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Walsh v State of Queensland

 

[2007] QCA 438

 

COURT OF APPEAL

 

McMURDO P

WILLIAMS JA

HOLMES JA

 

Appeal No 10977 of 2007  
LUCAS JAMES WALSH Appellant (Applicant)
and  
STATE OF QUEENSLAND     Respondent (Respondent)
Appeal No 11036 of 2007  
GREGORY KEITH LYNAM Appellant (Applicant)
and  
DIRECTOR OF PUBLIC PROSECUTIONS Respondent (Respondent)

BRISBANE 

DATE 10/12/2007

JUDGMENT

 

MR D LYNCH (instructed by Ryan & Bosscher) for the appellant Walsh

 

MR D LOCANTRO (of Locantro Lawyers) for the applicant Lynam

 

MS V LOURY (instructed by the Director of Public Prosecutions (Queensland)) for the respondents

 

THE PRESIDENT:  Justice Williams will deliver the reasons in Walsh first.

 

WILLIAMS JA:  The appellant is charged with the murder of Joshua Mill, the deceased.  He was killed on 20 October 2007.

 

The appellant's application for bail to a Judge of the Trial Division of the Court was refused on 16 November 2007.  From this refusal the appellant has appealed to this Court.

 

The circumstances of the offence with which the appellant is charged were summarised by the learned primary Judge as follows:

 

"In the early hours of the morning of 20 October this year the applicant attacked a man who had been inside a taxi.  The man, the deceased, and his friends were inside the taxi.  They had just left a local nightclub.  For some unexplained reason the applicant, presumably intoxicated or stupefied, approached the taxi looking to fight one of the occupants.  He appears to have attempted to have assaulted that occupant inside the taxi.  All occupants then got out of the taxi and the attacked occupant became engaged in a fight with the applicant.  Soon after that violence began, another man, apparently unknown to the applicant, joined in the fight and hit the deceased in the head.  He then fell to the ground.  The applicant continued to punch the deceased after he was, as he must obviously have been, unconscious on the ground.  There are several descriptions of the punches.  Some witnesses described them as massive, with the deceased's head bouncing off the ground with each punch the applicant inflicted.  The other man involved in the attack kicked the deceased.  Subsequently, the applicant, without providing assistance or calling for it, left the scene of his attack.  Video footage clearly implicates the applicant in this fatal assault."

 

It should be said that on the prosecution case the other person referred to in that quoted passage was Lynam.

 

On the evidence summarised by his Honour, there is a strong case that an assault by the appellant upon the deceased contributed to the death of the deceased.  It is to be emphasised that this proceeding is an appeal from the exercise of the discretion conferred on the learned primary Judge by section 16 of the Bail Act 1980 (Queensland).

 

This Court will set aside the exercise of that discretion only if it is shown to have miscarried; House v. the King (1936) 55 C.L.R. 499 at 505.

 

The only ground of appeal in the original notice of appeal from the refusal of bail is that the learned primary Judge "erred in finding that there is a strong case for murder and that, even if a strong case for manslaughter exists, there are different consideration with respect to the granting of bail."

 

At the outset of the hearing of the appeal leave was granted to the appellant to add a further ground, namely, that the learned primary Judge's discretion miscarried in finding the appellant was an unacceptable risk of failing to appear and/or committing further offences.

 

It must be said immediately that the initial ground of appeal is less than compelling. 

 

That first ground on which the appellant seeks to demonstrate that the discretion of the learned primary Judge miscarried is plainly misconceived.  It is clear that his Honour made no finding that "there is a strong case for murder against the appellant."  What his Honour actually said was, "There is an adequate case of murder and a strong one of at least unlawful killing."

 

When one focuses on the case of manslaughter rather than murder one can see that the appellant's ground of appeal remains without substance.

 

In this regard, under section 16(3) of the Bail Act, because of the circumstances of the killing of the deceased, the learned primary Judge was obliged to "refuse to grant bail unless the appellant shows why the appellant's detention in custody is not justified."

 

The considerations which weighed with the learned primary Judge were the risk of flight and the risk of further offending whilst on bail.  These considerations were undeniably relevant to the exercise of the discretion under section 16 of the Bail Act.

 

It was said by counsel for the appellant in oral submissions that the learned primary Judge failed to give adequate weight to the circumstance that the appellant voluntarily surrendered himself to the police.  It is not entirely clear on the material at precisely what time he did in fact surrender to police.  He had apparently returned to his hometown of Lithgow in New South Wales and went with his father to the Lithgow Police Station, apparently in response to knowledge that the police were looking for someone in connection with an assault in Caloundra.

 

It is not clear whether or not he then knew that the deceased had died.

 

Flight was expressly considered by the learned primary Judge.  He said, in the course of his reasons:

 

"There are two concerns.  One is the risk of flight.  He proposes to live in New South Wales with a $50,000 surety from parents.  It is true that, in respect of his prior criminal history, there is no breach of bail involved.  It is also the fact that he surrendered himself to police once he became aware that a man in a white t-shirt was being sought in respect of the killing but, at that stage, it seemed he did not have legal advice and may well not have appreciated the seriousness of the situation."

 

The view taken by the learned primary Judge was that the strength of the case of manslaughter and the propensity of the appellant to acts of personal violence meant that these risks were of sufficient magnitude that his Honour could not be satisfied that the appellant's continued detention was not justified.

 

It is not open to this Court to substitute its view of the extent of the risks posed by admitting the appellant to bail unless it is shown that the learned primary Judge erred in reaching the conclusion that the level of such risks was unacceptable.

 

In my view, the appellant has not discharged that onus.

 

In so concluding, I have also had regard to the fact that it is agreed that it would be about 18 months before a trial of the charge could be had in this Court.

 

The appellant has not advanced any argument which would lead this Court to conclude that the exercise of the primary Judge's discretion miscarried in this case.

 

The appeal should be dismissed.

 

THE PRESIDENT:  I agree.

 

HOLMES JA:  I agree.

 

THE PRESIDENT:  The order in Walsh is that the appeal is dismissed.

 

I turn now to the matter of Lynam.

 

Gregory Keith Lynam has been charged with one count of murder and two counts of assault occasioning bodily harm.  He applied for but was refused bail in the Trial Division of this Court on 6 November 2007.

 

He appeals against that order, contending that the primary Judge erred in "(a) giving too much weight to the contents of a domestic violence order application taken out by police; (b) not giving enough weight to the two affidavits of Kerrianne Leigh Morgan and (c) there was no basis for a finding that there was a risk that the applicant would re-offend."

 

He also applies to this Court to grant bail afresh on the basis of new material demonstrating changed circumstances.  It is this application with which I will deal first.

 

This application must be considered in the light of section 16(3) Bail Act 1980 Queensland which places the onus on the applicant to show cause why his detention in custody is not justified.

 

Mr Lynam is 25 years old.  He has some criminal history but no convictions and none of it relates to matters of violence. On 11 march 2005 he was, however, dealt with for breaching a bail undertaking on 7 February 2000.

 

It is common ground that if this matter proceeds to trial the trial is unlikely to be heard for 18 months to two years. 

 

The broad facts surrounding this case have already been referred to in Justice Byrne's summation of them in Walsh's associated application which was refused for the reasons delivered by Justice Williams a few months ago.

In giving reasons for refusing Lynam's application, the learned primary Judge referred to submissions made on Mr Lynam's behalf that there were weaknesses in the prosecution case against him in that at least some witnesses did not implicate him in the serious assault against the deceased.

 

Her Honour also referred to an affidavit in support of the appellant's application for bail from his partner and the mother of his six-month old daughter, Ms Morgan.  She deposed that he was "loving and caring" and that she knows him to have "a good character" and that he is a "nice person".  Her Honour noted, however, that Ms Morgan in a prior recent application for a domestic violence order had given a different account of the relationship and so the Judge discounted the reliability of Ms Morgan's more recent affidavit.

 

The Judge considered that Lynam's previous history of his relationship with his partner and his criminal history suggested that he had a serious problem with alcohol abuse.  In the circumstances, her Honour was not satisfied that he had discharged the onus imposed upon him by the Bail Act, despite his willingness to reside with his parents under a curfew and to agree to the non-consumption of intoxicating liquor or drugs.  Her Honour considered that "he constitutes still a risk of re-offending."

 

The further material relied now by the applicant as shown in the change of circumstances warranting the grant of bail is that the applicant would be willing, or is willing to submit to daily urine tests for the presence of drugs or alcohol in his blood through QML's Maroochydore laboratory.  His father would be prepared to ensure that he met that requirement and affidavit material from the applicant's solicitor is to the effect that the manager of the laboratory confirmed to him that such testing was available at a cost of between 40 to $60 per test.  The result of the tests would be almost immediately available and could be presented to police when he reported each day.

 

The applicant's solicitor had prepared draft orders incorporating those conditions in a bail order. Following discussion with the applicant's solicitor in the Court proceedings emerged that those orders will have to be amended slightly in any case to deal with the fact that the laboratory would not be open on Christmas Day.

 

The applicant is still relatively young.  He has the support of his family and partner.  He seems, on the present available evidence, less involved in the direct violence leading to the death than his co-offender.  He has no prior convictions for violence.  He has prospects of employment if granted bail. 

 

The orders proposed for his bail are very onerous, indeed, almost amounting to home detention.

 

In my view, they make it unlikely that he will now re-offend whilst on bail. 

 

Because any trial will be unlikely to proceed for 18 months to two years, I am satisfied that in all these circumstances he has shown sufficient cause as to why his detention in custody is not justified if given bail on these onerous terms.

 

I would grant the application to this Court for bail and grant him bail as per the amended draft order provided to the Court by his solicitor and initialled by me.

 

Because of the order I propose, if it becomes the order of the Court, the appeal from the order of the primary Judge becomes redundant and would be dismissed.

 

WILLIAMS JA:  On the renewed application in this Court, the applicant relied on circumstances not before the primary Judge.  This Court must consider the matter in the light of the changed circumstances.

 

The case against Lynam is not as strong as that against Walsh who is also charged with the murder of Mills. 

 

Given the changed circumstances and the fact that Lynam is willing to subject himself to the very serious limitations on his liberty contained in his draft bail order, I would not dissent from the view that bail should be granted on those terms.

 

I agree with the orders proposed by the President.

 

HOLMES JA:  I agree with what the President and Justice Williams have said and with the order proposed.

 

THE PRESIDENT:  The orders in this matter then are as I have proposed.

 

The fresh application for bail is granted on the terms of the amended draft order initialled by me.

 

The changes of significance are a few grammatical changes.  (1) comes out because it is duplicitous; (4) becomes adding in "each day but not at all on Christmas Day".  The (a) in (5) comes out; (9) "that the applicant" comes out and after "every day" is added "except Christmas Day" and in (10) and (12) the phrase "that it's unnecessary that the applicant" and (13) the phrase "that it's unnecessary that the applicant" comes out.

 

...

 

THE PRESIDENT:  Of course, the appeal is dismissed. 

Close

Editorial Notes

  • Published Case Name:

    Walsh v State of Queensland; Lynam v Director of Public Prosecutions

  • Shortened Case Name:

    Walsh v State of Queensland

  • MNC:

    [2007] QCA 438

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Williams JA, Holmes JA

  • Date:

    10 Dec 2007

Litigation History

No Litigation History

Appeal Status

No Status