Re Wilson (bail application) [2006] VSC 178 (10 May 2006)

"BRADBURY still has significant physical injuries and restrictions. He has almost no use at all of his left arm and will likely require surgery to repair nerve damage, as well as other surgery in the future to release areas which have become 'welded' as a result of the burns. He is not able to drive a vehicle or engage in work for possibly up to two years."

12 The accused admits going to the victim's home in company with the co-accused. Initially, the accused said that the fire started accidentally. Subsequently, the accused stated that the co-accused picked up an open petrol container from the hallway floor, splashed it over the victim, poured it along the hallway and set it alight with a cigarette lighter - thus causing the victim to be set alight.

13 The co-accused gave a "no comment" interview.

14 In addition to the severe injuries to the victim, the fire extensively damaged the house which has since been demolished. Further, the contents of the house were lost, at an estimated value of $30,000.

15 The accused was substantially affected by alcohol on the evening in question.

16 The Crown opposes the application for bail on the grounds that the accused has not satisfied the onus on him to show cause why his detention in custody is not justified and because there is an unacceptable risk that the accused, if released on bail, would interfere with witnesses.

17 On behalf of the accused, reliance was placed upon the following matters in support of the application for bail:

(1) The health of the victim has improved significantly, but he does not have any recollection of the incident which led to his injuries at this time. In my view, this matter is of very little weight. The evidence relied upon is a letter from a police officer involved in preparing the hand-up brief in the matter. The letter states that it is expected that the victim's memory will improve as the amount of medication he is receiving is reduced and his condition further improves.

(2) The accused has been in custody since 14 February 2006 and will likely be in custody for about a year before his trial if bail is not granted. I accept that this is a relevant matter. However, the delay is not out of the ordinary and, if convicted, the accused is likely to be sentenced to a period of imprisonment of at least a year. In this regard, I note that it is acknowledged that the case against the accused "could be regarded as a relatively strong one with respect to the aggravated burglary."

(3) It was submitted that the case against the accused with respect to the arson and reckless conduct charges was "much less strong" or "problematic". I will return to this matter later.

(4) The accused has been cooperative with police, by taking part in records of interview and making detailed statements as to how he alleges that the fire started and the involvement of the co-accused. I accept that these matters are relevant. However, the fact remains that the accused initially, on his own present version of events, gave the police a false account of how the fire started, attributing it to the conduct of the victim. Further, the account given by the accused as to how the fire started is by no means certain to be accepted at trial.

(5) The accused has been assessed by a forensic psychologist, Ian Joblin. Mr Joblin states that the accused is of limited intellect, limited socially and is a "somewhat inadequate personality". In Mr Joblin's opinion, it is highly unlikely that the accused would have offended in the absence of alcohol or other persons being involved. I note that Mr Joblin does not conclude that the accused is psychotic or suffering from any psychiatric illness.

(6) The accused has a severe alcohol problem and is in need of professional assistance to address it. He has been assessed by a case manager of the C.R.E.D.I.T./Bail Support Programme of the Magistrates' Court and recommended for participation in that programme. I accept that the need for the accused to have support for his alcoholism is a relevant factor. However, whilst on remand, the accused ought have no access to alcohol. I note that the accused told Mr Joblin that he was able to stop drinking for about two years at one stage, for health reasons, and had no difficulty attending hotels and simply drinking soft drink.

(7) The accused's parents are not in good health. His mother is aged 62 and suffers from heart disease, asthma, stomach ulcers and arthritis. Her condition appears to have been worsened by the charges against her son. His father is aged 64 and suffered a stroke some years ago, but the symptoms have largely resolved. The general practitioner for the Wilson family has expressed the view that it is extremely difficult for the accused's parents to manage without him in the home to help in performing household tasks. I will consider this matter further blow.

(8) As to the health of the accused, there is no doubt that he is an alcoholic. Further, his general practitioner has stated that he suffers from a cardiac condition known as "inappropriate sinus tachycardia". Further, the general practitioner states that he has known the accused for many years and has no doubt that he has an intellectual disability. I note that this is not supported by the opinion of Mr Joblin.

(9) The accused and his family keep greyhound dogs at a relative's premises about 20 kilometres from Ballarat. The accused has a licence to train greyhounds and was heavily involved in doing so up to the time of his arrest. Since that time his parents have been looking after the greyhounds. In my view, this matter is of very little weight in considering whether the applicant has shown cause. It was not relied upon in oral argument and there is no evidence as to any profitable business in relation to the greyhounds.

(10) Finally, it was submitted on behalf of the accused that, in considering whether he was able to show cause, I should have particular regard to the fact that the co-accused was granted bail by a Magistrate on a second application. I was referred to the decision In the matter of Stephen Zade Abbott.[1]

18 In Abbott, Gillard J considered a submission that parity of bail is a relevant factor to take into account in determining whether exceptional circumstances exist. Gillard J reviewed the relevant authorities and concluded that the parity principle can apply to a consideration of exceptional circumstances, or showing cause, in respect of a bail application "but it must be established that things are equal as between the co-offenders."[2] In considering whether "things are equal", Gillard J expressed the view that:

"... it would indeed be rare for the principle to have any relevant weight in bail applications because the circumstances invariably at all levels of determination are peculiar to the particular applicant." [3]

"In my opinion a manifestly wrong decision to grant bail could not be used for a basis for the application of the parity principle in another bail application."[4]

19 Gillard J concluded that the evidence concerning the successful bail application made by other co-accused was lacking and noted, in addition, that there were differences between the position of the applicant for bail and the co-accused who had been granted bail. In reaching this conclusion, Gillard J considered matters such as age, prior criminal history and apparent involvement in the alleged offences.[5]

20 In my view, this is not an appropriate case for the application of the parity principle. There are differences between the position of the accused and the co-accused. It cannot be said in this case that their positions are "equal" or "virtually indistinguishable."[6]

21 In my view, the following differences between the position of the accused and co-accused are relevant:

(1) The co-accused was bailed on condition that he reside at an address in Queensland. The accused seeks, as a condition of bail, that he reside at his parents' premises in Ballarat. Those premises are approximately 150 metres from the address of the victim's mother. The victim is living with his mother so as to receive support during his period of rehabilitation at a hospital in Ballarat. The victim has expressed the view that he would be "fearful of what might happen" if the accused were released on bail and live close by. If this were to occur, the victim has expressed the view that he would feel compelled to leave his mother's home in Ballarat and return to Melbourne to continue his rehabilitation. However, he does not have any relatives or friends in Melbourne upon which he may rely for accommodation. As I have said, the victim is presently unable to work and this position may continue for up to two years. In my view, the wishes of the victim in this regard are extremely relevant and provide a very considerable difference between the respective positions of the accused if granted bail and the bail conditions of the co-accused.

(2) The co-accused is aged 22. The accused is aged 30.

(3) In addition to being substantially younger, the co-accused has a criminal history which is considerably shorter than that of the accused. This is to be compared with the criminal history of the accused which is, in my view, substantial and includes repetitive drink driving offences. I refer to this matter further below.

22 Further, having regard to the strength of the case against the co-accused, I have considerable doubt as to the correctness of the decision to grant bail to the co-accused.

23 I turn to consider the ground that the accused requires bail to care for his parents. In my view, this factor has been overstated. In the first place, the accused had moved out of his parents' home in Ballarat about 12 months before he was arrested. I accept that he remained in Ballarat and continued to provide some assistance to his parents with home duties.

24 Secondly, the accused has a brother who lives in Ballarat and can assist his parents with home duties. Although this brother has a partner, two children and a job, I see no reason why he should not be able to assist his parents with any household matters which they are physically unable to attend to. Further, there is another brother who, until about a week ago, resided with the parents. The circumstances in which this brother left the parent's home, to live outside the Ballarat area, was not explored in the evidence. I was told that he was on disability benefits, and it is accordingly unlikely that he left to obtain employment elsewhere. The lack of information concerning this issue in the affidavit material filed on behalf of the accused raises the suspicion that the departure from Ballarat of this brother is related to this bail application.

25 Thirdly, the evidence concerning the ill-health of the parents is scant. It amounts to a few lines in a letter from a general practitioner, without descending into any detail as to the physical limitations upon the parents. In my view, the kinds of ailments which are described are not uncommon for people in their sixties. There is no evidence of any real inability of the parents to look after themselves. In any event, as I have said, the accused's brother continues to reside in Ballarat and is available to assist in the heavier home duties, such as mowing lawns and chopping wood.

26 As to the strength of the case against the accused, I note that it is conceded that the case in respect of the aggravated burglary charges is "relatively strong". As to the other charges, I have already noted that the accused initially gave what is, on his on his most recent statement, a false account of what happened. Further, the accused admits that he was "wild" at the allegations made about him by the victim, who he had never met, and that he said to the co-accused "I should go and sort this shit out once and for all and see what his problem is." As a result, the accused and co-accused attended at the victim's house, with the obvious intention of having an altercation with, and, I infer, causing harm to the victim. The accused admits that he took a "stick" with him as did his co-accused.

27 The evidence is completely silent as to how it was that the flammable liquid used to set fire to the victim and his house came to be present in the victim's hallway. It was either present in the hallway when the accused and co-accused arrived, or the accused and co-accused took the flammable liquid with them to the victim's home. If the latter situation were established at trial, the accused would be facing a long sentence if convicted, irrespective of whether it was the accused or co-accused who distributed the flammable liquid and set it alight.

28 I turn to consider the admitted criminal history of the accused. The accused was first convicted in 1996 for breaching an intervention order. Next, he was convicted in July 1998 for intentionally causing injury and failing to answer bail in respect of that offence. I accept that there is a reasonable explanation for the failure to answer bail, and do not consider this aspect further.

29 In the period 1998 to 2005, the accused was convicted of a number of driving offences, including unregistered driving of a motor vehicle, drink driving and careless driving. The repetitiveness of these offences demonstrate a disregard for legal restraints upon his behaviour, notwithstanding existing convictions and disqualifications. Further, I note that the accused was convicted in 2003 of two shoplifting offences.

30 For the above reasons, I am of the view that the accused has failed to show cause why his continued detention is unjustified. I take particular account of the fact that there is a "relatively strong" case with respect to the two counts of aggravated burglary, which require the accused to show cause, and that the case in respect of the other charges is far from weak. The range of factors relied upon by the accused in support of his case to show cause are not, even when taken together, sufficient in my view to satisfy the onus upon him.

[1] (1997) 97 A Crim R 19.

[2] (1997) 97 A Crim R 19 at 29.

[3] (1997) 97 A Crim R 19 at 29.

[4] (1997) 97 A Crim R 19 at 29.

[5] (1997) 97 A Crim R 19 at 30.

[6] In the matter of Browne-Kerr, per Coldrey J, referred to in Abbott (1997) 97 A Crim R 19 at 27-28.