DPP v Cuenco [2003] VSC 485

3 I now turn to broadly summarise the applicant's description of events. The applicant stated that he had been the victim of harassment and intimidation by the deceased over some period of time during their employment at Australia Post. The applicant indicated that the poor relationship between the two essentially came to a head in relatively recent times when the applicant was promoted at the centre. He said that he made many attempts to avoid the deceased and also even went to the point of complaining to management about his treatment by the deceased.

4 For reasons that are not entirely clear, the relationship between the two men reached a crescendo on the evening of 14 November 2003. The applicant stated that the deceased said he wanted to see him outside in the car park and have a fight and resolve the matter.

5 In the record of interview the applicant described with some intensity the harassment and intimidation that he had suffered on an on-going basis at the hands of the deceased. He said that he finished his shift at around midnight and went to his car in the car park. The applicant said that he opened his car door and turned on the ignition and then went to the boot of his car to place his jacket there. At that point the applicant says that he was approached by the deceased and Christopher Mayor. He said that the deceased had a belt and started to lash him with the belt, striking with the belt buckle at the head and face of the applicant.

6 In the record of interview the applicant described the reigning of blows upon him by the deceased, particularly around the head area that led to his head bleeding and his eyes and face to be covered with blood. The applicant said that he reached into the boot of his vehicle where he had some fishing gear and tackle and pulled out a fishing knife. He unfolded the knife and said he lunged at the deceased a number of times but did not know if he made contact. He said he just went blind. He said he feared that he would die.

7 The applicant described that the deceased fell to the ground and continued to lash at him with the belt and he, the applicant, kicked the deceased. The applicant described that Christopher Mayor was attacking him also and that he tried to fight him off.

8 The applicant said during the record of interview that whilst the incident was occurring he had a mobile phone. He gestured that it was located in his left hand and the fishing knife in his right hand. He said he was trying to ring the police on 000. He said he told a fellow worker in the car park to try to get the police. The applicant said that the battery of his phone was flat and he did not actually speak to the police.

9 The aftermath of the incident was that Celso Mayor later died from a number of stab wounds. Christopher Mayor was taken to hospital suffering stab wounds. Later the applicant was taken to hospital also where he stayed for some hours for medical treatment to his injuries. The applicant suffered injuries to the top of his head right cheek, left lower neck, left shoulder blade, both elbows, fingers, right lower torso and right knee.

10 The deceased suffered abrasions to the face, four stab wounds to the torso, a stab wound to the inner step of the right foot and a bruising to the inside of his elbow.

11 Christopher Mayor suffered five stab wounds to the torso, a stab wound to the left wrist, a stab wound to the forehead and blunt-force laceration above the left eye.

12 I turn then to the description of events provided to police by other persons. Christopher Mayor has made three statements to the police. He described the scenario that indicated that the applicant started the confrontation in the car park and having made threats to Christopher Mayor to the effect of: "I kill you, then I kill your dad."

13 Christopher Mayor said that he telephoned his father on a mobile phone and warned him not to confront the applicant that particular night. However, the father came to the scene and went to speak to the applicant who allegedly brandished the knife. Christopher Mayor said that in response his father removed his belt. He said that after his father was stabbed he collapsed and that he, Christopher Mayor, took up his father's belt and began striking the applicant a number of times before he was stabbed also.

14 The episode was partly observed by one Maria Reyes. Her car was parked in the nearby car park. She has informed police that she heard the applicant get out of his car talking on a mobile phone in an angry voice as the deceased and Christopher Mayor came towards him. Reyes told police that she observed the deceased swinging his belt at the applicant and that a fight then followed. She has stated that towards the end of the altercation the applicant approached Christopher Mayor and said: "Look at your dad now, there it's all your fault." She has informed police that the applicant then stabbed down into Christopher Mayor's chest several times.

15 Another witness was one, Donna Slivarich. She too observed some of the events in the car park. She has informed police that when Christopher Mayor collapsed to the ground she saw the applicant kick and bend over him while Mayor called out: "Please stop it, leave me alone, put it away and stop it."

16 A further witness, Kerri Bromley, has informed police that she observed a fight and that one of the persons involved was swinging an object. She has described the other parties in the fight as defending themselves or fighting back. Georgina Santos has informed the police that while she was walking in the vicinity of the car park she heard raised voices between men and observed a physical fight. She has stated that she saw the deceased lying on the ground while the applicant was standing over him stabbing as the deceased lay on the ground.

Ms Santos has informed the police that she saw the applicant leave the deceased and begin striking at another man identified as Christopher Mayor, whilst he was lying on the ground.

17 The personal circumstances of the applicant are that he has no prior criminal history and there are no matters outstanding. He owns a property at Frankston South and lives there with his partner, Sonia Coba. She is employed. The applicant is an Australian citizen who immigrated from the Philippines in 1986. The applicant has a child aged ten years from a previous marriage who lives with the mother of the child in Sydney. The applicant pays maintenance for the child and has access once a year. The mother and sister of the applicant are apparently in the process of coming to Australia from the United States for the purpose of providing support for the applicant. I am also informed that the applicant is a regular attendant at the local Catholic Church at Doveton and is a member of the Filipino Folk Group/Choir.

18 I am informed that the applicant will not return to employment at Australia Post but has a promise of employment with one Raymond Schlager for general work, including cleaning and delivery of stock.

19 The applicant has been assessed by a forensic psychologist,

Mr Jeffrey Cummins. He has expressed the opinion that the applicant has a number of unresolved psychological issues and should receive on-going psychological treatment.

20 Necessarily, the applicant must make out exceptional circumstances.

Mr Lasry QC, who appeared for the applicant submitted a number of matters on behalf of his client. First, he submitted that there was no criminal history on the part of the applicant. The Crown did not contradict the submission. However, I was informed that the Homicide Squad are conducting investigations in the Philippines as to the prior history of the applicant. Nonetheless, no allegation was made or substantiated as to prior criminal conduct.

21 Secondly, Mr Lasry relied upon the clear and impressive work record of the applicant. It was emphasised that the applicant has had an excellent work history and a promise of employment if bail is granted. It was submitted that the work record combined with the strong ties he has to his community operated in his favour. The Crown did not contradict the submission.

22 Thirdly, Mr Lasry submitted that the Crown case was not overwhelming. He emphasised that at this point there appeared to be a clear defence of self defence and provocation open to the applicant. In this respect he emphasised the disclosure of the applicant during the record of interview and also his demeanour.

23 Mr Lasry submitted that other witnesses gave descriptions to the police indicative of the applicant acting in self defence. He conceded that the statement of his client was consistent with the statement of other witnesses, but inconsistent with the statement of Christopher Mayor.

24 Next, Mr Lasry relied upon the matter of delay. There is no issue on the part of the Crown that there is a likely period approaching 18 months before the accused would reach trial. Emphasis was further placed upon the fact that DNA samples are being obtained and analysed that could be significant in the context of the matter, in particular the analysis of DNA samples, it was said, may support the applicant's version of events as to whether he was the attacker and pursuer, or the deceased and his son were. Apparently the question will be whether the whole of the incident occurred at the rear of the applicant's car or elsewhere. Christopher Mayor has said that he and his father were pursued by the applicant. In this respect it is believed that the DNA analysis may determine the accuracy or voracity of the witness' descriptions.

25 I was informed that the delays in DNA analysis are presently in the order of six months, possibly longer, depending upon a variety of factors. None of these matters were disputed by the Crown.

26 Next, Mr Lasry relied upon the psychological condition of his client as described in the report of Mr Cummins. In addition Mr Lasry relied upon the family support and ties of the applicant. He submitted that there should be no issue of the applicant offending on bail. He said there was no prospect that any witnesses would be interfered with.

27 Mr Scheid for the Crown did not dispute the general thrust of the submissions for the applicant. However, he submitted that even combined together they were insufficient to make out exceptional circumstances. He acknowledged that there was no issue as to the risk of the applicant answering bail or interfering with witnesses. The emphasis of the Crown's submission was that the police investigation of the incident stands incomplete and that reports are still undergoing compilation. Furthermore DNA tests are yet to be completed. On this basis therefore Mr Scheid submitted it was premature to make any conclusion about the Crown case.

28 I have considered very carefully the submissions made on behalf of the applicant. I have also taken the somewhat unusual step for the purposes of a bail application, upon the urging of Mr Lasry, of viewing the video recording of the record of interview. The submissions on behalf of the applicant are borne out in that respect. However, it seems to me that on the balance the application is premature. It is appropriate in the circumstances of this matter, including some of the conflicting descriptions of events, that the police have the opportunity to complete their investigation, including compiling witnesses reports and also obtaining the necessary DNA analysis. Once these matters are to hand a more appropriate consideration can be made of the Crown case. If, however, it transpires that there were unnecessary delays in the preparation of the Crown case and the obtaining of the DNA analysis it may potentially put the applicant in a different position.

29 Nonetheless, as matters stand, I am not satisfied at this point in time that exceptional circumstances have been made out. It follows that the application is refused.

30 Are there any matters to be dealt with at this point?

HER HONOUR: Mr Lasry? The applicant may be removed.