Re Application for Bail by Swain
[2017] VSC 55
•17 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0014
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by DARRYL SWAIN |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 15 February 2017 |
DATE OF RULING: | 17 February 2017 |
CASE MAY BE CITED AS: | Re Application for Bail by Swain |
MEDIUM NEUTRAL CITATION: | [2017] VSC 55 |
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CRIMINAL LAW – Bail – Applicant charged with inter alia contravening family violence intervention order – Whether applicant required to show cause – Statutory interpretation – Meaning of ‘violence’ – Whether unacceptable risk – Bail granted – Bail Act 1977 s 4(4)(ba)
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr A D Trood | James Hazlett |
For the Respondent | Mr P J Pickering | Office of Public Prosecutions |
HER HONOUR:
The applicant, Darryl Swain, applies for bail in respect of seven charges:
(a) Charge 1: Attempt to pervert the course of justice on 27 November 2016;
(b) Charge 2: Attempt to pervert the course of justice on 28 November 2016;
(c) Charge 3: Prohibited person in possession of a firearm between 20 October 2016 and 15 November 2016;
(d) Charge 4: Prohibited person in possession of ammunition between 20 October 2016 and 15 November 2016;
(e) Charge 5: Contravening a Family Violence Intervention Order (‘FVIO’) with intention to cause harm or fear on 27 November 2016;
(f) Charge 6: Contravening a FVIO on 27 November 2016; and
(g) Charge 7: Possess drug of dependence on 10 January 2017 (two tablets alleged to be ecstasy).
The applicant has been remanded in custody and is currently housed at Port Phillip Prison until a committal mention on 6 April 2017. Bail was refused in the Magistrates’ Court on 11 January 2017. Before me, the Crown opposes bail, arguing that the applicant is required to show cause why his detention in custody is not justified and that he is also an unacceptable risk of interfering with witnesses, obstructing the course of justice, endangering the safety and welfare of the public or committing offences if granted bail.
The applicant submits that he is not required to show cause why bail should be granted, that the presumption in favour of bail applies to his application, and that the informant’s concerns that he poses an unacceptable risk in the ways described are not justified.
The respondent contends that the applicant is required to show cause pursuant to s 4(4)(ba) of the Bail Act 1977.
Section 4(4)(ba) provides:
(4) Where the accused is charged—
…
(ba)with an offence against section 37, 37A, 123, 123A or 125A of the Family Violence Protection Act 2008 of contravening a family violence intervention order or family violence safety notice (as the case requires) in the course of committing which the accused is alleged to have used or threatened to use violence and—
(i)the accused has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which he or she used or threatened to use violence against any person; or
(ii)the court is satisfied that the accused on a separate occasion used or threatened to use violence against the person who is the subject of the order, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence; …
the court shall refuse bail unless the accused shows cause why his detention in custody is not justified…
Relevantly for the purposes of s 4(4)(ba), the applicant has been charged with two offences against ss 123 and 123A of the Family Violence Protection Act 2008 arising from the same factual allegations (Charges 5 and 6). The nature of the allegations, as the respondent puts it, is that the applicant tried to coerce his wife to lie when giving evidence before a court at a hearing of an application to determine whether he could access firearms. I should add that the application in question never took place.
The applicant accepts that he comes within the circumstance specified in s 4(4)(ba)(i), having been found guilty without conviction of unlawful assault on 17 August 2016 at the Latrobe Valley Magistrates’ Court. However, he challenges that the current charges are such that he ‘used or threatened to use violence’ within the meaning of that phrase in s 4(4)(ba).
The respondent submits that I should construe the word ‘violence’ in s 4(4)(ba) to mean ‘family violence’ within the definition of the Family Violence Protection Act 2008.[1] He concedes that if I concluded otherwise, then the allegations do not come within the plain meaning of ‘used or threatened to use violence’, and the applicant is not in a show cause situation.[2]
[1]Family Violence Protection Act 2008 (Vic) s 5(1).
[2]This was the position taken by the magistrate below.
Without attempting to consider all the differences between the plain meaning of the word ‘violence’ and the statutory definition of ‘family violence’, it is sufficient to make two observations. The first is that the statutory definition of ‘family violence’ is narrower than the plain meaning of the word ‘violence’ in the sense that it is limited to behaviour by a person towards a family member of that person.[3] The second is that, leaving aside the first observation, the behaviour defined as ‘family violence’ is more expansive than the plain meaning of the word ‘violence’.[4]
[3]Or behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of that behaviour: Family Violence Protection Act 2008 (Vic) s 5(1)(b).
[4]It has been said by the Court that the ordinary meaning of the word ‘violence’ goes beyond the use of physical force and includes threats or menaces to induce fear or to intimidate in order to remove or nullify resistance: R v Galas; R v Mikhael [2007] VSCA 304.
In my view, the word ‘violence’ in s 4(4)(ba) is used in a descriptive sense to indicate the manner in which an offence was allegedly committed, and not by reference to any particular statutory definition. So much is clear from the language and context of the provision as a whole, the use of the word ‘violence’ in subs (ba)(i) and (ii), in similar provisions within the Bail Act 1977, and from the amendment history of the provision.
Subsection (ba)(i) refers to ‘violence against any person’ [emphasis added]. I can see no reason to read down subs (ba)(i) such that it is only confined to family members. To do so would be contrary to the express words of the provision.
To the extent that the class of persons declared in the subs (ba)(ii) refers to ‘violence against the person who is the subject of the order’—said person being a family member—it could be argued in favour of the respondent that it would not be otiose to import the ‘family violence’ definition into subs (ba)(ii). However, in dealing with behaviour raising the index of risk to which the provision is directed it is my opinion that a narrower meaning was intended as encompassed by the plain meaning definition of ‘violence’.
The precise wording of subs (ba)(i) and (ii) is repeated in s 4(b)(i) and (ii) in relation to the offence of stalking and s 4(4)(bb)(i) and (ii) in relation to s 100 of the Personal Safety Intervention Orders Act 2010, neither of which are confined to the family context. The identical language strengthens the presumption that the legislature intended the word ‘violence’ to be used consistently within the Bail Act 1977 and therefore to be given the same meaning.
The history of the amendments to the provision also supports an interpretation that the word ‘violence’ is to be given its ordinary meaning. Section 4(4)(ba) was inserted into the Bail Act 1977 by the Crimes (Amendment) Act 1994.[5] The language of the provision was identical to its current form, save for the fact that it referred to the Crimes (Family Violence) Act 1987, which was the relevant legislation governing intervention orders at the time and which did not contain a definition of violence or family violence. When the Family Violence Protection Act 2008 came into force, s 4(4)(ba) of the Bail Act 1977 was amended to refer to the relevant provisions of the Family Violence Protection Act 2008.[6] It was updated in 2012 to mirror new contraventions introduced into the Family Violence Protection Act 2008,[7] but has otherwise remained unchanged. If the legislature’s intention was to change the meaning of the word ‘violence’ in s 4(4)(ba) to ‘family violence’ within the meaning of the Family Violence Protection Act 2008, it would be reasonable to expect that there would have been some express amendment to incorporate the definition.
[5]Crimes (Amendment) Act 1994 (Vic) s 7.
[6]Family Violence Protection Act 2008 (Vic) s 233.
[7]Justice Legislation Amendment (Family Violence and Other Matters) Act 2012 (Vic) s 31.
In my view, the respondent’s submission must be rejected.
In my view, the applicant is not required to show cause why bail should be granted and it is for the prosecution to establish unacceptable risk if bail is granted.
The charges laid by the informant, Senior Constable Stewart, in the application before me had their genesis in ongoing court proceedings in the Latrobe Valley region involving the applicant and his wife. His wife was named as the affected family member (‘the AFM’), or protected person, in proceedings initiated by police[8] on 10 September 2015 pursuant to the Family Violence Protection Act 2008.
[8]Police member Jayden Neilsen.
The circumstances are somewhat unusual. Both the applicant and his wife have previously been married and each of them have adult children from prior relationships. The applicant is aged 58 and this is his first time in custody. His wife, who for convenience I will refer to as the AFM, is aged 54 and is an educated person with a background in teaching. She is also said to suffer mental health vulnerabilities. The applicant and the AFM have been associating with each other since about 2010 and became married in December 2012.
At the time the interim order was first sought by police and granted by the court, it set down nine conditions, including non-approach and non-contact conditions. The order was made in Mr Swain’s absence[9] at the Latrobe Valley Magistrates’ Court on 10 September 2015. The interim order was further extended and the hearing of the matter was adjourned in Mr Swain’s presence on 20 October 2015 at the Korumburra Magistrates’ Court sitting at the Latrobe Valley complex.
[9]Along with a note that it was without consent.
On 31 October 2015, the interim order was further extended by the same court.
On 15 December 2015 a variation to the interim order was granted.[10] This occurred in Mr Swain’s absence.[11] The varied conditions of the interim order included that Mr Swain was required to return a washing machine to the AFM within two days of service of the varied order and that Mr Swain might communicate with the AFM through a lawyer or mediator but only if he did not commit family violence while doing so.
[10]Also at the Korumburra Magistrates’ Court sitting at the Latrobe Valley complex.
[11]Again, Mr Swain’s lack of consent to the interim order was noted on the form issued by the court.
At that time, the applicant was residing at the Shady Creek address where he had lived for many years and the AFM was living elsewhere.
On 16 February 2016, at the same court, there was a further application for a variation of the interim order. The variation was granted by consent of the parties and an intervention order was made in Mr Swain’s presence and with his agreement.[12] The varied conditions constituted a reduction of conditions so that there were to be three remaining conditions which prohibited the commission of family violence, intentional damage to or threats to damage the property of the AFM or getting another person to do the prohibited behaviours.
[12]The court extract noted his consent to the order without admissions of the allegations in the complaint.
A further variation was made at the same court on 1 July 2016 resulting in an order with only the first two conditions as listed in the February 2016 order to remain extant.[13]
[13]This order was also made by consent but without admissions.
It might be thought that the safety concerns for the AFM had ameliorated by the latter part of 2016 in light of the progressive reduction in family violence protective conditions over the preceding 14 months. Nevertheless, it was as a result of the attendance of Mr Swain and the AFM at the Latrobe Valley court complex on 28 November 2016 that a further variation was sought by police and a full order with nine conditions was then re-imposed, including non-contact and non-approach conditions.
It was also as a result of events occurring at the court that day that the current charges arose, although the applicant was not arrested and charged with the current charges until 10 January 2017.
There was therefore a significant passage of time during which the status quo remained after the more fulsome intervention order was put in place on 28 November 2016.
The explanation for this delay was said to be that the informant, Senior Constable Stewart, was still conducting further background investigations after obtaining a statement from the AFM on 4 December 2016.
I regard this passage of time as very significant to the outcome of the current application, given that it is not alleged that the applicant misbehaved in any way during that hiatus.
Regarding the events of 28 November 2016, it appears that Mr Swain had lost access to his firearms as a result of the previous intervention orders granted in favour of the AFM. He wished to apply to the court to have himself declared a non-prohibited person so that his right to possess firearms could be restored. He had had a number of registered firearms in his possession at the time the original intervention order was imposed but he was not permitted to retain those items. It appears that the applicant had been a keen hunter and shooter for many years and participated in that activity socially with friends from the Warragul area.
It was expected by Mr Swain’s lawyer that the AFM was attending court on 28 November 2016 to support the abovementioned application. However, upon her arrival and being referred for independent legal advice, the AFM reported that she did not want the applicant to get his guns back and that he had pressured her to support his application and had pressured her to deny earlier allegations of threats made by him that he would use his firearms against her. The AFM told the police that she wished to reside at a jointly owned rural property at Cobungra near Dinner Plains and was content that Mr Swain remained at the address in Shady Creek.
By way of further background, the relationship between the applicant and the AFM was said to have deteriorated around 2015 leading to the AFM preparing a police statement on 9 September 2015 alleging that she had been experiencing verbal abuse in the course of the relationship and that on one occasion the applicant pushed her into the refrigerator, which she believed caused her to tear a rotator cuff in her shoulder. She also complained in the September 2015 statement that she thought Mr Swain was having an affair and she tried to look through his telephone, whereupon he grabbed the phone from her and threw a drink at her.[14] The statement contained further allegations of past threats of violence by the applicant and the AFM indicated that she had been experiencing physical, mental and verbal abuse and felt trapped in the relationship.
[14]The drink in question was a glass of wine and is referred to below at [33].
Although several charges were laid based on that September 2015 statement and FVIO proceedings were taken by the police in favour of the AFM, the police charges that alleged actual family violence were ultimately reduced to a single charge of unlawful assault in which the allegation was that the applicant threw a glass of wine in the victim’s face in the course of an argument. The applicant pleaded guilty to that charge and to further charges including possession of an unregistered firearm; failure to properly store the firearm; possession of fireworks; and possession of prohibited weapons being two samurai swords. All these charges were dealt with concurrently. An aggregate fine of $750 without conviction was imposed at the Latrobe Valley Magistrates’ Court on 17 August 2016.
The police summary accompanying the prosecution brief for the charges dealt with on 17 August 2016 stated that the accused did not make any admissions to any form of assault or verbal abuse towards the victim, apart from the abovementioned unlawful assault.[15] At that time, the prosecution were in possession of a statement of non-complaint from the AFM. In that statement the AFM (who was the victim of the unlawful assault) said:
Last year sometime in about September, I was in The Austin hospital [sic] with anaphylaxis, I was speaking to the social worker about being disillusioned with my marriage and was very upset at the time. The social worker rang the police, it wasn’t me. Since then an investigation commenced and family violence were put in place [sic].
I now seek that Victoria Police take no further action or pursue charges against My Darryl SWAIN [emphasis original]. The events that occurred were distorted in my mind due to being severely depressed and heavily medicated.
I believe I was not of sound mind to make the statements at the time. I wish to make a statement on non-complaint [sic] or withdraw my statement completely.
The statement was signed 27 February 2016 at Warragul Police station.[16]
[15]Exhibit ‘LT7’ to the affidavit of Lana Treasure deposed on 7 February 2017 in opposition to bail.
[16]Ibid.
It seems that despite the reduction in FVIO conditions over the course of 2016 and previous resumption of cohabitation between the applicant and the AFM, when the AFM attended the Latrobe Valley Magistrates’ Court on 28 November 2016, her attitude had again changed. She apparently told police that she wanted the ‘full intervention order’[17] reinstated and would not support the applicant’s application to get his guns back. She said that the applicant had pressured her to withdraw the allegations of family violence previously made. This conduct constitutes Charge 1 of the charges laid by Senior Constable Stewart. In the course of outlining the change in circumstances to the magistrate that day, Senior Constable Stewart testified that the AFM had already left the court but before doing so she had conveyed that, although there had not been any physical violence since the current FVIO was made, there had been ‘emotional, psychological, different forms of abuse.’[18]
[17]I take this to mean the FVIO with more extensive conditions.
[18]Transcript of Proceedings, Justin Stewart v Darryl Swain (Magistrates’ Court at Latrobe Valley, Magistrate F Hayes, 28 November 2016) 7.
She had allegedly said she was intimidated by the applicant and did not want to be around him. She also told police of a further unregistered firearm that she believed was still present at the Cobungra property. The applicant is said to have immediately phoned a friend to have him locate and hide that item. This conduct in hiding the firearm is the basis for Charge 2.
The applicant’s legal representative on 28 November 2016 told the court that the applicant was taken by the surprise by the new allegations as the applicant and the AFM had attended the court in the same vehicle and were at the same address the night before. The applicant withdrew his firearms restoration application in light of the new revelations.
The AFM subsequently signed a statement on 4 December 2016 at the Cobungra property where she was then residing. That statement, which was produced before me,[19] referred to attempts made to reunite with the applicant over the period that the FVIO was on foot, but it also alleged that the applicant pressured and harassed her to get the order revoked. She said she had the order varied and had returned to live with the applicant full time but that he continued to harass her.
[19]Exhibit ‘LT5’ to the affidavit of Lana Treasure deposed on 7 February 2017 in opposition to bail.
The AFM referred to mental health admissions to hospital and also said she was on medication for depression which led to her making irrational decisions such as moving back in with the applicant prior to the assault prosecution against the applicant being dropped at court.[20] The statement included further allegations of being pressured and told what to say when she went to court to support the applicant on 28 November 2016.
[20]By this it seems the AFM meant the dropping of the more serious charges.
It was largely as a result of the allegations in the December 2016 statement and a statement obtained from a male friend of the applicant[21] that the current charges were laid.
[21]He said that the applicant asked him to locate and move the firearm from Cobungra: Exhibit ‘LT3’ to the affidavit of Lana Treasure deposed on 7 February 2017 in opposition to bail.
However, the position of the AFM had altered again by the time the applicant was arrested and interviewed about the current charges on 10 January 2017.
On that occasion, the AFM appeared at court with her own representation and indicated that she wished to support an application for bail by the applicant. Both the applicant and the AFM gave evidence in favour of bail. The court was told that the couple wished to reunite and the AFM denied on oath much of what had been said in the December 2016 statement, giving as her explanation that she had been drinking and self-medicating at the time she had given that statement.[22]
[22]Transcript of Proceedings, The Police v Darryl Swain (Magistrates’ Court at Latrobe Valley, Magistrate F Hayes, 11 January 2017).
Under cross examination by the prosecutor, the AFM denied that she was scared of the applicant, but then said she had at times been scared, just as she was scared of the prosecutor.[23] She denied that key passages of her statement were her words or that the applicant had ever told her to come to court and lie for him. She denied that she had ever been threatened by the applicant that he would use a gun against her and she said that she had previously attended court to have the FVIO revoked ‘so we can have contact.’[24]
[23]Ibid 59.
[24]Ibid 63.
She said that she had sent a text message to the applicant since the last hearing on 28 November 2016. She denied saying in the December 2016 statement that the applicant had pressured her to do certain things. She said the court should have confidence in letting her return to live with her husband.[25]
[25]Ibid 71.
She said she was previously employed as a maths specialist at Moe Primary School but was in receipt of WorkCover payments since 2011 for a claim of bullying and harassment in the workplace.[26]
[26]Ibid 70.
The applicant participated in a record of interview at Morwell Police Station on 10 January 2017, declining to comment on most of the current charges, apart from the firearms offences. He has subsequently admitted the firearms charges and said the two tablets were Viagra, not ecstasy.[27]
[27]The tablets are yet to be tested.
The applicant’s evidence during the application for bail at the lower court included denials of making threats towards the AFM.[28] He said he understood through her lawyer that she wished to reunite with him.
[28]Transcript, above n 20, 49.
The applicant is an industrial sandblaster by occupation and works in corrosion control in a business which he runs from his home in a rural farming district approximately 25 kilometres north of the town of Warragul in West Gippsland. He has lived in that region all his life.
He has been employed in corrosion control work for over 30 years and the annual turnover of his business is in the vicinity of $600,000.
The business is highly dependent on the availability of the applicant to conduct the work. This is due to the fact that he is solely responsible for providing quotes to businesses contracting his company’s services and due to his extensive knowledge of the industry and his specialised skill in working on active gas pipelines.
The applicant’s industrial business requires him to use specialised industrial equipment and the work of industrial coating of pipes can take the applicant all over regional Victoria and interstate for work.
He employs one person full time and another casual worker on a very regular basis and the office administration has been conducted mainly by his sisters with the AFM’s involvement in recent years.
The AFM maintains an interest in horse-riding and has a number of horses which are still maintained at jointly owned properties and looked after by the applicant’s mother. Whilst it appears that she suffers from depressive episodes, there is insufficient material before me to enable a proper understanding of her mental health issues.
The marital asset pool potentially includes four properties: a home at Shady Creek; an investment unit at Steward Street, Warragul; a small chalet at Dinner Plain in north-eastern Victoria; and 184 acres of rural land at Cobungra.
Title searches obtained by the applicant’s solicitors demonstrate that the property at Shady Creek is registered in the name of the applicant, whilst the property at Cobungra and the rental chalet at Dinner Plain are registered in the names of both the applicant and the AFM as joint proprietors, and the unit in Steward Street, Warragul, is registered in the name of the AFM.
The applicant was supported in this court by his mother and sisters and he maintains a close relationship with them and with his two brothers. His extensive family live within close proximity to him. He also has a large network of friends, some of whom have provided affidavits in support of a grant of bail to the applicant.
Affidavits in support of bail include:
(a) Christopher Adams, a 50-year-old ambulance paramedic, who says he has known the applicant for the past 37 years and speaks positively of the applicant;
(b) Steve Crestani, a specialist car restorer, aged 53 years, who says he has known the applicant for seven years and regards him as a level headed, reliable and responsible person and a good businessman;
(c) Heather Hastings aged 53 years who said that she has known the applicant for more than 30 years. She deposed that her former partner and the applicant were fox hunters in a social group setting with other friends. She described the applicant as ‘genial’ and ‘laid back’ and says that she considers him to be responsible, reliable, decent and honourable. She says that he has the strong support of friends and family and the community generally;
(d) Geoffrey Jackson, a 47-year-old sandblaster, who was previously employed by the applicant for four years until going out on his own two years ago. He described the applicant as having been a very good boss and as a calm person when things went wrong at work. He vouched for the applicant’s hard working and responsible nature; and
(e) Clinton Ward, a motor mechanic from Nilma, aged 49, who said that the applicant is his cousin and describes the applicant as somebody who was a very hard worker with high standards.
Each of those who deposed affidavits said they had not seen signs of aggression in the applicant generally, and those who knew the AFM said they had not seen aggressive behaviour by the applicant towards or in the presence of the AFM.
It was pointed out by the respondent that the affidavit material needed to be closely scrutinised since the deponents may not have had a chance to observe the applicant mistreating the AFM within the home, and that there were limitations to the weight that could be attached to their affidavits. I accept that the affidavits must be viewed subject to those limitations.
I was informed by the parties that a committal date for the charges could not be listed before February 2018.[29] It was submitted that the applicant’s business could not survive in his continued absence and that he owed $25,000 each month in business loan payments. He had pressing obligations under current and forthcoming contracts.
[29]Charges 1 and 2 cannot be heard in the summary jurisdiction.
The applicant’s counsel said the applicant had been moved four times since being remanded in custody without bail and that his detention in custody since 11 January 2017 had had a salutary effect on him.
The prosecution alleged prior convictions for breach of intervention order in respect of the applicant’s first marriage. The applicant had been convicted and fined $600 in 2004 for this offence and placed on a Community Based Order without conviction for 3 months for the same offence in 2003. I was informed that the breaching behaviour on those occasions involved harassing phone calls after separating from his then wife.
The applicant is in contact with the adult children from his first marriage and his adult son has been liaising with the applicant’s solicitor in support of his application for bail.
The applicant relies heavily on the following factors: delay; the poor prospects of success for the Crown case in light of the AFM’s retraction of the salient matters set out in her December 2016 statement; the prospect that time spent on remand could outweigh any sentence imposed in respect of the current charges; the risk that the applicants business could fail in his absence and that he could not meet his financial commitments and would have to lay off staff and risk the future loss of contracts; and generally good character and antecedents apart from the 2003/2004 incidents and the August 2016 matters.
The applicant asserted that the risks adverted to by the respondent could be managed with strict bail conditions.
The applicant said that he was not required to show cause why bail should be granted, but if the court found that he was so required, cause existed sufficient to support a grant of bail.
The respondent argued that cause was required to be shown; but that even if cause was not required to be shown, the applicant posed an unacceptable risk for the reasons already outlined due to the vulnerable disposition of the AFM and the tendency of the applicant to subject her to family violence.
In my view, the strength of the prosecution case on those charges which depend largely on the credibility of the AFM is questionable. I accept that the significant delay before the matter can be fixed for committal leads to a realistic concern that the period of pre-trial detention without bail could exceed any sentence ultimately imposed.
I also place weight on the matters set out in s 4(3) of the Bail Act 1977 and I have had regard to the evidence relevant to the applicant’s character, antecedents, associations, home environment and the background of the accused. This material is generally favourable, notwithstanding the applicant’s previous conviction for family violence-related offences.
I also place weight on the applicant’s significant business and financial obligations. I note that the applicant has a supportive network of friends and relatives and in the past has had a stable residence and work history.
The prosecution does not raise any concern as to flight risk.
I am also persuaded that the period that the applicant has spent on remand will have highlighted to him the court’s concern for the protection of persons from family violence.
Ultimately, in weighing all of the factors drawn from the evidence produced on the bail application, I am persuaded that, although any perceived risks alluded to by the Crown may not be entirely negated,[30] the imposition of strict bail conditions, including non-association conditions, should allow any perceived risk to be appropriately managed.
[30]Haidy v DPP [2004] VSC 247 [14] (Redlich J).
For the reasons set out earlier, I find that cause is not required to be shown by the applicant. However, if I am wrong about this aspect, in my view, there is sufficient material favourable to the applicant to satisfy a show cause onus.
I also consider that the prosecution has been unable to prove that the applicant poses an unacceptable risk as asserted by them in light of the options available to the court to manage risk, in particular by prohibiting contact between the applicant and the AFM whilst on bail.
For these reasons I propose to fix bail on the following conditions.
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