applicant has no history of violence and no history of breaching conditions of bail. The time that the applicant has spent in custody since December of last year is the first time he has been in custody.

Exceptional circumstances - the prosecution case to be put

11 On behalf of the applicant, Mr Scott Johns of counsel has submitted that it may not be open to the Crown to put the case against the applicant in the way that they propose to. He said, accurately, that it is "extremely unusual" and that is a factor in the assessment of whether his client has established exceptional circumstances under s 13 of the Bail Act 1977.

12 Mr Johns' submission is that a person not present at the scene may not be able to be convicted of murder under s 3A of the Crimes Act 1958. That, he argues, is because a counsellor or procurer is not to be regarded as a participant. At present I am not able to see why presence at the scene would be a prerequisite for a verdict of guilty pursuant to s 3A of the Act. It is simple enough to state that a counsellor or procurer can be treated as a principal offender despite their absence from the scene. In my opinion, there is nothing about s 3A, either express or to be implied, to indicate that the ordinary rules which render an accessory before the fact to liability as a principal would not apply.

13 So, in examining the issue, the first matter to be considered is how the role of the applicant is to be described. Clearly enough, on the basis of the way the Crown would put its case against him, he is someone who has aided, abetted, counselled or procured another person - his son - to cause serious injury to Mr Delmo and, on one view of the evidence, to kill him. I have some misgivings about whether the latter can be established, but on the way the Crown put its case against the applicant, it may not matter. I will return later to the quality of the evidence although judgements in that regard may well be premature.

14 The Crown then rely on s 323 of the Crimes Act 1958 which provides:

A person who aids, abets, counsels or procures the commission of an indictable offence may be tried or indicted and punished as a principal offender.

15 Aiding and abetting an offence requires proof that person concerned is aware of the essential matters constituting the offence. They must know the type of crime contemplated by the principal or contemplate the principal will commit a particular type of crime. They do not need to be aware of the precise crime contemplated by the principal or the precise crime committed.[2]

16 So if the evidence was that the accused contemplated that Delmo would be murdered by his son and his accomplices, and that had happened, the applicant would liable for the murder as a principal offender under s 323 of the Crimes Act 1958. However, that is not what happened. The death of one of the offenders occurred, in a manner which the Crown say comes within s 3A, and liability for murder is sought to be attached to the surviving offenders on that basis.

17 The case against the applicant is that he is guilty of murder under s 3A on the basis that he contemplated that his son and his accomplices would commit a crime the necessary elements of which include violence; that he aided, abetted, counselled or procured the commission of such an offence; and that during that incident his son was unintentionally killed by one of the other two offenders. The Crown contends that this combination of factors exposes the Applicant to liability for murder under s 3A by virtue of s 323.

18 Unusual or not, in my opinion the reasoning the Crown rely on is open and liability for murder s 3A of the Crimes Act 1958 may be able to be attached to the applicant in the way the they suggest. However, given the unique nature of the way the Crown proposes to put its case, I cannot exclude the possibility that a more thorough analysis may raise obstacles for the prosecution. Depending on how the evidence falls, as will be seen shortly, there may be some difficult issues to be resolved. Obviously, my opinion is in no way binding on the later consideration of the issue at the committal proceedings. At any subsequent trial, a judge of this Court will make his or her rulings independently of any view I have expressed.

Exceptional circumstances - the evidence to be relied upon

19 It is further suggested that the case against the applicant is particularly weak because of the nature of the evidence on which the Crown proposes to rely. The evidence against the accused is from a combination of three sources. First, it comes from a witness named Adam Tsaousidis. This man was a friend of the son of the accused. In a statement made on 5 June 2012, he described being a witness to a conversation between the accused and his son about two weeks before the death of Anthony Armstrong. In this conversation he said the accused told his son that he needed to get three people and a weapon to go and confront a man in Hastings whom the Crown allege is Delmo. Tsaousidis also said that there was discussion about a gun that Anthony Armstrong said the matter would be taken care of. In a further statement made on 21 January 2013, he expanded on his earlier statement and changed some of his earlier evidence. In the second statement he said that the Applicant was urging his son to get a gun and that the person to be attacked deserved a bullet in the head and to be dumped in an unmarked grave.

20 Next, the Crown will rely on the evidence of Ms Jane Wilden who is a former sister in law of the applicant. It is proposed that she will give evidence that the applicant told her the death of his son was his responsibility, in broad terms.

21 The third source of evidence relied on comes from a listening device in the premises of the accused at Hastings where a number of conversations were recorded. One conversation was on 18 August 2012 and the accused was apparently speaking to a Ms Debbie Wright who was involved in the dispute between the applicant and Delmo. He is alleged to have displayed a knowledge, and the Crown would say a will, that his son went to Delmo's premises to "bash him to a pulp" and put him in a wheel chair. In a later conversation on 21 August 2012, the accused is heard apparently speaking to himself and stating that his son and his friends had gone to the premises to kill Delmo and he thought that was good.

22 As has been forecast, there will also be a significant issue on how the fatal shooting occurred. Mr Johns adds that there appears to be some confusion as to whether, during the confrontation, there was grappling for the firearm or for the baseball bat. However, the 000 call from Delmo at 2.40am on the 22 December 2011 seems to indicate that there was an assault with a baseball bat and that he heard a shotgun blast go over his head.

23 Beyond identifying the issue, it may be resolved by a contest between an expert firearm and tool mark examiner on the one hand and the author of a gunshot residue report on the other. Their evidence appears to each support a different possibility. Those possibilities include that the deceased and Delmo were struggling over the firearm when it discharged killing the deceased. The other possibility is that one of the other offenders discharged for the firearm intending to shoot Delmo but because of a sudden change in positions, struck the deceased.

24 Mr Johns has submitted that if what occurred is the former of those two possibilities, then murder under s 3A cannot be made out because to establish liability, the section requires that "[a] person .... unintentionally cause the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence." Thus, if the deceased is the person causing the act of violence (Mr Delmo doing no more than defending himself) as well as the person killed, the section cannot apply. Again, that is an issue that may well arise.

25 Subject to that, in my opinion it is premature to otherwise express an informed opinion on the strength of the Crown case. To the extent that the credibility of the witnesses is in issue that will no doubt be litigated during the committal proceedings. The strength of the other evidence against the accused will likewise be the subject of scrutiny. Whilst I consider it is open to the Crown to conduct its case on murder against the applicant in the way they propose, I am not of the view that it would be presently accurate to regard it as a strong case.

26 Apart from the matters I have already referred to, the applicant is 62 years of age and without prior convictions. Until a few years ago he had a solid work history but recently has been on sickness benefits. The death of his son occurred in December 2011 and as I have earlier described, he was not arrested until a year later. During that period he did not do anything to suggest that he would not comply with a bail order.

27 It is also suggested that the applicant is suffering from medical conditions which make his time in custody more onerous. They include matters such as cardiac problems, high cholesterol and arthritis.

28 A report dated 1 March 2013 was tendered from Dr Danny Sullivan, forensic psychiatrist, after meeting with the Applicant on 23 February 2013. That report indicates that after the death of his son, the applicant suffered a grief reaction and was hospitalised for a period of about three weeks. The hospital diagnosed the applicant with an anti-social personality but Dr Sullivan states that he can find no evidence to support such a diagnosis.

29 As I have already described, there will be a delay in this matter coming to trial. There has already been more than a year since the fatal incident occurred before the applicant was charged. As I said, realistically, I have to assume that from the arrest of the applicant until trial, the delay is likely to be in excess of 18 months.

30 Mr Hughan, on behalf of the informant, opposes bail on the basis that the material in support of the application would not establish exceptional circumstances, and also for the particular reason that the six year old son of the man Delmo, whom these three individuals went to assault, resides next-door to the proposed residential address of the applicant were he to be released. However, as Mr Johns has pointed out, that has been the case for some time prior to the arrest of the applicant and notwithstanding the continuing interest of the police in the applicant, the fears about this as expressed by the informant are based more on impressions than any actual conduct or threat made by the applicant.

31 As Warren J (as she then was) observed in Whiteside,[3] the hurdle confronted by an applicant in establishing exceptional circumstances "is a high one". However, the hurdle is not impossible, as her Honour concluded, based on the reasoning of Beach J in Hanna El Rahi.[4] In that case, his Honour determined that good character, good work record and a supportive family is not in itself a combination of exceptional circumstances. The formulation that is most often referred to is that of Vincent J in Moloney[5] in which 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.

32 In the later ruling of Cozzi,[6] Coldrey J unsurprisingly adopted as correct Vincent J's observations. His Honour pointed out that the concept of exceptional circumstances is an elusive one and is not defined in the Act. His Honour went on:[7]

Among the major factors found to constitute exceptional circumstances have been the strength of the Crown case (where that may be sensibly assessed); the question of delayed committal and/or trial; and principles of parity (insofar as they are applicable to a bail application).

His Honour concluded that there were a variety of factors to be taken into account in considering the question of exceptional circumstances and that in each case it appeared to him to be a question of degree. He thought that the lack of matters which constituted unacceptable risk as set out in s 4(2)(d) are often taken into consideration.

33 Although I have reached the conclusion that the manner in which the Crown propose to put its case against the applicant is open, I must acknowledge that there may be further issues to be raised about that. I have also reached the conclusion that at this stage it is very difficult to assess the strength of the evidence which the Crown proposes to lead against the accused. It is true that some of the evidence is open to be criticised on the basis of consistency and timing but in many senses, it is too early to make a proper assessment of the strength or weakness of the case, other than to say that I would not describe it as a strong case.

34 Having given consideration to the issues in this somewhat unusual case, I have come to the conclusion that the applicant has demonstrated that exceptional circumstances have been established such that the making of an order for bail is justified. I have also come to the conclusion that the Crown have not established that to release the applicant on bail would be an unacceptable risk pursuant to the matters set out s 4(2)(d) of the Bail Act.

35 I will therefore order that the Applicant be admitted to bail on the following conditions:

1. that the applicant attend the Magistrates' Court of Victoria, Melbourne on 9 April 2013 for a committal mention;

2. that the applicant not depart without the leave of the Court and, as often as leave is given, return at the time appointed by the Court on granting leave and again surrender himself;

3. that the applicant reside at 6/72 King Street, Hastings, Victoria;

4. that the applicant report each Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Hastings or his nominee between the hours of 6.00am and 9.00pm;

5. that the applicant not contact directly or indirectly any witness for the Prosecution except the Informant or his nominee;

6. that the applicant not travel interstate without giving seven days notice to the Informant or his nominee and receiving the Informant's permission;

7. that the applicant surrender any passports which he may hold to the Informant within 24 hours of being admitted to bail and not apply for another passport; and

8. that the applicant not attend any point of international departure during the period of bail.

[1] Bail Act 1977, s 4(2)(d).

[2] See Bruce v Williams (1989) 46 A Crim R 122; R v Ancuta (1990) 49 A Crim R 307.

[3] [1999] VSC 413 at [10].

[4] Unreported Judgment, Supreme Court of Victoria, Beach J, 18 January 1996.

[5] Unreported Judgment, Supreme Court of Victoria, Vincent J, 31 October 1990 at 1-2.

[6] [2005] VSC 195 at [19].