Turner, bail application [2008] VSC 193 (27 May 2008)

5 Ms Turner intends to plead not guilty to the charge of murder.

6 The relevant events occurred on the night of 3 November 2007. Ms Turner and Mr Dalgleish had spent the early evening together, with a view to seeing if they could restore their relationship. Around 9 pm, they returned to the house where she and the children were staying with her sister, Brooke Turner. Also present at the house were Brooke, Ray Thomas, Ebony Hayes and the children.

7 Whilst Mr Dalgleish was over the road having a drink with a neighbour, the applicant found an intimate photo of another woman on his mobile phone. She became increasingly upset and angry with him, while she waited for his return. When he returned she accused him of cheating and tried to hit him with her fists. She ordered him to leave the house. As he was trying to collect his things to leave, she threw some of his possessions out the door, and smashed some of his CDs.

8 Ms Turner's own record of interview contains an account of the events of that evening in which she was clearly the aggressor and Mr Dalgleish was the victim, trying to prevent her from hitting him. She describes herself as having been in a jealous rage. She attacked Mr Dalgleish on several occasions as he tried to retrieve his possessions from the front yard. On one such occasion, she hit him on the back with a flower pot.

9 On the last occasion when he returned to the yard, she grabbed a pair of scissors from the coffee table and ran outside to attack him again. She punched him again in the back. While struggling with each other, they fell. He was on the top of her as she lay on her back. He pushed himself up on his hands and knees, to get off her. Then she thrust the scissors upwards into his right eye. He swore and suddenly jumped off her.

10 The above account by the applicant is generally supported by the statement of Ray Thomas, who was present at the house and witnessed the events. Although she did not see the actual infliction of injury, Ebony Hayes also supports the account of Ms Turner as the angry aggressor that evening, with Mr Dalgleish simply trying to calm her. There is also some support in the applicant's admission on 17 November to her friend, Rebecca Le-lievre, that she had grabbed the scissors and stabbed Mr Dalgleish with them.

11 When Mr Dalgleish first spoke to the police, whilst he was being treated by ambulance officers, he said he had accidentally injured himself with some scissors. It seems clear that he was reluctant to get the police involved at all, a reluctance which may in part be explained by his past involvement with the criminal justice system, in particular, time spent in prison. There is no other evidence to support the suggestion that he accidentally stabbed himself.

12 Ms Turner's 20 year-old sister, Brooke, has given a statement to police which is completely at odds with that of all of the other witnesses and of the applicant herself. Brooke portrayed Mr Dalgleish as the attacker throughout the evening, and said that he was the one who kept initiating the fighting and who had thrown the flower pot. She explained the eye injury by saying that, as the applicant and Mr Dalgleish were pushing each other, he had fallen on his back. As he did so, his head hit a rock and bounced back upward to where Ms Turner was holding the scissors in her hand. There is no medical evidence to support her suggestion that his head hit a rock. Based on the other evidence in the hand-up brief, I would give little weight to Brooke Turner's statement, which seems to have been given, quite understandably, with a view to helping her sister.

13 In making these comments about the incident, I bear in mind that none of the evidence has been tested by cross-examination. It is always open to a jury to take a different view of the evidence. But, for the purposes of this bail application, I would give little weight to Brooke's or the deceased's statements. The Crown case as to how the eye was injured is far from weak.

14 Mr Dalgleish was taken to the Latrobe Regional Hospital and then transferred to the Eye and Ear Hospital. It was found that he had lost function in his right eye and had a right temporal lobe haemorrhage. He remained in hospital until he was discharged on 8 November.

15 A few days later, he was complaining of headaches and weakness to his left side. He was readmitted to hospital on 11 November 2007. His condition gradually worsened and it was found that part of his brain had died due to lack of blood being supplied to it. He subsequently slipped into coma and died on 16 November 2007.

16 As far as causation is concerned, Mr Turner's counsel argues that the Crown case is weak. In particular, it was suggested in argument that the real cause of death was the failure of doctors to remove foreign material from Mr Dalgleish's wound. It appears that the scissors had been used to cut up cannabis earlier that evening and that some cannabis residue may still have been on the scissors when Ms Turner stabbed Mr Dalgleish in the eye. The only medical evidence currently before the court is that Mr Dalgleish died from complications of the penetrating injury which occurred when he was stabbed in the eye. Whilst the cannabis residue may have contributed to the subsequent brain infection, given that it was inserted in the brain through Ms Turner's actions, it is still within the legal parameters of causation.

17 Once again, I repeat that none of the witnesses has been subject to cross-examination. Nor am I aware of any evidence which the defence may be able to call, in particular, whether it will be able to call any medical evidence relating to causation. But on the material currently before me, I would not describe the Crown case on causation as a weak one.

18 I turn to consider the question of delay. Whether the likely delay until trial is or is not so inordinate as to constitute exceptional circumstances must obviously vary from case to case.

19 Ms Turner has been in custody since late February of this year. The hand-up brief has been served. Her committal is likely to occur in September this year.

20 On the material currently before me, her trial is unlikely to take more than about a week. Assuming that she is committed for trial, it is highly likely she would face trial in this court in the first half of next year. There is simply no evidence to support her counsel's submission that she is unlikely to face trial until early 2010. Last week's bail application before Lasry J, to which I was referred in argument, involved a trial which is expected to last two weeks, which is double the estimate in this case. The committal in that matter is also expected to take place around September. Criminal Listings have said the trial could occur in March of next year. There is no reason to think that a one week trial in this case could not be accommodated in the first half of 2009.

21 I am not persuaded that any delay in trial is such as to constitute exceptional circumstances, either alone or in combination with other matters.

22 Ms Turner is 21 years old and has a long and sad personal history. Orphaned when she was about seven years old, she lived until she was about 14 with her aunt, Cheryl Frazer. An incident occurred around that age, which led to her aunt involving the police and arranging for her to be fostered out.

23 She was in an on-again, off-again relationship with Mr Dalgleish since she was about 14. They had their first child, a daughter, when she was 15. Their son was born when she was 18. It seems that their relationship was volatile and that each had a history of behaving violently towards the other.

24 There is no evidence that Ms Turner has ever been employed.

25 She had multiple appearances before the Children's Court between the ages of 14 and 16. Although she is lucky that no convictions were recorded, she has clearly had a number of offences proven against her for violence and criminal damage. The violence charges include intentionally causing injury, recklessly causing injury, recklessly causing serious injury, unlawful assault, intentionally threatening serious injury and resisting and assaulting police.

26 It seems that alcohol and drugs have played a large part in her past offending. She has in the past been ordered by the Children's Court on a number of occasions to undergo alcohol and anger management counselling. There is no evidence that she has ever done so.

27 Since early 2007, when she was diagnosed with bipolar disorder, she has been taking an antipsychotic drug, Seroquel. However, there is no evidence to suggest that her disorder played any role in her offending or that her condition is not able to be managed in custody on her current medication.

28 Alcohol and drugs also appear to have caused problems with the parenting of her two children. The day after Mr Dalgleish's death, Ms Turner was involved in an incident at her sister's house. She was significantly substance-affected and could not be roused by her family. The children were on that occasion removed by a friend. Two days later, the DHS obtained a protection order from the Children's Court for the removal of the children. The children have not been in Ms Turner's care since 19 November.

29 On 5 December 2007, the children were placed in the custody of the Secretary of DHS for 12 months. Were she to be released on bail, there is no possibility that Ms Turner's children would be returned to her care prior to December of this year. This is not a case in which she needs to be released from custody in order to care for young children.

30 If she were released from custody, the best she might hope for would be to have supervised access visits, if she complied with a proposed DHS case plan. The overall goal of the case plan is for the children to remain out of Ms Turner's care, so that their safety, stability and development can be ensured. As part of the case plan, Ms Turner would receive visits and support from DHS, be subject to various restrictions as to the use of alcohol and illegal drugs, submit to random alcohol and drug testing, participate in assessment and treatment, participate in anger management classes and attend a psychologist or psychiatrist as directed.

31 In the past, DHS has referred Ms Turner, and encouraged her, to use appropriate support services. Far from co-operating fully with DHS (as asserted by her counsel), she has repeatedly demonstrated an unwillingness or inability to comply with DHS directions in a co-operative manner. The police summary of offence contains details in relation to this. In particular, it is apparent that Ms Turner provided DHS with undertakings on at least three occasions last year, to the effect that she would not consume alcohol or illicit substances, not expose the children to other persons using alcohol and substances, not expose the children to violence, and submit to drug testing, assessment and counselling. The summary contains unchallenged details of her repeated breaches of those undertakings. Indeed, on the few occasions when she has provided drug screens, some of the test results showed that she had consumed marijuana, benzodiazepine, methyl-amphetamine and oxazepam. DHS workers report that she has regularly presented as abusive, aggressive and uncooperative. She has been recommended by DHS to attend her GP and obtain a referral for psychiatric assessment, but failed to do so.

32 The applicant's counsel argues that imprisonment is likely to have an impact on Ms Turner's ability to attempt to re-unite with her children. Ms Turner complains that the children have only been to visit her once since she has been in custody. DHS has indicated that it is prepared to put in place and facilitate more regular access between Ms Turner and the children.

33 One of the problems which the court faces is that Ms Turner has not always demonstrated a willingness or desire to see her children more regularly. Once again, the uncontradicted evidence is that, when the custody order was first made, Ms Turner was allowed to see the children every day except Thursday. Access was liberal, as the children were initially placed with a family friend, who was agreeable to supervising access. However, Ms Turner did not attend access on a consistent or regular basis, only attended when it suited her, and was often substance-affected when attending. Due to the inconsistency of her attending access, and reports that she was attending the carer's house presenting as angry and inappropriate, DHS took over supervising access.

34 Whilst in custody, Ms Turner has been seeing a psychiatric nurse once a week. Her counsel says that she has asked to see a psychiatrist and to attend anger management counselling whilst in custody, but has been told that this is not possible. Whilst I have no doubt that counselling facilities are likely to be more readily available outside of custody, that fact does not constitute exceptional circumstances. Ms Turner has had numerous opportunities to obtain such counselling in the past and has unfortunately shown no inclination to do so.

35 This is the first time Ms Turner has been in custody. Whilst I do not doubt that the past three months in custody have been difficult for Ms Turner, and may well have caused her some degree of reflection, there is really no evidence before me such as might persuade me that she is any more likely to genuinely undertake drug, alcohol and anger management treatment and counselling than she has been in the past.

36 Except for one visit to a relative in Adelaide, Ms Turner has never left Victoria. She rarely travels outside the Latrobe Valley, where she has always lived.

37 On a previous occasion when she failed to answer bail, she did not attempt to flee the jurisdiction.

38 There was a period of about three months between Mr Dalgleish's death and her being charged with his murder, during which she could have fled the State if she wished to do so. She made no such attempt.

39 Given her history and her apparent financial position, I do not regard her as presenting any real risk of fleeing the jurisdiction.

40 On 4 November 2007, the day after the incident, Ms Turner was charged with various charges, including intentionally and recklessly causing serious injury. She was released on bail on her own undertaking, with conditions as to where she was to live, and that she was to stay away from Mr Dalgleish.

41 Mr Dalgleish died on 16 November 2007. Mr Turner was not charged with murder until 23 February 2008. She was supposed to attend at the Moe Police Station on that date, by prior arrangement with her solicitor. When she had not attended within an hour of the arranged time, the police went and collected her from her sister's house.

42 She has co-operated with the police in the sense of participating freely in lengthy records of interview, both when first arrested in November and then again in February.

43 Ms Turner has apparently failed to answer bail on a previous occasion in relation to two outstanding charges. She had been bailed to appear at the Latrobe Valley Magistrates' Court on 3 September 2007, on charges of criminal damage and possession of cannabis. She failed to appear. Warrants were issued for her arrest and she was arrested about a week later. No explanation has been given for this failure to answer bail.

44 I conclude that there is some risk that she would fail to answer bail, however, as mentioned earlier, she is unlikely to attempt to flee the jurisdiction. It seems likely the police would be able to locate her if she did fail to answer bail. I would not refuse to order bail only by reason of this risk.

45 I have already mentioned Ms Turner's various appearances before the Children's Court, particularly between the ages of 14 and 16. I have also mentioned the two charges that have yet to be dealt with. It seems that Ms Turner had not offended between the November incident and when she was taken into custody in late February 2008. However, I note that the November incident itself occurred while she was on bail for the other offences.

46 Given Ms Turner's history of alcohol and drug abuse, which she has not addressed despite numerous opportunities to do so, it is hard to have any confidence that she would not commence abusing both substances again. If that occurs, it seems highly likely she would commit further offences, as well as breaching the proposed conditions of bail.

47 Ms Turner's aunt, Cheryl Frazer, has told the court that she would let Ms Turner come and live with her and her family. Mrs Frazer says that she would inform police if Ms Turner started using alcohol or drugs whilst living in her house. Whilst there is no suggestion that Mrs Frazer is not a suitable person for Ms Turner to live with, there are clearly limits on her ability to control Ms Turner's behaviour, as history has demonstrated. It is also not practicable, given Mrs Frazer's commitments to her own family, to think that she could effectively supervise Ms Turner around the clock.

48 For all of these reasons I conclude that if released on bail there is a serious risk that she would commit further offences.

49 I am not satisfied that exceptional circumstances have been made out, even if all the relevant matters are considered collectively. It follows that the application for bail will be refused.

[1] As to which, see the discussion by Maxwell P in Re Asmar [2005] VSC 487.