Re Guillerme [2021] VSC 883 (16 September 2021)

3 This application is governed by the Bail Act 1997 (Vic) ('The Act'). I am required to have regard to the guiding principles in s 1B(1) when interpreting and applying the Act.[1] This includes, amongst other things, maximising the safety of the community and those affected by crime to the greatest extent possible, and taking into account the presumption of innocence and right to liberty.[2]

4 Because the applicant is charged with the Schedule 1 offence of murder,[3] bail must be refused unless she satisfies the Court that exceptional circumstances exist that justify the grant of bail.[4] 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).[5]

5 It is well-established that in order to reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant 'must be such as to take the case out of the normal'.[6] Exceptional circumstances may be established by a single factor, or through a combination of factors, including personal factors relating to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[7]

6 In discussing factors commonly relied upon to establish exceptional circumstances, the Court of Appeal in Roberts v The Queen[8] says:

What appears to underpin the judicial recognition of these different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending...

It is the perceived need to avert or mitigate such injustice which justifies the grant of bail - provided always that the circumstances can properly be characterised as exceptional.[9]

7 If satisfied to the requisite standard at Step 1, the Court must apply the 'unacceptable risk test'.[10] That is, bail must 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 such risk is an unacceptable risk, and further that it cannot be mitigated by the imposition of bail conditions.[11] In determining this, the Court must again have regard to the surrounding circumstances.[12]

8 In summary, it is the prosecution case that, on or around 16 April 2020, the applicant and co-accused conspired to kill the deceased by luring him to a remote location, and either forcing, threatening or tricking him into ingesting a large quantity of GHB. The offending is said to have taken place against the background of mounting personal tensions between Mr Price and the deceased. Mr Brown is a friend of Mr Price, and the applicant, at least at the time of the alleged offending, was in a relationship with Mr Brown.

9 The particulars of the investigation and prosecution case have previously been set out in detail in my published reasons in Re Price,[13] as follows:

By way of background, the deceased had been in an on-off relationship with Angela O'Brien for approximately 12 years before the couple broke up in April 2019. Soon after, Ms O'Brien commenced a relationship with [Mr Price]. Despite this, Ms O'Brien continued to maintain an intimate relationship with the deceased. [Mr Price] became aware of this fact in late 2019, and he and the deceased grew increasingly hostile towards one another. During this period, it is said that the deceased would regularly send text messages to [Mr Price] detailing his sexual activity with Ms O'Brien. The pair engaged in physical altercations, including an incident in October 2019 in which [Mr Price] sustained a broken arm. On other occasions, the deceased slashed the tyres on [Mr Price's] vehicle and is suspected to have burnt down a shed at his Newborough residence.

It is the prosecution case that amidst these growing tensions, [Mr Price] offered money and property to others, including Brett Anchesci and Patrick Alan, in exchange for the murder of the deceased. [Mr Price's] close friend, Jake Brown, and Mr Brown's girlfriend, [the applicant], allegedly agreed to assist him. It is alleged that [the applicant] knew that the deceased had a sexual interest in her, and further, that the deceased was unaware of her relationship with [Mr Price] and Mr Brown. She allegedly offered to lure the deceased to a location where [Mr Price] and Mr Brown could then kidnap and murder him.

It is Mr Alan's evidence that [Mr Price] repeatedly discussed the idea of killing the deceased and disposing of the body while in Mr Alan's and Mr Brown's presence, shared his knowledge of the deceased's routines with Mr Alan, stated that the deceased was causing issues in his relationship with 'Ange' and tried to convince Mr Alan to dislike the deceased as much as he did. Mr Alan states that the applicant variously offered him $50,000, his motorbike and a 'Hummer' vehicle to kill the deceased, which he declined. He was aware that [Mr Price] had also discussed the matter with Mr Brown and that both men had access to firearms. Mr Alan stated that he was also present during conversations between [Mr Price] and both co-accused that are described in the statement of Mr Anchesci.

In his statements to police, Mr Anchesci recalls conversations in which [Mr Price] offered to pay $20,000 or $50,000 to have the deceased killed and, in particular, a conversation in early 2020 at the applicant's Haunted Hills property in which [the applicant] stated to [Mr Price] and Mr Brown that she could lure the deceased somewhere, but could not recall her intention for so offering.

During the evening of 15 April 2020, [the applicant] commenced a conversation with the deceased through the social media platform, Snapchat. Their conversation was flirtatious and they talked about the deceased obtaining drugs from [the applicant]. Unbeknownst to the deceased, she was in contact with Mr Brown during this conversation, who in turn, was in contact with [Mr Price].

At approximately 1.50am on 16 April 2020, Mr Brown collected [the applicant] from Trafalgar and drove her to Moe. It is alleged that [Mr Price] was also a passenger in the car. [The applicant] maintained contact with the deceased during their trip via text messages and phone calls and provided directions to meet him at an isolated location on Moe-Walhalla Road, Newborough.

It is alleged that the deceased rode his mountain bike (dark green, Felt brand) to that location and arrived at approximately 3.30am, at which time [Mr Price] and Mr Brown threatened or forced him into Mr Brown's Holden Commodore. [The applicant] allegedly drove the three men to the Moondarra State Park. It is at that location the prosecution alleges that the deceased was forced, threatened or tricked into ingesting a large quantity of GHB, causing his death.

[Mr Price] and [the] co-accused then left, taking the deceased's bike with them. A bike substantially matching the description of the deceased's bike was observed by witness Peter Grealy on 18 April 2020 on the corner of Becks Bridge Road and Adam View Court, Tanjil South. Mr Grealy was aware that police were looking out for the bike in connection with the deceased's disappearance. That afternoon, he observed a white station wagon attend the area and collect the bike. Another witness, Stacey Baldwin, provided CCTV footage showing a white station wagon travelling past her residence on Becks Bridge Road at a time consistent with Mr Grealy's observations of the bike being collected by the same vehicle. The bike has not been recovered.

The deceased was not heard from after 16 April 2020. A missing persons investigation was commenced. Enquiries revealed that his phone had ceased operating at approximately 3.30am on 16 April 2020. [The applicant] was the last person to communicate with him.

Investigators sought to obtain an account from [the applicant], who initially refused to provide a statement. She denied having known the deceased or having had recent contact with him. She did not allow police to view her mobile phone.

On 7 May 2020, [the applicant] provided a statement to police in which she admitted to knowing the deceased and his parents. She admitted communicating with him via Snapchat, text and calls between 15 April and the early hours of 16 April to arrange a meeting to sell him cannabis. She stated that she and a friend met the deceased on Moe-Walhalla Road where she provided him cannabis in exchange for $30. She described him as appearing under the influence of GHB at that time and said she last saw him sitting on his bike and looking at his mobile phone. She and her friend then returned to Trafalgar via Willow Grove.

[The applicant] refused to name her friend and would not give her phone to investigators. Instead, she provided what appeared to be incomplete records of Snapchat conversations with the deceased. Investigators later obtained stored communications from the deceased's phone showing the complete conversation, the content of which differed significantly from the account provided by [the applicant].

On 15 May 2020, detectives from the missing persons squad executed a search warrant at [the applicant's] Trafalgar residence. During that search, police located and seized items including a handwritten note, a mobile phone, and approximately 100ml of GHB and small quantities of cannabis and psilocybin. The handwritten note contained what investigators believe were rehearsed answers to questions that [the applicant] anticipated may be asked of her when making her statement. Her phone was subsequently analysed, revealing that it had been in the vicinity of the Moondarra State Park at the time of the alleged offending.

On 23 May 2020, investigators, together with the Victoria Police Search and Rescue Squad, conducted a search of the Moondarra State Park. The deceased's partially decomposed body was discovered in a forested area of the park. He was wearing the same clothing that he was last observed wearing on 15 April, which was now ripped and bloodied, and was holding a small bong in his right hand. His bike and mobile phone were not located. An autopsy established that the deceased had died as a result of GHB toxicity. The prosecution asserts that the deceased was a recreational drug user and would not have voluntarily ingested such a large amount of GHB as was found in his body.

Further evidence was obtained via listening devices, telephone intercepts and witness statements. A conversation between [the applicant] and Mr Brown was captured on 9 October 2020 in which [the applicant] is alleged to have expressed concern about how much information had been obtained by police. The pair reassured each other that investigators would lack sufficient proof as long as they remained silent, and discussed disrupting the investigation. They also allegedly discussed concerns as to the lack of attention being paid to [Mr Price].

It is alleged that [Mr Price] became concerned about the police investigation during this period and arranged to meet Mr Brown to discuss the matter on several occasions.

[The applicant] was arrested and interviewed on 20 October 2020. She provided a 'no comment' record of interview and was subsequently charged with the deceased's murder and remanded in custody.

On 21 October 2020, search warrants were executed at [Mr Price's] residence at 21 March Street, Newborough, his rural property at lot 1, 106 Haunted Hills Road, Newborough, and at each of the residences of Mr Brown, Ms O'Brien and Mr Brown's friend, Danial Ruddell. Police located and seized firearms and ammunition from the applicant's Haunted Hills Road property, and a pair of night vision goggles from his March Street address.

[Mr Price], Mr Brown, Ms O'Brien and Mr Ruddell were each arrested and interviewed in relation to the deceased's murder.

[Mr Price] provided a 'no comment' record of interview and was charged with the deceased's murder and possessing unregistered firearms. He was remanded in custody the same day.

In his record of interview, Mr Brown stated that he did not know anything about the murder and had been home on the evening of 15 April 2020 and the morning of 16 April 2020. He was charged with the deceased's murder and remanded in custody.

During her interview, Ms O'Brien informed police of her previous relationship with the deceased and her current relationship with [Mr Price], but denied any knowledge of or involvement in the deceased's murder. She stated that she would make a statement at a later time.

Mr Ruddell told investigators that Mr Brown arrived at his house in the early hours of one morning in April 2020 and woke him up, stating, 'you're my alibi'. He said Mr Brown later disclosed to him that he and [Mr Price] had 'got rid of' the deceased and that [the applicant] had driven the car. Mr Ruddell provided two written statements in which he set out his conversations with Mr Brown about the murder. It is his evidence that Mr Brown told him that the deceased 'deserved what he got' and when asked by Mr Ruddell 'you and Pricey?', Mr Brown said 'yep and [the applicant] was driving the car', but was unable to hear anything as she had earphones with loud music on. Ms O'Brien and Mr Ruddell were both released pending further investigation. Both Mr Ruddell and Ms O'Brien have made statements to police and will be witnesses for the prosecution.[14]

10 Subsequent to the alleged offending in this matter, the applicant was charged with driving and drug possession offences in three separate matters. She remains on bail or summons in respect of those matters, which will return to the La Trobe Valley Magistrates' Court on 17 December 2021.

11 The applicant is now 25 years of age. She was 23 years old at the time of the alleged offending. Prior to her remand, she resided with her parents in Moe and was enrolled in a Bachelor of Psychology and Social Science at Swinburne University. She had previously been residing in an independent rental property, but was evicted following the loss of casual employment.

12 The applicant has history of polysubstance use commencing at the age of 15. She reports ongoing use of cannabis and methylamphetamine since that time. Prior to her remand, the applicant had been receiving treatment for anxiety and depression via a mental health plan administered by her general practitioner.

13 The applicant has a criminal history commencing in 2015, which includes dispositions for dishonesty and drug-related offences (trafficking, possessing and using), and contravening a community correction order. She has never before been in custody.

14 The applicant relies upon the following matters in combination to demonstrate the existence of exceptional circumstances justifying the grant of bail:

15 The strength of the case against the applicant has been mostly disclosed, with the possibility of some portion of the evidence remaining outstanding, although I expect that it is not a great deal. The informant has given evidence that as far as she is concerned, almost the entire balance of the hand up brief will be available to be provided by the end of the month.

16 It is clear that the applicant has made no admissions in relation to the allegations against her, except in a limited way in some telephone calls which have been recorded during her period in incarceration. These indicate that she did play a part in luring the deceased into the hands of those who killed her but she has made no admissions greater than she anticipated that he would be assaulted, or potentially seriously assaulted - but not murdered.

17 The applicant has a limited criminal history and the matters which are outstanding are not of themselves particularly serious.

18 The applicant is supported by her parents, Lloyd and Pamela Guillerme. If granted bail, she proposes to return to living with them at [redacted].

19 In a letter dated 6 August 2021, the applicant's mother states that she and the applicant's father are eager to have the applicant return home to them, and will provide support to her in both a practical and emotional capacity. They will encourage and assist her to abide by any conditions of bail imposed, including in relation to her mental health plan, and drive her to appointments as required.

20 Ms Guillerme notes that she and her husband have remained in regular contact with the applicant whilst she has been in custody, and reports that they have observed positive changes in her during that time. Several lengthy conversations between the applicant and her mother have been provided as part of the material on this application.

21 The applicant had only recently commenced her second year of tertiary studies prior to her remand. She notes that these studies have been suspended since that time, albeit conversely submits that she remains engaged with them. Any present engagement does not seem to be supported by the written material, but does not, of course, exclude the possibility of future engagement. She has however, otherwise participated in various courses whilst in custody, including in relation to personal development.

22 Without this matter falling within the definition of 'special vulnerability',[15] it should nonetheless be noted that the applicant is a young woman with a history of poor mental health. Prior to her remand, she was receiving treatment for depression and anxiety.[16]

23 Whilst in custody, she has engaged psychological work through individual sessions with provisional psychologist, Rose Tingate from Forensicare. Two letters from Ms Tingate were provided. Those letters were helpful to the applicant, in that they showed that she has a much better commitment towards doing something about her problems than she might have had previously.

24 The applicant further has available to her, bail support through the Court Integrated Services Program ('CISP'). In a report dated 8 September 2021, Traci Hammond, Court Support Services Case Manager, confirmed that the applicant has been assessed as suitable for case management in the community through CISP. The focus of treatment would be on the applicant's mental health challenges and substance use history, which in my view of the matter are related in any event. The applicant appears, and has been reported as being, eager to receive treatment and support in relation to those issues.

25 To this end, an appointment with the applicant's general practitioner has been booked on 17 September 2021 for a mental health review and referral to psychological counselling and psychiatric assessment is relevant. If granted bail, the applicant would also be referred to an accredited worker for drug and alcohol assessment and treatment, and directed to specific trauma supports as required. The applicant's first case management appointment is scheduled to take place on 20 September, via a telehealth platform due to COVID-19.

26 The applicant's entire period on remand has been in one or other version of pandemic conditions. This has added an extra layer of stress and isolation to her experience of custody. Whilst she has endeavoured to maintain regular contact with family members and friends, her ability to do so has fluctuated somewhat depending on COVID-19 restrictions.

27 The Supreme Court and the Court of Appeal have recognised that the COVID-19 pandemic is a matter to be taken into account in determining in whether or not exceptional circumstances exist in relation to the grant of bail.

28 The applicant has been in custody since 20 October 2020. The matter is next listed for a seven day committal hearing to commence on 15 November 2021.

29 There will be a delay in the matter which will mean the trial would not be listed until either the fourth term of 2022 or the first term of 2023, and, although for the crime of murder that may be not an exceptional delay and of itself would not amount to exceptional circumstances, a two year delay for somebody on remand is nonetheless of itself quite significant.

30 The applicant has ties to the jurisdiction, and has always lived, attended school and worked in the Gippsland area. It has not been suggested on behalf of the respondent that she is a risk of absconding whilst on bail.

31 The respondent opposes the applicant on the basis that the applicant has not demonstrated exceptional circumstances that justify the grant of bail. It was submitted that none of the circumstances relied upon by the applicant either alone or in combination are capable of reaching this threshold.

32 It was accepted on behalf of the respondent that the fact that I had found in the case of the co-accused Price, that exceptional circumstances existed, it was probably reasonably likely that I might find exceptional circumstances in this case, and I do so. I note that I ultimately refused bail in that case on the basis that Price was an unacceptable risk of in particular interfering with witnesses.

33 The respondent submitted that there were matters that ought lead me to conclude that the applicant was an unacceptable risk of, in particular, interfering with witnesses whilst on bail. There were a number of matters put and related to the matters involving the applicant at the time of her arrest which, as has already been indicated, is some 11 months ago.

34 I would be inclined to the finding that, given the relationship she had with the people who are her co-accused and others in relation to both drug using and ultimately her involvement in the alleged offence, that her life at that time was getting towards being out of control. The matters put on behalf of the applicant are significant in relation to matters that she discussed about potential threats and identification of the place of residence of one particular witness and that material being passed on to Brown.

35 I am prepared to conclude in relation to those matters that she was caught up in a series of events that led her to get involved in continued involvement in those matters in a way which was harmful to her and potentially harmful to others. But I am satisfied that she now has a determination to do something about those matters, in particular her drug dependence, having been drug free for the last 11 months.

36 It goes without saying, that as part of the respondent's submissions, reliance was placed on the seriousness of the offending and this is undoubtedly a piece of very serious offending. The extent to which the applicant can be shown to have been actively involved in the most serious offending, that is murder, is a matter that is yet to be particularly resolved.

37 It has been pointed out of course, that in relation to the various claims that the applicant has made about non-involvement in these matters, she has made certain concessions in conversations she had principally with her parents, that she was involved. Putting it in the words that she used, that all she thought was that, 'He would get the shit kicked out of him', and later, suggested that her role was only that of an 'accessory', a legal opinion that may be subject to dispute.

38 There is some debate from the respondent's point of view about whether the applicant was enrolled in tertiary studies prior to her remand. It was suggested the records show she had not completed any units in the course that she was enrolled in, but there were certainly records that she had enrolled in the course. Whether she had fully completed a unit or not is not really the issue. I understand how that matter is put on behalf of the respondent.

39 The respondent submits that there is nothing really about the delay which would make this a case in relation to which exceptional circumstances have been made out. The principal opposition, as I have already pointed out, by the respondent however, is to the potential of interfering with witnesses and perhaps obstructing the course of justice.

40 The matters put were that the applicant had deleted her phone data prior to making a statement to police, allegedly in order to destroy incriminating evidence. The applicant, when given an opportunity to contact a solicitor after her arrest, instead contacted her mother and attempted to have her alert Brown of her arrest. It is submitted that was done so that he could destroy incriminating evidence. It should be noted about that however, that her arrest was some seven months after the alleged offending, and it was likely in any event that her arrest would become publicly known in a relatively short time after her arrest, and particularly known to her family.

41 There was a telephone call between the applicant and Mr Brown discussing how the applicant could physically harm her former employer, including by burning her or stabbing her with a pen in relation to a Fair Work claim. It does not seem to me any action was taken in relation to that alleged threat or plan and I take that call to be largely bravado.

42 Of more concern however, was evidence of the applicant and another associate discussing making contact with the proceeding witness Allan, which was captured on a listening device on 10 October 2020 and the applicant then shortly afterwards informing Brown of the whereabouts of the witness. The words used in conversations are possibly, but not inevitably, capable of interpretation that it was likely that some harm might come to the witness.

43 I am satisfied however, that both exceptional circumstances have been made out and that, although I accept that there is a risk of the applicant potentially committing further offences whilst on bail, I think that risk can be reduced to being a not unacceptable risk by the imposition of appropriate conditions. I take the same view about the risk of interfering with witnesses now that she is separated from and can remain separated from her previous associates.

44 Her two principal associates in that regard are still in custody. Price's bail has been refused and I do not think Brown has made any application for bail at this stage. The applicant will simply have to understand that the condition of not having anything to do with her co-accuseds is a very serious one. Not having anything to do with any of the witnesses is a very serious one. And that in relation to any of those matters I would not hesitate to revoke her bail if she in any way breached any of her conditions of bail.

45 The Court is satisfied that exceptional circumstances exist that justify the grant of bail and that it has not been shown that the applicant is an unacceptable risk, for the reasons announced this day.

46 The applicant will be admitted to bail on her own undertaking and on the following special conditions:

(a) She attend the Magistrates Court of Victoria at Melbourne on 15 November 2021, and then surrender herself, 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 herself into custody.

(b) She reside at [redacted], in Victoria, and not change that address without the leave of the Court.

(c) She remain at those premises between the hours of 10:00pm and 6:00am each day for the duration of bail, except if in the company of one or both of her parents.

(d) She present herself 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) She own or possess one mobile phone and provide that phone number to the Informant and that, if requested to do so by a member of Victoria Police, she provide any password to enable the search of that phone.

(f) She abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.

(g) She provide a sample of her breath or oral fluid for testing if required to do so by any member of Victoria Police.

(h) She engage with the Court Integrated Services Program ('CISP') and obey all lawful directions of CISP and undertake any treatment directed by them and attend any appointment arranged by them or in conjunction with them.

(i) She not contact, directly or indirectly, the co-accused, being Jake Brown and Andrew Price for the duration of the bail period.

(j) She not contact, directly or indirectly, any witness for the prosecution, except the informant.

(k) She not leave the State of Victoria.

[1] The Bail Act 1977 ('the Act') s 1B(2).

[6] Re CT [2018] VSC 559 [64] (Champion J).

[8] Roberts v The Queen [2021] VSCA 28.

[9] Ibid [47]-[48] (Maxwell P, Niall and Emerton JJA).

[13] Re Price [2021] VSC 31.

[15] The Bail Act 1977 (Vic) s 3AAAA.

[16] Affidavit in Support, Exhibit SJP-8.