R v Young

Submissions on Bail Application 13 The Crown submits that bail should be refused, that the applicant has failed to demonstrate exceptional circumstances and that the seriousness of the charges against him constitute a significant incentive for him not to appear to answer bail. The most serious charge of murder carries a maximum penalty of imprisonment for life, with a standard non parole period of twenty years for an offence of this class. 14 Mr Byrne SC submits that there are exceptional circumstances in this case. He submits that exceptional circumstances can arise by a combination of factors and that there is such a combination in this case. Firstly, it is said that an examination of the factual allegations against the applicant demonstrates that there are features of this case that allow a view to be formed, even at this stage, that it is not a very strong Crown case for murder. Secondly, it is submitted that there are strong subjective aspects surrounding the applicant including a good employment history, no prior criminal record, good family ties and that he is a person of otherwise good character who will, in all other respects, find favour with the Court on the question of bail. Thirdly, it is submitted that the applicant does not pose any threat to the community. This was one disastrous evening that produced these consequences, but that there is nothing in the applicant's prior history to suggest the risk of repetition of such conduct if granted bail.

Section 9C Bail Act 1978 15 Section 9C Bail Act 1978 was inserted in the Act in 2003. At common law prior to 1978, there was a principle that restricted the grant of bail in murder cases to those involving special or exceptional circumstances: R v Cable (1947) 63 WN 267; R v Watson (1948) 64 WN 100; R v Zvonaric (1967) 1 Petty Sessions Review 77 (Moffitt J, 3 November 1967); Donovan, "The Law of Bail", 1981, paragraphs 9.4, 32.3. That principle was not imported into the Bail Act in 1978, but in 2003, the current test was inserted. 16 Mr Byrne SC has taken me to the 2003 second reading speech in which Mr Gaudry, Parliamentary Secretary, explained some of the reasoning behind the enactment of s.9C. In so far as the concept of exceptional circumstances is concerned (and this term appears in both s.9C and s.9D which relates to serious personal violence offences), Mr Gaudry said (Hansard, Legislative Assembly, 30 May 2003): "Exceptional circumstances will be left to the Court to decide on an individual case by case basis. However, as a general guide it might include cases involving a battered wife or a strong self-defence case or a weak prosecution case. It might also include a case in which the defendant is in urgent need of medical attention, or who has an intellectual disability or when the Court is satisfied the offender poses no further threat to the victim or the community."

It is the last mentioned concept (posing no further threat to the community) which Mr Byrne SC emphasises in this case. 17 The Crown has referred me to R v Tapueluelu (Dowd J, 5 January 2004, unreported) in which his Honour expressed the view that the test of exceptional circumstances sets an onus on the applicant of a very high order, and requires something more than special circumstances or mere circumstances. 18 The concept of exceptional circumstances is, of course, not defined in the Bail Act 1978. It is a term that is used, from time to time, in statutes to place limits upon the exercise of various powers: cf R v Steggall [2005] VSCA 278; (2005) 157 A Crim R 402 at paragraph 12. It is helpful, however, to refer to the ordinary meaning of the word "exceptional" in the Macquarie Dictionary: "Forming an exception or unusual instance; unusual; extraordinary." 19 Section 9C does not constitute a prohibition on granting bail in cases of murder. Cases of alleged murder, of course, can vary considerably. It is no doubt for that reason that in the second reading speech, emphasis was placed upon the need for a case-by-case examination. The context in which the term "exceptional circumstances" is used is relevant to the construction of the term. The statutory context in which the term "exceptional circumstances" appears in s.9C involves the existence of a murder charge against the applicant. Elsewhere in the Bail Act, in s.30AA, the term "special or exceptional circumstances" is used in the context of an applicant who has been convicted of an offence on indictment and is appealing to the Court of Criminal Appeal. That difference in statutory context is not insignificant involving, as it does, bail determinations at different points along the path of the criminal justice process. 20 It seems to me that exceptional circumstances may be found in a case by the coincidence of a number of features. These can include features subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise that, absent this particular test, the applicant is otherwise a person who will answer bail. 21 An assessment of the strength of the Crown case at this stage is not without its difficulties. On the material before me, there is no doubt that it was the actions of the applicant which caused the death of the deceased. The issue here will be the state of mind of the applicant at the time. Section 9C of course applies only to murder - it does not apply to manslaughter, let alone culpable driving causing death. The elements of murder include the requirement for an intention to kill or cause grievous bodily harm or reckless indifference to human life. 22 On the factual material before me today, there are significant issues and arguments capable of being advanced both in favour of the Crown case and against it, with respect to the mental element of murder in this case. I emphasise that I am not sitting as a Magistrate determining committal proceedings, or as a trial judge, but I have been asked, and am required to give, some consideration and assessment to the nature of the prosecution case. 23 Mr Byrne SC has emphasised that cases of murder involving a motor vehicle are rare and that is undoubtedly the case. The Crown here, of course, alleges that the applicant used a motor vehicle as a weapon against the deceased. Whether that is so is a matter for future resolution. The Crown submits that there was a conscious and deliberate effort on the part of the applicant to use the vehicle as a weapon against Mr McWhinney, and that there was, as a result of the denial of the applicant to police that he had been involved in an accident, evidence of consciousness of guilt. However, it does seem to me to be significant that, at the same time, the applicant said to police that his friends were back in Denison Street involved in a fight and that police should see to that matter. On the Crown case, of course, that comment was made by someone who had, a short time before, intentionally or with reckless indifference to human life, run over the deceased. 24 It does seem to me that there are some unusual features in this case, unusual features in the nature of the charge itself, and unusual features surrounding the applicant himself. I am satisfied that the applicant poses no further threat to the community at this time. In my opinion, the applicant has satisfied the test of exceptional circumstances in s.9C Bail Act 1978.

Other Factors Relevant to Bail Determination 25 It is then necessary to consider other factors relevant to the grant of bail, including the factors under s.32 of the Act. In my view, those factors substantially favour the applicant. He is in good employment, he lives with a family who has had no prior adverse contact with the criminal law. He has ties to the community. His father is prepared to use the house in which they have lived for more than twenty years as security for bail. The evidence is that there is an equity in that house exceeding $400,000. There is evidence that Mr Fallins is prepared to assist in a type of supervisory function with respect to bail. 26 My conclusion that the applicant poses no further threat to the community at this time, will be fortified by the imposition of conditions on bail which I propose to set. Accordingly, I am satisfied that bail should be granted in this case.

Conditions of Bail 27 That brings me to the question of conditions of bail. I grant bail in respect to the offences of murder, failing to stop and assist after vehicle impact causing death, and driving with the high range prescribed concentration of alcohol upon the following conditions that:

(i) the applicant enters in an agreement to observe, and in fact observes, the following requirements as to his conduct while at liberty on bail: (a) the applicant appear at Newcastle Local Court on 24 May 2006 and from time to time thereafter as required;

(b) he reports to the officer in charge of police at Belmont Police Station daily between the hours of 8am and 8pm;

(d) he enters into an agreement, without security, to forfeit the sum of $5,000 if he fails to comply with his bail undertaking;

(e) one acceptable person enters into an agreement to forfeit the sum of $250,000 if the applicant fails to comply with his bail undertaking. Such agreement is to be secured by the giving of security in any form acceptable to the justice before whom the agreement is entered. Gary Phillip Young of [xxx], Eleebana is such an acceptable person;

(f) the applicant stays away from all international points of arrival or departure from the Commonwealth of Australia;

(g) the applicant not apply for any passport or travel documents during the currency of bail;

(i) the applicant not depart from the premises at [xxx], Eleebana between the hours of 10.00 pm and 4.30 am each day, unless accompanied by his mother or his father;

(j) throughout the period of his liberty on bail, the applicant be of good behaviour in all respects;

(k) the applicant not approach directly or indirectly Nathan Jones, Matthew David Nicol, or any other witness likely to be called by the prosecution except through his legal representatives;

(l) the applicant not drive a motor vehicle on a public street or occupy the driver's seat of a motor vehicle.

(ii) Upon default in any one of the conditions imposed, bail now granted will be deemed to have been revoked and the applicant may thereupon be arrested by any police officer and thereafter dealt with according to law.

(iii) The necessary formalities may be completed by any justice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.