Re Grotheer [2010] VSC 284 (17 June 2010)

2 The Crown alleges that Mr Nightingale had misappropriated a sum of $40,000, which had been entrusted to him on 21 October by Puglia and Bishop, and with which he was to purchase a quantity of drugs on their behalf. Accordingly, the four accused drove by vehicle to Nightingale's house at Corio at about 5.30 pm on 24 October, in order to demand repayment to them of the money so misappropriated by Nightingale.

3 When they arrived, Mr Nurdag was carrying a loaded .22 firearm. The Crown alleges that the four accused alighted from their vehicle and confronted Nightingale, demanding repayment from him of the drug debt. In the course of that confrontation, Nightingale was shot in the groin by Nurdag, and he later died as a result of blood loss caused by that wound.

4 There are competing versions as to who fired the first shot. The prosecution alleges that it was Nurdag who did so, after which Nightingale went inside his home and took hold of a 12 gauge double barrel shotgun. Thereupon, the applicant and his co-defendants returned to their vehicle. Nightingale fired a shot at the vehicle wounding Puglia in the left thigh, and as a result of that shot both the applicant and Bishop received shrapnel wounds to their backs.

5 On the other hand, in their records of interview, the applicant, Puglia and Bishop each maintain that it was Nightingale who fired the first shot. In his record of interview, the applicant told the police that after Nightingale fired that shot, he heard a shot from behind him, whereupon Nightingale went into the house, and then fired another shot at them.

6 Section 4(2)(a) of the Bail Act 1977 provides that an accused charged with murder shall not be granted bail, unless the court is satisfied that exceptional circumstances have been established by the applicant for the making of an order for bail. The Act does not define exceptional circumstances. Clearly, however, to be exceptional the circumstances established by the applicant must be out of the norm and particularly unusual.

7 It is accepted that those circumstances may, in a particular case, consist of one single factor or, alternatively, may be constituted by a combination of factors, each of which, taken individually, would not be held to be exceptional.

8 In her affidavit in support of this application, the applicant's solicitor points to a number of factors which are relied upon by the applicant in this case. Mr Richter of Queen's counsel, who appeared for the applicant, accepted that none of the circumstances pointed to in that affidavit, when taken individually, could be characterised as exceptional. However, he submitted that the combined weight of those factors constitute exceptional circumstances. In particular, he placed emphasis on the expected delay before the case comes on for trial, and what he put was the lack of strength of the Crown case, which he characterised as being weak.

9 Before I turn to those two major factors relied on by Mr Richter, I should mention the other matters which are pointed to in the affidavit of the applicant's solicitor.

10 Those factors are as follows. Firstly, that the applicant has a lack of relevant criminal history. Secondly, that the applicant has not been in custody previously. Thirdly, that he has an unblemished bail history. Fourthly, that he has support from his parents and employer. Fifthly, that both his parents suffer from ill health which has been exacerbated by the stress resulting from the applicant being in custody. Sixthly, the applicant's father can provide a surety for a substantial amount. Seventhly, as a matter of parity, the co-accused Puglia was granted bail by T Forrest J on 21 May 2010. Eighthly, it is said that the applicant has cooperated with investigating police officers.

11 I shall turn briefly to those matters, the first six of which relate to matters personal to the applicant himself. The applicant is 29 years of age and before his arrest he resided in Highton and he was then employed. His criminal history is indeed quite limited. In 2004, he received a community based order for dealing with property suspected of being the proceeds of crime. In 2005, he was fined for failing to comply with that order and he also has had two separate court appearances for traffic offences.

12 The applicant's parents reside in Geelong, and if the applicant is released it is proposed that he would live with them. His father will be able to provide a surety of up to half a million dollars secured on the family home. The applicant's employer, Austrak, has provided a reference, attesting to the fact that the applicant is a good employee, and that further employment would be available to him in his previous capacity of fabricating concrete sleepers for railways.

13 As Mr Richter properly concedes, those factors, taken alone, could not be said to be exceptional. I do not consider that taken in combination, if they were they the only factors pointed to, they would be exceptional. It is a sad fact that a number of persons who are charged with murder have few if any previous convictions, that they have the support of parents or family, and that they have a prospect of being employed if released. None of those factors, either singly or taken together, are so unusual as to be properly characterised as exceptional.

14 The medical material, which has been put before me, indicates that each of the applicant's parents and his sister have medical issues. The applicant's father has a history of ischaemic heart disease, his mother has suffered from anxiety and depression since the applicant's arrest in October last year, and his sister also suffers from anxiety and depression. I accept that the condition of each of those three family members has been adversely affected by the circumstances of the applicant's arrest and his incarceration. I expect that those conditions might to some extent be alleviated if he were released on bail.

15 However, it is not uncommon, and indeed it is understandable, that the arrest and detention of an accused person for a serious criminal offence such as murder does involve substantial stress, and indeed distress, to close members of an accused's family. I do accept that it is not so common that the effects of the detention of an accused have an adverse effect on their health, nevertheless I do not consider that those effects which are set out in the material are so unusual as to be exceptional.

16 The next question concerns the issue of parity with the co-accused Puglia. As I stated, Mr Puglia was granted bail by T Forrest J on 21 May 2010. I have read the ruling of T Forrest J, and it seems clear from His Honour's ruling that there was one principal exceptional circumstance, which justified the grant of bail, namely, that Puglia suffers from a very serious chronic medical condition, ulcerative colitis. The evidence was that that condition is incapable of being cured, it is a debilitating condition and that it required careful ongoing medical management. His Honour accepted that while the prison authorities did their best to assist Mr Puglia, nevertheless he could not be afforded the same flexibility and closeness of medical attention which his condition required. Thus, in those circumstances there were particularly exceptional circumstances that justified the release of Mr Puglia on bail.

17 Mr Cummins, a forensic psychologist, has provided a report indicating that the applicant does suffer from reactive depression and anxiety which were triggered by the events of 24 October and his arrest. Mr Cummins supports his release on clinical grounds, and has emphasised that it is important that the applicant available himself of appropriate psychological treatment.

18 It is clear from Mr Cummins's report that the condition suffered by the applicant could not be said to be anywhere near as serious as Mr Puglia, and nor does Mr Richter rely on it as an exceptional circumstance standing alone.

19 In terms of his cooperation, the applicant did participate in a record of interview and in a re-enactment, that he provided forensic samples. Those actions, while commendable, are not unusual. Other cooperation is referred to in both affidavits sworn by the applicant's solicitors. Some of that cooperation is put in issue by the prosecution. I do not consider, in any event, that that cooperation, to the extent that it is so attested to by the solicitor, is exceptional.

20 I turn then to the two main points relied on by Mr Richter. The applicant was arrested on 28 October 2009. The committal has been set down for an expected hearing of two weeks in July of this year. If the applicant is committed for trial, it is expected that the trial of he and his co-accused would take place in the second half of 2011, with an estimated duration of the trial of three to four weeks. Thus, it is likely that there will be a delay of just under two years between the date of the applicant's arrest and his trial. That delay is regrettable, however, the recent experience of this court is that such a delay is not out of the ordinary. Indeed, any trial after about two years is very much the norm. Any trial occurring substantially in excess of two years, however, could be characterised as being a matter which would carry quite some weight on a bail application.

21 That said, I turn to the other matter relied on by Mr Richter, namely, the strength or otherwise of the Crown case. Mr Richter correctly characterises the Crown case against the applicant as one based on the concept of extended common purpose. He has submitted that in that way the Crown case against his client is particularly weak. He has submitted, and I accept, that in order to convict the accused the prosecution, must prove beyond reasonable doubt that he knew that Nurdag had the weapon in his possession while they travelled to Mr Nightingale's house on the evening of the alleged murder.

22 There is no direct evidence that the applicant knew that Nurdag had the weapon. Mr Richter has pointed to descriptions of the weapon given by a number of witnesses, who say that it was either a handgun or looked like a sawn off weapon.

23 In response, Ms Piekusis, who appears on behalf of the Crown, submitted that the Crown would rely on a number of matters supporting an inference against the applicant that he knew that Nurdag did have in his possession a weapon while the were en route to the scene of the killing.

24 In particular, she points to the fact that the applicant and his co-accused were travelling to that place in order to collect a drug debt. Secondly, she points to the fact that before they so travelled there, there was a meeting between the four co-accused to plan what they were to do. Thirdly, she points to the numbers of persons who were recruited to go to the premises of Nightingale to, as it were, add muscle to the effort to enforce the debt. She points to the fact that the accused travelled in the same vehicle as Nurdag when they went to Nightingale's place. Finally, she submits the Crown will rely on the fact that a number of important aspects of the description given by the applicant in his record of interview of the shooting of Nightingale are inconsistent with the Crown evidence, and particularly with the crime scene analysis.

25 In particular, she submits that the Crown will be in a strong position to repudiate the claim by the applicant that it was Nightingale who shot first, and secondly, the Crown will be able to establish that the applicant gave a false description of where Nightingale was when he was shot. She will rely on an inference that the accused man deliberately told lies in his record of interview in order to avoid culpability for the firing of the shot by Nurdag.

26 As is common in applications of this type, I only have limited materials available to me with which to assess the Crown case. For the purpose of that assessment, Mr Richter cross-examined the informant, Senior Detective Wallace. Notwithstanding the assistance of Mr Wallace, it is still difficult for me to make any realistic assessment of the strength or otherwise of the Crown case against the applicant.

27 In applications such as these, courts are ordinarily cautious in venturing a view as to the strength of the Crown case. However, it is a factor relied on by Mr Richter and it therefore behoves me to make some assessment of the case against the applicant.

28 In his ruling in the application for bail by Mr Puglia, T Forrest J formed the view that the Crown case based on the doctrine of extended common purpose, while not overwhelmingly strong could not be described as weak. He ventured the view that Mr Puglia had some prospects of an acquittal which were not fanciful. In my view, there is some merit in the argument made by Mr Richter that the case of the Crown against the applicant may not be as strong as the case against Puglia. There is no evidence that he was involved in the drug deal with Nightingale, and there is no evidence that he was involved in acts of intimidation which had been carried out against Nightingale before 24 October.

29 Nevertheless, on the materials which have been put before me, I could not describe the Crown case at this stage as being weak. I do accept that the applicant does have some prospects of an acquittal, and perhaps that those prospects of acquittal are better than those of Puglia. However, those prospects are not so markedly stronger as to on their own constitute exceptional circumstances.

30 As I stated, the application for bail was made on the basis mainly of delay and the lack of strength of the Crown case, but also was made on the basis of the combined weight of all the factors that have been referred to both in the affidavits of the applicant's solicitors and in Mr Richter's submissions. Nevertheless, in the end I am not persuaded that exceptional circumstances exist in this case such as to justify the grant of bail. When the factors are considered together, they are stronger than those in a number of other cases, but not so strong as to properly take this case out of the norm so as to justify description of them as exceptional.

31 I should add that I make that assessment, and form that view, based on an estimate that a trial in this case will take place in the second half of next year. As I stated, a delay of two years, while it is regrettable, is not such as with a case of this type to make it an exceptional delay.

32 However, if the trial date were to be delayed beyond that, for reasons other than which cannot be laid at the feet of the applicant, then the question of the bail of the applicant may need to be reconsidered. In saying that, I do not, of course, bind any future judge who might hear such an application. However, I do place on the record that my rejection of the applicant's application in this case is based on the expectation that the trial in this case will take place in the second half of next year. However, for the reasons I have just stated, I refuse the application for bail on behalf of Matthew Grotheer.