Re Clark
[2008] VSC 606
•24 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 1451 of 2008
IN THE MATTER of the Bail Act 1977 (Vic)
And
IN THE MATTER OF an Application for Bail by MARIA CHRISTINA CLARK
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 December 2008 | |
DATE OF JUDGMENT: | 24 December 2008 | |
CASE MAY BE CITED AS: | Re Maria Christina Clark | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 606 | First Revision: 8/1/09 |
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BAIL – Murder – Alleged killing of applicant’s elderly mother under palliative care – Strong family support – No flight risk – Exceptional circumstances shown – Bail granted – Bail Act 1977
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Scheid | Office of Public Prosecutions |
| For the Applicant | Mr M. Wardell | Mike Wardell |
HIS HONOUR:
This is an application for bail by Maria Christina Clark made on notice dated 18 December 2008 supported by an affidavit of the applicant's solicitor Michael George Wardell sworn 17 December 2008 and elaborated on by Mr Wardell in submissions made before me this morning, none of which is contested as to their factual accuracy.[1]
[1]Putting aside a question as to whether any of the relevant witness statements cast doubt on the cause of death of the deceased.
The applicant is charged with murder but, in the unusual circumstances of this case, her application for bail is not opposed by the Crown.
The applicant is charged with the murder of her 81 year old mother who was receiving palliative care at the Nazareth House Nursing Home, on 14 December 2008.
The applicant was arrested on 15 December 2008 as a result of her attending at the Ballarat Police Station of her own volition and has been remanded in custody since that time.
It is alleged by the Crown that the victim, having suffered a stroke, was in the final stages of life when at about 11 pm on 14 December 2008, the applicant, who was temporarily alone with her, used her hand to constrict the windpipe of the deceased until she stopped breathing.
It is further alleged that on the following day the applicant spoke to a friend indicating what had happened and also that she subsequently confirmed this to her own doctor.
It is also said that when the applicant attended at the Ballarat Police Station on 15 December 2008 she made full admissions. I have read the Crown summary of the offence, being Exhibit PA2 to the affidavit of Peter John Andrew Atkins on dated 19 December 2008, where the matter is set out in further detail.
At present the matter is listed for committal mention at the Ballarat Magistrates' Court on 16 April 2009. Among other things, the police summary indicates that on Friday 12 December 2008 the deceased lapsed into a coma and family members were advised that death was expected in the next few days.
The accused who, as I have said, is the daughter of the deceased, is a 50‑year‑old woman, married, with three children and five grandchildren. She is employed full‑time with the Department of Human Services as a payroll clerk in Melbourne although she lives in Ballarat with her husband and commutes to Melbourne on a daily basis, or at least did so until being arrested recently.
The applicant has a history of suffering from mild depression and is prescribed Effexor at a low dose by her general practitioner. In December 2007 she was referred to see a psychologist at a clinic in Ballarat and had approximately six sessions with that psychologist discussing issues concerning her relationship with her mother and normal family work and home stresses. Those sessions ceased around July 2008 but I am informed by her solicitor that it is envisaged that if bail were granted those sessions would resume straight away as being necessary in relation to recent deterioration in her mental health and increased depression as a result of recent events.
Returning to the Crown summary of the alleged offence, it is alleged that the accused regularly visited her mother at Nazareth House and on Thursday 11 December she visited the deceased and attempted to speak to her in Dutch. It is said her mother had begun to speak in Dutch only, that being her native language, and that the accused was unable to understand what her mother was saying, and that she was not recognised as being her daughter at that stage.
From Friday 12 December, the applicant was attending her mother on a daily basis. Many other family members, including the accused’s siblings, were also visiting the deceased on a daily basis at intermittent times.
The accused remained at Nazareth House on the Friday night, and returned home in the afternoon on the Saturday to rest. She returned to Nazareth House, according to the Crown summary, some time after 7 pm after being informed that death was imminent. During the hours of Saturday a number of relatives visited the deceased.
The accused remained at Nazareth House throughout the Sunday and at times was at the deceased's bedside. During the day the deceased’s breathing had become noisy with a build‑up of fluid. By approximately 10.15 pm, the deceased's breathing had become very shallow. Shortly after 11 pm, all other relatives having left the room, the accused was left alone with her mother, and it is alleged that during this time the accused used her left hand to tilt her mother's head forward to assist in restricting the breathing, and then with her right hand, using her index finger and thumb, pinched the windpipe by feeling for it around the deceased's throat.
The accused, it is alleged, admits to having been able to feel her mother breathing through the windpipe and to have continued to hold her mother until she felt no more breathing through the windpipe. A short time later the accused’s sister‑in‑law re‑entered the room and found the deceased at the point of death excreting a brown or dark‑coloured fluid from the mouth. At that point the sister‑in‑law felt for a pulse and did not find one on the deceased. It was allegedly 11.10 pm at that stage. The accused remained with the deceased for a short time as other relatives attended the room and were contacted by the sister‑in‑law to attend.
The accused later withdrew and was said to have been found sitting in the dark in a small chapel praying. She went home at approximately 1am and took a sleeping tablet and rested. As I have already mentioned, she allegedly passed on what had happened to her friend and to the doctor on the next day, and then attended Ballarat Police Station at approximately 6.50 pm where she allegedly admitted euthanasing her mother.
The accused is currently on remand at the Melbourne Custody Centre. In an eloquent and highly competent plea for bail made on her behalf this morning, her solicitor argued that the applicant should be granted bail for the following reasons, as summarised in his affidavit: that the applicant is 50 years of age and has no prior criminal history; that she has strong family support; that she has strong ties to the jurisdiction; that she has stable accommodation; that she has stable employment; that she is receiving treatment for depression and has been undergoing and intends to continue to undergo counselling for it; that the Crown does not oppose bail being granted; that statements (or at least one statement) have been provided to the investigating officers allegedly casting some doubt on whether the applicant actually caused the death of the deceased; that if bail is granted the applicant would accept any appropriate bail conditions; that the applicant does not pose an unacceptable risk to prosecution witnesses or to the community at large; that she is not an unacceptable risk of re‑offending or of flight; and that there is likely to be considerable delay before this matter can be finalised.
Putting aside whether any statements cast any doubt on whether or not the applicant caused the death of the deceased (a matter it is not necessary for me to consider further), the Crown does not contest any of the assertions that I have just summarised that have been made on behalf of the applicant, and so I can proceed on the basis that those assertions are well founded.
In terms of proposed conditions, it is suggested that there be conditions that the applicant reside at her current address in Ballarat with her husband, and that she report to the Ballarat Police Station on Tuesday and Thursday evenings each week. I am not sure whether there is any suggestion that there should be a condition for the receipt of ongoing treatment and counselling for depression. Perhaps that is a matter that can be discussed in due course between the parties.
In all of these circumstances, the solicitor for the applicant submits that exceptional circumstances have been demonstrated.
As was pointed out by Vincent J in the matter of Maloney,[2] which was cited with approval and applied by Coldrey J in the Director of Public Prosecutions v Cozzi,[3] which was in turn cited to me by Mr Wardell this morning, it is not possible to identify any general definition of what factual situations constitute exceptional circumstances. Vincent J 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. “
[2]Unreported, 21 September 2000.
[3][2005] VSC 195 at [19].
In this case, in view of the matters to which I have referred, I am satisfied that exceptional circumstances which justify the making of an order for bail exist. So I will hear counsel to finalise the appropriate conditions.
(Submissions re conditions of bail)
The only conditions will be that the applicant reside with her husband at their home address in Ballarat (to be specified in the order) and that she report twice a week, on the evenings of Tuesday and Thursday, to the Officer in Charge of the Ballarat Police Station (between hours to be specified in the order).
On those two conditions bail is granted.
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