Re Ceylan
[2018] VSC 361
•29 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0158
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by SEDAT CEYLAN |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 June 2018 |
DATE OF JUDGMENT: | 29 June 2018 |
CASE MAY BE CITED AS: | Re Ceylan |
MEDIUM NEUTRAL CITATION: | [2018] VSC 361 |
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CRIMINAL LAW – Bail – Fraudulently inducing persons to invest money, obtaining property by deception (7 charges), negligently dealing with proceeds of crime (6 charges), making a false document (13 charges), possessing methylamphetamine, possessing cannabis and committing an indictable offence while on bail – Requirement to show compelling reason why detention in custody not justified – Whether compelling reason shown – Whether unacceptable risk – Compelling reason not shown – Bail refused – Bail Act 1977, ss 1B, 4(2)(a), 4(2)(d) and 4(4).
WORDS AND PHRASES – ‘Compelling reason’ – Bail Act 1977, s 4(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R Harper | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr A Trood | Starke Westwood Lawyers |
HIS HONOUR:
The applicant is currently facing charges of fraudulently inducing persons to invest money, obtaining property by deception (7 charges), negligently dealing with proceeds of crime (6 charges), making a false document (13 charges), possessing methylamphetamine, possessing cannabis and committing an indictable offence while on bail.
The applicant was arrested on, and has been in custody since, 22 March 2018. On 12 June 2018, the applicant filed an application for bail in this Court. The applicant has previously been refused bail in respect of the present charges, in the Magistrates’ Court, on 24 April 2018.
At the time he was charged, the applicant was on bail for another indictable offence, possessing methylamphetamine. Having been accused of a Schedule 2 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — that is, committing an indictable offence, namely, possessing cannabis,[1] while on bail for another indictable offence[2] — pursuant to s 4(4) of the Act, the Court must refuse bail unless the applicant ‘shows compelling reason why [his] detention in custody is not justified’.
[1]See s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
[2]See s 30B of the Act and item 1(a) of Schedule 2.
In argument, counsel for the applicant accepted that there were two additional bases that brought his client within s 4(4) of the Act: first, the applicant was accused[3] of committing an indictable offence during the period of a community correction order made in respect of the applicant, in September 2017, for another indictable offence (being a prohibited person possessing a firearm);[4] and secondly, the applicant is accused of an offence against the Act.[5]
[3]Section 4(4) of the Act deals with cases where a person has been accused of a Schedule 2 offence; whereas s 4(2)(a) of the Act deals with cases where a person has been charged with a Schedule 1 offence. It was not suggested in argument that there was any significance in the different language used in these provisions.
[4]Item 1(d) of Schedule 2. Being a prohibited person in possession of a firearm is an indictable offence under s 5(1) of the Firearms Act 1996, carrying as it does a penalty of imprisonment of 10 years (level 5 imprisonment: see s 109(1) of the Sentencing Act 1991): see s 112(1) of the Sentencing Act.
[5]Section 30B of the Act. See item 30 of Schedule 2.
The alleged offending
The charges of inducing persons to invest money, obtaining property by deception, negligently dealing with the proceeds of crime and making false documents (‘the dishonesty charges’) relate to events that are alleged to have occurred between February 2014 and July 2015.
The dishonesty charges involve the alleged fraudulent facilitation of the purchase and sale of high-end motor vehicles for profit. The Crown case is that the applicant fraudulently induced one victim to provide in excess of $500,000 for the purchase of three Mercedes Benz vehicles. The offending is said to include the use of a false name and the creation of false documents. The offending also included an occasion where the applicant took possession of a Mercedes Benz, after entering into an agreement with a second victim for the purchase of that vehicle, in circumstances where the second victim did not ultimately receive any payment. The charges laid against the applicant identify three individuals[6] and the ANZ Bank as victims of the applicant’s alleged offending.
[6]Identified by name in charges 1, 8 and 10.
The drug possession charges concern the alleged discovery of the relevant drugs on 22 March 2018. The alleged possession of cannabis on that day (22 March) founds the charge of committing an indictable offence while on bail in respect of an earlier drug possession charge.
In an affidavit sworn by the applicant’s solicitor, Massi Ahmadzay, the applicant’s solicitor deposes that the applicant intends to contest all of the charges laid against him except the drug possession charges. In the affidavit there is a statement that the applicant ‘denies the allegations’. There is then a more specific statement that the applicant denies those charges involving the first alleged victim. In his affidavit, Mr Ahmadzay also observes that two co-accused (the applicant’s sister and a business associate of the applicant) were interviewed in relation to the alleged offending and released on bail.
The applicant’s background
The applicant is 49 years of age. He has a criminal history going back to 1993. His criminal history includes convictions for obtaining property by deception, obtaining a financial advantage by deception, attempting to obtain property by deception and attempting to obtain a financial advantage by deception.[7] He also has prior convictions for failing to answer bail in 1997 and 2016.
[7]See further, R v Ceylan [2007] VCC 653; R v Ceylan [2008] VCC 204 (‘Ceylan No 2’).
In 2001, after being interviewed by Australian Taxation Office investigators in relation to allegedly false claims totalling in excess of $2 million, the applicant left Australia on a false passport and travelled to Turkey where he remained until early January 2007.[8] According to Mr Ahmadzay’s affidavit, ‘the Australian Government’ made an unsuccessful attempt to extradite the applicant while he was in Turkey. The applicant, however, came back to Australia voluntarily after notifying police of his intention to return.
[8]Ceylan (No 2) [2008] VCC 204 [3], [8] (‘Ceylan’).
Applicant’s material and contentions
As I have already observed, the applicant’s solicitor filed an affidavit in support of the applicant’s application for bail. In his affidavit, Mr Ahmadzay refers to the fact that the prosecution ‘intends to rely on forensic data to be gathered from electronic devices located during search warrants to establish the applicant’s guilt’. After referring to a ‘projected wait time of 15 months’, Mr Ahmadzay deposed:
The applicant’s position is that he is not prepared to proceed with the committal hearing while a forensic procedure, examination or test described in the hand up brief remains incomplete.
This causes the very real potential that [the] committal hearing will not be ready to proceed until August 2019 and the potential that a trial will not proceed until mid-2020. This amounts to a substantial delay that is simply unacceptable.
Exhibited to Mr Ahmadzay’s affidavit is a report dated 7 June 2018, written by Denise Abadee, on the letterhead of an organisation named ‘The Wellbeing Planet’.[9] In her report, Ms Abadee says that the applicant was referred to her by Mr Ahmadzay and:
An in custody Alcohol & Other Drugs assessment, was facilitated for the purpose of developing treatment recommendations to be considered for a pending bail application.
Subsequently an appointment was scheduled on 7 June 2018, to conduct a structured comprehensive Alcohol & Other Drugs Assessment with Mr Ceylan through the use of JABBA, while he was in custody at the Melbourne Remand Centre.
[9]Ms Abadee’s report identifies her qualifications as Diploma in Alcohol and Other Drugs; Diploma in Mental Health/Dual Diagnosis; Certificate IV in Community Services (Alcohol and Other Drugs); Victorian Government Department of Justice and Human Services accreditation as an assessor and clinical supervisor for forensic drug diversion programs and assessor and supervisor of drink drive programs; and Certificate IV training and assessment as a facilitator.
In her report, Ms Abadee says that the applicant reported having no opportunities to engage in Alcohol & Other Drug treatment. After setting out further matters of history, and other opinions, Ms Abadee stated:
Mr Ceylan has been in custody since 22 March 2018. After his assessment, it is the writer’s opinion that he would benefit from a one month residential program at the Wellbeing Planet and has a bed booked and available to him if granted bail. He has agreed to participate in the program with program rules and compliance attached to his bail conditions including three times weekly and random supervised urinalysis, including a mental health plan and an assessment by Dr Michael Kosminsky.
The writer or nominee of the Wellbeing Planet will and does email the informant regularly or can facilitate reporting to St Kilda police station to sign in if required.
The program will ensure that Mr Ceylan will comply with his bail conditions and the program rules including discharge for drug use or positive urinalysis, violence, sex or breaking house boundaries or leaving the facility unsupervised with breaching or breaking any cardinal rules will result in instant discharge and the informant or their superior being notified via phone and email immediately.
In his notice of intention to make application for bail, the applicant identifies the following grounds upon which bail is sought to be granted:
1.1-month static residence at The Wellbeing Planet for drug and alcohol counselling;
2.To abide by all of the directions of the staff and terms and conditions of The Wellbeing Planet;
3.Ongoing supervision and treatment from Denise Abadee;
4.A surety in the amount of up to $500,000;
5.The Applicant not use any drugs of dependence;
6.The Applicant not use alcohol;
7.Report daily to his local Police Station;
8.The Applicant surrender any passport held by him and not to apply for any travel documents;
9.The Applicant not attend any points of interstate or international departure;
10.The Applicant only to have use of one mobile phone and one mobile phone number and provide the number to the Informant;
11.The Applicant not communicate with any prosecution witnesses in any of his matters, other than the Informant; and
12.The Applicant be under a curfew to remain at the fixed residence between the hours of 9:00 pm and 6:00 am every day.
The applicant submits that he is not a ‘flight risk’, having ‘very strong ties to this jurisdiction’. His entire family live and work in Melbourne and he is in a committed relationship with a partner who is prepared to provide a substantial surety in the amount of $500,000.
As to the applicant travelling to Turkey in 2001, Mr Ahmadzay deposed:
It is conceded that in the past the applicant did travel to Turkey whilst facing charges relating to the Australian Taxation Office. It is however well documented that he was escaping to protect his family from underworld gangsters. The applicant contacted Australian Federal Police and advised that he was returning after learning of the ultimate demise of those gangsters who had previously threatened him. He returned to Melbourne of his own volition knowing the consequences that awaited him upon his return to Melbourne including a potentially long term of imprisonment.
In support of his application for bail, the applicant relies upon Ms Abadee’s opinion that he would benefit from a one-month residential rehabilitation program. Mr Ahmadzay deposes that the applicant’s time in custody has been ‘utilised effectively as a detoxification period, allowing the applicant to be completely free of any drugs in his system and to think clearly and rationally if he is freed into the community’. Moreover, it is submitted that ongoing drug and alcohol counselling will further assist the applicant in his endeavour to remain free of illicit drugs and alcohol. The very substantial delay in the proceeding (contended potentially to be a period of 25 months) would deprive the applicant ‘of the opportunity for rehabilitation and personal betterment’ were he to spend that time in custody prior to trial.
With respect to the fact that the applicant was required to show compelling reason because he was accused of committing an indictable offence while on bail for another indictable offence, counsel for the applicant noted that on 14 June 2018, the original indictable drug possession offences were dealt with in the Magistrates’ Court and a ‘without conviction’ adjournment on conditions was the resulting disposition. It was submitted that this disposition of these charges demonstrated that the foundational charges were at the lower end of the spectrum of seriousness. This was a matter that was said to be relevant in determining whether the applicant showed ‘compelling reason’ within the meaning of s 4(4) of the Act.
Ultimately, the applicant submitted that his circumstances and the combination of factors already referred to showed compelling reason why his detention was not justified. Additionally, it was submitted that the applicant was not an unacceptable risk if released on bail.[10] Such risk as the applicant might be held to pose if released on bail could be ameliorated with the imposition of ‘onerous’ bail conditions, including those proposed in the applicant’s notice of intention to make application for bail.
[10]See s 4(2)(d) of the Act.
Respondent’s material and contentions
In opposition to the applicant’s application for bail, the respondent relied upon an affidavit sworn by a solicitor of the Office of Public Prosecutions, Gavin Martin. Mr Martin deposed that the applicant’s matter is, notwithstanding the matters referred to in the affidavit of Mr Ahmadzay, ‘next listed for a two-day committal on 8 October 2018’.
Mr Martin’s affidavit exhibited, among other things, a summary of the applicant’s alleged offending and a report of the informant, Detective Senior Constable Bradley Coller. The report from the informant stated that police opposed bail for the following reasons:
1. Likelihood of long term imprisonment if found guilty. Strong case.
2. Flight risk.
3. Failures to meet requirements of court orders in the past.
4. Unacceptable risk.
5. Failure to show compelling reasons.
In his report, the informant asserted that the applicant has ties to Turkey, having ‘fled the country in 2001 on [a] false passport when facing charges of deceptions’.
In relation to the issue of the applicant’s compliance with court orders in the past, the informant noted that, at the time of his arrest on 22 March 2018, the applicant was serving a community correction order imposed in September 2017. According to the informant’s report, the applicant has failed to comply with any conditions of that CCO. The informant also referred to the two failures to answer bail that I have already noted. In addition, the informant observed that applicant has not held a driver’s licence since before 2013, but continues to drive. The informant then identified seven occasions between January 2014 and April 2017 when the applicant has been apprehended for either driving while disqualified or unlicensed driving.
As to the issue of unacceptable risk, the informant stated:
From his prior history it is clear that Ceylan has continually used deception related offending (since 1993 at age 24) to finance his lifestyle which consists of gambling, driving luxury vehicles and staying in luxury apartments. This is despite lengthy sentences and attempts to rehabilitate in relation to his offending.
…
The accused has an extensive gambling problem which was highlighted by his Crown Casino account with over $317,000 lost in a six month period around this offending. This was alluded to by admissions in [his] record of interview where he confessed to gambling away the money obtained from the deception with the ANZ Bank ($74,235.36).
Unacceptable risk due to escalating drug addiction which is highlighted by admissions, outstanding bail and current offending.
As to the bail conditions proposed by the applicant, the respondent submitted that the imposition of those conditions would not make the applicant an acceptable risk if released on bail. For example, a condition that the applicant surrender any passport was, it was submitted, somewhat hollow in circumstances where the applicant had previously fled Australia on a false passport.
Cross-examination of the informant
On the hearing of the bail application, counsel for the applicant cross-examined the informant. The cross-examination established that, despite the investigation of the applicant’s alleged offending having already taken some years, there are still statements from relevant witnesses that are outstanding.
More particularly, as a result of the execution of search warrants, a number of electronic devices, which require analysis, have been seized. In April 2018, the informant was told that there would likely be a ‘15-month minimum wait’ for the relevant analyses to be conducted.
The cross-examination of the informant was relied upon by the applicant in support of his contention that there will be a delay in the committal and any trial of the applicant. It was submitted that the identified delay is unacceptable, and constitutes a compelling reason why bail should be granted.
Counsel for the applicant did not, however, cross-examine the informant about, or seek to dispute any of, the matters set out in the informant’s report (and to which I have already referred).
Analysis
Section 4(4) of the Act requires this Court to refuse bail to the applicant unless the applicant ‘shows compelling reason why [his] detention in custody is not justified’. Section 4(4), like all statutory provisions, falls to be construed by reference to its text, context and purpose.[11]
[11]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–47 [47] (Hayne, Heydon, Crennan, Kiefel JJ); Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).
The current version of s 4(4) was inserted into the Act by s 5(8) of the Bail Amendment (Stage 1) Act 2017 (‘the 2017 Amending Act’). That Act also inserted s 1B. Section 1B provides:
1B Guiding principles
(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; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Immediately it should be observed that, in applying and interpreting the Act, s 1B requires regard to be paid to two competing considerations: on the one hand, safety of the community; and on the other, the presumption of innocence and the right to liberty. In an individual case there will be competing factors that tell in favour of bail (s 1B(1)(b) of the Act), and others that tell against a grant (s 1B(1)(a)).
The Act defines Schedule 1 and Schedule 2 offences by reference to Schedules 1 and 2 which were also inserted into the Act by the 2017 Amending Act. Section 4(2)(a) provides that ‘a bail decision-maker’ (defined in s 3 of the Act to include a court) ‘shall refuse bail … in the case of a person charged with a Schedule 1 offence, unless the bail decision-maker is satisfied that exceptional circumstances exist that justify the grant of bail’. As I have already observed, s 4(4) requires a bail decision-maker to refuse bail ‘for a person accused of a Schedule 2 offence unless the accused shows compelling reason why their detention in custody is not justified’. Section 4(6) provides that, for the purposes of s 4, ‘an offence that is both a Schedule 1 offence and a Schedule 2 offence must be taken to be a Schedule 1 offence’.
The explanatory memorandum to the Bail Amendment (Stage 1) Bill 2017 contained the following:
The term ‘shows cause’ in current section 4(4) is replaced with the term ‘shows compelling reason’. The intent of this change is to ensure that proper weight is given to the onus placed on accused persons charged with an offence listed in current section 4(4)(a)–(d).
In his Second Reading Speech for the Bill, the Attorney-General said:
The Bill changes the current wording of ‘show cause’ to ‘show compelling reason’. A change in the wording of the show-cause test was recommended by Mr Coghlan, in order to make absolutely clear that persons who face this test are to be refused bail unless they show compelling reasons why it should be granted.[12]
[12]Victoria, Parliamentary Debates, Legislative Assembly, 25 May 2017, 1493 (Martin Pakula, Attorney-General).
While the Attorney-General referred to a recommendation to change the wording of ‘show cause’ to ‘show compelling reason’, it should be observed that the original recommendation was to change the wording to ‘show good reason’.[13] It may be thought that in enacting ‘compelling reason’ rather than ‘good reason’, the Parliament intended that a slightly more rigorous test be applied. While compelling reason will always include (and thus be) good reason, it is possible that good reason will not always be compelling reason.
[13]The Hon. Paul Coghlan QC, Bail Review First Advice to the Victorian Government 3 April 2017, Recommendation 4.
In Paduano v Minister for Immigration & Multicultural & Indigenous Affairs,[14] Crennan J was required to consider the meaning of the words ‘compelling reasons’ in the phrase ‘compelling reasons for the absence [from Australia for five years or more]’ in a clause of a schedule to a regulation made under the Migration Act 1958 (Cth). In construing ‘compelling reasons for the absence’, her Honour made the following points:
(1) ‘Compel’ and ‘compelling’ are words of ordinary meaning.[15]
(2) A perusal of commonly used dictionaries indicated that the words ‘compel’ and ‘compelling’ are ordinary English words which have not one, but several connotations. What they had in common was, as her Honour put it, ‘a semantic debt to the Latin pello/pellere —“to force”, “to drive”, “to stimulate”, “to rouse”’ and it was clear ‘that the idea of “force” common to many of the dictionary entries [was] not confined to physical or legal force but includes moral force and the “force” of mental stimuli such as from a “compelling argument”.’[16]
[14](2005) 143 FCR 204 (‘Paduano’).
[15]Ibid 211 [31].
[16]Ibid 211 [32].
After surveying dictionary definitions and other authority, Crennan J accepted that ‘compelling’, in the provision she was considering, meant ‘forceful and therefore convincing’.[17]
[17]Ibid 213 [37]–[39].
In Babicci v Minister for Immigration & Multicultural & Indigenous Affairs,[18] the Full Court of the Federal Court considered the meaning of the word ‘compelling’ in the phrase ‘compelling circumstances’ in reg 1.20J of the Migration Regulations 1994 (Cth). In that case, while acknowledging that there were ‘shades of differences between the various dictionary definitions of “compelling”’,[19] the Court concluded that there was no error in construing ‘compelling circumstances’ to mean ‘circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense’, to a particular conclusion.[20] The Court concluded that ‘compelling circumstances’ were those which ‘forced or drove’ or ‘compelled’ a particular result.[21]
[18](2005) 141 FCR 285 (‘Babicci’).
[19]Ibid 289 [24].
[20]Ibid 289 [21].
[21]Ibid 289 [23].
In Plaintiff M64/2015 v Minister for Immigration & Border Protection,[22] the High Court considered the meaning of the expression ‘compelling reasons’ in cl 202.222(2) of Schedule 2 of the Migration Regulations. Relevantly, the clause provided for the grant of a visa if the Minister was satisfied that there were compelling reasons for giving special consideration to granting a visa having regard to specified matters. The plurality[23] said that the state of mind required of the Minister:
must be reached by reference to ‘reasons’ that are ‘compelling’; that is, those reasons must ‘force or drive the decision-maker’ ‘irresistibly’ to be satisfied that ‘special consideration’ should be given to granting the particular application.[24]
[22](2015) 258 CLR 173 (‘Plaintiff M64/2015’).
[23]French CJ, Bell, Keane and Gordon JJ.
[24]Plaintiff M64/2015 (2015) 258 CLR 173, 187–8 [31] (citations omitted).
In a separate concurring judgment, Gageler J said:
A statutory requirement that a decision-maker be satisfied that there are ‘compelling reasons’ for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.[25]
[25]Ibid 197 [64] (citation omitted).
The phrases ‘substantial and compelling reasons’ and ‘substantial and compelling circumstances’ appear respectively in s 16 of the Jury Directions Act 2015 and s 10A(2)(e) of the Sentencing Act 1991. The meaning of the phrase in s 16 of the Jury Directions Act was considered by this Court in Gul v The Queen;[26] and the meaning of the phrase in s 10A(2)(e) of the Sentencing Act was considered by this Court in DPP v Hudgson.[27]
[26][2017] VSCA 153 (‘Gul’).
[27][2016] VSCA 254 (‘Hudgson’).
In Gul, Ashley and Priest JJA said:
Although one must be careful of substituting for the statutory language, reasons will not be substantial and compelling unless they are of considerable importance and strongly persuasive in the context of the issues in the trial.[28]
[28]Gul [2017] VSCA 153 [48].
In Hudgson, the Court[29] said:
It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.
More specifically, we accept the Director’s submission that the word ‘compelling’ connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors, typically present in offending of this kind.[30]
[29]Weinberg, Whelan and Priest JJA.
[30]Hudgson [2016] VSCA 254 [111]–[112].
In construing the expression ‘compelling reason’ in s 4(4), one must be careful to ensure that the words are construed in the context in which they occur and having regard to the legislative purpose of the provisions of the Act. An examination of Schedules 1 and 2 of the Act discloses that the Schedule 1 offences are generally more serious than Schedule 2 offences. While the expressions ‘exceptional circumstances’ and ‘compelling reason’ direct attention to matters that might not necessarily be thought to fall on the one spectrum,[31] plainly the ‘exceptional circumstances’ test in the Act is intended to be one that is more difficult to satisfy than is the ‘compelling reason’ test. So much might be observed from s 4(6) which requires an offence that is both a Schedule 1 offence and a Schedule 2 offence to be taken to be a Schedule 1 offence for the purposes of s 4 of the Act.
[31]One test concentrating on frequency or rarity of circumstances, the other on the quality of reasons for a particular decision.
It is well established that exceptional circumstances within the meaning of s 4(2)(a) of the Act may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant. Similarly, an inquiry under s 4(4) as to whether an accused shows compelling reason why his or her detention in custody is not justified is an inquiry that involves a consideration of all of the relevant circumstances including the strength of the prosecution case and the history and personal circumstances of the accused. When one takes account of all of the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant’s detention is not justified. For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.[32]
[32]Cf s 37(c) of the Interpretation of Legislation Act 1984.
While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified.[33] It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional. Such a requirement would place the bar at too high a level in a scheme where the exceptional circumstances test exists as the most onerous test under the Act. While the word ‘irresistible’ was used with reference to ‘compelling reasons’ in Plaintiff M64/2015,[34] that was in the particular context of the statutory scheme then under consideration – a scheme which did not contain another test that was intended to be more onerous in different circumstances. While again one should guard against substituting the statutory language, in terms of resistibility, ‘compelling reason’ in s 4(4) of the Act might appropriately be described as reason which is difficult to resist.
[33]See Paduano (2005) 143 FCR 204, 213 [37]-[39]; Plaintiff M64/2015 (2015) 258 CLR 173, 187 [31].
[34]See Plaintiff M64/2015 (2015) 258 CLR 173, 188 [31] and 197 [64].
In concluding that compelling reason in s 4(4) of the Act means reason which is forceful and therefore convincing, I have not overlooked what was said in Gul[35] and Hudgson.[36] Those decisions, however, concerned the composite expression ‘substantial and compelling’. What was said about the word ‘compelling’ in those cases (involving, as they did, different statutes) is, at least to some extent, coloured by the fact that the statutory provisions there under consideration included the word ‘substantial’.
[35][2017] VSCA 153 [48].
[36][2016] VSCA 254 [111]-[112].
Coming back to the statutory language of the Act, in the present case, I am not persuaded that the applicant has shown compelling reason why his detention in custody is not justified. The applicant has a poor criminal history. He has prior convictions for failing to answer bail. The fact that he answered bail most recently, prior to being sentenced in September 2017 to his CCO, does not gainsay this proposition. Moreover, the use by the applicant of a false passport to flee to Turkey when facing the prospect of serious charges is hardly of assistance in his attempt to satisfy the compelling reason requirement of s 4(4). While Mr Ahmadzay’s affidavit refers to the applicant fleeing to Turkey to escape from underworld gangsters, as the sentencing judge in Ceylan (No 2) observed, the men from whom the applicant was said to have fled were killed in 2003, yet the applicant did not return to Australia until 2007.[37]
[37]Ceylan (No 2) [2008] VCC 204 [18]-[20].
With respect to the applicant’s submission that a factor telling in his favour on the compelling reason analysis is that the indictable offence that put him within item 1(a) of Schedule 2 was not of great seriousness as evidenced by the ultimate non-conviction disposition of it, it must be remembered that that circumstance was not the only reason why the applicant falls within s 4(4). He is also required to show compelling reason because he was, at the relevant time, the subject of a CCO in respect of a different and more serious indictable offence (being a prohibited person possessing a firearm). In the circumstances, there is little in the applicant’s point.
The potential for delay in this case is plainly less than desirable, and not at all satisfactory. Every effort needs to be made by the prosecution to ensure that delay is kept to a minimum. I would not foreclose the possibility of an inordinate delay at some point down the track tipping the balance in favour of the applicant being released on bail. That said, the current prospective delay is not such as to show compelling reason why the applicant, with his history, should be released on bail.
Similarly, I am not persuaded that Ms Abadee’s evidence (either alone or in combination with the other matters relied upon by the applicant) is sufficient to show compelling reason why the applicant should be released on bail. While Ms Abadee’s evidence was to the effect that this is the first occasion upon which the applicant has sought to address his substance abuse problems, the respondent noted that there was material in the sentencing reasons of the applicant’s brother, exhibited to Mr Martin’s affidavit,[38] suggesting that the applicant’s engagement with Ms Abadee is not his first engagement with a professional in relation to substance abuse issues.[39]
[38]DPP v Ceylan (Unreported, County Court of Victoria, Judge Gaynor, 2 April 2012).
[39]Ibid [6].
Ultimately, it is the applicant’s poor criminal history, prior convictions for failing to answer bail, flight to Turkey on a false passport and personal history to which I have referred that lead me to conclude that the applicant has not shown compelling reason why his detention in custody is not justified. Having considered all of the applicant’s circumstances and history, applying the Act having regard to the matters set out in s 1B, I conclude that the applicant has not shown compelling reason why his detention in custody is not justified.
Additionally, while a substantial surety might go some way to alleviating the risk that the applicant might not answer bail, I am far from persuaded that any conditions I might impose would alleviate the risk of the applicant offending while on bail. Indeed, to the contrary, on the applicant’s history, I am persuaded that there is an unacceptable risk that the applicant, if released on bail, would commit further offences while on bail.
Conclusion
The applicant’s application for bail must be refused.
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