Re Barker
[2020] VSC 321
•14 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0081
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by CONRAD BARKER |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 May 2020 |
DATE OF JUDGMENT: | 14 May 2020 |
CASE MAY BE CITED AS: | Re Barker |
MEDIUM NEUTRAL CITATION: | [2020] VSC 321 |
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CRIMINAL LAW – Application for bail – Young adult applicant – Charges of aggravated carjacking, armed robbery, reckless conduct endangering life, arson, common law assault and possessing a drug of dependence – Alleged offences committed while applicant on a Community Correction Order – Applicant required to show exceptional circumstances – Criminal history including breaching conditions of bail and Community Correction Order – Exceptional reasons not shown – Bail refused – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. McWilliams | Office of the Public Prosecutions |
| For the Accused | Mr M. McGrath with Mr W. Blake | Giorgianni & Liang Lawyers |
HIS HONOUR:
Introduction
On 25 March 2020, Conrad Barker (‘the applicant’) was arrested and charged with aggravated carjacking (possessing a firearm), armed robbery, reckless conduct endangering life, arson, common law assault and possessing a drug of dependence (methamphetamine). The first five charges relate to events alleged to have occurred on 7 January 2020, involving the applicant and co-accused James Nichols, India Braniff and an unknown third male. The drug possession charge is presumed to have arisen during the course of the applicant’s arrest.
The applicant applies for a grant of bail from this Court, having been refused bail on 8 April 2020 by His Honour Magistrate Coghlan in the Geelong Magistrates’ Court. The applicant’s co-accused James Nichols is presently on remand, and India Braniff is on bail. The matter is next listed for a committal mention on 12 June 2020.
At the time of the alleged offending, the applicant was subject to a four year Community Correction Order (‘CCO’) imposed in November 2017. The CCO was granted in respect of convictions for driving and dishonesty offences. The applicant later breached the CCO and was convicted of contravening a number of its conditions, including being convicted of further offences involving theft, burglary and drug possession. The CCO has since been extended until 8 November 2021.
With respect to the present charges, the applicant is accused of committing a Schedule 1 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’), namely, aggravated carjacking,[1] and Schedule 2 offences of armed robbery,[2] reckless conduct endangering life,[3], attempted arson[4] and common assault[5] during a period of a CCO. The applicant must show exceptional circumstances by virtue of being charged with these offences,[6] as well as for the Schedule 2 offence of possessing a drug of dependence while on a CCO.[7] It is not disputed that the Court must refuse bail unless satisfied by the applicant that exceptional circumstances exist justifying bail.[8]
[1]Bail Act 1977 (Vic) sch 1, item 5.
[2]Ibid sch 2, item 22(a) and 23.
[3]Ibid sch 2, item 1(d) and 23.
[4]Ibid sch 2, item 1(d) and 31.
[5]Ibid, sch 2 item 1(d), 23A.
[7]Ibid, sch 2 item 1(d); Drug, Poisons and Controlled Substances Act 1981, s 73.
[8]Bail Act 1977 (Vic) s 4AA(1), 4AA(1) and (2).
The grounds on which bail is sought by the applicant are:
(a) the applicant has a stable place of residence;
(b) the applicant has ties to the jurisdiction;
(c) the applicant has strong family support;
(d) the availability of treatment in the community;
(e) the availability of an undertaking to report any bail breaches to the informant;
(f) the availability of a surety;
(g) the significant time likely to be spent on remand; and
(h) the availability of appropriate conditions to mitigate any risk of further offending or failing to appear.
The respondent opposes the application for bail on the basis that the applicant has not demonstrated the existence of exceptional circumstances that justify the grant of bail. It further opposes the application on the basis that the applicant poses an unacceptable risk of:
(a) endangering the safety and welfare of any person;
(b) committing an offence while on bail; and
(c) interfering with a witness or otherwise obstructing the course of justice in any matter.
Current bail
The applicant is presently on bail in respect of one outstanding matter. On 9 February 2020, he was charged with possessing a drug of dependence (MDMA), possessing a prohibited weapon without exemption or approval and dealing with property suspected of being the proceeds of crime. He was granted police bail on the same date. These matters are next listed for mention on 5 June 2020 in the Melbourne Magistrates’ Court. The applicant was not on bail at the time of the alleged offending on 7 January 2020.
The alleged offending
The prosecution alleges that around 6.00am on 7 January 2020, Lewis Dean (‘the complainant’) was driving his white Holden Commodore utility on Ghazeepore Road in Torquay when he observed a blue Toyota Camry slowly approaching his vehicle. As he came to pass the Toyota Camry, a woman, alleged to be Braniff, exited the vehicle and signalled to the complainant that she needed help, causing him to ask ‘what’s wrong’? At that point, three men, one of whom is alleged to be the applicant, exited the Toyota Camry wearing balaclavas, sunglasses and gloves and carrying long-arm firearms.
Two of the men approached the complainant, pointed the firearms at his head and ordered him to get out of his vehicle. As he exited the vehicle, it is alleged that he was struck to the back of the head with the butt of a firearm and dragged to the rear of the Toyota Camry, where he was thrown to the ground, and where the third man was standing. One of the offenders demanded the complainant’s phone and took it from his hand.
As the complainant lay on the ground, one of the male offenders entered the complainant’s vehicle and manoeuvred it so that it was facing the rear of the Toyota Camry, with the complainant lying in between the vehicles. All three male offenders are alleged to have then beaten the complainant whilst he was on the ground.
After some time, two of the men left the area in the complainant’s vehicle, while the third man and Braniff remained with the complainant. The complainant states that the remaining man was attempting to mechanise the bolt into a firearm. Fearing that he was going to shoot him, the complainant escaped on foot into a nearby paddock. As he was running away, he turned to see the Toyota Camry following him, with the third man hanging out of the rear left window, pointing a firearm at the complainant. The prosecution allege that the applicant fired three shots as the complainant was running away.
The complainant later reported the incident to emergency services.
At approximately 9.53am the same morning, the stolen vehicle was abandoned in Peter Street, Grovedale. At 9.00pm that evening, police were called to Peter Street to find the vehicle on fire.
The prosecution relies on CCTV footage depicting the stolen vehicle being followed by the Toyota Camry. Additionally, it relies on the results of a forensic examination of the stolen vehicle, which indicates that the applicant’s DNA is 100 billion times likely to be one of the contributors of DNA found on the steering wheel.
The applicant was arrested at his residence on 25 March 2020. It is alleged that he attempted to avoid arrest by closing the front door on police and going to the back of the property, whereupon the police had to force entry to arrest him.
In his record of interview, the applicant denied any knowledge or involvement in the alleged offending. The respondent was unable to explain how his DNA came to be in the stolen vehicle.
On 27 February 2020, a telephone call between the applicant and co-accused Nichols, who was then in custody, was recorded on the Arunta system, which records conversations in which prisoners are engaged. It is alleged that the applicant and Nichols discussed finding a named witness in the proceedings, assaulting her and shaving her head. The applicant was recorded saying that he knew where the witness lived.
Evidence on the application
The affidavit material
The application proceeded on the affidavits dated 27 April 2020 provided by the applicant’s solicitor, Nadia Giorgianni and the applicant’s mother, Patricia Temple. The respondent’s case was supported by the affidavit of John Weigl, solicitor for the Office of Public Prosecutions, dated 8 May 2020.
The Court also heard evidence from witnesses, which I have summarised below.[9]
[9] The Court was not provided with a copy of the police brief in this matter.
Acting Sergeant Simon McCloskey
Acting Sergeant Simon McCloskey gave evidence about the applicant’s bail history, pointing to the alleged failure of the applicant to comply with previous bail conditions to reside with his mother in 2019. He noted instances of further offending during this period, including committing an indictable offence whilst on bail.
Acting Sergeant McCloskey expressed concerns about the safety of a witness who provided a statement on the police brief.
During cross-examination, counsel for the applicant explored the mobile telephone usage of the applicant and Braniff, as well as the placement of mobile telephone towers in the local areas. Counsel also asked questions about Braniff, her taped police interview, and subsequent police statement where it is alleged that some but not all of what she told police was the truth.
Acting Sergeant McCloskey confirmed that police had not recovered a firearm associated with the applicant.
Patricia Temple
Ms Patricia Temple, the applicant’s mother, gave evidence that he would be able to live with her at her home in Queenscliff if granted bail. She noted that her husband, daughter and daughter’s child also live at this address.
Ms Temple is prepared to provide a surety of $10,000 for the applicant. She explained to the Court that such amount was financially difficult to provide in the circumstances, her small cleaning business having been significantly affected by the current COVID-19 pandemic. Further, Ms Temple is prepared to give an undertaking to the Court to contact police should she become aware of her son not abiding by any bail conditions that might be ordered.
Ms Temple informed the Court that, should the applicant be granted bail, he would be able to work in her husband’s bricklaying business. She noted that the business has not been affected by the pandemic and the applicant would be able to work on a full time basis, up to six days per week.
During cross-examination, counsel for the respondent referred to the applicant’s bail situation between May and August 2019, where one of his bail conditions was to reside at Ms Temple’s home address. It was noted that Ms Temple gave similar evidence in 2019 that she would ensure compliance with the applicant’s bail conditions and contact police if she became aware of any breaches. Ms Temple conceded that the applicant was absent from her home for ‘many days in a row’ in July 2019 and she did not take any steps to inform police that he was breaching bail.
During re-examination, it was noted that the application for bail in 2019 did not involve the provision of surety and no arrangement for steady employment was in place.
The applicant
The applicant is 27 years old. He has a six-year-old son he sees regularly, who stays over at the Queenscliff address. The child’s mother works with Ms Temple in her cleaning business.
The applicant is supported by Ms Temple, who was his primary carer after his parents separated when he was three years old. The applicant maintains contact with his two sisters and two step-brothers, but has little contact with his father, whom he describes as being an alcoholic and physically violent towards his mother. Ms Temple gave evidence that the applicant has a good relationship with her husband, the applicant’s step-father.
The applicant has a history of addiction to illicit substances, commencing in high school with cannabis. This later progressed to ecstasy, amphetamines and, most recently, methamphetamine, since the age of 18. He completed high school and was thereafter employed in the concreting industry, but has struggled to maintain employment due to his ongoing drug addiction.
The applicant has had a significant criminal history from 2013. He has relevant convictions including possessing a controlled weapon without excuse in 2013 and 2017, possessing cartridge ammunition without a licence or permit and possessing a prohibited weapon without exemption or approval also in 2013, drug possession in 2016, 2017 and 2019, and a number of dishonesty offences including theft of a motor vehicle, burglary and handling stolen goods.
The applicant’s criminal history also discloses eight convictions for bail related offences over a number of years. This includes contravening conduct conditions of bail, twice committing an indictable offence whilst on bail, driving whilst suspended, contravening a fine default order and, most recently, breaching a community correction order in February 2020.
The applicable legislation
Pursuant to s 4A(3) of the Act, in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’ as defined in s 3AAA of the Act. Those factors include but are not limited to:
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, it must apply the ‘unacceptable risk test’ pursuant to s 4D(1)(a) of the Act. That is, bail must be refused if the prosecution satisfies the Court that there is an unacceptable risk that the applicant would, if released on bail:
(a) endanger the safety or welfare of any person; or
(b) commit an offence while on bail; or
(c)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(d)fail to surrender into custody in accordance with the conditions of bail.[10]
[10]Ibid, s 4E(1)(a).
In applying the unacceptable risk test, the Court is again obliged to take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
Finally, the Court is required to interpret and apply the Act having regard to s 1B, which provides, in part:
(1) The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; …
Meaning of exceptional circumstances
The meaning of ‘exceptional circumstances’ is not defined in the Act but has been discussed in a number of decisions of this Court. In DPP v Muhaidat, Kaye J (as he then was) stated:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[11]
[11]DPP v Muhaidat [2004] VSC 17, [13]-[14], cited with approval in Re Reker [2019] VSC 81 [39] (Beale J) and Re Diab [2020] VSC 196 [36] (Beach JA).
In Re Reker, Beale J referred to the above observations of Kaye J in DPP v Muhaidat, and added:
Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[12]
[12]Re Reker [2019] VSC 81 at [39].
It is clear that exceptional circumstances can arise from a combination of factors. In the recent matter of Re Broes, Lasry J noted:
Exceptional circumstances may be established by reason of a single exceptional circumstance or through a combination of factors, including personal factors of the applicant, the strength of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[13]
[13]Re Broes [2020] VSC 128 [22].
The applicant’s contentions
The applicant submits that the following factors are established by the evidence and, in combination, demonstrate the existence of exceptional circumstances that justify the grant of bail:
The strength and nature of the prosecution case
The applicant accepts that the present charges are very serious allegations and he faces a significant term of imprisonment if found guilty. However, he does not concede that the case against him is strong. It is submitted that the evidence against him is limited at this stage, and there are genuinely triable issues. The applicant acknowledges that, at this preliminary stage, there appears a high likelihood that his DNA was located on the steering wheel of the complainant’s motor vehicle. However, it is submitted that the evidence may reveal the complainant was involved in the drug world, with an alternate explanation for the DNA result being possible.
Noting that the complainant is unable to identify the offenders, the applicant submits that the prosecution case relies on evidence from co-accused Braniff that implicates him in the offending. It is noted that Braniff made a police statement in which she swore to telephoning the applicant from her mother’s residence in Geelong and arranging to meet up. She stated that she subsequently met with the applicant, Nichols and a third male, who all got into the Toyota Camry and asked her to drive them to Torquay to purchase drugs. In her statement, Braniff does not provide a version of events that involves the use of firearms. Acting Sergeant McCloskey gave evidence that he does not accept the totality of her statement as being truthful.
Further, it is submitted that Braniff’s statement is not presently admissible against the applicant as she is a co-offender and currently facing committal proceedings. However, it is also accepted that she is listed as a witness in the police brief relating to the applicant and Nichols. As she is a co-accused who is presently contesting the charges against her, I agree with the submission that I should not take into account her version of events in deciding this application.
Moreover, it is submitted that the available CCTV footage does not identify the offenders.
Counsel for the applicant noted the aforementioned Arunta call conversation between the applicant and Nichols, which has yet to be transcribed. It referred to the bail application in Re Cameron,[14] where it was submitted that the strength of the interpretation of telephone recordings in that case was difficult to assess without transcription. It is submitted that the present case is similar to Re Cameron, in the sense that no transcription or recording of the Arunta call has been provided in the hand up brief. Acting Sergeant McCloskey gave evidence that the conversation is relevant to a family violence dispute and unrelated to the matters before this Court.
[14]Cameron v Gornowicz [2017] VSC 46.
Availability of surety and stable place of residence
As above, Ms Temple is willing to offer a surety in the amount of $10,000 cash and make an undertaking to report any bail breaches to the informant. She is also offering a place of residence for the applicant to live with her. Further, counsel for the applicant noted his ties to the jurisdiction and the support of his family.
Special vulnerability
It is noted that the applicant was diagnosed with abnormal white cell function in January 2020. Prior to being on remand, he had been referred by his general practitioner to consult with a rheumatologist regarding ongoing management whilst in the community.
Current Community Corrections Order
As noted, the applicant was made subject to a CCO in November 2017 with conditions which included that he be under the supervision of a Community Correction Officer, undergo assessment and treatment for drug dependency and mental health support, as well as participate in programs to address his offending. The CCO was originally imposed for a period of two years but, as a result of a contravention, was varied on 12 February 2020 to operate for a further period, expiring on 8 November 2021.
It is submitted that should the applicant be released on bail, he would continue to be subject to the conditions of the CCO, including attendance at the County Court in Melbourne for judicial monitoring on 26 June 2020. This is contended as another factor in support of a grant of bail.
Length of time in custody if bail is refused
It is submitted that the applicant is likely to spend a significant period in custody if bail is refused, estimated to be over two years. A committal mention is listed on 12 June 2020, however, it is submitted that the effect of COVID-19 on the courts is such that a committal date is most likely to be in 2021. It is submitted that, if the applicant is committed, any trial would not proceed until 2022. Counsel for the applicant referred to a publication authored by Chief Judge Kidd on the County Court of Victoria’s website published on 6 May 2020. He refers to a guiding principle:
There is no certainty about when jury trials may resume. Still less there is any certainty about when they might resume as business as usual. It is important for the court to be in a position to conduct jury trials should the circumstances allow their resumption this year.
Counsel for the applicant submitted that the two possibilities are that jury trials could return in the fourth term of 2020 or the beginning of January 2020. While noting that it is difficult to precisely determine the extent of delay, it is submitted that the publication of Chief Judge Kidd indicates that criminal trials have at least been delayed by a year in the County Court.
Lack of relevant criminal history
It is conceded on the applicant’s behalf that he has a significant criminal history and a number of contraventions of bail and other court orders.
With respect to the his risk of the matters identified in s 4E of the Act, it is submitted that there are appropriate conditions available to mitigate the risk of the applicant’s further offending or failing to surrender in accordance with bail conditions.
The respondent’s contentions
The respondent opposes the application for bail on the basis that the applicant has not been able to demonstrate that the matters raised on his behalf individually, or in combination, satisfy the test of exceptional circumstances. In particular, it relies on the fact that the delay before resolution of the matter is not of an unusual length, and that the prosecution case should not be regarded as being weak.
It is submitted that aspects of the affidavit relied upon by the applicant are outdated, particularly in relation to the current position of his outstanding legal proceedings. Based on current listings of contested committal hearings in Geelong, Mr Weigl is confident that the matter, if proceeding to a committal hearing, would be listed for late 2020 or early 2021.
Further, the application is opposed on the grounds that the applicant would pose an unacceptable risk of endangering the safety and welfare of any person, committing an offence while on bail and interfering with a witness or otherwise obstructing the course of justice. The submissions in support of these grounds are as follows:
Endangering the safety and welfare of any person
It is indicated that the applicant is a ‘prohibited person’ under s 3 of the Firearms Act 1966. Further, the respondent notes that the firearm alleged to have been used in the alleged offending has not been located.
Additionally, it is noted that the applicant’s co-accused Braniff has made a statement implicating the applicant and expressing fear of what the applicant may do if released. Further, it is submitted that witness Tayla Smith is also very frightened of what he may do if bail is granted. Smith gave a police statement on 22 January 2020, detailing that co-accused Nichols confessed to her about robbing the complainant. It is noted that her statement does she identify the applicant as a participant. The respondent submits there was evidence of communication between Smith’s Facebook account to the complainant regarding meeting up and buying drugs, sent without her knowledge or consent. It is contended that the Facebook messenger messages have since been deleted.
As discussed earlier, an Arunta telephone call reveals that the applicant and Nichols discussed finding Smith, assaulting her and shaving her head. However, I note the applicant’s contention that such conversation bears no relevance to the present matter of bail, as the context of the call was in relation to an irrelevant family violence incident.
Committing an offence while on bail
As noted above, it is submitted that the applicant has demonstrated continued disregard for court imposed sanctions or orders, and is likely to commit an offence if bail is granted.
I note that the firearm has yet to be located. The respondent submits that the police believe the applicant has knowledge of its location and will have access to it.
Interfering with witnesses or otherwise obstructing the course of justice
The respondent relies on its submissions above regarding the applicant’s alleged comments in relation to Smith and the fear expressed by Braniff.
It is also contended that the proposed residential address with Ms Temple is not suitable, as the police believe that she would be unable to curb or influence his behaviour, whereabouts or drug addiction, with consequent further breaches of bail and offending.
It is submitted that the applicant has admitted to having an addiction to ice and using approximately a gram per day.
In light of all the above matters, the respondent submits that the applicant has not satisfied the exceptional circumstances test, and that in any event, no conditions or the addition of a surety would reduce his risk to an acceptable level.
Conclusions
It is common ground that it is necessary for the applicant to establish that exceptional circumstances exist which justify a grant of bail. If established, it is then for the respondent to satisfy this Court that the applicant is an unacceptable risk, such that a grant of bail should not be made. I have discussed these principles above and will not repeat them.
The alleged offending involves four persons acting together, with a significant degree of violence and intimidation and employing multiple firearms. It is conceded that the allegations against the applicant are very serious. It is presently unclear whether the attack was random, the complainant was lured to the scene, or it was a drug related meeting that went wrong. Those possibilities may become clearer later. Nonetheless, it is clear enough that the allegation is that the offenders were armed, and had made preparations in a planned attack on the driver of a motor vehicle. It is not an insignificant fact that the complainant reported the events to police later on.
It might also be observed that not only was the victim physically assaulted, but also terrorised by the threat of being shot and chased with shots being fired. The circumstances were likely to have been terrifying for him. The use of firearms, violence and intimidation is a significant feature of this alleged offending.
Strength of the prosecution case
I note that the police brief has not been provided to the Court. In any event, it is not my role to analyse the strengths and weaknesses of the prosecution case at this stage, that being an appropriate task for the committal magistrate. Nonetheless, it is appropriate to remark that, based on the evidence before me, it cannot be concluded that the prosecution case is weak. While there is no eye-witness account of the applicant’s alleged involvement, the finding of his DNA on the steering wheel of the complainant’s vehicle strongly suggests he had been in the car at some point before the deposit of the sample. The prosecution case is that there is no innocent explanation as to why the applicant would have previously been in the vehicle, thus contending that he was there on the occasion the complainant was attacked.
Further, efforts were later made to destroy the car in a likely attempt to eliminate evidence regarding the offending and perpetrators . This circumstance represents an aggravating feature of the offending, and may in due course represent post-offence conduct. It is further alleged that the complainant received injuries as a result of the assault. Although they do not appear to be particularly significant, they are capable of supporting the proposition that a violent event occurred, and that the allegations are not simply a construct by the complainant.
Delay
In the circumstances that existed up until early 2020, it is likely there would have been a delay in the finalisation of this matter which would have not been regarded as unusual. I note that the matter is listed for a committal on 12 June 2020, and thus is still at a preliminary stage. According to the affidavit of Mr Weigl, it is anticipated that the matter will be listed for no more than one day or more, with the committal hearing being listed for later this year or early 2021.
However, as is well known, it is likely there will be a degree of added delay which is unusual. The Victorian community is now responding to the COVID-19 global pandemic, with significant impacts experienced widely across the general community. The criminal justice system is not immune from the effects of the pandemic. As a result, a number of Victorian courts have made observations about how the pandemic might affect aspects of how the system operates, including increased delay and issues relating to the health of those in custody.
In Re Diab,[15] Beach JA considered a number of ways in which the current health crisis created by COVID-19 might be relevant in a bail application:
(1) Delay in trial 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.[16]
[15][2020] VSC 196.
[16]Ibid, [38].
I have taken these observations into account. In light of the seriousness of the allegations and the applicant’s past criminal history, it is accepted that if convicted, he may face a significant sentence of imprisonment. In my opinion, this would likely exceed the delay currently being faced before this matter is finalised.
In the circumstances, I am not of the opinion that the delay and impact of COVID-19 on the personal circumstances of the applicant are unusual, of such effect or to the extent that, when considered individually or together, would amount to exceptional circumstances as explained by Beach JA in Diab.
Furthermore, I am unable to act on any suggested special vulnerability of the applicant as a result of the possibility of COVID-19 infection. I do take into account the observations of the Court of Appeal in Brown[17] as to the anxiety and stress likely to be experienced by any prisoner currently held in custody in a Victorian prison. However, I note that, at the present day, no prisoner has been infected with the virus.
[17]Brown v The Queen [2019] VSCA 286.
The above noted, however, more needs to be considered, as exceptional circumstances can also be established by a wider combination of relevant factors.
The applicant’s background
It is clear that the applicant’s criminal history demonstrates a number of recent examples of disregard for the authority of court orders. In my opinion, his history of non-compliance represents a significant factor that weighs against a grant of bail, and contributes to a significant sense of unease that he is at risk of breaching bail conditions if bail is granted.
I note that this case involved the possession and use of a firearm, and that the applicant has a history of weapons offences. Furthermore, it is alleged that he discharged the firearm during the complainant’s escape from the scene of the offending.
I have noted evidence of the applicant’s history of drug addiction, and the requirement to engage in drug and mental health treatment as part of his CCO. A report by the Department of Justice and Community Safety dated 20 November 2019 highlights his unsatisfactory performance on this CCO. Furthermore, no evidence or proposal for future treatment or management has been put forward as to how these addiction issues might be addressed beyond what attaches to the ongoing CCO. In the face of the opportunities previously provided to him, it is apparent that the applicant’s response has been depressingly unsatisfactory. These circumstances fail to leave the Court with any confidence that the applicant will attend to his drug rehabilitation opportunities in a diligent way should he be granted bail.
Interfering with a witness or otherwise obstructing the course of justice, or committing further offences
The respondent submits there is a risk that if bailed, the applicant will interfere with a witness, or otherwise obstruct the course of justice, or commit further offences. The respondent relies on the Arunta recorded conversation discussed above. In all the circumstances, I do not think the evidence is strong enough to conclude that this conversation displays an intention on the part of the applicant or Nichols to interfere with that witness in a relevant way connected to these current allegations. At this stage, in the absence of a transcript, I am not of the opinion that such adverse inferences can be drawn against the applicant from this conversation.
The above stated, in my opinion, there does remain a risk that, if bailed, the applicant will commit further offences, not necessarily closely connected to the current charges. I have already discussed the applicant’s poor past criminal history in this regard.
Stable accommodation and surety
I have considered the offer by the applicant’s mother to provide ongoing accommodation and a surety of $10,000 in support of the application. However, it is apparent that, on a previous grant of bail, the applicant breached a condition that he reside with his mother and she failed to report such breaches to the authorities. I note the offer of a surety is a new development, but in all the circumstances, it does not persuade me as being sufficient with other factors to satisfy the exceptional circumstances test.
In light of the above circumstances, and applying the relevant legal principles, I am of the opinion that the applicant has not satisfied the exceptional circumstances test. In forming this conclusion, I have considered all of the factors in combination, as required under the Act.
Unacceptable risk
In determining that the applicant has not met the exceptional circumstances test, it is not necessary for me to consider unacceptable risk. Nonetheless, it is worth stating that, had I found that exceptional circumstances exist, I would have been satisfied that the respondent has discharged its burden of proving that the applicant represents an unacceptable risk. In this regard, I refer to the matters discussed above in some detail. I do not think that the unacceptable risk can be ameliorated to an acceptable one by the imposition of a set of strong conditions.
In all the circumstances, I will refuse the application for bail. I note that bail will be reviewed by the magistrate at the conclusion of the committal hearing, when an assessment of the evidence will have been made. Furthermore, should circumstances change with respect to any impact of COVID-19, the matter may then be brought before the Court again.
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