Re Creamer - [2009] VSC 460

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1495 of 2009

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by Eileen Creamer

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September & 7 October 2009
DATE OF JUDGMENT	7 October 2009
CASE MAY BE CITED AS:	Re Eileen Creamer
MEDIUM NEUTRAL CITATION:	[2009] VSC 460

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CRIMINAL LAW – Bail – Charge of murder – Whether exceptional circumstances exist – Likely delay between one year and 18 months– Accused suffering depression – No strong ties to Victoria – Exceptional circumstances not established - Bail refused

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Peter Rose SC	Office of Public Prosecutions
For the Applicant	Mr Robert Stary	Robert Stary & Associates

HIS HONOUR:

The applicant, Ms Creamer, is charged with the murder of her husband, David Creamer. Police were called to their home on 4 February 2008. The body of David Creamer was in the main bedroom of the house. The forensic pathologist who conducted the autopsy concluded that he died as a result of blunt force trauma to his head and a single stab wound.

Ms Creamer was interviewed by police on 4 February 2008 and again on 5 February 2008. She was released at the end of each interview. She maintained that she had had no involvement in her husband’s death.

The applicant was arrested and charged with murder on 29 April 2009. She was remanded in custody.

The matter was listed for a committal mention on 5 August 2009. That mention was adjourned. I was told by Mr Stary, who appeared on the applicant’s behalf on this application, that it was adjourned because she had been denied legal aid on the basis that she owned real property in New Zealand. This application for bail was filed on 14 August 2009.

On 1 September 2009 I heard full argument on the application. The factor upon which the applicant primarily relied on that occasion was delay. During argument, Mr Stary indicated that the committal would be contested and that its estimated duration was three to four days. His estimate of when that committal was likely to be heard was May or June of next year and, if she is committed for trial, he estimated that her trial would not be before early 2011.

I stood down to consider the application. When I returned to the bench to deliver my ruling Mr Stary sought an adjournment. He indicated that further enquiries had been made while the matter had been stood down, and that those enquiries had revealed that it might be possible to have a committal in January 2010 and for a trial to be held at the circuit in the LaTrobe Valley in April 2010. I granted the adjournment without fixing an adjourned date.

Subsequently, the solicitors for the applicant sought to have the matter re-listed, and I resumed the hearing today. At…

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 Re Creamer

Details

AGLC: Re Creamer [2009] VSC 460
Case: [2009] VSC 460
Decision Date: 7 October 2009

CaseChat Overview and Summary

In the case of Re Creamer, the applicant faced a charge of murder and sought bail from the Court. The dispute centred on whether exceptional circumstances existed to warrant the granting of bail, given the significant delay in the trial proceedings, which were expected to take between one year and eighteen months. The applicant contended that the delay, coupled with his suffering from depression and lack of strong ties to Victoria, constituted exceptional circumstances.

The court was required to determine whether the exceptional circumstances exception to the general rule against bail for serious indictable offences applied in this case. The court considered the factors of the length of the delay, the applicant's mental health, and his ties to the community. The court noted that while the delay was significant, it did not find that the applicant's depression or lack of ties to Victoria were sufficiently compelling to warrant bail. The court concluded that exceptional circumstances had not been established.

The court refused the application for bail, finding that the exceptional circumstances exception did not apply. The court was satisfied that the applicant's rights would be adequately protected by the imposition of stringent bail conditions, which were considered but not accepted by the applicant. The court's decision was based on the balance of considerations favouring the administration of justice and the protection of the community.

Orders