Re Wells [2008] VSC 29 (14 February 2008)

Ms Natalie Dunn. He has been in custody since 4 January 2007.

3 On 13 February 2007 King J, in this Court, refused an application for bail. On 29 October 2007, in the Magistrates' Court before his Honour Magistrate Gurvich, a committal was conducted. At the conclusion of that hearing another bail application was made which his Honour refused.

4 On 12 November 2007, Teague J, in this Court, fixed 11 August 2008 as a date for the trial to commence, with a directions hearing to be listed on 5 February 2008. That directions hearing was held before Cummins J and Mr Wells was arraigned and pleaded not guilty to the count of murder. In the course of that mention there was discussion about the prospect of the Crown obtaining further medical evidence. There is some risk that the obtaining and assessment of that evidence will cause a delay to the starting date of the trial, but that remains to be seen. I am acting on the basis that the trial will commence on 11 August 2008.

5 The application for bail is supported by an affidavit sworn on 18 December 2007 by Mr John Bentleigh, solicitor, of Victoria Legal Aid. The application is opposed by the Crown and an affidavit has been sworn by Ms Elissa Joanne Watson from the Office of Public Prosecutions on 7 January 2008.

6 Mr Wells is charged with murder and therefore must demonstrate "exceptional circumstances" pursuant to s 4(2) of the Act.

7 A combination of factors can amount to exceptional circumstances. In this case the following factors are raised as being capable of amounting to exceptional circumstances:

1. The asserted weakness of the Crown case;
2. The applicant's current psychological condition;
3. The applicant's relative youth;
4. The lack of any prior offending;
5. Strong family support;
6. Employment prospects;
7. Strong ties to the jurisdiction.

A number of decisions which have been handed down by judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.

9 In DPP v Sabino Cozzi,[2] Coldrey J expressed agreement with the approach of

Vincent J in Moloney and then reviewed several of the cases which subsequently discussed the meaning of "exceptional circumstances". He noted:

An examination of the cases bearing upon this concept reveals a multitude of single and conflicting interpretations thrown up, no doubt, by the variety of fact situations with which Judges have been faced.[3]

10 His Honour then went on to refer to a variety of circumstances which had been found in various cases to constitute exceptional circumstances and summarising those to which his Honour referred which in turn might be argued to be relevant here. They included:

• the strength of the Crown case;
• the question of delay;
• strong family support;
• stable accommodation;
• availability of employment;
• low risk of flight or re-offending;
• lack of prior criminal history; and
• the personal situation of the applicant.

11 As King J noted in R v Griffey,[4] "... it has long been held that it is the combination of circumstances that are of importance and that the combination must be assessed in each individual case".

12 On the count of murder against the applicant, the Crown must establish beyond reasonable doubt inter alia that he intended to kill or cause really serious injury. In his record of interview, the applicant raises the defence of accident. As was pointed out in submissions, it is not appropriate to form any concluded view particularly when that view is entirely based on the depositions. The Crown suggest a more "generalist" view be taken.

13 Broadly, the Crown case is as follows. The applicant and Natalie Dunn are the parents of the child Joshua John Wells who was born on 10 November 2006. The applicant, Ms Dunn and the child lived at the home of the applicant's parents in Lilydale. On Wednesday 27 December 2006 at about 11:00pm, Ms Dunn went to bed. She awoke some three-and-a-half hours later to discover that there were problems with the child's breathing and "000" was called. Attempts at revival failed and later in the early morning of 28 December, the child died.

14 On 29 December 2006, the applicant made a statement to police. In that statement he described becoming aware of the child's breathing developing difficulties resulting in him administering CPR. He said the child did not fall from any apparatus as far as he knew and the child was either in his arms or in his bed.

15 On 2 January 2007, a post mortem was carried out by Dr Noel Woodford. There had been some objection to a post mortem by the applicant and possibly his partner.

16 Dr Woodford identified the cause of death as a head injury and outlined a number of other injuries which, he said, appeared to him to be non-accidental. I am told that the nature of those injuries will be the subject of challenge at trial. The injuries included injuries to the limbs and also multiple rib fractures. In the course of evidence at the committal proceedings, Dr Woodford said that the evidence indicated the head injury had been caused by blunt force trauma. When cross-examined he observed that whether that was something striking the head or the head striking something, he could not say.[5] The statement made by Dr Timothy Cain, Paediatric Radiologist, also suggests that there were sights of several non accidental injuries.

17 In a record of interview conducted by police on 4 January 2007, the applicant was again giving his account of what occurred but then informed police that he thought the death of the child was "his fault" because, as he then described, he "dropped him". He went on to say he was too ashamed to say anything previously.[6] He then gave a description of how the child fell out of his arms.

18 Therefore, as was submitted on behalf of the applicant, the issue of accident is raised. There is no other direct evidence about what actually occurred. There is also no evidence from others about, for example, violent disposition or conduct by the accused on the night this occurred or previously. In order for the applicant to be found guilty of murder, not only would the Crown have to prove beyond reasonable doubt that the cause of death was not accidental; they would also have to establish murderous intent - i.e. an intent on the part of the applicant to kill or cause really serious injury. Although it is entirely possible that the result of the applicant's trial will be that he will have to serve further time in custody, it is my view that on the central issue of intent on the count of murder, the Crown case could not be described as strong.

19 I note that on this application, the Crown also relies on an informal conversation between the applicant and Detective Senior Constable Stephen Sheahan that allegedly occurred in the car park of the St Kilda Road police complex after the record of interview and before the applicant was transferred to the Melbourne Custody Centre. In that conversation, the applicant is alleged to have made admissions about having hit the child contrary to what he had said in the record of interview. It is difficult to see how that conversation could be admitted at the applicant's trial, and in any event it contains a denial on the issue of intent.

20 The applicant submits that his circumstances have changed since the two previous bail applications were made. He now relies on reports provided by Mr Patrick Newton, Clinical Psychologist, who also gave evidence on behalf of the applicant before me. The applicant has been in custody for more than 12 months. He has been prescribed anti-depressant medication by a medical practitioner at the prison. He has apparently been reviewed by the mental health staff at the prison and has had some level of contact with a clinician named Anne Kingston, who is referred to in the report of Detective Senior Constable Scott James exhibited to the affidavit in opposition to bail. However, no evidence from the prison was produced by the DPP to contradict either the factual basis of Mr Newton's diagnosis or the diagnosis itself.

21 In brief summary, Mr Newton's evidence was that he saw the applicant in January 2007 and then again in November 2007. In January the applicant was not suffering either from post-traumatic stress disorder or a major anxiety-related disorder. There was no formal diagnosis. Mr Newton gave evidence that the applicant had "deteriorated markedly" by November,[7] and that he now requires "multi-faceted" treatment.

22 Mr Newton's evidence was that Mr Wells' condition and his response to his present custody is at the "extreme or the severe end of the spectrum".[8] His formal diagnosis is that of a major depressive disorder and post-traumatic stress disorder, and described Mr Wells' need for treatment as imperative. Included in Mr Newton's concerns were the applicant's levels of suicidal ideation. If he were to be released there would be time for a structured program of treatment before he stood trial. That treatment regime would seem to be impossible in custody.

23 The following further matters are raised under the assertion of the existence of exceptional circumstances. The applicant is aged 28 years and has no previous convictions. He is held in unit Deacon B at the Metropolitan Remand Centre, and his counsel informs me that this unit provides "protection within protection" - although I gather he is not totally isolated. If the applicant were to be released, he would be able to be employed on a full-time basis in his father's building business. The effect of the applicant having been in custody on his father's business is perhaps less compelling than the evidence that were he to be released he would have gainful employment (subject to psychological treatment). He clearly has significant family support including from Ms Dunn. Members of his family were in court and demonstrating support. The applicant does not hold a passport and it is not suggested by the Crown in their submissions that he is a significant flight risk. Other than the consequences for the applicant's psychological condition, I do not consider delay in this case to be a circumstance worthy of separate consideration.

24 I am persuaded that exceptional circumstances have been made out. I will grant bail to the applicant on the following conditions:

(a) That a surety be provided in a sum to be determined;

(b) That the applicant reside at his parents' address in Lilydale;

(c) That applicant report to the officer in charge of the Lilydale Police Complex on Monday, Wednesday and Friday of each week between the hours of 8:00am and 6:00pm;

(d) That the applicant give 24 hours notice to the Informant, Senior Constable Scott Craig Jones, Homicide Squad, of any proposed change of address;

(d) That the applicant not apply for a passport during the period of bail;

(e) That the applicant not attend any point of interstate or international departure during the period of bail;

(f) That upon his release, the applicant immediately embark on such treatment as is considered necessary by Mr Patrick Newton and follow all such directions and requirements as Mr Newton may consider necessary.

[1] Re Moloney, John Denis (Bail Application) [1990] VSC (Unreported, Vincent J, 31 October 1990) 1-2 (hereinafter "Moloney").

[2] [2005] VSC 195.

[4] [2006] VSC 86 at [35].

[5] Transcript of Proceedings, Police v Troy Grant Wells (Melbourne Magistrates' Court, Magistrate Gurvich, 29 October 2007) at 12-13.

[6] Transcript of Record of Interview of Troy Grant Wells (4 January 2007) at Q142-3.

[7] Transcript of Proceedings, Re Troy Grant Wells (Supreme Court of Victoria, Lasry J, 8 February 2008) at 5.