Re Dawas
[2025] VSC 209
•22 April 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0055
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an Application for Bail by BAKER DAWAS |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 April 2025 |
DATE OF JUDGMENT: | 22 April 2025 |
CASE MAY BE CITED AS: | Re Dawas |
MEDIUM NEUTRAL CITATION: | [2025] VSC 209 |
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CRIMINAL LAW – Bail – One charge of rape – Further charges of attempting to pervert the course of justice, intimidating a witness, and stalking – Latter offending allegedly committed while applicant on bail for the rape charge – Alleged victims of the latter charges are the rape complainant and her friend, to whom first complaint made – Disagreement on correct bail test – Respondent submits ‘exceptional circumstances’ on the basis that stalking is a Schedule 2 offence where the conditions of item 8(b) of Schedule 2 are met – Court not satisfied that the stalking charge properly fits within item 8(b) of Schedule 2 – Show compelling reason the appropriate test – Compelling reason not established – Unacceptable risk in any event, which cannot be mitigated by strict conditions – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4C-4E, 4AA, and Schedule 2.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Belinda Franjic | Chambers Criminal Lawyers |
| For the Respondent | Ms Angela Liantzakis, Solicitor Advocate | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of charges laid by two members of Victoria Police.
A charge of rape was laid by Detective Senior Constable Starbuck (‘the Starbuck matter’).
Subsequently, and while the applicant was on bail for the Starbuck matter, charges of attempting to pervert the course of justice (2 charges), harassing a witness (2 charges), intimidating a witness (3 charges) and stalking were laid by Detective Senior Constable Michael Pook (‘the Pook charges’). The alleged victims of the Pook charges are the complainant in the Starbuck matter and her friend, who is also a witness in that matter.[1]
[1]While the Starbuck complainant’s friend, EM, is a secondary complainant in the Pook matters, for clarity, any reference to ‘the complainant’ in this judgment refers to the primary alleged victim in both the Starbuck and Pook matters.
There is contention as to the test which applies to this application, pursuant to the provisions of the Bail Act 1977 (‘the Act’). The applicant contends that the applicable test is the ‘show compelling reason test’. The prosecution contends that the applicable test is the ‘exceptional circumstances test’. I will turn to a consideration of this matter shortly.
Procedural history
The alleged offending in the Starbuck matter occurred on 27 March 2015. On 3 August 2021, a pretext call occurred between the complainant and the applicant. In the call, which was recorded, the applicant made admissions to the crime of rape. The applicant was charged and bailed on his own undertaking on 28 April 2023. A committal hearing took place on 1 November 2023. The applicant was committed to stand trial on one charge of rape. Trial bail was granted.
Following an earlier listing, which was vacated, the trial of the applicant on the Starbuck matter was listed for 26 November 2024.
Pre-trial argument was heard before His Honour Judge Tiwana on 11 September 2024 regarding the admissibility of the pretext call. His Honour ruled the pretext call admissible on 31 October 2024.
The alleged offending in the Pook matters occurred on 14 and 21 November 2024.
The applicant was charged and remanded in custody on the Pook matters on 22 November 2024. Bail was refused the following day by Magistrate Popovic.
On 26 November 2024, the trial for the Starbuck matter was adjourned to 10 June 2025, and the applicant’s bail was revoked by Judge Tiwana. The order revoking bail was made by consent.
The applicant applied again for bail in the Magistrates’ Court on the Pook matters on 7 January 2025. Bail was refused by Magistrate Halse.
On 11 March 2025, at a mention in the County Court, the prosecution indicated that a Notice of Incriminating Conduct would be filed in the Starbuck matter trial containing aspects of the Pook matters. Judge Tiwana indicated that the then-current trial date in June could no longer be accommodated and would need to be moved.
No new trial date has yet been fixed, and the matter has been adjourned to a mention hearing on 29 April 2025.
The Pook matters are listed for committal mention on 29 April 2025.
Which bail test applies?
The prosecution contention is that the exceptional circumstances test applies on the basis of a proper reading of s 4AA(2)(c)(ii) of the Act and Item 8(b) of Schedule 2 of the Act.
Pursuant to s 4AA of the Act, the exceptional circumstances test applies to a decision whether to grant bail to a person accused of a Schedule 1 offence. It also applies to a decision whether to grant bail to a person accused of a Schedule 2 offence if the offence is alleged to have been committed while the accused was on bail for any Schedule 1 offence or Schedule 2 offence.[2]
[2]The Act s 4AA(2)(c)(ii).
Rape is a Schedule 2 offence. The prosecution asserts that the charge of stalking laid against the applicant in respect of the Pook matters is also a Schedule 2 offence by virtue of item 8(b) of Schedule 2, which includes, amongst the list of Schedule 2 offences:
(8)An offence against section 21A(1) of the Crimes Act 1958 (stalking) and—
…
(b) the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person whom the accused is alleged to have stalked, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence.
The prosecution contention is that at the time of the alleged stalking offence, the applicant was awaiting trial on a charge of rape of the complainant, and therefore that the exceptional circumstances test under s 4AA applies.
In terms of my satisfaction under s 8(b) of Schedule 2, Ms Liantzakis, who appeared for the prosecution, argued that rape is an inherently violent act. Therefore, I should be satisfied that the stalking offence with which the applicant is charged is a Schedule 2 offence because, on a separate occasion, the applicant used violence against the person, namely the complainant, whom he is alleged to have stalked.
The applicant resisted this interpretation of the provisions. Ms Franjic, who appeared for the applicant, submitted that it would be wrong for the Court to make a finding of fact in relation to a contested allegation that is set down for trial, and for which bail is sought in this Court. This, it was submitted, accords with the notion that a bail decision maker should avoid attempting to determine the ultimate prospects of the Crown case. It is also consistent with Parliament’s express intention that the Act be applied and interpreted having regard to, inter alia, the ‘importance of taking account of the presumption of innocence and the right to liberty’.
I accept the applicant’s submissions in this regard. The prosecution approach would depend, for its acceptance, on my being ‘satisfied’ that the applicant had used violence against the complainant on the occasion that he is alleged to have raped her. That, it seems to me, would require me to be ‘satisfied’ that the applicant is guilty of the rape, a matter which is in very strong contention. The rape charge is, of course, one of the charges which is the subject of this application for bail. For me to reason as the prosecution would have me reason would mean showing scant regard for one of the guiding principles of the Act itself, which is the presumption of innocence and the right to liberty’,[3] as highlighted by Ms Franjic.
[3]The Act s 1B(1).
In my view, this is not the type of situation envisaged by the legislature when including item 8 in Schedule 2.
I will act on the basis that the applicable bail test is the ‘show compelling reason’ test.
Alleged offending
Starbuck matter
The applicant and the complainant met when they were both involved in the Australian Army Air Force Cadets. Some years later, in March 2015, the applicant contacted the complainant by text message and asked if they could go on a date. She agreed to this. The applicant picked her up from her home in a motor vehicle. The complainant was a virgin at this time. The applicant also claimed to be a virgin. After going for a drive and a walk, and consuming some food, the applicant drove his vehicle to a street close to the complainant’s home and parked the vehicle. Intimate activity occurred in the front area of the vehicle. At some points, the complainant expressed her reluctance, but she did provide consensual oral sex to the applicant. After this, he invited her into the rear passenger compartment, and she agreed, asking him if he had a condom, which he said he did. Once the two got into the rear seat, they removed their clothing, and without much delay, the applicant penetrated the complainant’s vagina hard with his penis, without a condom, while she was lying down on the seat. She immediately said, ‘stop’, but he did not do so, continuing to force his penis in and out of her vagina, causing her to scream out in pain, repeatedly ask him to stop, and push him forcefully to the chest. The complainant did not have any mobility because her legs were angled up near her shoulders, and the applicant was pressing down onto her. After a time, he withdrew his penis, and asked her to ‘suck him off’. She provided oral sex to him, and he ejaculated in her mouth.
After a further period of time in the car, where there was some discussion about what had occurred, the complainant was driven home by the applicant and went inside. She noticed that she had bled heavily from her genital area. She attended a medical practitioner within days and was examined.
In June 2015, the complainant told her friend, EM, that she had had sex for the first time. She told EM of the circumstances, including that the applicant was rough with her, and that she told him to get off her but he just kept going. Some months later, the complainant started referring to what had occurred as a rape.
There was some communication by phone between the complainant and the applicant following the alleged rape, but she eventually blocked him. On 2 May 2021, using a friend’s phone, the applicant sent a message to the complainant apologising for his actions.
On 20 July 2021, the complainant reported the matter to the police. She made a statement on that date.
On 3 August 2021, the complainant made a pretext call to the applicant. During the call, the applicant stated that he knew he had fucked up, and wanted the complainant to know he was sorry. He stated that he lied to her and forced himself into her. He agreed that he had heard her say stop and saw her banging on his chest. He said he did not know why he did not stop. He said, ‘what I did to you was rape and – I’m guilty of it, I’m ashamed of it and I take full responsibility’.
Pook matters
The first of the Pook matters occurred two weeks after Judge Tiwana ruled the pretext call admissible, and twelve days before the trial was due to commence.
At this time, the complainant lived with a housemate in Sunshine. EM resided with her family in Footscray.
On 14 November 2024, at 12:20 am, a neighbour of the complainant, AH, observed two males loitering in the complainant’s street. They were described by her as 25-30 years old, Caucasian, wearing white coloured hard safety hats, orange and blue fluoro long sleeved button up shirts, white P2 masks, green and black gardening gloves and dark coloured pants. The men were said by AH to be carrying several items, including two ‘tanks of petrol’, asserted on the prosecution case to be large black jerry cans.
The men placed the jerry cans down and walked along the street before stopping and pointing at the overhead powerlines.
AH confronted the males and filmed the interaction from inside her vehicle. The males stated they were from Powercor and doing works in the area. The two men then walked away from her in opposite directions. The mobile phone footage depicts one of the males walking from the scene carrying a large black jerry can.
AH contacted 000 to report the incident. The next day, 15 November 2024, she attended at the complainant’s home and showed her the footage. The complainant immediately recognised one of the males as the applicant. That evening, AH went to the Sunshine Police Station and met with investigators, who subsequently obtained CCTV footage from the complainant’s street, which depicts the two males attending outside the complainant’s address with two jerry cans before being disturbed by AH.
Prior to his current remand, the applicant worked for the CFA. Investigators compared open-source material from the CFA website showing an interview with the accused with the mobile phone footage. They also compared recent images of the applicant available on social media with the footage, noting distinctive facial features in common.
On 21 November 2024,[4] the complainant checked her letter box and observed an envelope sitting inside. It was addressed to her. She opened the envelope and found a handwritten letter and two large-calibre bullets. Each bullet was inscribed in black marker with a different letter, one with a letter corresponding to the first letter of the complainant’s given name and the other with a letter corresponding with the first letter of the given name of her partner. The handwritten letter contained the following in all-capitals red pen: ‘WE WILL ALWAYS FIND YOU WE’RE WATCHING YOU! THINK ABOUT OTHERS…’.
[4]The informant’s report is inconsistent on whether this second alleged incident occurred on 20 or 21 November. This discrepancy is inconsequential for the purpose of the application.
The complainant immediately attended Sunshine Police Station and reported the incident. Investigators obtained CCTV footage from the complainant’s street which depicted a male placing the envelope in the complainant’s letter box at 7:52 pm on 20 November 2024. The male, with tanned skin and of average build, was holding a red football and was wearing:
· A light green baseball cap;
· Black headphones;
· A dark blue hooded jumper; and
· Beige cargo shorts with black markings and black shoes.
At approximately 5:30 pm on the same day, 21 November 2024, EM’s mother found an envelope inside her letter box addressed to EM. She gave the envelope to her daughter, who was listed as a witness in the trial of the applicant which was due to commence on 26 November 2024. Inside the envelope EM found three live rounds of 308 calibre ammunition, and a letter. The bullets were inscribed in black with letters corresponding to the first letter of the first name of EM and her two parents, with whom she lived. The handwritten letter contained the following in all-capitals red pen: ‘WE WILL ALWAYS FIND YOU, WE’RE ALWAYS WATCHING, THINK ABOUT YOUR FAMILY’.
EM reported the matter to the police.
Investigators attended at the applicant’s home address on 22 November 2024. They arrested him and carried out a search of the premises. They also attended at and searched another address with which he was associated in Glenroy. At the Glenroy address, police located two large black jerry cans filled with fuel, a red Sherrin football, and a set of black over ear headphones. They also located, in a cupboard under the stairs, a blue Aldi zip-up shopping bag which contained, amongst other things, a two-tone orange and dark fluoro long-sleeved shirt, a pair of dark Hard Yakka brand pants, a white P2 mask, a white hard hat, a pair of green and black gardening gloves, and a blue plastic stove lighter. The clothing items in the bag appeared identical to items of clothing depicted on one of the males during the incident on 14 November 2024.
The premises in Glenroy were equipped with a ‘Eufy’ brand doorbell camera. Investigators accessed the applicant’s mobile phone which contained the ‘Eufy’ app. They obtained 112 short video clips recorded on the Eufy system between 13 and 22 November 2024. The clips recorded the applicant, at various relevant times, wearing particular relevant clothing and carrying the blue Aldi bag to and from his premises.
The applicant was interviewed by police on 22 November 2024. He made a ‘no comment’ interview on the advice of his solicitor, was charged, and remanded in custody.
Various items of evidence have been submitted to VPFSC for analysis. Results are outstanding.
The above incidents have caused great distress and anxiety to the complainant and EM. The complainant has moved address as a result.
Personal circumstances
The applicant is 30 years old. He was born in Iraq and came to Australia with his family at the age of two. He is an Australian citizen. He is one of seven children, and is close with his siblings and parents. He was brought up and educated in Victoria, but did spend some time working in Queensland, as a firefighter at the airport. From 2021 up until the time of his remand, the applicant worked as a firefighter with Fire Rescue Victoria. Prior to that, as well as working in Queensland, he worked in a gymnasium and as a CFA volunteer.
The law
In setting out the guiding principles of the Act, s 1B(1AA) and (1) provide:
1B Guiding principles
(1AA)The Parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.
(1) The Parliament also recognises the importance of—
…
(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.
It is the intention of the legislature that the Act be applied and interpreted having regard to the matters set out above.[5]
[5]The Act s 1B(2).
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 2 offence, as is the case here. Rape is a Schedule 2 offence. Section 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[6] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[7] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[6]The Act s 4C(2).
[7]Ibid s 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D of the Act.[8] The respondent bears the onus of satisfying the Court that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk. If that onus is met, then bail must be refused.
[8]Ibid s 4C(4).
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said by the Court of Appeal in Rodgers v The Queen:[9]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[10]
[9][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[10]Ibid [43] (citations omitted).
Evidence led in the application
Detective Senior Constable Pook was called by Ms Liantzakis for the purpose of being cross-examined by Ms Franjic. The cross-examination largely centred on the steps required to be taken, by way of scientific and other testing, and disclosure, before the Pook matters will be ready to proceed. The witness was asked whether he shared the concerns felt by the other informant as to the risk posed by the applicant of endangering the community, and he confirmed that he did. In response to a question by me, he indicated that the two black jerry cans seized during the search of the Glenroy property were found to contain unleaded petrol.
Three siblings of the applicant, Ali, Mohammed and Ibtissam Dawas, gave evidence before me. All were impressive witnesses who spoke in positive terms of the applicant and their relationships with him. From the evidence, the following matters might be gleaned. The family is a closeknit and loving one. The father of the applicant suffered a stroke in 2023 and has been in need of almost full-time care since then. The applicant, who lives in the home of Ali, in which the parents also reside, apparently provided a great deal of care to his father before being remanded. It has been difficult for the other siblings to make up for his absence, in light of their various employment and family commitments, and if released on bail, the applicant would again take a leading role in the care of his father. The mother of the applicant also has significant health issues, and is largely dependent on the applicant and her other children. Evidence from all of the witnesses touched on the difficulties suffered by the applicant in custody, and some deterioration in his mental state. The siblings have each kept in regular contact with the applicant throughout his remand. The applicant’s sister Ibtissam indicated that she would be willing to provide a bail guarantee of $225,000, and is confident that the applicant would abide by all conditions of bail. Ali indicated that he would be in a position to monitor the behaviour of the applicant, and would not hesitate to report him to the police should he fail to abide by conditions. Other evidence indicated that all three witnesses would provide a level of supervision to the applicant should he be released on bail.
Applicant’s submissions
Ms Franjic, in her written and oral submissions, relied upon a combination of matters in proof of the existence of a compelling reason, and in resisting the respondent’s contention of unacceptable risk. These were:
a) There are triable issues in both matters. Ms Franjic did not assert that either case is weak or suffers from any significant frailties, but rather that there are triable issues in each matter. In respect of the rape matter, Ms Franjic pointed to inconsistencies in the accounts given by the complainant at different times, the long delay before she made a complaint to anyone, and the claim she made during the pretext call of having sustained an injury to her vagina, which was not supported by the evidence of the physical examination carried out shortly after the events. She conceded that the pretext call represents a substantial hurdle for the defence in the rape charge, but submitted that it was not an insurmountable one. She did not accept that the prosecution case on this charge is strong. In respect of the Pook matters, Ms Franjic submitted that conviction on the most serious charges is not a foregone conclusion. There is no direct evidence implicating the applicant with respect to the offending against EM. Furthermore, the envelopes and handwritten letters were forensically tested and no fingerprints belonging to the applicant were found. As for the evidence of the two offenders seen on 14 November carrying jerry cans, the prosecution may not be able to prove that these containers held flammable liquid. Notwithstanding her submissions, Ms Franjic did not cavil with the proposition that the circumstantial case sought to be made by the prosecution in the Pook matters could be described as a pretty compelling one.
b) The long period of time the applicant would spend on remand should bail be refused. At the outset, Ms Franjic submitted that as a matter of logic, these two matters will likely proceed in the one trial. In respect of the timing of that trial, she submitted that there is much remaining to be done in relation to the Pook matters, by way of disclosure and further analysis. In the circumstances, the trial would be unlikely to be reached before early next year. There would be a real prospect of the period of remand before the trial stretching out to 18 months.
c) The likely sentence relative to the time likely to be spent on remand. Whilst accepting that, should the applicant be convicted of rape or the more serious Pook matters, a term of imprisonment will follow, Ms Franjic submitted that the applicant will be able to call in aid substantial mitigating features, including his current age and lack of criminal history, his age at the time of the alleged rape, his history of volunteer and community work, his employment with Fire Rescue Victoria, and his strong family support. In respect of the Pook matters, it was submitted that the applicant may avoid a lengthy custodial sentence if convicted only of charges 3 and 4. Ms Franjic submitted that the period of time the applicant will spend on remand would go close to exceeding the term of imprisonment he may receive, even if convicted of the more serious offending.
d) The onerous nature of the applicant’s time on remand, and its likely effect upon him. The applicant has been classified as a protection inmate, meaning that while he was at Melbourne Assessment Prison, he was locked in his cell for 23 hours per day for two consecutive days, and for 24 hours on one day. Upon his transfer to Ravenhall Correctional Centre, he has still been held as a protection prisoner. He fears reprisal from other inmates because of his classification and the fact of the rape charge. While in custody, the applicant has been exposed to some of the rigours that custody involves. He has been moved into different cells on numerous occasions, has been housed in multi-person cells without privacy, and has witnessed physical altercations between inmates. Mr Franjic relied on the evidence of the siblings of the applicant called during the application in support of the contention that imprisonment has had a substantial effect on the applicant. It can be inferred that this first experience of custody has reinforced in his mind the importance of faithfully abiding by bail conditions, should bail be granted, she submitted.
e) The absence of any criminal history.
f) Bail compliance history. Ms Franjic pointed to the lack of any adverse past bail history, while acknowledging that in light of the Pook allegations, that history cannot be said to be unblemished.
g) The availability of stable accommodation and family support. The applicant would reside with his parents, at a property owned by his brother, Ali, who also lives at the premises with his wife and child. The applicant is well supported by close family. He is the youngest in a sibship of seven, and is particularly close to two of his brothers.
h) The applicant’s role in caring for his father. Prior to his remand, the applicant provided much care and assistance to his father, who suffered a stroke in 2023. He is wheelchair-bound and needs assistance attending to daily needs and attending medical appointments. Those responsibilities fell mainly to the applicant before his remand, and his brothers have been required to meet their father’s needs in the absence of the applicant. If released on bail, the applicant would take over the primary care of his father.
i) The availability of a substantial bail guarantee. The applicant’s sister, Ms Ibtissam Dawas, is prepared to offer a bail guarantee of $225,000 to be drawn from the equity of her home. Ms Franjic noted the comments of Gillard J in Mokbel v DPP (Vic) and DPP (Cth)[11] in respect of the importance of the role of a surety (as a bail guarantor was then called), as ‘the eyes and ears of the Court’.
j) The fact of an indefinite personal safety intervention order being in place to protect the complainant.
[11][2006] VSC 487.
In respect of the matter of risk, Ms Franjic submitted that the real issue in this application is the matter of risk. She submitted that the risk asserted by the prosecution to the community generally is speculative and not real. The essence of the risk is of a further interference with the course of justice, or interference with the complainant herself, rather than the broader community. There is not a realistic risk of serious physical endangerment to the complainant or anyone else. Rather, it is the course of justice which might potentially be interfered with. As to the likelihood of that risk materialising, what would be the likelihood of the applicant again engaging in the sort of conduct alleged in the Pook matters? He is an intelligent person. He would realise that any such behaviour would immediately come to the attention of the authorities. He has spent five months in custody in difficult circumstances, and knows what would await him should he again breach his bail. The concern about risk stems from one set of allegations only, rather than from a proven pattern of behaviour.
Ms Franjic submitted that the imposition of a stringent set of conditions including a substantial bail guarantee, a geographical exclusion zone and a curfew would suffice to moderate the risk to an acceptable level so as not to be unacceptable.
Respondent’s submissions
Ms Liantzakis, whilst maintaining that the applicable bail test is the exceptional circumstances test, submitted that the matters relied upon by the applicant are insufficient to establish the existence of a compelling reason justifying the grant of bail.
She highlighted features of the rape and the Pook matters which indicate the considerable seriousness of the charges. For present purposes, it is not necessary for me to detail those matters, which were clearly set out in the written and oral submissions. Ms Liantzakis described the Pook offending as ‘exceptionally serious’.[12] As for the strength of the prosecution case respect of both matters, she described it as reasonably strong.
[12]Transcript 69.
In respect of the expected delay before trial, Ms Liantzakis accepted the likelihood that the trial on both matters will not proceed until next year. Whilst acknowledging that delay will be a matter for me to consider in the synthesis of relevant features, she highlighted the fact that the applicant did not assert the delay would be ‘inordinate’.
As for the comparison between the likely time on remand and the likely sentence should the applicant be found guilty of the more serious charges, Ms Liantzakis submitted that the applicant faces a significant custodial sentence if found guilty of the more serious offending, and it would be unlikely that time on remand would exceed the sentence imposed.
In respect of the previous bail history of the applicant, he allegedly carried out the Pook offending while on bail for rape, and in addition, there is evidence indicating that he spent some of the time awaiting trial on the rape charge living with his girlfriend, contrary to the residential condition of his bail.
Ms Liantzakis noted the material pointing to the ill-health of the applicant’s father, but questioned whether the applicant can properly be described as the primary caregiver, in light of the position of the applicant’s sister in the care of their father as indicated in her evidence.
As for the views of the alleged victims on the grant of bail, Ms Liantzakis indicated that the primary alleged victim is so frightened of the applicant and what he might do that she has changed addresses, and that EM has also expressed concerns for her safety and that of her family.
Turning to the respondent’s contention of unacceptable risk, Ms Liantzakis relied on the first three of the considerations set out in s 4E(1)(a) of the Act. The Pook offending involved the targeting of the complainant in a rape prosecution, and another important witness in that matter. The alleged offending was well planned, and involved the recruitment of another unknown offender, discovering not only the whereabouts of the two witnesses but the identities and names of those with whom they lived, acquiring rounds of ammunition which were individually marked with initials, and using disguises and a backstory. And this was all done with the purpose of dissuading prosecution witnesses from giving evidence in a criminal trial.
Ms Liantzakis submitted that in considering the rhetorical question posed by Ms Franjic, ‘What are the chances of a repeat of this type of behaviour’ by the applicant, I should have regard to the serious features of the Pook offending, and in particular, to the high degree of planning it involved.
In respect of the risk posed by the applicant, Ms Liantzakis submitted that there is not only the prospect of harm being caused to the mental state of the complainant and the other witness, but harm to the criminal justice system as well, by virtue of their evidence being impaired. Referring to Haidy v DPP,[13] she submitted that the prosecution has established more than a tenuous suspicion of the worst possibility if the applicant is released on bail.
[13][2004] VSC 247 [15]-[16] (Redlich J).
Analysis
The first of the matters contained in the non-exhaustive list of surrounding circumstances which must be taken into account pursuant to s 3AAA(1) is whether, if found guilty of the offences with which he is charged, it is likely that the applicant would, if bail is refused, spend a period on remand which would exceed the term of imprisonment he would be likely to receive. For reasons upon which I will elaborate, I do not think that is at all likely.
I turn to the next two matters in the list, which in this and most cases are matters of great importance. First, the nature and seriousness of the alleged offending. Rape is a very serious criminal offence with a maximum penalty of 25 years’ imprisonment. The instance of rape alleged here is by no means at the bottom end of the scale of seriousness. As for the charges laid in respect of the Pook matters, these, too, are serious charges, and serious alleged instances of them. Attempting to pervert the course of justice has a maximum penalty of 25 years’ imprisonment, and the maximum penalty for each of stalking and intimidating a witness is 10 years’ imprisonment. What is alleged against the applicant is that, in the immediate lead-up to a criminal trial, and following a ruling of the trial judge which was adverse to the applicant’s interests, he sought to intimidate the alleged victim of his offending, and another important prosecution witness, presumably in the hope of dissuading the witnesses from giving evidence. This was very serious offending.
Next, I turn to the strength of the prosecution case. Whilst there may be some aspects of the conduct alleged in respect of the Starbuck matter which may have cast doubt on the strength of the prosecution case of rape, the content of the pretext call, which has been held by the trial judge to be admissible, puts a very different gloss on things. On the prosecution case, the applicant’s statements made during that call amounted to a complete admission of guilt to rape. The case cannot be considered to be a weak one.
As for the Pook matters, whilst it is asserted by the applicant that the case is a circumstantial one, in which there are triable issues, it is difficult to see the case, even at this early stage, as being anything less than quite powerful. The array of circumstantial evidence might be said to paint a compelling picture of the applicant being responsible for the placing of the letters in the letter boxes of the complainant and EM.
It is a significant matter that the accused has no criminal history at all. Of course I take that strongly into account. It means, of course, that there is no bail history, adverse or otherwise, before the applicant was bailed on his own undertaking in respect of the alleged rape. But it is a significant matter that whilst on that bail, and in the weeks leading up to the trial, the applicant allegedly engineered a very significant interference with the course of justice.
The personal circumstances of the applicant are much to his favour. Not every applicant for bail can call in aid such a supportive family, and there would seemingly be some stability to his life were he to be granted bail. However, it is of note that he was living at his brother’s house at the time of the Pook events.
The availability of a substantial bail guarantee is another important circumstance in support of the application.
On the other hand, the understandable fear felt by the complainant and EM, which has caused the complainant to leave her home and move elsewhere to live, is a reflection of the disturbing nature of the Pook events. The combination of the circumstances, right down to the individual labelling of the live bullets left in each of the envelopes, accompanied by the frightening notes address to the respective victims, was intended to be, and undoubtedly would have been, terrifying to each of the victims and those who lived with them.
I have considered the reliance placed by Ms Franjic upon the applicant’s role in the care of his father. Whilst of course I feel sympathy for the family, it is clear that the siblings of the applicant have been able to deal with the absence of the applicant in continuing to provide appropriate care for their father, notwithstanding the additional burden posed by his remand. No doubt they will continue to do so.
Turning to the matters of the length of time the applicant would spend on remand should bail be refused, and the likely sentence should the applicant be found guilty of the most serious offences, I do not accept Ms Franjic’s submission that the former would go close to exceeding the latter. Should the applicant be found guilty, following a trial, of the rape with which he is charged and any of the indictable offences amongst the Pook matters, the sentence he would receive would be likely to far exceed the 12 to 18 months he would spend on remand.
Another matter which I consider amongst the surrounding circumstances in this application, which is not specifically set out in s 3AAA(1) of the Act, is the question of risk. Ms Franjic submitted that the real issue in this application is the matter of risk, and perhaps, she is correct. When an applicant has the burden of establishing a compelling reason, or for that matter, exceptional circumstances, in the first step of a 2 step bail test, the absence of any realistic risk posed by the applicant may be an important consideration pointing towards a grant of bail. Conversely, the existence of a substantial risk may be an important matter pointing in the opposite direction.
In this case, I think the risk posed by the applicant is considerable. This is clearly demonstrated by the nature of the alleged Pook offending. The conduct carried out in connection with that offending is disturbing. It was highly planned and well executed, and designed to arouse great fear in its victims, in the hope that they may be dissuaded from giving evidence in a criminal trial. What was sought to be achieved would have represented a very substantial and serious interference with the course of justice in a most important matter. The conduct bespoke a high level of motivation, if not desperation, to derail the trial for rape which the applicant imminently faced.
As to Ms Franjic’s rhetorical question, what would be the likelihood of the applicant again engaging in the sort of conduct alleged in the Pook matters, the fact is that if the applicant did engage in the conduct behind the Pook allegations, it could only be viewed as being highly risky, and very desperate conduct, motivated by a very strong desire to avoid successful prosecution. There would be no reason why, should he now be released on bail, that strong motivation and sense of desperation might not persist, and influence his behaviour.
The prospect of a repeat of the type of conduct alleged here, or worse, is far from being an unrealistic one.
Conclusion
Having considered all of the surrounding circumstances of this case, I am not persuaded that a compelling reason exists that justifies the grant of bail.
For completeness, I can indicate that even had I been so satisfied, I would have been satisfied that there would be an unacceptable risk that, if released on bail, the applicant would commit a Schedule 1 or 2 offence, otherwise endanger the safety or welfare of the complainant or EM, or interfere with the witnesses or otherwise obstruct the course of justice.
The application for bail must be refused.
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