Re McDonald [2010] VSC 217 (24 May 2010)

2 The applicant was born on 8 November 1940. He married Marlene McDonald in 1970. There were five children of the marriage. The eldest, Damien, died in 1999; the second eldest, Janine, was born in 1973; and the youngest, Carolyn, was born in 1983. The applicant and his wife separated in November 1985 and had remained apart at the time of the alleged offence. At that time, Marlene McDonald was living at premises at Reservoir and was working as a waitress at Truck City restaurant, Campbellfield. The applicant was living in rented premises in Whittlesea.

3 Both before and after their separation, the relationship between the applicant and Marlene McDonald was bitter. There is a body of evidence contained in the documentation that the applicant felt a substantial degree of hostility towards her, particularly after the couple had separated, and which continued until her disappearance on 14 December 1986.

4 On the evening before her disappearance, Marlene McDonald went out for the evening with a friend. She returned home at about 1 a.m. on the morning of Sunday 14 December 1986. The Crown alleges that in the meantime the applicant attended at or near Marlene's premises in company with three co-accused, namely Andrew Ardley, Stuart Binion, and Greg Bone. It is alleged that Ardley, Binion and Bone gained entry into the premises. There is some conflict in the Crown evidence as to whether the applicant also entered the premises.

5 In any event, the Crown alleges that after Marlene McDonald arrived home at about 1 am those who had entered the house attacked her and overpowered her. She was wrapped in a blanket around which was tied a rope. She was then abducted from the house and placed in the rear of the applicant's van, which drove off. The prosecution alleges that shortly after that, Bone drove Marlene McDonald's motor car to the car park at Truck City where he left it, and he then joined the applicant in his van, together with Binion, Ardley, and Marlene McDonald.

6 The prosecution alleges that the applicant and the three co-accused drove to Whittlesea. There the three co-accused left the van, believing the applicant was going to convey his wife to an asylum for the mentally impaired. The prosecution alleges that the applicant then drove Marlene to the Kinglake area where he murdered her and buried her body. The Crown case is that there has been no reliable reported sighting of Marlene McDonald since 14 December 1986.

7 The disappearance of Marlene McDonald was the subject of investigation in December 1986 and early 1987. In January 1987 she was deemed to be a missing person. In 2007 the Cold Case Taskforce conducted a review of the investigation and in November of that year identified the applicant as a significant person of interest to that investigation. A number of strategies were implemented by the taskforce, including the use of telephone intercepts, listening devices, and a police undercover covert operative. As a result of the further investigations, the applicant was arrested in September 2008 and charged with the murder of Marlene McDonald.

8 During interviews with the police, the applicant mentioned the name of Binion. As a consequence, the police investigated the role of Binion and also of Ardley and Bone in the disappearance of Marlene McDonald. Ultimately, each of those three persons admitted their involvement in her kidnapping and abduction but denied involvement in her murder. During the committal proceeding, they each pleaded guilty to the charge of kidnap. In the course of pleas made on their behalf, they each undertook to give evidence on behalf of the prosecution in the case against the applicant. Binion, Bone and Ardley were each sentenced to terms of imprisonment which I understand are due to expire next September.

9 As the applicant has been charged with murder, s.4(2)(a) and s.13(2)(b) of the Bail Act 1977 provide that the applicant must not be granted bail unless I am satisfied that exceptional circumstances exist which justify the grant of bail to him. Mr Heath, who appeared on behalf of the Crown, has opposed bail on the basis that the applicant has not established the existence of exceptional circumstances. He has further submitted that if exceptional circumstances have been established by the applicant I should decline to grant him bail pursuant to s.4(2)(d)(i) of the Bail Act because there is an unacceptable risk that the applicant would interfere with witnesses if he were released on bail.

10 The Bail Act does not define what are exceptional circumstances. It is trite that in order to be exceptional the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail notwithstanding the very serious nature of the charge against him. It has been accepted that exceptional circumstances may in an appropriate case consist of a combination of a number of circumstances pertaining both to the nature of the prosecution case against the applicant and the personal circumstances of the applicant.

11 In the present case Mr Tony Lewis, who appeared on behalf of the applicant, submitted that exceptional circumstances have been established. In particular, he relied on the following matters to constitute those circumstances. First, he submitted that the Crown case on a proper analysis is weak and that the applicant has good prospects of being acquitted at his trial. Secondly, he relied on the delay in the trial of the matter. If the trial proceeds on the date on which it has been fixed on 31 January next, almost two and one half years will have elapsed between the date upon which the applicant was first charged with the offence and the commencement of his trial. Thirdly, Mr Lewis points to the age of the applicant, who will be 70 years of age at the time of his trial; and fourthly, he relies on the fact that the applicant since the date of the alleged offence has lived within the community, has raised his children in it, and has long been established in the community in which he was residing.

12 The first, and perhaps principal circumstance, relied on by Mr Lewis is the lack of strength of the prosecution case against his client. It is accepted in a number of cases that where it can be demonstrated that the applicant has good prospects of being acquitted at trial, such a factor may in an appropriate case constitute exceptional circumstances, or combine with other relevant factors to constitute exceptional circumstances.

13 For the purpose of assessing the competing submissions made on that aspect of the application, I have read the affidavits in the application, together with a 94-page summary of evidence compiled by the informant, and the police summary of evidence against the three co-accused. The Crown case consists of a substantial body of evidence which I am informed comprises some 8000 pages of statements and exhibits. Clearly, the materials which I have read, while quite substantial, are but a superficial overview of the evidence in the case. Necessarily, any impression which I form about the strength or otherwise of the prosecution case is based on a limited acquaintance with the prosecution case. I have not had the opportunity to observe the Crown witnesses, and in particular the three co-accused, under cross-examination. With a few limited exceptions, I have not had the opportunity to listen to the many recorded conversations involving the applicant or to read the full transcript of those conversations. Nevertheless, and notwithstanding those substantial limitations, it is necessary for me to form at this stage some preliminary view as to the prospects of the applicant being acquitted at his trial.

14 Essentially, the prosecution case consists of the following categories of evidence. Firstly, as I have already stated, each of the three co-accused, Bone, Binion and Ardley, will give evidence on behalf of the prosecution as to the involvement of the applicant in the abduction of Marlene McDonald. The prosecution will allege that she was last seen alive when those three witnesses left her with the applicant in his van at Whittlesea in the early hours of 14 December 1986.

15 Secondly, there is a body of evidence that the relationship between the applicant and Marlene McDonald was characterised by a significant degree of hostility between them in the 12 months after their separation leading up to the time of her disappearance. Thirdly, in November 1986 and shortly before her disappearance the applicant obtained a roadworthy certificate for a beige coloured van which he had left for some time at the home of an associate, Max Hem. The prosecution alleges that shortly before the disappearance of Marlene McDonald, the applicant retrieved that van from Mr Hem's home and used it in the abduction of her. Fourthly, the prosecution will rely on the voluminous listening device material which recorded conversations involving the applicant.

16 It is an unusual feature of this case that the applicant is a man who is given to verbalising his thoughts when he is alone. Thus the listening device material contains the recording of a number of soliloquies by the applicant. The prosecution submits that the listening device material is evidence of the applicant's guilt in a number of respects, including the following. Firstly, it is said that there is listening device material in which the applicant can be heard initially rehearsing an alibi which he would give to the police if he was questioned by them, and later rehearsing an altered version of the alibi. Secondly, the applicant can be heard expressing concern as to the alleged sighting of the beige van in connection with the disappearance of his wife. Thirdly, it is said that the applicant can be heard in the course of soliloquies exhibiting an awareness or belief that Marlene McDonald had in fact been murdered. Fourthly, it is alleged that the applicant can be heard developing a story that Marlene McDonald had been seen on the night of her disappearance alighting from her vehicle at the Truck City car park and entering a truck. Fifthly, the applicant is said to have been heard rehearsing aloud explanations of why his DNA might be found on his wife's body if it were discovered and why his rope and blanket might be found with her body. Finally, the applicant can be heard rehearsing a conversation with imaginary police, in which he practises expressing his surprise when told by them that his wife's body has been found.

17 Those then are the four main categories of evidence on which the prosecution relies. I should add that Mr Heath also told me in the course of submissions that shortly after Marlene McDonald's disappearance it will be alleged the applicant had spoken to two of her work colleagues and in effect told them that she was dead. However, I set that aspect of the Crown case to one side when considering this issue. When the informant gave evidence before me, he told me that in fact the two employees in question had not spoken face to face with the applicant, but rather had received anonymous phone calls telling them that Marlene McDonald was dead. One of the witnesses purported to identify the voice of the caller as the voice of the person who she understood was the husband of Marlene McDonald, but there is no direct identification of that voice with the voice of the applicant.

18 I turn then to the matters on which the prosecution principally relies. Once again, the views which I express in relation to the strength or otherwise of the components of the Crown case to which I have just referred must essentially be quite superficial. It is particularly difficult for me to form any view as to the strength or otherwise of the evidence to be given by each of the three co-accused. However, Mr Lewis has drawn my attention to a number of matters which might undermine their credibility. For example, when Mr Bone was interviewed he told the police that after he abducted Marlene McDonald he took her to Campbellfield, which is a different account than that given by the other two co-accused. At committal Mr Ardley admitted in cross-examination to having particular problems with a number of aspects of his memory in relation to the events of the evening. Mr Binion in his original statement to the police denied any involvement at all in the kidnapping of Marlene McDonald.

19 In addition, and apart from the individual problems relating to the evidence of those three witnesses, each of them were clearly on their own admissions accomplices. By undertaking to give evidence on behalf of the prosecution they each received a substantial reduction in the sentences which would otherwise have been imposed upon them. As a result, at trial an appropriate warning will need to be given to the jury as to the need for caution in determining whether to accept the evidence of those witnesses and in determining what weight if any should be given to that evidence. In addition, a Longman warning will no be doubt given to the jury to the effect that the long delay between the date of the alleged offence and the date on which the applicant was charged may have been such as to compromise the applicant's opportunity to recollect or find evidence which might contradict the evidence of the prosecution and, in particular, the evidence of his three co-accused.

20 In relation to the evidence of the retrieval of the van from Mr Hem, Mr Lewis told me that there is some uncertainty arising from the evidence of the co-accused as to what van they claim the applicant was using with which to abduct Marlene McDonald. At the time of the alleged offence the applicant himself owned a white van which he used for work, and that van was used for the storage of his tools and equipment. On the other hand, the beige van was an eight-seater van. Some of the co-accused claim that Marlene McDonald was placed on the floor at the rear of the van, which Mr Lewis submitted would have been impossible if the van which was being used was the beige van. Further, he submitted that there is some uncertainty in the evidence of Mr Hem as to the date upon which it is said that the applicant recovered his van from Mr Hem, and in particular as to whether he recovered it before or after the disappearance of Marlene McDonald.

21 In relation to the soliloquies recorded on the listening devices, Mr Lewis submitted that a jury may well conclude that the substance of the conversations that the applicant was having with himself was benign. At the time of the conversations the applicant had been made aware that the police considered that he was a person of significant interest in relation to the disappearance of his wife. The applicant has the unusual habit of not only thinking aloud, but also of rehearsing various possible scenarios and conversations by verbalising them. Mr Lewis submitted that a jury may well conclude that the applicant was doing no more than thinking aloud through the various permutations and combinations of the types of evidence which might come to light more than 20 years after his wife's disappearance and which he might need to explain.

22 On the other hand, Mr Heath submitted that the prosecution case is relatively strong. The co-accused in plain terms implicate the applicant in the abduction of Marlene McDonald and say that they left the applicant with her in the early hours of 14 December 1986. Marlene McDonald has not been seen since. The applicant shortly before her disappearance had a roadworthy certificate obtained for the beige van and registered it with VicRoads. It can be proven that the applicant had a strong degree of hostility towards his wife. Mr Heath submitted that the proper construction of the listening device material was that the applicant was conscious of his guilt of the murder of his wife and as such was constructing a fictitious case by which he might divert the blame from himself.

23 Those then in summary form are the competing submissions about the strength or otherwise of the prosecution case. In my view in light of those competing considerations it is not possible for me to form a conclusion that the prosecution case is weak. By the same token, based on the material which I have read and based on the matters put to me by Mr Lewis, I could not characterise the Crown case as being strong or particularly persuasive. In the end, for the purposes of this application I am persuaded that the applicant does have reasonable prospects of being acquitted at his trial. This will be particularly so if the evidence of the co-accused is not accepted by the jury and if the jury have a doubt as to whether the applicant's soliloquies do evidence a consciousness by him that he was guilty of the murder of his wife. As I stated, on the materials which I have read my conclusion, at this summary stage, is that he may have reasonable prospects of being acquitted at his trial.

24 With that conclusion in mind, I turn to the other matters relied upon by Mr Lewis. The applicant is 69 and one half years of age and at the time of his trial will be 70 years of age. As Mr Lewis correctly pointed out, the period of time which he has already spent in custody constitutes a greater proportion of his remaining life than would the equivalent period for a younger person.

25 In addition, the further period in which the applicant would remain in custody should I not grant bail would be more onerous for a man of the applicant's age than for a younger person. By the time the case comes on for trial, some two and a half years will have passed since the date upon which he was arrested. That delay is greater than the ordinary length of time between arrest and trial.

Mr Heath informed me that ordinarily trials of persons accused of murder in this court take place approximately two years after the date of arrest. I should say that that estimate is consistent with my own experience in this court. Thus the delay between arrest and trial in this case will be substantially larger than that which is normally the case.

26 After I reserved my ruling in this case, I had the opportunity to read a number of recent decisions in which the issue of delay has been considered. In each case in which there has been excessive delay, that factor has been properly considered to be a matter of some substantial weight in an application for bail. Of course, the particular delay in a case must be considered in light of the circumstances of each particular case. However, in this case the applicant was arrested almost 22 years after the alleged offence. He has now been in custody for some 20 months. He faces a further period of eight months before trial, which itself is estimated to last for a period of three months. Thus he is likely to spend two and a half years in custody without bail before verdict if he is not granted bail by me today. In light of his age that delay would, I consider, be a substantial burden on the applicant.

27 In this respect I note that it is not put that the applicant is at risk of re-offending if he is released or of not answering his bail when the case comes on for trial. He has no previous convictions apart from one minor blemish in 1991 which is of little of no relevance to this application. He was well connected with the community in which he was living at the time of his arrest. He has a home in which to live with his younger daughter, and he enjoys family support.

28 The question then is whether the circumstances to which I have referred taken together are exceptional. The decision in this application has given me substantial difficulty, especially in view of the seriousness of the charge and the circumstances in which the offence is alleged to have been committed. It was for that reason that I reserved my decision to have the opportunity to review the materials and recent decisions and to give the matter careful and considered reflection.

29 In the end I am persuaded that collectively the circumstances relied on by Mr Lewis do constitute exceptional circumstances which would justify the release of the applicant on bail. There are three primary matters which taken together lead to that conclusion, namely, firstly, the applicant has a reasonable prospect of being acquitted at his trial, secondly, the delay of almost two and a half years between his arrest and his trial date, and thirdly the applicant's age. In my view, taken collectively those three circumstances and the combined weight of them constitute exceptional circumstances.

30 Those factors are given added weight by the fact that the applicant was before his arrest settled as a member of the community, he has family support and a place in which to live, and is a man who, apart from a very minor blemish, has no previous convictions.

31 Having reached that conclusion it is necessary for me to consider the other basis on which the prosecution has opposed the grant of bail, namely that there is an unacceptable risk that the applicant would interfere with witnesses if I were to grant bail.

32 Having reviewed the materials, I am not persuaded that there is such a risk. It is true that before his arrest the applicant did seek out and speak to potential witnesses. There are also recorded conversations while the applicant has been in custody evidencing that he wishes to locate persons who might be able to provide evidence which might assist in meeting certain aspects of the Crown case against him. However, that conduct is not in my view conduct which evidences an intention by the applicant to interfere with prosecution witnesses; rather the evidence to which my attention has been drawn is that of a man who, having been charged with a serious criminal offence, has been anxious to try to locate witnesses or evidence which might assist him. The materials which I have had the opportunity to review do not satisfy me that the applicant in doing so has or had an intention to interfere with, importune or intimidate any Crown witnesses. Nor do they indicate that he had any intention to improperly affect the memories or colour the memories of them.

33 In reaching that conclusion, I had access to a number of matters which were referred to in the informant's summary. It is not possible to review them all in this ruling; however, three matters were specifically referred to in the course of oral submissions before me and I shall briefly refer to them. Firstly, the prosecution relied on a conversation which the applicant had with Mr Hem on 10 January 2008 as evidencing an attempt by him to persuade Mr Hem that the applicant did not collect the van from him until after the date of Marlene McDonald's disappearance. After I reserved my decision I had the opportunity to listen twice to the recording of that conversation and I have read the transcript of it. I do not consider the applicant in that conversation was attempting to affect the memory of Mr Hem in that regard.

34 Secondly, I have also listened to and read the transcript of a conversation which the applicant had with his daughter Janine shortly after his conversation with

Mr Hem. Again, contrary to the submissions of Mr Heath, I do not consider that in that conversation the applicant was trying to influence his daughter as to her recollection of an event shortly after the disappearance of Marlene McDonald when the applicant picked Janine up with a friend in the van.

35 Thirdly, my attention was drawn to a recorded conversation which the applicant had with his son Simon on 7 March 2010. In that conversation the applicant referred to the case against him presented by the Cold Case Unit and with reference to his former wife said, "They just did not even try to find her. See, there is people that have said they have spoken to your mother in Queensland. I've got to find a couple of them but I can't do that". Further on he said, "If they've got photos with the time on it, date on it, that just washes their case".

36 In my view that conversation is not evidence of an accused person trying to interfere with or corrupt Crown witnesses. Rather, it is the evidence of a man endeavouring to identify and locate witnesses who he understands might have spoken to Marlene McDonald after her disappearance. In those circumstances I am not persuaded that there is an unacceptable risk that if I release Mr McDonald on bail he might interfere with Crown witnesses. As I stated, I am satisfied there are exceptional circumstances. Accordingly, I shall grant bail to the applicant subject to a number of conditions.

37 The first condition is, of course, that bail is conditioned on the usual undertaking by the applicant that he appear in this court at a time to be advised by the Office of Public Prosecutions. It is also conditioned on the provision of three sureties of $20,000 each. Thirdly, that the applicant reside at 12 Daly Close, Sunbury. Fourthly, that the applicant must not leave the state of Victoria without the prior approval of the informant. Fifthly, the applicant must give seven days' notice to the informant of any proposed change of address. Sixthly, the applicant must report to the officer in charge of the police station at Sunbury each Monday, Wednesday, Friday, and Saturday between the hours of 8 am and 8 pm. I understand he does not have a passport at the moment.

MR LEWIS: That's my instruction, Your Honour. Correct, Your Honour.

HIS HONOUR: Seventhly, that the applicant not apply for or possess any passport or travel document, not attend any point of international departure; and eighthly, that the applicant not approach or attempt to contact any witness for the prosecution other than the informant and his children.