R v Singh No. Sccrm-01-310 - [2002] SASC 318

R v SINGH
[2002] SASC 318
Bail Application

Gray J This is an application for bail.
The accused Dharmander Singh is charged with murder. The information alleges that on 22 June 2001 at Berri in South Australia he murdered Linda Maree Bartley.
The accused is aged 37 years and prior to being taken into custody was working in a factory in Berri. He has been in custody since June 2001. The trial is listed to begin in October 2002.
This is the accused’s first application for bail. He is currently in Australia on a visa that is subject to review at the end of November 2002. Prior to the incident in June 2001 there was a review of his immigration status. This may be described as being “in limbo” for the past 15-18 months.
The alleged victim Ms Bartley was the accused’s wife and the mother of his daughter (“the child”) who was born on 5 September 1999 eight weeks premature. She was born with medical complications. There is a history of family court proceedings and child access difficulties. Counsel for the accused said that the accused has not had contact with the child since he has been in custody. She is currently residing with her grandmother.
The accused seeks to be released on bail so that he can more easily attend to family court proceedings. He intends to seek custody of and access to the child. He has no funding and is not in a position to instruct solicitors. It is said that his release on bail would enable him to conduct the proceedings himself. Counsel for the accused said that the accused’s release would also facilitate the taking of instructions and be beneficial in the presentation of his trial. It was further submitted that the nature of the charge was not such as to militate against a grant of bail[1]:
“I can’t detract from the gravity of the offence but simply because it is a murder charge is not, as your Honour knows, authority for not considering bail.”
[1] R v Halas (2001) 81 SASR 1
Counsel for the accused said that any risk of flight could be ameliorated by strict bail conditions. It was said that a suitable place of residence existed and that the accused would be willing to abide by home detention conditions. The proposed residence was owned by Ms S, a close friend of the accused. Ms S had previously been involved in an intimate relationship with the accused. However it was said that this had ceased at the time of the offence. She has been in touch with the accused throughout the period in which he has been in custody. She is currently working as a nurse four days a week and resides with her 19 year old son at Morphett Vale. She is prepared to be a guarantor and provide a monetary sum of some significance.
The court considered the approach to pre-trial bail applications in R v Collie (No 2).[2]…

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.

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Details

Case: [2002] SASC 318
Decision Date: 5 September 2002

CaseChat Overview and Summary

In the case of R v Singh, the applicant, Dharmander Singh, was charged with the murder of Linda Maree Bartley, his wife and the mother of his child. Singh sought bail to facilitate his attendance at family court proceedings and to seek custody and access to his child. The trial was scheduled for October 2002, and Singh had been in custody since June 2001. The Crown opposed the bail application on the grounds of the gravity of the offence, the risk of flight, and the risk of witness intimidation.

The court considered the legal principles applicable to bail applications, particularly the presumption in favour of bail under Section 10 of the Bail Act 1985 (SA). The Crown argued that the murder was premeditated, involving the presence of a handgun and stolen number plates. It was also argued that Singh had obtained the child's medical records, suggesting a plan to move elsewhere with the child. Additionally, the Crown pointed to Singh's history of domestic violence, the existence of a restraining order, and his precarious immigration status as factors militating against bail. The Crown further submitted that Singh had already demonstrated a risk of flight by fleeing to New South Wales with the child after the shooting.

The court found that the gravity of the offence, the evidence of premeditation, and the risk of flight and witness intimidation were compelling reasons to deny bail. Given the circumstances, the court concluded that the accused should not be released on bail. The application was dismissed, and the accused remained in custody pending the trial.

Orders