Re Dixon
[2020] VSC 665
•25 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0264
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by MARK DIXON |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 September 2020 |
DATE OF JUDGMENT: | 25 September 2020 |
DATE OF REASONS | 8 October 2020 |
CASE MAY BE CITED AS: | Re Dixon |
MEDIUM NEUTRAL CITATION: | [2020] VSC 665 |
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CRIMINAL LAW – Bail – Attempted murder by applicant and two co-offenders – Victim shot to the head from close range – Applicant departed Victoria and travelled to northern New South Wales after the shooting – Arrested and extradited to Victoria – Applicant an Irish national with no real ties to Victoria – Previous instance of failing to answer bail and departure from Australia – Case reasonably strong – Delay likely to be over two years – COVID-19 considerations – Surety resident overseas – Amount of surety to comprise contributions from surety herself and her six siblings – Surety unsatisfactory - Accommodation not particularly stable – Applicant liable to be arrested by immigration officials – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Steward | Sarah Tricarico Lawyers |
| For the Respondent | Mr J Shaw | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applied for bail in respect of charges he faces of attempted murder, intentionally causing serious injury in circumstances of gross violence (‘ICSIGV’), and recklessly causing serious injury in circumstances of gross violence.
After hearing the application, I made an order refusing bail to the applicant, stating brief reasons for that decision. I indicated at the time that I would publish detailed reasons for my decision at a future time. These are those reasons.
Background and procedural history
After the commission of the alleged offence on 21 February 2019, it is alleged that the applicant departed Melbourne and made his way to Byron Bay in New South Wales (‘NSW’) with one of his co-offenders, Jack Harvey (‘Harvey’). The applicant and Harvey were arrested in Broken Head on 27 February 2019. The pair were charged, extradited to Victoria, and remanded in custody.
On 5 December 2019, the applicant and the two co-accused were committed for trial in this Court. A trial was listed to commence on 13 July 2020. Due to the restrictions caused by the COVID-19 pandemic, that trial date was vacated. The trial is now fixed for 18 January 2021, with a directions hearing listed on 5 October 2021.
This was the applicant’s first application for bail. Neither of the co-accused has made any application.
Alleged offending
One of the co-accused, Stephen Tahaney (‘Tahaney’), started a property maintenance business with Daniel Saddik (‘Saddik’). Tahaney introduced an associate Ciaran Murphy (‘Murphy’), the brother of the applicant, into the business. In turn, Murphy introduced the applicant into the business.
Over time, the business began to struggle financially, causing the relationship between Saddik on the one hand, and Tahaney and Murphy on the other, to suffer. For some months leading up to the events in question, Saddik received threatening phone calls and messages from Tahaney, Murphy and the applicant. He was concerned for the safety of himself and his family, and informed his friend Said Morgan (‘Morgan’), of developments in the worsening dispute. Arrangements were made for Morgan to travel from NSW to stay with Saddik and his family at 24 Spraypoint Drive, Point Cook. He arrived on 18 February 2019. On 19 February 2019, there was a meeting involving Morgan, Saddik, the applicant, Tahaney and another man at a hotel to discuss the future of the business. Morgan appointed himself as mediator in the dispute. He flew back to Sydney on the morning of 20 February 2019, returning to Melbourne that evening. On 21 February 2019, Morgan used Saddik’s phone to send threatening text messages to the applicant. The applicant replied in kind, urging Morgan to bring his revolver with him. Morgan indicated that he was in possession of a Glock pistol. Later that afternoon, Tahaney attended Saddik’s home and was chased from the residence by Morgan.
At approximately 7.00pm, Saddik’s wife Meaghan arrived home to the Spraypoint Drive residence to find Morgan sitting on a chair in the driveway with a duffle bag by his side. He stated, ‘There’s going to be a blood bath tonight’.
The applicant, Tahaney and others met up that evening at the Grandview Hotel in Fairfield. Saddik and Tahaney continued to argue about the business via text message between 7.00pm and 9.00pm. From approximately 8.58pm, Morgan sent a series of text messages to Tahaney using Saddik’s phone. Those messages included statements from the complainant that ‘all bets are off motherfucker!’, ‘I’ll see you soon!’ and ‘you’re either very fucking brave or very fucking stupid’, ‘either way, I’ll soon find out for myself!’
At approximately 9.30pm, the applicant, Tahaney, Harvey and Tahaney’s brother left the Grandview Hotel and returned to Tahaney’s home. Tahaney and Morgan continued to exchange messages. At approximately 9.41pm, Morgan wrote to Tahaney, stating, ‘you come to Dan’s house, and bring whatever and whoever you want! A word of advice though, if you bring someone…tell them to kiss their family goodbye’.
The following account of the events in question is largely based on the contents of the Summary of Prosecution Opening (‘the summary’) filed in this matter. I observe that Mr Steward for the applicant took issue with some of this material, placing emphasis upon the evidence of a witness named Turk as to what happened in the immediate lead-up to the shooting. I had regard to the evidence drawn to my attention, but considered it appropriate for the purposes of the bail application to place reliance on the evidence as summarised by the prosecution in the summary. I have not had resort to the depositions in preparing this judgment.
At approximately 10.40pm, the applicant and two co-accused drove to Saddik’s residence in Tahaney’s Toyota Hilux. Morgan walked towards the Hilux as it approached, carrying a duffle bag. The vehicle was driven into the driveway of 27 Spraypoint Drive, before two of the accused exited the car. At approximately 10.52pm, Morgan rang Meghan Saddik. During this time, it is alleged that one of the accused attacked Morgan with a hammer, which he managed to knock from the accused’s hand. Morgan dropped his phone during the altercation, leaving the call to Meaghan Saddik still connected.
With all three accused now out of the Hilux, witnesses observed two accused kicking and punching Morgan. It is alleged that one of the accused got into the rear of the Hilux and produced a firearm from which he fired a single shot, striking Morgan to the head and causing him to fall to the ground. Over the phone, Meaghan Saddik allegedly heard the words ‘shoot him Mark, shoot him’, spoken in an Irish accent, while a neighbour reported hearing someone say ‘just shoot’ before a shot was heard. The applicant and co-accused allegedly fled in the Hilux.
The three accused are charged on a complicity basis, with none of them identified as the shooter in the summary. Tahaney is nominated as the shooter in both the applicant’s and Tahaney’s respective Defence Responses.
The applicant and two co-accused spent the night at the Savoy Hotel in Brighton. The next morning, Tahaney collected his partner and children and drove to Nagambie. The applicant and Harvey travelled to Nagambie that evening, and all three accused stayed at a hotel in Nagambie on the night of 22 February 2019. The next morning, the applicant and Harvey left the hotel and then travelled to Byron Bay as indicated earlier. After his arrest, the applicant was interviewed at Tweed Heads Police Station. He largely made no comment during the police interview, but did state that he ‘didn’t pull no trigger’, and that he was in fear for his life.
Personal background
The applicant is a 31-year-old Irish national and the father of two children who reside in Ireland with their mother. The applicant was raised in Dublin with his parents and older brother, Ciaran, until his parents separated when he was approximately six years old. The applicant reports having been largely raised by his older brother, who mirrored their father’s use of physical punishment.
The applicant changed schools frequently throughout his childhood, causing him to struggle both socially and academically. He left school at the equivalent of year seven and thereafter worked in various casual jobs including as a golf course greenkeeper, a builder’s labourer and painter.
The applicant first arrived in Australia on a Working Holiday Visa in 2014. He returned to Ireland in 2016 and then travelled back to Australia in 2018 on an Electronic Travel Authority Visa. That Visa expired in May 2018, and the applicant was thereafter granted a Bridging Visa. The applicant’s Bridging Visa expired during the period of his remand on 2 December 2019. The applicant is presently in Australia as an unlawful non-citizen.
Criminal history
The applicant has one prior conviction in Victoria for being drunk in a public place for which he was discharged in 2014. He has a criminal history in Ireland between 2007 and 2013 which includes convictions for assault, drug possession, dishonesty and driving offences. He is apparently wanted in Ireland for a further alleged assault. I have been provided no information in respect of this matter.
In addition to the prior convictions, there are charges pending against the applicant of recklessly causing serious injury, recklessly causing injury, and failing to answer bail.
The assault charges concern the alleged assault of a woman FT in 2014, when she was the partner of the applicant’s brother. It is alleged that the applicant punched FT to the face, dislodging a tooth and fracturing her jaw in two places. The applicant was arrested and interviewed on 25 February 2015. He admitted punching FT but claimed this was in self-defence. He was released on police bail that day but failed to appear in the Melbourne Magistrates’ Court on 22 April 2015 in answer to his bail. A warrant for his arrest was subsequently issued. The arrest warrant was executed following the applicant’s arrest in the current matter. He is currently on remand for this other matter as well.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4, under the heading Entitlement to bail, provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 1 offence, as is the case here. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[1] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances[2], including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[1]Section 4A(2).
[2]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent 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.
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 might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[3] stated the relevant principle as follows:
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. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[4]
[3][2004] VSC 17.
[4]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[5]
[5]See, for example, Re Brown [2019] VSC 751 (Lasry J).
The evidence
As well as being provided with comprehensive affidavits in support and in opposition to bail, the Court was provided with sworn evidence from three witnesses.
The respondent Detective Senior Constable Julio Salerno gave brief evidence in which he was cross-examined about the evidence of an eye witness named Turk whose account indicated that prior to being shot, Morgan had been giving one of the offenders charged with his shooting a ‘flogging’. He confirmed that the applicant during interview had denied being the shooter, and had now nominated Tahaney as having played that role, a proposition with which Tahaney had agreed. He was asked about the applicant’s ties to the jurisdiction through his brother, the circumstances of his failing to appear on the assault matter in the Magistrates’ Court, and the proposed living arrangement of the applicant should bail be granted. In response to a question from me, he indicated that after having been shot, Morgan had spent close to 12 months in hospital and rehabilitation, and was now unable to function daily without assistance.
Guy Newman, a friend of the applicant, gave evidence of the arrangements he had made to provide accommodation to the applicant in Barkly Street, St Kilda.
The mother of the applicant, Denise Murphy, told the Court she was willing to provide a surety of $50,000 for the applicant, the funds having been raised by Mrs Murphy and her six siblings in combination, with Mrs Murphy having contributed $16,000 to the total which amounted to their collective life savings. She expressed her confidence that her son would not breach bail.
Submissions for the applicant
Mr Steward for the applicant relied upon the contentions contained in the affidavit in support of bail and his oral submissions in pointing to a combination of matters in proof of exceptional circumstances. The matters were as follows:
a) Delay. It was submitted that the delay is already inordinate, that the trial will not proceed in January, and that it can safely be concluded that the applicant will spend in excess of two years in custody awaiting trial. Mr Steward described the matter of delay as a significant and regrettable factor, and one which should assume great importance in proof of exceptional circumstances.
b) Strength of the Crown case. Mr Steward submitted that the best way of describing the case was to say that it was neither strong nor weak, but fell somewhere in between. He emphasised the evidence of Mr Turk as painting a very different picture from that contained in the answering affidavit, showing ‘assaultive’[6] conduct by Morgan and raising the prospect of a defence of self-defence. Furthermore, he pointed to a lack of evidence of any agreement involving the applicant to attack Morgan. The case was described by Mr Steward as being a ‘50/50 case’.[7]
[6]Transcript 38.
[7]Transcript 40.
c) COVID-19 considerations. The affidavit in support contained a detailed analysis of the considerations raised by the pandemic, asserting that the disease ‘is poised to be especially destructive amongst the incarcerated population’, relying on the decision of Lasry J in Re Broes,[8] asserting a number of ways in which the manner of dealing with the pandemic in custody has been less than ideal, and noting that conditions in custody have become more onerous than normal as a result of the pandemic. In his oral submissions, Mr Steward acknowledged that some of the written contentions relied on out-of-date material, and that the authorities had been successful in preventing transmission of the virus within the prison population. Nonetheless, he pointed to what he described as the ‘upheaval in the prison system’ as a result of the virus, highlighting the cessation of personal visits and educational and other courses, the fact that the applicant has been unable to maintain Zoom contact with his younger son due to restrictions, the reduced contact with the general prison population, the anxiety he feels as a result of his relative helplessness in custody where the pandemic is concerned, and the effect on his ability to properly prepare his trial due to restrictions on professional visits. Mr Steward submitted that for a person from a foreign country who is in custody for the first time, the conditions are especially difficult.
[8][2020] VSC 128.
d) The availability of stable accommodation. Mr Steward submitted that whatever may be the limitations in this regard, the fact was that what was on offer to the applicant due to the rare kindness of Mr Newman was a roof over his head, in an apartment where Mr Newman would also stay. Mr Steward acknowledged the late change in the intended address, and conceded that had the address not become available at the last minute, the application for bail would have been withdrawn.
e) The availability of employment. In the written material, a full-time job was in prospect. That was no longer the case, although Mr Newman had offered some employment for the applicant, but by no means full-time. Furthermore, Mr Steward accepted that due to the status of the applicant as an unlawful non-citizen, employment may not be possible at all.
f) The availability of a significant surety. Mr Steward accepted that the mother of the applicant would not be able to fulfil the usual supervisory role of a surety. He relied on the surety on offer, however, as providing a powerful consideration going to the ‘personal conscience’ of the applicant, who would be loath to let down his mother, aunts and uncles. Mr Steward maintained that the amount on offer, representing the life savings of those people, was significant, providing a powerful incentive to the applicant to abide by the terms of his bail.
Turning to unacceptable risk, Mr Steward challenged the basis on which the respondent sought to prove an unacceptable risk. True it was that the applicant had failed to appear for the hearing of the assault charge in the Magistrates’ Court, and returned home to Ireland, but that return was because his younger son was due to be born. The applicant returned to Australia after 18 months in Ireland. Whilst his failure to appear represented a lack of compliance with his obligations, he left for a reason, and returned of his own volition. Furthermore, he was not subject to a surety, as he would be now. As for the Magistrates’ Court matter itself, Mr Steward submitted that there was a prospect it may not proceed now, as the prosecution had been unable to locate the complainant.
Mr Steward acknowledged the seriousness of the current alleged offending, but disputed that that should have an impact on my decision whether unacceptable risk had been established.
In respect of the risk of endangering the community, Mr Steward submitted that the material relied on by the prosecution in this regard, in particular, the nature of the current offending, the prior conviction in Ireland for assault, and the two pending matters for assault, was not sufficient to discharge that burden.
In respect of the concerns held by the Saddik family, Mr Steward submitted that that was not relevant to my task in the bail application.
As for the flight of the applicant from Victoria after the alleged crime, there may be many reasons for that other than a belief in his guilt.
Mr Steward maintained, contrary to the position of the respondent, that the applicant did have at least some ties to the jurisdiction, as he had a strong relationship with his brother, who remains in Australia. When asked by the Court where the brother lived, Mr Steward was unable to assist, indicating he could throw no light on the matter.
All-in-all, Mr Steward submitted that the material would be insufficient to establish an unacceptable risk. Stringent conditions he proposed in his submissions would be sufficient to ameliorate the risk posed to an acceptable one.
Submissions for the respondent
Mr Shaw for the respondent relied upon the written contentions contained in the answering affidavit and exhibited report of the respondent, and his oral submissions before me, in resisting the claim of exceptional circumstances, and proving an unacceptable risk.
Mr Shaw disputed the defence characterisation of the strength of the case, asserting that there was a large body of circumstantial evidence showing the agreement to commit the crime. The fact that the defence of self-defence may be open did not mean that the case is weak. The case, he submitted, is a strong one.
The respondent accepted that there was a real prospect the trial date in January 2021 may be vacated, and that the delay may stretch beyond two years. This would be a long delay, but not an inordinate one in the circumstances, in light of the considerable seriousness of the offending and the inevitability of a long term of imprisonment if the applicant is found guilty. The likely delay was not exceptional of itself.
In respect of the applicant’s submissions about COVID-19, Mr Shaw submitted that the information and cases referred to in the defence material was out of date. Where there was any factual dispute about the way in which COVID-19 was being handled within the prison, the material contained in the affidavit of Jennifer Hosking from Corrections was to be preferred. Mr Shaw accepted that conditions in custody are more onerous at this time, but disputed that the applicant would be at an increased risk of being infected with the virus in prison than outside.
Turning to the surety offered on behalf of the applicant, the proposed surety lives in Ireland, and would be in no position to supervise the applicant. The amount offered was ‘trifling’ for a case of such seriousness, and all Mrs Murphy stood to lose should the applicant not abide by the requirements of bail was $16,000.
The supposedly stable accommodation relied on by the applicant was far from stable. The change in the intended address ‘at the 11th hour’ was indicative of this fact. Furthermore, even accepting the evidence of Mr Newman at face value, it was proposed that the applicant would live with a man he hardly knew, on his own for much of the time, in a place where there was currently no furniture. The applicant would have no job, no money, and nothing to do. This was not a realistic offer of stable accommodation, submitted Mr Shaw.
In summary, in relation to the question of exceptional circumstances, Mr Shaw submitted that the only important matter was the question of delay. All of the other matters, even in combination, ‘amount to virtually nothing’.
On the question of unacceptable risk, the risk relied upon was of the applicant endangering the safety and welfare of any person, and failing to answer bail.
On the first matter, the respondent pointed to the fact of the applicant having been in Australia for a relatively short time, and yet having been accused of and charged with two serious assaults resulting in serious injuries. In this case, serious, lifelong injury was caused. The applicant is also wanted for assault in Ireland. The text messages from the applicant in this case show his willingness to settle disputes with violence. All of the evidence showed that ‘he’s no stranger to violence’.[9] The Saddik family remain justifiably concerned for their safety, and that is a matter the Court should take into account.
[9]Transcript 84.
On the question of the risk of failing to answer bail, which the respondent relied upon as being the most concerning risk, Mr Shaw pointed to the applicant’s failure to appear in answer to his bail for the assault matter in the Magistrates’ Court in April 2015. That matter remains outstanding, and the reason for that is his failure to appear when required. As for the applicant’s flight after the shooting, it was ‘quite an elaborate escape,’[10] submitted Mr Shaw, extending to travel interstate, the hiding of vehicles on a farm and changed locations once the interstate destination had been reached. The ties of the applicant to the Victorian jurisdiction were ‘very, very slender indeed’, nearly all of his ties being to his native country, and there being no evidence that his brother even lives in Victoria. In addition, the applicant is an unlawful non-citizen, who would be likely to be taken into immigration detention if released on bail. Were that to occur, and even were there to be a bail condition to prevent it, there would be nothing to stop the applicant from signing a voluntary deportation request and being removed from the country. If the Court granted bail, control over the applicant would be lost.
[10]Transcript 87.
Mr Shaw submitted that the conditions proposed would not ameliorate the risk posed by the applicant to an acceptable level.
Analysis
Amongst the array of circumstances relied upon by the applicant in support of proof of exceptional circumstances, there was no doubt in my mind that by far the most weighty was the likely delay before his trial would be heard. He has been in custody since 27 February 2019. His trial is listed for 18 January 2021, but I decided this application on the basis that his trial is unlikely to proceed then, and is more likely to be heard in the middle of 2021. This means that the period on remand would likely exceed two years, and may approach 2 ½ years. This is a very lengthy period of time on any view.
There is no doubt that in many cases, a delay of the magnitude likely here would be a matter which may lead to a conclusion that exceptional circumstances are made out. It cannot be forgotten, however, that each case will turn on its own facts, and the Court is required to balance all of the relevant surrounding circumstances.[11]
[11]El Nasher v Director of Public Prosecutions [2020] VSCA 144, [43].
With all due respect to the very able submissions of Mr Steward, it seemed to me that Mr Shaw was correct in submitting that aside from the matter of delay, the other matters relied upon by the applicant did not amount to much.
Mr Steward pointed to material indicating possible defences for the applicant, but did not assert that the prosecution case was weak. Nor could he realistically have done so. The evidence indicated the attendance by the applicant in company with the co-accused, in the context of an ongoing and increasingly bitter dispute, at an address where a confrontation with Morgan was planned. A hammer was allegedly used in the initial attack upon Morgan. A handgun was then used by one of the offenders to shoot Morgan in the head from close range. Immediately before the shooting, one of the other offenders seemingly encouraged the shooter to act. After the shooting, the offenders left the scene as a group and made their way from Melbourne, and in the case of the applicant and one co-accused, to the far reaches of NSW to avoid capture. To my mind, the prosecution case should be seen as being reasonably strong for the purposes of the bail application.
The accommodation on offer from Mr Newman, notwithstanding his kindness in making it available, was far from ideal. Accepting at face value the somewhat surprising evidence of Mr Newman, the fact is that for the reasons advanced by the respondent, what was proposed was not a realistic offer of stable accommodation.
Nor was the employment situation any better. A full-time job originally on offer to the applicant was no longer open, and in any event, there was a real prospect that the applicant would not be able to engage in any lawful employment, in light of his status as an unlawful non-citizen.
In relation to the surety proposed by the applicant, this was not a significant matter going towards the proof of exceptional circumstances. Mrs Murphy, a resident of Ireland, would be in no position to supervise the performance by the applicant on bail, and ensure his appearance as required. As was stated by Gillard J in Mokbel v Director of Public Prosecutions (Vic) and Director of Public Prosecutions (Cth):[12]
The importance of the undertaking given by a surety cannot be overstated. The Court, once it grants bail, is not in a position to supervise obedience to the order and conditions. It relies upon a surety to perform that task. In that sense, the surety acts as both ‘the eyes and ears’ of the Court. The surety undertakes a duty to ensure that the principal, that is, the accused, honours his undertaking to the Court to appear at trial and to attend each day of the trial. A surety must be independent and undertake a real obligation. This means that the surety must put his or her money at risk.[13]
[12][2006] VSC 487.
[13]Ibid [38].
In addition to the problem that the proposed surety would be in no position to supervise the applicant and ensure his appearance, I would question whether a surety comprising individual sums offered up by the surety and her six siblings would be appropriate in any event. Section 9 of the Act requires that the surety must be ‘worth not less than the amount of bail in real or personal property or both’. More than two thirds of the proposed surety of $50,000 was not the property of Mrs Murphy, but rather, had been contributed by her siblings.
Also relied upon as going to exceptional circumstances were the COVID-19 considerations. I accept the contention of the respondent that much of the material relied upon in this respect was out of date and of no assistance to the applicant. Fortunately, predictions by health authorities and judges many months ago now as to how the pandemic would unfold in the prison setting have not been realised, due, no doubt, to the extraordinary measures taken by the authorities to prevent the entry of the virus into the prison system. I do take into account, however, as one of the factors going to the surrounding circumstances in this case, the onerous nature of custody as it has been experienced by the applicant, and will be for some time to come, for the reasons advanced by Mr Steward.
Having dealt with the matters relied upon by Mr Steward, it is worth commenting briefly on some of the other matters amongst the surrounding circumstances upon which s 3AAA(1) would focus attention.
The offending alleged is exceedingly serious, constituted by the close-range shooting to the head of a man in the context of an ongoing business dispute. Life-changing injuries were suffered by the alleged victim of the crime. The maximum penalty for attempted murder is imprisonment for 25 years, and for ICSIGV, 20 years.
The applicant has a criminal history over a number of years in Ireland for a variety of offending including one matter of assault. In his relatively limited time in Australia, he has twice been accused of significant crimes of violence. There is a further matter pending in his homeland for assault. In addition, the failure of the applicant to appear in the Magistrates’ Court in answer to his bail on the charge of recklessly causing serious injury is a matter of concern. Rather than comply with his bail, the applicant left the country and returned to Ireland. The fact that he had a reason for wanting to be in Ireland does nothing to take away from the concerns raised by his failure to answer bail.
Looking at the personal circumstances of the applicant, as already noted, there was no promise of stability in the accommodation on offer to the applicant, or indeed, in the situation in which he would find himself if released on bail. He would have no job, few friends, no ties to the jurisdiction, and would face the prospect of being taken into custody by immigration officials. Furthermore, his incentive to leave the jurisdiction would be strong.
A consideration of all of the surrounding circumstances led me to the view that the applicant had fallen well short of establishing the existence of exceptional circumstances which would have justified the grant of bail in this case. For that reason, it would have been necessary for bail to be refused.
For completeness, I can indicate that even had I been satisfied of the existence of exceptional circumstances, I would have considered that the respondent had proved that the risk posed by the applicant of endangering the public or failing to answer bail was unacceptable in the circumstances. Those circumstances included the seriousness of the offending, the strength of the prosecution case, the prior criminal history of the applicant and pending matters for crimes of violence in two countries, his proven track history in failing to answer bail for a crime of violence, his conduct in fleeing Victoria after the shooting in this case, his lack of ties to the jurisdiction, and his status as an illegal non-resident.
For this reason, also, bail would have been refused.
Conclusion
For the reasons stated above, the application for bail was refused.
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