Application for bail by SY
[2022] VSC 125
•11 March 2022 (Revised 7 April 2022)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted Revised |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0016
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by SY | Applicant |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 and 11 March 2022 |
DATE OF RULING: | 11 March 2022 (Revised 7 April 2022) |
CASE MAY BE CITED AS: | Application for bail by SY |
MEDIUM NEUTRAL CITATION: | [2022] VSC 125 |
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CRIMINAL LAW – Bail – Applicant charged with assault and other offences – Family violence – Alleged offending against applicant’s wife – Whether compelling reason exists justifying a grant of bail – Whether unacceptable risk – Bail refused – Bail Act 1977, s 1B, 3AAA, 4AA, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Dunn QC and Mr C Hooper | Garde-Wilson Lawyers |
| For the Respondent | Mr P Murphy | Victoria Police |
HER HONOUR:
Introduction
This is an application for bail by Souhaib Y (the ‘applicant’). On 10 December 2021 the applicant was arrested and charged by Senior Constable Robert Coles with the following charges (‘the Coles matter’):
a) Charge 1: Assault contrary to common law on 29 October 2021;
b) Charge 2: Reckless conduct (namely, strangulation) endangering life on 29 October 2021 contrary to s 22 of the Crimes Act 1958 (‘Crimes Act’);
c) Charge 3: Reckless conduct (namely, strangulation) endangering serious injury on 29 October 2021 contrary to s 23 of the Crimes Act;
d) Charge 4: Assault with a weapon (namely a belt) on 29 October 2021 contrary to s 23 of the Summary Offences Act 1966;
e) Charge 5: Assault contrary to common law between 29 and 30 October 2021;
f) Charge 6: Assault with a weapon (namely a conducted energy device) between 29 and 30 October 2021 contrary to the Summary Offences Act 1966;
g) Charge 7: Use prohibited weapon without exemption (namely a conducted energy device) between 29 and 30 October 2021, contrary to s 5AA of the Control of Weapons Act 1990;
h) Charge 8: Assault contrary to common law on 10 December 2021;
i) Charge 9: Reckless conduct (namely strangulation) endangering life on 10 December 2021 contrary to s 22 of the Crimes Act;
j) Charge 10: Reckless conduct (namely strangulation) endangering serious injury on 10 December 2021 contrary to s 23 of the Crimes Act;
k) Charge 11: Assault with a weapon (namely a knife) on 10 December 2021 contrary to s 23 of the Summary Offences Act 1966; and
l) Charge 12: Possess prohibited weapon (namely a conducted energy device) without exemption contrary to s 5AA of the Control of Weapons Act 1990.[1]
[1]It appears to the Court that some of these charges may be alternative charges.
The applicant was remanded in custody on 10 December 2021. On 21 December 2021, the applicant was refused bail at Sunshine Magistrates’ Court on the basis that he failed to show a compelling reason that justified a grant of bail and that he posed an unacceptable risk of endangering the safety or welfare of any person and interfering with a witness or otherwise obstructing the course of justice.
The matter is next listed on 27 June 2022 at Melbourne Magistrates’ Court for a contested hearing. The matter has been set down for two days.[2]
[2]Written Submissions of the Applicant dated 6 March 2022, [2.3].
There are no other pending charges against the applicant.
This matter was initially listed before me on 16 February 2022, but was administratively adjourned at the request of the applicant to allow his representatives to obtain further materials in support of the application.
In addition to submissions made before me at the hearing on 8 March 2022, the parties filed multiple affidavits each,[3] written submissions,[4] and the applicant’s representatives filed a chronology dated 6 March 2022.
[3]Affidavit in Support declared by Zarah Garde Wilson on 31/01/2022 (‘Applicant’s First Affidavit’); Affidavit in Support sworn by Zarah Garde-Wilson on 24/02/2022 (‘Applicant’s Second Affidavit’); Affidavit in Support sworn by Zarah Garde-Wilson on 4/03/2022 (‘Applicant’s Third Affidavit’); Affidavit in Response sworn by Nathan Watt on 9/02/2022 (‘Respondent’s First Affidavit’); Supplementary Affidavit in Response sworn by Nathan Watt on 14/02/2022 (annexing report of Troy McEwan) (‘Respondent’s Second Affidavit’); Further Supplementary Affidavit in Response sworn by Nathan Watt on 7/03/2022 (‘Respondent’s Third Affidavit’).
[4]Written Submissions of the Applicant dated 6 March 2022, Written Submissions of the Respondent dated 14 February 2022.
The alleged offending
Background
The applicant has been in a relationship with the complainant Alexandra M for eleven years, and they have five children together, aged between 2 and 9 years of age. The applicant and the complainant became involved when they were each 18 years of age. They were married within the Islamic tradition in December 2010. In her first statement to police, the complainant alleges that the applicant has been verbally and physically abusive throughout their marriage. He has also been controlling of her, for instance controlling the family finances, the way she dresses, and her contact with other people. Alexandra M’s mother recalls observing the applicant’s controlling behaviours, including in respect of money, and restrictions on the complainant having friends over at the home or contact with people outside of the family.
There have been no previous reports of family violence made to police between the applicant and complainant.
29 October 2021 matter
It is alleged by the respondent that on 29 October 2021 the applicant started an argument with the complainant about her communicating with a male via Zoom. She said the contact was part of her work as a psychological counsellor and that the man was a client. The applicant then called the male and demanded to know why he had been in contact with the complainant. After speaking to the male, the applicant allegedly punched the complainant to the ribs multiple times, grabbed the back of her head and pressed her face into the floor. He is then alleged to have placed a belt around her neck, and pulled it so she could not breathe.[5] He then loosened the belt and begun to hit the complainant with it. Shortly afterward, the applicant left the house with the complainant’s mobile phone, smart watch and car keys.
[5]Complainant’s second statement dated 10 December 2021, [15].
It is further alleged that during the day, the applicant contacted the male again seeking further information from him about his interactions with the complainant.
The informant has not been able to identify or locate the male, but believes he lives in New South Wales. The male’s contact information was on the complainant’s phone that was taken from her by the applicant. That phone is now missing.
It is further alleged that at approximately 9:30pm on the same day, the applicant returned home and approached the complainant in the bedroom. He instructed her to sit on the floor, and removed a controlled energy device (‘CED’) (commonly referred to as a Taser) from his jacket and told the complainant she had one chance to tell him everything, that he knew everything, and that he would know if she was lying. The complainant tried to explain the situation to the applicant. He then activated the CED and continued saying the complainant was lying. The applicant then applied the CED to the complainant’s buttocks three times, causing extreme pain. When the complainant screamed out in pain, the applicant placed his hand over her mouth. The applicant then made the complainant swear there was nothing going on between her and the man he had spoken to. Afterwards, he left and went to the garage. The complainant alleges she sustained injuries to her lips, red marks to her face and body, and bruising to her torso as a result.
Later that evening, the complainant started panicking so the applicant called an ambulance for her and she was taken to Sunshine Hospital. After waiting some time to be seen, the complainant self-discharged without receiving full examination or treatment. Notes from the hospital indicate a suspicion of COVID-19 as she mentioned nausea, vomiting and diarrhea after eating chicken. No injuries were documented and no family violence complaint was raised at the Sunshine Hospital.[6]
[6]The informant notes in his report at [15] that the complainant made up a story about her injuries when questioned by ambulance and hospital staff, out of fear of reprisals from the accused. This may be based on information from the complainant, but it does not appear to be contained in the complainant’s statements.
In November 2021, the complainant allegedly tried to leave the applicant. She travelled to Sydney with their children. The complainant asserts that the applicant tracked down her location via an iPad belonging to their children that she took with her. The applicant then obtained the complainant’s precise location from her, and attended the hotel where she and the children were staying. They all returned home to Melbourne shortly thereafter.
10 December 2021 incident
It is further alleged that on 10 December 2021, the complainant got up at 5.00am to feed her baby. She was messaging a friend on a mobile phone that she kept hidden from the applicant, because he monitored her activities on her primary mobile phone. According to her statement, she had the second mobile phone as a safety measure in case she needed to escape the abusive relationship she was in. It was described by her as her emergency phone.
It is alleged that upon discovering the complainant using a second phone, the applicant took it from her and dragged her by the arm into the bedroom. The applicant picked up one of the complainant’s high heels and held the heel towards her, demanding that she provide the passcode to unlock the phone. The complainant refused to provide the passcode and the applicant placed his hand around her neck and squeezed, causing her to struggle to breathe. The applicant released the complainant’s neck but continued to yell at her to unlock her phone. She refused, and the applicant grabbed her by the neck again and applied pressure, making it difficult for her to breathe. Their young son then attempted to enter the bedroom and the applicant let go of the complainant and left the bedroom and went to the kitchen. He returned to the bedroom holding a large kitchen knife as he was walking towards the complainant. He then grabbed the complainant by the hair and dragged her to the floor, placing her on all fours. He held the blunt side of a kitchen knife to her throat and again demanded she provide the passcode. She continued to refuse.[7]
[7]The Court notes the charges and the parties have used the word ‘strangulation’ to describe some of the allegations. The Court has preferred to avoid using this word as it is apt to confuse, given common definitions describe it as an action causing death.
The applicant then attempted to calm the complainant down before leaving the house with the children. The complainant contacted police.[8] Copies of 000 calls made by the complainant that morning were tendered, including the audio files.
[8]The summary to the preliminary brief of evidence records that the complainant contacted police using her grandmother’s phone. The complainant’s first statement records that she left the house with some of the children and contacted police on her own phone.
In her first statement made 10 December 2021,[9] the complainant says the applicant has control over her finances and he does not give her access to money to buy food for their children. She also says he has access to cameras at their shared home. In her second statement 10 December 2021,[10] the complainant provides further detail about the alleged background of family violence, including mental abuse, physical violence and financial control by the applicant throughout their marriage.
[9]Being her handwritten statement made that day which details the allegations in relation to the 10 December 2021 incident.
[10]Being the typed statement made that day which details, amongst other things, the 29 October 2021 incident.
It should be noted that there have been no prior charges for family violence against the applicant, nor any prior family violence reports to police by the complainant, although this does not mean the allegations made by the complainant are false.
On 13 December 2021, the complainant made a further statement to police stating she did not want to pursue her complaint because she did not want the applicant to miss out on being a dad. She also stated that she wanted the children removed from the FVIO. The informant stated in his report, that the complainant has subsequently told police she does wish to pursue the complaint and that she will attend Court to testify. She said she was pressured by the applicant’s family to withdraw her complaint and that she was being deprived of financial provision for her family.
The applicant’s lawyers have provided the Court with screenshots of messages sent between the applicant and the complainant on 29 October and 1 November 2021. The messages do not appear to be threatening or abusive, and both the applicant and the complainant use terms of endearment towards each other.
The complainant made a further statement on 1 March 2022 to provide contextual information in relation to those screenshots. The gist of her 1 March 2022 statement is that the text messages for 29 October 2021 were not out of the ordinary after the couple had had a fight. The text messages for 1 November 2021 were sent after she fled to Sydney at a time when she realised the applicant knew where she and the children were located. She said:
During the phone call [the applicant] told me he knew I was in Sydney because he had tracked me by the kids iPad. He knew the area I was in but not exactly. I messaged him the address because he was going to come and find me.
In circumstances where it is alleged that the applicant was pursuing the complainant to Sydney after she had allegedly left him, it is difficult to know what to make of these text messages. The complainant also said she sent the informant copies of her smart watch activity between 25 October 2021 and 2 November 2021 showing that the applicant took her watch at the same time that he took her phone. Her activity on the watch remained at nothing after 29 October 2021 when he took the watch.
Arrest and interview
On 10 December 2021, the applicant was arrested at his home address and conveyed to Melton Police Station for interview.
At the home, police had located a CED on top of a fridge in the garage. It was in a case, with a clear cap on the prongs. The device was 11 inches long. Police also located a knife in the bedroom where the assault is alleged to have occurred that day, and a black shoe which the applicant is alleged to have used during that assault. There was also another large kitchen knife in the sink. Police also retrieved CCTV footage dated 10 December 2021 that was captured via the cameras installed at the applicant’s and the complainant’s property. The preliminary brief indicates the police consider that the footage depicts the complainant ‘pleading’ with the applicant for her mobile phone back.
Photos taken of the complainant by police on 10 December 2021 appear to reveal some faint red marks on the complainant’s neck and collarbone.[11] Further photographs taken that day appear to show bruising on her left leg and left arm.[12]
[11]Photographs 3 and 4 attached to the Police Brief of Evidence.
[12]Photographs 8 and 9 attached to the Police Brief of Evidence.
Olga L says in her statement that her daughter phoned her in December 2021 to tell her she was going interstate with the kids because the applicant was going to kill her. She wanted her mother to fly up and help her and she was planning to leave. The next day, the applicant (her son in law), phoned Olga L to ask if she had heard from Alexandra M. She did not admit that she had. The applicant told Olga L that he had found text messages on the complainant’s phone showing she was being unfaithful. He told her to call him if she heard from her daughter. She was not comfortable talking to the applicant as she had not had the best relationship with him over the years. She spoke to her daughter again and then the applicant called her back, saying he wanted to talk to the kids, and to tell this to Alexandra M. Olga L contacted the complainant and told her that the applicant does have the right to speak to the kids. She was later told by her daughter that they had worked things out and she was coming back. About a week after the complainant returned from Sydney with the applicant, the applicant phoned her again saying he was leaving the complainant because she was cheating on him. The complainant then phoned her mother crying and begging her to visit. When the complainant’s mother arrived, she observed her daughter to be in a bad state, crying and there were marks on her daughter’s neck.[13]
[13]Statement of Olga L dated 4 February 2022, [21].
In his police interview the applicant denied assaulting the complainant and answered ‘no comment’ when questioned about the alleged offending. However, he admitted to disapproving of the complainant’s outfits on an occasion when the pair had planned a beach trip. He also spoke of some bruising on the complainant and gave alternative explanations for the bruising.[14] After being interviewed, the applicant was charged and remanded in custody.
[14]Informant’s report, [8].
Issues since the applicant’s remand
The informant has also obtained internet records suggesting the applicant’s brother, Rabih Y accessed footage from the security cameras at the complainant’s and the applicant’s shared home after the applicant was remanded. The informant says as following in his report:
IP address checks on the access logs have revealed on several dates since [the applicant] was arrested, access was gained using a Dodo internet account that is registered to [the applicant’s] brother, Rabih [Y] who resides at [REDACTED] Taylors Hill. This address is 7.8 KM (9 minutes from [the complainant’s] home address. There is no lawful reason for the family to be accessing the CCTV and keeping [the complainant] under surveillance.[15]
[15]Informant’s report, [41].
The informant is actively investigating this.
At the hearing, the informant expressed concern that the family were keeping the applicant under surveillance and reporting back to the applicant. He gave evidence that Arunta calls he had obtained suggested that the applicant discussed CCTV with his brother whilst in custody.[16] Mr Dunn QC for the applicant, did not cavil with the above allegation, though he suggested that he had instructions that the discussion about CCTV in the Arunta calls may have been regarding attempts to obtain exculpatory footage. Nevertheless, Mr Dunn also submitted that the applicant and his family have since been put on notice about any such behaviour.
[16]Although the calls are in Arabic and not translated in full yet.
Applicable Law
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 (‘the Act’).[17]
[17]The Act, s 1B(2).
The applicant is required to show a compelling reason that justifies a grant of bail pursuant to s 4AA(3) of the Act, as he is charged with a Schedule 2 offence.[18] Accordingly, bail must be refused unless the applicant satisfies the Court that a compelling reason exists that justifies the grant of bail.[19] In considering whether a compelling reason exists the Court must take into account all of the relevant surrounding circumstances including, but not limited to, those set out in s 3AAA of the Act.[20]
[18]Namely common assault in circumstances where it is alleged the applicant used or threatened to use an offensive weapon (sch 2, item 23).
[19]Ibid ss 4AA(3), 4C(1A)-(2).
[20]Ibid s 4C(3).
If satisfied that a compelling reason exists that justifies the grant of bail, the Court must then apply the unacceptable risk test.[21] Bail must be refused if the respondent satisfies the Court that, if released on bail, the applicant poses a risk of engaging in any of the conduct outlined in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[22] In determining whether a risk is unacceptable the Court must again take into account the surrounding circumstances and consider whether any conditions of bail may be imposed to mitigate the risk so that it is not unacceptable.[23]
[21]Ibid ss 4C(4), 4D(1)(b).
[22]Ibid ss 4D(2), 4E(2).
[23]Ibid s 4E(3).
Finally, s 5AAAA(1) of the Act requires the Court to make inquiries of the respondent as to whether there is in force against the applicant a FVIO, family violence safety notice or another recognised domestic violence order. Further, as the applicant is charged with family violence offences, the Court must consider whether, if he were released on bail, there would be a risk that he would commit family violence, and if so, whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.[24]
[24]Ibid s 5AAAA(2).
The respondent has confirmed the applicant is currently subject to an interim FVIO, for the protection of the complainant and three of their five children.[25] The order was granted on 21 January 2022 and prohibits the applicant from having any contact with the complainant or his children, otherwise than as permitted under a Family Law Act order, child protection order or written child agreement. He is also permitted to communicate through a lawyer or mediator, participate in counselling or mediation, and go to the home of the AFM in the company of a police officer.[26]
[25]See Exhibit ZGW-9 of Affidavit in support for copy of interim FVIO.
[26]I note that in the complainant’s statement dated 13 December 2021 she states that she wants the children removed from the FVIO, however, would like it to remain in place for herself.
The informant explained that only three of the children were listed on the order as a result of a miscommunication. All five children were listed on the initial family violence safety notice, but then not listed in the order itself. The informant had intended to make a further application. However, he has since had discussions with the Department of Families, Fairness and Housing (‘DFFH’). DFFH indicated they did not hold concerns for the children’s welfare if in the applicant’s care, accordingly the informant has not pursued the further application.
There are no family lawyers involved with the family, though the informant advised that referrals had been made. The informant gave evidence that the complainant has indicated that she does not wish to have any further contact with the applicant.
The applicant’s personal circumstances
Details of the applicant’s personal history can be gleaned from the neuropsychological report of Mr Matthew Staios dated 19 January 2022 (‘Staios report’), filed in support of this application.
The applicant is 30 years old. He was born in Lebanon and migrated to Australia in 1997 with his family. The applicant is the second youngest of seven children.
The applicant states his father was physically abusive and controlling, and his parents separated shortly after the family migrated to Australia, when the applicant was around 9 years old. Approximately one year after arriving in Australia the applicant returned to Lebanon with his father, under the pretext of a holiday. The applicant attended school until Year 6 in Australia, but was thereafter prevented by his father from attending further schooling in Lebanon. The applicant’s father also prevented him from contacting family in Australia while in Lebanon, and the applicant was forced to work in a local business while there.
At age 16, the applicant was assisted by the Australian Government to return to Australia, after being granted an emergency passport at the Australian Embassy.
The applicant found the transition back to Australia difficult. By the time of his return, his siblings had all completed high school and had firm roots in Australia. He reportedly felt resentful and felt he had been robbed of three years of his life. He had a somewhat troubled adolescence which included binge drinking, substance abuse, and associations with a negative peer group. He reports that he ceased his drug use around the time he met the complainant, other than some occasional cannabis use.
As outlined, the applicant has been in a relationship with the complainant for eleven years and they share five children. They were married in 2010 and initially lived with Olga L in Tullamarine, before moving out in 2011. They lived in various rental properties until 2016 when the applicant purchased property in Aintree. He purchased a further property in Aintree in October 2019. The couple lived at the first property in Aintree until that property was sold in March 2019. They then moved to the second Aintree property. That property was also subsequently sold that month, but the applicant and the complainant continued to reside there, and rented that property thereafter. The applicant then purchased land in Bonnie Brook, which he still owns. The complainant continues to reside at the second Aintree property with the children. The informant gave evidence that, according to information from the complainant, it was his understanding that the family properties have all been in the applicant’s name only, and the complainant’s name has not been connected to any of it. No dispute was raised in respect of this evidence when it was advanced by the informant.
At the time of the applicant’s arrest, he and the complainant were caregivers for the complainant’s elderly grandmother who is aged in her eighties. She is reportedly in poor health, and does not speak fluent English.
The applicant reports strain in the relationship with his wife due to her alleged infidelity in 2021, which led to the applicant moving out of the family home on two occasions.
The applicant completed a mechanics apprenticeship at the age of 27, before purchasing a fish and chip business in 2018, with assistance from his family. At the time he was remanded, the applicant was often working 12 hour days at that shop. He reported that this led to a breakdown in communication and intimacy with the complainant. The Staios report states the applicant also still worked as a mechanic prior to be being remanded, but the applicant’s representatives submitted at the hearing that if bailed, the applicant would work seven days a week at the family fish and chip shop.
The applicant reportedly has significant debts to the Commonwealth Bank and his family, totalling in excess of $500,000. However, the only financial documentation produced to the Court was a summary of profit and loss details for the last several years produced by his legal representatives.
Criminal history
I will disregard any convictions relating to the applicant that relate to the Children’s Court or are spent convictions. He only has one prior conviction as an adult. In 2012, the applicant appeared in the County Court and was convicted and fined $1,150 for dishonesty offences.
He has no history of offending whilst on bail.
The applicant’s contentions
The applicant relies on the following matters, in combination, to show a compelling reason that justifies the grant of bail:
a) Strength of the prosecution case: The applicant submits that there are deficiencies in the prosecution case, including the lack of corroborative or forensic evidence and the earlier statement of ‘no complaint’ from the complainant. At the hearing, Mr Dunn submitted there were triable issues that arise partly from the screenshots of the text messages on 29 October and 1 November 2021, the fact the complainant did not make a complaint to hospital staff when she attended hospital on 30 October 2021, and the inconsistent statements she made to triple 0 operators about violence from the applicant. The applicant points to the chronology they have prepared which elaborates on some of these matters.
b) Limited criminal history and bail compliance history: The applicant does not have any prior findings of guilt for offences against the complainant or contravention of FVIOs. The applicant has no prior findings of guilt for bail offences and was not subject to any court orders at the time of the alleged offending.
c) Progress on remand: This is the applicant’s first time on remand. Mr Dunn emphasised that the applicant has undertaken a series of courses whilst he has been on remand. Those courses were centred around assisting the applicant to deal with difficult situations, and should be viewed by the Court favourably.
d) Family violence intervention order in force: The applicant submits that he has no prior FVIOs although there is currently one in force to protect the complainant.
e) Family support, stable accommodation and employment: It is proposed that the applicant reside with his mother, Mona A, at her address in Cairnlea if granted bail. He would have his own room at that address. The applicant could work full time at the fish and chip shop owned by the family. He has significant debts (in the order of $500,000.00) tying him to the jurisdiction. The applicant’s financial obligations were submitted to assist in providing a compelling reason for granting bail, because the family financial situation will be significantly impacted if he is not granted bail.
f) The Staios report: In regard to the alleged offending, Mr Staios states that in instances of acute stress or emotional crisis, the applicant may have compromised ability to regulate his emotions, with a tendency towards rigid thinking.[27]
[27]Staios Report, [7.3].
g) Availability of treatment or bail support services: The applicant has been assessed as suitable for the Court Integrated Services Program (‘CISP’). A report was provided to the Court detailing the available services should the respondent be released on bail.[28] The report states that the applicant was previously assessed for CISP in December 2021 for the purposes of his previous application for bail. On that occasion, CISP staff noted that the applicant presented with a lack of insight into family violence. He was observed to be ‘avoidant and minimising the alleged incident’. On the current assessment, he presented with limited insight into specifically unacceptable behaviour. He focussed on issues with communication and dealing with stressors. He accepted he struggled to balance his role as the family bread-winner with his relationships, and reflected that his focus on providing for his family had had a detrimental effect on his relationship with the complainant. He told CISP staff that while on remand he has engaged in self-development programs including one focused on healthy, respectful relationships. He admitted he needed support to develop better skills for dealing with conflict and to manage his emotions.
[28]Report of Fiona Devlin, Assessment & Referral Practitioner dated 7 March 2022 (‘CISP Report’).
He has expressed willingness to engage in one-on-one support with a mental health practitioner in the community and to attend a Men’s Behavioural Change program.
The report notes he has no previous mental health diagnoses, though he had received a mental health care plan prior to being arrested with a view to seeking assistance to deal with his difficult childhood experiences. He had not been able to make an appointment with a counsellor due to an eight-week wait list at the time of his arrest. An appointment has been scheduled for the applicant with his general practitioner on 11 March 2022, should he be released on bail, to obtain a mental health care plan and a referral to a suitable mental health practitioner.
If released on bail, the applicant would have regular telephone appointments with a CISP worker. CISP would arrange a further assessment with an accredited alcohol and other drugs worker to address the applicant’s issues with alcohol. Further discussions would be had regarding suitable courses and programs to support the applicant.
h) Delay: If not granted bail the applicant would remain in custody until 27 June 2022 when the matter is listed for a two day contested hearing at Melbourne Magistrates’ Court.
i) Surety: There is a substantial surety available by way of either:
(i) A $295,000 security over a residential property owned by the applicant’s brother Hamza Y;[29] or
(ii) A combined $150,000 from the applicant’s mother ($50,000), his sister Nadia E ($40,000) and his brother Hamza Y ($60,000).
[29]Affidavit of Hamza Y sworn 8 March 2022.
Taking account of all of the above circumstances in combination, the applicant submits that there are forceful reasons justifying a grant of bail sufficient to satisfy the compelling reason test.
Unacceptable risk
The applicant submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including as to residence, not to contact prosecution witnesses, to comply with the FVIO, obtain a mental health care plan and engage with a psychologist, and comply with CISP, curfew and geographical exclusion zones and orders in relation to mobile phone use. While he has been on remand, the applicant has undertaken courses centred around his current situation and gaining the tools to gain a better understanding of it. Mr Dunn also highlighted that the applicant and complainant would be geographically separated if granted bail, with a further exclusion zone on top of the FVIO proposed.
Mr Dunn submitted that the courses the applicant has done and the CISP report shows that the applicant has started the process of changing his thinking in relation to his former partner and his responses to stressful situations.
Mr Dunn also submitted that his client was aware and accepted that his relationship with the complainant was over. He had now had a period of time away from the complainant, and been warned by the informant that he cannot be in contact with her. As mentioned, the applicant’s family are also said to be on notice about not contacting or conducting surveillance over the complainant.
Mr Dunn acknowledged that the respondent’s submissions about risk were based partly on Associate Professor McEwan’s report (which is discussed in detail below). However, Mr Dunn submitted that Associate Professor McEwan’s risk assessment and opinion was based on statistics and indirect information rather that the applicant’s specific personal circumstances. When this indirect opinion is contrasted with the applicant’s specific circumstances and the bail proposal, the Court should be satisfied that the proposed conditions are sufficient to mitigate any risk to an acceptable level.
The respondent’s contentions
At the hearing, Mr Murphy for the respondent accepted that the applicant appeared to be a motivated person with respect to employment. Bail was opposed because of matters related to his relationship with the complainant. It was submitted that the applicant has failed to show a compelling reason that justifies the grant of bail. It was further submitted that the applicant poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail and interfering with a witness or otherwise obstructing the course of justice.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following:
a) Seriousness of the alleged offending and strength of the prosecution case: The respondent submits that the alleged offences represent serious examples of family violence offending: in particular the allegations of choking, the threats made to the complainant while the applicant was armed with a knife, and the use of the CED. The respondent concedes that the prosecution case relies heavily on the complainant’s evidence. Ultimately, the matter will turn on the Magistrates’ Court’s determination of her credibility. However, the respondent submits that the complainant’s mother provides supportive evidence about the nature of the complainant’s relationship with the applicant and about recent events reported to her soon after they occurred. A degree of corroboration is provided by reference to injuries sighted on the complainant and the items seized from the family home on 10 December 2021 (including the CED and the knife).
Regarding the complainant’s statement of ‘no complaint’, being her third statement, that statement was made as a result of pressure from the applicant’s family and desperation in the context of the complainant struggling to financially support her children. The respondent notes that, since the statement of no complaint was made, the complainant has advised police that she would like the criminal prosecution to proceed and will attend court to provide evidence at the contested hearing.
Mr Murphy submitted that a refusal of bail would not lead to the applicant spending more time on remand than the ultimate sentence if he were found guilty of the alleged offending. At the hearing, Mr Dunn confirmed that the applicant did not take issue with that submission, if framed around the scenario of the prosecution being successful.
b)Criminal history: The respondent conceded that the applicant has no prior history for family violence offending or offending whilst on bail. The respondent did draw attention to the applicant’s prior juvenile criminal history and submitted the Court could have regard to it, notwithstanding the fact that those offences are now quite old and the spent convictions laws currently in force in Victoria. As indicated above, I do not accept that submission and have not taken account of the applicant’s juvenile criminal record.
c)Family violence intervention order in force: In considering s 5AAAA(2)(a) of the Act, the respondent highlights a number of family violence risk indicators present in the alleged offending, including allegations of physical assaults, recent separation, escalation of violence, financial abuse, controlling behaviour, access to and use of weapons, harm and threats of harm, attempted choking, history of alleged family violence and coercive control by the applicant.[30] The respondent referred again to Olga L’s statement supporting her daughter’s account of the applicant pursuing the complainant to Sydney following when she left him, and other matters supporting her daughter’s report of family violence perpetrated by the applicant.
[30]However, I note that there have been no prior family violence reports to police between the applicant and complainant. See Affidavit in response [20]-[25] for a detailed outline of the family violence risks.
The respondent submits that the above factors demonstrate that the applicant poses a high risk of committing future family violence against the complainant, and no conditions of bail could mitigate this risk. The respondent referred to Pasinis v The Queen[31] where the Court of Appeal summarised the known long-term impact of family violence on victims.
[31][2014] VSCA 97. The Court notes the Court of Appeals’ observation at [53]: “[…]Fortunately the criminal law now gives greater recognition to the devastating effects of family violence.”
d) Family support and stable accommodation: The respondent takes issue with the applicant’s proposal to reside with his mother as it is alleged that the applicant’s family has been pressuring the complainant to withdraw her complaint and in light of the informant’s concern about a family member accessing CCTV. Regarding a proposed geographical exclusion condition, the respondent noted the limitations on such a condition given the location where the applicant would be working and where the complainant lives.
At the hearing, Mr Murphy submitted that the applicant’s mother would have little ability to effectively supervise the applicant’s bail or report any breaches because the applicant would be undertaking long hours of work at the fish and chip premises.
e)employment: The respondent points to a lack of firm evidence supporting the assertion that the applicant’s business has been suffering as a result of his incarceration other than the profit and loss summary filed in relation to the fish and chip shops’ finances. In any event, to the extent that the business is suffering, Mr Murphy questioned whether all options have been explored to help mitigate the asserted losses. It was noted that other family members have been working in the shop while the applicant is on remand.
f)The Staios evidence: The respondent submits that the information provided to Mr Staios in the neuropsychological assessment regarding the alleged offending was limited, and precluded a full assessment of risk from being undertaken.
Complainant’s views on bail
The complainant has told the informant that the applicant has prevented her from accessing money from the business and other savings accounts, and she been pressured by the applicant’s family to withdraw her complaint. However, she does not object to the applicant being granted bail. She has expressed support for the applicant being granted bail, in the expectation that she will be able to access savings accounts and that he will provide assistance for the children.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent asserts that the applicant’s alleged violence and past history of coercive control over the complainant demonstrates the risk that he would commit further offences against the complainant. Since the applicant’s remand, the complainant has commenced a new relationship and the respondent holds concern for the complainant if the applicant is released on bail.
The respondent commissioned an independent risk assessment of the applicant from Associate Professor Troy McEwan.[32] Associate Professor McEwan is a clinical and forensic psychologist who has authored the instruments used by Victoria Police to assess family violence risks. She has been in practice since 2008. Associate Professor McEwan did not personally interview the applicant, however was provided with substantial information to provide an indirect assessment of the risk he poses.[33]
[32]See Exhibit NPW-1 of Supplementary affidavit in response.
[33]Ibid [5].
Associate Professor McEwan gave evidence at the hearing. Since completing her report, Associate Professor McEwan had received the aforementioned screenshots of text messages between the complainant and the applicant. She confirmed those did not change the conclusions contained in her report. Ms McEwan was provided the applicant’s submissions in support of bail and the applicant’s chronology before she was cross-examined.
In assessing the applicant’s risk, Associate Professor McEwan based her opinion partly on the actuarial tool administered by police, to determine the likelihood of a further family violence incident occurring between the applicant and the complainant in the 12 months following the initial report.[34] Based on that tool, Associate Professor McEwan found there was some elevation in the risk the applicant posed of committing further family violence compared with the rest of the population.[35]
[34]Victoria Police Screening Assessment for Family Violence Risk (VP-SAFvR).
[35]At paragraph 21 of her report Associate Professor McEwan said: “Among cases scoring 6 in the VP-SAFvR development study, 36.63% of families went on to report a further family violence incident in the next 12 months. This is higher than the base rate of further family violence incidents in the entire population, which is 30.2%” See Report of Troy McEwan, [21], annexed to the Supplementary Affidavit in Response to an Application for Bail sworn 14 February 2022.
Associate Professor McEwan identified both static and dynamic risk factors in relation to the applicant. She identified the applicant’s jealous behaviour and the parties recent separation as dynamic risk factors. Further risk factors included the cessation of the relationship between the complainant and applicant, the complainant’s commencement of a new relationship, and her reliance on the applicant for financial support. Associate Professor McEwan concluded that such risk factors are known to be associated with physical violence towards an intimate partner and intimate partner homicide.[36]
[36]Ibid [28].
After completing her report, Associate Professor McEwan had access to the assessment report completed by CISP. She was made aware that the complainant had no objection to the applicant being granted bail. She understood that if the applicant were granted bail he would be subject to conditions on his movements and whereabouts, and he would be supervised by police. She was made aware of the bail conditions proposed by the applicant. Associate Professor McEwan was unsure whether the applicant attending a general practitioner for a mental health care plan would have any effect on his risk, as she was unsure whether the CISP report had assessed his risk, as distinct from measures that would address his wellbeing. Associate Professor McEwan conceded she had limited experience with bail applications and this was the first time she had given evidence in an application like the present one. She had never expressed opinions about conditions of bail in the past. Having reviewed the conditions of bail proposed by the applicant, she considered the conditions prohibiting contact with his former partner and complying with the FVIO were appropriate, and that the condition restricting the applicant to one phone was also appropriate. Regarding the mental health conditions proposed, which would require the applicant to seek assistance, if the intention was to assist the applicant to deal with his situation vis a vis the complainant then that would be an appropriate condition. Associate Professor McEwan was hesitant to suggest additional conditions that might be appropriate, but suggested conditions to prohibit contact (presumably with the complainant) by the applicant’s family and the need for conditions about child arrangements. Were the applicant to be released on the proposed bail conditions, Associate Professor McEwan told the Court she would still hold concerns for the complainant’s safety.
Based on the information available to her, Associate Professor McEwan opined that the proposed bail conditions might be appropriate if the alleged family violence were not so severe. Associate Professor McEwan raised concern about the risk of further highly stressful situations arising where the applicant may become angry and distressed, and may not be thinking about the possible consequences of his actions at those times. For example, he may not be thinking about the consequences of breaching the FVIO or the possible impacts on the complainant and their children, when highly distressed and angry.
Committing an offence whilst on bail
Once again Mr Murphy referred to the allegations that the applicant’s family had attempted to keep the complainant under observation since the applicant’s remand. While the informant is still investigating this, the respondent submits that the applicant will continue to control the complainant if released on bail.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent submits that the applicant is likely to contact the complainant and financially control her to dissuade her from speaking to police.
Analysis
Has the applicant established a compelling reason justifying a grant of bail?
I have had regard to the matters advanced by the applicant and the surrounding circumstances in this case. I acknowledge the financial difficulty the applicant is in, and while I note the financial information provided to the Court was limited, his fish and chip business does appear, from the summary filed, to have accrued debts. Given the applicant’s key role in the business, I accept the situation could worsen if the applicant is not granted bail, although the period until the hearing of the charges is around three months. This limits the importance of this aspect somewhat. Indeed, delay is not a highly significant matter in the current case. Further, it does appear that other family members have been assisting with the business while the applicant has been in custody.
I accept that the applicant is a hard worker and would be gainfully employed and kept occupied if granted bail, which is a matter in his favour on the question of bail. The courses the applicant has completed while in custody show that he is taking a proactive approach to making positive changes in his life.
I acknowledge the submissions put forward on behalf of the applicant that he had a difficult start in life, and was subject to controlling behaviour at the hands of his father, disrupted schooling, and difficulty readjusting to Australian life. These factors most likely contributed to his turbulent adolescence. Since that time, he has worked hard to provide for himself and his family.
I also accept that the applicant has support from his mother and siblings, and I take note of the substantial surety on offer. It does appear that there is a stable address available to the him if granted bail. I acknowledge the bail support services available to him through CISP, and that those services could assist with mental health and emotional issues related to his childhood.
The combination of matters relied on by the applicant satisfy me that the compelling reason test can be met in the present case.
Has the respondent established that the applicant poses an unacceptable risk of engaging in any of the conduct set out at s 4E(1)(a) of the Act?
However, when I turn the question of risk, it is plain that the alleged offending represents very serious family violence offending. The incidents of violence are alleged to have occurred against a background of coercive control, previous physical abuse, and financial control. The history, given by the complainant, of control within the relationship is supported by Olga L.
In both instances, the alleged offences are said to have occurred in the context of the applicant becoming jealous and angry about the complainant’s contact with people outside of the family.
I am mindful that the above matters are currently allegations only. I have borne steadily in mind the guiding principles to the Act set out at s 1B, in particular the presumption of innocence and the applicant’s right to liberty. I also accept that it is for the ultimate trier of fact, and not this Court, to determine the charges.
That being said, the Court must base its assessment of risk on the surrounding circumstances of this case, which includes an assessment of the strength of the prosecution case and the severity of the alleged offending. My preliminary assessment of the prosecution case does not lead me to view the case as weak. The current allegations appear to be supported by photos of marks and bruising on the complainant, and by the police having located both a CED in the garage of the home, and a knife in the bedroom consistent with the applicant’s account of how the alleged assault on 10 December 2021 occurred.
I have listened to the recordings of the complainant’s triple 0 calls. I note Mr Dunn’s submission that some credit issues might arise from the purported inconsistencies between what the complainant tells the operators in the three calls, and what she says in her statements to police. However, the complainant sounded as if she was frightened when she made the triple 0 calls and it will ultimately be for the trier of fact to make what they will of that evidence. The complainant has provided an account of an alarming assault by her husband wielding a CED on an occasion in October 2021. Subsequently, she decided to pack the five children into the car and relocate to another state. After she was persuaded to reconcile with the applicant and return to Victoria, on her account, she was again subjected to further offences of a seriously violent and degrading nature when the applicant realised she had a second phone.
Despite Mr Dunn’s submission that the applicant accepts that his marriage is over, there is little support for this proposition in the evidence before the Court. The Staios report does not reveal an acceptance by the applicant that the marriage is over, but it does indicate that the applicant is emotionally unstable.
Whilst Associate Professor McEwan’s evidence had the limitation that she did not personally assess the applicant or the complainant, she nevertheless made some useful observations. She opined that based on objective markers the applicant poses a moderately elevated risk of future family violence in the next 12 months when compared with the general population. More significantly, she considered that in light of the severity of the allegations, the proposed conditions of bail may not be effective in deterring the applicant, particularly if he were to become emotionally distressed by his personal circumstances. In such a situation he may not give much thought to bail conditions or the FVIO aimed at restraining his contact with the complainant.
I should add that even without the evidence of Associate Professor McEwan, my own assessment of the severity of the complainant’s allegations and the events that have transpired since the applicant’s arrest leads me to conclude that there is an unacceptable risk of future serious violence arising as a result of the family breakdown, even with the bail conditions proposed by Mr Dunn.
Evidence suggestive of the complainant having been pressured by the applicant’s family to withdraw her complaint is also concerning, especially in light of what she has told the informant regarding her past lack of financial autonomy. The evidence suggestive of the applicant’s brother Rabih accessing the CCTV at the family home on a number of occasions is also concerning.
The informant has told this Court that the complainant has commenced a new relationship and is moving on with her life. As she says in her second statement, she is now a qualified psychologist and was working in that field at the time of the 29 October 2021 incident. Although the complainant does not oppose the applicant being granted bail and she appears supportive of his continuing relationship with their children, the Court is not confident that the complainant would be safe from the applicant in view of his recent alleged behaviour. The complainant has now asserted her independence from the applicant more strongly. It must be recalled that the offending is alleged to have occurred in circumstances where she was attempting to do that – both on the occasion she was on a zoom call to a male and on the occasion she was using her emergency phone that she had kept concealed from the applicant.
I accept that there is a FVIO in place and that bail conditions could prohibit the applicant having any contact with the complainant. While there is a stable bail address and a substantial surety available from family, given their reportedly unhelpful conduct since his remand, family support cannot be afforded significant weight on the question of risk.
Ultimately, I am not persuaded that conditions of bail would sufficiently ameliorate the risk in this case to an acceptable level for the reasons expressed above. The respondent has persuaded me that the applicant poses an unacceptable risk of committing further offences whilst on bail, threatening the safety of the complainant and of interfering with witnesses, in particular the complainant.
Accordingly, bail is refused.
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