R v Singh No. Sccrm-01-310

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] These remarks are relevant to the way in which the material placed before this court on the hearing of this application is to be assessed. Nothing was put by the accused or on his behalf about the circumstances of the offence or the nature of any defence that might be presented by him at trial. No adverse conclusions or inferences can be drawn from the accused’s decision to exercise his right to silence.
[2] [2002] SASC 247 at [8]
Section 10 of the Bail Act 1985 (SA) creates a presumption in favour of bail. Bail is to be granted unless the bail authority considers that the applicant should not be released on bail.[3]
[3] Section 10 provides:
The Crown opposed bail for three reasons: the gravity of the offence, the risk of flight and the risk of witness intimidation. The Crown accepted that although there is a presumption in favour of bail being granted the weight of the evidence was such that this was an exceptional case and that bail should not be granted. The Crown supplied extensive material including numerous declarations.
The Crown case is that the murder was committed against a background of ongoing domestic violence involving the victim. At the time of the incident there was a restraining order in existence which was imposed in January 2000. Various breaches were said to have occurred.
The Crown case is that the murder occurred at the “Big Orange” on the Sturt Highway at Berri at approximately 4.00 pm. There was to have been an access exchange on that occasion. Ms Bartley arrived with her friend Ms W and the accused arrived with a friend. It was a requirement of the family court proceedings that the friend be present during the hand over of the child. The accused attended with stolen number plates on his car and a handgun. He shot Ms Bartley in the left cheek, in the upper left chest area, in the right upper abdomen and in the back of the head. It was the Crown case that the shots were fired in the presence of Ms W, the accused’s friend and the child. The accused then fled to New South Wales with the child.
On 26 June 2001 some four days after the shooting the accused was extradited from NSW after being involved in a siege at a temple in Turramurra. The child was with him at the time of the siege. The declarations suggest that words spoken by the accused at the time of the siege may amount to an admission.
The Crown submit that the crime was premeditated and that the existence of the handgun and the stolen number plates were supportive of this submission. In addition there was said to be evidence that in the months prior to the murder the accused had obtained medical records from the Women’s & Children’s Hospital. Those records pertained to the child’s medical condition. The Crown case was that as a result of her medical condition she had and was continuing to require medical intervention and follow up treatment at the Women’s & Children’s Hospital. Ms Bartley was said to have attended with the child on most occasions. The inference the Crown sought to have this court draw was that the accused was preparing to move elsewhere with the child. However before he did so he wanted to be in an informed position as to the current state of her medical condition and to have her medical records available should medical intervention be required elsewhere.
Counsel for the Crown submitted that there was a real risk of flight. The Crown case about the accused’s plan to travel with the child has already been noted. The accused’s friend is said to have had a conversation with the accused about him taking flight just prior to the murder. In addition the accused’s immigration status was said to be precarious. He has made an application for a more favourable determination from the Minister but the application is yet to be resolved. The accused has lawful residence until 20 November 2002. However if bail were to be granted by this court his immigration status becomes unlawful. It was said that an immigration warrant had been issued in anticipation of this situation. Counsel for the Crown emphasised that the accused took flight with the child after the shooting.
Counsel for the Crown said that the Crown had only been advised of the proposed residence on the day the bail application was heard. Considerable concern was expressed at the prospect of the accused being permitted to reside with Ms S given that she was to be a Crown witness and given her prior relationship with the accused. Further it was said that she had spoken with him on several occasions subsequent to the murder which included a conversation as to his account of what happened.
Counsel for the Crown submitted that the Crown is in a position to proceed with the accused’s trial in October this year. Although it appears that it may take more than the initial estimate of two weeks it was submitted that given the proximity of the trial date which was now less than one month away bail should not be granted.
In this matter the offence is grave. On the Crown case it involved multiple shots from a handgun. It involved a family member and was committed against a background of domestic violence and child access difficulties. A restraining order had been issued against the accused to prevent further acts of violence against Ms Bartley and family court orders also appear to have been designed to effect this purpose. The shooting occurred in the presence of others including the child. There is a risk that the accused will abscond. The risk of flight is material given that on the Crown case there is evidence that the accused obtained the child’s medical records, spoke to his friend about leaving with the child shortly before the murder and left the scene of the crime. His immigration status is another serious factor to be weighed when considering the risk of flight. There is a risk that witnesses may be intimidated, particularly given that it is said that at least two were present at the scene of the shooting. On the Crown case these witnesses are material. I consider that given these matters the accused should not be released on bail. This application must be dismissed.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

[1] R v Halas (2001) 81 SASR 1
[1] [2002] SASC 247 at [8]
[1] Section 10 Provides:
“take in”

“10. (1) Where an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to —

(a) the gravity of the offence in respect of which the applicant has been taken into custody;
(b) the likelihood (if any) that the applicant would, if released —

(i) abscond;

(ii) offend again;

(iii)    interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries;
         (d)    any need that the applicant may have for physical protection;
         (e)    any medical or other care that the applicant may require;
         (f)     any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement;
         (g)    any other relevant matter,

the bail authority considers that the applicant should not be released on bail.

(2) Where the applicant has been convicted of the offence in respect of which he or she has been taken into custody, the bail authority has, subject to this Act, an unfettered discretion as to whether the applicant should be released on bail.
(3) Where the applicant is a person who is appearing or is to appear before a court as a witness in proceedings (other than proceedings relating to an offence for which that person has been charged or convicted), the bail authority should, subject to this Act, release the applicant on bail unless there is a likelihood that the applicant would, if released, abscond.
(4) Despite the other provisions of this section, where there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant.”

[2002] SASC 318

5 September 2002