Christie v The Queen
[2002] WASC 256
•6 NOVEMBER 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CHRISTIE -v- THE QUEEN [2002] WASC 256
CORAM: McLURE J
HEARD: 29 OCTOBER 2002
DELIVERED : 6 NOVEMBER 2002
FILE NO/S: MCS 48 of 2002
BETWEEN: RORY KIRK CHRISTIE
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Bail - Charge of wilful murder - Exceptional circumstances required - Strength of case - Risk of flight and onus - Welfare of child - Turns on own facts
Legislation:
Bail Act 1982(WA), Pt C Sch 1
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr T F Percy QC
Respondent: Ms A L Forrester
Solicitors:
Applicant: Ian R Farquhar & Co
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
Pinkstone v The Queen [2000] WASC 321
R v Clarke II (2001) 118 A Crim R 585
WCVB v The Queen (1989) 1 WAR 279
Case(s) also cited:
Dodd v Hoogewerf & Ors [2002] WASCA 15
Lazaro v The Queen, unreported; SCt of WA (Pidgeon J); Library No 930595; 3 November 1993
Russell v The Queen, unreported; SCt of WA (Owen J); Libray No 930741; 23 December 1993
The Commonwealth Director of Public Prosecutions v Lijo & Ors [2002] WASC 154
McLURE J:
Introduction
This is an application for bail. The applicant is charged with the wilful murder of Susan Margaret Christie, his estranged wife.
The applicant was born in Canada in 1969. He has lived in Australia permanently since 1996 following his marriage to his wife. They separated in 1999. There is one child of the marriage, a son born in 1996. The applicant retained custody of the child following the separation.
The applicant is a person of means. His funds are sourced from Canada.
The Crown case is that between the morning of Friday 16 November 2001 and Saturday 17 November 2001 the applicant went to his wife's unit in Jolimont where a physical altercation took place between the applicant and his wife which resulted in his wife being fatally injured. The applicant is said to have then attempted to clean blood from the unit to conceal her death and then removed his wife from the unit and disposed of her body in a yet to be disclosed location. The applicant was arrested on 6 August 2002 and charged with wilful murder.
The plaintiff's application was supported by affidavits sworn by him on 13 August 2002 and 4 September 2002. At the hearing of the application, senior counsel for the applicant provided to the court a psychological evaluation report concerning the applicant's son prepared by a clinical psychologist.
The applicant sought bail on terms and conditions contained in a Minute which provided for an undertaking from the applicant in the amount of $250,000, a cash deposit surety of $100,000 and other conditions aimed at securing the attendance of the applicant at the trial.
The court was informed by counsel for the prosecution, without objection, that it is likely the applicant's trial will be listed for hearing in July or August 2003.
There is no dispute between the parties as to the legal principles governing the disposition of the application. When a person is charged with a serious offence bail will only be granted in exceptional circumstances: Jemielita v The Queen (1994) 12 WAR 362; Lim v Gregson [1989] WAR 1. Further, the onus is on the applicant to demonstrate exceptional circumstances: Pinkstone v The Queen [2000] WASC 321. The Crown opposed the grant of bail.
On behalf of the applicant it was said that the most relevant matters for the purposes of Pt C of Sch 1 of the Bail Act 1982 (WA) in the present case are:
(a)the strength of the Crown case;
(b)the likelihood of flight;
(c)the history of previous grants of bail and absence from the jurisdiction; and
(d)the welfare of the applicant's son.
I will deal with each of the matters specifically relied upon by the applicant.
Strength of the Crown Case
The Crown case is entirely circumstantial. There is no body and no confession. The Crown has to prove that Mrs Christie was murdered and that the applicant murdered her with the necessary intent.
However, senior counsel for the applicant conceded, correctly in my view, that there was a prima facie case against the applicant. It was also accepted by both parties that the Crown case is not so strong as to be "overwhelming and indicative of an almost inevitable conviction".
It appears from the material in the Crown brief that the two issues of whether Mrs Christie was murdered and who murdered her are interwoven. The circumstances relied upon by the Crown include allegations that:
(a)Mrs Christie has disappeared without trace;
(b)Mrs Christie has failed to make contact with persons whom she would be expected to contact and has not accessed her banking accounts;
(c)there is forensic evidence of blood at her unit and evidence of a weight being dragged across the floor of the unit;
(d)the applicant had an acrimonious relationship with his estranged wife and a motive in what he saw as the need to protect his son from his estranged wife who had been given unsupervised access rights in August 2001;
(e)there were bloodstains on one of the applicant's ties, the DNA from which matched that of Mrs Christie;
(f)the applicant put the bloodstained tie and a suit in for dry cleaning on 16 November 2001 with an outlet that was not his regular dry cleaner;
(g)when told by Mrs Christie's first husband that Mrs Christie was missing and that he intended to go to the police, the applicant informed the first husband that he thought he had seen Mrs Christie. The applicant informed another person that he had seen Mrs Christie however the details of the sighting were different;
(h)the applicant purchased 20 litres of hydrochloric acid shortly before Mrs Christie's disappearance which had been emptied and placed in his neighbour's bin shortly after her disappearance;
(i)there was an unusual smell in the vehicle used by the applicant at the time in question;
(j)the applicant made attempts in mid‑December 2001 to hire a specified yacht, which was capable of being sailed overseas;
(k)the applicant lived an unusual and deceitful life misleading his de facto as to a number of significant matters including his employment.
The applicant addresses the issues of his attempts to hire a yacht and the bloodstain on his tie in his September affidavit. He refers to his sailing experience in Canada and Western Australia and his inquiries concerning the charter of a yacht which he said he intended to sail over four or five days in the Port Geographe Bay area. In relation to the blood stains on his tie, he refers to an occasion when visiting his wife on a weekend during her access period at about the time of his son's birthday (which appears to have been in October 2001) when his estranged wife had a cut finger or was bleeding from the nose as an occasion on which the blood, if it was hers, could have got onto his tie.
Further, senior counsel for the applicant referred to another witness, a person who was in an intimate relationship with Mrs Christie and with whom she had a falling out in early November 2001, as a person who could not be disregarded as a suspect.
I can only make a preliminary assessment of the strength of the Crown case on the documentary material. Based on that material I do not characterise the Crown case as weak. However, it is unnecessary to attempt any further qualitative description of its strength. Suffice to say I am not persuaded that the strength of the Crown case is itself an exceptional circumstance justifying the grant of bail. However, the strength of the Crown case is a factor to be weighed in the mix of other relevant considerations to which I now turn.
Likelihood of Flight - Prior Conduct
The applicant was on bail for other matters between February 2002 and August 2002. In particular, in February 2002 he was charged with one count of child pornography and two counts of possession of bestiality under s 60(4) and s 101(1)(b) of the Censorship Act 1996 (WA). He pleaded guilty to the charge of child pornography on 6 August 2002 and was sentenced to a term of 2 years imprisonment, suspended for the same period. On the same day he pleaded guilty to the two counts of possession of bestiality and was fined $5,000. The applicant complied with all bail conditions, including a condition that he surrender his passport. There is no suggestion he attempted to abscond the jurisdiction in this period.
Further, following his estranged wife's disappearance the applicant had been interviewed by police on a number of occasions and, it is said, was an obvious suspect. He had possession of his passport at all times until February 2002 and did not leave the country to avoid investigation or possible arrest.
In late December 2001 the applicant travelled to Canada to attend his grandfather's funeral. He remained overseas for four weeks before returning of his own volition to Australia. His son accompanied him to Canada.
The applicant says these matters demonstrate he is not a flight risk, proof of which in any event is said to rest with the Crown: R v Clarke II (2001) 118 A Crim R 585 at 596.
I accept that in ordinary circumstances, the Crown bears the onus. However, in this case the parties accept that the applicant bears the onus of establishing exceptional circumstances. One of the policy justifications for placing the onus on the applicant of establishing exceptional circumstances is that the seriousness of the offence and the term of the imprisonment that would follow a conviction in themselves form the basis of an inference that an applicant might abscond and not stand his trial: Lim v Gregson [1989] WAR 1 at 16; WCVB v The Queen (1989) 1 WAR 279 at 282. In my assessment, the strength of the Crown case does not negative or significantly undermine any such inference in this case.
There are other facts in this case that reinforce the inference. The applicant is a foreign national. He derives his income from Canadian sources. There is no evidence of any, or any significant assets in this jurisdiction. He has no other ties to the jurisdiction save for the presence of his son. If the applicant absconded, there is a likelihood that his son would be looked after by relations outside the jurisdiction.
I take into account that the applicant and his son left Australia in December 2001 and returned. However, at that stage he had not been charged with any offence. Further, if he was aware that he was a suspect his failure to return may have been prejudicial. It is the case that the applicant made no attempt to leave the jurisdiction between February 2002 when he was charged with possession of child pornography and bestiality and when he was sentenced for those offences in August 2002. However, that conduct has to be judged against the nature of the offences and the likelihood of a non‑custodial penalty.
Regardless of onus, I am satisfied that there is a real risk of flight if the applicant was granted bail. Further, I am not persuaded that the applicant's attendance at trial can be secured by monetary, residential and reporting conditions.
The Welfare of the Applicant's Son
The applicant has been the primary carer of his son following the separation in 1999 and has maintained custody of the child.
Since the applicant's arrest in August 2002, the child has been cared for by a friend, who it is said will not be able to continue to do so in the longer term. In the event the current custody arrangements do not continue there is a likelihood that the child would be taken into the care of either his paternal or maternal grandparents in Canada or the United Kingdom respectively.
The report of the clinical psychologist notes the child's close relationship with his father and some degree of psychological distress consistent with separation from the primary care giver. However, the psychologist concluded that the child was not suffering from any significant psychological problems. It is suggested that if the child loses access to his father this may have a further destabilizing effect on him.
I accept that the welfare of the child is a relevant factor to take into account in determining this application. On the other hand, what is in the best interests of the child is a very complex assessment involving a whole variety of matters, including the applicant's convictions. Some level of distress is an inevitable consequence of the applicant being remanded in custody. However, having regard to the period to trial and the fact that there are a number of other persons available to minimize the detrimental effect on the child of the physical separation from his father, I am not satisfied that the child's situation is an exceptional circumstance.
Conclusion
I am not satisfied that the factors relied upon by the applicant, either singularly or together, constitute exceptional circumstances. Accordingly, the application for bail must be dismissed.
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