Re Sam [2017] VSC 91 (8 March 2017)

2 On 15 February 2017, the applicant filed an application for bail. Because the applicant is charged with murder, bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist which justify the making of a bail order.[1]

3 The applicant is 32 years of age. She was born in India. She met the deceased in 2000. They commenced a romantic relationship in 2005, and were married in February 2008. In March 2009, they had a son.

4 In December 2012, the applicant and her son came to Australia. Initially, they resided with the applicant's sister and her family. In May 2013, the deceased, who had been working in Dubai for approximately one year, moved to Australia. In July 2014, the applicant, the deceased and their son moved into rental accommodation in Epping. In July 2015, all three were granted permanent residency in Australia.

5 Prior to coming to Australia, the applicant completed Bachelor of Science and Master of Science degrees. She then obtained employment as a software engineer. In June 2015, the applicant commenced employment as a website developer. The applicant remained in this employment until her remand.

6 The applicant has no prior convictions, has never previously been on any form of bail and (as such) has never breached any bail conditions.

7 In a statement made to police on 16 October 2015, the applicant recounted the events of the evening of 13 October and early morning of 14 October 2015 as follows. On 13 October, the applicant arrived home from grocery shopping at approximately 10:00 pm. The applicant offered to make the deceased dinner, but he declined as he had a headache and was not hungry. The applicant and the deceased argued briefly about money, and the deceased subsequently decided to go to bed. At 11:30 pm, the applicant joined the deceased in bed, where they continued to talk about money. The deceased was restless, so the applicant got up and made him an orange juice, which he declined, so she left it on the bench. Later in the evening or in the early hours of the following morning, the deceased got up to go to the gym, but after arguing with the applicant again, he decided not to go and they both fell back to sleep. On the morning of 14 October 2015, the applicant tried unsuccessfully to wake the deceased, at which point she called her sister and cousin.

8 Subsequently, paramedics were called. Upon their arrival, paramedics found the deceased was not breathing. Shortly thereafter, the deceased was pronounced dead.

9 An autopsy was later performed on the deceased. The autopsy showed traces of the sedative Clonazepam in the deceased. The autopsy also revealed that the cause of the deceased's death was cyanide poisoning. Family and friends of the deceased were not alerted to the autopsy findings, and the matter was referred to the Homicide Squad for the commencement of a covert investigation into the death of the deceased.

10 The Crown case is that the applicant and a co-accused, AK, murdered the deceased at the Epping premises that the applicant, the deceased and their son lived in on the night of 13 and 14 October 2015. In summary, it is alleged that the applicant and AK acted together to sedate and poison the deceased. AK was someone with whom the applicant had studied in India before she migrated to Australia.

11 It is neither necessary nor desirable to set out in this judgment all of the detail of the Crown case. In brief, the Crown case is that the applicant and AK, having known each other in India, reconnected in Australia. Physical surveillance of the applicant and AK, over a five-month period after the death of the deceased, disclosed some seven meetings between them. Moreover, evidence from at least one witness is alleged to show that the applicant and AK were in contact from as early as June 2013, and no later than January 2014 when the applicant and AK opened a joint bank account together.

12 In addition to being charged with murder, the applicant's co-accused, AK, is also charged with attempted murder in relation to an incident when the deceased was attacked at the Lalor train station on 30 July 2015 by a balaclava-clad male. The Crown case is that DNA testing and other evidence links AK to this attack. Moreover, so far as the murder charge the applicant is facing is concerned, the Crown asserts that telephone records show contact between the applicant and AK both before and after the incident on 30 July 2015.

13 The prosecution case against the applicant and AK includes an alleged recording of AK confessing to a covert operative that:

• he 'took [a] guy off';
• the 'guy' was the applicant's husband;
• prior to the alleged murder, he 'attack[ed] [the deceased] when he was entering his car' in Lalor;
• on the night of the alleged murder, he broke into the applicant's and the deceased's home and mildly sedated the entire family by lacing their avocado drinks with sleeping pills;
• on the night of the alleged murder, he laced the deceased's orange juice with cyanide, then waited until the family was asleep before holding the deceased's head and pouring it into his mouth; and
• the applicant had not asked him to murder the deceased, but he believed she knew about the murder and would support him.

14 A video and audio recorded statement from the applicant's son, who was then aged 7, discloses the applicant's son as saying that the applicant had woken him early on the morning his father died, to tell him that AK had attended the house and had left him some chocolates. Thus, the Crown says, the applicant can be shown to have had knowledge of AK's presence in the matrimonial home on the night the deceased was poisoned.

15 As part of its case, the Crown also proposes to tender at trial expert evidence (from a specialist medical practitioner with expertise in the fields of clinical toxicology, forensic toxicology and emergency medicine, Associate Professor Narendra Gunja) to the effect that the deceased would have been displaying obvious signs of pain and distress leading up to his death, and that, given the limited amount of sedative in the deceased's system, it would be unlikely that the deceased would have remained asleep and unconscious for the entire period leading up to his death.

16 The applicant's committal is currently listed for hearing on 26 June 2017. The prosecution has not yet served a statement of the expert evidence of Associate Professor Gunja. The applicant points out that the service, and necessary consideration of, any further evidence by the prosecution may result in the delay of the committal proceeding. The applicant also submits that it might reasonably be anticipated that the trial of her proceeding will not be listed before 2018.

17 The applicant submits that the following matters constitute exceptional circumstances which justify bail being granted:

• the prosecution case against the applicant is 'very weak', with no evidence of the applicant assisting, committing, encouraging or being encouraged to commit the offence. Moreover, while the prosecution case is heavily reliant upon AK's statements to covert police, in fact, AK's statements 'predominantly exonerate the applicant'. At best, it is submitted, the evidence only supports the notion that the applicant and AK had a personal relationship;
• delay, in that the committal hearing is not listed until June, with the potential for further delay;
• the applicant's son is deeply missing his mother. While his mental health and wellbeing are currently being managed by his aunt and uncle, the applicant and her family 'have grave concerns about the impact of any long-term separation from his mother on him, especially having recently lost his father';
• there is no risk of the applicant offending on bail, particularly given that she does not have a criminal record;
• there is no risk of the applicant interfering with witnesses, particularly given that most of the witnesses are members of the police force;
• the applicant has a stable place of residence with her son, her sister and her sister's family in Epping;
• the applicant has strong ties to Victoria, including her seven year old son;
• appropriate bail conditions can address any risk that the applicant might fail to answer bail, offend while on bail or interfere with witnesses;
• the applicant's family are willing to support and supervise the applicant and undertake to report any 'incident' to police; and
• the applicant has been promised volunteer work should she be granted bail, and (given her qualifications and stable employment history) the applicant has genuine prospects of obtaining ongoing paid employment upon her release from custody if she is granted bail.

18 The Crown opposes the application for bail. The Crown submits that the applicant has not shown exceptional circumstances. The Crown also contends that there is an unacceptable risk that the applicant, if released on bail, would fail to surrender herself into custody in answer to her bail, and would interfere with witnesses or otherwise obstruct the course of justice.[2]

19 In response to the applicant's contention that the prosecution case is 'very weak', the Crown submits that the circumstantial evidence 'supports a strong prima facie case'. In particular, the Crown relies upon the evidence that:

• the applicant and AK had, and maintained, a close relationship leading up to, at the time of, and after the deceased's death;
• surveillance of the applicant and AK discloses attempts made by them to conceal their relationship;
• in January 2014, the applicant and AK opened a joint bank account, and on four occasions between January 2014 and July 2015, prior to the deceased's death, when arranging money transfers through Western Union to her father in India, the applicant nominated AK's address as her own;
• prior to the deceased's death, the applicant and AK used a pair of mobile telephones registered to AK to communicate almost exclusively with one another;
• the applicant was with the deceased when the poison was administered to him and at the time of his death, and admits she made both drinks which contained the sedative and the poison; and
• the applicant's son has stated that on the morning his father was discovered dead, the applicant told him that AK had attended the family home.

20 As to the risk that the applicant would not surrender herself into custody in answer to her bail, the Crown points to the fact that both the applicant and her son are citizens of India; the applicant's parents are citizens of India and do not have permanent residency in Australia; the applicant has strong ties and support in India; and the only known relatives of the applicant living in Australia are the applicant's sister and her family. Further, it is contended on behalf of the Crown that, while the applicant's passport has been seized, 'investigators cannot rule out the possibility that she may depart Australia through other means'. Additionally, it is contended that 'extradition from India has proven to be difficult in the past'.

21 As to interfering with witnesses or otherwise obstructing the course of justice, it was put by the Crown that investigators are concerned that, if given bail, the applicant may influence any testimony given by her son.

22 The Bail Act does not define what are exceptional circumstances. It is trite that, in order to be exceptional, the circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail, notwithstanding the very serious nature of the charge against her.[3] Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[4]

23 As part of her submissions, the applicant contended that 'the admissibility of any alleged circumstantial evidence [in this case] is less than certain'. Apart from reference, in oral argument, to s 83 of the Evidence Act 2008, in relation to the statements alleged to have been made by AK, this contention was not further developed by the applicant. In answer to this contention, however, it is sufficient to say that it is not appropriate for me, in these reasons, to analyse in detail each piece of evidence to determine its likely admissibility and importance to a jury.[5] The material filed on this application discloses that there is a substantial body of circumstantial evidence (even putting any of AK's alleged statements that might inculpate the applicant to one side) that will in all likelihood be found to be admissible at any trial.

24 Similarly, it is not appropriate for me to express any firm or concluded view about the strength or otherwise of the prosecution case. I have not seen the witnesses and have not had the benefit of seeing what effect cross-examination might or might not have in relation to evidence that might be regarded as critical. That said, having read and considered the evidence tendered on this application, I am unable to agree with the applicant's description of the prosecution case as 'very weak'. For the purposes of this application, however, I am persuaded that the applicant does have reasonable prospects of being acquitted. This is not an open and shut case.

25 Notwithstanding the forceful submissions made on behalf of the applicant, ultimately I have come to the conclusion that the applicant has not established exceptional circumstances. The case against her is a circumstantial one which relies upon strands in a cable type reasoning. It is neither an unusually strong case nor an unusually weak case.

26 The delay relied upon by the applicant is not, at this stage, exceptional. If the applicant's trial is held no later than the first half of next year, she will have spent less than two years in custody. While the significance of that period should not be downplayed, it is not, either alone or when considered together with the strength (or otherwise) of the prosecution case and other relevant matters, exceptional.

27 The remaining matters relied upon by the applicant, when considered alone or in combination with the strength of the prosecution case and the delay to which I have referred, do not constitute exceptional circumstances. Having so concluded, it is not strictly necessary to consider whether, if granted bail, the applicant would be an unacceptable risk of not answering bail or interfering with witnesses. That said, in my view the applicant's risk of not answering bail could, if necessary, be managed by stringent conditions including reporting to police, a curfew, the continued surrender of her passport and a substantial surety. I am less sure about ways in which one might manage the risk of the applicant attempting to influence her son's testimony, although I should note that there is no evidence whatsoever of any such attempt having been made by the applicant to date. Moreover, it is difficult to see how granting bail would impact upon the ability of the applicant to attempt some improper influencing of her son's evidence - noting as well that the applicant's son's evidence has already been recorded

28 In any event, exceptional circumstances not having been made out, the applicant's application for bail must be refused.

[1] Section 13(2) of the Bail Act 1977 ('the Act').

[2] Cf s 4(2)(d)(i) and (3) of the Act.

[3] Re John McDonald [2010] VSC 217 [10] (Kaye J, as his Honour then was).

[5] Cf Jensen v DPP [2006] VSC 450 [40] (Hollingworth J).