R v NAIR

COUNSEL : T Thorpe - Crown P Hamill SC - Applicant

SOLICITORS : S Kavanagh - (Solicitor for Public Prosecutions) - Crown Giddy and Crittenden - Applicant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT ON APPLICATION FOR BAIL 1 HER HONOUR : The applicant, Suresh Nair, is a neuro-surgeon who practiced between 2001 and 2009 at Nepean Hospital. He is charged with the Murder of Suellen Domingues-Zaupa and the Manslaughter of Victoria McIntyre. In addition, he is charged with 4 counts of supply prohibited drug (cocaine) and one count of possess a prohibited drug (cocaine). 2 The chronology of the events founding the charges and the applicant's court appearances is of significant relevance to the application. The manslaughter offence was allegedly committed on 15 February 2009. It is alleged that the applicant supplied cocaine to Ms McIntyre, an escort who had been paid by the applicant to provide him with sexual services at his home in Elizabeth Bay. Ms McIntyre lost consciousness at the applicant's home and was conveyed to hospital by ambulance. She died the following day from acute cocaine toxicity. No charges were laid against the applicant at this time. 3 The offence of murder was allegedly committed on 19 November 2009. The applicant again supplied cocaine to an escort, Ms Suellen Domingues-Zaupa, at his home, whilst they were engaged in sexual activity. Ms Domingues-Zaupa began to suffer seizures, lapsed into unconsciousness and stopped breathing. These events took place in the presence of another escort, who has since provided an induced statement to police. That statement is the basis of the Crown allegation that the applicant omitted to seek medical assistance, and that the failure to do so was recklessly indifferent to human life, in circumstances where the applicant was a qualified medical practitioner who had previously witnessed the symptoms of acute cocaine toxicity. The applicant left his apartment and went to a hotel in the company of two escorts who were engaged by him immediately after the death of Ms Domingues-Zaupa. She was found dead in the applicant's home on 21 November, after the police had forced entry to the unit at the request of the applicant's employer who had reported the applicant missing.

4 The applicant contacted the police through his legal representatives the following day. He admitted that he was present when Ms Domingues-Zaupa ingested the cocaine and began to fit. He said that he had commenced CPR when she stopped breathing, but that he was unable to revive her. He claimed to have fled the apartment in panic. 5 On 25 November, the applicant was charged with one count of supply cocaine arising out of the supply of the drug to Ms Domingues-Zaupa. He was granted bail, a condition of which was not to engage the services of an escort or prostitute and not to consume any illicit drug. The following day, the applicant's registration as a medical practitioner was suspended. 6 On 9 January 2010, the applicant was arrested at his home in the company of two naked escorts. There was 5.14 g of cocaine in the premises, some of which had been prepared for ingestion on a dinner plate. Three counts of supply prohibited drug and one count of possess a prohibited drug relate to these events. The applicant was refused bail on these charges. On 4 February 2010, the applicant was charged with the manslaughter of Ms McIntyre and with the murder of Ms Domingues-Zaupa. He was refused bail on these charges. 7 The applicant thus faces the hurdle presented by s 9C of the Bail Act, with respect to the murder charge, namely that the Court should refuse bail unless it is satisfied that exceptional circumstances justify the grant of bail. The position with respect to the other charges is neutral, that is, there is no presumption either in favour of, or against, the grant of bail. 8 It is well established that, in cases where a presumption against bail exists, a heavy onus rests on the applicant to persuade the Court to the requisite level of satisfaction. The Court's primary focus is upon the strength of the Crown case, with lesser weight attaching to the circumstances which are common to all applicants. Those common circumstances include the fact that the applicant's continued incarceration will cause a serious deprivation of his general right to be at liberty, together with hardship and distress to himself and his family, strong ties to the community, severe effects upon the applicant's business or employment, his finances and his abilities to prepare his defence, and the availability of sureties prepared to forfeit (with or without security) large sums of money to ensure that the applicant will answer his bail. All of these common circumstances are present in this case. In addition, the applicant maintains that his physical safety has been compromised by a recent serious assault upon him by other inmates, and that his health remains at risk. Further, he is unable to access appropriate drug and alcohol counselling services in order to address his cocaine dependency. 9 The Crown case on the charge of murder cannot, in my view, be characterised as strong. It is always difficult to accurately assess the strength of the Crown case where, as here, the Court is not in possession of the Crown brief and the charge has not yet been the subject of committal proceedings. However, as the written submissions of senior counsel for the applicant make clear, the proposed basis of the Crown case is, to say the least, novel. First, the Crown alleges that the act of supplying cocaine to the deceased was recklessly indifferent to human life, in that the applicant foresaw or realised that the act of supply would probably cause her death. Second, the Crown alleges that the applicant's failure to seek medical assistance was recklessly indifferent to human life, in that the applicant foresaw or realised that his omission to seek medical help would probably cause her death. 10 The Crown prosecutor appearing on the hearing of the application was unable to nominate any reported case of murder successfully prosecuted on a similar basis. That in itself is not determinative, but there is a body of authority that runs counter to the proposition that the act of supplying a prohibited drug is sufficient for the purposes of causation, in both murder and manslaughter cases : R v Dalby (1981) 74 Cr App R 348 ; R v Kennedy [2007] 4 All ER 1083 ; R v Dias [2002] 2 Cr App R 96. The Crown will struggle to prove that the relevant act or omission (the supply of cocaine and the failure to seek medical help, respectively) has the necessary causal connection with the death of the deceased, in circumstances where the evidence appears to me to fall short of coercion or force on the part of the applicant in the ingestion of the cocaine by the deceased, and where the applicant's state of mind was undoubtedly affected by his consumption of a large quantity of cocaine and some alcohol. 11 Accepting as I do that the Crown case is not a strong one, the circumstances that are common to all applicants, and which are present in this application, deserve greater weight, and the hurdle to be overcome by the applicant (although still a substantial one) is correspondingly less difficult. 12 I turn then to the factors that govern the grant of bail under the Bail Act. Section 32 relevantly provides :-

(1) In making a determination as to the grant of bail to an accused person, an authorised officer or court shall take into consideration the following matters (so far as they can reasonably be ascertained), and the following matters only: (a) the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, having regard only to: (i) the person's background and community ties, as indicated (in the case of a person other than an Aboriginal person or a Torres Strait Islander) by the history and details of the person's residence, employment and family situations and the person's prior criminal record (if known), and (ia) the person's background and community ties, as indicated (in the case of an Aboriginal person or a Torres Strait Islander) by the person's ties to extended family and kinship and other traditional ties to place and the person's prior criminal record (if known), (ii) any previous failure to appear in court pursuant to a bail undertaking or pursuant to a recognizance of bail entered into before the commencement of this section, and (iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty, and (iv) any specific evidence indicating whether or not it is probable that the person will appear in court, and

(b) the interests of the person, having regard only to: (i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody, and (ii) the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both, and (iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii), and (iv) whether or not the person is, in the opinion of the authorised officer or court, incapacitated by intoxication, injury or use of a drug or is otherwise in danger of physical injury or in need of physical protection, ……………………………………………………, and (b1) the protection of: (i) any person against whom it is alleged that the offence concerned was committed, and (ii) the close relatives of any such person, and (iii) any other person the authorised officer or court considers to be in need of protection because of the circumstances of the case, (c) the protection and welfare of the community, having regard only to: (i) the nature and seriousness of the offence, …… and (ii) whether or not the person has failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition previously imposed in respect of the offence, and (iii) the likelihood of the person interfering with evidence, witnesses or jurors, and (iv) whether or not it is likely that the person will commit any serious offence while at liberty on bail, but the authorised officer or court may have regard to this likelihood only if permitted to do so under subsection (2), and (v) if the offence for which bail is being considered is a serious offence, whether, at the time the person is alleged to have committed the offence, the person had been granted bail, or released on parole, in connection with any other serious offence. (2) The authorised officer or court may, for the purposes of subsection (1) (c) (iv), have regard to whether or not it is likely that the person will commit one or more serious offences while at liberty on bail if the officer or court is satisfied that: (a) the person is likely to commit the offences, and (b) that likelihood, together with the likely consequences, outweighs the person's general right to be at liberty. (2A)The following matters are to be considered in determining for the purposes of subsection (1) (c) or (2) whether an offence is a serious offence (but do not limit the matters that can be considered): (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900. (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.

Section 32(7) allows the Court to take into account any other relevant matter. 13 I do not regard the applicant as a flight risk, having regard to his family circumstances, the fact that he has lived in Sydney since the age of 12, and his substantial and generally favourable work history in a highly technical and specialised medical field. A number of testimonials spoke compellingly of the applicant's devotion to his work and his good reputation in his chosen area of expertise. This aspect of the application deserves further explanation, in the light of the applicant's drug addiction and the regime under which he has practiced since mid-2004. I return to it below. 14 He has no prior criminal history and presented himself voluntarily to police when he became aware that they were interested in speaking with him. He did so at a time when he knew that he was implicated in the commission of serious criminal offences, although I accept that murder and manslaughter were not then under consideration. I do not doubt that the applicant has access to large amounts of money and that he retains Malaysian citizenship, but he did not exercise that option when he was first charged in November 2009. Given the terms of the advice he has received from senior counsel about the prospects of his conviction for murder, I doubt whether the applicant's motives for flight have changed since then. 15 The applicant's interests in being released from a custodial environment in which he has been assaulted are self evident. I note that, following the assault, the applicant was placed in protective custody, but he elected to be removed and returned to the general prison population on 20 February 2010. The applicant's circumstances and the nature of the offences have attracted considerable publicity and will, no doubt, continue to do so. It is unfortunate that Corrective Services cannot prevent further assaults without subjecting the applicant to the relatively confining and isolating regime of protective custody. It would appear that the applicant prefers the employment and services available in the general prison population, even if it exposes him to the risk of further assault. That said, I accept that the applicant may be in danger of physical injury. 16 Leaving to one side the applicant's interests in being free to instruct counsel and prepare for his trial, there is one other lawful purpose that militates in favour of a grant of bail. It is not suggested that the applicant can return to his employment, but it is submitted that the applicant should be released to bail in order to undertake further counselling and treatment for his drug addiction. Evidence was adduced from the applicant's treating psychiatrist, Dr Wilcox, to the effect that accommodation is available for the applicant at the Sydney Clinic over the short term (up to 4 weeks) and that arrangements will be made to admit the applicant to a residential rehabilitation programme of longer duration at the end of that period. Dr Wilcox's evidence deserves further consideration on another aspect of the application. 17 At present, the consensus is that a committal will not take place until the latter part of the year. On that basis, the applicant could expect a trial date in the first term of 2011. A period of 18 months imprisonment would not, in my view, represent an adequate aggregate non parole period for a number of counts of supply cocaine, committed in the circumstances attending these offences. For these purposes, I disregard the charges of murder and manslaughter. In short, I do not regard the period that the applicant will remain in custody if bail is refused to be a cogent factor in the determination of the application. 18 The protection and welfare of the community, including those who provide sexual services for payment, looms large in this application. Even if the murder and manslaughter charges are put to one side, the circumstances surrounding the applicant's repeated supply of cocaine elevate these offences to a level of criminality above that encountered in "routine" cases of supply. I regard the supply offences as serious offences in themselves. It could not be suggested that murder and manslaughter are not serious offences, notwithstanding my views on the strength of the Crown case on these charges. 19 The applicant's breach of bail was not technical or constituted by a failure to report or a failure to notify a change of address. The breach consisted of a repetition of the same conduct that gave rise to the offence upon which the applicant was granted bail. That in turn requires a consideration of the likelihood that the applicant will commit a serious offence whilst on bail, having regard to the fact that he has already done so. This factor requires closer examination of the applicant's work history and the evidence of Dr Wilcox. 20 Between the end of June and the beginning of September 2004, the applicant agreed to a number of conditions imposed by the New South Wales Medical Board on his registration. Those conditions included that the applicant not prescribe self medication, that he attend for treatment by a general practitioner, that he not self-administer any illicit drug or narcotic derivatives, or non-prescription compound analgesic or cold medication, that he attend the Doctors in Recovery Group at Northside Clinic on a fortnightly basis at a minimum, that he abstain completely from the consumption of alcohol, that he attend Alcoholics Anonymous or Narcotics Anonymous meetings at least on a weekly basis, that he attend for treatment by a psychiatrist at a frequency to be determined by the treating psychiatrist, that he continue to take any medication prescribed by his treating psychiatrist, that he attend for treatment by a specialist in anxiety disorders, that he attend three times a week for urine drug testing in accordance with the Board's protocol, that he attend for review by Dr Bruce Westmore (the Board nominated psychiatrist) initially on a three monthly basis and that he attend a review interview at the Board after three months. 21 The applicant's registration was suspended on 2 September 2004 for a period of six weeks. From mid October 2004 until mid-March 2005 the applicant voluntarily agreed to a number of conditions imposed on his registration. Those conditions were in general terms, the same as had been previously imposed. The majority of those conditions remained in force until early January 2009, subject to some variations in relation to the frequency of attendance on a psychiatrist and the frequency of the applicant's attendance at the Doctors in Recovery Group and Alcoholics Anonymous or Narcotics Anonymous. 22 Between early January 2009 and late February 2009, the applicant was subject to a fresh set of conditions, which included that the applicant was not to prescribe self medication, to attend for treatment by a general practitioner, not to self administer any illicit drug, narcotic derivatives, non-prescription compound analgesic or cold medication, to attend the Doctors in Recovery Group at Northside Clinic on a monthly basis at least, to abstain completely from the consumption of alcohol, to attend Alcoholics Anonymous or Narcotics Anonymous meetings on a monthly basis at least, to attend for treatment at a psychiatrist of his choice and to continue taking any prescribed medication, to attend for review by Dr Bruce Westmore on a three monthly basis and to attend a review interview at the Board on a three monthly basis or as otherwise directed. 23 These conditions remained in force, with some minor variations until 26 November 2009 when the applicant's registration was suspended, as I have already noted. Throughout this period of time, the applicant was also subject to a number of practice conditions, which restricted at various times the maximum number of hours per week that the applicant worked, the nature of the applicant's practice and the extent of the applicant's clinical review, supervision and monitoring by his employer. 24 It is abundantly clear from the terms of the conditions (see Exhibit B) that the applicant has been afflicted by a long-standing addiction to drugs, that he is prone to excessive consumption of alcohol and that there are other features of his mental health that have required the services of a treating psychiatrist. In spite of this history, the applicant seems to enjoy the confidence and support of his peers in neurosurgery. I can only conclude that the applicant is a gifted practitioner whose skills were so much in demand that suspension was a remedy of last resort. 25 More importantly, this history demonstrates that the evidence of Dr Wilcox should be approached with some caution. I intend no criticism of Dr Wilcox, who I accept is a recognized expert in the field of criminal forensic psychiatry. However, it is difficult to reconcile Dr Wilcox's opinion that the applicant is now prepared to address his addiction with the applicant's failure to do so in the past. 26 Dr Wilcox was initially involved in the care of the applicant when he was admitted to the Sydney Clinic private psychiatric hospital from 27 November 2009 until 15 December 2009. Following the applicant's arrest and the refusal of bail on fresh charges, Dr Wilcox interviewed the applicant on 24 May 2010 at Silverwater. 27 According to Dr Wilcox's report of 24 May 2010, the applicant told her that he now believed that the three weeks he spent in the Sydney Clinic were inadequate "for him to develop more functional coping skills or better relapse prevention techniques". The applicant maintained that he had some awareness of the consequences of his actions but that he was in denial in relation to the extent of his addiction. After the applicant's discharge from the clinic, he moved into accommodation in Bondi and had limited family support and no employment. The applicant told Dr Wilcox that "after a week of watching videos he rang an escort agency despite being aware that he would be breaking his bail and organised for them to send a girl and some cocaine to his place. The force of his addiction was such that if he could get away with it he was prepared to risk the loss of his bail." (italics not in original) 28 Dr Wilcox's report goes on to note that following the applicant's assault in custody and his brief time in protection, "he has had a lot of time to think about his prior actions and has experienced significant regret and remorse. … He now readily acknowledges that he was in the grips of a serious addiction and in the past minimised his actions and was in denial about the impact of his behaviour. He said the assault made him more aware of the consequences of his actions, that he had lost his career and his reputation, two people were dead and he had been close to losing his own life." 29 It was as a result of these statements by the applicant that Dr Wilcox concluded that the applicant "has developed more insight and is no longer in denial with respect to his addiction. He is more able to accept that his addiction has had a detrimental and catastrophic impact on every aspect of his life and led to a loss of judgment. Although he may have previously taken his bail for granted, I believe he would not abuse his privilege again, especially as his time in custody has been so traumatic." 30 What emerges from the contents of Dr Wilcox's report, her affidavit and her evidence before the Court is that the applicant's expressions of resolve have been primarily triggered by his experience in custody. Dr Wilcox maintained that the fact that the applicant was able to continue to work throughout the period that he was under the supervision of the Medical Board contributed to the applicant's failure to confront his addiction. However, this evidence overlooks the fact that the applicant had been suspended from practice on at least one prior occasion and that the interruption to his work on that occasion did very little to revise the applicant's behaviour. I cannot accept that the applicant was able to deny the effects of his addiction throughout his working life or that he failed to appreciate the impact of his addiction upon the maintenance of his registration as a practising surgeon. 31 It is not surprisingly the case that entry into custody after a period of liberty upon bail provokes renewed promises and undertakings to comply with bail conditions, should the Court see fit to grant bail. The abuse of bail cannot lightly be disregarded in the assessment of an application such as the present, particularly when the applicant himself acknowledged that he was prepared to risk conditional liberty if he could get away with it. 32 The strength of the applicant's addiction leads me to the conclusion that it is likely that the applicant will commit further serious offences whilst on bail and that the prospect of further offences outweighs the applicant's right to be at liberty. Accordingly bail is refused. **********

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