Re Lee [2016] VSC 343 (20 June 2016)

2 In granting bail, the Court was required to be satisfied that exceptional circumstances existed to justify the grant of bail and to then consider whether, notwithstanding the existence of exceptional circumstances, there was an unacceptable risk that if released on bail the applicant would do any one or more of the things referred to in s 4(2)(d) of the Bail Act 1977, including interfere with witnesses or otherwise obstruct the course of justice.

4 By reason of the offence with which the applicant is charged, s 13(2) of the Bail Act required the Court to refuse bail unless satisfied that exceptional circumstances existed to justify the grant of bail.

5 The Crown submitted that the requirement to make out exceptional circumstances had not been satisfied in this case.

6 I found that exceptional circumstances had been made out.

7 It has been said that in order to establish exceptional circumstances, the applicant for bail has to establish circumstances 'exceptional to the ordinary circumstances that would otherwise entitle the applicant to bail'[1] or that 'take the matter so far beyond the normal situation that they can be regarded as exceptional'.[2] However, it is now well established that exceptional circumstances may exist as a result of the interaction of a variety of factors which individually might not be regarded as exceptional. What is ultimately of significance is that, viewed as a whole, the circumstances can be regarded as exceptional.[3]

8 Among the factors that have been found to be relevant to assessing whether there are exceptional circumstances are the strength of the Crown case (where it may be sensibly assessed), the question of delay to committal and/or trial, along with such matters as family support, the availability of stable accommodation and employment, the applicant's role as a carer or provider for other family members, any health problems and the absence of previous convictions.[4] The absence of matters constituting unacceptable risk and the fact that an applicant is an acceptable risk have also been taken into account in assessing whether there are exceptional circumstances.[5]

9 The applicant put forward the following matters which it said, in combination, constituted exceptional circumstances:

(a) An assessment of the prosecution case against the applicant for murder as weak;

(b) The personal attributes of the applicant, including his family obligations and family support;

(c) Delay between the applicant's arrest and the likely trial date, which while not inordinate, is significant in the circumstances of this case; and

(d) The fact that the applicant is an acceptable risk of the matters specified in s 4(2)(d) of the Bail Act, particularly with the imposition of strict bail conditions and the requirement for a substantial surety.

11 The Crown alleges that the deceased died as a result of a brain injury caused by a punch to the side of the head delivered by the applicant. The punch took place in the context of a brawl involving a large number of people outside a bar in Diamond Creek.

12 Although the applicant has been charged with murder, Victoria Police is still investigating the death of Mr Cronin. The brief of evidence has not yet been served. Detective Senior Constable Scharper gave evidence that there are still people to be interviewed, in particular, people from the Diamond Creek Football Club, and that CCTV footage from additional camera angles is yet to be obtained, analysed and collated to ascertain more about the behaviour and actions of the deceased and applicant.

13 Counsel for the applicant told the Court that as the Crown case against the applicant for murder is presently understood, causation and intention are in issue.

14 As the applicant is charged with murder, the Crown must satisfy the jury beyond reasonable doubt that the punch that caused the death of Mr Cronin was delivered with the intention to cause at least 'really serious injury'. The applicant submits, in substance, that even if causation could be established, the prosecution case would found no more than a charge of manslaughter, in which case he would prima facie be entitled to bail pursuant to s 4(1) of the Bail Act. Moreover, he submits that the available evidence shows that the applicant acted in defence of another, which would be a complete defence to both murder and manslaughter.

15 The Court must exercise a substantial degree of caution in assessing the strength of the prosecution case at early stage such as this. I therefore emphasise that the assessment that I make as to whether the Crown case is weak is based purely on my preliminary assessment of the very limited evidence available (essentially, one piece of CCTV footage) and that it is made only for the purposes of this application.

16 In his affidavit made on 7 June 2016 in opposition to the application for bail, Jason Ong, a solicitor for the Office of Public Prosecutions who has the conduct and care of the matter, summarised the allegations made against the applicant and some of the available evidence upon which the Crown proposes to rely in prosecuting the applicant for murder.

17 The events in question occurred at the Windy Mile Bar in Diamond Creek on the night of 16 April 2016. Both the deceased and the applicant were present at the Bar that evening, although they were not known to each other. According to the Crown, the applicant was in the company of friends predominantly associated with the Diamond Creek Football Club. Prior to going to the Bar, the applicant had been at the Diamond Creek Football Club, drinking with friends. His father, Graham Lee, had been inducted as a life member of the Diamond Creek Football Club on that day. The applicant and his friends left to attend a Rodney Rude concert in Doncaster and then made their way in a maxi-cab to the Windy Mile Bar, arriving at approximately 10.00pm. The deceased was already there with a group of his friends.

18 The Crown alleges that at approximately 11.00pm, a fight broke out between a number of persons outside the Bar. The deceased was in the vicinity of the brawl, but was not taking part in the fighting. He tried to help a friend ('Hopkins') by holding him back from the fighting and guiding him away from the brawl. While the deceased was holding Hopkins, he received a punch to the right temple. The Crown alleges that the punch was one of a series of three punches thrown by the applicant. The deceased later told his friends that he had been punched from behind and had not seen his attacker.

19 There is CCTV footage of these events. I have been provided with some of that footage and I have looked at the two minutes which appear to show the applicant assaulting Hopkins and the deceased. That footage was also played in Court by counsel for the applicant in tandem with his commentary on what could be seen.

20 Although it is relatively easy to identify each of the applicant and the deceased, it is not easy to see exactly what was going on. The Crown and the applicant have put forward different versions of what the CCTV footage shows.

21 According to the Crown, the CCTV footage shows, among other things, the following:

(a) The deceased was at no stage involved in the brawl;

(b) The applicant was standing to one side, observing the brawl. He then walked towards the deceased and Hopkins and started to punch them;

(c) The applicant struck the deceased, who was fully engaged in physically extricating Hopkins from the brawl, while the deceased was unaware of his approach;

(d) The applicant's first punch connected with Hopkins' head, rocking it sideways, and a second punch connected with the right temple of the deceased, rocking his head in a sideways motion;

(e) After being struck, the deceased remained standing and continued with his attempts to extricate his friend from the brawl;

(g) After the assault on the deceased, the applicant repositioned himself to launch a similar blow from behind to another patron. A third attack was prevented by the physical intervention of a venue manager.

22 The Crown therefore alleges that the assault upon the deceased was unprovoked and the deceased was not positioned in a way that enabled him to see the applicant approach from his right side. It alleges that the CCTV footage shows the applicant walking towards the deceased and his friends in a 'calculating' manner, while the deceased was vulnerable and in a defenceless position. It alleges that the applicant's actions show a propensity to harm the deceased, who was vulnerable and unprotected at the time.

23 According to the Crown, CCTV footage subsequently depicts the deceased guiding another friend from the affray. It also depicts the deceased re-enacting the punch that he received by motioning with his right fist to his right temple. The deceased can be seen rubbing his right temple, consistently with having received a blow to that part of his head.

24 Mr Ong's affidavit details what happened after the events shown on the CCTV footage. The deceased and his friends left the Bar and walked back to the house of one of them. The deceased started feeling unwell, complaining of a headache, and fell asleep on the couch. His health deteriorated rapidly. He vomited and had a seizure prior to losing consciousness. Paramedics attended the premises and the deceased was conveyed to the Royal Melbourne Hospital, arriving at approximately 3.25am in a critical condition. A scan revealed a significant bleed on the right side of his brain. Further testing conducted on 17 April 2016 revealed no brain activity and, at 8.25pm on that day, he was pronounced dead.

25 For his part, the applicant submitted that the CCTV footage shows the following:

(a) The applicant exited the front door of the Bar and stood out the front watching the altercation with others;

(b) The deceased exited the Bar through the same door and walked past the applicant;

(c) Hopkins was engaged in a verbal altercation with two men wearing baseball caps;

(d) The deceased tried to intervene and pushed Hopkins away from the two men;

(e) The deceased let go of Hopkins when they are a short distance away, but one of the two baseball cap wearing men walked around another group of men to pursue Hopkins, and another altercation ensued;

(f) The second man in a baseball cap then came over the top of a group of men and punched Hopkins, leading to an exchange of punches with Hopkins;

(g) The deceased again grabbed Hopkins to remove him, this time from behind, as Hopkins threw a punch at the second man in a baseball cap;

(h) The applicant then moved forward and threw two quick punches, the first of which hit Hopkins, the second of which hit the deceased;

(i) There was an affray involving the applicant and a number of men (excluding the deceased and Hopkins);

26 On this basis, the applicant raised a number of matters pointing to what he contended were the weakness of the Crown's case. He submitted that the first blow delivered by the applicant must be assessed as being directed to a person - Hopkins - who had already been violent to the applicant's friend. The applicant first struck the aggressor - Hopkins - and the positioning of the deceased and Hopkins then changed, causing the deceased rather than Hopkins to be struck by the second blow. This was said to be the important difference between the applicant's version of what the CCTV footage shows and that of the Crown. The applicant submitted that it would be open on the evidence for a jury to find that the applicant struck Hopkins and the deceased in defence of another, namely, the man in the baseball cap.

27 As to the Crown's burden of establishing the ingredient of murderous intent, the applicant submitted that, in circumstances where the deceased was struck immediately after Hopkins and while in close proximity to him, the Crown will have difficulty excluding the possibility that the applicant intended to cause less serious harm than 'really serious injury'. The applicant did not know the deceased and had not had any earlier altercation or encounter with him from which a pre-existing motivation or intention to cause at least really serious injury could be inferred. Further, the applicant is able adduce evidence of his good character, which may also negate an inference that he intended to kill or cause really serious injury when he threw the punch in question.

28 Assuming that causation can be established, the Crown bears the burden of establishing that in delivering the fatal blow to the deceased the applicant acted with murderous intent. It must be established that he intended to cause at least 'really serious injury'. An intention to cause 'injury' or even 'serious injury' is insufficient.

29 In my view, establishing that a punch was delivered with murderous intent is inherently difficult when delivered to a stranger in the circumstances of a pub brawl involving a large number of persons who may or may not have been genuinely in dispute with one another. There is no evidence of any connection between applicant and the deceased other than that they were both involved in the brawl - in the case of the deceased, as a good Samaritan endeavouring to extricate his friend from the affray.

30 Notwithstanding his active participation in the brawl, the applicant is in a position to adduce plentiful evidence of his good character, which may also be relevant to whether a murderous intent can be inferred. He has no previous criminal history. A significant number of people from different parts and periods of his life have attested to his good character. Many of these referees express shock and disbelief at the suggestion that the applicant is a violent offender.

31 As a result, I have formed the preliminary view that the element of murderous intent may be difficult to establish in this case. This apparent weakness in the Crown case contributes to establishing exceptional circumstances justifying the grant of bail.

32 The applicant relied on a number of personal attributes, in combination with other matters, to establish exceptional circumstances.

33 The applicant is 33 years old and has no criminal history. He has had a strong work history - basically uninterrupted - since leaving school, and he is currently employed by General Cranes as a rigger/crane driver. His employer indicated that his job would be waiting for him upon his release from custody.

34 The applicant also has a very stable and supportive home life. He is married to his partner of ten years and they have an eight month old child. He and his wife own their home and have recently bought an investment property. The applicant is the sole bread-winner in the household. His wife is studying part-time to become a teacher and her time is otherwise occupied with caring for their young son.

35 The applicant enjoys the strong support of his parents, who are, by all accounts, pillars of the local community, having volunteered for a legion of community organisations over the years. His mother is a volunteer with Whittlesea Shire Council as a mentor for migrant mothers and his father is a former CFA volunteer. They have also provided character reference for the applicant and have agreed to stand as sureties for the undertaking of bail using the equity in their family home.

36 These matters personal to the applicant are relevant to the question of exceptional circumstances in two ways. First, they show the applicant to present little risk of flight or, indeed, of offending while on bail. Secondly, they demonstrate the particular hardship in the applicant being held custody for over a year while awaiting trial, both as a new father and as the sole income earner for his family.

37 I consider that these personal matters, in combination with other factors, give rise to exceptional circumstances justifying the grant of bail.

38 A committal mention is listed in mid-September 2016 and the committal hearing is anticipated to take place in December 2016. The applicant submitted that a trial is unlikely to occur before mid-2017. This seems to me to be a fair assessment of when the trial is likely to take place. It means that the applicant's anticipated time in custody awaiting trial is 12 to 18 months.

39 On its own, unreasonable or inordinate delay can constitute exceptional circumstances; in combination with other considerations, any delay can constitute exceptional circumstances.[6]

40 In this case, while the delay is not inordinate, it is significant, particularly in the light of my assessment of the strength of the Crown case and the fact that the applicant has never been incarcerated before, has a new baby and is the sole bread-winner for his wife and son.

41 Given these circumstances, a delay of 12 to 18 months is a factor that, in combination with other factors, gives rise to exceptional circumstances justifying the grant of bail.

42 The Crown also opposed the application for bail on the grounds that there was an unacceptable risk that, if released on bail, the applicant would:

43 The Crown did not raise any concern that the applicant would fail to surrender himself into custody to answer bail or endanger the safety or welfare of members of the public. The three types of risk referred to reflected the same concern. In substance, the Crown submitted that there was a risk that the applicant would interfere with witnesses. The Crown relied on the fact that there had already been an attempt to interfere with witnesses in this case. That interference took the following form.

44 On the evening of 19 April 2016, the police obtained a statement from an eye-witness to the brawl, Terrence Jeremaia. Later that evening, a friend of Jeremaia encouraged him to go to a nearby park to meet with the applicant's brother, Brendan Lee. When Jeremaia got to the park, Brendan Lee was in the company of three other men, one of whom was the applicant's brother-in-law and another was Brendan Lee's boss.

45 Jeremaia made a statement to the Homicide Squad on the following day, 20 April 2016, describing what had occurred at that meeting. That statement was not provided to the Court, but the Crown alleges that as a result of the meeting with Brendan Lee, Jeremaia believed that he was being asked to lie to protect the applicant and that, through Brendan Lee, the applicant and other unknown men were attempting to intimidate him. At the meeting, Jeremaia was told not to cooperate with police investigators. When he said that he had already given a statement to the police, he was provided with the business card of the applicant's lawyer and told to meet with her to retract his police statement and provide a new version of events.

46 On 21 April 2016, Brendan Lee was arrested for the offence of attempting to pervert the course of justice and a search warrant was executed. He was conveyed to the Spencer Street Police Complex and then brought before the Magistrates' Court, where he was remanded in custody to appear at Melbourne Magistrates' Court on 4 May 2016. On that day, Brendan Lee pleaded guilty to the charge of hindering police.

47 Mr Ong deposed that this matter will be further investigated in the course of a wider attempt to locate witnesses. As it stands, the murder investigation is ongoing. Further witnesses will be interviewed about their observations of and involvement in the affray. According to Mr Ong, investigators anticipate that several witnesses will be reluctant to come forward and make statements as a result of the actions of Brendan Lee.

48 Brendan Lee's offending was serious. He has been dealt with by the Court and served a brief term of imprisonment. He is not a person with whom the applicant should be free to associate while on bail. However, there is no evidence that the applicant was involved in the attempt to interfere with the witness Jeremaia. He was in custody at all relevant times. Mr Scharper, who expressed the concern that the applicant's admission to bail might give rise to interference with witnesses, conceded that there was no connection between the applicant and any interference with witnesses or potential witnesses. Indeed, the concern expressed that the applicant might somehow have been involved in the attempt to interfere with the evidence of Jeremaia was not so serious as to cause Mr Scharper to go to the trouble of checking whether the applicant made contact with his brother or any other person involved while he was in custody during the relevant period.

49 There is no evidence that the applicant was involved in the attempt to interfere with the witness Jeremaia and I am not persuaded that the police hold genuine concerns that he was involved.

50 In any event, any danger that the applicant might seek to interfere with witnesses can be reduced to an acceptable level by the imposition of appropriate bail conditions limiting his ability to associate or communicate with certain persons or categories of persons. The applicant's parents have undertaken to ensure that the applicant complies with bail conditions by standing as sureties. The amount available in the equity of their family home is $350,000. This is a significant disincentive to the applicant discussing his case with anyone other than the persons authorised.

51 Bail was granted to the applicant on the basis that the Court was satisfied that exceptional circumstances existed to justify the making of such an order and the Court was not satisfied that there was an unacceptable risk that if released on bail the applicant would interfere with witnesses or otherwise obstruct the course of justice. Bail was granted subject to the following special conditions:

(a) He will surrender himself into custody at the time and place of his hearing or trial and then will not depart without leave of the Court and if leave is given will return at the time specified at the Court and surrender himself into custody.

(b) He will reside at the address specified in the order.

(c) He will remain at that address between the hours of 10.00pm and 5.00am each day.

(d) He will report to the Greensborough Police Station between the hours of 9.00am and 9.00pm each day.

(g) He will surrender any passport that he has within 48 hours and not apply for a new one.

(h) He will not attend any points of international departure.

(i) He will not leave the State of Victoria without notifying the informant or his or her nominee and obtaining that person's permission.

(j) He will not communicate directly or indirectly with any prosecution witness save for the informant or his or her nominee.

(k) He will not knowingly approach any family members of the deceased.

(l) He will not communicate with or associate with his brother, Brendan Lee.

(m) He will not attend the Diamond Creek Football Club or any games in which they are participating.

(n) He will not discuss this case with any witnesses or other persons save for his legal representatives, his wife, his parents and any counsellor or psychologist with whom he consults.

(o) His parents will provide surety in relation to all of the above bail conditions in the amount of $350,000.

[1] In the matter of a bail application by Muhaidat [2004] VSC 17, [13].

[2] In the matter of a bail application by Mantase (unreported, 21 September 2000).

[3] DPP v Cozzi [2005] VSC 195; (2005) 12 VR 211; Re: The Matter of Application for Bail by John Denis Moloney (unreported, 31 October 1990).

[4] These factors are summarised in DPP v Cozzi [2005] VSC 195; (2005) 12 VR 211, [22].

[5] DPP v Cozzi [2005] VSC 195; (2005) 12 VR 211, [25], [26]; Woods v DPP (2014) 238 A Crim 84, [40].

[6] Woods v DPP (2014) 238 A Crim 84, per Bell J [39].