DPP v Huynh
[2009] VSC 163
•8 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
CRIMINAL LAW DIVISION
No. 1421 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JULIE HUYNH |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2009 | |
DATE OF JUDGMENT: | 8 April 2009 | |
CASE MAY BE CITED AS: | DPP v Huynh (bail) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 163 | |
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Criminal law and procedure – application for bail – charges of intentionally causing serious injury, perjury and perverting the course of justice – applicant 28 year old mother with no prior convictions – victim 3 ½ year old child – extensive delay – considerations applicable – show cause – s 4(4)(c) Bail Act 1977 – application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Georgiou | Victoria Legal Aid |
| For the Respondent | Ms W Duncan | Office of Public Prosecutions |
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HIS HONOUR:
This is an application for bail by the accused, Julie Huynh. The applicant is charged with intentionally causing serious injury, and in the alternative recklessly causing serious injury, between 1 December 2007 and 10 January 2008 to her three and a half year old daughter, Flora, and with perjury and perverting the course of justice.
The applicant has been in custody since her arrest together with the co-accused, Ms Tai Wu, on 21 January 2008. By application filed 16 March 2009 she applies to this Court for bail. The application is opposed. A committal hearing is due to be held on 1 June 2009.
Mr Georgiou, counsel for the applicant, has most comprehensively and helpfully articulated all that can be said in support of the application for bail. Mr Georgiou has properly focused upon a raft of favourable matters: that the applicant has no prior convictions, has no other matters outstanding, has no criminal history, has no bail breaches and is 28 years of age. Further, that she is in onerous conditions of detention, being in protection, by reason of the nature of the charges. Further, that whilst the committal is scheduled for 1 June 2009 it is likely that a trial would not be held for another year after that and thus the applicant may be held in custody for possibly 28 months, presumed innocent of the charges, until final curial determination. I will return to that matter of delay, which I consider is a significant matter. Finally, Mr Georgiou relied upon the body of evidence in relation to the very good family of the applicant, and in particular the most helpful evidence of the applicant's mother, Ms Kieu, who gave evidence before me, and whose evidence I wholly accept. I accept that the applicant's family is a good family, and her mother in particular impressed me considerably as a responsible and good person.
As to matters of law, Mr Georgiou rightly relied upon the criteria applicable to an application such as this, and the body of established principle as to the significance of lengthy delay. This case certainly qualifies for that criterion of lengthy delay. Mr Georgiou relied upon, in particular, the analysis of Kellam J in Mokbel v. DPP (No 3)[1], and the well-known decision of Commonwealth DPP v. Barbaro (Attorney-General for Vic. Intervening)[2] of the Court of Appeal, including at paragraph 41, and the body of well-known authority as to extensive delay. The present matter has been the subject of extensive delay, which is a matter which has concerned me, and to which I shall return.
[1](2002) 133 A Crim R 141 at 142-143.
[2][2009] VSCA 26.
The principal affidavit in support is a comprehensive and helpful affidavit of Mr J.N. Button, learned solicitor, of 16 March 2009, which sets out the matters factually that Mr Georgiou has reviewed. Particularly in paragraphs 16 to 21 of that affidavit, at p.3, the matters are set forth which Mr Georgiou relies upon: a residential expectation, residing with the mother, Ms Kieu; the lack of prior convictions; the extensive delay in the matter; that reporting to the police and other requirements would be fulfilled; and management matters by reference to para.30 of the report of Dr Danny Sullivan, psychiatrist, of 14 December 2008. I have given careful attention to the report of Dr Sullivan including paragraph 28 of his report at p.5 as to the diagnosis of adjustment disorder with depressed and anxious mood. I further take into account the preparedness of good persons to provide appropriate counselling and support to the applicant if released. However, one paragraph of Mr Button's affidavit of 16 March 2009 para.19 I will in a moment say a little more about, and that is: "The applicant contends that the only direct evidence on which a jury could reasonably convict her of intentionally causing serious injury is the evidence of Ms Tai Wu.”
There is a proposed affidavit of Mr Button, essentially spelling out further the matters in the first affidavit, and that is of 8 April 2009 which has not yet been sworn but which shall proceed as being a sworn affidavit. I would obliged if Mr Button would swear it and have it filed today. That sets out the further matters as to supportive counselling and provision of assistance to the applicant if released, together with a reference and report of Ms Sheri Lawson of 13 March 2009, to that end.
The relevant curial history of the matter is that the applicant applied for bail on 21 January 2008 which application was refused and applied again on 16 December 2008, erroneously stated as 2009 in the documents, which application also was refused. The committal for both this applicant and the co-accused Ms Tai Wu was listed for 24 November 2008 at which time Ms Wu entered a plea of guilty to intentionally causing serious injury and to perjury and gave an undertaking to give evidence against the present applicant. Ms Wu’s plea hearing is due for 23 April 2009. It is anticipated she will be called to give evidence against the applicant at the applicant’s committal hearing on 1 June 2009, and if the applicant is committed, at trial.
The applicant is now 28 years of age. She was born in August 1981. She is being held at the Dame Phyllis Frost Centre.
As I say, in paragraph 19 of Mr Button's first affidavit it is stated that the "only direct evidence" (et cetera) is that of Ms Wu. That does not appear to me to be correct. There appears to me, if proved, to be a body of evidence relevant to the inculpation of the present applicant in the crimes charged. I emphasise, if proved. I cannot and do not, of course, presume to judge whether the evidence is true. I proceed upon the proper premise that the applicant is presumed innocent until proved guilty, which is a fundamental pivot of our system. But if proved, the evidence is capable of establishing that on 8 January 2008 the three and a half year old daughter of the applicant was with the applicant and her partner in the domestic premise and was conveyed to the Sunshine Hospital in a grievous and life threatening condition including but by no means limited to extensive brain injury. The child was removed promptly to the Royal Children's Hospital. She underwent emergency surgery to drain the blood from her brain; she was in a coma breathing with the aid of a ventilator for a number of days; she had extensive bruising to various parts of her body. At the time, she was unable to be fully examined because of her fragile state. However, significantly, analysis of the blood from her brain is capable of indicating that she had been assaulted up to 13 days prior to the date of admission to the Sunshine Hospital.
In all that time, it would appear, the applicant was living with the child in the domestic premise. So too was Ms Wu whom the applicant blames for the injury. Ms Wu, in turn, blames the applicant.
As I said to Mr Georgiou in discussions, it is by no means evident that this is a case of mutual exclusivity, that is to say either the applicant or Ms Wu as the inflicting party. It may well be this is a case of mutual inculpation, that is that each of the persons is inculpated directly and physically; or that one is inculpated directly and physically and the other legally. That is a matter for ultimate determination. But it does not appear to me that two adults living in the same premises with the daughter of the applicant and the victim, if it is established, sustaining injuries over time, necessarily involves that this is a case of inculpation of one adult exclusive of the other.
As I have said, the application is opposed. Reliance antecedently is place by the Director upon the provisions of s 4(4)(c) Bail Act 1977 (orally amended before me from s 4(4)(cab) of that Act as stated in paragraph 8 of the affidavit of Mr M S Raniga sworn 6 April 2009 in opposition). I do not need to proceed beyond that provision.
I have read the material in the hand-up brief exhibited as “MSR 3” to that affidavit, including the following medical reports: of Dr M Coman, Emergency Physician of the Emergency Department, Sunshine Hospital dated 4 March 2008 (pp. 102-104 of the hand-up brief); the extensive report of Dr J Harry of the Royal Children’s Hospital, Melbourne dated 22 February 2008 (pp. 113-129); and of Dr K Dunne of that Hospital dated 7 March 2008 (pp. 138-140).
The injuries sustained by the child included severe brain injury, scars to her forehead along with a bruise, a split lip, a black eye, ulcers over both elbows, bruising on each forearm, bruising to the chest, lower back and extensive bruising to the buttocks, hip, lower back and pelvic area with pinch marks. Also, cigarette burn marks were on the victim's back and buttocks. Whether it was a cigarette lighter or lit cigarette inflicting those injuries or whether it was the thong, cat statue and Glen 20 bottle which inflicted the other injuries, such item constitutes an offensive weapon (because of its use) which attracts the provision of s.4 (4)(c) Bail Act 1977 as to show cause: see s 77 (1A) Crimes Act 1958 (“for causing injury to a person”).
Further, when the applicant, the mother of the victim, attended the Hospital with the grievously ill child the applicant it is alleged gave a false account to the investigating persons in a situation where the child was in no state to give any history herself.
In all those circumstances the grievous and deeply serious nature of the charges against the applicant if proved are likely to result in significant curial consequences. It is for the Magistrate to determine at committal, which is two months' time, the question of the strength of the case against the applicant. I cannot do so at this juncture where I simply look at the papers.
The one matter in favour of the application, in my view, is the length of the time that the applicant has been in custody and that does concern me. It would appear that there has been a substantial development in the case, that is to say that the former partner of the applicant is to be called to give evidence against her; and that matter plainly is being worked through the system with the dates that I have stated including the plea hearing. However, it is imperative that no further delays occur in this matter and I agree with Mr Georgiou as to the concern expressed in relation to that length of time. However, the committal is due in two months' time and, as I say there, the strength of the case against the applicant can there be reviewed.
In my view, the applicant has failed to show cause why she ought to be granted bail. I do not rest upon risk of flight or interference with witnesses. Rather, I consider the gravity of the charges against her, the nature and ambit of the case against her if proved, and the circularity afflicting the case put presently by the applicant as to her not being the inflictor of injuries not being a full answer to the charges, are such that the application ought to be refused.
Accordingly, I refuse the application.
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