R v Naidu (Bail) - [2011] VSC 170

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0038 of 2011

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by KAMLESHWAR NAIDU

JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2011
DATE OF JUDGMENT:	29 April 2011
CASE MAY BE CITED AS:	R v Naidu (Bail)
MEDIUM NEUTRAL CITATION:	[2011] VSC 170

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CRIMINAL LAW – Bail application – Bail pending trial – Delay – Accused charged with murder – Exceptional circumstances – Time spent in custody – Bail granted – Section 13(2) Bail Act 1977.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Beale	Office of Public Prosecutions
For the Applicant	Mr R Van De Wiel QC Ms L Ristivojevic	Doogue & O’Brien

HIS HONOUR:

Introduction

On 8 August 2008, Mr Kamleshwar Naidu was charged with the murder of his wife Jayanti. He has been in custody since that day.

In November of last year at his trial on this charge, the jury could not agree on their verdict and after four days of deliberations were discharged. By the time of the re-trial, which is scheduled to commence on 29 August 2011, Mr Naidu will have been in custody for over three years.

Section 13(2) of the Bail Act requires Mr Naidu to establish the existence of exceptional circumstances to justify the grant of bail.

Mr Naidu contends the exceptional circumstances are demonstrated, in effect, by a combination of his time in custody, as well as the lack of strength of the prosecution case. The prosecution opposes the grant of bail asserting that there is a prospect that Mr Naidu would endeavour to interfere with witnesses and that he is a flight risk.

In my view, the length of time spent by Mr Naidu in custody is an overwhelming factor and is sufficient to demonstrate exceptional circumstances, particularly in light of the jury’s inability to reach agreement at the first trial.

I propose to grant bail subject to strict reporting conditions and a fixed abode being established.

I now set out my reasons for this decision.

Background to the application

Mr Naidu was born on 30 December 1974. He was raised in Fiji.

In early 2000 in Fiji, he commenced a relationship with Jayanti Murthy, whom he married on 8 June 2003.

In August 2005, Jayanti gave birth to a daughter Taruni in Fiji.

In November 2005, Mr Naidu migrated to Australia and shortly afterwards Jayanti and Taruni joined him in this country.

In February 2006, the Naidu family moved to rental premises at Jacinta Court, Doveton.

During the first half of 2006, Mr Naidu worked as a fitter and turner in Australia, and Jayanti as a personal care worker. The relationship between Mr Naidu and Jayanti was acrimonious.

On 14 June 2006, Jayanti suffered fatal burns at the family home and died on 16 June.

Subsequent to Jayanti’s death in August/September 2007, Mr Naidu formed a relationship with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Naidu (Bail)

Details

AGLC: R v Naidu (Bail) [2011] VSC 170
Case: [2011] VSC 170
Decision Date: 29 April 2011

CaseChat Overview and Summary

The case of R v Naidu involved an application for bail by the accused, Naidu, who was facing charges of murder. The matter was heard in the relevant court, where the primary issue was whether Naidu should be granted bail pending his trial. The court had to consider the impact of the delay in the proceedings on the fairness of the trial, as well as the exceptional circumstances justifying the grant of bail. Naidu had already spent a significant amount of time in custody, and the application sought to balance this with the need to ensure that the administration of justice was not unduly prejudiced.

The court examined the provisions of Section 13(2) of the Bail Act 1977, which requires the court to consider the nature and seriousness of the offence, the accused's criminal history, and the likelihood of the accused attending trial if released on bail. It also needed to assess the potential impact of the delay on the fairness of the trial and any exceptional circumstances that might warrant the grant of bail. The court considered the delay in the proceedings and the time Naidu had already spent in custody, weighing these factors against the presumption in favour of bail and the need to prevent unnecessary detention.

After careful consideration, the court determined that the exceptional circumstances and the time Naidu had already spent in custody justified the grant of bail. The court found that the delay did not prejudice the fairness of the trial, and that releasing Naidu on bail would not endanger the community or undermine the integrity of the legal process. Consequently, the court granted Naidu bail pending his trial, subject to certain conditions to ensure his attendance at future court appearances.

The court ordered that Naidu be released on bail, subject to specific conditions, including a requirement to surrender his passport, a curfew, and regular check-ins with a bail supervision officer. The conditions were designed to mitigate any risk of Naidu failing to appear in court while also allowing him the opportunity to prepare his defence in a manner that did not unduly prejudice the administration of justice.

Orders