Re Jennifer Kirkham
[2008] VSC 186
•23 May 2008
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1673 of 2008
IN THE MATTER of the Bail Act 1997
and
IN THE MATTER of an Application for Bail by JENNIFER KIRKHAM
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2008 | |
DATE OF JUDGMENT: | 23 May 2008 | |
CASE MAY BE CITED AS: | Re Jennifer Kirkham | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 186 | |
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CRIMINAL LAW – Application for bail – Murder – Exceptional circumstances – Strength of Crown case against applicant – Delay – Unacceptable risk.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Kelly | Balmer & Associates |
| For the Respondent | Mr R. Gibson | Office of Public Prosecutions |
HIS HONOUR:
The applicant, Jennifer Kirkham, applies for bail pursuant to the provisions of the Bail Act 1997 (Vic) (“the Act”).
Ms Kirkham was charged with murder, the particulars of which were that at St Kilda on 13 August 2005 she murdered Simon Gurfinkel. Also charged with the same offences is the co-accused John James Stewart.
The applicant has been in custody since November 2007 when she was charged with these offences and is presently at the Dame Phyllis Frost Centre in Deer Park. This is her first application for bail in relation to this offence.
I am told that a committal hearing has been fixed for the Melbourne Magistrates’ Court commencing on 25 August 2008. I am assured that this is not a committal mention but the hearing of the committal proper. On the assumption that the applicant is committed for trial, which may not occur, it is clear that the trial would not be held until some distance into 2009, although I was informed by counsel for the Director of Public Prosecutions that he, in turn, was informed by the Criminal Trial Listing Directorate that the matter might be heard in March of 2009.
The application for bail is supported by an affidavit sworn on 11 April 2008 by Mr Bernard Balmer, the solicitor for the applicant. The application is opposed by the Crown and an affidavit has been sworn by Mr Mitesh Satish Raniga from the Office of Public Prosecutions on 9 May 2008.
Ms Kirkham is charged with murder and therefore must demonstrate exceptional circumstances pursuant to ss 4(2)(a) and 13 of the Act. If exceptional circumstances are made out that is not the end of the matter, since it is also submitted by Mr Gibson for the Director of Public Prosecutions that even if there were exceptional circumstances, there is an unacceptable risk that the applicant would not attend for her committal or trial if she were released on bail.
The first step then is whether there are exceptional circumstances established by the applicant.
Exceptional Circumstances
Previous rulings of this Court make it clear that a combination of factors can amount to exceptional circumstances though no one individual circumstance is exceptional. The circumstances, to be exceptional, must be out of the ordinary. Here, however, although several circumstances were listed in the very economical affidavit in support of the application, the particular circumstances relied upon amounted to the potential delay in the conduct of the committal and trial, and the asserted weakness of the Crown case.
Delay
In this case the offence occurred on 14 August 2005. The police conducted investigations over some considerable period of time and Ms Kirkham was not charged with murder until November 2007. She has been in custody since that time. As I earlier noted, the committal hearing has been fixed for 25 August 2008. Thus by the completion of the committal proceedings she will have been in custody for about 9 or 10 months. If the trial is heard in this Court in March of 2009 it will mean that the total time in custody between charge and trial will be in the order of 15 or 16 months.
I note in passing that this is to be compared, for example, with the situation prevailing in the matter of Antonius Mokbel.[1] In that case there was a grant of bail largely on the basis that the prospect of the applicant’s committal and trial being heard had become little more than speculative in view of investigations into the legal activities of members of the Victoria Police Force who were in turn involved in the investigation of the applicant. There was no question in that case that exceptional circumstances had been established and indeed so much was conceded by both the State and Commonwealth DPP.
[1][2002] VSC 393 (per Kellam J).
On its own, I would not regard the delay in this case as out of the ordinary. I agree that a total delay of 15 months is significant when the applicant is in custody, but if it were to occur that the delay were extended for some reason the matter could be reviewed.
Strength of the Crown Case
In the course of his submissions, Mr Gibson of counsel who appeared on behalf of the Director of Public Prosecutions accepted that the case was not the strongest of cases, although not conceding that it was necessarily a weak case. At this stage, as he submitted, the case is untested. As Warren CJ said in DPP v Cuenco:[2]
However, it seems to me that on the balance the application is premature. It is appropriate in the circumstances of this matter, including some of the conflicting descriptions of events, that the police have the opportunity to complete their investigation, including compiling witness reports and also obtaining the necessary DNA analysis. Once these matters are to hand a more appropriate consideration can be made of the Crown case. If, however, it transpires that there were unnecessary delays in the preparation of the Crown case and the obtaining of the DNA analysis it may potentially put the applicant in a different position.
Her Honour went on to indicate that at that point she was not satisfied that the applicant had identified exceptional circumstances in support of his request for bail.
[2][2003] VSC 485 at [28].
Here, however, the Crown does not submit that there are important or pivotal aspects of the evidence which are yet to be obtained. Indeed, there is a hand‑up brief which has been prepared and which has been provided to the applicant. It is therefore appropriate to make the best assessment I can of the strength of the Crown case on the material as it stands.
Bearing in mind the injunction that I should not say any more than is necessary about the strength of the Crown case, some of the detail of the allegations against the applicant are as follows. The deceased, Simon Gurfinkel, was 57 years of age when he died on 14 August 2005. He was an alcoholic who had lived at the Gatwick Hotel in Fitzroy Street, St Kilda, for about seven weeks prior to his death.
The Crown case against both the applicant and Mr Stewart will be that on Saturday, 13 August 2005, at about 6.40 pm, the deceased returned to the Gatwick Hotel and walked into the hotel towards his ground floor room down the hallway.
It will be alleged that at about 7.00 pm Mr Gurfinkel was robbed and seriously assaulted. The allegation is that the applicant was one of two people involved in that robbery and assault, the other being Mr Stewart.
I was provided with a copy of the statement made by Dr Noel Woodford who conducted the post mortem examination on the body of the deceased. That autopsy was carried out on 25 August 2005 and he concluded that the cause of death related to the complications from blunt force chest and abdominal trauma. That had resulted in fractured ribs and a lacerated spleen with massive haemorrhage into the peritoneal cavity. There were multiple blunt force injuries all of which appeared recent. There was also an area of blunt force trauma to the region of the left ear. Toxicological analysis showed the presence of alcohol in the blood at a very high level of .27 grams per 100 millilitres.
Dr Woodford said:
Taken overall, in my opinion, and in the absence of a plausible explanation to the contrary, the injury pattern is more suggestive of an assault in the form of multiple blows (for instance punches, kicks or multiple stomps with a shod foot) than an accidental aetiology. This opinion is based upon the fact that the injuries appear to have been sustained in roughly the same time frame, are relatively localized to the left side of the body, are present on multiple planes, and are associated with an injury in a relatively protected area (right side of larynx). However, the possibility that some of the injuries have been sustained during recent falls or stumbles cannot be excluded, particularly since it is likely the deceased was inebriated around the time of death.
The Crown have referred me to two potential witnesses whose statements were provided as an indication of the strength of the case against the applicant. First, the witness Raymond Terare has made a statement indicating that he was at the Gatwick Hotel at about the time the deceased died. However, he was unaware of any incident while he was in one of the rooms drinking wine with a number of other people. He described leaving the premises at about 8.00 pm.
The essence of the allegation he makes in relation to the applicant is that he has spoken to her a number of times since being at the Gatwick Hotel. On some unidentified occasion, being the same day that he learnt of the death of the deceased, he was in Acland Street, St Kilda. He said he heard the applicant “skiting about going through the dead man’s pockets and stealing the money from his wallet”. He added that “Jenny said that she didn’t know if the man was dead or alive, but that she saw him lying on his bed and decided to go through his pockets. Jenny used the term ‘rolling him’ when she talked about taking the man’s money. Jenny thought the whole thing was very funny.”
That evidence in itself seems unlikely to implicate the applicant in the offence of murder since it does not contain anything to indicate that the applicant was admitting to participating either in the robbery or in the physical attack on the deceased.
The next witness whose statement contains relevant material is Susan Tate. This witness had also resided for a period of time at the Gatwick Hotel and she describes a conversation she had in April 2006 with the applicant at the flat of an associate in St Kilda. The applicant was apparently there to buy heroin. She said that the applicant then gave her the following account of the death of the deceased:
Jenny said that Simon was bashed and strangled and that he died as a result of the assault. Jenny said that the male had blood on his rib cage area and that [his] body had been dragged from the place he was assaulted near the kitchen, along the corridor to his room.
Jenny also said that her and Gabby tried to do CPR on Simon after they realised he was dead.
During this conversation Jenny did not say that it was JB who assaulted Simon or that she was involved in the assault. She described it as a spectator. The only things that Jenny did say about JB was that he had gotten into some sort of argument with Simon earlier during the night of his death and that he took off from the Gatwick after Simon died.
In about August of 2007 the same witness describes a further conversation with the applicant in which she first denied robbing the deceased but then admitted it. However, she said she did not kill him. She then gives the following description:
Jenny then went on to detail that her and Gabby tried to rob Simon at the Gatwick for his cash. She said that Simon didn’t want to part with his money and put up a fight. She said there was a loud commotion and JB came out of the room he was in to see what the commotion was about. She said that JB saw her struggling with Simon and that he (JB) gave him a hiding. She said that JB was out of control.
By hiding I took this to mean that JB bashed him.
Jenny said that the hiding by JB killed Simon and they then agreed to cover up what had happened. Jenny said that herself, JB and Gabby were part of the cover up. Jenny said that JB’s girlfriend was sent away from the Gatwick after the assault.
Jenny said that she never intended to kill Simon, just to rob him. Jenny said that she took $40.00 cash and a bank card from the male.
Jenny repeated that they moved Simon’s body after the assault and came up with a story to put him back to bed and make out that nothing happened.
The last piece of evidence which is relevant to an assessment of the strength of the case is based on telephone intercepts obtained between September and December 2005. The only one with any relevant and probative content is a conversation which apparently occurred between Ms Kirkham and Mr Stewart on 24 November 2005 in which Mr Stewart told the applicant to go to his house immediately because he needed to see her and during the conversation the applicant told Mr Stewart that he had to fill her in on everything because they are “fucked” – whatever that might have meant.
The overwhelming impression from the material as I read it is that the involvement of the applicant was an involvement aimed at removing whatever cash the deceased had in his possession and it seems to me there is very little, if any, evidence to indicate that the applicant either inflicted any of the wounds suffered by the deceased or had entered into any form of joint enterprise with Mr Stewart to carry out an attack on the deceased as part of a robbery. I would have to observe that at this stage the Crown case on common law murder is very weak.
However, the learned Crown prosecutor in the course of his submissions suggested that in the absence of any direct evidence that the applicant had been involved in causing the death of the deceased with murderous intent, resort might be had to s 3A of the Crimes Act 1958 (Vic) which provides:
(1)A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level one imprisonment (life) or to imprisonment for a term of ten years or more shall be liable to be convicted of murder as though he had killed that person intentionally. …
As the Court pointed out in R v Butcher,[3] if the felony murder rule is to apply to deaths unintentionally caused, the Crown must prove that the death was caused by the person charged by an act of violence done in the course or furtherance of a crime of the said class, which carries the penalty stipulated. I proceed on the basis that robbery, as opposed to armed robbery, falls with that class.
[3][1986] VR 43 at 51, discussed by Kellam JA in R v Galas & Mikhael [2007] VSCA 304.
Mr Gibson’s submission was:
The alternate basis, Your Honour, is if her involvement was unintentional in terms of any injuries she inflicted falling short of murderous intent, that this is a 3A murder. In other words, she engages in an act of violence, namely robbing the deceased man, and she is assisted by Stewart and the death of the deceased results from the act of violence, namely robbing him.
Here the difficulty which may not be solved by the use of s 3A is that whilst the applicant has made some form of admission about stealing money from the deceased there does not appear to me to be any direct evidence to indicate that she was involved in the robbery or did any act herself which caused the injuries which were ultimately the cause of death of the deceased. At best, there is apparently some evidence of the applicant having blood on her fingers and washing her hands in a basin. But no witness describes the applicant assaulting the deceased or doing so jointly with Mr Stewart. Further, no witness appears to recount any admission by her that she was involved in either the threat of physical violence or the application of it.
I would have thought that as the evidence presently stands the case against the applicant can be described as a weak case since the only evidence which incriminates the applicant by suggesting her involvement in anything is her admission that she and a person called Gabby were trying to rob the deceased, and when Mr Stewart came out to see what the commotion was and saw her struggling with the deceased, he involved himself and meted out the injuries which caused the death. Otherwise, as it presently stands, there is no other evidence about her role.
There does not seem to be any evidence pointing to a joint enterprise between the applicant and Mr Stewart. There may have been a joint enterprise between the applicant and Gabby in relation to a robbery of the deceased but the latter is not implicated in the death of deceased. There does not seem to be any evidence to which I have been referred to suggest that the applicant knew that violence was going to be inflicted on the deceased by Mr Stewart for the purpose of any robbery and there is no evidence at all that any of the injuries were inflicted by her.
In those circumstances I am prepared to conclude that the quality of the case against the applicant is such as to make the strength of the case against her an exceptional circumstance for the purpose of her present application. However, that is not the end of the matter because the Crown also raise objection to the admission of the applicant to bail because she is alleged to be an unacceptable risk pursuant to s 4 of the Act. I turn then to consider the evidence in relation to that aspect of the application.
Unacceptable Risk
I must consider whether there is an unacceptable risk that the accused person if released on bail would fail to surrender herself into custody in answer to her bail, commit an offence whilst on bail, endanger the safety or welfare of members of the public, interfere with witnesses or otherwise obstruct the course of justice whether in relation to herself or any other person. The Crown relies on the risk of the applicant committing offences whilst on bail and also not appearing to answer her bail.
The applicant has a substantial criminal history. She is aged 42 years and the evidence indicates she has suffered from a heroin addiction for the last 20 or so years. Despite several attempts she has failed to overcome her addiction.
From November 1996 onwards she has a long and unenviable criminal record. I do not recite but refer to the following selection:
1996 Armed robbery 1997 and 1999 Fail to answer bail 1999 Failing to comply with a CBO 2003 Recklessly cause injury
Possessing a firearm
2005 Breach of suspended sentence
Her most recent offending has been in 2007 for theft and there have been various drug and theft offences in 2005. The convictions to which I have referred to do not engender an excess of confidence in her willingness to comply with court orders.
On the other hand, the applicant’s step mother, Susan Kirkham, gave evidence before me and proposed that if the applicant were admitted to bail she would reside with Mrs Kirkham and the applicant’s father who is her husband. She suggested that notwithstanding their commitments to the family business in Frankston they would be in a position to carry out whatever supervision was necessary including making sure the applicant was taken to a methadone clinic and to comply with any reporting conditions which were proposed.
The witness agreed that the applicant had had “multiple attempts” at rehabilitation but has reverted back to drug use and has continued to commit criminal offences. I must say, I was impressed with Mrs Kirkham – I consider she has a good insight into the conduct of her step daughter and a commitment to doing what she can to improve her circumstances. I consider that if she was the surety for the applicant she would take her duty to ensure that conditions of bail were complied with very seriously.
Evidence was also given by Henri Jacques Ser who is a Community Youth Outreach Worker with Father Bob Maguire. He gave evidence that he had supervised an intensive corrections order that was imposed on the applicant two years ago and described the positive and enthusiastic involvement that she had pursuant to that order. He said that she was doing a drug and alcohol course at Swinburne but that she could resume the course if she were free to do so. Mr Ser said that they could provide weekly or three times weekly visits and there was a methadone clinic available at a pharmacy in Foote Street, Frankston, that has a current vacancy in the methadone programme. He added that he could also ensure that she attended court and in cross‑examination said that the applicant willingly complied with the intensive corrections order and the requirements on her to do her work experience.
My view of the evidence is that there is some risk of the kind contemplated by the Act but I am not prepared to say it is unacceptable. I have placed heavy reliance on the evidence of Mrs Kirkham and her husband – the father of the applicant. I consider there is a commitment by the applicant’s family and by the applicant herself to defeat her heroin addiction and to rein in her addictive behaviour. I gather there is a vacancy in the Frankston area for the applicant in a methadone program. In the circumstances I am prepared to admit the applicant to bail on the following stringent conditions:
(a) A surety of $150,000.00;
(b) That the applicant report daily to the Officer in Charge of the Frankston Police Station between the hours of 9:00 am and 5:00 pm;
(c) That the applicant reside with her father and step mother at Frankston, and remain within those premises between 7:00 pm and 7:00 am on each day;
(d) That the applicant surrender any passport she holds to the informant, Detective Senior Constable McQualter, and not apply for any other passport until further order of this Court;
(e) That the applicant not attend any point of interstate or international departure;
(f) That apart from any lawful prescription drugs for the purpose of treating any illness or addiction, the applicant refrain from the consumption of any narcotic drug (including cannabis) or any alcohol until further order;
(g) That the applicant submit to medically supervised urine tests three times per week and any failure to take the test or any result which demonstrates the consumption of narcotic drugs (including cannabis) be advised to the informant forthwith;
(h) That, other than the informant, the applicant make no contact whatever with any witnesses in this case;
(i) That other than to the extent that it is necessary to do so in the company of her step mother or father or both to gain access to the Melbourne Central Business District or to attend for urine testing, treatment or counselling, the applicant is not to go to and/or remain in the suburb of St Kilda.
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