Bail application by Che Ashton
[2020] VSC 231
•27 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S ECR 2020 0071
| IN THE MATTER OF the Bail Act 1977 |
| -and- |
| IN THE MATTER of an application for bail by Che Ashton |
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JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 April 2020 |
DATE OF JUDGMENT: | 27 April 2020 |
CASE MAY BE CITED AS: | Bail application by Che Ashton |
MEDIUM NEUTRAL CITATION: | [2020] VSC 231 |
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CRIMINAL LAW – Application for bail – Applicant charged with Schedule 2 offences – Charges of aggravated burglary, rape and assault with intent to commit sexual offence – Crimes Act 1958 (Vic) ss 38(1), 42(1), 77(1)(b) – Significant ongoing delay caused by COVID-19 pandemic – Compelling reason established – Unacceptable risk not established by respondent – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4C and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Oldham | Slater & Gordon |
| For the Respondent | Mr D Glynn | Ms K Thomson, Solicitor for Public Prosecutions |
HIS HONOUR:
A. Introduction
For the second time, the applicant, Che Ashton, is applying for bail, having been previously refused bail on 12 February 2020 by the Melbourne Magistrates’ Court.
As the applicant is accused of committing Schedule 2 offences under the Bail Act 1977 (Vic),[1] it is accepted by both parties that bail must be refused unless the applicant can satisfy this court that a compelling reason exists that justifies the grant of bail.
[1]Items 9, 11 and 22(b).
The applicant is charged with the following offences allegedly occurring on 5 November 2019: 1 count of aggravated burglary,[2] 4 counts of rape,[3] 1 count of assault with intent to commit sexual offence,[4] 1 count of sexual assault,[5] and 2 counts of aggravated assault of a female.[6]
[2]Crimes Act 1958 (Vic), s 77(1)(b).
[3]Crimes Act, s 38(1).
[4]Crimes Act, s 42(1).
[5]Crimes Act, s 40(1).
[6]Summary Offences Act 1966 (Vic), s 24(1)(a).
B. Procedural history
On 6 November 2019, the applicant was arrested. On 7 November 2019, the applicant was charged with the offences set out above.
The applicant initially commenced an application for bail on 3 December 2019. The application was adjourned and subsequently re-listed for 12 February 2020. Bail was refused. The magistrate held the applicant had failed to show a compelling reason. It was also held that the applicant was an unacceptable risk.
The applicant was assessed in December, 2019 by the Melbourne Magistrates’ Court as “not suitable” for the Court Integrated Services Program (known as “CISP”). He was again assessed as “not suitable” recently on the basis that the applicant evidenced no desire to engage in treatment supports within the community.[7]
[7]However, the court was informed that the applicant had given instructions that, if the court were to order that the applicant obtain support in this regard, he would comply with this condition of bail.
He has been on remand since 6 November 2019 and has spent in the order of 173 days in custody as at the date of this hearing.
The matter is next listed for committal on 2 June 2020. The court was informed that there was almost no prospect of the committal commencing at that time. It was anticipated, based on other listings, that the committal is likely to be adjourned to later this year. I was told perhaps October 2020, perhaps earlier. In short, no date could be given with any certainty even though it was said a case of this nature would be expected to be given some priority.
C. The alleged offending
The circumstances of the alleged offending are very serious.
At the time, the applicant and the complainant (along with her 3 young children) resided in different units in the same unit block in Noble Park. The alleged offending took place on 5 November 2019, across 2 incidents beginning outdoors and progressing later in the evening to the complainant’s residence (whilst her 3 children were in bed). The applicant was aware that the complainant lived with her children.
A substantial portion of the alleged offending occurred at the complainant’s residence, which the applicant allegedly entered without the complainant’s consent.
The complainant alleged that she was subject to a number of forced and unwanted sexual approaches, acts and demands, including unprotected oral and penetrative sex. The applicant was also alleged to have used denigrating language towards the complainant while the alleged acts were being committed.
The complainant alleged that, in addition to physically resisting the applicant, on numerous occasions she requested that the applicant leave her home as the alleged acts occurred.
The allegations against the applicant are denied. Whilst it is conceded that the alleged offending is serious and that the prosecution’s case, at its highest, is not weak, the applicant contends that there are certain weaknesses in the prosecution’s case that will be raised in defending the charges.
D. The applicant’s background and criminal history
The applicant is 33 years old. He was born in East Melbourne. His parents separated when he was 3 years old. After the separation, he lived with his mother and saw his father on weekends. These arrangements were varied over time.
At the time of his arrest, he was living with his father in Noble Park and unemployed, having recently been made redundant. The applicant was caring for his father, who suffers from work-related injuries and has had long-term issues with alcoholism.
The applicant previously worked in the construction industry and is a qualified steel fixer. It is suggested on behalf of the applicant that he will be able to obtain employment if bail were granted. At the time of his arrest, he was waiting on news as to employment at a new construction project. Notably, during the current crisis, significant parts of the construction industry have substantially continued in operation. Accordingly, there is a real prospect the applicant will be able to obtain employment if bail were granted.[8]
[8]See further par 31 below.
The applicant remains in regular contact with his mother, who resides in Gippsland.
The applicant has a criminal history, though, until the present charges that history is somewhat dated. The last matter involved an unlawful assault related to events that occurred on 27 August 2017, for which he was convicted and fined $1000. In February 2014, the applicant was convicted for failing to comply with an undertaking. The penalty imposed on this occasion was a community corrections order of 12 months.[9] The applicant has also committed offences for driving whilst authority suspended and failure to answer bail for traffic related offences. The earliest of the offences was in 2011. A number of the traffic offences did not result in convictions being recorded.
[9]There was no suggestion the applicant did anything other than comply with that order.
With respect to the failure to answer bail, whilst not in any way trivialising such matters, it must be noted that in addition to it being confined to traffic related offences, the matter was dealt with by way of an adjourned undertaking. The applicant has not otherwise breached the Bail Act in the past.
Further, at the time the current charges were laid, the applicant was not on bail for another offence, was not subject to a summons to answer for a charge for another offence, was not at large awaiting trial for another offence, was not under a parole order and was not the subject of a community correction order or serving a sentence in respect of another offence.[10]
[10]See par 35 below.
This is the applicant’s first experience of being in custody.
In the lead up to his remand, the applicant was drinking heavily on weekends (and 4 months prior to this, had been drinking daily). He also engaged in recreational drug use from the age of 23 (including cannabis on and off, “dabbled” in MDMA, and cocaine weekly or fortnightly in the 12 months leading up to his arrest). The applicant has reported that the use of cocaine enabled him concentrate, sit down and read a book, which was something he could not usually focus on. He has been diagnosed as suffering Attention Deficit Hyperactivity Disorder. He has been the subject of drug counselling in the past.
The applicant has a supportive relationship with his maternal aunt and uncle. If granted bail, he proposes to reside with them at their home in Cobblebank, Victoria. Cobblebank is located north-west of Melbourne, on the other side of Melbourne from Noble Park and approximately 75 kilometres away.
In support of the application, the applicant’s aunt, Denise Belk, was called. Ms Belk confirmed she resides in Cobblebank, in an industrial premises with her husband, which premises also have on them a residential home.
At the premises, Ms Belk and her husband conduct a business of blasting and painting structural steel. They work closely with the construction industry. They employ 13 people presently. Ms Belk gave evidence that the business, to date, had not been affected by the current restrictions as a result of the COVID-19 pandemic.
The premises are surrounded by a wire fence of approximately “6 to 7 feet high” together with barbed wire on top of the fence. The premises are locked from approximately 7 pm each weekday until 6 am the following weekday morning. On Saturdays the premises are open from approximately 7:30 am until 2 pm. On Sundays the premises are locked at all times. The key to the gate of the fence surrounding the premises is separate to the key to the residence.
The residence consists of a 4 bedroom home. In addition to Ms Belk and her husband, another nephew resides at the premises. This nephew has a key to the gate at the perimeter of the premises. This nephew is not known to the applicant personally. No one else resides at the premises. Accordingly, there are currently 2 bedrooms not being used at the residential home located at the premises.
Ms Belk is a reformed alcoholic. She has been sober for in excess of 21 years. Either no or very little alcohol is stored at the premises, though occasionally it is as Ms Belk’s husband likes the “odd beer”.
Ms Belk described her relationship with the applicant as close. Since his incarceration (and before such visits were suspended) she has visited him approximately 5 times. She gave evidence that she and the applicant get on well and that there is a mutual trust. In the past, the applicant lived with Ms Belk for approximately 6 months while he was still at school. Further, over the years Ms Belk has seen the applicant from time to time at family gatherings. To her observations, the applicant does not drink to excess. She gave evidence that although she appreciated that the applicant “doesn’t mind a drink”, she has never seen him drunk.
Ms Belk's evidence was that her residence had been chosen if bail were granted ahead of the applicant’s mother’s address as a place for the applicant to reside because the applicant’s mother lives further away, and there were no real prospects for the applicant to get work at that alternative location. In contrast, she gave evidence that there was an opportunity for the applicant to have work at the premises, and also at other businesses in the area.
E. The applicable legislation
The Bail Act is clear that an accused is entitled to bail.[11] This entitlement however is subject to the requirements set out in the Act.
[11]Bail Act 1977 (Vic), s 4.
The overarching guiding principles in s 1B(1) of the Bail Act must be kept in mind. When deciding whether to grant bail or not, the court is bound to consider the following matters:
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
The applicant’s offending falls within Schedule 2 of the Bail Act[12] and therefore falls within the scope of a 2-step test to determine the grant of bail.[13]
[12]Schedule 2, items 9, 11 and 22(b).
[13]Section 4AA(3).
Accordingly, step 1 (the compelling reason test as set out in s 4C of the Bail Act) requires the applicant to show that a compelling reason exists justifying the grant of bail. In considering whether a compelling reason does exist, the Bail Act requires the court to have regard to the surrounding circumstances,[14] including:[15]
[14]Section 4C(3).
[15]Section s 3AAA.
(a) the nature and seriousness of the alleged offending ...;
(b) the strength of the prosecution case;
(c) the accused's criminal history;
(d) the extent to which the accused has complied with the conditions of any earlier bail order;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii) was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i) a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO[16] made against the accused;
[16]DVO stands for domestic violence order.
(g) the accused's personal circumstances, associations, home environment and background;
(h) any special vulnerability of the accused ...
Whilst individually none of these factors may be regarded as compelling when considering the circumstances of a particular case, when taken together, the result may satisfy the compelling reason test. The relevant question is: viewed as a whole, can the surrounding circumstances be regarded as compelling such that the granting of a bail order would be justified.[17]
[17]See, for example, Re Lado [2020] VSC 132, [23] (Tinney J), citing Re Maloney, unreported judgment, Supreme Court of Victoria, Vincent J, 31 October 1990.
The Bail Act is silent as to the meaning of “compelling reason”. However, the analysis proffered by Beach JA in Re Ceylan[18] has been applied on numerous occasions by this court[19] and was summarised by the Court of Appeal in Rodgers v The Queen[20] as follows: [21]
[18][2018] VSC 361, [46]-[48]. It is worth mentioning that when Beach JA initially conceptualised the meaning of “compelling reason” it was in the context of determining whether there was a compelling reason why an applicant’s detention in custody was not justified. This is not the test outlined in s 4C of the Bail Act. The actual test required by s 4C is set out in par 35 above, but for convenience, the wording of s 4C is that the court “must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail”. His Honour later addressed this in Re Alsulayhim [2018] VSC 570 at [28] stating that “[w]hile the statutory language is slightly different, the expression ‘compelling reason’ remains”.
[19]See, for example, Re Alsulayhim [2018] VSC 570 (Beach JA); Re JB [2020] VSC 184 (Kaye JA); Re JM [2019] VSC 156 (Champion J).
[20][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[21]Rodgers v The Queen [2019] VSCA 214, [43].
(i) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(ii) It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional.
(iii) A compelling reason is one which is forceful and therefore convincing – a reason which is “difficult to resist”.
If, on the basis of the above, the court is satisfied that the applicant has shown a compelling reason to grant bail, then the court must turn to step 2 (the unacceptable risk test set out in s 4D of the Bail Act). The burden of proof rests on the prosecution both as to the existence of the risk, and, if it exists, that it is unacceptable. In short, the prosecution must satisfy the court that, if bail were granted, there is an unacceptable risk that the applicant would:[22]
[22]Bail Act, s 4E.
(iv) endanger the safety or welfare of any person; or
(v) commit an offence while on bail; or
(vi) interfere with a witness or otherwise obstruct the course of justice in any manner; or
(vii) fail to surrender into custody in accordance with the conditions of bail.
Again, step 2 requires to the court to have regard to the surrounding circumstances.[23]
[23]Bail Act, s 4E(3).
F. The applicant’s materials and submissions
The applicant relies on a combination of matters to seek to satisfy the court that there is a compelling reason justifying the grant of bail. Principally, these are as follows.[24]
[24]Some further matters raised are addressed in the analysis below.
First, whilst the alleged offending is serious, these allegations are denied.
Secondly, whilst the prosecution’s case is not weak, there is a reasonable prospect of acquittal on the basis of issues concerning consent, admissibility of evidence and witness credibility in the prosecution’s case.
Thirdly, the applicant’s criminal history, as described above in paragraphs 19 to 20, is limited. None of it involved sex-related offences. Further, the most serious of the convictions involved an assault for which the applicant only received a fine, suggesting it was not at the more serious level of that offence. In addition, the prosecution does not suggest the applicant has any criminal associations.
Fourthly, the applicant has not previously breached the Bail Act, save for 1 instance where he failed to answer bail for traffic related offences 9 years ago, in November 2011. He has no history of offending or interfering with witnesses whilst on bail, and, further, was considered unlikely to reoffend whilst on bail in his psychological assessment report, though it was stated in that report certain conditions should be mandated.
Fifthly, at the time of the alleged offending the applicant was not on bail or subject to any of the other circumstances listed in s 3AAA(e) of the Bail Act.
Sixthly, there is a personal safety intervention order in place that names the complainant and her 3 children as protected persons, and which remains in force until further order.
Seventhly, the complainant has moved to a new undisclosed address. The applicant has no knowledge of the details of this new address.
Eighthly, at the time of his remand, the applicant was living with, and providing support to, his father (who is unable to work due to previous workplace injuries). If granted bail, he will no longer reside in Noble Park, and will instead reside a significant distance away in Cobblebank with his maternal aunt and uncle. This arrangement will provide a stable bail address, coupled with strong family support.
Ninthly, the applicant does not purport to have any specific vulnerabilities. However, having been recently diagnosed with adult Attention Deficit Hyperactivity Disorder, his release on bail would allow him to seek further information and treatment in relation to his diagnosis. Although the applicant stated in the CISP report that he did not believe Attention Deficit Hyperactivity Disorder was a current or ongoing concern,[25] it was accepted that further assessment may be appropriate and that the applicant would comply with any court order requiring that he obtain support for this or any subsequent diagnosis.
[25]The applicant stated in respect of his Attention Deficit Hyperactivity Disorder that he had “grown out of it”.
Tenthly, the COVID-19 pandemic and consequential steps taken by the Victorian Government to reduce the risk of the public, court staff and jurors being exposed to COVID-19 are leading to significant delays in a trial date being set, a factor which was not present at the last application for bail in February 2020. Given the delays already in the system, it appears likely the applicant's trial will be delayed for a not insignificant period of time, with a real prospect that the matter will not be fixed for trial until 2022.
Eleventhly, the social restrictions resulting from COVID-19 will potentially impact on the applicant’s ability to properly prepare his defence. It was submitted that, in the current circumstances, professional visits to Victorian prisons are very difficult to get, and telephone and video-link resources are in shortage, thereby limiting communications between the applicant and his legal team. Further, the availability of such resources is extremely limited as they are being used to fulfil a range of functions that would normally be fulfilled by face-to-face visits. The applicant pointed to a Canadian decision as authority for the proposition that the impacts of COVID-19 are a matter for judicial concern.[26]
[26]See R v Rajan [2020] ONSC 2118, esp at [54] (DE Harris J). There is ample authority of this court that the current COVID-19 pandemic may be a relevant surrounding circumstance on an application such as this.
Finally, it was contended that the conditions the applicant was willing to agree to, considered in the context of all the surrounding circumstances, gave rise to the requisite compelling reason. In the same vein, it was submitted that any risk the applicant may pose may be more than satisfactorily addressed by the imposition of appropriate conditions.
G. The respondent’s materials and submissions
The application for bail is opposed.
The respondent’s position is essentially twofold. First, it was submitted that the applicant has not shown a compelling reason justifying the grant of bail. Secondly, initially at least, it was contended that there is an unacceptable risk that the applicant will endanger the safety or welfare of the community; that the applicant will interfere with witnesses, or otherwise obstruct the course of justice; that the applicant will fail to surrender into custody in accordance with the conditions of bail; and that the applicant will commit further offences whilst on bail. The second and third of these matters were not pressed in oral submissions. On the evidence (or lack of it) before the court, this was plainly the correct position to adopt.[27]
[27]See further pars 75-76 below.
In support of this position, the respondent relies largely upon the following surrounding circumstances:
(1) The alleged offending is very serious, and the acts were brazen and violent. The applicant’s criminal history also includes a prior offence for violence. Further it was submitted his criminal history suggests a propensity to disregard court orders. Furthermore, the alleged offending is an escalation from his prior offending history. However, it was conceded that the applicant is not a risk for family violence offending.
(2) At the time of the alleged offending, the complainant was vulnerable as she lived alone with her 3 children and the offending took place at night, in proximity to her children, and when few other people would be around to witness the alleged incidents. The complainant is extremely traumatised and has expressed significant concerns for her safety and the safety of her children.
(3) It is submitted there is a strong prosecution case, with forensic evidence and witnesses (including 1 of the complainant’s children) who will corroborate the complainant’s version of events. Further, that the applicant has previously denied ever having had sex with the complainant throws doubt on the fact that consent is a live issue.[28] It was submitted that, accordingly, it is therefore difficult to accept the applicant’s position that there is a reasonable prospect of acquittal.
[28]This denial was contained in the police record of interview.
(4) The applicant has been diagnosed with adult Attention Deficit Hyperactivity Disorder. Attention Deficit Hyperactivity Disorder impacts upon executive functions, emotional regulation and impulse control. Further, the applicant has a history of regular heavy drinking and use of recreational illicit drugs. There is evidence to suggest that the applicant was affected by alcohol on the night of the alleged offending. The applicant has recently, and not for the first time, denied any problems in this regard. In those circumstances, it was submitted that he posed a real risk of not being able to address these underlying issues if he were granted bail.
(5) In light of the COVID-19 pandemic and the consequential high unemployment rates in Victoria, it is difficult to assess the applicant’s employment prospects.
(6) The prosecution’s position was that the delay that will be experienced in the progress of this matter due to COVID-19 is not disproportionate, given the strength of the evidence and the seriousness of the allegations. Further, it was submitted that the relevant period to look at was any delay up to the committal hearing rather than the delay of a trial. It was submitted that it would be incorrect to focus upon any delay that might arise after the committal. In that regard, it was put that the applicant could make a further application for bail after the committal when the facts were better known and assuming at that time there was an unsatisfactory delay.
(7) Further, should the applicant be found guilty of the charges, a significant term of imprisonment is likely to be imposed, which reflects the maximum penalties applicable for each charge as set out in the Crimes Act 1958 (Vic)[29] and the Summary Offences Act 1966 (Vic).[30] In addition, it was highlighted that rape has a standard sentence of 10 years.[31] Accordingly, any time spent on remand would be far less than any sentence that might be imposed if convicted.[32]
[29]For aggravated burglary (Crimes Act, s 77) and rape (Crimes Act, s 38) the maximum penalty is 25 years imprisonment. For assault with intent to commit sexual offence (Crimes Act, s 42) the maximum penalty is 15 years imprisonment. For sexual assault (Crimes Act, s 40) the maximum penalty is 10 years imprisonment.
[30]For aggravated assault of a female (Summary Offences Act, s 24(1)(a)) the maximum penalty is 6 months imprisonment.
[31]Crimes Act, s 38.
[32]This submission was not disputed.
(8) If granted bail, it is a concern that there will be inadequate monitoring of the applicant in the community as the reporting obligations for those on bail have been temporarily suspended due to COVID-19.[33]
(9) Concerns for safety have been expressed by residents of the unit block where the alleged offending took place.
[33]This announcement was made last week by the Victorian government. For some details of this, see ABC News, “Coronavirus restrictions give people on bail temporary reprieve from reporting to Victorian police stations” (20 April 2020) < type="1">
Finally, it was submitted that the relevant circumstances, neither individually nor when considered as a whole, were such that the court could find a compelling reason existed to justify the grant of bail.
H. Analysis
As identified above, the alleged offending is very serious, and this is especially so given the nature of the offences involved and the presence of 3 young children at the residence where the alleged offending took place. It is clear the case against the applicant is far from weak. Further, evidence of the fear and apprehension the complainant and her family now suffer weighs heavily.
That said, material delay in the progress of the prosecution of criminal charges may also weigh heavily in favour of the granting of bail.[34] To date, whilst the COVID-19 pandemic would not, ordinarily, of itself, give rise to a compelling reason to justify bail being granted, it is a surrounding circumstance that the court presently must take into account when considering each individual application for bail.[35]
[34]See, for example, Cox v The Queen[2003] VSC 245, [15]-[20] (Redlich J), and the cases there cited. See also Re Mallouk [2019] VSC 661, [51]-[52] (Lasry J) for consideration of delay in the context of the compelling reason test.
[35]Compare Re Diab [2020] VSC 196, [23], [28], [38], [41] (Beach JA) (a case concerned with the existence or otherwise of exceptional circumstances).
The evidence shows that it is almost beyond doubt that the current circumstances arising out of the COVID-19 pandemic will give rise to significant delay in the prosecution of this particular case, even if the position is considered only up to the committal stage. There is a real prospect that many further months will pass before a committal hearing will be able to be held. There remains considerable uncertainty as to when this might be. Without in any way being critical (in light of the current situation, the position the parties find themselves in is largely beyond their control), the delay and uncertainty are self-evidently unsatisfactory. For completeness, naturally the delay with the committal hearing is also likely to result in a significant consequential delay of the scheduling of any trial for this matter,[36] albeit the length of that delay cannot be stated with any certainty.[37]
[36]There has already been a significant period of time that has elapsed since jury trials were suspended on 16 March 2020 by the Victorian government.
[37]Cf Re Diab [2020] VSC 196, [41].
Further, the COVID-19 pandemic gives rise to other issues beyond delay that are relevant, including that time in custody may be “very difficult” or “significantly more difficult than usual”.[38] The uncontroversial and relevant fact is that some restrictions have been imposed in prisons that would not otherwise have been imposed if it were not for the current COVID-19 pandemic.
[38]Re Diab [2020] VSC 196, [38(3)].
Corresponding with the Victorian Government’s social distancing mandate,[39] Corrections Victoria has suspended all personal visits to correctional facilities. This could be expected to compound the isolation faced by those on remand.[40] This factor may also be viewed in light of the applicant’s submission that the COVID-19 pandemic may also result in difficulties in properly preparing the applicant’s defence.
[39]For further information relevant to “social distancing” see Department of Health and Human Services, “Chief Health Officer Update: Coronavirus COVID-19 daily update” (27 April 2020) < Victoria, “Our response to coronavirus (COVID-19)” (6 April 2020) < See also Re Diab [2020] VSC 196, [38(3)].
It may be accepted that it may be more challenging than usual for an accused’s legal representatives to prepare a defence, but it should also be noted Corrections Victoria has carved out an exception to this suspension on visits for all essential professional visits. Such visits are currently permitted to take place as “non-contact or box visits”.[41] In light of this, presently at least, the pandemic is not a barrier to the preparation of an effective defence. So much was conceded by the applicant’s counsel. But it may be more difficult to facilitate satisfactory interaction between the applicant and his defence team, which is a further matter to take into account.
[41]However, Corrections Victoria is encouraging and facilitating phone and video calls where possible: Corrections Victoria, “Novel coronavirus (COVID-19): Information for courts regarding Corrections Victoria Operations” (April 2020), p 3.
The consequences of the pandemic are constantly changing. The court must assess matters as best as it is able at the time of the application. At present there are no confirmed cases of COVID-19 in Victorian prisons. It has been previously found that, were the virus to infect prisons, it is likely that the rate of infection and risk of transmission would be much greater than that of the general community, and therefore would be a cause for significant concern.[42] However, the level of new infections in the Victorian community has decreased dramatically in recent times. On the evidence before the court, and the public information available, it is not possible to form a view with any certainty as to whether COVID-19 infections in the Victorian prisons in the future are likely or not.
[42]Re Broes [2020] VSC 128, [39] (Lasry J).
The recent introduction of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) should be referred to.[43] This legislation, among other things, contemplates judge-alone trials for criminal proceedings.[44] The legislation provides that an order for trial by judge alone may only be made with, amongst other things, the consent of the accused.[45] Without this matter having progressed to committal, the applicant’s position was that it would not be appropriate or fair for the applicant to do anything other than maintain his right to a jury trial so as to preserve the ability to canvass a wider view of the community in determining the issues that will be before the court. Nothing was said in opposition to this submission.
[43]The Act was passed last Thursday, 23 April 2020.
[44]COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), Part 3.8 – Amendment of Criminal Procedure Act 2009.
[45]Ibid s 32, inserting Criminal Procedure Act 2009 (Vic) s 420D(1)(b).
Trials by judge alone may possibly assist with reducing the delays faced by the justice system (assuming appropriate judicial resources are available), however, assuming each of the other prerequisites are met, ultimately the decision whether or not to proceed in this manner is a matter for the applicant. If the appropriate time to consider this issue arises in the future, and trial by judge alone is not consented to, the fact of likely significant delays remains. In any event, this recently introduced alternative manner of proceeding with the trial does nothing to alleviate the unsatisfactory delay leading up to the committal.
In summary, it may be the case that at, or following, committal, the applicant opts for this alternate path, the trial judge makes an order for judge alone and the delay before any trial may be reduced. Regardless, in all the circumstances, there is significant delay in this case stemming from the COVID-19 pandemic, whichever course might be adopted in the future.
Having outlined the position with respect to the COVID-19 pandemic and its present consequences for the applicant, these facts, alone, do not give rise to a compelling reason. But considered in the context of all of the surrounding circumstances of the applicant,[46] in my view, the applicant has established that a compelling reason exists that justifies the granting of bail. Without in any way being exhaustive, the significant delays, the stringent conditions to be imposed (including with respect to the location and features of the premises at which the applicant will reside), the applicant’s prospects of employment, his limited criminal history and lack of any criminal association, point to a compelling reason justifying the granting of bail.
[46]See Re Diab [2020] VSC 196, [38(4)], where Beach JA noted that “much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail”. See also Brown v The Queen [2020] VSCA 60, [48] (Priest and Weinberg JJA).
In making this finding, I have taken into account that any delay is unlikely to result in the applicant, if found guilty of the charges, spending more time on remand than the significant term of imprisonment that would likely be imposed (reflecting the maximum penalties applicable for each charge).[47] However, this fact, nor any of the other matters raised in opposition, does not expunge the existence of, or outweigh the factors giving rise to, the compelling reason.
[47]See par 55(7) above.
Moreover, it is no answer that the applicant may apply for bail again later. Undoubtedly, things will become clearer as time goes on. That fact does not relieve the court of the obligation to address the application today on its merits.
In addition, the prosecution have not established that the applicant is an unacceptable risk in light of the conditions the applicant has agreed to have imposed, again in the context of all the relevant surrounding circumstances. The conditions ensure that the applicant will be in a stable environment where he is likely to receive a significant amount of support.
Further, somewhat unusually, the premises at which he is to be located provide a number of additional levels of security that would not ordinarily be available on an application for bail. The location is somewhat remote, highly secure and a long distance from where the applicant had previously resided (which is adjacent to where the alleged offending occurred).
The respondent raised the concern that Ms Belk may be too “trusting” of the applicant, and therefore not suitable to be placed in the position of responsibility that she would assume in respect of the applicant if he were granted bail. However, Ms Belk has informed the court on oath that she would report immediately to the police any breach of any conditions of bail by the applicant. This evidence was not the subject of challenge. It is also noted that there is a police station located close to the premises at which the applicant will reside.
Furthermore, it is of considerable significance that the complainant’s location is now unknown to the applicant. Additionally, there is a personal safety intervention order in place naming her and her children as the protected persons. If there had been any risk with respect to contacting the complainant, this has been all but eliminated, especially in light of the condition to be imposed preventing the applicant from using a mobile phone.
Moreover, the granting of bail will provide the applicant with the opportunity to assess whether he in fact has Attention Deficit Hyperactivity Disorder (or any other related condition) and receive any treatment necessary, which opportunity he would not otherwise be afforded if he remained on remand.
Further observations
Finally, it is necessary to say something about the evidence put before the court in opposition to this application. The affidavit filed on behalf of the informant[48] expressed a number of beliefs, and contained evidence of events, that did not assist the court in determining the proper outcome of the application. To elaborate, beliefs about certain matters concerning the conduct of the applicant in the future were expressed without the provision of any basis for them.[49] When asked about how such matters were put, counsel stated that those parts of the affidavit were not relied upon. Further, when the relevance of some factual matters in the affidavit was queried (given there was no apparent connection with the applicant, nor any evidence of any knowledge by the applicant of the relevant events), those matters were also not relied upon. The approach ultimately taken was plainly appropriate.
[48]The informant was not the deponent.
[49]As the various matters were withdrawn, it is not appropriate to go into the detail in giving these written reasons.
The evidence put before the court in opposition to a bail application should not contain inappropriate or irrelevant evidence, including the details of totally unsubstantiated beliefs plainly designed to be prejudicial to the application. The court needs to be able to be confident that evidence put forward has been done so on a proper basis. Otherwise, the process involved may be unsatisfactory, including by reason of the creation of false issues and the unnecessary delay in the hearing of the application.
Finally, the general submission put that, because reporting obligations had been suspended by the Victorian government as a result of the COVID-19 pandemic, this gave rise to inadequate monitoring was of little merit.[50] In fairness, opposing counsel readily accepted an alternate proposal from the court as to how this perceived difficulty might be addressed.[51] However, if the approach is to be taken that the current suspension of reporting obligations may give rise to an additional factor against the granting of bail, the informant should properly explore what other reasonable possibilities are available in lieu of the usual condition and make them known to the court.
[50]See par 55(8) above.
[51]See par 78(5) below.
J. Conditions of bail
For the reasons stated above, bail is granted on the applicant’s own undertaking and on the following conditions.
(1) The applicant is to reside with his maternal aunt and uncle, Mrs Denise Belk and Mr Wayne Belk, at [ADDRESS OF THE PLACE OF RESIDENCE], Cobblebank, in the State of Victoria (“Place of Residence”).
(2) The applicant is not to be absent from his Place of Residence between the hours of 7 pm and 6 am (“Curfew Hours”), and is to present himself at the front door of the Place of Residence during the Curfew Hours if and when called upon to do so by a member of Victoria Police.
(3) Except in a life-threatening emergency, at no time is the applicant to be in possession of a key to the gate forming part of the perimeter of the Place of Residence.
(4) Subject to any law, or direction from the Department of Health and Human Services, to the contrary,[52] the applicant is to report to Melton Police Station every Monday, Wednesday and Friday between the hours of 6 am and 7 pm.
[52]This is to take into account any law or direction of the Department of Health and Human Services introduced as a result of COVID-19 and allows for the possibility that those laws may lapse whilst the applicant remains on bail.
(5) For any period of time that the law or any relevant direction from the Department of Health and Human Services prevents the applicant complying with the condition set out in the preceding paragraph, the applicant is to be located at the Place of Residence at 6 am on every Monday, Wednesday and Friday to receive any telephone call by the police at the telephone number of the Place of Residence, namely [LANDLINE PHONE NUMBER OF THE PLACE OF RESIDENCE].
(6) The applicant is not to use alcohol.
(7) The applicant is not to use a drug of dependence as defined under the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(8) The applicant is not to possess or operate a mobile telephone.
(9) The applicant is not to enter the suburb of Noble Park; more specifically, the area within East Link, Corrigan Road, the Princes Highway and Cheltenham Road.
(10) The applicant is not to contact the complainant, her children or any witnesses for the prosecution, other than the informant or her nominee.
(11) By 4 pm on 11 May 2020, or such further time as the court may order, the applicant is to obtain a referral from a medical practitioner to attend and consult with a psychiatrist to assess whether the applicant has Attention Deficit Hyperactivity Disorder or any other related matter.
(12) The applicant, within 48 hours of making an appointment, is to provide the details of the appointment to the informant and within 48 hours of the appointment notify whether or not he has attended the appointment.
(13) By 4 pm on 25 May 2020, or such further time as the court may order, the applicant is to attend and consult with a psychiatrist the subject of the referral referred to in the previous paragraph (11) above and provide any subsequent report to the court integrated services program for it to be assessed.
(14) The applicant must act in accordance with any direction the applicant may receive as a result of that assessment, or any other direction received as a result of the orders made in the preceding 3 paragraphs.
(15) The matters the subject of the previous paragraph are subject to any further order of the court, provided any application to the court is made within 14 days of any direction which the applicant may choose to challenge. For clarity, this proviso does not in any way relieve the applicant from complying with the conditions set out above.
(16) The applicant surrender any passports held by him within 48 hours of release and not to apply for any further passport.
(17) The applicant not attend any points of international departure.
(18) The applicant not to leave the State of Victoria.
(19) The applicant is to attend the Melbourne Magistrates’ Court on 2 June 2020 for committal and surrender himself, and thereafter as directed by the court.
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