Re Application for Bail by Mussie Debresay [2015] VSC 756 (18 December 2015)

3 TH suffered traumatic and ultimately fatal injuries on 13 May 2005.

4 The applicant and his then partner, JL, who is the natural mother of the deceased, participated in interviews on the day of the death in May 2013 and later in September of that year. JL also made and signed a statement for police in May 2013.

5 Numerous witness statements were obtained by the Homicide Squad as part of their investigation in the months following the demise of TH.

6 The police brief indicates that on the morning of 13 May 2005, JL, mother of TH, said she got up in the morning at the applicant's home and found TH lying on her front on the lounge room floor. TH was noticed to be very sleepy and lethargic. SB, who was a regular babysitter for the three children, paid them a short visit that morning and also noticed that TH seemed very sleepy. The babysitter commented that the applicant discouraged her from letting the children see her that morning.

7 TH was taken for a walk with her siblings to a nearby café in Footscray, but had trouble walking. She died in her mother's arms at the cafe around lunchtime. Her mother quickly left on foot to a medical clinic when she realised that her daughter was lifeless and unresponsive. The doctors and paramedics who attended to the child could not revive her.

8 Disturbingly, neither the applicant, nor the child's mother had seen fit to have her assessed by a doctor prior to attending the café, despite the fact that the child was obviously very unwell.

9 The applicant and the mother of the deceased had been in a relationship for approximately two months prior to the death.

10 Statements of friends and family of the couple suggest that JL was struggling to cope with her three young children when their natural father separated from her after the birth of the youngest child, KH.

11 When JL met the applicant, she became infatuated with him and neglected her parental responsibilities towards the three children.

12 SB, the babysitter, noted that JL could not manage the behaviour of the three children, especially the younger two daughters, the deceased and one year old KH. When the applicant became involved in her life, he took on a strict disciplinarian role with all of her three children. She complained at the time to her friends that he was sometimes too rough and she noted that all three children were scared of the applicant.

13 When police became involved with the family following the death of TH, significant injuries were also observed on KH. KH was assessed at the Royal Children's Hospital as having bruising to her face and body which was likely to be inflicted rather than accidental. Radiology detected fractures to both forearms.

14 Swelling and bruising to the face of KH had been commented on by family members and KH had been taken to a GP by her mother previous to 13 May. She had also been taken to Sunshine Hospital at the suggestion of the GP. JL's mother had driven JL and KH to the hospital so KH could be assessed, but when the triage nurse foreshadowed that they should expect a long wait, JL aborted the plan to have KH seen by a doctor at the hospital.

15 After TH was pronounced dead on 13 May 2005, a post mortem took place. Post mortem evidence showed that the deceased had suffered widespread soft tissue injuries. The injury which caused death was a widespread injury to the region of the abdomen which included rupture of the pancreas proximal to the jejunum and lacerations to the mesentery and liver, rupture of the bowel and bleeding from the variety of structures within the abdomen.

16 The pathologist, Dr DR, opined that these injuries were in keeping with blunt force having been applied to the front of the abdomen, squeezing the abdominal contents between the object applying force and the vertebral column at the back of the abdomen. This was consistent with being stomped on with force whilst the child was lying on the floor. Although a child was capable of surviving for up to several hours after receiving the injuries, they would be in significant pain and become weak and drowsy.

17 Dr KS, a paediatric surgeon at the Royal Children's Hospital opined that it was extremely unlikely that the injuries were accidental and that it was most unlikely that they were sustained as a result of a fall from height. In his opinion, it would have been evident to caregivers that the deceased was seriously ill and early medical intervention would have increased her chances of survival.

18 The applicant made two records of interview in 2005 in which he sought to explain the injuries suffered by TH as the result of a fall or falls from the lounge room couch to the floor, perhaps also hitting her head on a coffee table. He said these falls occurred during the night before or early on the morning of her death. He gave conflicting accounts as to his involvement in getting out of bed to tend to the deceased after hearing her fall.

19 The deceased had an obvious bruise on her forehead which may potentially have been explained by contact with the coffee table, but the abdominal injuries were not explained by the applicant's account to police.

20 JL was unable to explain the injuries to her daughter in her May 2005 record of interview.

21 In her second record of interview on 1 September 2005, JL said she did not know if the applicant had caused the injuries to KH or to the deceased as she did not see him do it. She denied inflicting any injuries to her children. She said KH had been in pain in the days preceding police being involved. She conceded that the applicant could have injured the children on the morning of 13 May without her becoming aware, because he had the opportunity to do so whilst she was in the bedroom sleeping.

22 The babysitter, SB, had an extensive opportunity to observe JL's encounters with her children and provided a number of statements to police. She made no observation of excessive force exhibited towards the children by JL, but did observe that the children were very scared and watchful of the applicant.

23 It is the prosecution case that there were no other persons who could have inflicted the fatal injuries other than the applicant or JL.

24 Since the death of TH, her siblings AL and KH were removed and placed with their maternal grandparents, where they remain.

25 TH's older brother, AL, who was four at the time, made disclosures to his maternal aunt, her partner and to police in the immediate period following his sister's death. The disclosures tended to be isolated and unprompted utterances.

26 There were difficulties for police in obtaining a cohesive narrative from AL at the time. His distress precluded the success of VATE interviews despite several attempts.

27 Nevertheless, the general tenor of disclosures made by him to family members and police was to the effect that he had witnessed the applicant assaulting TH after TH was in trouble for urinating on the couch. The assaults included putting her in the kitchen and stomping or standing on her back when she was lying on the floor. He also disclosed that the applicant had hit his sister's head.

28 He had a number of sessions with a clinical psychologist, Dr RG, who attempted to explore any traumatic events that AL may have experienced.

29 More recently in January this year AL, who is now 14, participated in a VARE and stated that he recalled the actions of the applicant towards the deceased.

30 He described witnessing assaults perpetrated on the deceased whilst the deceased was in the kitchen. He described that she was crying and asking for her mum, that he was in the lounge room and no one else was in the kitchen and that when the applicant went back into his room, AL went to help his sister.

31 Whilst the applicant's counsel points to some inconsistencies in the recent VARE as to the manner in which AL described the assaults perpetrated by the applicant, AL has been consistent in the central thrust of his account that he witnessed the applicant harming the deceased whilst the deceased was on the floor in the kitchen. On his consistent account JL was in the bedroom when the deceased was seriously harmed by the applicant.

32 According to Mr Dann SC, who appears for the applicant, the applicant and JL have remained involved with one another since the death of TH. Their relationship has been off and on since 2005, with some periods of living together. They now have a daughter, SD, who is two years old.

33 On 9 October 2008, advice was given by the Director of Public Prosecutions ('DPP') to the Homicide Squad that in respect of the brief of evidence, there was insufficient evidence 'to enable a jury to determine, to the required standard, which of the two suspects killed the deceased and injured [KH].'

34 It appears that as a result of the DPP's advice, no charges were laid against the applicant in respect of TH's death, or against the deceased's mother. Eventually a Coronial Inquest took place in 2013. The applicant and JL attended and were represented at the Coronial Inquest, but were excused from giving evidence. The State Coroner found that, for the purposes of the Coroners Act 2008, he was satisfied that indictable offences may have been committed by JL or the applicant in connection with the death of TH and that he intended to have the Principal Registrar of the Coroner's Court notify the DPP accordingly. His Honour also ordered that the names of TH, JL, the applicant in this case, AL and KH not be published on the basis that publication would be contrary to the public interest. As I understand it, that order was revoked and replaced by another order dated 23 June 2015 prohibiting the publication or broadcast of any material that may identify the names of TH's siblings, AL and KH.

35 It was not until after AL's January 2015 VARE that police finally took steps to charge the applicant with murder. The applicant was charged on 13 May 2015 with murder, and various alternative charges.

36 A 10-day committal has been set down for 1 February 2016 at the Melbourne Magistrates' Court.

37 The applicant's mother lives in a Ministry of Housing apartment in Flemington.

38 The applicant proposes that, if granted bail, he would reside with his mother and attempt to find work as a forklift driver. He is now aged 37. He is an Eritrean born man who migrated to Australia with his mother in his adolescence and attended schooling in Flemington and elsewhere. He has had a number of jobs over the years, mainly in the logistics field although he worked for a period as a security guard, including being employed by Melbourne City Council. His most recent employment resulted in an unfair dismissal claim against Melbourne City Council in 2013, for which he received compensation. He has a 15 year old son, JD, from a previous relationship and has had fortnightly overnight access to his son over the years before and after the death of TH. The mother of JD, AC, was present at the hearing of this application, indicating her support for the applicant.

39 An affidavit provided by the applicant's solicitor indicates that the applicant has been assaulted in prison. This was elaborated in oral submissions with the explanation that there had been at least two occasions on which the applicant was assaulted, firstly, at the Melbourne Assessment Prison and, secondly, at the Melbourne Remand Centre. It is alleged that the assaults were a result of the nature of the charges. The first mentioned assault resulted in the applicant's front tooth being knocked out and was reported to the authorities. The second assault was not reported due to fear of repercussions.

40 The affidavit also indicates that the applicant has significant family support from his mother's side which would be available to him if he were granted bail. Several members of the applicant's family attended the hearing as a show of support to the applicant.

41 A surety of $5,000 was offered, but it was conceded that if bail were granted, a more substantial surety might be necessary.

42 It was also asserted that the applicant has a limited criminal history and no history of bail offences and has never been sentenced to gaol in the past. The applicant will contest the charge of murder.

43 The arguments put forward by the applicant in favour of bail primarily turn upon:

44 Firstly, the extraordinary lapse of time between the alleged murder and the laying of charges. The applicant outlined a chronology which included the advice by the DPP on 9 October 2008 as to the lack of prospects of a successful prosecution. Following the coronial inquest, at which the State Coroner exercised his powers to refer the matter to the DPP for consideration of charges, it appears that a different view of the prospects of conviction resulted from consideration of the utility of the Uniform Evidence Act in introducing a body of evidence which may not have been admissible under the previous regime.

45 Over the period of time between May 2005 and May 2015, the applicant was aware that the police regarded him as a prime suspect for the death of TH, but he remained available to cooperate with any police procedures and court proceedings. There is no suggestion that he has committed any offences over that period other than unrelated driving offences. He has cooperated with the Department of Human Services requirements about supervised access to both of his biological children. Contact with TH's siblings was prohibited by the Department of Human Services and he has abided by that directive. Access to both of his biological children has been required to be supervised by the Department of Human Services or its delegates.

46 Secondly, the delay between the date of the charges in May 2015 and the earliest estimated trial date of July 2016 means that the applicant will have been in custody for at least 14 months awaiting trial. Whilst this was not argued by Mr Dann SC, to be an inordinate amount of time, it was relied upon in combination with other factors to argue that exceptional circumstances were made out, and that there will be a likely further delay before the trial can be finalised.

47 The other factors relied upon in combination to demonstrate exceptional circumstances were the opportunity for a stable residence with his mother, strong family support, limited criminal history, no history of breaching bail, availability of surety, reasonable employment history, and the impacts of assaults perpetrated on the applicant despite being in protective custody.

48 Whilst not asserting that the prosecution case was weak, Mr Dann SC submitted that there were difficulties that the prosecution would have to face. These included that, when interviewed, JL had also been accused by the police of harming the deceased, and also the inconsistencies in the accounts of AL.

49 Finally, Mr Dann SC submitted that the prosecution were not suggesting that the applicant was an unacceptable risk of flight or of committing offences whilst on bail.

50 Mr Dann SC also indicated that the applicant would cooperate with conditions precluding contact with JL, the mother of his daughter, SD, and AC, the mother of his son, JD, other than for the purposes of child access.

51 The argument put forward in opposition to bail is that the applicant must establish exceptional circumstances justifying a grant of bail, and that the suggested surety is too low.

52 Mr Devlin, for the Crown, submitted that the primary question for my consideration was whether a 10 year gap between TH's death and the applicant being charged rendered the circumstances exceptional in combination with other matters raised. Mr Devlin noted that there would be future delay, but that it would not be inordinate. Mr Devlin submitted that the Crown case was strong despite the issues alluded to by Mr Dann SC. He conceded that the risk of flight or committing offences whilst on bail could be mediated by imposing strict conditions of bail.

53 In considering the arguments put forward by the parties, I am mindful of the fact that exceptional circumstances can be constituted by a range of factors.

54 Mr Dann SC, referred to Re Brendan Barnes,[1] in which Bongiorno J was satisfied that exceptional circumstances were constituted by a combination of factors, including that the applicant had known that he was a suspect in the murder of a child for some time and continued to cooperate with authorities, that there was a possibility of delay until the applicant faced trial, and that the applicant was prepared to abide by bail conditions, and that that the applicant and his parents were able to lodge a substantial surety.

55 Mr Dann SC also referred me to DPP v Jason Ghiller.[2] Eames J remarked that:

[T]he primary question relevant to a grant of bail is whether a person will meet the conditions of bail and attend at the trial, and as required. The question of the strength of the case against the person is merely one of the factors to be considered when evaluating whether it is more or less likely that the person would meet the conditions of bail. A bail application is not concerned with determining the issues which the jury must decide, nor is it concerned with punishing a person in advance of that adjudication by jury.[3]

56 In Re Troy Grant Wells,[4] Lasry J referred to the following comments of Vincent J in Moloney[5] and of Coldrey J in DPP v Sabino Cozzi:[6]

A number of decisions which have been handed down by judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.

In DPP v Sabino Cozzi, Coldrey J expressed agreement with the approach of Vincent J in Moloney and then reviewed several of the cases which subsequently discussed the meaning of "exceptional circumstances". He noted:

An examination of the cases bearing upon this concept reveals a multitude of single and conflicting interpretations thrown up, no doubt, by the variety of fact situations with which Judges have been faced.

57 The unusual procedural history of a case for murder may be one of a number of circumstances capable of being relied on to justify bail.

58 In Tuan Quoc Tran v DPP,[7] Redlich J held that it was appropriate to take into account the history of the proceedings and the circumstances which the applicant has faced. The applicant in that case had faced a period of uncertainty over whether he would be charged for murder, and His Honour found that the unusual history of the case and the fact that there was likely to be a delay before the applicant would face trial meant that special circumstances were made out.

59 Despite my view that the prosecution case is reasonably strong, I consider that there is a combination of factors which equate to exceptional circumstances in this case.

60 In particular, I am influenced by the 10 year time lapse between the applicant first being arrested and interviewed about the death of TH and ultimately being charged for her murder in May 2015. There were few restrictions imposed on the applicant during that period apart from the DHS conditions related to his children. I regard it as significant that over that 10 year period, the applicant has remained available to cooperate with the authorities as required and has not breached the conditions imposed by DHS in relation to visitation access to his children, nor is there any evidence before me that he has interfered with witnesses or committed relevant offences.

61 I am also influenced by the likely delay before the applicant's trial can be finalised, and the fact that he has experienced assaults in custody despite being in protective custody.

62 I also take into account that there is strong family support for the applicant, and the possibility of raising a surety to secure bail. The absence of allegations of unacceptable risk of flight or offending whilst on bail is another matter which I have taken into account. I consider that any risk that does exist is capable of being mediated by strict conditions.

63 Those are my reasons. The conditions that I propose are these. I will read them out and the parties can ensure that I have covered everything. I should note before going to the conditions that there do seem to be some orders still in existence from the Coroner's Court in relation to suppression of the names of TH's siblings, AL and KH.[8]

[1] [2006] VSC 426.

[2] [2000] VSC 435.

[4] [2008] VSC 29.

[5] Re Moloney, John Denis (Bail Application) [1990] VSC (Unreported, Vincent J, 31 October 1990) ('Moloney')

[6] [2005] VSC 195.

[7] [2005] VSC 498.

[8] Proceeding Suppression Order made by Judge Ian Gray on 23 June 2015.