Application for bail by Ejikeme
[2022] VSC 522
•24 August 2022
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Not Restricted |
S ECR 2022 0162
| IN THE MATTER of the Bail Act 1977 |
| IN THE MATTER of an application for bail by CHIDOLUE EJIKEME |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 July & 2 August 2022 |
DATE OF RULING: | 24 August 2022 |
CASE MAY BE CITED AS: | Application for bail by Ejikeme |
MEDIUM NEUTRAL CITATION: | [2022] VSC 522 |
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CRIMINAL LAW – Bail – Applicant in show compelling reason situation – Compelling reason not shown – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Clamart | Matthew White & Associates |
| For the Respondent | Mr P Pickering | Ms A Hogan Solicitor for Public Prosecutions |
HER HONOUR:
The applicant, Mr Ejikeme, is charged with one count of reckless conduct placing a person in danger of death (pursuant to s 22 of the Crimes Act 1958), one charge of intentionally causing injury (pursuant to s 18 of the Crimes Act 1958), and two counts of unlawful assault (pursuant to s 23 of the Summary Offences Act 1966). All of the charges arose out of an incident on 25 March 2022, in which Mr Ejikeme’s wife and two young daughters were involved.
Also arising out of the same incident, an interim family violence intervention order was made on the same day, in which the applicant's wife and daughters are the affected family members. It essentially prohibits him from having any contact with them other than through a lawyer or mediator. The interim family violence order was adjourned to 17 August 2022, for its next directions hearing.
The next listing date for the criminal charges in the Magistrates’ Court is 7 September 2022. That will be for a committal mention, and for the hearing of an application by Mr Ejikeme for summary jurisdiction.
This is the first bail application made by Mr Ejikeme. It is not clear why no earlier application was made in the Magistrates’ Court.
Mr Ejikeme is in a “show compelling reason” situation. That is because he is charged with a Schedule 2 offence within the meaning of the Bail Act 1977 (‘the Act’), namely, an indictable offence involving the use of an offensive weapon. This means that bail must be refused, unless Mr Ejikeme can satisfy the court that a compelling reason exists that justifies the grant of bail.
In considering whether a compelling reason exists, the court is required to take into account the relevant surrounding circumstances, including but not limited to those prescribed in s 3AAA(1) of the Act. If satisfied that a compelling reason exists, the court must apply the unacceptable risk test. That is, bail must be refused if the respondent persuades the court that there is a risk that Mr Ejikeme would engage in any of the conduct outlined in s 4E(1)(a) of the Act, and that such risk is unacceptable.
In applying the unacceptable risk test, the court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
A further provision applies in this case, by reason of the fact that there are family violence risks. Because Mr Ejikeme is charged with family violence offences, s 5AAAA(2) of the Act requires the court to consider whether, if he were released on bail, there would be a risk that Mr Ejikeme would commit family violence, and if so, whether that risk would be mitigated by the imposition of a bail condition or the making of a family violence intervention order.
The initial return date for the bail application was 8 July 2022. Even though the bail application had been filed a month earlier, on 10 June 2022, when it first came on before the court it was badly underprepared; considerably more evidence was needed, if it was to have any prospect of success. A Court Integrated Services Program (‘CISP’) report had only been received on the morning of the initial bail hearing date. In broad terms, CISP supported bail being granted on certain terms and conditions, but further work needed to be done.
Given the state of under-preparation of the bail application, by consent, I agreed to adjourn the application until 2 August, to enable Mr Ejikeme’s lawyers to fill in the many gaps in the evidence.
When the matter came before the court again on 2 August, a number of the evidence deficits had been addressed. In some respects, the further evidence assisted Mr Ejikeme; in other respects, the evidence that had come to light was harmful to the application. Most significantly, and unfortunately for Mr Ejikeme, CISP no longer supported the application for bail, due to a change in his position, which I will consider shortly.
At the conclusion of the adjourned hearing, I was not satisfied that a compelling reason had been established. Furthermore, even if a compelling reason could be considered to have been established, I was satisfied that there was an unacceptable risk of Mr Ejikeme endangering the safety or welfare of any person and/or a failing to surrender into custody in accordance with the conditions of bail. I announced at the conclusion of the hearing that the application would be refused, for reasons to be published later. These are those reasons.
I turn to consider the compelling reason part of the application. Mr Ejikeme relies upon the grounds set out in paragraph 11 of the supporting affidavit of his solicitor, Thibaut Clamart, affirmed on 10 June 2022. In paragraph 11, the following matters were said, in combination, to satisfy the compelling reason test: (1) a weak prosecution case in relation to charges 1, 3 and 4; (2) a strong apparent mental impairment defence in relation to the other charges; (3) the likely significant delay of having these matters judicially determined, and the fact that time on remand was very likely to exceed the likely sentence; (4) Mr Ejikeme's lack of priors; and (5) the current conditions in custody caused by Corrections Victoria's response to the COVID-19 pandemic.
It is convenient to consider the circumstances of the alleged offending, before assessing the specific grounds relied upon by Mr Ejikeme. The following facts are largely undisputed on the evidence currently before the court. On 25 March 2022, Mr Ejikeme entered the main bedroom of the family home holding his two young daughters, a kitchen knife and a Biafran flag. He woke his wife, who observed him to be afraid, and said, ‘They want to kill me. They want to kill me. They’re listening’ and ‘They're going to gas the room’. He also told his wife that ‘they’ could see through the TV, and there was a speaker in the bedroom.
He told his wife to wet their clothes, cover their noses and drop the children on the bed. He sat down with them, and said he would kill himself and one of his daughters before they would kill him. His wife tried to persuade him to go to the hospital, but he said, ‘If we go outside, the police would shoot us’. They all went to the living room. The knife remained in the bedroom, and Mr Ejikeme told his wife to go outside and check if everything was okay.
She went outside and checked the garage door, and came back and said they were safe. He again told her to check, so she went outside with their five-year-old daughter, while he remained inside with the two-year-old. His wife was outside for only a little over a minute, when she heard a scream and ran to the door connecting the house to the garage. She saw Mr Ejikeme on the bed in the main bedroom, holding the two-year-old down with a knife to her neck, which he used to slice her neck multiple times.
His wife grabbed the knife and dragged him towards the garage door, but Mr Ejikeme said he needed to kill himself, and he went to the children’s bedroom, where he stabbed himself in the left side of the abdomen. The neighbours intervened. Triple 0 were finally called, and he was arrested, treated by paramedics, and conveyed to hospital for treatment.
I will start by considering the uncontroversial factors upon which Mr Ejikeme relies. First, there is no dispute that Mr Ejikeme has no prior convictions; that is in his favour. There is also no dispute that the current conditions in custody, including the 14-day quarantine period he was required to undertake after he was arrested on 12 April, are more onerous than conditions that would have applied before the pandemic. That may be said for every single person held in custody during the pandemic; there is nothing particularly unusual relied upon in that regard with respect to Mr Ejikeme.
The other factors relied upon are contested, and I will now deal with them in turn. The first relates to what is said to be a weak prosecution case in relation to Charge 1 (reckless endangerment), and Charges 3 and 4 (assault). The respondent accepts that there may be some duplication in relation to Charges 3 and 4. However, I am satisfied that the case in relation to Charges 1 and 2 is a strong one on its face. There is no dispute that Mr Ejikeme engaged in the relevant conduct. The only possible defence that has been identified is a mental impairment defence, which I will consider now.
Based on his wife’s account of his behaviour, and some preliminary mental health advice, I accept that there is some evidence to support a finding that Mr Ejikeme may have been suffering from first episode psychosis at the time of the offending. He will be formally assessed in November 2022, to ascertain whether or not a mental impairment defence is available to him. I would not describe it as a strong mental impairment defence, but there is at least an arguable mental impairment defence at this stage. But it would be sheer speculation at the moment, on the state of the evidence, to conclude that this matter is going to have a mental impairment disposition.
The final matter relied upon relates to questions of delay and timing. It is far too early to assess the likely delay at this stage of the proceedings, as there are so many unknowns.
If the application for summary jurisdiction, which is to be made in early September, is unsuccessful, then Mr Ejikeme will need to go through the committal process. The best evidence available to the court at this stage is that, if he were committed to stand trial, a County Court trial could be held around 14 to 16 months after the committal.
On the other hand, if the summary jurisdiction application is successful, the charges could be heard and determined far more expeditiously in the Magistrates’ Court.
If he is successful on the summary jurisdiction application, it is possible that he would receive a non-custodial disposition, or even a dismissal of the charges if he establishes a mental impairment defence.
On the other hand, if mental impairment is not established, and the summary jurisdiction application is unsuccessful, a sentence of imprisonment of some years is entirely possible.
It is certainly not the case that it can be said with any certainly that time on remand is very likely to exceed the likely sentence. It is just too early in the process, and there are too many variables or unknowns at this stage.
This case is entirely distinguishable from the case of HA v The Queen [2021] VSCA 64, which was referred to me by Mr Ejikeme’s lawyers. In that case, the applicant was a 15-year-old indigenous child with a significant intellectual disability, post-traumatic stress disorder, vulnerability in custody, and in respect of whom the prosecution conceded that a custodial sentence was unlikely. In that case, the Court of Appeal held that to deny him bail, notwithstanding the risks that he posed, was effectively to impose preventative detention. There is no analogy between that and the current circumstances.
For those reasons, I was not satisfied that the specific compelling reasons relied upon by Mr Ejikeme were made out.
There are other matters that are relevant both to compelling reasons and to the unacceptable risk factors. Mr Ejikeme arrived in Australia as a visitor from Nigeria, then overstayed his visa because of safety concerns about returning home. He is currently on some sort of temporary protection visa, although its exact nature and terms are not before the court. It is common ground that the terms of his visa do not entitle him to receive Centrelink or any other government benefits.
Even though he has been living in Australia for four years, there appears to be nobody who is prepared to offer him accommodation, or financial or other support. Although at the time of offending he was working as an Uber driver, it is clear from the evidence that he no longer has any prospect of continuing that work. Nor does he have any other employment prospects.
CISP initially supported the application for bail, on the basis that he would undertake treatment and assessment for his mental health issues and family violence behaviour. CISP also offered to assist him, through Launch Housing, to obtain three nights’ initial accommodation; thereafter, he would be supported, or encouraged, to seek additional assistance from the Salvation Army and other non-government organisations. The fact that CISP were initially prepared to monitor and support him, including ensuring that he attended necessary appointments and so on, was a factor significantly in his favour.
By the time of the adjourned hearing, CISP had provided a further report dated 27 July 2022. They prepared it after having a further meeting with Mr Ejikeme. As a result of that further meeting, CISP withdrew their support for his bail application. They said as follows:
During the second consultation with the writer, Mr Ejikeme communicated his only identified treatment need that he was willing to address was accommodation. He was adamant that the treatment need identified in the initial assessment being mental health was not a current concern and did not require intervention for his release.
Mr Ejikeme presents with compounding barriers affecting his engagement with CISP. Additionally, his primary motivation for engaging with CISP is to address his housing concerns. Mr Ejikeme could not provide a phone number, an emergency contact or avenue of contact in the community, and he does not have access to Centrelink. His prior income was from Uber, however, advised he cannot return to his employment and informed the writer that VicRoads have requested a medical review of his driver’s licence. Launch Housing has confirmed via email on Tuesday, 12th July that Mr Ejikeme is not eligible for Housing Establishment Fund, therefore limiting potential housing support due to limitations with Court Support Services funding. Furthermore, Mr Ejikeme is currently before the court in relation to serious family violence offences, however, is unwilling to address this at this time.
At the conclusion, the author described Mr Ejikeme as lacking insight into his treatment needs that correlated to his alleged offending. That CISP report to some extent neatly summarises what my concerns have always been in relation to Mr Ejikeme.
Although it is true that he told the Forensicare psychiatrist, who wrote a report dated 28 July 2022, that he would continue to adhere to his medication and seek mental impairment treatment if he were allowed out into the community, that conflicts with the second CISP report, which makes it clear that he does not see himself as having any mental health, or family violence, problems that need addressing.
It is not Mr Ejikeme’s fault that the circumstances of his visa do not entitle him to receive any financial support from the government. But his personal circumstances are such that he has no accommodation, no assets, no income, no means of financial support, no stable residence, no ties to the jurisdiction other than his immediate family, and nobody who is able to offer him any support or assistance. In those circumstances, to release Mr Ejikeme on bail would be to place him in a position of totally unacceptable risk.
The unacceptable risks would be that, in those circumstances, the most likely thing he would do would be to go back home to his family. That would be in clear breach of the family violence intervention order, and in circumstances where he does not consider that he has any mental health or family violence issues that he needs to address. If he does not go back home to his family, his only other option would be to live as a homeless person, with no means of support, no phone, and no means of contact. Even if he does not try to flee the country to return home to his extended family in Nigeria, the prospects of him answering bail in circumstances where he would be uncontactable, and living at large on the streets, are unacceptable as well.
The best prospect he has is to get an early resolution of his charges, get an early mental impairment assessment and then, hopefully, have available to him appropriate treatment and supports as a sentencing consideration, if indeed he is to be sentenced. But to release him on bail at the moment is just an utterly unacceptable risk, for the reasons I have given.
For these reasons, the application for bail is refused.
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