R v Buckle [2003] VSC 352

Supreme Court of Victoria|2003-09-16|Before: KELLAM J.

BAIL - Applicant charged with conspiracy to cause an explosion and other offences related to possession of explosive substances - Onus on applicant to show detention in custody not justified - Bail Act s.4(4)(c).

The applicant, who is a man aged 51 years and who has no prior convictions, was arrested by police on 8 June 2003 and charged with a number of offences, including conspiracy to cause an explosion likely to endanger life or cause serious injury, attempted aggravated burglary and other offences related to possession of alleged explosive substances. The applicant has been in custody since 8 June of this year, having been refused bail by a magistrate on 10 June 2003.

At the committal mention date on 3 September 2003 the matter was adjourned to 24 November 2003 for a case conference. At present it is intended that the applicant will face trial at Horsham County Court, and the likelihood is that the trial will not proceed until April or May of next year.

The Crown case is that the applicant for many years prior to June of this year had conducted a stone masonry business in Geelong. In June 1999 a competitor operating under the name of Waite Robson commenced business in Geelong. The Crown alleged that the relationship between the applicant and the general manager of Waite Robson was strained. The Crown allege that the applicant and his co-accused, one Tsitas, conspired to cause serious damage to the premises of Waite Robson Stonemasons' business, which was situated in Stawell.

Shortly prior to midnight on 7 June 2003 the applicant was allegedly seen to be pushing a wheelie bin towards those premises. Shortly thereafter, he was arrested at an access gate to the premises. At the time of his arrest the applicant was allegedly wearing a dark blue hooded pair of overalls over a boiler suit, gum boots, food preparation style gloves on his hands and he was in possession of a 20 litre square plastic container containing petrol, a Balaclava and woollen gloves, together with a back-pack containing a pump, battery, wiring, clear plastic hosing attached to a trigger style garden hose nozzle, as well as clear plastic hose with metal attachments. In addition he was found to be in possession of a portable two-way radio, padlocks and torches. With him he had the wheelie bin, which contained amongst other items a garden spray bottle, masking tape, matches, match heads, bolt cutters, loose wiring, two gas bottles and three plastic jerry cans. A radio control unit, batteries and wiring was also found.

The contents of that wheelie bin were later examined by Mr Kelleher, a scientist at the Victoria Forensic Science Centre, who has expertise in respect to explosives and explosive devices. Mr Kelleher in his statement to police has expressed the opinion that the materials found could be used as a radio-controlled fuel air explosive device. He considered that the arrangement of fuel, the distribution system and ignition mechanism was complex but efficient and demonstrated a good knowledge of electrical components and connections. He expressed the opinion that the explosive potential of such a device would be fatal to any person in the immediate vicinity. He considered that unprotected persons within several hundred metres of the fire and explosion which might be caused by such a device would be at grave risk.

On the evening in question the police had observed a person other than the accused man in the area of a railway embankment in the vicinity of Waite Robson's store premises shortly before the arrest of the accused man. The co-accused, Tsitas, was later arrested in a taxi which had left Stawell at about 1.00 p.m., that is after the arrest of the accused man. Subsequently a two-way radio was found in the vicinity of the railway embankment where the other man was said to have been standing.

The applicant, as was his right, made a "no comment" record of interview, but at one stage did assert to police that he intended his actions to be a joke.

Pursuant to s.4(4)(c) of the Bail Act and by reason of the nature of the charges laid against him, there is an onus upon the applicant to show cause as to why his detention in custody is not justified.

There are a number of matters relied upon by the applicant in support of his application which are established by the affidavit sworn by his wife and, to some extent, by his solicitor.

(a) His age and personal circumstances, including the fact that he has no prior convictions, are relevant matters.

(b) He has been married for many years.

(c) He has three young children at school, and conducts his own business, which he owns, and other property in Geelong.

(d) The financial deterioration of his business since he has been in custody and the likely continued deterioration in the circumstances of that business between now and the expected trial date are matters relied upon.

(e) The effect upon his family of his incarceration is a further factor.

(f) The deteriorating financial circumstances in which his family finds itself is a factor which is relied upon, his wife having taken sick leave from her teaching job in order to run the family business.

(g) The state of his health.

(h) The effect of his incarceration upon his family.

(i) Delay.

Furthermore, the applicant's solicitor, Mr Bernard Cummins, has sworn an affidavit in support of the application, whereby he states that he considers the applicant has defences to the charges. He asserts that the defence of the accused man is affected by reason of his continued detention, in that he is unable to make appropriate re-financing arrangements for his business whilst in custody and that he is unlikely to be unable to be able to fund the cost of his defence. He states that for this reason it was determined not to have a contested committal.

He submits that the applicant is emphatic that the device found in his possession would not work, and that his instructions are that the applicant's intention was merely to scare Mr Waite.

Insofar as the issue of health is concerned, Mr Cummins has exhibited medical and psychologists' reports to his affidavit. The applicant has suffered from depression and anxiety for some time and since 1997 has at various times been in receipt of antidepressant medication. The material before me suggests that some time before the events of 7 June 2003 the applicant had ceased taking his medication. His psychologist, Mr Rominon, has prepared a report dated 21 July 2003, whereby he expresses the opinion that the behaviour of the applicant was triggered by a condition "marginally short of post traumatic stress disorder", and that once he is back on medication he will be able to "put in place mechanisms that eliminate the possibility of any recurrence of recent events".

A report of a psychologist, Mr Joblin, is before me. He considers that the psychological state of the applicant is now stable and that the applicant does not harbour such a degree of resentment that he will continue to seek out Mr Waite.

Accordingly it is apparent that there is much to be said in favour of the applicant's application. Mr Sarah of Counsel, who appears for the applicant, submits that such circumstances, together with a substantial surety and other conditions to be placed on bail are sufficient to show cause that the continued detention of the accused man is not justified. Mr Leckie submits that there is a strong case against the accused man that he intended to cause serious damage to the Waite Robson premises in Stawell and that the potential for serious injury, if not death, of members of the public was high. He relies upon the evidence that a hotel occupied by patrons was approximately 70 metres away from the premises. He points to the evidence that the actions of the applicant were not "spur-of-the-moment", but were rather, he submits, the result of careful preparation and planning. He submits that the evidence of Mr Kelleher leads to the conclusion that had the applicant not been arrested the potential for extraordinary destruction was real.

Additionally, Mr Leckie relies upon the evidence before me that over a period of many years leading up to the alleged offence the applicant had strained relations with a number of people in Geelong, including the Cemetery Trust, a local plumber and others.

Mr Joblin has expressed the opinion that the applicant had a fragile psychological state and that he was not always compliant with medication. Mr Joblin refers to a degree of paranoia developing in the applicant and states that the applicant "would rationalise his behaviour in terms of concern over threatening phone calls which he would receive".

As stated by Gillard J in DPP v Harika,[1] in determining the issue of whether an applicant has shown cause under s.4(4) of the Bail Act, it is necessary to identify the factors which led the legislation to decree that bail should be refused in the circumstances set out in that section. Of course, the relevant factors will depend on the circumstances of each case.

In the case before me there is evidence which, if accepted by a jury, will establish that the applicant was motivated by malice towards Mr Waite and his business and that the applicant's actions on the night were carefully planned and involved a significant risk of substantial damage to the premises of Waite Robson, and that damage and injury to property and persons in the near vicinity might occur.

It is apparent on the material before me that the applicant was under considerable psychological stress at the time. Apart from his suggestion to police that it was a joke, however, no other explanation for his behaviour has been forthcoming.

As stated by me in the course of the hearing, it appears to me that his conduct, if proved by the Crown, was either an act of significant criminality and/or a result of highly irrational behaviour brought about by serious psychological problems.

On the material before me and notwithstanding the statements made to Mr Joblin by the applicant that he now harbours no resentment towards Mr Waite, I have no confidence that the circumstances which led to the actions of the applicant on 7 June 2003 will not continue to exist whilst he is on bail, if he is so bailed, with a consequent risk of further offending.

In the circumstances before me where the case against the applicant is, in my view, strong, where there is a high probability that he will be sentenced to a term of imprisonment of some considerable length if convicted, where the potential for harm caused by his alleged behaviour was great, and where the alleged behaviour of the applicant was highly unpredictable and irrational, but at the same time apparently carefully planned, the applicant has failed to allay the concerns which induced the legislature to refuse bail in these circumstances and he has failed to show cause why his detention in custody is not justified.

Finally I should add that amongst the other matters to which I have given consideration, the issue of delay is of concern. There is, as I have said, weight in the matters relied upon by the applicant in favour of granting bail and further delay will only exacerbate those concerns.

The evidence is that the likelihood is that this proceeding will not be heard in Horsham until April or May of 2003. In my view, the case should be given such priority as is possible and if the vagaries of circuit create delay, the parties should consider an application to bring the matter to trial, either in Melbourne or another circuit city.

However, in the circumstances, the application for bail is dismissed.

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Judgment (29 paragraphs)

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