Re Creamer [2009] VSC 460 (7 October 2009)

2 Ms Creamer was interviewed by police on 4 February 2008 and again on 5 February 2008. She was released at the end of each interview. She maintained that she had had no involvement in her husband's death.

3 The applicant was arrested and charged with murder on 29 April 2009. She was remanded in custody.

4 The matter was listed for a committal mention on 5 August 2009. That mention was adjourned. I was told by Mr Stary, who appeared on the applicant's behalf on this application, that it was adjourned because she had been denied legal aid on the basis that she owned real property in New Zealand. This application for bail was filed on 14 August 2009.

5 On 1 September 2009 I heard full argument on the application. The factor upon which the applicant primarily relied on that occasion was delay. During argument, Mr Stary indicated that the committal would be contested and that its estimated duration was three to four days. His estimate of when that committal was likely to be heard was May or June of next year and, if she is committed for trial, he estimated that her trial would not be before early 2011.

6 I stood down to consider the application. When I returned to the bench to deliver my ruling Mr Stary sought an adjournment. He indicated that further enquiries had been made while the matter had been stood down, and that those enquiries had revealed that it might be possible to have a committal in January 2010 and for a trial to be held at the circuit in the LaTrobe Valley in April 2010. I granted the adjournment without fixing an adjourned date.

7 Subsequently, the solicitors for the applicant sought to have the matter re-listed, and I resumed the hearing today. At the resumed hearing Mr Stary told me that the committal hearing had been fixed for 1 March 2010, and that it was possible the trial could be held at Sale in April 2010. If the trial was not heard then, he suggested that it had been indicated to him by listing staff in Melbourne that the matter would have to be heard in Melbourne and that it would then be delayed until beyond October 2010. On the resumed hearing today Mr Stary also tendered a report from the consultant psychiatrist Dr Lester Walton dated 17 September 2009. Dr Walton had examined Ms Creamer on 16 September 2009.

8 The applicant is 52 years of age. She was born in South Africa. She lived for a number of years in New Zealand. She arrived in Australia in April 2007. According to an affidavit of her solicitor, Amelia Beech, sworn in support of this application, she holds a South African and a New Zealand passport, both of which are currently being held by the police. She has two children. They are the product of a prior marriage. One is 29 years of age and lives in New Zealand. The other is 31 years of age and lives in South Africa.

9 From 27 August 2007 the applicant was employed as a credit administration officer with Pacific Brands. On 1 September I heard evidence from the National Credit Manager of Pacific Brands, Kathleen Swift. She confirmed the accuracy of a letter she had written dated 14 August 2009, which was exhibited to Ms Beech's affidavit. In substance, Ms Swift says that if released on bail the applicant's job will be there for her. She described the applicant as a well respected member of the team.

10 According to Ms Beech's affidavit, the applicant has been in a relationship with a Mr William Hobson since September 2008. Mr Hobson also gave evidence on 1 September. He indicated that he was a friend of the applicant and was prepared to be a surety. He said that he owned an unencumbered rental property which is next door to his residence with a council valuation of $168,000 and which he is prepared to proffer as security. When asked how long he had known the applicant, he said he had known her since the end of October or early November 2008.

11 Pursuant to s 4(2) and s 13 of the Bail Act 1977 (Vic) I cannot grant bail to the applicant unless I am satisfied that exceptional circumstances exist which justify the making of such an order. The Court of Appeal has recently described this requirement as a jurisdictional pre-condition for the exercise of the Court's power to grant bail in cases to which s.13 applies: Dale v DPP[1] ("Dale").

12 Mr Stary submitted that there were exceptional circumstances in this case.

13 On 1 September, Mr Stary's submissions focused on delay. He relied upon a number of authorities in relation to the issue of delay. In particular he relied upon DPP v Cozzi,[2] Cox v The Queen,[3] In the matter of Whiteside[4] and In the matter of Wells.[5] He also relied upon the decisions in Gray v DPP[6] and In the matter of Dickson[7], submitting that the Charter of Human Rights and Responsibilities Act 2006 has increased the potential significance of delay as a factor in establishing exceptional circumstances.

14 The other factors upon which he relied on 1 September were the fact that the applicant has no criminal history, the support the applicant has in the community, the employment which the applicant has available to her, and the fact that the applicant has stable accommodation. The applicant was then the lessee of a property in Traralgon. Today, I was told that that lease had expired and that if bailed the applicant proposes to reside at Mr Hobson's address.

15 On the resumed hearing Mr Stary dealt with three further matters. First, he submitted that a trial in April was only a possibility, and if that did not eventuate then the period of incarceration before trial would be 18 months or more. Second, he submitted that Dr Walton's report revealed that the applicant was suffering from a major depressive disorder as a result of her incarceration. He told me that she had been in the psychiatric unit at Dame Phyllis Frost Centre for four days and had been on suicide watch when there. He said that she was now back in mainstream. Finally, he relied upon the recent Court of Appeal judgment in Dale to which I referred earlier.

16 On 1 September, Ms Piekusis appeared on behalf of the DPP. She submitted that there was nothing exceptional about the circumstances here. She submitted that the absence of a prior criminal history, the employment and the accommodation did not amount to exceptional circumstances. She submitted that the only factor of any potential significance was delay and she submitted that in that respect the application was premature. She submitted that the delay here was not inordinate and that there were no other factors which in combination with the delay would constitute exceptional circumstances.

17 On the resumed hearing, Mr Rose SC appeared for the DPP. He submitted that this case was not at all the same as Dale; that the applicant was being treated in prison for her depression, which was not unsurprisingly caused by her incarceration on a charge of murder; and that the matter could be tried in April 2010 as no other criminal trial is presently listed at Sale for that sitting.

18 In In the matter of Wells[8], Lasry J reviewed the issue of what constitutes exceptional circumstances by reference to the leading authorities, emphasising that it is usually a combination of circumstances that is important. He listed the factors which can be relevant as including the strength of the Crown case, the question of delay, strong family support, stable accommodation, availability of employment, risk of flight or re-offending, lack of prior criminal history, and the personal situation of the applicant.

19 In this case Mr Stary places particular reliance on the recent decision of the Court of Appeal in Dale. There the Court of Appeal, of which Lasry AJA was a member, found that, in the particular circumstances, the combined effect of an anticipated two year delay before trial, mental illness caused by very harsh conditions of incarceration whilst on remand, and the potential loss of the applicant's business with consequent damage to his family as a result of his extended incarceration constituted exceptional circumstances.

20 Leaving to one side for the moment the question of delay there is nothing here which is exceptional about the applicant's circumstances.

21 It was not contended on behalf of the applicant that the Crown case is weak. The Crown case is circumstantial. I have reviewed the materials. It seems to me that the course taken by Mr Stary on behalf of the applicant in this application is appropriate. It cannot be said that the Crown case is weak.

22 The applicant does not have strong family support in Victoria, and indeed my conclusion is that her ties with Victoria are weak. She has not lived here long. She has no close family here. Such ties as she has are constituted by her employment, which she has had since August 2007, and by her friendship with Mr Hobson which began late last year.

23 The applicant had a leased property to which she could go. She does not have that any longer. She does have an offer of residence with Mr Hobson, and she does have employment available to her.

24 The applicant has lived for considerable periods in New Zealand and in South Africa. She has lived most of her life outside Australia. This is not a case where one can have confidence that there is no risk of flight.

26 As to the applicant's psychological condition, I accept Dr Walton's conclusions. The applicant is depressed. That is unsurprising in the circumstances. She is now back in the mainstream and she is being treated by a psychiatrist for her depression. On my reading of Dr Walton's report, her situation is not as serious as that which was revealed by the psychiatric material relied upon in Dale.

27 Turning the to the question of delay, it seems to me that Redlich's J analysis in Cox v The Queen[9] is helpful, and is consistent with the Court of Appeal decision in Dale. In substance for the reasons he set out, delay which can be described as inordinate may by itself amount to an exceptional circumstance; and delay which has not been established as inordinate may, in conjunction with other factors, amount to exceptional circumstances.

28 The position now appears to be that a trial in April 2010 is achievable. If that is achieved the applicant will have spent approximately a year in pre-trial detention. If that is not achieved, I would expect that a trial in Melbourne should be able to be fixed before October 2010 if the parties are prepared to work towards that result. This is not a matter which is likely to have a long estimate.

29 As matters stand I am not satisfied that delays of that order can be described as inordinate.

30 In my view, the other factors to which I have referred, in combination with the projected delay, do not amount to exceptional circumstances. This case is not relevantly analogous to Dale where the projected delay was longer, the circumstances of the incarceration and the consequent effect on the applicant's mental health was more severe, and where there was the additional factor relating to the effect on the applicant's business and his family as a consequence of his incarceration.

31 It was submitted on behalf of the applicant that the Charter of Human Rights and Responsibilities Act 2006 has relevantly altered the way in which the Court ought to consider the issue of delay in this context. I would again adopted the approach of Lasry J. In In the matter of Dickson[10] Lasry J said, addressing what Bongiorno J had said in Gray:

"What his Honour's ruling demonstrates is that the Charter has a significant role to play in emphasising the importance of particular rights, but when it comes to the right to be brought to trial without unreasonable delay, that right remains to be considered within the appropriate or relevant provisions of the Bail Act."

32 Given my conclusion on the absence of exceptional circumstances, it is unnecessary to address the matters provided for in s.4(2)(d) of the Bail Act. If it had been necessary to consider s.4(2)(d) the onus would have shifted onto the DPP.[11]

33 It was suggested in material filed on behalf of the DPP that there was in this case a risk of interference with witnesses as, if the applicant was released on bail, she would work with two Crown witnesses who are co-employees. In this respect a letter which the applicant had written to those two employees was produced. Mr Stary, on behalf of the applicant, relied on the decision in In the matter of Asmar.[12] In that decision Maxwell P discussed the ability to mitigate such a risk by appropriate conditions and suggested that where there was to be a long period of pre-trial detention compelling evidence would be required before a conclusion was reached that bail would be denied on the basis of an accused might do. This issue was also addressed in Dale[13] and the President's approach in Asmar was endorsed. If exceptional circumstances had been established, in my view, it would have been possible to adequately address that risk.

34 As exceptional circumstances have not been established in this case I am bound to refuse the application.

[1] [2009] VSCA 212R at [30].

[2] [2005] VSC 195.

[3] [2003] VSC 245.

[4] [1999] VSC 413.

[5] [2008] VSC 29.

[6] [2008] VSC 4.

[7] [2008] VSC 516.

[8] [2008] VSC 29 at [7]- [11].

[9] [2003] VSC 245 at [20].

[10] [2008] VSC 516.

[12] [2005] VSC 487.