Re Odlum [2008] VSC 319 (25 August 2008)

2 The incident which gives rise to these charges occurred in the early morning of Sunday 8 June 2008 and is said to have been the result of a "road rage" incident at the intersection of Thompsons Road and Taylors Road in Carrum Downs. According to the statement of the victim, with which I have been provided, he and his wife were travelling in Carrum Downs sometime before midnight on 8 June 2008. They had left a birthday party and were going home. The wife was driving and as that was occurring they were suddenly passed by another vehicle driven by the accused travelling at high speed. The accused then stopped and as the victim and his wife attempted to pass the vehicle they were blocked by the accused's vehicle. This process was repeated but finished with the accused stopping the vehicle and walking towards the victim's vehicle which he then proceeded to kick. As the accused confronted the victim on the passenger side of the vehicle, the door of the vehicle opened and the accused then threatened to kill the victim. The victim was then struck by the accused with a knife and after a large number of these blows he realised he had been stabbed. He told his wife to leave as best she could because he thought he was going to die. The accused apparently left the scene and an ambulance was called by the wife of the victim. He suffered from a number of serious stab wounds to his lower back, wrist and thumb which required emergency surgery.

3 On 11 June 2008 the applicant appeared at the Melbourne Magistrates' Court and applied for bail. That application was refused.

4 As I have already noted, because the applicant is charged with an offence in the course of committing which he is alleged to have used an offensive weapon and pursuant to s 4(4)(c) of the Act, bail must be refused unless he shows cause as to why his detention in custody is not justified.

5 The applicant is aged 21 years and has no prior convictions. He has been in custody since 8 June 2008. He was apparently educated at St Peter's College in Cranbourne to Year 11 and worked as a concreter on the Eastlink project together with part-time jobs in the hospitality industry. At the time of the offences the applicant was living in Cranbourne with his fiancé, having left his parents' home for the first time some six weeks or so earlier.

6 In support of the application for bail, the applicant's solicitor Cameron Marshall, in an affidavit sworn on 30 July 2008, relies upon the age of the applicant being 21 years and his lack of prior history as being factors capable of fulfilling the requirement to show cause. He deposes that it is proposed that were bail to be granted the applicant would resume living with his parents. That is supported by the sworn evidence of the applicant's mother to which I will refer in more detail shortly. The applicant's fiancé is apparently pregnant and the child is due to be born at the end of January 2009. The applicant is also supported by Barbara Elvin, who is the college principal at Monterey Secondary College and the mother of the applicant's fiancé. She describes him as a caring and supportive partner who is not quick to become angry in relation to her daughter. She says she is optimistic about his relationship with her daughter and appears to look forward to the prospect that they will marry, because they plan to marry in February in 2009.

7 The mother of the accused swore an affidavit in support of the application for bail and gave evidence before me. I found her to be an conscientious and honest witness and I believe that her influence on her son will be positive. During the course of her evidence she gave an undertaking that if she became aware of a breach of any of the conditions of bail, were it to be granted, she would notify the informant despite the fact that such action would risk her son being returned to custody. On the basis of the evidence of Mrs Odlum and the documents I have been provided with, it also seems likely that the prospects of the accused obtaining employment if he was released are high. The Crown prosecutor expresses understandable scepticism about the genuineness of the willingness of Mrs Odlum to supervise her son as closely as she suggests she will. That was put to her when she gave her evidence and she responded by saying that she thought such action would be in her son's best interests in the long term.

8 Character references have also been provided which were exhibited to Mr Marshall's affidavit which at least raise the likelihood that this alleged offending is not a step in a pattern of violence but, almost inexplicably, isolated.

9 I have also been provided with a document dated 22 August 2008 from the Court Integrated Services Program located at the Melbourne Magistrates' Court. The program is apparently designed to support people who wish to deal with problems with led them to commit offences and in this particular case the problems concern anger management and the consumption of illicit drugs. Mr Cash, on behalf of the applicant, tells me from the Bar table that his client has already been accepted for this program.

10 The applicable principles in applications of this kind were discussed by Maxwell P in Re Fred Joseph Asmar,[1] where his Honour concluded that, in a circumstance such as the one faced by the applicant in this case, there is only one question to be asked: whether the applicant has shown cause that his detention is not justified. His Honour said:

At the same time, I think it is important to make clear that once the applicant for bail shows cause that his detention is not justified, that is the end of the inquiry. There is no second step. Nor, therefore, is there any shift of onus. Where s.4(4) applies, the applicant bears the onus from start to finish, of showing that his/her detention is not justified.[2]

11 As his Honour explained in the course of the judgment:

Put another way, I do not see how the Court could be satisfied - as s.4(4) requires it to be - that the accused person's detention in custody was not justified, unless the Court was satisfied that there was no unacceptable risk on any of the four grounds.[3]

12 His Honour adopted the approach of Eames J (as he then was) in DPP v Ghiller, where his Honour said:

Even when an applicant for bail must show cause - that is, even when the presumption is that bail will not be granted unless the person makes out a case for bail - the primary question relevant to a grant of bail is whether a person will meet the conditions of bail and attend at the trial, and as required. The question of the strength of the case against the person is merely one of the factors to be considered when evaluating whether it is more or less likely that the person would meet the conditions of bail.[4]

13 The Crown case against the applicant appears to me to be a strong one although I am informed by Mr Cash that an issue in the case will concern whether the Crown can prove the requisite intent for two of the offences with which he is charged.

14 In this case the applicant relies particularly on several matters. First, that he is a youthful offender now being aged 21 years. He has no prior convictions for any offences. Mr Cash submits that for the purpose of this application these factors are relevant in considering the seriousness of the offences with which he is charged. Whilst it is true, Mr Cash concedes, that the offences are very serious, random and vicious, this is the first time he has been charged with any criminal offence, and therefore it cannot be said that he is a recidivist who has pursued a pattern of violent conduct.

15 I am told that if granted bail, the applicant will resume living with his parents. In support of that aspect, the mother of the applicant gave evidence on the application and expressed her willingness to do whatever was required to ensure that her son was released and that he complied with any conditions that this court might impose on him. The applicant also appears to have the realistic prospect of full-time employment as I have already indicated.

16 The question of delay is not a significant aspect of the application, but in reality the applicant may well spend 12 months in custody before his trial commences on the timetable as I understand it, and for a person without a criminal history, that has some significance.

17 The Crown prosecutor submitted that there are significant concerns about this case and, in particular, given the spontaneous and random nature of the alleged attack and its viciousness, she submits that if the applicant were released on bail there is little, if anything, that would prevent another attack. I agree with her concerns, but I think to a significant extent they can be met by imposing conditions concerning residential arrangements and forbidding the consumption of drugs and alcohol.

18 The prosecutor also relies on the police concern that there is a risk that the applicant will interfere with Crown witnesses. In substance, the prosecutor refers to the fact that several of the friends of his fiancé have made statements to police about the incident and things that were said by the applicant after the confrontation with the victim. However, the fear of interference with witnesses seems to me to be an understandable perception rather than based on anything that has happened or on any threat made by the applicant.

19 If the question to be considered is whether it is more likely that the applicant will meet the conditions of any release on bail, I am persuaded that it is more likely that he will. However, I have not arrived at that consideration without some hesitation.

20 I propose to release the applicant on bail on his own undertaking with the following conditions:

• Until further order, the applicant reside at 4 Caroline Crescent, Cranbourne in the State of Victoria, and not leave or be absent from those premises between the hours of 10:00 pm and 6:00 am on each day;

• The applicant report daily to the Officer in Charge of the Cranbourne Police Station between the hours of 8:00 am and 6:00 pm;

• The applicant refrain from the consumption of any alcohol until further order;

• The applicant obey any lawful direction he is given concerning treatment or counselling by any officer or case manager of the Court Integrated Services Program;

• The applicant refrain from the consumption of any narcotic drug apart from lawful prescription drugs for the purpose of treating any illness or addiction;

• The applicant not contact directly or indirectly any witness for the prosecution except the informant or his nominee or any witness for the prosecution who is also a member of the accused's immediate family;

• The applicant surrender any passports which he may hold to the informant within 12 hours of being admitted to bail and not apply for another passport until further order. Any passport surrendered is not to be returned except upon the order of this Court or a judge of the County Court of Victoria.

• The applicant not attend any point of international departure during the period of being admitted to bail.

[1] [2005] VSC 487.

[4] [2000] VSC 435 at [43].