Byrne v DPP [2015] VSC 764

1 At about 11:30 p.m. on 7 February 2015, Steen Locke and his friend Rochelle Jerrard were sitting on Brooks Jetty at the St Kilda foreshore. They were drinking and talking when they noticed another couple on the jetty who appeared to be arguing. At some point, the male said to Mr Locke, 'What the fuck are you looking at?'. Mr Locke said, 'Nothing, mate', and turned away.

2 Without warning, the male then produced a knife and stabbed Mr Locke six times - to the back of his head, right shoulder, right arm pit, left chest wall and left shoulder (twice). The assailant left the knife lodged in Mr Locke's back and fled towards Acland Street. Mr Locke tried to give chase but collapsed opposite Luna Park. He was bleeding heavily.

3 Ms Jerrard rang Triple-0 and, with a number of bystanders, tried to help Mr Locke while waiting for the ambulance. Paramedics arrived, treated Mr Locke and took him to the Alfred Hospital. The stabbing to Mr Locke's chest caused a punctured lung. He required surgery and a five-day stint in hospital.

4 It is alleged by the prosecution that the applicant Dwayne Byrne was the assailant. On 11 February 2015, Mr Byrne was arrested by police at his flat in St Kilda. Ultimately, he was charged with attempted murder and various alternative offences.

5 On 3 August 2015, he was committed for trial in this Court.

6 The Director of Public Prosecutions has filed an indictment charging attempted murder and, in the alternative, intentionally causing serious injury. The trial is listed to commence in about five months, on 2 May 2016.

7 Mr Byrne has remained in custody since his arrest. He now applies to this Court for bail.

8 The application is opposed by the Director on two bases.

9 First, it was submitted that Mr Byrne had failed to show cause why his detention in custody is not justified. He must show such cause because he is charged with an indictable offence alleged to have been committed while using an offensive weapon.[1]

10 Secondly, initially, it was submitted that, if granted bail, there would be an unacceptable risk that Mr Byrne would fail to appear at trial, commit an offence, endanger others and/or interfere with witnesses.[2] As the application developed, however, it was really only the alleged risk that Mr Byrne would commit a further offence or offences, and thereby endanger others, and the alleged risk of his interfering with a particular witness, that were the two categories of unacceptable risk on which the Director relied.

11 Mr Farrington, who appeared for Mr Byrne in this Court, submitted that a combination of factors warranted the conclusion that the necessary cause had been shown and that the Director had failed to establish unacceptable risks of the kinds asserted. Those factors included the following.

12 First, Mr Farrington submitted that the prosecution case on identification was not strong. He pointed out that both Mr Locke and Ms Jerrard said the assailant had an English accent whereas Mr Byrne has an Australian accent. Further, Ms Jerrard failed to pick the applicant's image from a photoboard. While her immediate reaction was that none of the images were of the assailant, she selected one photograph (which was not of the applicant) as 'a maybe', or as the one 'closest' to the assailant. Mr Locke selected the applicant's image but, at the time, said only that was 'probably' him.

13 On the other hand, at the committal hearing, Mr Locke said that, by 'probably', he meant that he was 99 per cent sure the image he selected was that of the assailant. In addition, there was other evidence, including security footage from the taxi in which Mr Byrne and his then-girlfriend took a trip at about the time of the incident, which placed them in the vicinity of the attack around that time. Further still, in the course of a compulsory examination, Mr Byrne's former girlfriend placed him at the jetty around the relevant time. Finally, police found at Mr Byrne's flat - where he lived alone and which is located in the general area of the attack - a scabbard that fits the knife that was left impaled in Mr Locke's back.

14 In those circumstances, I would not classify the prosecution case as weak but, rather, as a relatively strong circumstantial case that Mr Byrne was the assailant.

15 Secondly, Mr Farrington submitted there will be a significant delay until trial, which is due to commence in May 2016. Mr Byrne has already been in custody continuously since 11 February 2015. On the other hand, Mr Farrington accepted that, were Mr Byrne convicted in May 2016 of attempted murder, or even of the alternative of intentionally causing serious injury, the sentence likely to follow would exceed the period he would have been on remand. That, in my opinion, was a proper concession to make, particularly when one considers the objective seriousness of the alleged incident and Mr Byrne's extensive criminal history, even for one who is only 22. It is plain that the order of sentence that would follow conviction of, say, intentionally causing serious injury would well exceed the period Mr Byrne will have served in custody by May of next year, without even allowing for the fact he has already served about three months in custody for another offence in the interim since his arrest in February 2015.

16 Thirdly, Mr Farrington relied on the support offered to the applicant by his grandfather, Michael Byrne. If released on bail, the applicant would reside with his grandfather in Inverloch, approximately two hours' drive from Melbourne. Further, Michael Byrne swore that, if, to his knowledge, his grandson breached any of the conditions of bail, he would report the matter to the police. He said he would not tolerate drug use. He believes that his grandson would listen to him and that he could well influence him positively. I accept Mr Byrne senior's assurances and that he believes both that his grandson would listen to him and that he could well influence him positively.

17 Fourthly, the applicant has been and still is supported in and out of custody by Elle Jackson, a senior practitioner with the 'Reconnect Programme', which is run by Jesuit Social Services. Ms Jackson has been involved with Mr Byrne for a considerable period of time. Through her organisation and a previous organisation with which she was involved, she has provided various services in attempts to assist Mr Byrne when he has been in prison and when he has been in the community. Ms Jackson accepted that, despite those organisations' support in the past, Mr Byrne has committed further offences and has been returned to prison. Nevertheless, she was very positive about the opportunity that would be afforded to Mr Byrne were he allowed to live with his grandfather in Inverloch, because it would be away from the city and his criminal contacts. I also heard sworn evidence from Ms Leanne Griffiths, who would be the worker with the Reconnect Programme primarily responsible for providing assistance to the applicant were he granted bail. She works from the Dandenong office and would travel out to see Mr Byrne in Inverloch regularly. Both Ms Jackson and Ms Griffiths also swore that, if they became aware that the applicant breached any of the conditions of bail, they would report the matter to the police. Again, I accept without hesitation their evidence in the same way that I accept Mr Byrne senior's evidence.

18 Fifthly, as Mr Farrington pointed out, the applicant is only 22. He submitted that it would be preferable if one so young were kept out of prison while awaiting trial. I agree with the sentiments underpinning this submission. One of the great aims of the criminal law is to rehabilitate those who can be rehabilitated, especially the young; and another is to avoid the potentially corrupting influences of prison on a younger person. The latter aim is perhaps even more important, given the presumption of innocence, when considering whether to grant bail to a young person prior to trial. But there are occasions when that noble aim must give way to other considerations, including avoiding unacceptable risks of re-offending or interference with witnesses. The question - or at least one of them - on this application is whether this is one of those occasions.

19 Sixthly, Mr Byrne is the father of two young children from different partners. Those children are cared for by Mr Byrne's sister, Chantelle Roberts. Mr Byrne has regular access to the children. The evidence was that access could occur in Inverloch, rather than in Melbourne. I accept that those arrangements could be made.

20 Seventhly, Mr Farrington submitted that strict bail conditions - including as to reporting to police daily, a static residence, a curfew and non-association with witnesses, and a condition effectively confining Mr Byrne not to Inverloch but away from Melbourne in particular, except for the purposes of medical or legal appointments - would render any risk identified as acceptable.

21 Mr McWilliams, who appeared on behalf of the Director, in opposing bail, relied on inter alia the grave seriousness of the alleged offence, the strength of the prosecution case, the applicant's extensive criminal history, his history of re-offending despite the assistance of people like Ms Jackson and her organisation, and also the evidence of telephone calls that Mr Byrne had made from prison concerning his former girlfriend. I will say more about those telephone calls shortly.

22 Mr McWilliams submitted that the major difference between Mr Byrne's circumstances in the past and those on the present application is the proposed change in the geographical location of his residence. Mr Farrington submitted that there is more to it than that. In his submission, it was not just that Mr Byrne would be living at Inverloch with his grandfather, but that he would be at Inverloch in circumstances where his grandfather believes that he can be a positive influence on him and that his grandson will indeed listen to him.

23 As Mr McWilliams pointed out, however, and as has been accepted by Ms Jackson, despite very helpful supports being in place previously, Mr Byrne, unfortunately, has committed further offences while on bail. Mr McWilliams also submitted that, while there is no criticism of those offering that invaluable assistance, nor of Mr Byrne senior for offering to provide guidance to his grandson, the reality is that this Court should be satisfied, based on past history, that there still would be an unacceptable risk that he would commit further offences were he released on bail.

24 As to the telephone calls made from prison, the hearing was adjourned (twice) so that recordings of those calls could be produced to the Court and submissions might be made about them. I have listened to those recordings in chambers. The calls, which were made primarily to a member of Mr Byrne's family, preceded an application that his former girlfriend be examined compulsorily. In my view, while in some parts of the calls Mr Byrne can be heard protesting his innocence and in others he is urging another to pass on to his former girlfriend that she should do no more than tell the truth, I am satisfied that, in some respects, those calls also disclose an attempt by him improperly to influence his former girlfriend, or to cause her to be influenced, not to implicate him.

25 Whether the calls might be led as evidence of incriminating conduct on a trial is not for me to determine. Indeed, it may be that the protestations of innocence and other urgings would be construed in such a way as to mean that the prosecution was unable to exclude the reasonable hypothesis that Mr Byrne was acting out of a consciousness of innocence, rather than a consciousness of guilt. In other words, it might be argued that the calls point to his innocence, not to his guilt. But, at least for the purposes of the present application, there is enough in the calls to satisfy me, on the civil standard of proof, that, in some respects, they do disclose an attempt by him to ensure that his former girlfriend is influenced not to implicate him.

26 On the other hand, one of the ultimate questions for this Court is whether there is an unacceptable risk that Mr Byrne would do such things were he released on bail. Mr Farrington submitted that, when all things are considered, including the very strict conditions that would be imposed upon Mr Byrne were he to be granted bail, any such risk would be rendered acceptable, or at least could not be said to be unacceptable.

27 I disagree. I am satisfied that if released on bail there would be an unacceptable risk that Mr Byrne would commit further offences and that he would attempt to influence his former girlfriend as a witness. While I accept that the proposals for release - including very strict bail conditions, residence at Inverloch with his grandfather, the child access arrangements and the supports offered by the Reconnect Programme[3] - might lessen the risk of the untoward occurring, Mr Byrne's history of unsatisfactory performance on bail, his extensive criminal history generally, his past attempt to influence his former girlfriend improperly and the seriousness of the allegations he is facing, in combination, satisfy me that there is an unacceptable risk that he would commit further offences and that he would be motivated to attempt, and that he would attempt, to influence his former girlfriend improperly as a witness in his trial.

28 For the same reasons, I am not satisfied that Mr Byrne has shown cause why his detention in custody is not justified. In addition, while it is often difficult to assess the strength of a case upon a bail application, as I have indicated earlier, it seems to me that the circumstantial case likely to be mounted by the Director is not weak but, rather, is relatively strong on the issue as to whether Mr Byrne is the assailant. As in many cases where attempted murder is alleged, it is probable that the Director will struggle to prove an intention to kill. But, as I have indicated earlier, a conviction of the alternative offence of intentionally causing serious injury would be likely to result in a sentence that exceeded, by some considerable margin, the period of custody served prior to a trial in May next year.

29 Thus, despite Mr Byrne's relative youth and the various considerations urged in his favour, I am satisfied that I must refuse bail.

[1] See s 4(4)(c) of the Bail Act 1977.

[2] See s 4(2)(d)(i) of the Bail Act 1977.

[3] In reaching these conclusions, I had regard to Ms Jackson's letter to the Court dated 1 December 2015, which was provided by Mr Farrington this morning. I accept that the appointments for Mr Byrne detailed in that letter, that very helpfully have been rescheduled by Ms Jackson's organisation, remain available, but I had assumed that that would occur anyway.