R v Creamer
[2009] VSCA 323
•7 December 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 861 of 2009
| THE QUEEN | Respondent |
| v | |
| EILEEN CREAMER | Appellant |
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| JUDGES | WARREN CJ, REDLICH and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 7 December 2009 |
| DATE OF JUDGMENT | 7 December 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 323 |
| JUDGMENT APPEALED FROM | [2009] VSC 460 |
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CRIMINAL LAW — Bail — Exceptional circumstances — Appeal from a judge of the Trial Division — No error of law shown — Appeal dismissed — Supreme Court Act 1986, s 17(2)
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr BL Sonnet | The Solicitor for Public Prosecutions |
| For the Appellant | Ms JA Dixon SC | Robert Stary & Associates |
WARREN CJ:
I invite Bongiorno JA to deliver the first judgment.
BONGIORNO JA:
Mrs Eileen Mary Creamer has been charged by police with the murder of her husband. She has not been committed for trial and is being held in custody at the Dame Phyllis Frost Women’s Prison at Derrimut. Her committal, which will be contested, is currently due to be heard early in March next year, on an estimate of three or four days. If she is committed, it is said that she may be able to be tried in April 2010 at the Latrobe Valley court; thus, at this date, she will spend at least another four or five months in custody before her trial is completed. If, as contended by her counsel, the complexity of the case means that it will be unable to proceed in April, her pre-trial incarceration could extend as far as October next year if this appeal is not successful.
Mrs Creamer was charged on 29 April 2009 with having murdered her husband some fifteen months earlier, on 4 February 2008. She was held on remand until 1 September 2009, when an application for bail before Whelan J in the Trial Division was dismissed.
This Court is now concerned with an appeal from Whelan J’s decision pursuant to s 17(2) of the Supreme Court Act 1986, being an appeal from a determination of the Trial Division constituted by a judge. Whether an appeal from a single judge of the Trial Division in relation to bail is competent has already been considered by this Court in R v Fernandez,[1] an appeal by the Director of Public Prosecutions, and Dale v Director of Public Prosecutions,[2] an appeal by a remandee. In the circumstances of each of those cases, this Court held that an appeal is competent. As this case is, so far as jurisdictional matters are concerned, indistinguishable from Dale, it follows that this appeal is competently brought.
[1][2002] 5 VR 374, particularly at 389-390.
[2][2009] VSCA 212, particularly at [25].
An appeal of this nature, similarly to an appeal against sentence, is one in which the appellant must demonstrate some legal error in order to succeed. If she does, the Court will set aside the primary judge’s refusal to grant bail and consider the evidence afresh to determine the question for itself.
In the original hearing before Whelan J the appellant relied on a combination of a number of matters, principally inordinate delay and the adverse effects of prison on her psychological health, as constituting the exceptional circumstances necessary to qualify her for bail, notwithstanding the charge which she faces. In a written judgment, Whelan J demonstrated that he had considered both these factors and a number of others in refusing the appellant’s application. He considered that she had not satisfied the statutory requirement of demonstrating exceptional circumstances justifying bail.
Whelan J said that he accepted Dr Lester Walton’s opinion that the conditions under which Mrs Creamer was being held had contributed to her psychological state, which involved a major depressive disorder. He also noted that, at that time, a trial in April 2010 was probably achievable, but that in any event the trial should be able to be heard by about October 2010. He distinguished this case from Dale on its facts.
Ms Dixon of Senior Counsel for Mrs Creamer submitted that Whelan J had given insufficient weight to delay and to the applicant’s psychological state. She said that, as a practical reality, her trial could not be heard in April because the case is a complex one, it is circumstantial, and a great deal of preparation will be required. She referred to pharmacology, the reconstruction of text messages and other electronic evidence, and to the collation of emails as all contributing to probable delay. Issues of the crime scene and DNA will also need attention, said Ms Dixon. His Honour’s discretion had accordingly miscarried and the question of bail should be revisited by this Court. She submitted that, because Whelan J had failed to give proper weight to these matters, his discretion had miscarried.
The Crown answered Ms Dixon’s criticism of Whelan J’s decision by arguing that his Honour had considered all necessary matters and that his decision was within the bounds of the exercise of an appropriate discretion in the circumstances. There was no legal error which vitiated that decision.
As the Court pointed out in argument, this appeal is not a re-hearing of the proceeding before Whelan J. Absent demonstrable legal error, it must fail.
I accept the Crown’s submissions. There is nothing in Whelan J’s judgment which suggests error. No error has been demonstrated by Ms Dixon in her argument. Accordingly, I would dismiss the appeal.
WARREN CJ:
I agree.
REDLICH JA:
I agree. I would make the following additional observation. I would leave open the question as to the extent to which a major depressive condition which has arisen since the offender has been placed in custody should be taken into account.
WARREN CJ:
The Court will order that the appeal is dismissed.
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