R v O'Hea [2005] VSC 126

2 Terrence Carrodus and Naomi Brooks are also charged with the same count of conspiracy. In this application Ms Boult appeared for the Crown and the applicant, Mr O'Hea, was unrepresented and made submissions on his own behalf.

3 It is necessary first for me to summarise briefly the circumstances relating to the charges which have been brought against the applicant. On 18 April 2004, Carrodus was arrested as a result of assaulting one Phillip Williams. As a result of that alleged assault, Williams sustained life-threatening injuries. Apparently he was so badly injured that he is unable to function independently and it has been necessary to have a guardianship order made in respect of him. Carrodus was remanded in custody. His trial was originally listed for 31 January 2005, but is now listed in the sittings commencing 2 May 2005 at the Bairnsdale County Court. However, I have been told that the trial of Carrodus may not proceed on that day. There are 13 civilian witnesses subpoenaed for the trial, eight of whom reside in Moe.

4 Naomi Brooks is the de facto wife of Carrodus and the applicant is a very close friend of Carrodus. Three of the proposed witnesses in the trial of Carrodus are Peter Wyntjus, Julie Graham, Wyntjus's de facto wife, and Christopher Styles. The Crown alleges that originally, in December 2004, the applicant approached Wyntjus in Moe.

5 During that conversation it is alleged that the applicant sought to induce Wyntjus to change the statements he had made to the police concerning the assault by Carrodus on Williams. It is alleged that as a result of the conversation Wyntjus felt frightened and intimidated and fearful about testifying in Carrodus's trial.

6 The Crown then alleges that Carrodus, on 22 January 2005, telephoned the applicant from Port Phillip Prison about Wyntjus's evidence. Subsequently, on 28 January, it is alleged that Carrodus telephoned Brooks from prison and instructed Brooks to engage the applicant to intimidate key prosecution witnesses, including Wyntjus, in order to deter them from appearing at the trial or, alternatively, to induce them to change their statements. Brooks then attended at the applicant's residence in Moe and passed on Carrodus's instructions, whereupon the applicant visited Wyntjus's residence where he spoke to Julie Graham.

7 Wyntjus was not home at the time. It is alleged that that conversation the applicant intimidated Graham and threatened Graham that Wyntjus would come to harm if they attended court on the coming Monday when Carrodus's trial was originally fixed. It is further alleged that later that evening the applicant and Brooks went to a rodeo in Trafalgar. There they observed Styles standing near by. Brooks identified Styles to the applicant, who then intimidated and frightened Styles and told him not to go to court to testify against Carrodus.

8 In his submissions before me the applicant denied strongly any allegation that he intimidated Wyntjus, Graham or Styles. He told me that he is an old friend of both Wyntjus and Graham. He did visit Graham on 28 January and he did tell her that he wanted to speak to Wyntjus about his evidence relating to Carrodus. However, the applicant denied to me, as he did to the police, that he made any threats to Graham.

9 On 29 January, both Brooks and the applicant were arrested. On 31 January, an application by the applicant for bail was refused by the Magistrate's Court at Moe. On 12 April, at the Magistrates' Court at Moe, a further application for bail was refused. A committal mention was held at the Magistrates' Court at Moe on 26 April. That committal mention has been adjourned at the request of the applicant to 24 May 2005 in order that he may study the hand-up brief and determine whether he desires to have a committal hearing.

10 Section 4(1) of the Bail Act 1977 provides that "Any person accused of an offence and held in custody in relation to that offence shall be granted bail".

11 Section 4(2)(d)(i) provides that, nevertheless, the court shall refuse bail if the court is satisfied that there is an unacceptable risk that the accused person, if released on bail, would fail to surrender himself into custody in answer to his bail, commit an offence while on bail, endanger the safety or welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice in relation to himself or any other person.

12 The burden of establishing such an unacceptable risk lies on the Crown. Section 4(3) of the Act sets out some of the circumstances to be taken into account in determining whether there is such an unacceptable risk.

13 In this case, the Crown relies on each of the four bases specified in s.4(2)(d)(i) as constituting an unreasonable risk. In other words, the Crown contends that there is an unreasonable risk that the applicant would fail to answer bail, would commit an offence while on bail, would endanger the safety or welfare of members of the public or would interfere with witnesses if he were granted bail.

14 I first turn to consider whether the Crown has satisfied me that there is an unacceptable risk that the applicant, if released on bail, would fail to surrender himself into custody in answer of his bail. A copy of the applicant's criminal history has been exhibited in these proceedings. Relevantly, the applicant has a history of failing to answer bail and of breaching suspended sentence orders.

15 The salient features of the history may be summarised as follows. First, on 29 April 1997, at the Magistrates' Court at Moe, the applicant was convicted of failing to answer bail and was fined $250. Second, on 25 March 2000 at the Magistrates' Court at Moe, the applicant was convicted of breaching a suspended sentence order. He was sentenced to five months' imprisonment which was wholly suspended for 12 months. Third, on 28 January 2003 at the Magistrates' Court at Moe, the applicant was convicted of breach of suspended sentence order and was sentenced to five months' imprisonment. Fourth, on 6 February 2004 at the Magistrates' Court at Moe, the applicant was convicted of one count of failing to answer bail and was sentenced to one year and two months' imprisonment with a seven month non-parole period. 164 days were declared as pre-sentence detention. Fifth, on 16 February 2004 at the County Court at Moe, the applicant was convicted of three counts of failing to answer bail and was sentenced to 14 days' imprisonment.

16 Thus, the applicant has been convicted on three separate occasions for failing to answer bail. Two of those occasions are quite recent. On each of those two more recent occasions the court has imposed a custodial sentence. In addition, the applicant has twice been convicted for breach of orders by which he has been previously granted a suspended sentence. Accordingly, the applicant's history demonstrates that he has not been prepared on a number of occasions to answer his bail and, further, that he has not been prepared to abide by obligations imposed upon him under orders of a court.

17 The offences with which the applicant has now been charged are particularly serious. If they are established, those offences also demonstrate a blatant disregard by the applicant for the courts and the justice system. On the material before me, it is not possible to make any assessment of the strength or otherwise of the Crown case. I have not been provided with a copy of the hand-up brief. A committal proceeding has not, of course, taken place. It is not desirable, nor possible, that I venture any view as to the strengths or otherwise of the Crown case. Suffice it to say that, as I understand it, the Crown does have tape recordings of the telephone conversations between the applicant and Carrodus and between Brooks and Carrodus which evidence the alleged conspiracy. Further, as I understand it, the Crown has taken statements from the three principal witnesses, namely Graham, Wyntjus and Styles. The informant's summary states that after their arrest, both the applicant and Brooks, in interviews conducted of them at the Moe police station, corroborated the general events outlined in the recorded telephone conversations and as set out by Graham, Wyntjus and Styles, although the applicant denied making any threats. Thus, on the limited materials available to me, I approach this application on the basis that the Crown case against the applicant does, to say the least, have evidence to support it.

18 It follows that I have before me an applicant who has a history of repeated failures to answer bail and who is now charged with serious offences which are the subject of the evidence of three principal Crown witnesses.

19 In addition, the applicant was on parole at the time of the alleged offences. If he is convicted of them, that would constitute a breach of his parole. All of those matters, if unanswered, would persuade me that the applicant would be an unacceptable risk of absconding if I were to grant him bail.

20 However, in response, the applicant has relied mainly on his personal circumstances in order to establish that if he were granted bail he would answer that bail and not abscond. In particular, until his arrest the applicant was living in a relationship with his girlfriend, Angela Smith. He had formed a strong relationship with Angela Smith. She is pregnant with his child. The pregnancy has been particularly difficult and Angela Smith is under regular care of a specialist. Further, the applicant's mother is in very poor health and, indeed, if the applicant is not granted bail she may not survive while he remains in custody. Before his remand, the applicant, himself, was a substantial help to his elderly father, whose own health is now deteriorating. In addition, the applicant's brother would be able to provide him with regular employment should he be granted bail. All of those circumstances combined do demonstrate that the applicant, if granted bail, would have a significant incentive to answer that bail.

21 The applicant's previous history of absconding is significant and the charges against him are serious. Nevertheless, although I consider that there is some risk of absconding if the applicant were granted bail, the Crown has not established to my satisfaction that there is an unacceptable risk that the applicant, if released on bail, would fail to surrender himself into custody and answer is his bail.

22 I then turn to consider the other and more problematic bases upon which the Crown has objected to the grant of bail. Those bases, while three in number, can be grouped together. The Crown contends that if the applicant were released on bail there is an unacceptable risk that the applicant would commit an offence, would endanger the safety or welfare of members of the public and would interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person. The particular concern of the Crown, of course, is that the applicant, if released, would threaten and intimidate witnesses in the manner in which Carrodus has been charged with the assault of Williams, and that he might also threaten and intimidate the same persons who are also witnesses in relation to the charges which have been brought against him. It is this aspect of the matter which has given me the greatest cause for concern.

23 The Crown case on this aspect of the application is based on the allegation that the applicant has already threatened the witnesses Wyntjus, Graham and Styles. As I have stated, it is not possible for me to form other than a preliminary view on the informant's summary. If the allegations contained in that summary are established, then it would be most clearly established that if the applicant were released, he would be an unacceptable risk, at the very least, to Graham, Wyntjus and Styles.

24 As I have stated, on the materials which I have had the opportunity to read, I am unable to assess the strength of the Crown case. There are, however, three further matters which in my view are particularly relevant. The first matter, to which I have already adverted, is the fact that the applicant has in the past shown a disregard for the processes of the criminal justice system by failing to answer bail and by failing to abide by conditions of suspended sentences imposed on him.

25 Secondly, and adding to that, is the nature of the previous convictions of the applicant. They include a number of previous convictions for intentionally damaging property, for making threats to kill, for threatening serious injury, for recklessly causing serious injury and one conviction for assault. The applicant's previous criminal record thus shows that he has some propensity to violence and also a propensity to make threats of a most serious nature.

26 The third matter which concerns me is that the applicant lives in close proximity to the three main witnesses in Carrodus's trial and of his own proceeding, namely Wyntjus, Graham and Styles. The combination of those three factors is significant and do, in my view, point to an unacceptable risk that the applicant, if released on bail, would endanger the safety or welfare of those members of the public and interfere with them in their capacity as witnesses.

27 In response, the applicant addressed this aspect of the case at some length. I must say that the applicant impressed me as being both earnest and sincere in his disavowal of any intention to intimidate witnesses or to otherwise offend should he be granted bail. However, expressions of good intent, no matter how sincerely made, are not of themselves sufficient to allay the concerns I have arising from the matters raised by the Crown in opposition to bail. The applicant again contended that he has strong personal reasons for not breaching any bail conditions which might be imposed upon him. As I have already pointed out, his mother's health is very poor. His mother is very close to the applicant and only the applicant and one of his sisters have been of any real help to their elderly father in caring for and attending to the needs of their mother. The applicant's father, himself, is now in poor health, his condition no doubt being compounded by the burdens of caring for his wife.

28 The applicant's girlfriend, Angela Smith, as I have stated, is well advanced in pregnancy and she has had some difficulties with that pregnancy. In addition, the applicant does have the prospect of steady employment should he be granted bail.

29 All of these matters are significant and relevant.

30 Indeed, I would expect that if the applicant were granted bail today, he would leave this court with every good intention of abiding by any conditions imposed on him and not interfering with witnesses. However, I regret to say that I am not confident that in the ensuing months such a resolve would hold and endure.

31 Although Carrodus is in gaol, his girlfriend has been granted bail. I can, of course, impose conditions on the applicant forbidding him from contacting Brooks or Carrodus. However, there is nothing that I can do which can prevent Brooks contacting the applicant and relaying to him any instructions she may have received from Carrodus.

32 The informant, Detective Senior Constable Green, has given evidence before me. Mr Green impressed me as a fair and objective witness in this matter. He told me that his main concern, should I grant bail, is that the applicant may interfere with witnesses and in particular with Graham, Wyntjus and Styles in their capacity as witnesses against Carrodus. In other words, Mr Green is not as concerned that the applicant would interfere with those persons simply on the basis that they are potential witnesses against the applicant, himself. Mr Green thus told me that if Carrodus is dealt with by the court, he would not have such a concern that the applicant would receive instructions from Carrodus to cause any intimidation to Wyntjus, Graham or Styles. I accept that proposition, and thus I do remain concerned that while the assault charges are pending against Carrodus, there is still an unacceptable risk that Carrodus may attempt to use Brooks to induce the applicant to harass the key witnesses against him.

33 Coupled to that concern is the evidence of the applicant's past problem with alcohol. The applicant honestly and openly conceded to me that he had had such a problem in the past. Indeed, so much is evident from his criminal history. The applicant did make attempts to address the problem while he was in gaol from late 2003 until his release in July 2004. However, as pointed out to me by Ms Boult, the applicant, since his release in July 2004, has had a subsequent conviction for matters relating to the abuse by him of alcohol.

34 Further, there is evidence which suggests that when the applicant spoke to Styles at the rodeo on the evening of 28 January, he was substantially affected by alcohol.

35 In addition, before his arrest, the applicant lived very close to the homes of Graham and Wyntjus and Styles. The applicant's girlfriend is still at the same address. Thus, any condition which I might impose on the applicant forbidding contact by him with witnesses or approaches by him to witnesses would be very hard, if well nigh impossible, to supervise.

36 It is relevant that Graham is very fearful of the applicant. I understand that Wyntjus has told the informant that after the applicant spoke to Graham on 28 January, he, Wyntjus, was so concerned that he decided that he would not testify at the forthcoming trial of Carrodus, which was due to commence the next Monday.

37 In order to alleviate my concerns, the applicant offered a number of conditions should I grant him bail. Included in those conditions was one that he and his girlfriend reside in Morwell rather than Moe. However, unfortunately the applicant does not at the moment have a home in Morwell. It is problematic whether he will be able to secure accommodation in Morwell in the near future. If he were able to secure accommodation in Morwell my concerns would be to some extent allayed, but they would still remain. The police simply do not have the resources to closely monitor compliance with bail conditions such as those which I would be required to fix should I release the applicant on bail. The real risk would remain that the applicant could come into contact with the witnesses and in particular with Wyntjus, Graham and Styles. Given the frame of mind of those witnesses, and in particular Graham, it would be easy for the applicant to intimidate them by a simple gesture or by a few well chosen words.

38 During the course of his evidence before me, Mr Green considered a number of suggestions made by both myself and the applicant which were proffered in an attempt to compile a practical set of conditions which could prevent any risk to witnesses if the applicant were released on bail. However, after considering the matter in some detail, I am concerned that ultimately, while conditions can be imposed which might reduce any such risk, they would not do so sufficiently to overcome my concern that there is a significant and real risk that if the applicant were released on bail he would, at some stage before Carrodus's trial, interfere with witnesses in that trial. It is therefore with some regret that I conclude that if I were to grant the applicant bail today, there is an unacceptable risk that the applicant would interfere with witnesses, especially those persons who are to testify in the trial against Carrodus in respect of the allegation that he assaulted Williams. For those reasons, I must refuse the applicant's application for bail.

39 However, before departing from the matter, I should make and place on record the following observations. First, the application before me is for bail pending a committal. I have not had access on the hand-up brief. If there is a committal proceeding, it would, of course, be open to the applicant to reapply for bail after the conclusion of that proceeding. In saying this, I do not encourage or recommend the applicant to proceed to a committal proceeding, but it is a fact that the application before me is simply one for bail pending committal.

40 Secondly, as I stated in refusing bail, my main concern has been with potential interference with witnesses in Carrodus's trial. However, I do not consider that the applicant should be held in gaol for a prolonged period of time if the trial of Carrodus is unduly delayed.

41 If Carrodus's trial does not proceed on 2 May, and in particular if it is delayed for any significant length of time, then at some future stage the question may need to be addressed whether it remains just and appropriate that the applicant remain in custody.

42 Thirdly, in this context I am concerned also with the potential for there to be delay in the trial in the matter against the applicant, himself. There are, in my view, strong, compassionate grounds why some priority should be given to expediting any committal proceeding in this matter and, if the applicant were committed for trial, any subsequent trial against him. I am mindful of the burdens borne by the Office of Public Prosecutions, the police and the courts, and it is not for me to dictate to any of them how they should order their affairs.

43 However, it would be wrong for me to depart from this matter without drawing attention to the strong compassionate reasons which I consider exist for expedition.

44 Fourthly and finally, if the trial of the matter against the applicant, himself, is delayed substantially, it may also be appropriate to reconsider the applicant's grant to bail, especially if, in the meantime, there are any relevant changes in the circumstances pertinent to the applicant.

45 However, for the reasons I have already advanced and with some regret, I refuse the application for bail.

46 Would you remove, Mr O'Hea, please. Thank you for your assistance, Mr O'Hea.