Re Application for Bail by ATL
[2022] VSC 104
•3 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0034
| IN THE MATTER of the Bail Act 1977 | Applicant |
| v | |
| IN THE MATTER of an application for bail by ATL | Respondent |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 February & 3 March 2022 |
DATE OF JUDGMENT: | 3 March 2022 |
CASE MAY BE CITED AS: | Re Application for Bail by ATL |
MEDIUM NEUTRAL CITATION: | [2022] VSC 104 |
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CRIMINAL LAW – Bail – Applicant charged with intentionally causing injury and other offences – Established diagnosis of schizophrenia – Recent non-compliance with medication and mental health treatment – No criminal history – First time in custody – Strong family support – Compelling reasons established – Unacceptable risk not established – Bail granted with strict conditions – Bail Act 1977 ss 1B, 3AAA, 4C, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Pyne | Victoria Legal Aid |
| For the Respondent | Ms A Buzo | Victoria Police |
HER HONOUR:
Introduction
The applicant, ATL, has been remanded in custody since 10 January 2022 on the following charges:
(a) Charge 1: Intentionally causing injury;
(b) Charge 2: Recklessly causing injury;
(c) Charge 3: Assault with a weapon;
(d) Charge 4: Assault by kicking; and
(e) Charge 5: Unlawful assault.
The applicant is a 23-year old woman with an established diagnosis of schizophrenia since she was 17 years old. Upon being arrested on the above charges, she was assessed as not fit for interview. She has since spent four weeks at the forensic mental health unit at Dame Phyllis Frost Centre (‘DPFC’).
Summary of the alleged offending
The complainant in this matter, Joseph D is an 83-year-old man who was living by himself in a residential home which was situated near to the address of the applicant. At the time of the offending, the applicant was residing with her mother and brothers in the family home.
Information gathered by police from the applicant and other witnesses reveals that in the three months leading up to the charged incident, a young woman believed to be the applicant was sighted on numerous occasions sitting in a white Hyundai Veloster which was parked outside or near the complainant’s home. She was noticed to be sitting in the car playing loud music. On a few occasions, according to Joseph D, the applicant approached the victim’s front door and rang the doorbell but when he asked her to leave, she complied without incident.
On 9 January 2022, shortly before midnight, he was home alone when he heard a knock on the front door. He went to answer the door and after seeing that no one was there, he walked into the backyard and towards the side gate. Upon opening the side gate, he recognised the applicant as the same person he had noticed over the preceding three months. He told her to leave, and she complied. A short while later, at 12:42am on 10 January 2022, Joseph D’s doorbell camera recorded the applicant attending at Joseph D’s front door wearing a dark coloured beanie, hooded jumper and track pants while holding a knife which she was trying to conceal in the pocket of her trousers. According to Joseph D, the doorbell rang again, and he again walked down the side path towards the side gate. On this occasion, after opening the side gate, the applicant struck him with either a rock or a brick, two or three times, to his head and his right eye. He also reported that the applicant nicked his left hand with ‘a sharp instrument,’ before pushing him to the ground and kicking him numerous times all over his body. It is alleged that the applicant then discarded two knives she had with her on the ground and left the scene in her car.
Joseph D called his son who arrived shortly after and drove Joseph D to the hospital where he received treatment before being discharged.
When police attended Joseph D’s home shortly after the incident, they located a large black handled knife, a black beanie and a small black handled knife on the east side of the house.
Photos taken by police of Joseph D when he was being treated at the hospital, show significant bruising and swelling to his right eye and lacerations above his forehead and on the top of his head.
Medical records provided record the victim suffered from ‘a defensive incisional wound to the R) forearm and L) hand’[1] and ‘complex facial bone fractures.’[2]
[1]Medical Records of Joseph D, 65.
[2]Medical Records of Joseph D, 43.
Joseph D states that since the incident, he has become too scared to live alone in his home and has resorted to living out of a suitcase as he moves between his children’s homes in an effort not to be on his own. He reports difficulty sleeping and experiences paranoia if the doorbell rings or when a car drives past his house because it brings on thoughts that it could be the applicant returning. A further affidavit was received by the Court whilst the bail application was part heard, again detailing Joseph D’s understandable fear at the prospect of ATL being granted bail.
Applicant’s Arrest and Procedural History
It is alleged by the respondent that at 5:00pm on 10 January 2022 police executed a search warrant at the ATL’s home in Sunshine North. ATL was located in her bedroom and arrested her. She showed to them the shoes she had worn the night before. When asked why they were wet, she told police she had washed them because ‘there was the old man’s blood on them.’
The applicant was taken to the Sunshine Police Station for the purpose of an interview. When there, she was examined by Dr Goonetillek via speaker-phone and found to be unfit to be interviewed.
Further examination and assessment of the applicant was conducted by Therese Wilkinson of the Forensicare Custodial Nursing Service at Sunshine Police cells on 11 January 2022. Ms Wilkinson noted that:
[ATL] was unable to express herself verbally in a coherent manner when talking about her offending. Her manner was pleasant and appropriate, she agreed that she had been in a confrontation, but was unable to give any rational explanation other than rambling reference to numbers. [ATL] appeared to understand that she was incomprehensible but when asked directly about getting treatment for her symptoms she appeared reluctant to engage in any treatment. There didn't appear to be any unstable mood at the time of her interview, however when asked about her moods she indicated these can change, her affect was restricted. [ATL] acknowledged her past treatment for psychosis and stated she was not having any treatment currently.
On 10 February 2022, bail was refused at the Sunshine Magistrates’ Court on the basis the applicant posed an unacceptable risk if released into the community. At that time, the applicant had spent about four weeks in the Marmak forensic mental health unit at DPFC. She was prescribed the antipsychotic medication Paliperidone and compliant with that medication. A Court Integrated Services Program (‘CISP’) report prepared on 9 February 2022 had recommended the applicant for case management by the program.
Prior to her bail application before this Court, the Mental Health Advice and Response Service (‘MHARS’) provided an updated report dated 23 February 2022. The updated report noted that due to a gradual improvement in the applicant’s mental state and compliance with treatment, she had been discharged from the Marmak unit and was receiving care within the mainstream prison at DPFC. The applicant was compliant with her Paliperidone medication and accepted the need for mental health follow up from Mid-West Area Mental Health Service (‘MWAMHS’) on a voluntary basis. The report noted that because the applicant had minimal insight into her offending behaviour she was a high risk of non-compliance and would require ‘assertive follow up in the community’. However, the report also noted that at the time of writing the applicant did not meet the criteria for involuntary treatment under the Mental Health Act 2014, and that any ongoing case management would be at the discretion of MWAMHS. The level of supervision that could be provided in the community would be determined following the applicant’s assessment on 10 March 2022.
The Applicant’s personal circumstances and submissions in support of bail
ATL was born in Melbourne to parents of Vietnamese heritage. Prior to her arrest on the current charges, she lived with her mother and two brothers. ATL’s father is estranged from his family and left the family home in about 2007 or 2008. In 2020, he returned home on a semi-regular basis following the start of the COVID-19 pandemic in Melbourne. However, he left again after cannabis plants were discovered at the family home. He subsequently pleaded guilty to offending in relation to the presence of the cannabis plants at the family home.[3]
[3] The applicant’s mother is currently facing charges relating to cultivation of cannabis and has a mention date of 13 April 2022 at Sunshine Magistrates’ Court, but she gave evidence stating that the plants were the responsibility of her estranged husband, as will be seen below in these reasons.
The applicant has no criminal history.
The applicant reported to the author of the CISP report that she was introduced to cannabis at the age of 13 and consumed the substance daily until she was 17.
A Mental Health Summary prepared by Forensicare records that the applicant’s first contact with mental health services occurred in 2013 when the applicant was 14 or 15 years old. In 2015, shortly before her 17th birthday the applicant experienced an episode of psychosis and was diagnosed with schizophrenia. The diagnosis was hypothesised as being due to cannabis use in her formative years. Between January and October of that year the applicant was made subject to involuntary treatment orders under the Mental Health Act 2014, both as an inpatient and on Community Treatment Orders. Records indicate that the applicant had two further presentations to mental health services in April 2016 and in July 2017.
More recently, from 2018 to 2019, the applicant was receiving treatment from psychiatrist, Dr Stella Kwong as a voluntary patient. The applicant had been being prescribed Paliperidone (anti-psychotic medication) by Dr Kwong, but she disengaged from Dr Kwong’s care and ceased taking this medication in 2019. The applicant also ceased engaging with her General Practitioner, Dr Chu Bao, in February 2020. According to her family, since ceasing to engage in her medical and psychiatric treatment, the applicant became increasingly reclusive, secluding herself in her bedroom.
Applicable Law
In applying and interpreting the Act, the Court is to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic)(‘the Act’). This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, and applying the presumption of innocence and the right to liberty.
Step 1: Show compelling reason test
The applicable threshold for bail in this case is the ‘compelling reason’ test due to the applicant’s alleged use of an offensive weapon during the course of committing an indictable offence.[4] In determining whether a compelling reason is established, pursuant to s 3AAA, I must take into account the relevant surrounding circumstances. A compelling reason may be established by a combination of circumstances.
[4]Recklessly or intentionally causing injury, The Act, sch 2, item 23 (either the rock/brick or the knives would meet the description of offensive weapons given the way they were alleged to have been used).
As submitted by the applicant’s counsel, although ‘compelling reason’ is not defined in the Act, the Court of Appeal summarised the relevant principles in Rodgers v The Queen:[5]
(1) 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.
(2) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3) A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist
[5][2019] VSCA 214 [43] referring to Re Alsulayhim [2018] VSC 570 [27]-[28] (Beach JA) and Re Ceylan [2018] VSC 361 (Beach JA).
Step 2: Unacceptable risk
Even where the Court is satisfied that a compelling reason exists, the Court must refuse bail if the respondent discharges the burden of establishing an unacceptable risk that if released on bail, the applicant would engage in any of the conduct captured by s 4E(1)(a) of the Act, and that the risk is unacceptable. Under s 4E of the Act the Court is again directed to take into account the ‘surrounding circumstances’. This includes any special vulnerability of the applicant such as a mental illness and the availability of treatment or bail support services.
At s 4E(3)(a) of the Act, the Court is directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk. Such conditions could include that the applicant comply with any existing intervention orders.
The Applicant’s submissions in support of bail
In written submissions Mr Pyne on behalf of ATL raised the following circumstances in support of the application for bail and as establishing a compelling reason:
(a) She has no prior criminal history and has never been subject to bail conditions;
(b) There was no intervention order to protect Joseph D in place at the time of the alleged offending but a full non-contact order is now in place;
(c) The applicant has an established history of serious mental illness including a diagnosis of schizophrenia. This is a special vulnerability for the purposes of s 3AAA(1)(h) of the Act;
(d) This is the applicant’s first time in custody, and in DPFC she has spent periods in isolation and in the Marmak Unit;
(e) The applicant is able to return to a stable address with her mother and brothers. The applicant’s mental health condition has settled in prison. She was recommenced on Paliperidone and is noted to have been compliant with her medication leading to discharge from the Marmak Unit;
(f) The applicant may have a defence of mental impairment to the current charge. Even if this defence were not able to be established, Verdins[6] principles would likely apply to any sentencing for the offending;
[6][2007] VSCA 102.
(g) If she succeeds with her mental impairment defence she would not be sentenced to imprisonment, and if she is unsuccessful and is found guilty of the offending, considering her youth, absence of criminal history and the application of Verdins principles a custodial disposition was not inevitable. Therefore, there is a real chance that if she is not granted bail, time spent on remand could exceed her ultimate sentence;
(h) At 23 years of age the applicant is a youthful offender. The principles relevant to sentencing of youthful offenders[7] would apply if she is sentenced for this offending;[8]
(i) The applicant is experiencing restrictions on remand due to the COVID-19 pandemic; and
(j) COVID-19 court listing backlogs combined with expected delays in obtaining evidence of mental impairment might result in significant delay. The principles set out in Re Diab[9] relating to the COVID-19 pandemic are relevant.
[7]Citing R v Mills and R v Azzopardi.
[8]In HA (a pseudonym) v The Queen, the Court of Appeal notes this was ‘a consideration of significant importance’ because continued time in custody would be akin to preventive detention ‘alien to the fundamental principles that underpin our system of justice’.
[9][2020] VSC 196.
The respondent’s contentions in opposition to bail
Key concerns raised by the respondent were Joseph D’s opposition to ATL being granted bail, the nature and seriousness of the alleged offending, and the strength of the prosecution case. The applicant is alleged to have committed a violent and unprovoked assault on an elderly victim and was submitted to remain a risk of repeating this type of offending.
The respondent queried whether cannabis consumption may have contributed to the offending and noted that the plan for the applicant to reside with her mother has the drawback that her mother currently faces charges of cultivating cannabis and that the mother’s address is the address where the applicant was residing at the time of the alleged offending. Also, Joseph D’s residence is approximately 400 metres from the mother’s address.
The respondent argued that the proposed bail conditions do not ameliorate the risk of the applicant re-offending in a like manner to an acceptable level.
The oral evidence of the applicant’s mother and brother
The applicant’s mother, Ms P, gave evidence at the hearing in this matter with the assistance of an interpreter.
Ms P told the Court that she understood her daughter is alleged to have assaulted an elderly man outside his home at night. She was aware of the date the incident was alleged to have occurred. Although she does not know his precise address, she understood the complainant lives close to the family home.
Ms P understood that her daughter was applying to the Court for bail. If granted bail the applicant’s mother was willing to have the applicant return to the family home with herself and the applicant’s two brothers. She said the applicant’s brothers are both currently in work; Yung (31 years old) works in jobs related to cooking and John (26 years old) works for a telecommunications provider. Ms P is not currently working however she has job seeker obligations connected to her Centrelink payment.
Regarding the charges for cultivating cannabis, Ms P told the court that she had been arrested and charged because the applicant’s father was not at the home at the time police attended. She explained that the applicant’s father moved out of the family home in 2007 or 2008 however, he temporarily returned at the onset of the pandemic restrictions in March 2020 and stayed there until January or February 2021. Then he stopped coming back.
She said that ATL’s father has since been charged and has accepted responsibility for the plants. Ms P has not yet been to Court for this matter and the charges are still listed at Sunshine Magistrates’ Court.
Ms P said ATL’s father still pops in on occasion to enquire about the children’s well-being but he has not stayed overnight at the house since his departure. Ms P said the applicant does not have a close relationship with her father, and that they do not talk or ask about each other. This was because ‘he was leaving the family’, and also because he got involved in things they did not like such as gambling and they did not like his friends coming to the house.
Ms P said she was very close to ATL but over the last 2 years ATL was unwell. Previously, they were very close and always together. In the past 2 years when ATL was not taking her medication ‘she doesn’t talk to me much’.
Ms P provided a detailed account of her daughter’s mental health history. She said that when the applicant first became ill in high school she was initially reluctant to take her medication and this resulted in police attending and her being placed in hospital. Shortly after this the applicant was placed on depot medication and her condition gradually improved until she was referred back to her general practitioner.
Ms P told the court that until late 2019/early 2020 she and the applicant were very close and went everywhere together. Ms P said she accompanied the applicant to all of her doctor’s appointments. She said the applicant got along well with her psychiatrist, Dr Kwong whom she listened to. Until late 2019 or early 2020 the applicant was responsible about taking her medication and would take it around 8.00pm every night after being handed it by her mother. Her mother watched her swallow her medication. Ms P was supportive of her daughter taking medication and considered that she was more affectionate and expressive towards others when she took it. For example she recalled that in 2019, when they took a trip to Vietnam together, the applicant was very affectionate towards her grandmother.
Ms P could not recall the exact date but she believed the applicant stopped taking her medication between returning from Vietnam in late 2019 and the start of the pandemic in March 2020. She said the applicant was very motivated to see Dr Kwong when she returned from Vietnam but that she stopped attending appointments at the start of the pandemic. She said Dr Kwong did not contact her to let her know the appointments had stopped.
Ms P said that from about the time the applicant stopped taking her medication she became increasingly withdrawn and non-communicative.
When asked about what efforts she made to try and help her daughter Ms P said she tried to encourage the applicant to recommence her medication but she could not force her. She said she found it difficult to seek help because of the language barrier. She tried contacting the Vietnamese Women’s Association for help and was told that, because her daughter was an adult, there was nothing Ms P could do to force her to take her medication. She said she understood she could not force the applicant to take medication and there was a need to be gentle with people who suffered with schizophrenia.
Ms P said that after she stopped taking her medication the applicant’s Centrelink payments ceased because she was no longer attending appointments and this put the family in a difficult financial position. Prior to becoming unwell her daughter was interested in ensuring she got her Centrelink benefits but she even lost interest in that. She became muddled and lost the ability to think.
Regarding the risk of the applicant taking illicit drugs, Ms P explained that all of her children were opposed to drug use and she had never and would never give cannabis to ATL. She said that she even had concerns about the applicant’s heavy cigarette smoking but she had never found cannabis in her possession. She only learned about the presence of cannabis in ATL’s father’s room through the police.
Ms P said she would welcome a bail condition which required her daughter to participate in mental health treatment and take her medication. She told the Court she would be prepared to report any breaches to police and the applicant’s mental health support team. She said she now had the phone numbers and had been in contact with the services that would treat the applicant and she said she would be prepared to contact them if she had any concerns
Regarding the language barrier, Ms P said that her sons would be able to help her contact police and mental health services if needed. She said she understood that if the applicant breached her bail, she would likely be returned to prison.
Ms P understood that if granted bail, the applicant may be subject to a condition requiring her to be accompanied at all times outside of the home. She promised the Court that she would ensure this condition were complied with. Ms P also understood there might be a condition of bail that ATL not be left at home alone. Ms P promised that she would ensure that conditions were followed.[10] Ms P was asked about whether the situation with her daughter was hard for her. She responded that she would do anything to help her daughter and it does not matter how hard it is.
[10]Ms P did explain though that she was receiving Centrelink payments and she was required to attend job network appointments, otherwise her benefit would be cancelled. She requested assistance from the Court to explain to Centrelink that she was required to remain at home with [ATL], if that was required. However, she did note that Job Network meetings could be done via phone, though she would be required to attend work in the event work was found for her.
The applicant’s 26 year old brother John also gave evidence at the hearing. He lives with Ms P and is aware that ATL is applying for bail. He was aware that if ATL was granted bail she would be subject to a number of conditions. He confirmed that he may be able to assist his mother with supervising ATL but he works as a technician for a telecommunications provider and his hours are variable. However, he is not required to work outside the hours of 9:00am to 5:00pm. John knew that ATL has difficulties with her mental health and he was aware that she used to take medication. John was not aware of whether or not ATL had ever used drugs. If ATL were granted bail to live at the family home, and he became aware that she had breached any of her conditions of bail, he would be prepared to contact police and let them know. He would also be prepared to phone ATL’s mental health team, provided he had their contact information. John’s Vietnamese is very basic, and he finds it difficult to translate. However, he was confident that he would understand his mother if she phoned him and told him ATL had breached her bail. He would then be able to communicate with police on his mother’s behalf. It is a rare occasion that John has had to interpret for his mother over the phone while at work. John understood that ATL may not be able to leave the house unaccompanied if released on bail and that Ms P would be the person who would most often be with her. He also understood ATL might not be able be at home alone. He would be prepared to contact police regarding bail compliance. If the situation arose where Ms P were unavailable to supervise ATL, he would be able to accompany her out of the home or remain home with her as needed.
John understands that if ATL is released on bail, there may be a short period before she can recommence her treatment with Dr Kwong. He understood the importance of ATL being accompanied and supervised especially during that transition period.
Availability of CISP:
The Court also heard evidence from Mr David Wedervang, the applicant’s case manager at the Court Integrated Services Program (CISP).
Mr David Wedervang confirmed that the applicant has been assessed as eligible for CISP and for monitoring of her mental health treatment and any drug and alcohol treatment that may be required. An appointment had been arranged with the Sunshine Harvester, Mid-West Area Mental Health Service (‘MWMHS’) on 10 March 2022.
Mr Wedervang was present during the hearing and heard the evidence of Ms P and John regarding the applicant’s family support and the events that preceded the alleged offending. He told the Court that if released on bail CISP could be in contact with Dr Bao and/or Dr Kwong or the Area Mental Health service to assist the applicant to apply for Disability Support Payment and to see about helping the applicant’s mother to apply for a carer’s payment.
Regarding bail obligations, CISP is able to act as a referral service, and as such arranged the referral to the Harvester Clinic. Contact had also been made with her GP, Dr Bao regarding a mental health care plan and referral to Dr Kwong.
Mr Wedervang said that CISP service would provide support and monitoring and liaise with the applicant’s family and there would be regular phone check-ins; usually involving a weekly phone call with the applicant, but depending on her needs they could phone her as often as every few days. He added that he could increase the frequency of the contact if guided by the Court. CISP would also liaise directly with the family to ensure the applicant is attending all her medical appointments. Mr Wedervang told the court that he could be a point of contact for the family if they had concerns, and he could escalate matters to police if needed. He noted that while CISP cannot physically support [ATL] to attend appointments, they can encourage her through supportive conversations about the benefits of those services and the consequences of failing to engage. He noted that impaired insight is symptomatic of schizophrenia and that judicial monitoring might be a good motivator for the applicant to engage with treatment.
Following the evidence provided by Mr Wedervang, the applicant applied to adjourn the bail application part-heard in order to follow up some concerns raised by the Court about the adequacy of plans put in place for bail. The matter was adjourned to today’s date, at which time further materials were provided by the parties including:
(a) Supplementary affidavit prepared by the applicant’s solicitor dated 1 March 2022 providing details of appointments made with Dr Stella Kwong, the applicant’s GP and the Sunshine Harvester clinic;
(b) Email from Jan Whitmore, Forensicare, dated 2 March 2022 noting that the applicant would be given a one week supply of Paliperidone tablets upon release and that medication scripts would be provided to the applicant upon attending to her GP on 4 March 2022; and
(c) Supplementary affidavit prepared by the respondent attaching an unsigned statement made by the victim regarding his views in respect of the bail application.
After receipt of the additional information, Mr Pyne argued that the Court could be assured that risks attaching to the applicant’s transition to bail could be managed safely. She would be provided with an adequate supply of medication when she left DPFC and her appointments with the GP and the Harvester Clinic were imminent, and would be followed by the appointment with Dr Kwong on 18 March 2022. Risk would be managed by the measures proposed including the planned appointment with Dr Kwong, the existence of the intervention order, the Court’s ability to impose restrictions on the applicant’s movements, the offer of supervision from the applicant’s mother and brother and their assurances that police would be notified by them about non-compliance with bail.
Ms Buzo noted that the proposed conditions did somewhat reduce the risk but the respondent maintained the concern that the applicant if released would not be an involuntary patient and so could not be forced by her mother to take her medication.
Consideration
I am satisfied that the applicant meets the test for compelling reason for a grant of bail. Whilst the alleged offending is serious, and I acknowledge Joseph D’s opposition to the applicant being granted bail, it is also necessary for the Court to balance the applicant’s mental health needs and other factors relevant to bail, such as the likely outcome of the criminal charges she faces, including the probability that she will be found not guilty on the grounds of mental impairment.
The applicant has no prior convictions, and when she was complaint with psychiatric treatment and medication, she was managing well in the community with the help of her family. Although the evidence relied on by police regarding the subject offending appears strong, it also appears quite likely that the applicant would be successful in raising a defence of mental impairment in respect to the alleged offending. She has a pre-existing established diagnosis of schizophrenia, but unfortunately, prior to being remanded, had not received treatment since early 2020. She has a special vulnerability for the purposes of consideration of bail. Fortunately, since being in DPFC she has been able to be medically stabilised with the reintroduction of prescribed medication. She requires active follow up by mental health caseworkers and medical practitioners to ensure that she remains under psychiatric treatment and mental health case management into the future. I accept the evidence of the applicant’s mother that prior to the alleged offending, she tried to encourage her daughter to remain on her medication and sought advice about what to do when her daughter withdrew from treatment. It is likely that language barriers contributed to misunderstandings in this regard.
Regarding the allegation of unacceptable risk, I am satisfied that strict bail conditions will reduce the risks attached to bail to an acceptable level.
It appears on the face of the evidence before me that cannabis use was not a factor in the alleged offending and that the applicant was not using cannabis in the lead up to the incident. I also am not persuaded that her mother was involved in any illegal activity regarding the cannabis that her former husband brought into the house.
There are some risks attaching to the proximity of the applicant’s home to that of Joseph D, but the current intervention order will prohibit her from approaching within 200 metres of Joseph D’s premises. Most importantly, the conditions I propose will provide a firm foundation for the applicant’s return to psychiatric treatment with oversight by her GP, the Harvester Clinic and her CISP worker. I am satisfied by the evidence of the applicant’s mother and brother that they will also assist in monitoring and supervising her, and will report any non-compliance with bail conditions to police. The applicant’s mother is also now aware of who she should contact if her daughter ceases her medication or withdraws from medical treatment.
Regarding judicial monitoring of bail conditions, the Court will undertake bail monitoring for as long as it appears necessary.
The regime proposed under the conditions of bail is rigorous and comprehensive and should ensure that the applicant can safely return to the community under a voluntary treatment regime. On that basis, I am satisfied that the specified risks under s 4E(1) are not unacceptable.
Accordingly, bail will be granted on the proposed conditions.
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