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[2005] VSC 443
Supreme Court of Victoria
2005-10-26
Hollingworth J
Original judgment source is linked above.
CRIMINAL LAW - bail - murder - strong provocation defence - delay - exceptional circumstances made out - bail granted
1 This is an application by Rick Anthony Waters for bail until the trial, which has been set down for hearing on 20 February 2006. The applicant has been charged with the murder of his father, Edward Waters, on 19 February 1996. His father was 70 years old at the time. The applicant was charged on 3 August 2004 and has been in custody since that date. Early this year he was committed to stand trial.
2 He has made two previous applications for bail, one before Gillard J in December 2004 and one at his committal. Both were unsuccessful.
3 The applicant was born on 31 December 1958 and is presently aged 46. At one point he was in the navy, but he left the navy in the late 1970s and since then has been occupied primarily in the building industry.
4 It is perhaps trite to state that the general principle is that a person accused of an offence is entitled to bail. However, where the person is charged with certain specified offences, such as murder, the position is reversed. In this case the applicant must satisfy me that exceptional circumstances exist which would justify the granting of bail.
5 Even if exceptional circumstances are made out, the court must refuse bail if it is satisfied that there is an unacceptable risk that if the applicant is released on bail he may commit one or more of the following: fail to answer bail, commit an offence whilst on bail or interfere with a witness. The burden of establishing unacceptable risk lies on the Crown. In the present case, the Crown argues that exceptional circumstances do not exist and opposes bail accordingly. However, the Crown does not argue that there is any unacceptable risk in this case.
6 The Act does not define what exceptional circumstances are and it is perhaps trite to say that it depends on the circumstances of each case. There must be factors present which take the case out of the norm and which would answer the description "exceptional".
7 However, the two enquiries often overlap in the sense that the unacceptable risk factors in a given case may be considered when determining whether exceptional circumstances exist.
8 I will briefly set out the circumstances relating to the death of the deceased and the current charges.
9 The deceased was a pastrycook and during the accused's childhood the family moved frequently around. The deceased had five children. The Crown does not challenge the evidence in the depositions that most, if not all, of the five children of the deceased were sexually abused by him in a serious manner during their childhoods. Indeed, it appears that the applicant left home early and went and joined the navy at least in part in order to avoid ongoing sexual abuse by his father.
10 The applicant returned to Australia around 11 February 1996. He had been working overseas for a period in excess of one year. When he returned to Australia he found that his father was in a depressed state and, indeed, had been making various threats to family members that he intended to commit suicide. As a result of those threats, and an apparently deliberate overdose of insulin, the deceased had been admitted to the Jeparit Hospital for observation and was released into the custody of the applicant on 14 February 1996. The applicant had returned to his parents' home in Jeparit for the express purpose of looking after his father.
11 His father died two days later, on 16 February, from asphyxiation by strangulation. At that time it appeared that the deceased had hung himself and a Coroner's inquest made a finding of suicide. The applicant at the time made several written statements in which he said that the deceased had spoken of suicide and which were supportive of the finding of suicide.
12 More than eight years later, on 2 August 2004, the applicant telephoned the Cheltenham Police Station and spoke to a Constable Sava. He admitted to Constable Sava that he had in fact come up behind his father on 16 February 1996, wrapped a rope around his throat and strangled him. He described to the policeman how he had then made it appear as if his father had hanged himself.
13 The following day he was interviewed by members of the Homicide Squad. I have viewed the video tape of the interview, as well as reading the transcript. It is fair to say that the applicant made full and frank admissions to the police about the events of that day and, indeed, went into some detail about the circumstances leading up to and after the killing.
14 It is also apparent from the depositions that the applicant has at various times and in varying stages of sobriety made statements to his siblings, his wife and his three children to the effect that he had killed his father.
15 Mr Kennan SC, who appears with Mr Laschko on behalf of the applicant, submitted that there were a number of reasons why exceptional circumstances were made out in this case. I will set them out in the order in which they were presented to me, although for reasons that I am about to express, only two of them are matters that really could be regarded as exceptional circumstances in my view.
16 The following matters were put to me. First, that the applicant had experienced extreme sexual abuse whilst he was a child, which had led to ongoing depression and turmoil in his adult life. Secondly, it was said that the applicant's mother and siblings did not accept the truth of the confessions that he had made to them. Thirdly, it was said that he has had to cope with depression whilst he has been in gaol; in relation to the question of depression, the evidence is that he apparently attempted suicide by an overdose in July 2003.
17 The fourth matter put to me was the absence of any relevant prior convictions. The fifth matter was that the death of the deceased had occurred as long ago as 1996. The sixth matter was that the applicant has a wife and home to return to, will have a job to go to and support from both his wife and his employer. The seventh was that, if released from custody, the applicant will be able to be under the ongoing and more intensive care of Dr Lester Walton, a psychiatrist who has seen him briefly on a number of occasions whilst he has been in custody.
18 The eighth matter is that he has been in custody some 14 months already; the previous bail application was made just before Christmas last year and again at committal and the delay since then constitutes exceptional circumstances which did not exist at the time of either of those two previous applications. Finally, perhaps most significantly, the matter is put in terms of the strength of the Crown case.
19 In relation to the first seven items, in my opinion they do not constitute exceptional circumstances in the relevant sense. Some of them are relevant to the question of unacceptable risk and I will come back to them shortly. I do, however, turn to consider in some detail the questions of delay and the Crown case.
20 In relation to delay, as I have indicated, he was arrested in August 2004. The trial was due to commence earlier this week, a date which would have been almost 15 months since his arrest. Because of the service of a late expert report by the applicant, the trial was not able to proceed this week. That expert report responds to a report which was served by the Crown in late June of this year. Even allowing that there has been some delay on the part of the applicant in the preparation of the report, it seems to me that the delay of some 15 months so far is not the applicant's fault. The trial will not commence now before 20 February 2006. Part of the delay that will take place between now and the trial is due to the Christmas break and the unusually busy criminal lists in this court at the moment, for which matters I would not hold the applicant responsible either.
21 Whether a delay is or is not so inordinate as to constitute exceptional circumstances must obviously vary from case to case. In the circumstances of this case, and in part influenced by the length of time since the offence is alleged to have occurred and the length of time in which this matter has been hanging over the applicant, I conclude that the delay here, quite apart from the question of the strength of the Crown case, is sufficient to constitute exceptional circumstances.
22 In relation to the strength of the Crown case, the matter was put on two bases. When the matter was first argued before Gillard J, it was put on the basis that his Honour ought to have concluded that it was unlikely that the confessions, and in particular the record of interview, would be admitted into evidence by the trial judge. Having considered the evidence at some length, his Honour was not prepared to draw any conclusion about the strength of the Crown case or, perhaps more accurately, was not prepared to find that it was a weak Crown case.
23 The matter has been argued on slightly different bases before me. It proceeded on the assumption, for the purposes of the bail application, that the confessions, and in particular the record of interview, would be put before the jury. However, it was argued that the jury would be likely to exclude or give little weight to the confessions, for a number of reasons. I do not propose to go into those in detail and will just briefly mention them.
24 First, it was said that there were a number of clear inconsistencies in the record of interview. Without going into them in detail, it seems to me that the matters that have been mentioned so far are not of such strength or weight that I could say that the Crown case is weak in that regard.
25 I was then taken to the expert reports of Dr Lynch, Dr Gall and Mr Dorman. It was submitted on behalf of the applicant that those were all strongly supportive of a finding that the evidence as to suicide or homicide was neutral. In some cases I was taken to parts of the relevant reports and urged to accept that the jury, if they accepted that evidence, would positively find that it was suicide rather than homicide.
26 The Crown did not agree with the proper characterisation of those expert reports and, as I said in passing to the learned prosecutor, I accept that a number of those reports proceed on the basis of assumptions which are not necessarily made out in the material before me. Whether they would be made out at a trial is a matter on which I cannot speculate.
27 For those reasons I am not prepared to say, in relation to this question of the weight that the jury might give to the confessions, that the Crown has a weak case.
28 However, the second basis on which the Crown case was raised related to the possible defence of provocation. This is a matter which appears not to have been argued before Gillard J.
29 At several places in the record of interview, the applicant spoke of what was going on at the time that he says he strangled his father. In particular, he referred to the fact that he was furious. His father had allegedly said to him that, and I am reading here from p.218 of the depositions:
"The next morning he said 'Go and get me some cigarettes' and I said, 'I've actually brought you a carton of Benson and Hedges back duty free', and he said something about - along the lines of 'They're not what I smoke, you f'in dickhead', or something. So that started a rather large argument, where Ted had actually started bringing up stuff about us kids and how we ruined his life and he should have drowned us at birth and all that sort of - just garbage. I was quite ropeable at the time. And there was a - I'd gone out the back yard I think to get - to have a cigarette or something, and there was a piece of rope laying on the ground and I picked it up and I came back in."
30 He then goes on to describe how he came up behind his father and strangled him with the rope.
31 Later on in the record of interview, he answered further questions about the fact that he was furious and about the alleged provocative conduct on the part of his father.
32 It was submitted on behalf of the applicant that the evidence is such as to give rise to a strong defence of provocation, which would or may reduce the charge to manslaughter. In that regard, I was referred to the decision of Gillard J in Memery[1], in which his Honour was considering a case involving an application for bail in circumstances where there could be a defence of self defence. In that case, his Honour held that if there was sufficient evidence to satisfy the court that there were good prospects that a defence of self defence would be upheld, with the result of an acquittal or, at worst, a verdict of manslaughter, then the applicant would be prima facie entitled to bail.
33 In the present case, the learned prosecutor quite properly conceded that, on the material in the depositions, provocation is clearly open as a defence. Indeed, he conceded that, on the basis of the material presently there, he would leave the matter to the jury, even if it was not raised by the applicant. He also conceded that the allegation that this conduct took place in the context of a history of childhood sexual abuse is not challenged by the Crown. Even were the Crown not to have made those concessions, in my opinion, the defence of provocation is clearly open on the depositions and, in my opinion, strongly open. In those circumstances, I am satisfied that exceptional circumstances exist in relation to the question of the strength of the Crown case as well.
34 I turn then to consider the question of risk. As I said at the outset, the Crown does not submit that the applicant presents an unacceptable risk. A couple of issues were raised in the evidence that I do want to mention, because, whilst not formally raised by the Crown, they are matters in relation to which I want the applicant to be well aware of my position.
35 The first relates to his use of alcohol. The evidence from his wife and from Dr Walton is that he has had ongoing and significant problems with alcohol abuse, and that they have, in the past, led to domestic violence and possibly also inappropriate communications with his children. Accordingly, I propose to make it a condition of bail that the applicant refrain from alcohol use at all times whilst on bail, and I will make him subject to random alcohol testing at the discretion of the officer in charge of the Springvale Police Station. That does not mean that when he attends three times a week he may only be randomly tested at that stage. He may be randomly tested at any time. Mr Waters, I expect you to stay off the grog, because alcohol appears to me to represent the most serious risk of you going off the good tracks you are currently on.
36 The second matter relates to contacting witnesses. I will make it a condition of your bail, as it would be of all bail, that you not contact witnesses. I will exclude from that your wife and the informant and other persons nominated by the informant. In particular, you may not contact your children, your mother, your siblings or anybody else who is a witness. "Contact" means direct or indirect contact. The only exclusion I will make from that is that, in so far as some members of your family may be surprised by a sudden absence of contact now, I would allow your lawyers to communicate the nature of the orders I have made with members of the family, so that they are not surprised by your silence.
37 Counsel, I will hand out a copy of the proposed orders, which I will run through on the transcript with Mr Waters.