R v Lock

Supreme Court of NSW|2015-12-01|Before: Campbell J

judgment

The applicant for bail has been in custody since 2nd May 2014. He is charged with two very serious offences of sexually assaulting and murdering a two year old child who I will refer to as TM. The offences are alleged to have occurred on 20th April 2014. The applicant was arrested on 2nd May 2014.
The matter remains in the Local Court because the applicant is fighting the charges by resisting his committal for trial. Part of the delay, if it be such, has been caused by the applicant's contested application under s 91 Criminal Procedure Act 1986 (NSW) for expert medical witnesses to attend the committal hearing for cross-examination. The application was successful and the committal hearing has been fixed for 4th April 2016.

Time in custody

In these circumstances, if committed, it is unlikely that the applicant will be arraigned to stand trial in this court until, at the earliest, late 2016. 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.

The show cause question

Both of these offences are subject to the show cause requirement imposed by s 16A Bail Act 2013 (NSW). The murder charge is covered by s 16B(1)(a), and the sexual intercourse matter by 16B(1)(b)(i). This means that before any application of the unacceptable risk test mandated by Part 3 Division 2 of the Act arises, the applicant must show cause why his detention is not justified in accordance with s 16A(1): Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83.
Tikomaimaleya made clear that the show cause test is relatively flexible, involving a consideration of all of the evidence or information the court considers credible or trustworthy in the circumstances of the case: at [25].
Without fettering the otherwise broad nature of the evaluative judgment required to be made, in many cases, especially in the case of serious offences, a consideration of the strength of the Crown case will be very germane. For instance, in Tikomaimaleya the rebuttal of the presumption of innocence by the jury's verdict was a central consideration which persuaded the Court of Appeal that cause had not been shown.
In the present case, Mr Scragg of Counsel who appears for the applicant relied upon three matters: 1. The applicant's personal circumstances including the consideration that his father living in Sydney is terminally ill; 2. The long period during which he will be held in custody, bail refused; and 3. The successful s 91 application requiring that the Crown's medical experts should be available for cross-examination on 4th April 2016. I understood the last of those matters to call into question the strength of the Crown case and it may be appropriate, therefore, to consider that matter first.

The strength of the Crown case

The issue upon which the experts are to be cross-examined relates to the cause of TM's death. Mr Scragg pointed to material arising in the Crown brief, which he argued gave rise to a strong hypothesis that the death of TM was due to natural causes by reason of a pre-existing, but undiagnosed, medical condition. This makes it necessary to briefly review that material.
In his helpful written submissions, Mr Scragg summarised the matters arising out of the prosecution brief which may be taken to demonstrate that there is likely to be material available at the trial, giving rise to the hypothesis consistent with the applicant's innocence of both charges to which I have already made reference. This material is said to demonstrate that a possible cause of the massive internal injuries that TM suffered within her alimentary tract "could have resulted from a malignancy rupture". This hypothesis arises from initial comments made by Dr Joseph Beaini shortly after TM's death, that the cause of death "was more likely than not as a result of a medical condition". Dr Beaini provided a subsequent experts certificate in which he stated: I wondered whether there was a pre-existing condition that had led to this. Once the operative results became available, it again seemed to be the result of trauma, however the surgeons were concerned that there could have been another cause such as a tumor [sic]. Taking all the evidence and clinical assessment, it seems that the most plausible cause for the death of this young woman [sic] is assault/trauma of some form.
Dr Kevin Pathmanathan, an intensive care specialist who reviewed the surgical findings, stated the finding of "multiple dark, enlarged and hardened mesenteric lymph nodes" were consistent with cancer sufferers, but he had not seen such findings in a healthy child. Nor had he seen the injury pattern suffered by TM in other patients who had seen blunt force trauma. In a case of blunt force trauma he would expect to see significant bruising to the trauma area. He did not examine or treat TM and expressed his views on the basis of an examination of the clinical documentation only.
Dr A.D. Cala, forensic pathologist, who conducted the post mortem examination on TM for the Coroner, expressed the following conclusion: Despite the surgical opinion of a possible underlying malignancy, no such condition was discovered at autopsy. The abdomen was also examined during the autopsy by a paediatric pathologist (Dr Ella Sugo) who agreed with the findings, explanation of massive abdominal trauma and absence of any underlying malignancy. He concluded that his examination revealed blunt force trauma to the abdomen of a non-accidental type and he documented the evidence upon which he relied to support this conclusion. He said that his autopsy completely excluded the presence of any underlying malignancy. He expressed the strong conclusion: Natural disease played no role in this child's death. His documentation of his findings on examination of the alimentary tract does not include any finding of any evidence of any pre-existing malignant tumour.
Dr Christine Norrie of the Child Protection Unit, The Children's Hospital at Westmead supported Dr Cala's conclusions. She expressed the view that the physical signs documented by Dr Cala were "of acute anal trauma". It is Drs Cala and Norrie who are to be cross-examined at the committal hearing.
I accept Mr Scragg's argument that there is likely to some evidence supporting a hypothesis consistent with innocence. However that may be, the expert evidence led on behalf of the Crown, as it presently stands, with the strong statements of opinion of Dr Cala and Dr Norrie are entirely inconsistent with that hypothesis. Dr Cala, in particular, has had the advantage of the autopsy and found no evidence of any malignancy.
It is not for me in the context of a bail judgment to seek to resolve this issue, not the least because of the necessarily imperfect materials available for the purpose on a bail application. This question of medical causation is of course one for the jury. Accepting that there may be a triable issue about it, does not, however, diminish by much what, on the face of it, appears to be a strong case.
There are other circumstances the Crown relies on to bolster this conclusion. There was a degree of breakdown in the relationship of the applicant with his partner, the mother of TM. The mother was pregnant with the applicant's child, but because of the breakdown may have said that she was considering a termination. The applicant is said to have made serious threats about the wellbeing of TM should that occur.

Decision on the show cause question

I accept that there are strong factors favouring the application of the unacceptable risk test in the applicant's favour which I will document in a moment. Moreover, I acknowledge in particular the offer of a large security of one half of one million dollars to ensure the applicant honours his bail undertaking.
The medical condition of his father who was diagnosed with a potentially terminal illness in 2014 may also be a factor favouring his release.
Having acknowledged these things however, and accepting that the release of an accused on bail on the charge of murder does not require special or exceptional circumstances, and considering the matter through the prism of a strong Crown case, I am not satisfied that the applicant has shown cause why his detention is not justified.
That he may be held in custody somewhat longer than average if committed for trial is not of itself, in this case, as it may sometimes be, a factor adding weight to the arguments to show cause. In this case there is no suggestion that either the prosecution, or the court system, have contributed in any way to the expected longer-than-usual delay.

Unacceptable risk test

In deference to the argument of Mr Scragg, I should say something briefly about the application of the unacceptable risk test. The real concern in this case relates to the risk of the applicant failing to appear at various proceedings for the offence given the strength of the case against him and the consideration that if convicted, a very lengthy sentence of full-time imprisonment must be imposed. To guard against those risks, it is proposed that he would reside in the greater Sydney region, report to police daily, be subject to a curfew, surrender his passport, and an acceptable person would enter into an agreement with security to forfeit the amount of $500,000 if he fails to comply. I have also received very many character references from family, friends and former work colleagues, all of whom appear to be upright, responsible members of the community. There is an offer of employment whilst awaiting trial. Were it not for the finding I have made in relation to the show cause question, I would have accepted that bail should be granted because the conditions to be imposed would be sufficient to manage the risk in relation to flight, and the slight risk to the community of him being at large on bail. In other words, I would have been satisfied that there is no unacceptable risk.
Because the applicant has failed to show cause, my order is bail is refused.
Publication of this bail judgment is prohibited until the finalisation of the criminal proceedings taken against the applicant. This order does not prevent publication to the parties and their legal representatives.

Amendments 08 August 2018 - Non publication order lifted as criminal proceedings finalised DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2018

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