Re Meade [2012] VSC 11 (27 January 2012)

3 Bail shall not be granted to a person charged with murder unless the Court is satisfied that exceptional circumstances exist that justify the making of such an order.[2] If the applicant is able to establish that exceptional circumstances exist, the Court should grant bail unless it is satisfied that there is an unacceptable risk.[3]

4 The Crown opposes the application for bail, contending first that the applicant does not establish that exceptional circumstances exist and secondly, that there is an unacceptable risk that the applicant would interfere with witnesses or otherwise obstruct the course of justice if he were granted bail.

5 In summary, the Crown case is that on 28 June 2011 the applicant travelled from his home in South Australia to Molesworth in Victoria where he had arranged accommodation for a three night stay at the Molesworth Hotel. The applicant stayed at the hotel on 28, 29 and 30 June 2011.

6 It is alleged that very early in the morning of 1 July 2011, the applicant left the hotel, drove to the Donvale area, and parked his vehicle near the home of his former wife who resided at 11 Limassol Court, Donvale. While the deceased was absent from the home dropping off children at their primary school and leaving her vehicle at a car repair shop, the applicant entered the Limassol Court property from the rear, gained entry to the house and then waited for the deceased to return home. Some time around 9.10am the deceased returned to 11 Limassol Court and entered the house by opening the garage door. The deceased walked into the garage and entered the laundry by an internal access door.

7 It is alleged that the deceased was then confronted by the applicant in the laundry who struck her about the right side of her head and the right arm with a blunt object, inflicting the injuries which caused her death. The applicant then locked the internal access door leading to the garage, left the house at the rear, returned to his vehicle and drove back to South Australia arriving home at about 8.45pm.

8 During the afternoon of the same day, the deceased was discovered by a neighbour unconscious in the laundry. She was taken to the Royal Melbourne Hospital in a critical condition.

9 The deceased died on 11 July 2011 after life support was withdrawn. A post-mortem examination determined that the deceased had suffered multiple skull fractures and sustained an ultimately fatal brain injury as a result of receiving multiple blunt force strikes to the head.

10 The applicant was born on 8 February 1961 and is aged 50 years. He has three children with his former wife (the deceased) aged 11, 9 and 7 years. Prior to his arrest the applicant resided at 4 Wolomina Court, Salisbury Heights, South Australia with his wife Irina Meade. Ms Irina Meade is a Russian citizen on a temporary visa arising from her marriage to the applicant. The applicant is step-father to his wife's daughter.

11 The applicant has worked as a geologist for most of his working life. Prior to being taken into custody on 13 September 2011, he was employed by Uranium Equities Ltd in Adelaide. His employment ceased after police began investigating him. The applicant was also a director of Bluegum International Pty Ltd, a company he used in connection with his work as a geologist.

12 The applicant relies on the following circumstances in combination to establish that exceptional circumstances exist which would justify an order granting bail:

(a) lack of prior criminal history and no matters pending;

(c) availability of a stable residence in Victoria;

(f) effect of the applicant being in custody on the family;

(k) effect of the imposition of certain restraining orders made in accordance with the Confiscation Act 1997;

13 The Bail Act 1997 does not define the expression "exceptional circumstances".

14 To be exceptional the circumstances must be unusual or out of the ordinary. Exceptional circumstances may be constituted by a combination of factors which may include factors which relate to the strength of the Crown case or to the personal circumstances of the applicant or both.[4]

15 In DPP v Cozzi,[5] Coldrey J referred to factors in other cases which have been taken into account in assessing whether there were exceptional circumstances. Relevantly, for present purposes, they include lack of any prior criminal history, constant employment, stable accommodation, strong family support, employment and low risk of flight or re-offending, the strength of the Crown case and delay.

16 If exceptional circumstances are established by the applicant, the onus will be on the Crown to show there is an unacceptable risk that the applicant would interfere with witnesses or otherwise obstruct the course of justice if he were granted bail.

17 In Scott, Kaye J said that the two questions are not entirely discrete. Applied in this case, if it could be concluded that the applicant would not pose a risk of interfering with witnesses or otherwise obstructing the course of justice, that factor would weigh in favour of the existence of exceptional circumstances, but if there was a material risk that the applicant would interfere with witnesses or obstruct the course of justice if bail were granted, that would militate against the existence of exceptional circumstances.[6] Expressed another way by Coldrey J in Cozzi, the lack of matters constituting unacceptable risk as set out in s 4(2)(d) of the Bail Act 1977 are often taken into consideration.[7]

18 I shall now consider each of the matters relied on by the applicant. In doing so, I have considered the affidavit material filed in support of, and in opposition to, the application and the submissions of counsel.

Lack of prior criminal history and an impressive work record

19 It is not disputed that the applicant has no prior criminal history and that no matters are pending. Likewise, it is not disputed that the applicant has had an impressive employment record, having worked as a geologist for most of his working life. The Crown submits that it is not unusual for a person facing a murder charge in a family setting to come before the courts without a criminal history and with a good work record. The applicant would try to obtain work if released on bail. Nevertheless, the Crown accepts that these circumstances are to be considered in combination with other circumstances.

Availability of a stable residence, family support, community ties

20 Counsel for the applicant submits that the applicant is an Australian citizen with no ties elsewhere and has family support. If released on bail the applicant would not return to South Australia but would reside in the suburb of Vermont at the home of his mother, Mrs Joan Meade, who would be able to provide accommodation and modest financial support until the applicant is able to obtain work. The applicant's wife, Irina Meade, attended court having travelled from South Australia. The applicant's mother and his second cousin, Mr Phillip Lewis, a resident of Brunswick, also attended court in support of the applicant.

21 The applicant was the sole income earner in the household until his arrest. It was submitted that the applicant's wife is not currently working and is unable to work due to her health. She is in receipt of Centrelink benefits of about $526 a fortnight. Counsel for the applicant tendered a medical report dated 15 December 2011 which records a diagnosis of Irina Meade (neé Arsenova) with a panic disorder which is temporary. The recorded prognosis is that she is likely to show considerable improvement within two years, but is unfit for work or study from 9 December 2011 to 8 March 2012. The report indicates that Ms Meade is being treated with Lexapro, an anti-anxiety and anti-depression medication. The medical report states that Ms Meade requires urgent psychological referral.

22 Counsel for the Crown submitted that availability of a stable residence was not unusual and that one would not apply for bail without the availability of a stable residence. The Crown also submitted that the applicant's ties to the jurisdiction are not impressive; that the applicant's family is in South Australia, his children are in the United Kingdom and his wife is a Russian national. Further, that his ties to Victoria, aside from to his mother, are not strong. In relation to the state of health of Ms Irina Meade, counsel for the Crown noted that the medical report from a general practitioner dated 15 December 2011 is apparently based on a single consultation on 14 December 2011 and it was submitted that one does not know whether the prescribed medication has improved her situation. Counsel for the Crown pointed out that many of the factors mentioned in the patient history relating to police attendance at her home and bugging of phones are historical matters and that the granting of bail would not alleviate those matters. Whilst acknowledging that the applicant's family have faced financial hardship as a consequence of the applicant being placed in custody, the Crown submitted that this was also not unusual.

23 Counsel for the applicant contends that the Forensic Services Department of the Victoria Police have indicated that DNA analysis in the applicant's matter would not be completed until approximately May 2012. Counsel for the applicant contends that in those circumstances it is likely that there would be a contested committal some time between June and August of this year and that the matter is unlikely to be listed for trial until six to twelve months after the contested committal. This would mean there would be likely to be a trial date during the first half of 2013 at the earliest.

24 Counsel for the applicant relied on the case of Dale v DPP.[8] In that case, the appellant would have been in gaol for more than two years before the matter came to trial. Counsel for the applicant drew my attention to the fact that the Court of Appeal regarded the delay involved in Dale as "very substantial".[9]

25 However, I note that in Dale, the Court of Appeal regarded the delay as particularly significant because the applicant was kept in harsh prison conditions for his own protection following his arrest which had, as a consequence, severely affected his mental health.[10]

26 Counsel for the applicant also referred to a passage in Cozzi where Coldrey J said:

The concept of delay has been dealt with in many cases. It is a matter of some sensitivity where the person incarcerated has the benefit of the presumption of innocence, and it must be borne steadily in mind that bail is not about punishment in advance of a jury trial, but is designed to secure attendance at that trial. Accordingly, whilst there is necessarily a level of pragmatism involved in the concept of delay, its operation cannot be limited by reference to what is currently regarded as "normal" for the prosecutorial process.[11]

27 I accept that the matter cannot be determined merely by reference to what is "normal" at any given time. But that is not to say that the normal timeframes should be disregarded as part of the overall assessment in any given case. Recently, Kaye J, an experienced judge of this Court, observed that the proposition that ordinarily trials of persons accused of murder take place approximately two years after the date of arrest was consistent with his experience.[12] In this case the Crown accept that the committal will take place in about June 2012 and will last approximately one week and submit that the matter could be listed for trial in early 2013; and that the estimate of 21 months is putting the likely delay at its highest. According to the Crown, there is no reason to suggest that the timetable will not be adhered to; that the DNA testing is not anticipated to cause any problem and will be available before the committal and that although several statements are yet to be obtained this will not hold up the committal.

28 For present purposes, I accept the estimates given on behalf of the applicant. By the time this case comes on for trial it is likely that approximately 21 months will have elapsed since the date upon which the applicant was arrested. The Crown submits that none of the likely timeframes described by the applicant's solicitor in his affidavit are unreasonable considering the size and complexity of the investigation. I accept this submission.

29 I do not accept that in this case the likely delay is of itself so inordinate as to amount to an exceptional circumstance. Nevertheless, the likely delay is a significant factor and must be taken into account with other relevant factors.

30 Counsel for the applicant submitted that the prosecution case against the applicant is "not overwhelming".[13] He submitted that there was no evidence of any weapon; that there is no forensic evidence linking the applicant to the crime scene; that boot prints were observed at the scene but the boots seized from the applicant did not contribute to the patterns observed; that no blood was found in the applicant's car; and that a significant portion of the prosecution case relies upon evidence of the applicant's post-offence conduct, some of which may not be admissible.

31 The Crown contends that the strength of the Crown case can only be assessed after evidence is given at a committal or at trial. As counsel for the Crown observed, counsel for the applicant did not contend that the Crown case is weak. In my view, it was proper for counsel for the applicant to characterise the strength of the case against his client as he did.

32 For obvious reasons, it is undesirable to embark on any detailed analysis of the strengths of the respective cases. Any observations I make in this regard are to be taken as general in nature and are necessarily superficial as I have not heard from any witnesses, heard any of the recorded conversations or considered all the evidence.

33 The case against the applicant is circumstantial. On the question of motive, the Crown will rely on evidence about the relationship between the applicant and the deceased, particularly after the finalisation of their divorce in late 2009. It would appear that the relationship between the applicant and the deceased was strained, particularly with regard to financial matters and the payment of child support. The Crown contends that the deceased was pressing the applicant to pay child support to her, as she had discovered by chance that she had been deceived about the applicant's financial position because he had not disclosed that he had been working for the first six months of the year with Uranium Equities, and he had told her falsely that he was to start a new job on 1 July 2011.

34 The Crown points to a terse email exchange which occurred following the granting of orders in the Family Court over the payment of child support, which occurred in the period 10 to 14 June 2011. On 27 June 2011, four days before she was attacked, the deceased was pressing the applicant for details of a new job that he claimed that he was starting. The Crown will contend that the issue of child support, when there were three children involved, was a pressing motive.

35 In addition, the Crown will contend that there was general antipathy towards the deceased; that the applicant and the deceased were not on speaking terms, and had communicated electronically for six months prior to the killing. The Crown contends that general antipathy in these types of killings is a very relevant circumstance.

36 The Crown submits that extensive background investigations by the Homicide Squad did not uncover any person, save for the applicant, with any motive to harm the deceased.

37 The Crown also points to the fact that the crime scene investigations would indicate that there was no theft and no sexual assault in the home. The Crown submits that the scenario of the unknown intruder, where no theft or sexual assault takes place, is totally implausible.

38 On the issue of forensic links, counsel for the Crown submits that there is a forensic link that exists at this stage derived from bloodied footprints in the vicinity of where the deceased was found. Those footprints indicate that the person wore elastic sided Redback work boots. The accused wore Redback work boots and a pair was found at his premises in South Australia. The Crown concedes that the sole pattern of the pair found at the applicant's house does not match the sole pattern in the deceased's house. In the listening device material the applicant says that he left his work boots at home when he went to Victoria in the week leading up to Friday 1 July 2011. However on the day before the deceased was attacked the applicant can be seen on CCTV footage taken in Mansfield in Victoria wearing elastic sided work boots despite statements in the listening device material to the effect that he did not take his boots to Victoria and just had his runners or sneakers.

39 The Crown submits that despite the fact that the applicant had signed consent orders for his children to be relocated to the United Kingdom he was nonetheless very concerned about the prospect of their removal. In this regard, the Crown rely on communications with a work colleague, Charles Nesbitt, in mid-June 2011 in which the applicant expressed concern that his former wife was taking his children overseas; that there was nothing he could do to stop it; that he felt helpless in the situation, and that he had already agreed they could go. The Crown submit that he became upset when confiding in Mr Nesbitt and invented lies asserting that his children had suffered extreme abuse in the care of their mother which included a fictitious allegation that her boyfriend was responsible for raping his daughter. The Crown will say that these lies about a notional boyfriend was an attempt to cast suspicion on someone else in the event that his wife was a victim of foul play.

40 According to Nesbitt, the applicant said he wanted assistance in contacting someone who would help him out of his predicament which Nesbitt interpreted was a request for someone to help out in a sinister way. Nesbitt says the applicant suggested in a half-joking manner that a couple of .22s and a baseball bat could solve the situation. Nesbitt was very concerned and later emailed the applicant listing legitimate avenues that he could think of to help the applicant and discouraged the applicant from taking a criminal approach to solve his family issues.

41 On 4 July 2011, three days after the deceased was attacked, the applicant telephoned Nesbitt and left a voicemail message asking him to delete the email that he had sent. The Crown submits that this was done by the applicant in an attempt to destroy incriminating evidence.

42 On the issue of opportunity the Crown submits that the applicant went to elaborate lengths to orchestrate a trip to Victoria on the week of the murder. He told his employer that he was unable to go to a work funded trip to the Nabarlek Mine in the Northern Territory for the week of 27 June 2011 due to a private matter that he said he was going to discuss that day with his director, Bryn Jones, but never did; and he feigned illness at work on Monday 27 June 2011, but that afternoon booked rooms at the Molesworth Hotel for 28, 29 and 30 June 2011 and continued to deceive his employer throughout those days about his health, stating on 30 June 2011 that he was still sick in bed and coughing up blood.

43 Further, the Crown contends that having lived in the deceased's house the applicant knew the layout of the premises and thus knew how to approach the property unseen using the bush reserve at the rear. The Crown also relies on the fact that 1 July 2011 was the last day of school for the children at the end of the second school term prior to their relocation to the United Kingdom and that the applicant was aware of the deceased's habit of dropping off the children and picking them up and that she could be expected to be home between 9.00am and midday.

44 The Crown relies on the fact that the applicant switched off the GPS function on his mobile phone from 4:22am on 1 July 2011 until he switched his mobile phone back on at 10.59am.

45 The Crown also relies on covert physical and electronic surveillance conducted on the applicant between August and September 2011. At the outset, I note that the transcripts of the electronic surveillance with which I have been provided are draft transcripts yet to be finalised and I have not had the opportunity to hear the recordings. Furthermore, counsel for the applicant has foreshadowed questions of admissibility surrounding the evidence of post-offence conduct.

46 Subject to these qualifications, I accept that the applicant and Irina Meade have had discussions about setting a false trail by sending a postcard from another country to the sister of the deceased in the United Kingdom, a discussion about bribing someone to provide false evidence and more generally discussions about what to say and what not to say to police and how to avoid surveillance and detection by declining to use mobile phones and leaving phones switched off. It must be said that the discussion about sending the postcard was a suggestion of Irina Meade and not the applicant and that there was no evidence before me that a postcard was ever sent or that a person actually was bribed to give false evidence. Further, I note that some of the suggestions made by Irina Meade as to how to deal with the situation were rejected by the applicant in clear terms. In particular, the applicant rejected a suggestion that a prostitute could be paid to provide false evidence.

47 Nevertheless, shortly prior to his arrest, the applicant attended a takeaway food store in Yea whilst under covert physical surveillance and struck up a conversation during which he said he had been in the area panning for gold, that he had come not long ago to Jamieson looking for gold and one Friday had found three pieces of gold and had given a piece to each of his three nephews. During this conversation the accused gave the witness a small quantity of gold. When asked why, the applicant is alleged to have said that it was for good service, good food and he was very happy with the hospitality. This piece of gold was subsequently provided to police investigators. The Crown submits that this conduct demonstrates that the accused was intending to obstruct the course of justice.

48 Although troubling, evidence of discussions about setting a false trail, bribing someone to provide false evidence and giving away a piece of gold do not provide cogent evidence that any offence will be committed by the applicant if bail were granted. For present purposes, I decline to make any finding that there is a material risk that the applicant would interfere with witnesses or obstruct the course of justice if bail were granted. Accordingly, those risk factors do not weigh against the applicant in my analysis of his application.

49 The Crown contends that the investigation is incomplete with reports and DNA tests still to be completed and that in the circumstances it would be premature to make any assessment of the strength of the Crown case. I disagree. Some assessment is required. For present purposes, it is enough to say that based on the material before me, I accept that the Crown case against the applicant is not overwhelming; however, in my view, it is not a weak Crown case. Obviously it may become necessary to reassess the position after the reports and DNA tests are completed.

50 The applicant's mother has offered to put her house forward as surety for the applicant. The capital improved value of this property according to the most recent rate notice is $575,000.[14] Counsel for the applicant submits that the availability of a surety and its substantial monetary value are unusual circumstances if not exceptional circumstances and are relevant matters to consider. The Crown submits that the availability of a surety is relevant only once the applicant has established exceptional circumstances. In support of this, the Crown rely on the case of Abbott in which Gillard J said:

The provision of a surety is a condition imposed to ensure the accused will answer bail. It is not relevant to the issue of "exceptional circumstances".[15]

51 Counsel for the applicant relies on the decision of Re Grotheer in which the fact that the applicant's father was willing to provide a surety for a substantial amount was a factor considered, without comment as one of six factors in determining whether exceptional circumstances existed.[16] Likewise, in In the matter of an application for bail by Steven Mustica and R v Chalmers, the availability of sureties was a factor which appears to have been taken into account.[17]

52 In my view, the availability of a surety is relevant to the issue of whether exceptional circumstances exist. In general terms, this factor may have an interrelationship with flight risk and the likelihood that an applicant would comply with any conditions of bail and attend trial. In this case, I do not regard the availability of a surety as something out of the ordinary, notwithstanding that the applicant's mother is willing to put her house forward for this purpose.

53 Counsel for the applicant submits that the applicant is a low flight risk and the Crown does not take issue with this.

The effect of the imposition of restraining orders

54 On 22 September 2011, on the application of the Director of Public Prosecutions, orders were made under s 15(3)(a) of the Confiscation Act 1997 in relation to the proceeds of sale of a property owned by the applicant at Campbell Street, North Meade, New South Wales, the property at 4 Wolomina Court, Salisbury Heights, South Australia, a 2010 Red Ford Escape station wagon and any other property not specified in which the applicant has an interest. Subsequent variations were made to the restraining order. For present purposes, it is only necessary to refer to a variation made on 29 September 2011 to allow the sale of the property at 4 Wolomina Court, Salisbury Heights, South Australia. The order provides that on completion of the sale of the property the proceeds in excess of costs and money owed to the National Bank of Australia are to be held by the Department of Justice, Asset Confiscation Office to be held on trust until further order of the Court.[18]

55 The applicant says that the effect of the restraining orders together with the applicant being in custody meant that the applicant was unable to meet mortgage repayments. The applicant says that but for the restraining orders and being in custody he would have continued to live in the South Australian property until that property was sold and a new house purchased. As I understand the argument, counsel for the applicant submits that although there is no issue taken about the legitimacy of the restraining orders, those orders operate oppressively by leaving the family with no access to funds.

56 Counsel for the Crown submits that this inconvenience does not alone or in combination amount to an exceptional circumstance. Further, it was submitted that an application could be made for variation of the restraining orders, noting that there had been two variations made to the restraining orders already. I agree with these submissions.

57 Having had regard to each of the relevant factors individually and in combination, I am not satisfied that exceptional circumstances exist. In my opinion, there are a number of unexceptional circumstances which in combination do not amount to exceptional circumstances. Regrettably for the applicant this is not a case which is out of the ordinary.

58 Having reached this conclusion, it is unnecessary for me to consider separately the second ground upon which the Crown opposes bail, namely that there is an unacceptable risk that the applicant would interfere with witnesses or obstruct the course of justice if I were to grant bail.

59 It follows that the application for bail will be refused.

[1] Bail Act 1977 ss 4(1) and 4(2)(a).

[2] Bail Act 1977 s 13(2)(b).

[3] Bail Act 1977 s 4(d).

[4] Application of Bail: Nathan Scott [2011] VSC 187, [18] ("Scott"). See also Venditti v The Queen [2008] VSC 604, 2 [9]; In the Matter of Application for Bail by Maloney (Unreported, Supreme Court (Vic), Vincent J, 31 of October 1990) cited in Abbott [1997] 97 A Crim R 19 26-27; see also Re: Paul Noel Dale [2009] VSCA 212R, 15 [44].

[5] [2005] VSC 195, 214-216 [18]-[25] ("Cozzi").

[6] [2011] VSC 187, 5 [19].

[7] In the matter of an application for bail: Nathan Scott [2011] VSC 187, 5 [18] and [19]; DPP v Cozzi [2005] VSC 195, 214-215, [25].

[8] [2009] VSCA 212R ("Dale").

[11] DPP v Cozzi [2005] VSC 195, 217 [33 (footnotes omitted).

[12] Re Grotheer [2010] VSC 284, 5 [20].

[13] Affidavit of Gordon James Fraser Chisholm sworn 3 January [40].

[14] Affidavit of Gordon James Fraser Chisholm sworn 3 January 2012 and exhibit RM3 thereto.

[15] Abbott [1997] 97 A Crim R 19, 25.

[16] Re Grotheer [2010] VSC 284, 2 [10].

[17] In the matter of an application for bail by Steven Mustica [2006] VSC 441, 9-10 [46]-[49]; R v Chalmers [2009] VSC 620.

[18] Affidavit of Gordon James Fraser Chisholm sworn 3 January 2012 and exhibits RM1, RM2 and RM3 thereto.