Re Barnes [2006] VSC 426 (23 August 2006)

2 Section 13(1) of the Bail Act 1977 permits the granting of bail, and s 13(2) requires that in the case of a charge of murder the court must be satisfied that exceptional circumstances exist which justify the making of an order for bail.

3 In this instance Mr Drake of counsel for the applicant has pointed to a number of matters which, in combination, make up what I am prepared to find are exceptional circumstances.

4 The first matter is that the continued incarceration of the applicant will, on the evidence which I have read from Associate Professor McKendrick, have a deleterious effect on the serious medical condition which his mother suffers, and accordingly his release on bail will to some extent be of assistance in alleviating that situation.

5 Secondly, and personally to the accused, he has known of these events for some years; the child having died in December 2004, almost over 18 months ago. That death occurred over three months or about three months from the date upon which events alleged to have caused the death occurred. Subsequent to that the applicant has co-operated with police, co-operated with the Department of Human Services, attended an inquest and generally made himself available, including ultimately making himself available for arrest by appointment. That suggests that there is a very low risk of his absconding.

6 Another factor is that he has substantial sureties in his parents who are prepared to pledge their house in support of their surety.

7 Allegedly he has no connections outside Victoria, and although he has a passport that passport is now such that it can be surrendered immediately.

8 Mr Drake laid emphasis on the strength of the Crown case and said that it was weak. It is inappropriate for a judge dealing with a bail application to comment other than briefly on the strength of the Crown case. Ultimately it will be for prosecutors to determine whether a presentment should be made to this court in respect of the offence with which the accused is charged, and that won't occur until after a committal proceeding has been undertaken.

9 Another factor referred to by Mr Drake is the delay which will occur between now and any ultimate trial. The dates which have been mentioned involve a trial ultimately at some time towards the end of 2007. It's not impossible that it could go into 2008.

10 Taking all of those matters into account, and provided the applicant is prepared to abide by conditions which I will place upon his bail, I grant the application. I will grant bail to the applicant in his own undertaking with two sureties in a combined total of $150,000. There will be conditions as to reporting.