R v Griffey [2006] VSC 86

2 The reasons for the grant of bail are that the applicant has demonstrated in my view that exceptional circumstances exist which justify the grant of bail. I am equally satisfied that she will surrender herself into custody and answer to her bail; that she is unlikely to commit an offence whilst on bail or endanger the safety and welfare of the public or interfere with witnesses or obstruct the course of justice.

3 The Crown have not submitted that she would be a risk in respect of any of those matters, but rely on the fact that she has to demonstrate exceptional circumstances.

4 There are a combination of reasons that in my view in totality constitute exceptional circumstances. First, the strength of the Crown case. The Crown have submitted that this is a circumstantial case and it is neither a weak case nor a strong case, but one that ultimately is a matter for the jury. The Crown conceded that the authorities acknowledge that where there is a weak case that may amount to exceptional circumstances.

5 The main thrust of argument presented by the Crown in relation to this is that the bail application has been made with almost indecent haste. Mr Rapke QC stated in the submission:

"What we've got here is an application which is made 22 days after the arrest of the applicant on the most serious charge that can be proffered against an individual in the State at the moment. It's made at a time, Your Honour, before - as Your Honour has observed in passing - before Your Honour has access to statements of witnesses, before even the interview with the applicant has been transcribed and of course before anybody in this court, including myself, has any opportunity to digest the brief of evidence and make meaningful submissions about the strength of the case against the applicant. It is a very difficult situation. Indeed, some judges might even say that an application of this nature made so early after arrest would be regarded as premature, but whether that is the case or not, we're all at a disadvantage in the sense that all we know about the case against the applicant is that which is contained in the annexure to the answering affidavit filed by the Crown."

6 I must say that in a number of the bail applications that I have heard in this court, that was exactly the material that was available, the summary of the case as prepared by the informant. Many had not reached the state of service of the hand-up-brief and it has never been argued before me that it was too early for a bail application to be made.

7 Once the police have made a decision to arrest and charge a citizen, it cannot be that the Crown can then say, we are taken by surprise, we're not ready to argue the merits of the application. Section 4(1) of the Bail Act states:

"Any person accused of an offence and being held in custody in relation to that offence shall be granted bail."

8 It then continues to provide limitations on that section.

9 Bail is the right of an accused person. It shall be refused only on certain criteria and with certain offences, but it is clearly the right of a person to apply for bail at any time. No applicant must wait until the Crown say that they are ready and that this is a suitable time for them to have the application heard. The court must presume therefore that unless there are unusual or compelling reasons for the Crown not being in an informed position, for example awaiting the results of toxicology or DNA testing, those who provide the Crown with the information necessary to deal with these matters, that is the police officers involved in the decision to arrest and charge any applicant, must be able to provide to the Crown a clear, cogent synopsis of the basis of that arrest and the strength of the case against the applicants.

10 Accordingly, I assess the strength of the Crown case on the material that is before the court in the form of the affidavit in opposition to an application for bail which was sworn on 21 February 2006.

11 The deceased man was last seen on 28 December 2005 by Gillian Gould with whom he had been in a relationship for some four years. He was reported missing by her on 2 January 2006. The applicant is the estranged wife of the deceased. He lived both at the family home and at a house in San Remo. It appeared to be an amicable separation with the applicant and the deceased continuing to run the family business and reside in the family home together for some of the week.

12 The police made enquiries with the applicant who was at that time in Alexandra at her boyfriend's home. She told the police that she had last seen the deceased on 29 December 2005 between three and 3.30 p.m. She last saw him as he was leaving the family home and business area, driving off in his black Holden Monaro. After the enquiry had been made by the police the applicant then discussed the whereabouts of the deceased with persons present with her in Alexandra, and was informed by the son of her boyfriend that he had in fact observed the car in the garage of the family premises on New Year's Eve and that the boot was open with an empty briefcase in the boot.

13 The applicant left a short time later with her youngest daughter with the purpose of attending at her home to check on the car. She stopped at the San Remo house of the deceased on the way and checked phone messages and his computer. At about 9.25 p.m. on 2 January 2006, the applicant arrived home and went to the garage with her daughter. They observed a lump on the floor which was covered by a tarpaulin. They also saw the car and the briefcase and that the safe was open and some of its contents strewn on the garage floor. There was a noticeably pungent odour. They did not touch or move the tarpaulin and she stated to the police that she noticed a striped sheet and a grey car cover. They rang the police who attended.

14 It appears the deceased had been struck numerous times with a weapon of some type and died from those injuries. This is indicated by the blood splattering on various parts of the garage. There was no forced entry to the garage, no murder weapon was located, his mobile phone was missing, and two pages had been pulled out of his day planner for 27 and 28 December.

15 The post-mortem indicated that there were multiple skull fractures from a weapon likely to be of metal composition, and severe injuries to the left side of the head were likely to have been caused whilst the deceased was lying on the ground.

16 The applicant made a number of statements to the police upon which some reliance is placed, and I will refer to those later. The business of the applicant and the deceased was operating in a very poor financial situation and its credit was extended to the limit. There had been some cheque kiting by the applicant over the joint purchase of a motor vehicle in October, November and December of 2005. The deceased and the applicant held mutual, what is referred to as key person life insurance policies, in excess of $1m over each other's life.

17 In June of 2003 the applicant stated to a medical practitioner that the deceased had hit her. The last person, apart from the applicant, that the police had been able to ascertain spoke to the deceased, was a Laurence Gleeson, at 2.07, on 28 December 2005. The deceased was at the Pakenham family home at that time. A statement was obtained from a friend of the deceased in which he detailed a number of statements made to him by the deceased, about the financial relationship between the applicant and the deceased. The deceased told him in a call on 29 December that he was going to the bank to get the applicant's name removed as a signatory on the account, so that only he could sign. He told him that he believed Diane had mental problems but he was going to stick by her.

18 The Crown rely upon motive and opportunity, the motive being the life insurance policy which would rescue the business from its problems, and the fact that the applicant is the last person to see the accused man alive. The applicant also received two text messages from the phone of the deceased at 4.25 p.m. and at 4.31 p.m., indicating in those text messages that he was depositing money into her account and had succeeded in obtaining money from another source.

19 Those messages were transmitted from the same mobile tower that the applicant's phone used to receive the messages. The applicant left the house, she said, at about 4.00 p.m. to attend the dentist for a 5.00 p.m. appointment, and these messages that she received on her phone occurred in Dandenong.

20 The son, Kenny Griffey, has made a statement that he arrived back at the family home between 2.00 and 3.00 p.m. on 29 December, and saw his father's black vehicle reversing out of the driveway and driving off. Natasha Griffey, the eldest daughter of the applicant and the deceased, was out of the house between 2.20 p.m. and 3.25 p.m. according to her mobile phone records. When she left the house her father was present, and when she returned home he was not. She went with her brother to join their mother at Alexandra.

21 Although this is quite a detailed statement of the particulars, it is necessary to do so so that the strength of the case can be assessed. The case against the applicant rests upon, first, the text messages being sent from the same area where the applicant's phone received them; secondly, the reference to her seeing a striped sheet under the tarpaulin, which was not in fact visible without lifting the tarpaulin; thirdly, the financial difficulty in which the business was placed and the knowledge of the insurance policies, which it should be noted have been in place over 10 years and remained unaltered; fourthly, the discrepancies between her statement of being with Kenny when the deceased drove off and the statement of Kenny that he was driving up the road when he saw the deceased drive off. Fifth, the statement of the friend, Mr Delaland, as to the deceased preparing to remove the applicant from financial control of the business, and, six, her admission that she was involved in cheque kiting.

22 Counsel for the applicant conceded that the case was arguable and I agree, but barely so. It would be possible to sustain a similar case against the son Kenny Griffey, or even against other unknown persons. In fact, it should be noted that Kenny Griffey was arrested at the same time at the applicant, although subsequently released.

23 From the description in the material, there is substantial blood spatter, pools of blood, death occurred where the body was found in the garage of the applicant's home, and the significance is the absence of things that one would expect. No clothing of the accused with blood, no trail of blood from the deceased to any other location. There has been no use of the money or demonstrable use of the money; no spending of the proceeds that were taken from the safe. There has been no flight. There is no weapon. There is no scientific evidence. There is nothing physically that connects the applicant with this murder, and whilst that does not prevent a case from being a strong case, it certainly has an impact here. The case, whilst not impossibly weak, is far from being a strong circumstantial case against the applicant.

24 The second point that is relevant is that the applicant and the deceased ran a business together in excess of 15 years. The business was actually quite successful, but it does appear that between them the applicant and the deceased bled the business dry with various indulgences, causing the dire financial predicament in which they found themselves.

25 One of those indulgences was the racing team provided to the son Kenny, which cost up to $200,000 per annum. That was a matter that Kenny and his father had had a dispute about on the very day that he was allegedly killed. The business had been run jointly between the parties, and the deceased is no longer in a position to run the operation and currently neither is the applicant.

26 The son, Kenny, gave evidence before me as to his ability to run the company, and I find that he would be incapable of doing so. The work that he has done in the business is that of basically being a truck jockey, and he certainly did not strike me as a person of sound financial judgment or with an abundance of business skills. He is 18 years of age, he does not even have a truck licence; he certainly has no business qualifications.

27 The company has a number of contracts from CSR Gyprock and Kenny gave evidence that they have warned him that if he cannot keep dealing in plaster transport to the level that it was previously, then they will lose the contracts. Both the applicant the deceased drove a truck for the business, and neither of those trucks are currently working carrying out the contracts. The employment of more staff and a manager may well be able to solve those problems, but I am of the clear view that the witness Kenny Griffey would be incapable of organising such staff to be employed.

28 The status of the business and its potential failure is a relevant consideration upon a bail application, as was noted by Maxwell P in a decision of Fred Joseph Asmar[1]. The business has been built up over many years and if the applicant is refused bail there is a strong possibility that the business will fail. If she is ultimately acquitted of the charge that would be a serious consequence of such a refusal.

29 The fact that the applicant has been charged with murder has also had an effect. The estate of the deceased, which contains the two life insurance policies referred to, are now in the position of not being paid to the applicant and they will not be paid irrespective of the result. The children may ultimately receive those payments, but at this stage the applicant will in no way profit from what has occurred.

30 The issue of delay. It was not submitted by counsel for the applicant that there will be at this point any extraordinary delay. There has been a second and subsequent search and items have been seized from the home and that is no surprise as the police would still be looking for weapons and anything that would implicate the applicant.

31 The police are obviously still investigating and that may well continue, and whilst it may further delay the matter, I will act upon the basis that all matters will be done without any delay. The hand-up-brief is due to be served on 15 March 2006. Cases currently are taking between 15 months to 24 months to be heard, depending upon the length of the committal and the length of the trial. This delay is not unusual. It is a factor that the court is entitled to take into account when determining if in the totality exceptional circumstances have been made out.

32 I was referred to a number of cases, including a most helpful decision of Stephen Allan Cox and under the heading of "Delay", Redlich J sets out the matters that are relevant. It is, as he says in summary delay is part of the materials that should be considered, not as the potential for injustice but the fact that delay of this nature is just part of the circumstances. Even if the delay might not be inordinate or out of the ordinary, it may just be too long a period to keep a person without bail.

33 Also, the decision of Warren J, as she then was, in the matter of John Whiteside[2], where she said in determining exceptional circumstances the hurdle that an applicant must meet ought not be set too high.

34 Finally, there are three children. All were present in court to support the applicant. The eldest daughter is in second year, studying veterinary science. The son, Kenny, was in court and gave his evidence about struggling with the business. The 16-year old attends Assumption College and has just started there this year, and the evidence before me is that it is a struggle for all three. Once again, that is not an unusual circumstance but it is a relevant factor again.

35 The Crown referred me to a number of cases in which the term "exceptional circumstances" had been the subject of judicial interpretation, with references to phrases such as the circumstances need to be unusual, special or out of the ordinary, outside reasonable anticipations. Whilst I accept those interpretations, of course, as being correct, in bail cases - and all of those to which I referred were not bail cases - it has long been held that it is the combination of circumstances that are of importance and that the combination must be assessed in each individual case. There can be no binding and definitive criteria.

36 For all of the reasons expressed, I am of the view that exceptional circumstances have been made out and I grant bail in the terms and conditions stated at the beginning.

37 In relation to this, which police station would be a police station to which she would report?

MR DANE: I don't know the answer to that question, Your Honour.

HER HONOUR: Perhaps you could make some enquiries and - - -

MR DANE: It will be the closest 24 station, Your Honour.

HER HONOUR: If you could pass that information to my associate.

HER HONOUR: And the same in respect of the specified residential address, could you provide that and that will be part of the terms.

HER HONOUR: I did not make any surety as I considered it not necessary. The Crown didn't consider her a flight risk or a danger in any way, so it seemed to be unnecessary.

[1] [2005] VSC 487.

[2] [1999] VSC 413.