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[2022] VSC 578
General information, not legal advice.
Supreme Court of Victoria
2022-08-16
Champion J
Original judgment source is linked above.
2 There are two co-accused, Samantha Guillerme ('Guillerme') and Andrew Price ('Price'), who are both charged with murder and are currently on bail.[3]
3 The applicant's alleged offending occurred in April 2020. On 20 October 2020 the co-accused, Guillerme, was charged with murder and remanded in custody. On 21 October 2020, the applicant and Price were charged with murder and remanded in custody.
4 On 16 September 2021, Guillerme was granted bail in this Court by Coghlan J.
5 The applicant was committed for trial on 26 November 2021. A post committal directions hearing was held before Judicial Registrar Tueno on 8 December 2021. An indictment and summary of prosecution opening were filed on 8 March 2022, then a hearsay notice, incriminating conduct notice and notice to admit were filed on 8 April 2022. The defence response was filed on 9 May 2022.
6 Between 23-26 May 2022, s 198B hearings for the cross-examination of a number of witnesses were held in this Court.
7 On 14 July 2022, Price was granted bail in this Court by Lasry J. Subsequently, the applicant filed an application for bail on 19 July 2022.
8 Procedurally, the next relevant listing dates in this Court are:
(a) 19 August 2022 for a further directions hearing; and
(b) 20 March 2023 for a final directions hearing.
9 The trial is currently listed for hearing at the sittings of this Court to be held in the LaTrobe Valley on 1 May 2023.
10 This application is supported by the affidavit of Michelle Lester, solicitor, dated 15 July 2022, attached to which are a series of exhibits. On 3 August 2022, the applicant filed two affidavits of surety affirmed by the applicant's partner, Shannen Jolley and grandmother, Doreen Brown.
11 In response to the application, the respondent filed an affidavit sworn by Kerryn Parnham, solicitor, dated 1 August 2022, also attaching a series of exhibits.
12 Both the applicant and the respondent filed written submissions dated 4 August 2022.
13 It is the prosecution case that on the night of 15 to 16 April 2020, Guillerme communicated with Jarrad Lovison and met with him under the guise of selling him drugs. It is alleged that she was accompanied by Price and the applicant at the meeting. Price and the applicant were friends, and the prosecution alleges that the applicant and Guillerme were in a relationship.
14 Mr Lovison was driven by the three accused to the Moondarra State Park, where it is alleged that the applicant or Price administered, or forced Mr Lovison to ingest, a lethal quantity of gamma-hydroxybutyrate ('GHB') intending to kill him or cause really serious injury. It is alleged that Guillerme remained in the car, whilst the events just described took place. It is further alleged that Mr Lovison's body was left in the State park.
15 Mr Lovison was reported missing by his parents on 22 April 2020, after he had not been seen for a week. His body was located in the Moondarra State Park on 23 May 2020. The post mortem examination found the cause of death to be GHB toxicity.
16 The motivation alleged for the murder was Price's jealousy that his then girlfriend, Angela O'Brien, had maintained contact and a rumoured sexual relationship with Mr Lovison (her ex-partner) while she was dating Price, resulting in hostility between Price and Mr Lovison (including in October 2019, when Mr Lovison broke Price's arm).
17 The prosecution case relies on various sources of evidence including witness statements, phone records and data, CCTV footage, telephone intercept and listening device material, and recorded calls from custody.
18 Several witnesses have provided statements of their accounts about the history between Price and Mr Lovison, as well as about the aftermath of Mr Lovison's disappearance. This includes P A and D R who are referred to in the materials filed on the bail application.
(a) said the applicant had volunteered to "shoot up" Mr Lovison's house for him;
(b) spoke about wanting Mr Lovison killed and remarked that he should pay someone to do so, such as the applicant; and
(c) offered to give P A a reward in exchange for doing so.
20 P A also recounts a conversation between the applicant and Price about how they could dispose of Mr Lovison's body, and between the three accused in which Guillerme said she might be able to lure Mr Lovison as he fancied her. In the early hours of 26 April 2020 (which was after Mr Lovison's disappearance), P Afurther states that the applicant and Price attended his home, while the applicant was in possession of a firearm. The prosecution allege that this was an attempt to intimidate him due to his presence during the conversations about killing Mr Lovison.
21 D R states that the applicant came to his home one night and stated, in the presence of his wife T A, "I've been here all night. You're my alibi". The prosecution allege that this occurred on the night that Mr Lovison was murdered, after the three accused left his body in the State park. D R also states that the applicant spoke to him about the situation on a few occasions, including a few weeks after Mr Lovison disappeared when the applicant said that he and Price "got rid" of "Lovo".
22 The applicant was arrested on 21 October 2020. He provided an interview in which he said, among other things, that he had been at home with his partner on the night of 15 April. He stated that Price had never spoken to him about disliking Mr Lovison or any plans to kill him, and that he first heard about Mr Lovison's disappearance through Facebook posts. The applicant otherwise denied the allegations or provided no comment responses.
23 As the applicant is charged with a schedule 1 offence within the meaning of the Bail Act 1977 (Vic) ('the Act'),[4] bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail.[5] In considering whether the applicant has satisfied this test, the Court must have regard to the surrounding circumstances, including those relevant under s 3AAA(1).[6]
24 If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that risk is unacceptable.[7] In determining this, the Court must have regard to the surrounding circumstances and whether there are any bail conditions that may mitigate the risk so that it is not unacceptable.[8]
25 The applicant is a 30 year old man. He has been in a relationship with Shannen Jolley for around six years. They have two young children together.
26 Prior to his remand, he lived with Ms Jolley and their children in Willowgrove, and he was employed installing solar panels. This employment was terminated due to him being placed in remand custody.
27 The applicant has a criminal history commencing in 2010, which relevantly includes:
(a) Making a threat to kill and unlawful assault which were dismissed following compliance with an undertaking in 2011;
(b) Criminal damage and possessing a dangerous article in a public place in 2013, for which he was fined;
(c) Driving whilst authorisation suspended and other offences in 2014, for which he was fined;
(d) Reckless conduct endangering serious injury (two charges), committing an indictable offence whilst on bail, possessing an offensive weapon on court premises, breaching an alcohol interlock condition (two charges) and other driving related offences in 2018, for which he was fined and his licence was suspended;
(e) Assault with a weapon and possessing a firearm as a non-prohibited person in 2018, for which he was convicted and sentenced to a 12-month community correction order ('CCO') (that he contravened in 2019);
(f) Aggravated cruelty to an animal in 2019, for which he received a three month term of imprisonment, as well as criminal damage and unlawful assault for which he received a fine;
(g) Contraventions of family violence intervention orders in 2019 and 2020, for which he received a seven day term of imprisonment in 2019 and a fine in 2020.[9] He was also fined for failing an oral fluid test within three hours of driving in 2020.
28 As noted, both of the co-accused are charged with murder and are currently on bail.
29 Guillerme was granted bail by Coghlan J in September 2021.[10]
30 Price was granted bail by Lasry J on 14 July 2022, having previously been refused bail by Coghlan J in early 2021 and by the committing magistrate in December 2021, in both instances on the basis of being an unacceptable risk.[11]
31 Both co-accused have criminal history. Price did not have any prior criminal history at the time of the alleged offending. However, he was on bail for two matters which have since finalised for possessing drugs of dependence, driving related offences, and offences against the Bail Act. He received an aggregate term of two months' imprisonment.
32 Guillerme's prior convictions relate primarily to an appearance in 2015 for drug-related offences. She was sentenced to a 12-month CCO, which was breached and, in 2017, she was re-sentenced to an aggregate fine. She appeared before the court in 2018 on three charges of theft for which she received an aggregate fine.
33 It is submitted that taken as a whole the following circumstances constitute exceptional circumstances justifying a grant of bail.
Nature and seriousness of the alleged offending
34 The prosecution case alleges a premeditated and planned course of action by the three accused aimed towards killing the deceased, or causing him really serious injury. As such, the applicant acknowledges that as he is charged with murder, the alleged offending is very serious.
35 The applicant submits that the prosecution case against him has inherent weakness, which cannot be overcome at trial.
(a) the evidence of lay witnesses has now been subjected to cross-examination, and significant concessions were obtained;
(b) in light of the evidence of the prosecution expert witnesses at the committal, the highest that the case can be put on such evidence is that the deceased died of an overdose of GHB. The experts could not give an opinion as to the quantity, timing or method of administration of the GHB;
(c) there is no physical or forensic evidence that the applicant was involved in the deceased's death in the manner alleged by the prosecution;
(d) the prosecution will not be able to exclude, from a scientific perspective, voluntary or accidental overdose, and further noting that there are witnesses who identify that the deceased used GHB, and one of his text messages on 15 April 2020 indicated that he intended to take GHB that evening;
(e) committal and s 198B proceedings conducted in this matter have revealed some significant concerns around the credibility of certain key witnesses.
37 The above noted, the applicant argues that there are number of triable issues which will arise at trial in this matter.
38 The applicant acknowledges that he has one prior conviction for committing an indictable offence whilst on bail, but notes he has no other convictions for offences against the Bail Act.
39 It is pointed out that the applicant was not on bail, and had no other outstanding matters, at the time of his alleged offending.
40 The applicant proposes to reside with his parents-in-law at [redacted address] in Drouin to put distance from the area of the alleged offending. He would be living with Timothy and Kimberly Jolley, and their three children.
41 Mr Jolley owns a refrigerated transport company, [redacted name of company], and Ms Jolley is a kindergarten teacher. Should the applicant be granted bail, he has been offered full time employment with Mr Jolley's company.
42 The applicant submits that his partner Shannen Jolley and their children have struggled financially and emotionally in his absence. They remain living in Gippsland.
43 An undated letter from Ms Jolley has been provided in support. She writes that the applicant was the sole income earner for the family, and since his remand she has had to take up a permanent job and care for the children on her own. This has affected her mental health. In addition, their youngest child was born prematurely and the applicant was taken into custody shortly after the birth.
44 A letter dated 24 November 2021 from psychologist, Marianna Lolas, states that Ms Jolley presents with depressive and anxious symptoms in the context of being a working single parent with young children. In Ms Lolas' opinion it is "quite obvious that this is placing extreme stress on her and is affecting her mental health".
45 The applicant has been in custody since 21 October 2020. His trial is listed to commence on 1 May 2023. This represents a delay of 1 year and 9 months to the hearing of this bail application, and then likely 2 years and 6 months to trial.
46 The applicant submits that while the delay on its face may not be inordinate, in combination with the surrounding circumstances, such delay is a significant factor.
47 In addition to this, the applicant noted at the hearing of this application that there had recently been some late disclosure of relevant material occurring after the committal and s 198B proceedings. It was argued that this could ultimately result in further delays in this matter.
48 At the hearing of the application, the applicant alluded to some difficulties he has faced in custody in the midst of the COVID-9 pandemic, including that he has been allowed very minimal interaction with his children.
49 Two sureties to a total amount of $220,000 are offered in support of this application.
50 The applicant's grandmother, Doreen Brown, deposes on affidavit filed on 3 August 2022 that she offers a surety of $200,000 by proving available equity in her own place of residence in Moe, which she owns outright.
51 Shannen Jolley deposes on affidavit filed on 3 August 2022 that she is willing to offer a surety of $20,000 in cash, which is her life savings.
52 The applicant submits that he has a close relationship with his family, and that the sureties offered in this case would be a significant deterrent to him breaching bail.
53 The applicant submits that parity should be accorded some weight in this case, upon consideration of the following factors:
(a) Price and Guillerme have been granted bail;
(b) The circumstantial case against Price is submitted to be stronger than against the applicant, given his animosity with the deceased and purported motive for the alleged murder;
(c) Similarly to his co-accused Price, the applicant has a surety available. It is conceded that the applicant's proposed amount of surety is lesser in sum, but it is nevertheless submitted to be substantial in light of the applicant's family circumstances;
(d) Whilst the applicant has a criminal history of some relevance, unlike Price he was not on bail at the time of the alleged offending;
(e) Guillerme has a criminal history, albeit limited in nature; and
(f) The applicant is relying on similar factors as the co-accused.
54 Overall, in relation to risk, the applicant relies on the expectation of being in custody for a significant period, along with an understanding of the consequences that would likely flow in the event of his non-compliance with any grant of bail. It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by extensive bail conditions as proposed at [63] of his written submissions.
55 In addition to the conditions proposed in written submissions, at the hearing of the application the applicant indicated that he would be prepared to engage with the Australian Community Support Organisation (ACSO) for alcohol and drug treatment.
56 The applicant relies on his limited prior convictions for offending while subject to previous instances of bail.
57 The applicant relies on his lack of criminal history for attempting to pervert the course of justice or harassing witnesses. He submits that it is in his interest that witnesses be available for cross-examination at trial, otherwise as noted by Lasry J in relation to P A during Price's bail application, P A's evidence from prior hearings would be played to the jury. It is argued that such a prospect contributes to reducing the risk of interference taking place. The proposed bail address also provides geographical distance from witnesses.
58 Regarding the recorded Arunta calls from custody relied on by the prosecution, the applicant notes that these are from November and December 2020 shortly after his arrest while he was ruminating over his situation, with no evidence of similar expressions since that time.
59 Regarding allegedly attending P A's residence whilst armed, the applicant notes:
(a) Angela O'Brien gave evidence at the committal hearing that she drove the applicant and Price to an address on the evening of 26 April 2020 and neither were armed;
(b) there is evidence of an ongoing feud between P A and Price in relation to the theft of a chainsaw;
(c) P A gave evidence at the s 198B hearing that he believed the incident was related to the chainsaw, and he was not aware of Mr Lovison's disappearance at the time.
60 The applicant submits that the assertion by the respondent that he previously attempted to avoid detection for driving without a licence is speculative and should be given no weight.
61 The applicant argues that he has significant ties to the jurisdiction, including his two young children and partner, a stable address and employment.
62 Furthermore, the applicant relies on his lack of convictions for failing to answer bail, together with a lack of evidence about his intention or means to leave the jurisdiction.
63 The application for bail is opposed on the basis that the applicant must satisfy the Court as to the existence of exceptional circumstances, and further it is submitted that there is an unacceptable risk that the applicant would engage in conduct of a kind in s 4E(1)(a) of the Act.
64 In response to the applicant's contentions, the respondent submits the following:
65 The respondent disputes the assertion that the case against the applicant is weak. The respondent submits that there is inculpatory evidence against the applicant, including CCTV footage, phone records, and the inferences to be drawn from the applicant's conduct and conversations between the alleged offending and his arrest.
66 With respect to the issue of causation, the respondent submits that the evidence suggests against accidental overdose as the deceased was an experienced user of GHB and the amount of GHB present in his system was higher than the level generally found in deaths attributed to acute GHB overdose. Further, the respondent submits that there are strong reasons against intentional overdose.
67 The respondent submits that there has not been an exceptional delay, taking into account the current circumstances relating to listing and hearing of cases, the seriousness of the allegations, multiple accused and the volume of materials. It is noted that the trial date was set to accommodate the availability of the various counsel.
68 The respondent further submits that any sentence imposed, should the applicant be found guilty of murder, will inevitably exceed the time on remand.
69 The respondent notes the applicant has a significant violent criminal history and a history for breaching court orders and driving-related offences.
70 The respondent points out the applicant is disqualified from driving, and that he is not to be relicensed except by order of a magistrate. The respondent submits that it is unclear whether the applicant could meaningfully contribute to employment at a refrigeration transport company without a licence and whether his prospective employer is aware of this. It is noted that the applicant failed to inform his previous employer when he was suspended from driving in June 2020.
71 The respondent argues that the applicant provided little support to his partner prior to his remand and showed disregard for her, with her main supports being the applicant's sister (Abbey Brown) and grandmother (Doreen Brown).
72 In response to the applicant's submissions in relation to family support, the respondent points out that the supports and connections that are now relied on were in place at the time of the alleged offending, but failed to have a protective effect on the applicant.
73 The respondent submits that the applicant stands in a different position to Price and Guillerme as:
(a) The applicant has a more significant criminal history than the co-accused, including prior custodial sentences;
(b) Both co-accused had access to treatment on bail to address their drug use, which the applicant does not propose;
(c) Price was granted bail with a $900,000 surety; and
(d) Price was diagnosed with chronic lymphocytic leukaemia in custody, which testing showed was worsening. There had been some delays in accessing medical appointments, and there was an additional burden of quarantine each time Price left custody to attend appointments.
74 Overall, the respondent states that the protective factors such as his employment and his family were present prior to his remand, and did not deter him from drug use or offending.
Endangering the safety or welfare of any person and interfering with witnesses
75 The respondent submits that the applicant is capable of interfering with witnesses and is motivated to do so, giving rise to an unacceptable risk if he is granted bail. In particular, the respondent states that P A and D R, who are key witnesses for the prosecution, have now given evidence essentially in accordance with their statements.
76 The respondent refers to several occasions in which the applicant has been recorded directly and indirectly intimidating witnesses, including those briefly outlined below.
77 The respondent's history of possessing unregistered firearms demonstrates his ability to access firearms illegally, which is submitted to heighten the risk to others.
78 The applicant is aware that P A is a principal witness for the prosecution. In relation to the alleged incident at P A's home on 26 April 2020, the respondent acknowledges that P A did not know of Mr Lovison's disappearance at the time. However, the respondent submits that the attendance can only be viewed as an attempt to intimidate P A and a willingness by the applicant to take matters into his own hands, whether in relation to a chainsaw or some other issue.
79 In addition, the respondent relies on the following:
(a) In October 2020 during a conversation covertly recorded by police, the applicant allegedly told D A "I'll be after [P A] for my own reasons".
(b) In December 2020 during a recorded call from custody, the applicant allegedly said "Number 1 witness has cancer, has only six months to live unfortunately. Would've loved to have caught up with him" in reference to P A.
80 D R The respondent submits that the applicant has asked his friends and partner to intimidate D R while in custody. The respondent refers to ten recorded phone calls to various friends and Ms Jolley between November 2020 and December 2020, in which the applicant referred to intimidating or harming D R unless he "shut his mouth" or words to a similar effect.
81 The respondent refers to other individuals whom the applicant has expressed animus towards, including prosecution witnesses, S T, S V, B A, N G and J D as well as the applicant's father against whom he has history of committing family violence offences.
82 The respondent submits that Mr Lovison's parents' mental health would suffer should the applicant be granted bail.
Otherwise obstructing the course of justice in any matter
83 The respondent asserts that the applicant has previously attempted to avoid detection for driving without a licence by having his vehicles transferred into Ms Jolley's name, and by parking his work vehicle elsewhere to avoid it being connected to his home.
Committing an offence while on bail and failing to surrender into custody
84 The respondent relies on the applicant's previous criminal history, including for committing an indictable offence whilst on bail, and breaching court orders and the road rules. Whilst in custody, the applicant has been recorded to have made threats and possessed a prohibited drug (unprescribed medication).
85 The respondent states that the applicant was a frequent user of illicit substances prior to his arrest, and that no supports or treatment have been proposed if he is bailed. The respondent submits that the risk of relapse into drug use is real and this increases his risk of further offending and non-compliance.
86 When interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[12] I have taken these principles into account, which include the importance of maximising the safety of the community and persons affected by crime, and the presumption of innocence and the right to liberty.
87 With respect to the exceptional circumstances test, in Re Strachan[13] Lasry J observed:
The Act does not define what is meant by 'exceptional circumstances'. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:
a) The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
b) Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
c) Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[14]
88 In determining this application I will apply the test as set out by Lasry J, as above. The application proceeded on the basis that the parties accepted that the exceptional circumstances test applied to the application.
89 If satisfied that exceptional circumstances exist justifying a grant of bail, a grant of bail must still be refused if the respondent satisfies the Court that there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[15] In considering this, the Court must again take into account the 'surrounding circumstances', as it must also be in respect of the exceptional circumstances test, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[16]
90 As above, the applicant relies on a combination of circumstances supporting the argument that he has satisfied the exceptional circumstances test.
91 As discussed, there are three offenders alleged to have been involved the murder of the victim. The applicant's co-accused have both been granted bail in this Court.[17] It is clear that parity on the question of exceptional circumstances is a matter that can be taken into account. It is well established that the grant of bail to one co-accused is a relevant consideration on the application of the other.[18] In this case it appears to me to be a significant consideration.
92 As set out above, the respondent has pointed to several differences between the circumstances of the present application and those of the co-accused. Having carefully considered the submissions on this point, in my opinion those differences are not so significant as to warrant a different approach in the applicant's case.
93 In assessing the strength of the prosecution case, the respondent has not been able to point to any factors to persuade me that the case put against the applicant has significantly different or more serious characteristics than those put against his co-accused. Indeed, as pointed out by Mr Casement, it may well be that the circumstantial case against Mr Price is stronger in many respects than that against the applicant. The applicant's co-accused Price is alleged to have a long-standing history of animosity against the deceased and allegedly a stronger motive for the alleged murder.
94 As to the argument of delay, the applicant's trial is listed to commence before the Supreme Court in the Latrobe Valley on 1 May 2023. He was arrested and remanded on 21 October 2020. While the delay on its face may not be considered inordinate, I consider that, as observed in the ruling of Lasry J in Price, this is a significant amount of time to be held in custody in advance of the eventual verdicts of a jury.[19] In my opinion, the delay in this matter reaching trial is also a significant factor to be weighed in favour of a grant of bail having regard to the surrounding circumstances, including the increased burden of remand resulting from the COVID-19 pandemic and the applicant's separation from his family including his two young children.
95 I also take into account the nature of the case against the applicant, noting the absence of direct evidence. The case appears to me to be a circumstantial one, against which it is argued there are triable issues. In all the circumstances I cannot conclude that the prosecution case is an overwhelming one, but neither does it appear to be hopelessly weak.
96 I have also had regard to the other matters put forward in support of the application for a grant of bail.
97 Taking all matters into account, and balancing the factors, I am satisfied that the applicant has demonstrated that exceptional circumstances exist that justify the grant of bail. It is to be observed that these matters are to be evaluated in combination, and whilst no one factor might be determinative, when assessed in combination, I have formed the opinion that the test has been satisfied.
98 In reaching this state of satisfaction I have also had regard to and taken into account the surrounding circumstances as the Act requires me to do.
99 The respondent bears the burden of establishing the applicant represents an unacceptable risk such that bail should not be granted.
100 In arguing that there is a risk in the present case of the potential of interfering with witnesses and endangering the safety of any persons, the respondent has relied on evidence of the Arunta calls which demonstrate the applicant's attitude towards a number of witnesses. While that evidence is certainly cause for concern, the Arunta calls relied on by the respondent date back to November and December 2020. In these circumstances I accept the applicant's submission that the landscape has shifted significantly since that time. I consider that whilst the applicant's motivation to interfere with witnesses may not be eliminated, I do consider it is likely to have been reduced by the fact that the evidence of a number of these witnesses has already been called, that a number of concessions in the applicant's favour have fallen from the evidence adduced in the s 198B hearings and committal, and that it is now much more likely that their evidence would be placed before a jury in the event of later unavailability, or their unwillingness to appear at the trial.
101 The respondent has argued that the risk in the present case is heightened by the applicant's criminal history. Although the motivation to interfere with witnesses for the purpose of perverting the course of justice may have lessened given the recent developments in this case, having regard to the applicant's history of violent offending and breaches of bail and other court orders, there remains an appreciable risk that the applicant may act in some violent or irrational manner by way of retribution. I have been particularly troubled in this case by the applicant's history of possession of unregistered firearms, which demonstrates his ability to access firearms illegally. That said, the applicant now having spent more than 21 months on remand, I consider that his outlook on contemplating future unacceptable conduct is likely to have been moderated, as he should now be well aware of the consequences of interfering with witnesses or breaching bail in any way.
102 As to the proposal regarding sureties, in all the circumstances I consider that the risk in this case can be further ameliorated to an acceptable level by the imposition of strict conditions, including a substantial surety.
103 It was put against the applicant that the amount of surety offered Mr Price's application, being in the amount of $900,000, is significantly greater than the surety offered in the present application. In the present case, although the dollar figure is much lower than that put forth by Mr Price, I nonetheless consider that the surety available is relatively substantial. The surety is put forward by two close family members, being the applicant's partner and grandmother. In her Affidavit of 2 August 2022, Doreen Brown states that she is prepared to provide a surety in the sum of $200,000, that property is her own place of residence. Further, the Affidavit of Shannen Jolley, sworn 2 August 2022, states that Ms Jolley is willing to provide an additional sum of $20,000, which sum represents the entirety of her savings. In those circumstances, I consider that the available surety amounts put forward by the above individuals represent a significant deterrent to the applicant breaching a grant of bail. The consequences of the loss of the proposed sums of money would doubtless represent devastating impacts on these persons, who are in close relationships to the applicant.
104 It was put against the applicant that, unlike in the applications of Guillerme and Price, the proposal before the Court does not contain any suggestion of treatment or supports available to the applicant to address his risk of relapse into drug abuse upon release. I have not given great weight to this submission in assessing the application as there was very limited material put before me about the need for alcohol and drug assessment. Moreover, at the hearing of the application, Mr Casement informed me that the applicant has instructed that he would be willing to engage with treatment and support services if required, and that Ms Jolley had taken some steps to securing appointments with medical practitioners to that end.
105 In summary, weighing all the factors put forward, I am unable to be satisfied that the respondent has established that the applicant represents a risk that is unacceptable. In my opinion, the risks alleged by the respondent can be moderated to an acceptable level by the imposition of appropriate conditions. In reaching this conclusion, it is to be observed that the question is not whether risk can be eliminated, but rather whether the risk can be reduced to a level at which it becomes an acceptable one to take.
106 In reaching the decision I have about this question I have had regard to, and taken into account, the surrounding circumstances as the Act requires me to do.
107 Accordingly, the Court will grant bail to the applicant.
108 I will order that Jake Brown be admitted to bail on his own undertaking and with a surety from Doreen Brown and Shannen Jolley, in the amount of $220,000 and on the following special conditions:
(a) He attend the Supreme Court of Victoria on 19 August 2022 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at [redacted], and not change that address without leave of the Court.
(c) He remain at those premises between the hours of 10:00pm and 6:00am each day for the duration of bail unless in the company of Tim Jolley for the purposes of maintaining employment.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e) He not attend within the areas of Moe and Newborough, excluding driving on the Princes Freeway through those areas. For the avoidance of doubt, the township of Willow Grove is not within the area of Moe and Newborough for the purposes of these orders.
(f) He report Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Warragul, or his or her nominee, between the hours of 8:00am and 6:00pm.
(g) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
(h) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
(i) He not contact, or cause contact, directly or indirectly, with the co-accused being Andrew James Price and Samantha Grace Guillerme for the duration of the bail period.
(j) He not contact, or cause contact by any means, directly or indirectly, witnesses for the prosecution except for the informant.
(k) He not possess or use more than one mobile phone.
(l) He provide the informant or her nominee with the phone number, IMEI number and any password or Personal Identification Number ("PIN") of the mobile phone he possesses or uses within 24 hours of first having access to that phone and notify the informant or her nominee, of any change of password or PIN of that mobile phone within 24 hours of that change.
(m) He produce the mobile phone he possesses or uses for inspection upon the reasonable request of the informant or her nominee, being an authorised member of Victoria Police.
(n) He not leave the State of Victoria.
(o) He surrender any passport he may have to the informant within 24 hours.
(p) He not attend any points of international departure.
[2] Section 13(2) of the Bail Act 1977 (Vic) provides that only the Supreme Court, or a court on committing the person for trial, may grant bail to a person accused of murder.
[3] In addition to the murder charge, Price faces two additional charges for possessing firearms.
[4] Bail Act 1977 (Vic), sch 1, item 2 (murder).
[7] Ibid, s 4A(4), s 4D(1)(a), s 4D(2)-(3) and s 4E(1)-(2).
[9] It is understood that the applicant was the respondent to FVIOs protecting his father and step-mother, which were issued on 9 December 2019 and lapsed on 9 December 2021 (affidavit in response, [66]).
[10] Re Guillerme [2021] VSC 883 (Coghlan JA).
[11] Re application for bail by Price [2021] VSC 31 (Coghlan JA).
[15] Ibid, ss 4D(1)(a) and 4E.
[17] Re Guillerme [2021] VSC 883; Re Price (No 2) [2022] VSC 441.
[18] Bchinnati v DPP (No 2) [2017] VSC 620, [70]; R v Abbott (1997) A Crim R 19 (per Gillard J), [29].
[19] Re Price (No 2) [2022] VSC 441, [31].