Applicant Charged with Murder Applies for Bail
Re MJ [2021] VSC 592 (17 September 2021)
The applicant was charged with murder due to an alleged offending from 2019. He applied for bail asserting that there are exceptional circumstances to warrant the same. The Court, in determining whether or not to grant the bail, assessed the strength of the prosecution case and the seriousness of the alleged offending.
Facts:
On 26 April 2019, around 7:40pm at the apartment of the deceased where the latter arrived with his partner, repeated gunshots were heard by a number of witnesses. A jogger discovered the deceased body which was shown to have sustained four gunshot wounds in total. AA, an associate of the applicant, was arrested in relation to an unrelated matter on 16 February 2021 and told police that he had personal knowledge that the applicant was responsible for the murder of the deceased. AA submitted that the applicant admitted to shooting the deceased and stated after he ‘shot one in his face, the screaming stopped’.
On 21 April 2021, the applicant was arrested at his parents’ residence and charged. The applicant was arrested almost two years later on 21 April 2021 and charged the following day by Detective Leading Senior Constable Nicholas Hayes. He has been in custody since his arrest, a period of 4 months and 27 days. The prosecution relies on CCTV footage, forensic evidence and statements made to police by an associate of the applicant, implicating the applicant in the murder by relating admissions the applicant is alleged to have made about his involvement.
On 27 August 2021, the applicant applied for bail on a charge of murdering the deceased on 26 April 2019.
Issue:
Whether or not exceptional circumstances were established to grant bail.
Applicable law:
Bail Act 1977 (Vic) s 1B - when interpreting and applying the Act, the Court is required to take into account the guiding principles set out herein.
Bail Act 1977 (Vic) s 3AAA - where in consideration of this provision, the charge of murder is the most serious offence there is.
Bail Act 1977 (Vic) ss 4AA, 4A - provides that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.
Bail Act 1977 (Vic) ss 4D, 4E - provides that if the Court is satisfied that exceptional circumstances exist justifying a grant of bail, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.
Re KE [2021] VSC 175 - Kaye JA said that to fulfill the requirement of 'exceptional circumstances,' the circumstances relied on by the applicant must be such as to take the case out of the ordinary. The circumstances must be exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail, it may be established by a combination of circumstances which, individually, might not be considered exceptional.
Re Roberts [2020] VSC 793 - Beach JA said that to establish that the circumstances of the applicant’s case are, in a general sense, ‘exceptional’ is not sufficient, there must be exceptional circumstances that justify the grant of bail.
Roberts v The Queen [2021] VSCA 28 - Maxwell P, Niall and Emerton JJA, after some analysis of the cases, discussed a number of factors commonly relied upon to amount to the threshold of exceptional circumstances.
Re Shea [2021] VSC 207 - provided that despite the gravity of the alleged offending and sentence likely to be imposed if the applicant were convicted, it is strongly arguable that a two and a half year delay, let alone three year delay, is one that, in and of itself, amounts to exceptional circumstances justifying bail.
DPP v Jason Ghiller [2000] VSC 435 - where it was held that 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.
Analysis:
The prosecution's case relied upon various matters as evidence of the strength of the case against the applicant, including reports from local residents and relevant items found within the vicinity of the scene forensically linked to the applicant. As to AA's initial reluctance to provide sworn statements to police, were due to AA’s genuine fear of reprisals against him and his family in the context of the applicant’s history and his alleged ties to a criminal syndicate. The offence of murder is obviously of the utmost seriousness. It was submitted by the respondent that the allegations against the applicant demonstrate a particularly serious example of the offence of murder, noting that the deceased was killed ‘execution style’ by multiple gunshots, which occurred in a public place during the early hours of the evening while other people were in the general vicinity.
The killing was pre-planned and was motivated by an alleged grievance the applicant and his associates held towards the deceased. The applicant does have a criminal history but it is limited and there is no history of bail offending. The applicant’s former partner states that she is in desperate need of the applicant’s assistance to care for her and their two children, particularly while she is recovering from a caesarean section. The applicant has a strong work history, he would have access to employment if granted bail.
There is likely to be a significant delay in the matter progressing to trial, although any delay would not be inordinate or itself amount to an exceptional circumstance that justified the grant of bail. At the time this bail application was heard, the applicant had spent approximately four and a half months in custody. The applicant has been able to work and undertake courses whilst in custody at MAP; engage in contact with family members, including regular video calls with his son; and leave his cell and access outside areas for more than eight hours a day, seven days per week, subject to operational lockdowns. An electronic monitoring device has the potential to be removed by the person wearing it, and allow sufficient time to abscond before police could be notified.
The applicant’s father, MC, offers a surety of $400,000 by way of equity in a property notwithstanding the seriousness of the allegations against him.
Conclusion:
The Court concluded that exceptional circumstances were not established. The Court refused the application for bail. The Court is not persuaded that the continued remand of the applicant will be productive of a future injustice.
