Lock v R

Events of 20 April 2014

1. The deceased was born on 5 October 2011. Her mother MW separated from her father JM. MW subsequently commenced a relationship with the applicant, with whom she resided in Coffs Harbour.
2. As at April 2014, MW was in the early stages of pregnancy with the applicant's child. The applicant's nephew DM was at that time 14 years of age and regularly stayed with the applicant.
3. Between Saturday evening on 19 April 2014 and Sunday evening on 20 April 2014, there were a number of family gatherings in and around Coffs Harbour for the Easter weekend. The deceased was in the company of various family members throughout that time.
4. The applicant, MW, DM and the deceased arrived home at about 5pm on Sunday 20 April 2014. MW briefly visited her mother and then returned to the house at 7pm. At 7:15pm the deceased, after being fed some party pies, was put into bed by MW and the applicant and the bedroom door was closed. The deceased was apparently well, apart from the burns sustained some days earlier, when she was put to bed at that time.
5. At 7:30pm, the deceased's mother and DM went to KFC to pick up dinner. They were absent from the house for approximately 15 minutes. CCTV footage confirms the timing. The applicant was alone with the deceased during that period. When they returned, the deceased's mother observed him leaving the deceased's bedroom, shaking his arm. He said that the deceased had vomited on him.
6. The applicant and the deceased's mother checked on her after they had had dinner. She appeared obviously unwell. DM described the deceased as "really, really pale" and "talking very softly". The deceased was taken to Coffs Harbour Hospital and was unconscious on arrival. She died early at 2:15am on 21 April 2014 following treatment by emergency, surgical and intensive care staff. No history was given to explain the condition of the deceased.
7. The applicant. MW and DM were all interviewed by police. Part way through his interview on 1 May 2014, the applicant was placed under arrest and charged.

Injuries observed prior to death of the deceased

1. Bruises and burns were observed on the body of the deceased in the weeks prior to her death on 21 April 2014. On 19 March 2014, carers at the deceased's family day care noticed one large bruise below her jaw and three smaller bruises below her jaw on the right. MW was contacted in relation to those bruises.
2. The deceased was taken to a Dr Raza on 7 April 2014 in relation to an upper respiratory tract infection. MW told Dr Raza that the deceased had been bruising easily. Blood tests were ordered but were not taken at the time of the consultation, apparently due to the deceased's infection.
3. On 14 April 2014, MW took the deceased once more to see Dr Raza. The issue on that day was burns to her feet and buttocks. It was reported to Dr Raza that the burns had been sustained two days earlier when the deceased accidentally jumped into hot water. The Crown Case Statement states that the burns were in fact sustained on 9 April 2014, five days prior to the appointment with Dr Raza. The deceased appeared to Dr Raza to be in good health. His opinion was that the burns were superficial and that there was no evidence of any infection.

Observations made of the deceased at post-mortem

1. The post-mortem was conducted by Dr Allan Cala, forensic pathologist, on 23 April 2014. It revealed the following injuries:

Abdominal

• Large area of recent (within 6 to 12 hours of death) mottled bruising on front of abdomen.
• Splitting/laceration of the small intestine mesentery (part of the peritoneum) that caused "rapid and torrential" bleeding into the abdominal cavity.
• Laceration and fresh (i.e. new) haemorrhages in the liver.
• Laceration of the retroperitoneum (the soft tissue area at back of abdomen).
• Fresh haemorrhages in the right side of the abdomen next to umbilicus and in left upper quadrant of abdomen with no inflammation.
• Haemorrhage of 50mm diameter around anus. No evidence of rectal perforation (i.e. holes in the rectum).
• Four sections of anus examined microscopically revealed fresh haemorrhage.
• Fresh haemorrhage in soft tissue immediately beneath the mucous membrane, extending into the lamina propria, with inflammation.
• Fresh haemorrhage in the submucosa and the serosa 6cm above the anal verge.

Burns

• Two red-crusted lesions on the left side of the labia majora (8mm and 10mm in diameter). One crusted lesion (5mm by 3mm) on the right side of labia majora.
• Full-thickness burn of 60mm by 20mm on right foot. When examined microscopically, complete loss of the epidermis shown.
• Two smaller burns on right foot.
• Crusted area of 30mm by 10mm along the skin fold at the junction of the right lower buttock and right upper thigh.

Head injury

• Small left-sided subdural haemorrhage. Dr Cala opined that this injury could have been caused by a small head trauma, such as the deceased hitting her head on the toilet bowl while vomiting.

Medical opinion regarding cause of the deceased's injuries

1. The Crown Case Statement states that the injuries to the deceased's mesentery were so severe that retroperitoneal blood vessels (namely, the aorta and inferior vena cava), usually concealed by mesenteric fat, were visible to surgeons through the torn mesentery. Medical evidence to be called by the Crown at trial will be to the effect that blunt force trauma would be required to cause such severe injuries. There will also be evidence that the blotchy and irregular nature of the bruising on the deceased's abdomen is suggestive of multiple blows, such as punches, or fingertips exerting considerable pressure. Dr Cala opined that, "Natural disease played no role whatsoever in this child's death".
2. There was no history of accidental trauma given when the deceased was taken to hospital. Anaesthetist Dr Joanna Sutherland gave an opinion that lack of valid history given delayed diagnosis, which increased the likelihood of a poor outcome.
3. The possible presence of an "underlying malignancy", rupture of which caused the deceased's health to deteriorate rapidly, will apparently be a live issue at trial. The deceased's abdominal lymph nodes were observed to be large and hard during her treatment at hospital on 20 April 2014. In the absence of a history explaining the deceased's internal bleeding, her treating doctors raised an underlying cancer as a possibility. However, the deceased's lymph nodes were normal upon microscopic examination at post-mortem. The observing doctor, Dr Ella Sugo, saw no evidence of "underlying cancer" either macroscopically or microscopically.
4. The burns to the deceased's feet and buttocks were examined at post-mortem. Dr Cala was of the view that the severity of the deceased's burns had not been appreciated by her treating doctor Dr Raza on 14 April 2014. Forensic clinician Dr Christine Norrie opined that the burns were indicative of forced immersion scald burns by reason of their clear upper limits and absence of splash marks. The burns were symmetrical, circumferential and bilateral.

Interview with the deceased's mother

1. When MW was interviewed by police on 1 May 2014, she explained that she had packed her bags to leave the applicant. She then said this: "Then he said something about the baby [not the deceased] or whatever, I said, OK well I'll organise the abortion and everything and that'll be it and he goes, "You kill my baby, I'll kill yours" and that was, yeah went mental about that and then you know we had our talk, he cried and apologised, like he just, he has one of them minds where he doesn't think before he speaks."
2. Apparently MW was pregnant at the time with the applicant's child but did not go on to give birth. She told police that the argument about packing her bags occurred "not long ago…maybe like two weeks or something".
3. When police asked MW whether the applicant had ever made comments about hurting the deceased, she stated that the applicant said "something about her being spoilt and like he was judgement [sic] my mum or something. I don't know, he basically said something he'd kill my whole blood line and leave me standing there and then see how I felt". This comment was made "not that long ago". She said that she spoke to the applicant's mother about this and asked "am I meant, like, should I be scared of him kind of thing" and recounted that the applicant's mother said "he's always spoken like that, he's always spoken twisted… but he's never done anything".
4. MW also recounted that "then like he'd just, like the other day on the phone he told me that he'd gut me and shit like that…like he just said some stuff like real sickening shit that I'm just like, like I don't, I don't feel comfortable around him now".

Submissions and consideration on release application

1. Mr Scragg appeared on behalf of the applicant at both the application before Campbell J and the application before me. He will also be appearing for the applicant at his pending trial before Adams J.
2. Mr Scragg relied upon three factors in combination in support of his submission that the applicant is able to show cause why his detention is not justified. First, he relied upon the fact that the Crown case is not strong. Second, he relied upon the significant delay (the applicant having been in custody since April 2014). Third, he relied upon a combination of subjective features including strong family support, proposed bail conditions and the fact that the applicant's father is terminally ill. I will consider each of these submissions in turn.

The strength of the Crown case

1. Ms Scragg submitted that the applicant's discharge at committal in relation to the child sexual assault offence significantly altered the Crown case. Prior to that charge being dismissed, it was the Crown case that the applicant had a motive for killing the deceased. It was submitted that this change in the Crown case brings into sharp focus the issues of whether the alleged injuries were occasioned by a momentary loss of self-control and whether the Crown can exclude the hypothesis that others who had access to the deceased in the relevant time frame caused the injuries.
2. Mr Scragg submitted that the case was not a strong one on two bases. First, it was submitted that the deceased's mother MW and the applicant's 14-year-old nephew also had access to the deceased in the period leading up to her death. Second, it was submitted that there is a reasonable possibility that the deceased died from some form of "underlying malignancy". If the Crown could not exclude, beyond reasonable doubt, the reasonable possibility that underlying disease was the cause of death then the applicant would be acquitted at trial. In relation to this latter argument he relied upon the following evidence.
3. In the report to the coroner it is recorded "it was suggested that this haemorrhaging [from the mesenteric causing death] could have resulted from a malignancy rupture".
4. Dr Tsang, surgeon, in his clinical notes wrote: "there were numerous large hard lymph nodes present? tumour rupture or lymph node rupture…? retroperitoneal malignancy." In his statement Dr Tsang states, "[the] most likely cause of internal bleeding…is…child abuse…or a malignancy…"
5. In the operation report the following is recorded: "multiple dark, enlarged and hardened mesenteric lymph nodes <1 cm in size? erosion of lymph node into vessel…friable tissues…? retroperitoneal malignancy".
6. Dr Kevin Pathmanathan provided the opinion that the appearance of the lymph nodes was consistent with cancer. If the injury to the mesentery were caused by trauma, he would have expected to see significant bruising to the trauma area.
7. Despite the above evidence, as Mr Scragg conceded in his oral submissions, the forensic pathologist Dr Cala examined slides taken from the deceased's abdominal lymph nodes and was satisfied there was no evidence of any malignancy or cancer.
8. It is the Crown case that the deceased died from blunt force trauma. On the material before me, there seems to be a reasonably strong Crown case that that is so. The injuries summarised above are consistent with such a finding. Based on the evidence of the forensic pathologist who examined the slides, it seems to me that the Crown could negate beyond reasonable doubt that the child died of the sequelae of the rupture of some form of malignancy or tumour.
9. As for the contention that, if it were established that the deceased had died from a blow or blows, it could have come from MW or the applicant's 14-year-old nephew, there is no evidence available to me to suggest any motive on the part of those persons as opposed to the motive advanced on the part of the applicant as set out above at [24]-[27]. Moreover, it was the applicant who was the last person seen alone with the deceased prior to her being found in distress.
10. It is always difficult on a release application for the Court to achieve any deep understanding of a Crown case. This is usually because the assessment of the strength of the Crown case is made at a time some distance away from trial. It is not uncommon for material to become available as the matter is readied for trial that might not be available at the pre-committal stage. That difficulty does not arise in this matter given that the trial date is fixed and is only four months away. Despite the fact that I have considered this application on the basis of summaries of the proposed medical and other evidence, on the limited basis of the material before me I am satisfied that it is a reasonably strong Crown case that the applicant struck the blows which caused the death of the deceased. One of the issues for the jury at trial will be whether the Crown can establish the requisite intent for murder beyond reasonable doubt.

Effect of delay

1. The applicant's trial is listed in early April 2017, in slightly over four months. This being a show cause offence, the applicant must establish that his detention for that four-month period is not justified. In examining whether the applicant's detention for the remaining period until trial is unjustified, I must consider that period of time in the context that the applicant will have been in custody for nearly three years by the time his trial commences.
2. When Campbell J considered this matter in December 2015, his Honour proceeded on the basis that it was anticipated that the earliest date on which the applicant could expect to have his trial listed was "late 2016". Based on that delay, his Honour observed the following at [3], "By then he will have been in custody awaiting trial for about two and a half years, somewhat longer than the normal range of time between charge and trial in the Supreme Court. Normally, but of course not always, a person charged with murder will be brought to trial, broadly, within one to two years after being charged." Campbell J did not consider that a period before trial of two and a half years was such as to discharge the onus.
3. The reason for the delay in this matter is that there was a contested application under s 91 of the Criminal Procedure Act 1986 (NSW) for expert medical witnesses to attend the applicant's committal hearing for cross-examination. That application was successful and the committal hearing was fixed for April 2016, almost two years after the applicant was first arrested. There have been no delays since the matter was committed to this Court. A trial date has been fixed since May 2016. Mr Scragg noted, however, that the reason an earlier trial date could not be allocated was the difficulty in getting the medical experts to Coffs Harbour at the relevant time. The delay in this matter is unfortunate. The fact that it was in part caused by the applicant's decision to exercise his rights to a full committal in the Local Court does not derogate from this fact. It remains the case, however, that no delay can be attributed to the Crown.
4. In the recent decision of Garling J in A1 v R; A2 v R [2016] NSWSC 1288, his Honour found that a delay of three years between charge and trial was not sufficient to show cause. In that case there had been a significant unexplained delay on the part of police in serving the brief. However, it is to be noted that in that matter there were serious concerns regarding the applicants' contacting witnesses.
5. In dealing with a period of delay of two years in JM v R [2015] NSWSC 978 Garling J observed at [102], "That is not to say that such a delay is acceptable or desirable. Such a delay reflects the availability of resources in the criminal justice system to enable a fair trial process to take place in an orderly fashion."
6. Lengthy delay is certainly a matter to which the applicant is entitled to point in arguing that he has shown cause why his detention is not justified. A period of three years spent on remand awaiting trial is highly undesirable and, to a significant extent, "not consistent with modern concepts of civil rights": per Sperling J in R v Cain (No 1) [2001] NSWSC 116, cited by McCallum J in R v Farrell [2016] NSWSC 1278 at [24]. However, delay must be balanced against, among other things, the strength of the Crown case and the likelihood of conviction and a lengthy sentence of imprisonment.
7. Relevantly, the Court of Criminal Appeal in Hamze v R [2015] NSWCCA 104 observed as follows at [32]-[33]: "The time during which the applicant has been held in custody to date is relevant and of undoubted concern. The more predominant concern at this point, however, is the question of how much longer he may be expected to be in custody before there is a determination of his guilt or otherwise. With the current trial listing that will be in the order of 6 months, given the trial is estimated to require about a month's hearing time. However, the offences are extremely serious in their nature and a significant custodial sentence may be expected to follow if the applicant is convicted. Speaking generally, this provides an inherent risk that a person in the applicant's position may seek in some fashion to avoid such consequences."
8. It is relevant that this application is being made some time after the matter was listed for trial last May 2016. Although the relevant delay is to be considered from the time of charge, the question for this Court to determine now is whether the remaining delay of four months is such as to establish that the applicant's detention is no longer justified.
9. Other subjective considerations
10. Mr Scragg further submitted that any bail concerns that the Court might entertain can be met by appropriate conditions. It was submitted that the applicant is 25 years of age, a relatively young man, with only a minor criminal history of summary matters. He has strong family support. His aunt has offered him accommodation and in addition has offered her home as security. The applicant's cousin has offered him casual employment in his antenna business. He also has the support of a fiancé.
11. The applicant's father is in ill health. He was in hospital on the date of the hearing. He has a life threatening illness and a life expectancy of only a few years.
12. Mr Scragg submitted that the applicant's release on bail would not give rise to any bail concerns but if the Court found that bail concerns existed then strict bail conditions are available that could ameliorate such concerns. These include that he reside with his aunt in Oakhurst, that he report to police daily and that he comply with a curfew. Surety in the amount of $500,000, with security, was offered.
13. On behalf of the Director it was submitted that there is a bail concern, within the meaning of s 17(2) of the Bail Act, that the applicant may endanger the safety of or interfere with Crown witnesses if released on bail. That submission was based on what is alleged to have been said to MW as set out above at [24]-[27]. Mr Scragg submitted on behalf of the applicant that there is no evidence of any attempt to interfere with witnesses including via other persons whilst he had been in custody.

Consideration

1. The consideration of this application is to be determined in two steps. The first step requires consideration of whether the applicant has shown cause as to why his detention is not justified. It is only if the applicant succeeds on that first step that the court next turns to consider whether there are any bail concerns and if so whether there is an unacceptable risk should the applicant be released. Despite this, matters relevant to the second step can be taken into account when assessing the first step: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24].
2. I have had regard to the principle that the applicant is to be presumed to be innocent of this charge and that bail is not to be denied to the applicant as a form of punishment: Chau v DPP (1995) 37 NSWLR 639 at 655 per Kirby P: Chu Keng Lim v Minister for Immigration (1992) 176 CLR 1; [1992] HCA 64 at 27-28 as cited by Garling J in A1 v R; A2 v R at [42].
3. As stated above, I am satisfied that this is a reasonably strong Crown case and this is relevant on a number of bases. The question of delay in this matter is to be viewed in the context of the strength of the Crown case and the likely period of imprisonment in the event that the applicant is ultimately convicted. The offence of murder, more than any other of the offences that are prescribed as show cause offences by s 16B of the Bail Act, inevitably results in a considerable sentence upon conviction. Moreover, the nature of the allegation that forms the evidential basis for any particular prosecution is also relevant on questions of danger, failure to appear, and motive to interfere with witnesses. Although I accept that the Crown could not rely upon any direct material in support of these concerns, besides the observations of MW cited above at [24]-[27], they are nonetheless features that are particularly pertinent to a release application by a person charged with murder.
4. Similarly, although the Director did not rely on any particular material to suggest that the applicant may fail to appear if granted bail, the trial is fast approaching. A reasonably strong Crown case combined with the short amount of time until trial could give rise to some concern regarding failure to appear.
5. Although the delay thus far is significant, there are only four months until the trial commences. Taking into account all of the material before me, and in particular having regard to the seriousness of the allegation and its nature, I am not satisfied on the balance of probabilities that the applicant has established that his detention for the next four months until his trial in April 2016 is not justified. Accordingly, I must refuse bail.

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