Masling v The Queen

[2020] SASC 179

Supreme Court of South Australia

(Criminal: Application)

MASLING v THE QUEEN

[2020] SASC 179

Reasons for Ruling of The Honourable Justice Livesey (ex tempore)

24 September 2020

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

The applicant was arrested and charged with manslaughter. It is alleged that the applicant unlawfully killed his six-week-old daughter contrary to s 13 of the Criminal Law Consolidation Act 1935 (SA).

Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing him bail.

Held, allowing the application; bail is granted.

MASLING v THE QUEEN
[2020] SASC 179

Criminal:   Application

LIVESEY J:

Introduction

1. This is an application for the review of bail under s 14(2)(a) of the Bail Act 1985 (SA) following a Magistrate’s refusal to grant bail on 2 September 2020 in the Adelaide Magistrates Court.

2. As is well recognised this review is a hearing de novo and not an appeal.  Accordingly, the many criticisms made of the Magistrate’s decision in the papers are, with respect, both irrelevant and unnecessary.  For the purposes of this review I have been provided with a large volume of material.  I will not refer to all of it but it includes:

   1.A home detention enquiry report requested by the Court dated 9 September 2020.

   2.A statement of Dr Janine Tee, staff specialist paediatrician for Child Protection Services at the Women’s and Children’s Hospital dated 18 November 2016.

   3.An affidavit of Dr Christopher Pearson, senior staff specialist in the Department of General Medicine at the Women’s and Children’s Hospital 13 May 2019.

   4.An affidavit of the applicant’s former domestic partner, Telisha Roderick sworn 8 June 2016.

   5.A further affidavit of Telisha Roderick sworn 19 September 2019.

   6.Remarks on sentence by Magistrate Broderick on 12 June 2019.

   7.Statement of Detective Brevet Sergeant Mark Shelton dated 25 January 2017 regarding telephone intercept evidence.

   8.A bail enquiry report dated 21 September 2020.

   9.Information concerning the Aboriginal Community Court at Adelaide, a culturally‑based treatment intervention Court.

   The alleged offending

3. The applicant was arrested on a charge of manslaughter. By Information dated 20 March 2020 the applicant was charged with the unlawful killing of his daughter Nakita Jade Masling on 5 June 2016, contrary to s 13 of the Criminal Law Consolidation Act 1935 (SA). Ultimately, I expect that the Information will require amendment because the applicant did not allegedly kill his daughter on 5 June 2016. She died later.

4. The case against the applicant is that on Sunday, 5 June 2016 at Whyalla he physically harmed his daughter who was at the time only six weeks old. 

5. Ambulance officers attended the home that the applicant shared with his then domestic partner and their children at around 12.54 pm.  They found the applicant in the lounge performing CPR on his daughter who appeared white, flaccid and cold.  The Glasgow Coma score was only 3, indicating a loss of consciousness.  There was no respiration and the little girl’s pulse was less than 60.  The electrocardiogram revealed sinus bradycardia. 

6. Nakita was taken to the Whyalla hospital where bruising to both sides of her forehead were noted and eventually she was retrieved to the Paediatric Intensive Care Unit of the Women’s and Children’s Hospital.  It is unnecessary for present purposes to go into the various statements made by the applicant, his then domestic partner or Nikita’s paternal grandmother.  It is sufficient to note that there was no satisfactory explanation given for the child’s respiratory arrest.  The applicant did, however, at one stage admit that when he tried to resuscitate his daughter he thought he might have grabbed her a “little bit too hard”.

7. Whilst the history from the parents varied, the common theme was that the child had been “grisly and not feeding well” for some days before she was seen to be blue and not breathing on Sunday morning.

8. The evidence of Dr Tee, which I acknowledge has not been the subject of any testing and which may yet be challenged, is to the effect investigations revealed a large number of injuries including old and new fractures to the ribs and new fractures to the right distal femur and tibia, just above the knee and ankle.

9. So far as the brain was concerned, there were subdural haemorrhages being collections of blood between the dura and arachnoid membranes around the brain within days of the CT scan which was performed on the night of admission to the Women’s and Children’s Hospital on 5 June 2016.  According to Dr Tee, subdural haemorrhages most commonly develop after significant head trauma involving predominantly angular acceleration forces which cause the brain to move discordantly within the skull.  She explains that these angular acceleration forces can occur with the force of a head impact or other mechanisms which involve forcible movement of the head on the neck, either front or back, side to side or in combination. 

10. Dr Tee explains that breathing problems are commonly described after a severe head injury and as a result of damage to the brain in areas which control breathing and the throat muscles.  Raised intracranial pressure such as from a large intracranial bleed caused by brain swelling can also cause compression of the brain stem involving the respiratory centres, although in this case there was no evidence of cerebral swelling.

11. As regards the facial or forehead bruising, Dr Tee expressed the view that this does not result from normal handling but by “forceful impact”.  Whereas Nakita’s grandmother had said this was the result of “cuddling” and contact with a jacket zip or buttons, Dr Tee has expressed the opinion that this explanation would not cause bruising.  There is as yet no evidence to suggest any connection between the bruising and Nakita’s head trauma.

12. So far as the rib fractures are concerned, Dr Tee expressed the view they were most likely due to chest compression or direct impact to each side of the chest.  As regards the right femur and tibia fractures, these were likely to have occurred within days of admission.  They are described as “buckle fractures” which are “caused by compression or loading forces” and which do not result from normal handling. 

13. In the opinion of Dr Tee, head trauma was the most likely cause of the subdural haemorrhages with consequent respiratory arrest and seizures, whereas other trauma is the most likely cause of the older rib fractures and the recent right femur and tibia fractures.  These cannot be explained and so, in the opinion of Dr Tee, “inflicted injury must be considered”.  Likewise, the bruising to the face “remains suspicious of inflicted injury”.

14. Nonetheless there remained the possibility that “CPR caused the recent rib fractures”. 

15. Dr Pearson expressed the opinion that Nakita’s permanent, very severe irreversible brain injury profoundly affected her ability to move spontaneously, to think, to swallow, to see or to hear “to a major degree”.  She was, in his view, unlikely to ever have developed any independent capacity to function.  Her short life expectancy was predicted:

    She is likely to have a short life and may in fact die within the next few months either because of her difficult to manage epilepsy or due to an acute infection particularly involving her chest and she has limited ability to clear her secretions. She is likely to develop a fatal pneumonia.

16. As a result of her various injuries, Nakita required 24‑hour professional care but she died from pneumonia on 25 November 2017 at the age of 18 months.  The pneumonia was attributed to her brain injury.

17. In the absence of any clear explanation from Nakita’s family, police gathered evidence.  This included a recording of the emergency telephone call made by the applicant in which he told the operator that his young daughter was “going off” after being woken by her sister and that she was “going off her tits crying as hard as she can” before she suddenly stopped breathing and went blue in the face.  The operator then gave the applicant instructions on how to perform CPR.

18. In addition, police obtained telephone intercept evidence under warrant which revealed communications between the applicant and his former domestic partner.  On the basis of this evidence, the prosecution will allege that admissions were made.

19. For present purposes, it is unnecessary to go into detail about these communications or the interpretation placed upon them by the investigating police officers.  It is sufficient to note that the applicant’s former domestic partner in the course of text messages recognised that the applicant could end up being charged, and that if something happened to Nakita, he would be charged extra time.

20. In the course of these intercepted communications the applicant is told to consider drug and alcohol referral as well as anger management.  Ultimately, the applicant apologised to his domestic partner, police will allege, for “what he has done” to their daughter.  As the applicant is alleged to have put it, “You know if they know that I fucking abused a child and basically put her in a vegetable state other prisoners in gaol will flog me like a mangy dog”.

21. The prosecution case is that the applicant became frustrated, lost his temper and became violent with his six‑week‑old daughter.  The applicant denies the charge and is entitled to the presumption of innocence.

22. I was told that the applicant is due to be arraigned before this Court on 30 November at which time he will plead not guilty.

    Circumstances of the applicant

23. The applicant’s criminal antecedents’ history runs to three pages and commences in 2003 with burglary.  Of present relevance include the following matters:

    1.contravention of the term of an intervention order on 2 August 2016;

    2.breach of a bond on 27 February 2017;

    3.estreatment of bail on 27 July 2017;

    4.breach of bond on 12 June 2019; and

    5.failure to comply with the bail agreement on 15 July 2020.

24. More should be said about the failure to comply with a bail agreement because this forms an important plank of the opposition to any form of bail being granted to the applicant.  Following arrest, the applicant applied for bail on 27 March on 2020.  He was granted simple bail to reside at an address in the suburbs of Adelaide.

25. In April 2020 he left that address and contacted the Community Corrections unit to advise of a new address arranged by Housing SA.

26. Later in April 2020 the applicant advised that he had moved to a different address, this time in Adelaide.  During April 2020 the applicant was warned by his Community Corrections case worker to vary his bail agreement so as to record the change of address.  This advice was repeated.  However, by 22 April 2020 the applicant was not residing at his stipulated bail address and on 23 April 2020 he was arrested for failure to comply with his bail agreement.  The applicant was incarcerated between 23 April and 8 July 2020. 

27. On 8 July 2020 the applicant applied for home detention bail in the Port Augusta Magistrates Court.  This was not opposed by the Director of Public Prosecutions.

28. On 15 July 2020 the applicant pleaded guilty to the failure to comply with the bail agreement and he was discharged without penalty.  On the same date the applicant applied to vary his bail agreement to include home detention conditions and electronic monitoring based around an address in Adelaide.

29. The applicant failed drug sample testing on 5 August, 11 August and 24 August 2020 when methylamphetamine and amphetamine were detected in his urine samples.

30. Today I was told that the applicant will likely enter pleas of guilty in relation to these three breaches.

31. I was also told that, after having been granted home detention bail, the applicant had made arrangements for drug and alcohol counselling with Nunkuwarrin Yunti on 17 July and 2 September 2020.  However, before the 2 September 2020 appointment could be met, the applicant was arrested on 1 September 2020.  He was arrested in relation to the three counts of failure to comply with his bail agreement.  He appeared in the Adelaide Magistrates Court on 2 September 2020, at which time an application for a home detention enquiry report was sought as was a bail enquiry report.  The Magistrate declined to grant bail and, though the relevant file was not in the courtroom, bail was revoked in respect of the manslaughter matter.

32. On 4 September 2020 the applicant filed his application for review of bail and on 9 September 2020 he entered a plea of not guilty to the charge of manslaughter in the Adelaide Magistrates Court.

33. A home detention enquiry report suggests that the Adelaide address at which the applicant earlier resided remains appropriate, but that on 27 April 2020 the applicant admitted using methylamphetamine and marijuana daily and, at the same time, he disclosed he had been diagnosed with bipolar disorder, depression and anxiety.  There was, in addition, an attempted suicide some years before.

34. Corrections were advised at the time of preparing the home detention enquiry report, dated 9 September 2020, that the applicant had disclosed using methylamphetamine and marijuana daily.  It is a little unclear whether this was an admission made only on 27 April or whether it was made again in connection with the preparation of the most recent report.

35. Unsurprisingly, against this history, the respondent contends that, given his ongoing addiction issues, it is inevitable that the applicant will be unable to comply with the terms of any home detention bail agreement.

36. In support of this submission emphasis is given to the second statement of Ms Roderick in which she said that by the time Nakita was taken to hospital the applicant was off his pills, being the Seroquel tablets which had been prescribed for his bipolar disorder, and he was smoking “a lot of pot” and had regular mood swings.  Nonetheless, she also emphasised that the applicant had never told her what happened in the lounge room on the Sunday morning: “He has never spoken to me about it and has never confided in me”. 

37. Nevertheless, she goes on to admit that, after this incident, their older daughter was taken by Families SA and she and the applicant “hit the drugs pretty hard.  We were using ice and pot and we were in a dark place”.  She said they smoked ice using an ice pipe.

38. Their relationship came to an end in the middle of 2017.  Ms Roderick was unsure whether the applicant was using ice between the time of Nakita’s birth and Nakita’s admission to hospital.  He was, however, “always on the dope”.

39. This evidence does not travel past 2017 and their separation, hence the significance of the admission in the home detention enquiry report.

40. As against this, the applicant contends that, with appropriate structure and support, he can again rehabilitate himself from illicit drug taking.  He refers to the positive remarks of Magistrate Broderick on 12 June 2019 to the effect that he had previously “engaged with services [and] shaken the drugs”.  The Magistrate then warned the applicant that it was a “long journey” and that he could “always fall back” into drug taking, “so it is not just something that is put behind you”.  Nonetheless the Magistrate then recognised that the applicant had “made a good effort”.

41. The applicant emphasised that he has developed far better insight into his drug addiction, notwithstanding the three breaches of his bail agreement during August 2020. 

42. Though the respondent contended that there was no substance in this assertion, I acceded to the applicant’s request to order a bail enquiry report on the basis that this would, amongst other matters, enquire into the applicant’s insight, preparedness and opportunity to engage in appropriate drug rehabilitation services.

43. Accordingly, I adjourned the hearing of this review from 10 September to 21 September 2020.

    The bail enquiry report

44. After giving the parties an opportunity to agree the terms of the request, I have now received the bail enquiry report.  In the course of the bail enquiry report the following is said:

    In regards to insight, during the telephone interview the applicant appeared to have very good insight into his drug use.  The applicant reports he has been smoking methamphetamines on and off for over 10 years.  He advised that he had completed the Aboriginal Community Courts program at Elizabeth and that he had received a certificate and positive comments from the Magistrate with regards to his progress.  Prior to March 2020 he had renewed his driving licence and was employed on a full-time basis, however, his substance abuse had escalated in response to experiencing major depression.  He stated he lacks social support in the community given that he is estranged from his siblings and was not allowed to speak to his mother which contributed to his distress.  He described his mother as his main support in the community and stated that they had a very close bond.

45. Today, the submission was made that, on the applicant pleading guilty to the three recent breaches of a bail agreement, he will become eligible to participate in the Aboriginal Community Court Adelaide which, as I have mentioned, is a culturally‑based intervention Court allowing flexibility for participants to have their matters dealt with efficiently pursuant to s 22 of the Sentencing Act 2017 (SA).

46. Whilst it was suggested that there is a distinction between having insight and having the capacity to shake drug addiction, it was acknowledged that having insight was an important first step.

47. It was also submitted to me today that the three pleas might in some way tell against bail because of the admitted offending associated with taking the step of entering pleas of guilty.

48. However, whilst I acknowledge that that may be relevant insofar as bail is concerned, it is not decisive.  In addition, there remains the important question whether the applicant should again become entitled to bail in respect of the serious manslaughter charge.

    Disposition of this application

49. The applicant enjoys a presumption in favour of bail by reason of s 10 of the Bail Act 1985 (SA). In addition, as I am addressing an indigenous applicant, I bear in mind the matters considered in R v Hayes[1] and R v Webb.[2]

    [1]    R v Hayes [2018] SASC 114 (Kelly J).

    [2]    R v Webb [2019] SASC 8, [30] (Hinton J).

50. The charge of manslaughter is very serious and the prosecution case has narrowed to the applicant.  However, the Director did not previously oppose home detention bail in respect of this serious charge.  The change in attitude is explained by the applicant’s persistent failure to comply with the terms of his home detention bail agreement involving electronic monitoring during August of this year. 

51. The source of the applicant’s difficulties appears to be a combination of mental illness and illicit drug addiction.  There is some evidence before me to suggest not only insight but a desire to address both, particularly the ongoing drug addiction.

52. Having regard to the presumption in favour of bail, and the explanation provided in the most recent bail enquiry report, I have decided to grant bail on strict home detention conditions including:

    1.electronic monitoring;

    2.participation in psychological as well as drug and alcohol treatment; and

    3.regular supervision and drug and alcohol testing.

1. My Associate will provide the parties with a copy of a draft bail agreement and provide the parties with an opportunity to confer regarding the terms of that agreement and, if necessary, I will call the matter back on to hear from the parties.