Re Bacash
[2020] VSC 365
•19 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0113
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by Karl BACASH |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 May 2020, 2 June 2020 & 16 June 2020 |
DATE OF JUDGMENT: | 19 June 2020 |
CASE MAY BE CITED AS: | Re Bacash |
MEDIUM NEUTRAL CITATION: | [2020] VSC 365 |
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CRIMINAL LAW – Application for bail – 17 Charges - Serious sexual assaults – Rape – Administration of an intoxicating substance for a sexual purpose – Theft – Receive stolen goods – Deal with property suspected of proceeds of crime – Possess drug of dependence (morphine) – Commit indictable offence (possess drug of dependence) whilst on bail – Serious alleged offending – Three separate rape investigations – Victims not known to one another – Applicant targeting vulnerable, intoxicated females in early hours of the morning in inner-city Melbourne – Applicant must demonstrate a compelling reason exists to justify granting bail - Ill elderly mother – No prior criminal history – Compelling reason satisfied – Unacceptable risk test ss 4E(1) and 4E(2) of Bail Act 1977 satisfied – Bail granted with strict conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W. Toohey | Amad and Amad Lawyers |
| For the Respondent | Ms J. Piggot | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 11 May 2020, Karl Bacash (‘the applicant’) was arrested and charged with a total of 17 offences primarily arising out of three alleged incidents of sexual offending against three complainants between April 2017 and February 2018, and search warrants executed at the applicant’s home on 22 February 2018, 26 February 2020 and 11 May 2020. The applicant faces charges of sexual assault (six counts),[1] rape (four counts),[2] administrating an intoxicating substance for a sexual purpose (two counts),[3] theft,[4] handling stolen goods,[5] dealing with property suspected of being proceeds of crime,[6] possessing a drug of dependence (morphine),[7] and committing an indictable offence while on bail.[8]
[1]Contrary to s 40 of the Crimes Act 1958 (Vic).
[2]Ibid s 38.
[3]Ibid s 46.
[4]Ibid s 74.
[5]Ibid s 88(1).
[6]Ibid s 195.
[7]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’).
[8]Contrary to s 30B of the Bail Act 1977 (‘Bail Act’).
Relevantly, on 26 February 2020, the applicant was charged by the same Informant in the present matter with two counts of possessing a drug of dependence (cocaine), arising out of the aforementioned search warrants. He was released on police bail the same day to appear at the Heidelberg Magistrate’s Court on 8 July 2020, with conditions including that he obey a curfew between 10.00pm and 6.00am between Thursdays and Sundays. Charges 16 and 17 relate to the alleged possession of morphine located at the applicant’s premises during the execution of a search warrant on 11 May 2020. Hence, at the time of this alleged offending, the applicant was on bail for charges relating to the possession of cocaine alleged to have occurred on 26 February 2020.
On 11 May 2020, being the third occasion of the executed search warrants, a taped record of interview was conducted with the applicant regarding the alleged offending against one of the complainants. It was on this occasion that the applicant was arrested and charged with all of the alleged offending.
On 15 May 2020, the applicant applied for bail in the Melbourne Magistrates’ Court in respect of the present matters. Bail was refused on the basis that, whilst a compelling reason was established, the applicant posed an unacceptable risk of endangering the safety and welfare of any person and committing an offence whilst on bail.
The applicant applies for a grant of bail from this Court, which is opposed by the respondent. As he is charged with Schedule 2 offences under the Bail Act 1977 (‘the Act’),[9] bail must be refused unless the applicant establishes that a compelling reason exists that justifies the grant of bail.
[9]Rape, committing an indictable offence whilst on bail pursuant to Bail Act, ss Schedule 2, items 9 and 30.
As above, the most serious allegations involve offending on three different occasions against three female complainants, unknown to each other. It is alleged that the applicant’s modus operandi was to drive around the inner city suburbs of Melbourne in the early hours of weekend mornings, preying on vulnerable women who were heavily intoxicated and on their way home. It is alleged that each complainant was offered a ride home by the applicant, accepted that offer, and was sexually assaulted by the him. Each complainant states they experienced periods of limited memory during the incidents.
First complainant
The first complainant, AA, was 27 years old at the time of the alleged offending. During the early hours of 9 April 2017, she was at the Corner Hotel in Richmond, after a night of drinking at various venues. She left the Corner Hotel between 1.00am and 3.00am, heavily intoxicated.
Sometime after leaving, AA recalls then waking up in the front passenger seat of a vehicle she did not recognise. She did not know how she came to be in the vehicle and did not recognise the driver. The driver, alleged to be the applicant, stopped the vehicle in a service road on the Princess Highway near Howden Street, Oakleigh, and put his hand under her dress. AA alleges the applicant touched the exterior of her vagina (Charge 1) then penetrated her vagina with his fingers (Charge 2). He also touched her breasts over her clothing (Charge 3). During this incident, AA realised she did not have any underwear on, but could not recollect when or how she had come to be in this state.
The applicant allegedly exited the driver’s side of the vehicle and re-entered through the front passenger seat. The prosecution case is that the applicant got on top of AA and penetrated her vagina a number of times (Charge 4) before his penis became flaccid. He is alleged to have then masturbated himself while grabbing AA’s breasts in an attempt to arouse himself (Charge 5). During these events, the complainant realised her seat was reclined and had no recollection of how this had occurred. She requested the applicant take her home.
The applicant drove AA to her apartment in Noble Park. He physically supported her from the vehicle and assisted her to unlock her door as she could not. Feeling confused, AA asked the applicant if he was an Uber or taxi driver. When he replied that he was not, she asked why he was there, and indicated she wanted to go to sleep. The applicant asked, ‘you don’t want me to stay?’, and left when she responded no.
Later that day, AA’s memory was triggered after she found her underwear in her handbag. She found it painful to urinate and observed that her vagina was irritated and red. She used her phone to look at her GPS location data and saw she had been stationary for at least two hours near the Princes Highway in Oakleigh earlier that morning.
At 2.06am on 15 April 2017, AA received a text message asking if she was ‘out and about’. She did not recognise the mobile number, but suspected it was the applicant. Later, during the early hours of the mornings of 23 and 30 April 2017, she received missed calls from a private number. She similarly suspected these were attempts by the applicant to contact her and blocked the number.[10]
[10]Each of these instances of contact from the applicant to the first complainant were confirmed upon subsequent analysis of the applicant’s mobile phone.
In April and May 2017, AA disclosed the alleged offending to various people close to her. She reported the events to police in late 2018, and provided a written statement on 14 January 2019. In her statement, she stated that she knew what happened was rape, that she felt she would not have been capable of giving consent to have sex, and that she would not have consented to having sex with a man so much older than her.
Second complainant
The second complainant, KB, was 32 years old at the time of the alleged offending against her. During the early hours of 13 January 2018, KB was out in the Melbourne Central Business District with friends and had consumed a significant amount of alcohol. At 4.26 am, she entered a taxi on Bourke Street but exited shortly after on Nicholson Street in Fitzroy for unknown reasons. She was sitting on a ledge on Gertrude Street when approached by the applicant, who struck up a conversation.
KB’s evidence is that she has ‘flashes of memory’ from being in the applicant’s car, including being told to ‘sniff’ a white powdery substance through a rolled up note the applicant held (Charge 6). She recalls him similarly ingesting the white powder through his nose. Her next memory is waking up in a bed the next morning with the applicant’s arm sprawled across her body and feeling pressure between her legs. She realised it was his fingers penetrating her vagina (Charge 7). KB described this sensation as being very uncomfortable and extremely unexpected. She then observed her underwear in her bag on the floor and ‘absolutely panicked’, as she did not know where she was or how she had come to be there.
The applicant offered to drive KB home, which she accepted as she did not recognise where she was or how else to get home. During the drive, she recalls being in a black SUV and driving on a four-lane freeway she thought looked like the Eastlink. Upon recognising Punt Road in Collingwood, she asked the applicant to let her out. He pulled over and she exited the vehicle.
When KB arrived home, she received a text message from someone named ‘Karl’ from a mobile number she did not recognise. It read, ‘I just got home. Hope you walked home safely J’. She did not have any friends by the name of Karl. The mobile number has since been confirmed as belonging to the applicant.
At 2.50am on 14 January 2018, KB attended the Fitzroy Police Station to report the above events. She underwent a forensic medical examination, which did not locate any unidentified DNA. A toxicology report noted the presence of metabolites consistent with her having consumed cocaine, which she confirms did not occur prior to her encounter with the applicant. Investigators are still awaiting medical opinion regarding traces of other chemicals found in KB’s system.
Between 14 and 28 January 2018, KB received further text messages from the applicant asking where she was and what she was doing. On 25 January 2018 at 1.52am, she received a text message from him asking, ‘wanna come hang at mine’.
First search warrant and interview
On 22 February 2018, a search warrant was executed at the applicant’s residence in Bulleen. The search located his mobile phone, a white powdery substance in a ziplock bag and a credit card in the name of an unrelated person. The applicant stated that he believed the white powdery substance to be benzocaine, but later analysis revealed it to be cocaine.
He was subsequently interviewed in relation to KB’s allegations and the above items. He stated that he had observed KB sitting alone in Fitzroy and pulled over to speak to her. When asked why, he stated, ‘I’m a guy and she’s a girl?’. On his account, he and KB returned to his residence and engaged in consensual sexual intercourse.
Further, the applicant stated that he had found the credit card in his vehicle and did not know the owner. He denied any knowledge of the white powdery substance and noted he had never taken drugs or consumed alcohol in his life.
The applicant was not charged with any offences at this time.
Mobile telephone analysis
An analysis of the applicant’s phone identified data from between 2015 and 2018. Approximately 250 female names were recorded in his contacts, many of which had identifying characteristics such as Melbourne suburbs, occupations or physical features recorded in place of their surname.
Text message conversations between the applicant and a number of these females were generally noted to be initiated by the applicant, who would reference the circumstances in which they had met or make insinuations they were friends. Responses from the females typically indicated they had been significantly intoxicated and had little recollection of any interaction with him.
Police have spoken to approximately 122 women from his contact list. Thirty women remember their interaction with the applicant and provide a similar version of events to the circumstances surrounding the alleged offending, including:
(a) they had been at venues in the inner north eastern suburbs of Melbourne, including Richmond, Fitzroy, Collingwood, South Yarra and Brunswick, when approached by the applicant;
(b) they were heavily intoxicated at the time and aged between 18 and 30;
(c) they had blackout periods during their interaction with the applicant and could not recall many of the details of the ride home.
Third complainant
The third complainant, AB, was 24 years old at the time of the alleged offending. She had briefly met the applicant through a mutual associate. In April 2020, she was identified by police as being a possible victim of a sexual assault by the applicant following analysis of three videos located on his seized mobile telephone phone, recorded between 3.10am and 3.21am on 11 February 2018.
The first and third videos mainly depict scenes in the front of the applicant’s vehicle, as he and AB are heard ‘speaking sexually towards each other’ in the background. This video briefly depicts the applicant’s face. The second video depicts AB sitting in the front passenger seat with her breasts exposed and no clothing on her upper body. Her left arm appears slumped limply across her lap and the camera pans to her face. The prosecution alleges she was asleep and lightly snoring. The video depicts the applicant rubbing her vagina over her clothing with his left hand (Charge 11), before sliding his hand underneath her pants and vigorously moving it back and forth, allegedly digitally penetrating her vagina (Charge 12).
The applicant is said to be identified in the third video by a unique white watch and gold ring, which were later observed in photographs on his Facebook page.
During the early hours of 11 February 2018, AB had been drinking in Fitzroy with friends. At 1.33am, she received a text message from the applicant which read, ‘were [sic] are you kitty kat?’. Just before 3.00am, the group left the bar and AB saw the applicant waiting out the front. She indicated that she was going to walk home, but was encouraged by her friends to get in the applicant’s vehicle due to her level of intoxication. It is not clear how the applicant came to know her location.
AB alleges that on the way back to her house the applicant stopped his vehicle and produced a white powdery substance. He convinced her to get in the front passenger seat and consume the powder, which he said was cocaine (Charge 10). She recalls the applicant attempting to touch her breast and rub her vagina over her clothing (Charge 8 and 9). She told him not to and he reportedly ceased. AB then ingested the white powdery substance and states she passed out almost immediately. She believes that the substance was Ketamine or another drug due to its effect on her.
AB’s next memory is waking up on the floor of her house in Carlton, without any recollection of leaving the applicant’s vehicle or how she arrived home. She did not report the events from the previous evening, as she had no memory of them occurring.
Second search warrant and interview
On 26 February 2020, search warrants were executed at the applicant’s residence in relation to the first complainant’s report. That search located the same mobile phone seized during the execution of the first search warrant on 22 February 2018, and a ziplock bag containing a white powdery substance. AA’s phone number was saved in the applicant’s phone as ‘Angelique Nobile Park’.
The applicant was arrested and conveyed to the Melbourne West Police Station for interview regarding the alleged offences against AA. He stated that he did not remember meeting or interacting with her. When asked if it was possible that he had picked her up in his vehicle, the applicant stated he had picked up ‘thousands’ of females and driven them home, to ensure their safe return.
The applicant was then charged with two counts of possessing a drug of dependence (cocaine), alleged to have occurred on 22 February 2018 and 26 February 2020. He entered into an undertaking of bail at the Melbourne West Police Station for the charges relating to that possession.
Third search warrant and arrest
On 11 May 2020, following identification of the third complainant, a further search warrant was executed at the applicant’s residence. This search located a distinctive white watch said to be identical to the one worn in the video involving AB, several distinctive rings, various electronic and recording devices (including the applicant’s phone) and five injectable ampoules of morphine sulphate with the owner’s details removed (Charges 16 and 17). The applicant was arrested in relation to the present matters and conveyed to the Melbourne West Police Complex.
During a record of interview, the applicant acknowledged he knew AB and had taken her home on two occasions. He denied any sexual activity with her, and when shown the videos underpinning the present charges, stated he did not recall the videos being made or recognise the female depicted. He denied the female was AB.
In respect of the morphine, the applicant stated he had administered it to a friend dying of cancer between 2017 and 2018.
The applicant was arrested and charged with the alleged offending involving the three complainants. He was also charged in respect of the credit card located in his bedroom on 22 February 2018 (Charges 13 and 14), and the morphine found on that day. He was remanded in custody.
It is to be noted that late on 22 February 2020 across to the early hours of 22 February 2020 the applicant was the subject of a police surveillance operation, as set out in paragraphs 67-69 of the Remand Summary prepared for the purposes of the applicant’s initial appearance before the Magistrates Court after his arrest. The prosecution alleges the applicant engaged in activity from his car which involved following and observing women in similar circumstances alleged to have occurred in respect of the three complainants. No charges have been laid in respect of that activity.
Following preliminary hearings in the Magistrate’s Court, the applicant’s charges are listed for Committal Mention on 31 July 2020.
Evidence on the application
The affidavit material
The application proceeded on affidavits filed by the applicant’s solicitor and solicitor for the Office of Public Prosecution, with supporting material attached. The respondent also tendered video footage of a police interview with the applicant and interview with AA.
I note the hand-up brief was not provided to the Court for this application, with the informant confirming that it would be served on 25 June 2020. However, the Court was provided with statements of the complainants, including video footage of the interview of one complainant, as well as footage depicting the alleged offending against that complaint. I viewed and read the material provided.
Further, both parties called evidence on the application, as discussed below.
Detective Senior Constable Shaun O’Meara
The Informant, Detective Senior Constable Shaun O’Meara, gave evidence that the investigation into the applicant was ongoing, noting that police had spoken to 122 other females with approximately 30 providing statements. He stated that additional evidence was being gathered to develop a consistent picture of the applicant approaching intoxicated females, who then experienced memory lapses relating to their entry into his vehicle. In cross-examination, he conceded that no further charges have been laid against the applicant in respect of the additional statements.
The informant expressed that no bail conditions could be imposed to prevent future risk to women in the community due to the nature of the offending and applicant’s behaviour throughout the investigation. In regard to ongoing risks to the complainants, it was not alleged that the applicant had made further attempts to contact them, and further noted that they have all since moved addresses, with one having moved overseas. However, the informant noted that significant police resources would be required to ensure the applicant’s compliance with bail conditions.
During cross-examination, the informant agreed the applicant had not breached the curfew condition of his bail imposed on 26 February 2020. He also agreed that, should the applicant be granted bail, the ‘eye of the law’ would be kept on him given the nature of the alleged offending, despite resourcing difficulties.
The informant was extensively cross-examined about aspects of the prosecution case, with the applicant highlighting deficiencies in the allegations, inconsistencies in the complainants’ accounts and reasons why their evidence may be doubted by a jury.
Dr Ing Sing (Kim) Chiew
Dr Chiew, general practitioner, has been treating the applicant’s mother, Sonia Bacash, since 2005. She confirmed Mrs Bacash suffers from many serious medical conditions, including secondary hypopituitarism, hypertension and diabetes, and requires permanent and daily medication.
Dr Chiew opined that Mrs Bacash requires 24 hour assistance with managing her medications, attending medical appointments and generally helping her given her susceptibility to falling. She referenced her recent hospital admission shortly after the applicant’s arrest, following an episode of diarrhoea, stress and blood sugar issues.
Dr Chiew confirmed the applicant has been his mother’s full-time carer since 2012 and receives carer payments from Centrelink. She noted that he has been trained to administer injections for Mrs Bacash and brings her into the clinic for treatment. She observed that he appeared to be a very good carer who treated his mother well. Dr Chiew stated that she had not discussed Mrs Bacash’s medical conditions with any other family members aside from the applicant.
In cross-examination, Dr Chiew agreed the applicant did not have formal medical training, but noted that he has acquired detailed knowledge resulting from looking after her for many years. She opined that, should someone else take on this role, they would need to have knowledge of her medication, know when to administer injections and physically stay with her. While acknowledging avenues of community assistance, she stated that Mrs Bacash required ongoing care which is not provided by such services. She agreed that residential aged-care was an option.
Gillian Mays
Gillian Mays, Nurse Unit Manager, Chemo Dialysis Unit at Swan Hill District Health, has been a nurse for over 40 years. She has known the Bacash family since 1997 and visited and stayed in their family home on numerous occasions.
Ms Mays confirmed the applicant is the primary carer for his mother and receives a full time carer’s pension. She described him as a very dedicated carer with a detailed understanding of his mother’s conditions, allowing him to effectively deal with medical issues as they arise.
Ms Mays provided details of Mrs Bacash’s medical conditions and the ways in which the applicant manages her care, including assisting her in and out of the shower, administering insulin shots, guiding her when walking outside and general household duties such as cooking and cleaning. In cross-examination, she opined that Mrs Bacash did not require 24 hour care as she can easily move around her own home. However, she also gave evidence that the interaction between Mrs Bacash’s comorbidities meant that she requires constant observation and a high level of care.
Following the applicant’s arrest, Ms Mays noted that various family members have attempted to assist Mrs Bacash by staying with her overnight. However, she stated they are unable to care for her during the day due to work and other commitments. Ms Mays described the applicant’s brothers as caring sons and indicated a willingness to verbally assist them in caring for their mother. While noting Mrs Bacash had close friends, she stated that they would not able to care for her.
Asar Bacash
The Court also heard evidence from Asar Bacash, older brother of the applicant. He confirmed the applicant has always lived with their mother and is her full-time carer.
Following the applicant’s arrest, Mr Asar Bacash confirmed that various family members had stayed with Mrs Bacash overnight and at certain times during the day. He explained his limited ability to care for his mother, given his work commitments, that of his partner and the fact that his son is acutely ill with a chronic condition. He noted that his mother would not be able to reside with him, as he lives in a three storey townhouse and she is unable to manage stairs.
Should the applicant remain in custody, Mr Bacash explained that the family would be forced to consider placing their mother in a nursing home. He noted this would be a government facility given the family’s limited financial resources. He was cross-examined about the family’s financial circumstances, during which he confirmed that Mrs Bacash lives in a rental property. He stated that she has some independence due to living in the property for a considerable time and knowing its layout.
Mr Bacash indicated that their family would be prepared to financially supplement their mother’s rent in the absence of the applicant and his carer’s allowance. However, he noted that this would only be on a short term basis, given the impacts of COVID-19 and the fact that his brother, Leslie Bacash, does not have a stable income.
Leslie Bacash
Leslie Bacash is the applicant’s older brother. He owns a house in Coburg North, with an approximate value of $500,000, which he is prepared to offer as surety if the applicant is granted bail. He lives in this property with his wife and daughters.
Mr Bacash confirmed that he understood the responsibilities of a surety. He swore he would give an undertaking to the Court to contact the police if aware that the applicant was not complying with a condition of bail.
Mr Bacash is currently unemployed for health reasons, and suffers from diabetes, asthma, chronic fatigue and Crohn’s disease. He has a monthly treatment in hospital, is often bedridden and unable to do many things.
Mr Bacash also confirmed that numerous family members have been providing Mrs Bacash with overnight assistance, including his daughters. He noted that while such arrangements could continue in the short term, the family have had discussions about placing his mother in a government care facility, which is not an option they want to explore. He further noted that Mrs Bacash is devastated by the prospect of not being able to stay in her own home.
The applicant
The applicant was born on 4 April 1964 and is currently 56 years old. He has no prior criminal history. As above, at the time of his arrest, he was living with his mother in Bulleen in his capacity as her full-time carer.
The applicable legislation
As the applicant is accused of committing a Schedule 2 offence, this Court must refuse bail unless satisfied by the applicant that a compelling reason exists that justifies the grant of bail.[11] In considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[12]
[11]The Act ss 4AA(3), 4C(1A), 4C(2).
[12]Ibid s 4C(3).
If satisfied that this threshold is met, the Court must then apply the ‘unacceptable risk test’ pursuant to s 4D(1)(b) of the Act. In accordance with s 4E(1) and 4E(2) of the Act, bail must be refused if the prosecution satisfies the Court there is an unacceptable risk that the applicant would, if released on bail –
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
In considering whether any relevant risk is unacceptable, the Court must again have regard to the ‘surrounding circumstances’ in s 3AAA of the Act, and consider whether any conditions of bail may be imposed to mitigate the risk to an acceptable level.[13]
[13]Ibid s 4E(3).
When interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[14]
[14]Ibid s 1B(2).
Meaning of compelling reason
The meaning of ‘compelling reason’ was considered by the Court of Appeal in Rodgers v The Queen.[15] Drawing on a number of decisions previously delivered by this Court, their Honours summarised the principles to be applied when considering the compelling reason test as follows:
[15][2019] VSCA 214.
(a) 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 is not justified.
(b) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(c) A compelling reason is one which is forceful and therefore convincing – a reason which is ‘difficult to resist’.[16]
[16]Ibid [43] (Beach, Kaye and Ashley JJA) (citations omitted).
In the present matter, the applicant relies in part on inordinate delays and onerous conditions in custody occasioned by the COVID-19 health crisis to demonstrate a compelling reason justifying the grant of bail.
In Re Diab,[17] Beach JA summarised the principles emerging from recent case law on the way in which the COVID-19 health crisis may be relevant in applications for bail. In the context of an application falling into the more difficult ‘exceptional circumstances’ category, his Honour explained that:
(1) Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence.
(2) The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases. The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail.
(3) The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand. Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
(4) In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail.[18]
[17][2020] VSC 196.
[18]Ibid [38].
In Re Guinane,[19] Tinney J found compelling reasons justifying the grant of bail, having accepted the applicant’s submissions regarding the significant delay and ‘increasingly onerous and restrictive conditions’ of remand caused by the current health crisis, among other factors.[20] However, Re Guinane can be distinguished from the present case in that the applicant in that case had submitted that he would spend more time on remand than the eventual sentence he may receive.[21]
[19][2020] VSC 208.
[20]Ibid [29]-[30], [43].
[21]Ibid [32]. It is further noted that the respondent in that matter conceded that it was open to the Court to find compelling reasons. See ibid [37].
The applicant’s contentions
As above, the applicant accepts that he must satisfy the Court that a compelling risk exists that justifies the grant of bail. It is submitted that the following matters, in combination, satisfy a compelling reason for the grant of bail:
(a) Strength of the Crown case. While acknowledging the allegations are serious examples of that kind of offending, it is submitted the prosecution case is not overwhelming, that the charges will be contested, and that the applicant has a realistic chance of a successful defence. It was submitted that the defence of consent would be put forward with respect to some charges, and that there was no evidence of rape with respect to other charges. Further, it was contended that the reliability of the complainants’ accounts were questionable as they were heavily intoxicated. The applicant reaffirmed that no admissions had been made by him, ultimately submitting that the prosecution would be hard pressed to establish each and every element of each charge beyond reasonable doubt.
(b) Lack of criminal history. The applicant points to his lack of prior criminal offending. Further, it is submitted that there has been no evidence of non-compliance with the conditions of bail entered into on 26 February 2020, aside from the later finding of a small amount of morphine in his home. Importantly, it was noted that the applicant was not on bail at the time of his alleged offending in 2017 and 2018.
(c) Personal circumstances and responsibilities. As set out above, it was submitted there was a considerable weight of evidence regarding Mrs Bacash’s ill-health and her reliance on the applicant caring for her, and his role in that care. From a financial standpoint, it is submitted that Mrs Bacash will be unable to meet rental obligations and other expenses without the applicant’s carer pension. The applicant further contends that such factors will amount to hardship on himself, knowing the struggles that will be experienced by his mother and family should he remain in custody.
(d) The applicant submits he has not been given an opportunity to participate in a record of interview regarding the police surveillance of his activities on 22 February 2020, and there is no evidence as to whether he knew the females he is alleged to have spoken to in brief conversation. Relevantly, it is contended that these events highlight that he is firmly under police observation and that this would continue to be the case if he is granted bail with a curfew.
(e) Delay. It is submitted that the delay between arrest and trial in this matter will be inordinate. Given the committal mention date of 31 July 2020, and the possibility that further charges may be laid, the applicant estimates that, at best, a committal may be listed for April 2021. It is submitted that the earliest possible trial date would be in late 2021 or early 2022, meaning he will spend up to two years in custody if bail is refused.
(f) Onerous conditions of remand due to COVID-19. In the current circumstances of COVID-19, it is contended that the applicant faces the prospect of being held in custody in conditions more onerous than those which existed prior to the pandemic restrictions. The applicant particularised some instances of hardship since being in custody, including not being able to have visitors, participate in courses normally available to those on remand or undertake any work within the prison. Further, there is no library which would be available to remanded persons in normal circumstances.
(g) Surety. The applicant’s brother, Leslie Bacash, is willing to put up a $500,000 surety on behalf of the applicant against his property where he and his family live in Coburg North.
With respect to the question of unacceptable risk, it is submitted that any risk posed by the applicant can be reduced to an acceptable level by the imposition of bail conditions, including a curfew and prohibition on driving a motor vehicle. The applicant notes he is alleged to be a risk to a smaller group of people, being intoxicated women leaving a bar or nightclub, rather than the general public. Further, it is not suggested that he is a risk to any of the three complainants.
Furthermore, it is submitted that the applicant is not at risk of failing to surrender into custody should he be granted bail, given his ties to the Melbourne area. Moreover, as above, a surety of up to $500,000 can be offered to alleviate this risk. The applicant noted that he was placed on a curfew following the grant of bail on 26 February 2020, and was found to be at his residence during police checks.
As such, it is submitted that strict conditions such as a curfew, geographical limitations on travel and a reporting condition could ameliorate any risk of offending while on bail. It was noted that while personal reporting is not currently in place, adequate reporting could occur in the meantime through an arrangement whereby the police can call the applicant at his residence.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not shown a compelling reason that justifies the grant of bail. Further, the respondent submits that the applicant poses an unacceptable risk of:
(a) endangering the safety or welfare of any person;
(b) committing an offence while on bail; and
(c) failing to surrender himself into custody in accordance with the conditions of bail.
The respondent relies on the following factors in submitting that the applicant has not met the compelling reason threshold. It is to be noted that many of these factors were also relied upon with respect to the question of unacceptable risk.
(a) The nature and seriousness of the alleged offending. It is submitted that the alleged offending are serious examples of rape and sexual assault, which each carry high maximum penalties. Further, it is noted that the ongoing police investigation may potentially lead to further complainants.
(b) The strength of the prosecution case. It is contended that there is a strong prosecution case, albeit being largely circumstantial. The respondent points to the striking similarities between the complainants’ accounts, which gives rise to a strong tendency and coincidence argument, and the fact that they are supported by evidence from the applicant’s phone. Further, the applicant’s movements under police surveillance on 22 and 23 February 2020 are consistent with the case regarding his predatory behaviour and the circumstances of the alleged offending. It is acknowledged that while the circumstances of the alleged offending against AA and KB were very similar, the case involving AB was different given her prior association with the applicant. While arguing that the circumstances of the alleged offending against AB were particularly chilling given her stupefied state in the videos, it was conceded that the footage did not reveal penetration.
(c) Extent of previous compliance with bail conditions. It is noted that the applicant entered an undertaking of bail on 26 February 2020 for drug possession charges. On 11 May 2020, less than three months after that undertaking, the applicant was arrested for possession of morphine, in breach of his conditions of bail. The respondent acknowledges that, at the time of the alleged offending giving rise to Charges 1-15, the applicant was not on bail, subject to summons or at large awaiting trial. The applicant was not on parole, subject to a community corrections order, or otherwise serving a sentence. It is conceded he has no criminal history.
(d) Personal circumstances, associations and home environment. It is contended that the applicant’s personal circumstances do not amount to a compelling reason, as the inability to care for one’s elderly mother is not uncommon for persons charged with serious offences. Further, it is submitted that Mrs Bacash is being adequately cared for by various family members since he has been in custody and has sufficient capability to look after herself. The respondent contended that the family had not sufficiently explored other resources and options available to Mrs Bacash, and thus such matters should not weigh in favour of the applicant being granted bail. Accordingly, it is submitted that it is not a case where the only person who could possibly look after Mrs Bacash is the applicant.
(e) The respondent submits that the applicant has no special vulnerabilities in respect of the impacts of COVID-19.
(f) Delay. The respondent concedes the trial may be delayed due to the impact of the COVID-19 pandemic. However, it is submitted that any possible date for trial is speculative, as the matter is in its early stages of the pre-committal process and the brief has not yet been served. It is contended that time spent in custody whilst the matter progresses through the ordinary committal process cannot be attributed to COVID-19. Further, the respondent submits that any potential delay is not disproportionate given the strength of the prosecution case, the seriousness of the allegations and the likely sentence should the applicant be found guilty of some or all of the charged offences, being a significant term of imprisonment exceeding any expected delay.
(g) The respondent also pointed out that, at the date of the hearing, there have been no cases of COVID-19 identified in any Victorian prison.
(h) Surety. It is submitted that the proposed surety raised for Leslie Bacash’s property in Coburg North is unsuitable in circumstances where he is effectively bedridden and in very poor health.
Accordingly, the respondent submits that the above surrounding circumstances do not weigh in favour of the applicant being granted bail. It is contended that his behaviour whilst under police surveillance is consistent with the predatory behaviour and circumstances which characterises the prosecution case. The respondent pointed to how the applicant was observed to fill his car with petrol and then spend the next six hours loitering, pursuing and approaching intoxicated young women around popular inner city nightspots until the early morning. It is contended that, at the time of this surveillance, the applicant had been interviewed in relation to the offending against KB and a search warrant executed at his home, which clearly did not deter him from engaging in similar, predatory conduct. Further, considering all the evidence heard regarding his role as his mother’s full time carer, it is noted that he was able to leave for up to six hours while under police surveillance.
It is submitted that he would not be adequately monitored, as reporting obligations for persons on bail have been suspended since 24 April 2020 with no end date. It is noted that Victoria Police will no longer be enforcing reporting obligations until such suspension is lifted.
It is submitted that nothing can be done to prevent the applicant from further offending. Thus, the respondent submits the applicant is an unacceptable risk of committing further, similarly serious offences against young, vulnerable women should he be granted bail.
Analysis and conclusions
This application was heard across three sitting days and involved a considerable amount of detailed evidence from witnesses. Further, the Court was assisted with related written and oral submissions.
The evidence called on behalf of the applicant, and the submissions, focused mainly on hardship to the applicant, his mother and members of his family relating to Mrs Bacash’s health and her ongoing care should the applicant remain in custody. Such hardship was relied on as a significant factor weighing in favour of the applicant establishing a compelling reason justifying his release on bail.
However, another aspect of the applicant’s argument was that, due to the impact of the restrictions imposed by COVID-19, he would likely remain in custody for a significant longer time than usual, thus constituting an additional hardship to him.
I have given this matter anxious consideration, and carefully measured all of the evidence and written material. Further, I have considered all of the matters required to be taken into account under the relevant provisions of the Act.
Taking into account all of the surrounding circumstances, I am of the opinion that the applicant has demonstrated a compelling reason justifying a decision to grant bail. In this regard I am particularly mindful that the applicant did not have to satisfy the stringency of the exceptional circumstances test in this application.
Hardship
The applicant’s mother suffers from a constellation of medical conditions, some of which should be regarded as serious and others less so. She is a 78 year-old woman who appears to be in generally poor health, justifying the appointment of a carer. The Court heard credible evidence from Dr Chiew and Ms Mays as to her medical and physical circumstances, which suggested that she requires significant daily care. The evidence given by Asar and Leslie Bacash satisfies me that there are very limited viable alternatives for Mrs Bacash’s continued care in the applicant’s absence. While the applicant is not a medical or nursing professional, the evidence indicates he has gathered relevant training through his experience as her full-time carer.
Strength of the prosecution case
As is clear from the material before the Court, the allegations against the applicant are very serious and involve predatory sexual offending against three vulnerable women. The allegations have some quite disturbing aspects relating to a possible broader and opportunistic method of operation, as alleged by police. The investigation is ongoing and may result in further charges being laid. However, I am of the opinion that I am obliged to consider the evidence as it currently stands and cannot speculate as to where the police investigation may lead.
It is not my role at this early stage of the proceedings to examine the strengths and weaknesses of the prosecution case in detail. In my opinion, it is reasonable to conclude that it is a viable one. While it cannot be regarded as fundamentally weak, it is not particularly overwhelming. Much will depend on how it plays out at trial, as it has been indicated that the case will be vigorously defended by the applicant.
It is not yet determined whether the charges in respect of the three complainants will be heard as a joint trial, this being a matter for the Director of Public Prosecutions and ultimately a trial judge to determine. It is too early to say whether the prosecution case may be strengthened by the hearing of a joint indictment.
Delay
I note the hand-up brief has not yet been served. The committal mention is listed for 31 July 2020, and it is expected that the committal hearing will take up to three days. Given the current circumstances of COVID-19, and its impact on the listing of trials in the future, the listing date for the applicant’s trial is uncertain. It seems reasonable to conclude that it will not take place for a very considerable period of time, the earliest being the second half of 2021.
It is also significant to note that the applicant is currently experiencing harsher conditions of custody than he otherwise would have without the COVID-19 restrictions.
With respect to the impact of delay on the hearing of these matters, I also note that the respondent concedes that due to the serious nature of the allegations, should a number of them be proven it is likely that a sentence to be imposed would exceed a period of remand. I have taken this into account.
Taking into account the evidence, and submissions, and the surrounding circumstances set out in s 3AAA of the Bail Act 1977, I am of the opinion that there is a compelling reason that justifies a grant of bail. As above, I note the test propounded as to the meaning of compelling reason. I am satisfied that there is a forceful and therefore convincing reason which is difficult to resist, as to why the applicant should be granted bail. Should further charges be laid against the applicant, the matter of his bail may require reconsideration. In any event, upon conclusion of the committal proceedings, the magistrate will be in a position to reconsider the question of bail after having had the opportunity of analysing the evidence in detail, and evaluating the strength of the prosecution case.
Unacceptable risk
Having concluded that the compelling reason threshold has been met by the applicant, I will now consider whether the respondent has satisfied that the applicant is an unacceptable risk. In this regard I am also obliged to have regard to the surrounding circumstances as required by s 3AAA of the Bail Act 1977, which I have done.
As above, I acknowledge the alleged offending is very serious, but also note that the charges will be strenuously defended. The applicant has no prior convictions and no history of offending against the Act, aside from the allegation of drug possession during his recent grant of bail. Further, it is not suggested that his risk extends beyond the particular circumstances in which he is alleged to have committed the offending before the Court.
I note that the respondent provided evidence of alleged activity by the applicant in 1998, the many female contacts found upon examination of his mobile phone (some of whom have been interviewed) and the police surveillance of him in February 2020. While I have taken those matters into account, I regard them as being of reduced weight in determining this application. They appear to be mostly matters of intelligence at this stage, of limited evidentiary value and with no certainty that further charges will be laid. Such material does not involve alleged offences, instead suggesting a type of conduct or methodology similar to the accounts of the three complainants. It will ultimately be a matter for the trial judge to determine whether any of it is admissible.
Given all of the circumstances placed before me, I am of the opinion that the imposition of a stringent set of conditions can ameliorate the risk of further offending by the applicant to an acceptable level. As set out below, such conditions will require him to remain at his residence overnight and restrict his movements to within his suburb. I will also impose a substantial surety by his brother, thus creating an impetus for him to ensure the applicant has not breached his bail and to report any breach that might occur. I note that the conditions are directed at reducing the risk that he will offend in a similar manner to the alleged offending against the three complainants.
Furthermore, I will order at least one occasion of judicial monitoring to take place before me in approximately one month. Such a condition will enable me to remain satisfied that the terms of the applicant’s grant of bail are being honoured.
Proposed bail conditions
The applicant be admitted to bail on his own undertaking with one surety in the amount of $200,000 and on the following special conditions:
(a) He attend the Melbourne Magistrates’ Court on 31 July 2020 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at 17 Austin Street, Bulleen in Victoria, and not change that address without the leave of the Court.
(c) He remain at those premises between the hours of 5.00pm and 9.00am each day for the duration of bail.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e) He report Monday, Thursday and Sunday to the Officer in Charge of the Police Station at Heidelberg, or his or her nominee, between the hours of 6.00am and 9.00pm.
(f) He not leave the area between Bulleen Road, Thompsons Road and Templestowe Road, except to convey himself or his mother to and from medical appointments, meet with his lawyer or attend the Heidelberg Magistrates’ Court on 8 July 2020 and any further dates appointed by that Court.
(g) He not go within 500 metres of a licensed premises.
(h) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(i) He not leave the State of Victoria.
(j) He surrender any passport he may have to the informant within 24 hours.
(k) He not attend any points of international departure.
(l) He reappear before the Court for judicial monitoring to review his compliance with this order at 9.00am on 23 July 2020, and any further dates this Court appoints during the course of this order.
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