Memery v Queen [2000] VSC 495

14. Any person accused of an offence is entitled to bail. This is the general rule laid down by s.4(1) of the Bail Act 1977. However, where a person is charged with murder, the right to bail is abrogated and instead the applicant must prove to the satisfaction of a judge of this court "that exceptional circumstances exist which justify the making of such an order": see s.4(2)(a) and s.13(2). The applicant has the burden of proving the exceptional circumstances.

17. However, that is not the end of the enquiry. The court shall refuse bail if it is satisfied there is an unacceptable risk that if the applicant is released on bail he may commit one or more of the prohibited acts set out in s.4(2)(b): by way of example, a failure to answer bail, commit an offence whilst on bail or interfere with a witness. The factors that must be weighed up in considering the question of unacceptable risk are set out in s.4(3). It is noted that the court must consider all relevant matters, and the list of specified ones is not exhaustive. The burden of establishing the unacceptable risk finding is on the Crown.

20. The Crown opposes the grant of bail to the applicant. It does so on two general grounds: namely,

(i) that the applicant has not shown exceptional circumstances; and (ii) that if released on bail there are unacceptable risks that he would interfere with witnesses, obstruct the course of justice and/or commit other offences.

24. In support of the application the solicitor acting for the applicant, Christopher James Pearson, has sworn an affidavit. The basis of the application that there are exceptional circumstances, is that there is a strong case that the applicant was acting in self-defence at the time of the death and hence the Crown case falls into the category of weak, in respect of the murder charge.

27. The circumstances surrounding the commission of the alleged offence can be briefly stated. The applicant had for some years a de facto relationship with Ruth Hartney. The parties parted in early 1998 but continued to see each other. By 21 January 2000, the relationship ceased and Ruth Hartney commenced a relationship with the deceased. Thereafter there is evidence that the applicant waged a personal war against the deceased and Ruth Hartney by damaging motor vehicles in their possession parked at premises in Healesville occupied by Ruth Hartney. On

1 March 2000, she obtained an intervention order against the applicant. Despite the order, there is evidence implicating the applicant in further damaging property belonging to the deceased and Ruth Hartney. The damage was no doubt a source of extreme aggravation to the victims. This brings me to the night the deceased died.

30. On Friday 12 May, 2000, the accused and a friend, Neville Richards, arranged to meet and go out for a few drinks. They did so. They met at about 8 p.m. and went to a hotel. By midnight the applicant had consumed a substantial quantity of liquor. At about 2 a.m., Ruth Hartney received a phone call at her home address. When she answered the call no one spoke at the other end. Hart dialled *10 to retrieve the last call and ascertained that the phone call had been made from the applicant's address.

33. Between 2 a.m. and about 3.30 a.m. the applicant left his home and drove his car to Westmount Road, Healesville. At the time of leaving home he took with him a black-handled pocket knife and a steel motor-cycle tyre lever.

36. At approximately 3.30 a.m. he arrived at Westmount Road, where he drove past the home address of Ruth Hartney and parked his vehicle in Evelyn street. A short time later the applicant entered the driveway at 4 Westmount Road, which is the home of Ruth Hartney, where he stabbed and punctured four tyres on the two vehicles parked in the driveway. They were owned by Ruth Hartney and the deceased. He also caused damage to two rose plants, damaged the side vision mirrors of both vehicles, jemmied open the petrol caps of both vehicles and placed a garden hose into the petrol tanks of both vehicles, filling them with water. The applicant threw the two petrol caps into the land next door. At some point in time, the applicant also went to the side of the house where he removed a circuit board and damaged wires on a heating unit. Some of this vandalism was captured on video film which I have seen.

39. At about 3.50 a.m. Ruth Hartney heard a noise and she observed the applicant in the driveway between the two vehicles. She called to her boyfriend, Trevor Tamme, and told him "Norm was in the driveway". The applicant fled and ran up the hill of Westmount Road towards Eadie Avenue, going past Evelyn Street, where he had parked his car.

42. Trevor Tamme chased after the applicant and caught up with him. After Tamme caught up with the applicant, they became involved in an altercation and both fell onto the bitumen a number of times. It is alleged that whilst the applicant was being detained, he reached into his right pocket and removed the pocket knife used to stab the tyres, opened the knife and stabbed the deceased once. The deceased was stabbed to the chest area, penetrating the lower part of his heart. The deceased staggered back to Hartney's home where he died.

45. The applicant alleges that the deceased had him in a headlock of such severity, that he thought he was going to choke him and that he knifed the deceased to stop him throttling him. The applicant then left the area and in so doing lost control of his car and the car ran off the road and was damaged. The evidence of the damage to the front of the vehicle suggests it hit an object with some force, which would have propelled the applicant forward causing him to strike the inside of the vehicle. There was blood found on the dashboard of the car and the degree of damage and the presence of blood leads to the conclusion that he suffered injury in the accident. The applicant sought medical treatment later that day and was arrested about noon. He had injuries bruising and cuts to the face and a broken rib.

48. During an interview with the police he stated that he could not recall driving to Healesville or the reason that he went there. He was vague about some aspects of the night. He said that he could recall being confronted by the deceased in Eadie Street and stated that he was trying to talk to Tamme, but he would not listen and Tamme was alleged to be saying "I'll kill you". The applicant stated he was kicked to the kidneys and dragged along the concrete by the deceased. That the deceased took hold of him in a headlock and was squeezing him. He thought he was going to die and was losing consciousness, and it was at that point that he reached into his pocket, obtained his pocketknife, opened it, and swung back hitting the deceased. He stated that he did not know where he hit Tamme and that it was his intention to get Tamme to release him.

51. During the interview the applicant stated he could recall that the deceased threw something at him or was telling him to drop it. He said he recalled something about a tyre lever, but did not know what this meant. He also stated he remembered something about glass breaking, but again he could not recall what that was about.

54. The post-mortem examination of the deceased revealed that the cause of death was due to a stab injury to the chest. This was the only sign of injury upon him other than a cut to the hand which occurred after he had been stabbed. The injury to the heart is consistent with the knife travelling in an upwards direction.

57. The applicant does not have any prior convictions but he has been before the courts on charges involving damage to property and breaching intervention orders.

60. His first appearance was at the Warburton Magistrates' Court on 27 February 1981 when a charge of wilful damage was withdrawn. However, all licences held by him were suspended for two months and it is noted that he wilfully damaged property on that occasion.

63. His second appearance was at the Lilydale Magistrates' Court on 5 April 1994. He was found guilty of criminal damage, breach of intervention order and burglary. However, convictions were not recorded against him and he was ordered to pay a sum of $5,301.15 in compensation. These charges arose after his separation from his wife which occurred on 12 September 1993. They were divorced in 1995. The former wife obtained an intervention order against the applicant and he, for his part, visited her mother's home and badly damaged it and hence the compensation payment of some $5,301.

66. The third appearance was at the Ringwood Magistrates' Court on 4 August 1994 when he was found guilty of breaching an intervention order. The proceeding was adjourned till 16 December 1994 and he was ordered to pay $200 to the Seville Country Fire Authority. A charge of unlawful assault was struck out. This appearance also arose out of his treatment of his former wife.

69. The prior court history shows a man who can be violent, although directed to damaging property, who is emotional and may be obsessive and, if it suits him, chooses to ignore court orders. He now has a history of ignoring three intervention orders and thumbing his nose at the law. On the night the applicant stabbed the deceased he was in breach of the intervention order, obtained by Ruth Hartney.

72. His former wife, who is a Senior Constable stationed in Wangaratta, has stated that the applicant has an explosive temper which at times is uncontrollable, did drink in the past to excess and was a person who would be prepared to lie without any concern.

75. In the present application the main issue comes down to the strength or weakness of the Crown case. It is forcefully submitted on behalf of the applicant that he has a good defence of self-defence and that the Crown would be unable to prove beyond reasonable doubt that the applicant did not act in self-defence at the material time. In considering the question of the strength or otherwise of the Crown case, two propositions have to be borne in mind.

78. The first is, the court is required to make some assessment of the strength of the Crown case from the depositions. The material is untested and often inadequate. The task is indeed a difficult one, but the court must make some assessment assisted as it is by counsels' submissions. It must, of necessity, be a provisional view only. This is especially so prior to a committal proceeding at which stage a more informed decision can be made after cross-examination explores the possible defences. This point is raised by Mr Dickson Q.C. for the Crown who submits that the application is premature and should wait for the outcome of the committal.

81. Mr Toohey of counsel for the applicant counters this by pointing out that the Crown brief appears to be complete, that Mr Dickson Q.C. Did not identify any other source of evidence and that the committal was in any event many months away.

84. I agree that the matter should be dealt with now, but the observation that the material is not tested still stands unimpeached.

87. The second matter concerns the expression of the opinion of the court on the issue. It has been the accepted practice in this court for many years that the court not give detailed reasons for its view as to the quality of the Crown case. This must be so for a number of reasons, the most obvious being that it is a provisional view on untested and sometimes inadequate material and, in the end, if the matter proceeds to trial the jury will have to decide the issue and, accordingly, the less said the better.

90. In the end it is a question of weighing up all the facts relied upon and considering the question whether in the totality of all the circumstances the applicant has satisfied the court that there are exceptional circumstances which justify the grant of bail.

93. It has been recognized by this court that a weak Crown case may constitute exceptional circumstances. If a defence of self-defence is raised by the accused then he has the evidentiary burden of establishing the basis for it. Once he does establish the basis for it then the ultimate burden rests upon the Crown to exclude the defence. There may be varying degrees of self-defence in that, if it has substance, the effect may either be an acquittal or a verdict of manslaughter. The outcome often depends upon the amount of force used at the time.

96. Mr Dickson Q.C. conceded that there was sufficient evidence in the Crown brief to provide a basis for self-defence and he anticipated the defence would be left to the jury. I agree.

99. I was taken to various statements in the hand-up brief which it is submitted demonstrate that there is a good basis for the defence and hence a likelihood of a verdict less than murder. The only person who knows what happened at the time the deceased was stabbed is the applicant and of course the deceased. There is a considerable body of evidence showing a vendetta being waged by the applicant against the deceased, fuelled no doubt by a degree of jealousy and alcohol on the night. These are important factors that will have to be taken into account in evaluating the defence of self-defence. Further, it is noted that in his record of interview he was selective in his memory about certain events leading up to the stabbing.

102. The stabbing occurred about 4 a.m. on the morning of 13 May this year and the applicant was interviewed by the police at 5.30 p.m. later that day. In the meantime he had been involved in a car accident, had attended his sister's home, slept for a brief period of time and later received medical treatment.

105. Mr Toohey who appeared for the applicant relied upon a number of matters which he submitted showed that the applicant had a strong arguable defence of self-defence and that it was most unlikely in the circumstances that the Crown would obtain a conviction for murder.

(i) that there was no evidence to suggest that the applicant set out that night with the intention of killing or causing any serious injury to anybody; (ii) that the only sign of injury on the deceased was the single knife wound which was consistent with the applicant's version to the police; (iii) that the applicant was suffering a number of injuries which was consistent with the deceased using violence on him and consistent with the deceased placing his head in a headlock of some force; (iv) that witnesses heard, when the men were proceeding down the street prior to the stabbing, words that could only have come from the applicant to let him up. This was said on a number of occasions which is consistent with the deceased having the upper hand in the confrontation; (v) that the deceased person was a taller and stronger individual than the applicant and hence had the ability to exert force on the applicant; (vi) that consistently throughout his record of interview he maintained that he was in fear of being throttled when he took the knife out of the pocket and whilst being held in a headlock position threw his arm back stabbing the deceased through the heart; (vii) that he also told the same story to his sister and brother-in-law that he was held in a headlock and had thrust out with a knife to stop the deceased from throttling him; (viii) that there is no evidence that the applicant attacked the deceased and the examination of the body of the deceased supports this; (ix) that the applicant ran away from Ruth Hartney's premises and was pursued by the deceased who adopted the more aggressive approach at the time and bearing in mind what the applicant had done on that night and on previous nights to the property of the deceased and Ruth Hartney, the inference was open that the deceased was extremely annoyed and physical; (x) that the evidence of the police doctor of the nature of the injuries on the applicant were consistent with him being beaten by the deceased and also subjected to a headlock of some force; (xi) that the one stab wound to the deceased's heart was consistent with an upward movement by a person who was being held; (xii) that the applicant made no attempt to hide anything, the knife and tyre lever were found at the scene and he made no attempt to avoid the police or refuse to co-operate; (xiii) that the applicant is a 43-year-old man who has no prior convictions, was co-operative with the police, that his parents and family were supportive of him and that he could be re-employed if granted bail.

112. Mr Toohey also submitted that it was ridiculous to suggest that he would interfere with any witnesses. There is a statement to that effect in the police report, namely, that the former de facto, Ruth Hartney, his former wife and his former wife's mother-in-law were all fearful of him.

115. With respect to the former wife, she lives at Wangaratta. He has had no contact with her over the last 15 months and there is no suggestion that he would make any contact with her despite the fact that in her statement to the police she has been critical of him and would give evidence, if admissible, as to his hostile and aggressive temper and his past drinking. With respect to the former de facto, the applicant has sold his house in the area and is proposing if granted bail to live with his parents in Mooroolbark which is at least 40 minutes by car from the de facto's property. So far as the mother of the former wife is concerned, he has had no contact with her and there is no reason for him to have any contact with her. Further, it was pointed out that conditions could be imposed with respect to bail which would ensure that he would not go anywhere near any of these persons.

118. Evidence was given by his father and the manager of his former employer to the effect that he would live at home and would be re-employed if granted bail. His father is a fine, upstanding 75-year-old man and I have no doubt would act responsibly if his son was granted bail. He informed the court that if he saw anything to suggest that his son was contravening any conditions of the bail, that he would report the matter immediately to the informant.

121. Mr Dickson Q.C. submitted that the application was premature and should await the outcome of the committal where matters could be tested and further a decision could be made in a better informed situation. He emphasized that the applicant has had a history of damaging property, that he ignores intervention orders, that he is antagonistic towards people, that when he becomes emotionally involved with women and subsequently ceases the relationship he is prone to become aggressive and violent. He submitted that the question of self-defence was a matter for the jury, though he did concede, as I have already stated, that there was sufficient evidence to leave that question to the jury.

124. In the alternative he said that the applicant was an unacceptable risk, that there was a real risk he would interfere with witnesses, that he thumbs his nose at court intervention orders and it is important to protect the three persons named. Further that one could not be confident that if he was granted bail he would stay at home at night even if a curfew was imposed. He was a man who demonstrated a lack of control in the past and a proneness to damaging property and being violent.

127. "Exceptional circumstances" means something more than what normally follows as a result of a person being charged with murder. Hence the fact that an accused person wishes to pursue his career, his job, and look after his family, are all matters that flow from an arrest and are not exceptional. The same may be said of the fact that he can live in a particular house if granted bail and pursue his job. Again these are not exceptional circumstances. Mr Toohey submitted they should be taken into account on the first part of the exercise. In my opinion they are clearly relevant to the unacceptable risk factors but have little to no weight when it comes to a question of what is exceptional circumstances.

130. The question here is whether there is sufficient evidence at this stage to satisfy this court that the applicant has good prospects that his defence of self-defence will be upheld by the jury with the result of either an acquittal or at worst a verdict of manslaughter.

133. I reserved my decision in this application because I wished to closely consider the evidence relied upon by the applicant to show the strength of his defence, or, more correctly stated, the strength of the Crown case. It may be said that if his defence has substance, then his prospects are reasonably good that the Crown will not be able to disprove the defence beyond reasonable doubt with the result of either an acquittal or a finding of manslaughter.

136. In my opinion if on a proper analysis of the evidence before the Court, the applicant has established that he has good prospects of a verdict less than guilty of murder, then in my view he has established exceptional circumstances. A verdict less than guilty of murder would, at worst, be manslaughter and a person charged with manslaughter is prima facie entitled to bail.

139. The only persons who do know what precisely happened leading up to the stabbing of the deceased are the deceased and the applicant. Hence the jury in this case, if he is committed, will consider the direct evidence of what happened from the applicant, the circumstantial evidence and in addition evidence, if admissible, of the background of the applicant.

142. As I pointed out earlier, it is unwise for the court to make detailed observations concerning the facts and the likely inferences and conclusions. I have closely considered the evidence and it is a question for me to decide whether at this stage and on the available evidence the applicant has good prospects of a jury not being satisfied by the Crown beyond reasonable doubt that he did not act in self-defence at the relevant time.

145. In my opinion the evidence as such leads to the conclusion that, first, the defence would be left to the jury and, secondly, that there are good prospects that the jury will accept that the Crown has not proven beyond reasonable doubt that he did not act in self-defence at the relevant time. This conclusion is supported by the facts set out above and relied upon by the applicant, the most important being the medical evidence, what the neighbours heard, the angle of the wound to the heart, and his record of interview.

148. In my opinion the applicant has established exceptional circumstances in this case and, accordingly, succeeds on the first part of the exercise.

151. This brings me to the unacceptable risk enquiry, the burden of which rests upon the Crown. I have noted the concerns of the Crown with respect to witnesses and in my opinion the concerns are somewhat overstated and can in my opinion be accommodated by the imposition of conditions which would ensure that the applicant does not come into contact with the three persons concerned. The applicant has been violent in the past, but towards property. He has thumbed his nose to authority, but he has now been in custody for over two months and knows what he is facing if he breaches any conditions. Further, his father will be keeping an eye on him and the court is much comforted by that fact. In my opinion neither his former wife nor Ruth Hartney are in any danger, a conclusion much supported by his past conduct. He shows his anger by damaging property. I think the concern expressed by the mother-in-law is of little substance. Conditions will be imposed to ensure he does not come within a number of kilometres of any of the said persons.

154. The applicant must understand that if he breaches any of these conditions, he will be returned to gaol very promptly, so the onus very much rests upon him to ensure that he complies with these conditions.

157. The conditions will be the usual conditions. Taking into account the evidence concerning living at home and obtaining his former employment the court can feel a degree of confidence that he will not abscond whilst on bail, especially as the surety will be provided by his father and his mother.

160. Now the first matter I wish to raise with counsel is the imposition of a curfew and I suggest that it be between 11 p.m. and 6.30 a.m. Do you any views on that, Mr Toohey?

163. MR TOOHEY: Might I simply get a brief instruction as to what time he would be starting work?

169. MR TOOHEY: Your Honour, the applicant instructs me his work starts at seven o'clock at Carrum Downs. Because he's living with his parents, it takes him an hour to get there, so he would have to get up, shower and the like - - -

172. HIS HONOUR: Leave home at 6 - so the curfew will be between 11 p.m. and 6 a.m.; is that suitable?

178. HIS HONOUR: Again I emphasize, Mr Memery, if you breach any of these conditions you come straight back, rest assured on that. We have had experience in this court of people thumbing their noses at the law and breaching conditions. If the conditions are breached, you go straight back into gaol, so bear that in mind. You may be seated for the moment.

181. The next question is the amount of the surety.

184. MR DICKSON: I'm instructed to ask Your Honour for $50,000 surety.

187. MR TOOHEY: There's no difficulty with that, Your Honour.

190. HIS HONOUR: How often reporting and to where, Mr Dickson?

193. MR DICKSON: Locally, sir, to the Mooroolbark Police Station.

196. HIS HONOUR: Is it necessary, daily, do you think? What about Monday, Wednesday Friday? I mean, I have a degree of confidence in this, Mr Dickson, and I think daily probably is unnecessary. I was very impressed with his father - I note he's not here this morning - but he's a very impressive man. I think Monday, Wednesday, Friday.

202. HIS HONOUR: I will make it Monday, Wednesday Friday and it's at the Mooroolbark Police Station.

205. MR DICKSON: Between the hours of 6 a.m. and 10 p.m., sir.

214. That the said Norman Memery be admitted to bail on his own undertaking with one surety in the sum of $50,000, conditioned in the proper form for his appearance as required by law.

217. Mr Dickson, there is some dispute between those who prepare these orders and the court at the moment. I'm requiring him to appear as required by law, but those who draw up these orders want me to indicate a court. Should I just say "as required by law to appear at the committal", if that be so, or "the Supreme Court", or both?

226. Conditioned in the proper form for his appearance as required by law at the committal proceeding and upon the following special conditions:

1. That the said Norman Memery reside with his parents at 50 Cambridge Road, Mooroolbark.

2. That the said Norman Memery give at least 24 hours' notice to the informant, or his nominee, of any proposed change of address.

3. That the said Norman Memery report each Monday, Wednesday and Friday to the Officer-in-Charge of the Police Station at Mooroolbark, or his nominee, between the hours of 6 a.m. and 10 p.m.

4. That the said Norman Memery not contact, directly or indirectly, any witness for the prosecution, save for the informant.

233. MR TOOHEY: I hesitate to interrupt Your Honour, but two of the Crown witnesses as it presently stands are the applicant's sister and brother-in-law. Although he would be prepared of course to abide by the conditions, it may be difficult in the circumstances.

236. HIS HONOUR: Don't go any further. I agree. What do you say, Mr Dickson?

239. MR DICKSON: Yes, Your Honour. Any family members.

242. HIS HONOUR: Save for the informant and any of his family members.

5. That the said Norman Memery not leave his parents' address between the hours of 11 p.m. and 6 a.m. each day. 6. That the said Norman Memery surrender any passport which he may hold to the informant and not apply for any other passport.

7. That the said Norman Alexander Memery is not to enter any point of international departure.

I ask you, gentlemen, to make a note of these and I'll hear you on them:

8. That the said Norman Memery not enter an area covered by a radius of 10 kilometres from the Wangaratta Town Hall.

9. That the said Norman Memery, except in the course of his employment and only during the hours of 8.00 a.m. and 5.00 p.m. on any day, or with the written permission of Detective Senior Sergeant R.W. Iddles, enter an area covered by a radius of five kilometres from the premises situated at - (i) 4 Westmount Road, Healesville, and (ii) Eadie Avenue, Healesville.

250. What I have got in mind is Mr Memery not go anywhere near Wangaratta. If he has to drive near there, he'll have to get permission. He must stay away from the premises occupied by Ruth Hartney and her mother. Do you see any objection to those, Mr Toohey?

256. HIS HONOUR: It works on this basis: he can only go there in the course of his employment, and that is between 8 a.m. and 5 p.m., or with the written permission of the informant, Detective Senior Sergeant Iddles, and he must not enter an area covered by a radius of five kilometres.

259. Again, Mr Memery, you must understand that. If you're found in those areas, you breach the condition, save and except in the course of your employment, and that is between the hours of 8 a.m. and 5 p.m. Again, I emphasize to you if you breach these conditions you go straight back to gaol.

268. HIS HONOUR: I make those orders. Yes. Thank you.

271. MR DICKSON: Your Honour, just before Mr Memery is removed, my learned friend and I both apply for, if it's necessary, a direction from Your Honour that the Crown and defence are given copies of the orders that Your Honour has made.

274. HIS HONOUR: Yes. I'll arrange for that to be done. I'm just suggesting they be typed up first, rather than the judgment, so the orders can be prepared and signed by me today. The earlier the better, of course.