R v Naidu (Bail)
[2011] VSC 170
•29 April 2011
| 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 Sudha Naidu who had migrated to Australia from India. They separated in February 2008.
On 13 March 2008, Mr Naidu was arrested and charged on two counts of rape, indecent assault and causing injury intentionally to Sudha. He was bailed on the following day.
On 8 August 2008, Mr Naidu was arrested in relation to Jayanti’s death and charged with murder and remanded in custody.
On 17 August 2009, Mr Naidu’s trial in the County Court commenced on the charges related to his alleged offending against Sudha. He was found guilty on 24 August of one count of rape and one count of indecent assault.
On 14 September 2009, Mr Naidu was sentenced by Judge Pullen to four years and two months imprisonment with a non-parole period of two years and eight months imprisonment. He lodged an appeal against conviction and the OPP lodged an appeal against sentence.
On 25 October 2010 in this Court, the trial on the charge of murder commenced.
On 25 November 2010, the jury were discharged after four days of deliberations, having failed to reach a verdict.
On 14 December 2010, a re-trial for the murder charge was fixed for 29 August 2011.
On 2 February 2011, the Court of Appeal allowed Mr Naidu’s appeal and ordered a re-trial of the sexual offences upon which he had been convicted. His application for bail on those charges was heard on 29 April 2011.
Relevant principles
In DPP (Vic) v Cozzi,[1] Coldrey J said of exceptional circumstances:
[1][2005] 12 VR 211.
The concept of exceptional circumstances is, itself, an illusive one. The phrase is not defined in the Bail Act 1997 [sic] (the Act), although some Judges have essayed a definition. In DPP (Cth) v Tang & Ors, Beach J made reference to dictionary definitions of the word "exceptional". His Honour found that whatever definition was used, the applicant for bail "bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail". In the course of argument the decision of Kaye J in the case of In the matter of a bail application by Ismail Muhaidat was cited. In it his Honour remarked:
"The question of what are exceptional circumstances have been canvassed before. Effectively the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail."
On the other hand in Re Bail Application by Moloney Vincent J, a most experienced Judge, pointed out that it was not possible to identify in any general definition what factual situations constituted exceptional circumstances. His Honour stated:
A number of decisions which have been handed down by Judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.
I agree with respect with his Honour's approach.
An examination of the cases bearing upon this concept reveals a multitude of single and conflicting interpretations thrown up, no doubt, by the variety of fact situations with which Judges have been faced.
His Honour, after examining a number of these considerations, concluded by saying:-
This brief examination indicates, in my view, that there are a variety of factors taken into account by courts in considering the question of exceptional circumstances. In each case it appears to be a question of degree. Moreover, the lack of matters constituting unacceptable risk, detailed in s.4(2)(d) are often taken into consideration. [2]
[2]Ibid [25].
Relevant considerations
The background of the applicant
Mr Naidu has no prior convictions. He had continued to reside at Jacinta Court Doveton until he was placed in custody. Generally he has been in employment whilst in Australia and not in custody.
Delay
Mr Naidu has now been in custody for over two-and-a-half years and, as events transpire, without any conviction having been recorded against him. By the time of the second trial, he will have been in custody for over three years. There is no fault to be attributed to anyone for this state of affairs. However, the stark reality is that this is far too long for anyone to spend in pre-trial custody where the underlying presumption is that the accused is presumed innocent until proved otherwise.[3]
[3]See Asmar [2005] VSC 487; Application for Bail by Marijancevic [2010] VSC 122.
The strength of the prosecution case
The prosecution case is that Mr Naidu deliberately doused Jayanti with petrol and then set her alight. This, it says, was motivated by the disintegration of their relationship, and Jayanti’s intention to leave for Fiji with Taruni. By June 2006, the prosecution says that Mr Naidu had grown to hate his wife. There is evidence of a previous attempt by Mr Naidu to kill Jayanti, as well as statements by her recounting threats by Mr Naidu to kill her. The prosecution’s case is circumstantial and relies heavily on the fact that no source of ignition was found in the garage, leading to the inference that the fire could only have been ignited by Mr Naidu and not by his wife. It also points to a number of inconsistencies in various accounts given by Mr Naidu to the police and “civilian” witnesses.
The defence denies that Mr Naidu deliberately set Jayanti alight. Mr Naidu says that Jayanti committed suicide. It is argued she had sought to do so on a number of occasions in the past; the most recent being on 12 June 2006 when, on her own account, she was saved by Mr Naidu. He does not dispute that their relationship was at times acrimonious, but points to the lack of any major disagreement on 14 June which would have triggered Mr Naidu to behave as the prosecution suggests he did. A video-recorded interview at the house on 16 June 2006 sets out Mr Naidu’s account – and, so it is said, his out-of-court statements are generally consistent with that version.
Having watched the evidence unfold in the first trial, it was not surprising that the jury were unable to agree upon a verdict.
There are, I think, matters which would cause any member of a jury to think long and hard before being satisfied beyond a reasonable doubt that the accused was guilty of murder. This, I think, was exemplified by the effort and diligence shown by the jury in the first trial. It was patent that the members of the jury had done their best to try to resolve the conflicting pieces of evidence favouring either acquittal or conviction. Notwithstanding their best endeavours, they were unable to reach a unanimous verdict.
This, in my view, is not a powerful prosecution case. Each of the three possibilities remain equally open at the re-trial; namely the jury unable to agree, acquittal or conviction.
Risk of interference with witnesses
The informant, Mr Martin, gave evidence of a number of telephone intercepts undertaken in April 2008 of telephone conversations of Mr Naidu with relatives and friends in Fiji. I accept that Mr Naidu discussed aspects of the police investigation with two females. However, there is nothing that emerged from those conversations that persuades me that Mr Naidu is likely to interfere with witnesses, particularly as part of the conditions of his bail will relate to preventing him from contacting any witnesses.
Flight risk
This, it seems to me, is the most significant consideration raised by the prosecution. Mr Naidu has no place of residence in Australia. Most of his family live in Fiji. He has some family and friends in this country and his daughter Taruni now lives in metropolitan Melbourne with a foster family. Whilst in custody he has maintained contact with her and it may be assumed that her presence in this State is a genuine tie to this jurisdiction.
No surety has been offered, however he has surrendered his passport and will be subject to strict reporting conditions to a local police station. There is no evidence that he has any access to false documentation which would facilitate flight.
Fixed place of residence
Prior to this application, Mr Naidu had arranged to reside with friends in Oakleigh South if granted bail. Those friends have since withdrawn their invitation. Until I am satisfied that he has a fixed place of residence, I would not make any order granting bail.
Synthesis
The length of time spent in custody by Mr Naidu, combined with my view as to the strength of the Crown case, satisfies me that exceptional circumstances have been demonstrated. The risk of flight and interference with witnesses can, I think, be accommodated by appropriate conditions attached to the grant of bail.
Bail and conditions
Provided a fixed place of residence is found and approved by me, bail will be granted on the following terms,:
That Kamleshwar Naidu be admitted to bail on his own undertaking for his appearance as required by law at the Supreme Court of Victoria at Melbourne at a time to be advised by the Office of Public Prosecutions and upon the following special conditions:
1.Kamleshwar Naidu reside at the address in the order which I will initial and place on the file when identified.
2.Kamleshwar Naidu report daily to the officer in charge of the police station to be nominated by me between the hours of 9 a.m. and 9 p.m.
3.Kamleshwar Naidu not contact directly or indirectly any witness for the prosecution except the informant or his nominee.
4.Kamleshwar Naidu surrender any passports which he may hold to the informant within 24 hours of being admitted to bail and not apply for another passport. Any such passport not to be returned to Kamleshwar Naidu except upon order of this court.
5.Kamleshwar Naidu not attend any point of international departure during the period of bail.
6.Kamleshwar Naidu notify the informant within 24 hours if he ceases to live at the address nominated in condition 1.
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