Re Engin
[2024] VSC 722
•6 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0170
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an application for bail by JUMHUR ENGIN |
BETWEEN:
| JUMHUR ENGIN | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 August 2024 |
DATE OF RULING: | 6 September 2024 |
CASE MAY BE CITED AS: | Re Engin |
MEDIUM NEUTRAL CITATION: | [2024] VSC 722 |
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CRIMINAL LAW — Application for bail — Charges relating to threat to kill, rape, procuring a sexual act by threat, sexual assault, common law assault, false imprisonment and breaching an intervention order — Family violence — Limited criminal history — Compelling reason test not satisfied — Unacceptable risk established — Bail Act 1977 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Dunn KC | Emma Turnbull Lawyers |
| For the Respondent | Ms L Gurry | Office of Public Prosecutions |
HIS HONOUR:
Introduction
By application dated 18 July 2024, Jumhur Engin [‘the applicant’] applies for a grant of bail from this Court. He is on remand for 13 charges in which the Informant is Senior Constable Kieran Burn [‘the informant’]. The charges are:
(i) Threatening to kill;
(ii) Rape;
(iii) Procuring a sexual act by threat;
(iv) Sexual assault;
(v) Common law assault;
(vi) False imprisonment; and
(vii) Breaching an intervention order.
The applicant is to appear for committal mention before the Magistrates’ Court later today, Friday, 6 September 2024.
Background and the alleged offending
The complainant in this matter is the applicant’s wife, AE. The applicant’s parents, OE and IE, face charges as co-accused in respect of some matters. The applicant and AE have two children, EE and IE, both of whom are under the age of 10. The alleged offending commenced shortly after the family emigrated to Australia on 29 November 2018.
There are numerous allegations of violence and abuse by the applicant towards his wife, a substantial number of which are alleged to have occurred outside Australia. Given the volume of these allegations, which altogether spanned over a period of years, it is not proposed to repeat all the allegations in detail, but summarise relevant aspects that relate to the filed charges now before the Court.
The first incident is said to have occurred shortly after the family emigrated to Australia, during which the complainant had threatened to report the applicant to police due to his behaviour towards her. In response to the threat, the applicant is alleged to have grabbed AE by the collar and threatened to pour acid on her and cut her into pieces.
Later, in early 2019, the applicant, the complainant and EE moved in to live with a family friend, VA. On one occasion during their stay, VA alleges he heard the complainant scream and saw the applicant holding his wife her by the arms. It is alleged that he pushed the complainant, laughed and said, ‘you don’t know what I’m capable of’.
Later that year, the family moved to a home in Mulgrave. In early to mid 2020, the applicant is alleged to have demanded sex from the complainant, and after she refused and when she began walking towards the doorway of their home, the applicant pushed her to the ground, held her down and threatened to kill her. It is alleged that the applicant then proceeded to remove her lower clothing and anally rape her.
On another occasion during 2020, it is alleged that VA observed the applicant screaming and swearing at the complainant before grabbing her by the hair and pulling her backwards, causing her to fall to the ground. VA protested but the applicant threatened that he and his father would hurt him, or make him disappear.
It is alleged that the applicant’s offending continued into 2021, during which a further four incidents are said to have occurred. The first was in early 2021, when the complainant was pregnant with their second child. It is alleged that the applicant screamed at the complainant and grabbed her by the throat before pinning her to a wall. The second incident occurred after the birth of their daughter when the applicant swore at, and then hit the complainant. VA, who was visiting at the time, intervened and it is alleged that the applicant grabbed him by the neck and began to choke him while making death threats. The third incident is alleged to have occurred in the context of the applicant again grabbing VA by the throat and neck. The fourth incident occurred as VA and the complainant were taking their youngest daughter to visit a maternal health nurse. The applicant is alleged to have grabbed VA by the throat saying, ‘come here you cunt, I’ll fix you up’. VA says he saw bruises on the complainant’s arms and the applicant grabbing the complainant by the arms on several further occasions in 2021.
In 2021 or 2022, VA attended the applicant’s address after the complainant’s mother contacted him and told him that she had heard screaming on the telephone. VA alleges he witnessed the applicant say to the complainant, ‘you need to do what I tell you to do’ and kick her twice while she lay on the floor. VA alleges he saw redness on the complainant’s arms, neck and legs a few days later.
In mid-2022, it is alleged the complainant made an audio recording of the applicant verbally abusing her saying, ‘Promise to God, I will kill you, I mean’, ‘I will kill you’ and ‘Get out of here. I promise to God, I will kill you’.
In late 2023, VA attended the applicant’s address and from the doorstep heard the complainant say ‘stop, you’re hurting me’. On entering the house, VA alleges that the applicant had the complainant pinned to the wall. VA pulled the applicant away, who said ‘I’ll fix her up, wait your time, you’ll see what I’m gonna do’.
A series of further offences are alleged to have occurred at the start of 2024. First, in the presence of their daughter EE, the applicant is alleged to have pushed the complainant to the ground before throwing her into a glass door. On a further occasion, the applicant is alleged to have said, ‘I will throw acid on your face. I miss the smell of blood’. He is alleged to have thrown the complainant into the glass door on several more occasions, in addition to making a number of threats to throw acid on her face and cut the throats of their children. The third specific allegation occurred between 2:00am and 3:00am one morning when the applicant woke the complainant while she was asleep with their daughters, and brandished a large knife, threatening to decapitate IE if the complainant did not come with him to ‘do it from behind’. He is then alleged to have forced the complainant to perform oral sex with him. The fourth allegation is said to have happened at around the same time on another morning — in the kitchen of their home — when the applicant removed his erect penis and waved it at the complainant saying ‘let me stick it in your front and back’, ‘I am going to kill you and take your children away from you. You are going to see what I am going to do to you’. The applicant then digitally penetrated the complainant’s anus, before grabbing her by the back of the head and forcefully squeezing her throat.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 [‘Act’].
Notably, a person who is accused of an offence and is being held in custody in relation to that offence is entitled to bail unless the Court is required to refuse bail in accordance with the Act. Section 4AAA of the Act outlines the circumstances in which bail must not be refused.[1] Furthermore, s 4AA of the Act outlines the circumstances in which the two step test (which involves either the compelling reason or exceptional circumstances test and the unacceptable risk test) applies to the determination of a bail application.
[1]Bail Act 1977 (Vic) s 4.
The compelling reason test
Because the applicant is accused of committing an indictable offence, namely rape, the compelling reason test applies to this application in accordance with ss 4AA(3), 4C and Schedule 2, item 9, of the Act.
The Court is required to decide whether, taking into account the surrounding circumstances in s 3AAA, the applicant has shown a compelling reason that justifies the grant of bail. Bail must be refused unless the applicant can satisfy the Court that a compelling reason exists.[2]
[2]Ibid, ss 4AA(3) and 4C(1)–(2).
The phrase ‘compelling reason’ is not defined in the Act. Its meaning was discussed first in Re Ceylan,[3] and further in a number of subsequent decisions of this Court. The relevant principles were summarised by the Court of Appeal in Rodgers v The Queen:[4]
(1)For an applicant for bail 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 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’.
[3][2018] VSC 361 (Beach JA).
[4][2019] VSCA 214, [43] (Beach, Kaye and Ashley JJA) (citations omitted).
Unacceptable risk
If satisfied that a compelling reason exists, the Act provides that the Court must still refuse bail if it is satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that risk is unacceptable.[5]
[5]Ibid, s 4E (1)–(2).
Section 4E(1)(a) refers to the risk that the applicant, if released on bail, would endanger the safety and welfare of any person, commit an offence, interfere with a witness or otherwise obstruct the course of justice in any matter, or fail to surrender into custody in accordance with conditions of bail.
In considering whether a risk is unacceptable, the Court must take into account the surrounding circumstances set out in s 3AAA(1) of the Act, and consider whether there are any conditions that may be imposed to mitigate the risk so that it is not unacceptable.[6]
[6]Ibid, s 4E(3).
Family violence risks
The Court is also required to make inquiries as to whether there are any family violence intervention orders [‘FVIOs’], family violence safety notices, or other recognised domestic violence orders in force against the applicant.[7] In addition, because the applicant is charged with family violence offences,[8] the Court is required to consider whether — if he were released on bail — there would be a risk that he would commit family violence and, if so, whether that risk could be mitigated by the imposition of a condition or the making of an FVIO.[9]
[7]Ibid, s 5AAAA(1).
[8]Family violence includes behaviour by a person towards a family member of that person if that behaviour is physically or sexually abusive. See the Act, s 3; Family Violence Protection Act 2008 s 5(1)(a)(i).
[9]The Act, s 5AAAA(2).
An FVIO was granted against the applicant on 23 February 2024 at Moorabbin Magistrates’ Court.
I consider the risk of further family violence later in these reasons.
The applicant’s personal circumstances
The applicant is a 57 year old Australian citizen. He was born in Greece, although is culturally Turkish, and moved to Australia when he was four years of age in 1971. He became an Australian citizen in 1976. His father is aged 81 and his mother is 77. The applicant completed secondary school at Wesley College in Melbourne, and enrolled in a Bachelor of Economics at Deakin University in 1985. In 1986, he migrated with his family to Türkiye, married his first wife in 1990 and had their first child the following year.
In 1999, the applicant travelled to Australia but returned to Türkiye in 2002. He met AE in 2012 in Istanbul and they married in June of that year. He was aged 46 and she was 33 at the time. The applicant had been residing in Tehran, Iran for a number of years where he operated a business. By 2013, the couple were living three months off and on between Tehran and Istanbul until his business began to fail. In November 2018, they moved to Melbourne, initially residing with the applicant’s family in their Housing Commission flat in Prahran. The applicant obtained some work in 2019 as a storeman. They moved in with VA in Mulgrave for three months around this time, before securing their own rental accommodation in the same suburb.
The children EE and IE were born in September 2015 and July 2021 respectively. It was submitted that, prior to their separation, the applicant was the primary care giver to the children.
Mental health issues
The applicant’s initial affidavit emphasised that he had been diagnosed with ADHD and has been appropriately treated in custody. This issue was not raised in the written submissions. It was however pressed on the oral hearing by the applicant’s counsel, who submitted that his condition was treated with dexamphetamine but that he could not get that drug in gaol.
Criminal history
The applicant has a limited criminal history.[10] In April 2001, the applicant was fined $3,000 with conviction for unlawful assault and use threatening words. In May 2001, the applicant was ordered to pay $1000 without conviction on a further unlawful assault charge that was eventually dismissed because of compliance with an undertaking. Both assault charges appear to have been incidents of road-rage.
[10]The parties each summarised the applicant’s criminal history differently. The applicant claimed not to have been convicted of any assault charges while the respondent claimed he was convicted of both charges.
It is noted that VA alleged that the applicant had spent time in prison overseas, although counsel for the applicant could neither confirm nor deny that allegation. This allegation is not taken into account when deciding the application for bail.
The applicant’s contentions
Compelling reason
The applicant relied on the following matters that were argued, in combination, to establish a compelling reason justifying the grant of bail.
Strength of the prosecution case and prospects of acquittal
Counsel emphasised in oral submissions that although the allegations are serious, they remain allegations and the supporting evidence referenced by the prosecution at this stage of the proceedings is subject to credibility and admissibility concerns.
Counsel placed weight on the argument that the prosecution case relies heavily on the evidence of AE and to a lesser extent VA. In that context, counsel drew attention to the fact AE did not make contact with the police regarding the applicant’s alleged violent conduct until after the applicant served her with an Intervention Order. It was submitted that this fact calls into question both AE’s credibility and motivations. Further, AE’s initial allegations did not include allegations of rape, which were disclosed at a later stage. Furthermore, it was submitted that the recordings taken by AE of her conversations with the applicant, and relied upon by the prosecution, do not contain any admissions by the applicant to the substantive allegations. Also, it was pointed out there is no medical or forensic evidence capable of supporting the allegations.
The applicant submitted that the four month delay before police intervention from when the last allegation was made against him in February 2024 and his arrest in June 2024 is representative of his reduced risk profile.
Counsel further pointed out that investigating police had conducted a MARAM[11] assessment of the applicant but the results did not force any timely action to occur. Counsel noted at the hearing that it was not known when the assessment was conducted nor the results of the assessment, however, the lack of any consequent police intervention on the applicant provided strong justification for bail to be granted.
[11]An acronym for Multi-Agency Risk Assessment Management.
Further, counsel highlighted that the applicant’s conduct as noted immediately above is capable of demonstrating his willingness to avoid contact with AE. On tape recordings relied on by the prosecution, the applicant repeatedly asked his wife to leave him prior to his arrest. Between February and June 2024, there had been no physical or direct contact between the applicant and AE. Further, in February 2024, the applicant returned to the couple’s house accompanied by police to collect his personal belongings, and the applicant had sought to arrange contact with his children, by using proper channels via the Department of Human Services.
It is conceded in further written submissions subsequent to the oral hearing that there has been some potential indirect contact between the applicant and AE through a babysitter. With respect to this contact, the applicant submitted that the evidence on this point is currently inadmissible as hearsay; that the contact was not accompanied by threats, coercion or violence; and the contact occurred in May 2024 in a context where there was no further contact nor violence up until the applicant’s arrest in June 2024.
Availability of accommodation
It was submitted by the applicant that he would be able to reside with his parents at their address in Prahran if he was to be released on bail. This was said to be a favourable factor in that the applicant would be provided with stable accommodation on bail, and reside some distance from Mulgrave, the suburb of the AE’s last known address.
It was further submitted that the applicant would be able to provide caregiving to his elderly parents while residing with them, as he had done prior to his arrest.
Delay to Trial
The applicant accepted in written submissions that there is nothing unique about the likely delay involved in these proceedings. Having said that, it is recalled that the trial of these matters is likely to be conducted in 2025 and that delay being ‘ordinary’ does not mean it is acceptable, nor irrelevant. Rather, it is submitted that the delay is particularly relevant in this case where the applicant is in custody for the first time and there are triable issues relating to the prosecution’s evidence that may result in the applicant being acquitted.
Lack of recent or significant criminal history
The applicant submitted that while he has a criminal history including prior charges for assaults, those matters occurred over 20 years ago, were not alleged to have occurred in a domestic context nor on bail, and resulted in low level dispositions in Court. The prosecution did not suggest the applicant had any criminal associations.
Availability of bail conditions, including bail support
Counsel submitted that, in view of the applicant’s low risk profile and apparent desire to avoid direct contact with EA, any perceivable risk posed by the applicant can be managed through the imposition of appropriate bail conditions.
Counsel further submitted that the time spent in custody to date has provided a salutary reminder to the applicant of the importance of compliance with intervention order and bail conditions, if he were to be released.
The applicant also relied on the availability of ongoing case management by the Court Integrated Services Program [‘CISP’]. In a report dated 5 August 2024, CISP recommended Level 1 Community Referral, with arrangements for immediate support, but that ongoing case management was not required. Recommendations included the applicant was eligible to engage with The Bridge Centre, which offers men the opportunity of a rehabilitation journey outside of the prison setting; that he can engage with his general practitioner for a referral to a psychologist in the community; an appointment with his psychiatrist, Dr Perry Short; and that he can contact The Orange door to discuss relevant family violence supports.
With respect to the applicant’s mental health, the applicant also relies on a report of Dr Perry Short, consultant psychiatrist, dated 9 January 2024. The Court notes that the report predates the allegations being made in this matter to police, and appears to be a report authored for the purposes of medical treatment, rather than for Court purposes. It is noted that Dr Short described a mental state examination revealing the applicant to be a middle‑aged man who ‘looks worried and is anxious and talks openly about multiple problems’. Further, Dr Short described there were ‘no acute risks’, and there being ‘no psychosis present’, but that the applicant ‘presents as having impaired judgement and limited insight’. Dr Short noted that the applicant appears to have multiple psychosocial problems including marital issues. The report further noted the applicant had become depressed and had experienced some suicidal thoughts that appear to have settled. However, he was described as being ‘anxious and depressed’, and was provided with relevant medication. As above, the report was not authored for Court purposes and there is no reference to any aspects of violence within the applicant’s relationship with his wife.
Unacceptable risk
The applicant submitted that while noting that the onus lies with the prosecution to demonstrate unacceptable risk, each of the risks identified by the respondent can be answered in turn. In summary, it was submitted that, in view of the applicant’s limited criminal history and non-violent and indirect contact with AE in recent times, there was no credible evidence to substantiate any assertion that the applicant posed an unacceptable risk. Further, to the extent that any risk is unacceptable, the bail conditions proffered by the applicant would reduce that risk to an acceptable level.
The respondent’s contentions
Compelling reason
Seriousness of the offending and strength of the Crown case
The respondent submitted that this case involves serious allegations of abusive, violent and controlling behaviour towards AE in the context of alleged family violence over a lengthy period of time, and occurring in the presence of young children.
The respondent submitted that, although its case rests heavily on the reliability and credibility of AE, the complainant’s account of events does not stand alone. In a number of respects there is corroboration both by VA’s evidence and a number of audio recordings that capture the relationship dynamic between the applicant and AE in which the applicant is abusive. For example, the applicant states multiple times that he is going to kill AE during the recordings, and is extremely threatening and abusive towards her, with the complainant saying that she is afraid of him, and with him telling her he can do whatever he wants.
It was submitted that the prosecution case, in its current form, consisted of sufficient evidence to prove the allegations against the applicant. Further, citing Re Taylor,[12] the respondent contended that this application for bail was an inapt setting in which to assess the strength of the prosecution case and canvass its evidence in detail. To the extent that it accepted the applicant’s assessment of the evidence, the respondent cautioned against the Court usurping the ultimate role of the jury as the trier of fact. The respondent also submitted that the strength of its case was one factor to be considered amongst others in the determination of a bail application.[13]
[12]Re Taylor [2007] VSC 41, [4].
[13]Citing Bail application of ML [2022] VSC 76, [37]; Re Roberts [2020] VSC 793, [26].
Criminal history, extent of previous compliance and circumstances of arrest
The respondent submitted that the applicant’s criminal history, including charges of unlawful assault in 2001 in particular, were relevant to determining this application.
Existence of family violence intervention order and family violence risks
An interim FVIO was issued against the applicant on 23 February 2024 at the Moorabbin Magistrates’ Court. The respondent submitted that the applicant contravened the order by requesting the children’s babysitter contact AE and ask AE to reconcile with him. This was said to demonstrate a risk that the applicant would not comply with further orders relating to his relationship with AE. If the applicant was released on bail, the respondent submits there is a risk that the FVIO would have a limited protective effect given this previous non-compliance.
Personal circumstances, special vulnerability, home environment and background
The respondent submitted that the applicant did not exhibit any personal circumstances that amounted to contributing to the conclusion that a compelling reason is made out. Further, with respect to special vulnerability, there was no evidentiary basis to support the claim that the applicant’s ADHD was not being appropriately treated in custody.
The respondent raised concerns about the applicant residing with his parents while on bail. In particular, it was highlighted that, there is evidence that both of the applicant’s parents were abusive towards AE and therefore their residence may not be a domestic setting that encourages compliance with any bail conditions set to protect AE.
Views of alleged victims
It was submitted that the two alleged victims in this case, AE and VA, have expressed extreme concern about their safety and the safety of their families at the prospect of the applicant being granted bail.
Unacceptable risk
Endangering the safety or welfare of any person
It was submitted that the applicant’s alleged breach of the interim FVIO, by having the babysitter contact AE, figures squarely in the assessment of the applicant’s risk of endangering the safety or welfare of AE and VA if bail were granted. It was submitted that the applicant previously has made threats against AE about the consequences that would result from her reporting her allegations to the police. It was further submitted that the indirect and effectively non-violent nature of alleged the FVIO breach did not negate the significance of the breach nor the seriousness of the alleged offending and its particularly violent qualities.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent submitted that because AE and VA were witnesses in the prosecution case, the aforementioned risk to their safety was also relevant to the risk that the applicant would obstruct the course of justice if bail were granted.
Failing to surrender into custody in accordance with the conditions of bail
Although the applicant is an Australian citizen and would be tied to caring for his elderly parents in Melbourne, the respondent contended that there is nonetheless a risk that the applicant may abscond given his overseas connections. It was suggested that this risk would not be mitigated by the applicant surrendering his passport in compliance with the conditions of bail.
Analysis and conclusions
Introduction
As the applicant is accused of committing a Schedule 2 offence, the ‘compelling reason’ test applies to this application in accordance with ss 4AA(3), 4C and Schedule 2 of the Act. As above, the application of this test was not in dispute between the parties.
In determining whether a compelling reason exists, the Court must take into account the relevant surrounding circumstances, including, but not limited to, those set out in s 3AAA(1) of the Act.[14]
[14]Ibid s 4C(3).
As above, the Act does not define what is meant by ‘compelling reason’, however, I will apply the reasoning set out in Rodgers v The Queen,[15] as discussed above.
[15][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
Has the applicant shown a compelling reason?
As he is entitled to do, the applicant has outlined a number of factors which are put forward, in combination, to establish a compelling reason why he should receive a grant of bail.
As to the strength of the prosecution case, there is no doubt that significant reliance will need to be placed by the prosecution on AE’s account of the events and, to a lesser extent, the evidence provided by VA. They are both key witnesses against the applicant, and likely to be exposed to significant attacks against their credibility. Whilst it is not appropriate for this Court at this point to assess the admissibility and credibility of the evidence that may be proffered by the witnesses it is evident that a number of the allegations made by AE appear capable of being corroborated by the evidence of VA, as well as comments made in the audio recordings made of the applicant by AE. I note also that both AE and VA have made detailed written statements to police, both of which I have read and considered.
In my opinion, it seems reasonable to conclude that the prosecution case is arguable and that at least some of the allegations against the applicant may be capable of proof once the prosecution case is mapped out and canvassed properly. I am not prepared to say the prosecution case is fundamentally weak. However, I do note that it is submitted on behalf of the applicant that there are triable issues, which doubtless will be teased out at a committal hearing. I note also that there is a lack of forensic or scientific evidence about the alleged sexual violence against AE, and this may be a significant factor in due course. However, that will remain to be seen once the case advances further. In summary, I am not prepared to say that the prosecution case is fundamentally flawed, and in my opinion it is a clearly arguable case against the applicant.
The applicant’s limited criminal history, lack of subsequent allegations of violent offending, and the lack of police action between the last assault allegation and the time of arrest, all must be weighed in the context of the very serious nature of the allegations. The prosecution alleges that the applicant, over a period of years, has engaged in a course of repetitive and serious family violence as detailed by the complainant that, if accepted, possessed elements of control, humiliation and degrading conduct to serious levels. Furthermore, the allegations include sexual violence of a serious level, including alleged occurrences of strangulation, and holding the complainant by the throat on a number of occasions. If accepted, this conduct would be regarded as extremely serious. In the overall context of alleged family violence, the applicant is accused of repeatedly raping and assaulting his former partner over a lengthy period and in the presence of their young children.
The applicant’s breach of the FVIO is significant albeit non-violent and indirect in its nature. Any breach of an FVIO is a serious matter and must be considered as such by this Court. The act of compelling the babysitter to ask AE for a reconciliation, effectively puts the success of this bail application at considerable risk. That said, the applicant’s contact with the Department of Human Services to arrange meetings with their children, and otherwise apparent desire to avoid AE weigh in his favour, and I have given consideration to these matters. I also accept that the charges of assault dating back more than two decades should be given limited weight in this analysis.
I accept that the applicant could avail himself of stable accommodation with his parents if bail was granted, and their location in Prahran is conveniently distant from AE’s last known address in Mulgrave. The location is amenable to bail conditions that are capable of limiting the applicant’s geographical proximity to AE and VA, who would fear for their welfare if bail were granted.
I have also taken into account the availability of bail support, and the matters raised by Dr Perry Short, in his report provided to the Court.
Taking into account all the matters put forward, I am of the opinion that this application is finely balanced with respect to the satisfaction of the compelling reason test. However, in weighing all the matters, I am not satisfied that the applicant has made out the test. The Court has been deeply troubled by the alleged level of violence in the applicant’s treatment and attitude towards his intimate partner, especially when considering the nature of the expressions used in the recorded material, and the evidence provided by the corroborative witness AV, who maintains he has seen episodes of violence towards the complainant. Furthermore, he has expressed fear of the applicant, and provides evidence of physical assault by the applicant upon himself. In making the assessments that I have, the Court has taken into account the extent to which the prosecution case must rely on the evidence of the complainant and the witness AV, and the lack of forensic and medical evidence that might otherwise be capable of substantiating the assaults alleged to have taken place on the complainant.
In applying this test, the Court must take into account the surrounding circumstances, which I have done. Otherwise, I have considered the submissions of the parties and all the relevant factors, including the submissions and material that was provided to the Court after the oral hearing of the matter took place. I note that neither party indicated that further oral submissions would be made in relation to the matters raised in those materials and submissions.
In the circumstances, I am not satisfied that the applicant has reached the compelling reason test that would otherwise justify granted bail.
Has the respondent shown there is an unacceptable risk that could be moderated by bail conditions?
Having concluded that the compelling reason test has not been satisfied, it is therefore unnecessary for me to consider the application of the unacceptable risk test. However, in the event that I had concluded the compelling reason test was satisfied, I indicate that in any event I would have refused the grant of bail on the basis that the respondent has satisfied me that there is an unacceptable risk, as defined in the Act. Bail in the circumstances must be refused if a Court is satisfied by the respondent that there is a risk the applicant would engage in any of the conduct outlined in s 4E(1)(a), and that such a risk is an unacceptable one.[16]
[16]Ibid s 4E.
In my opinion, in considering all of the matters that could have been weighed in this part of the application, I am satisfied that there would have been in all the circumstances an ongoing risk to the complainant in this matter, and that bail conditions could not be applied that would reduce the risk to a level that I would regard as acceptable. In particular, I have considered the question of whether a geographical limitation on the applicant’s location would have reduced the risk, but in all the circumstances as put forward in the application I do not believe that such limitation would be capable of reducing the risk to an acceptable level.[17]
[17]The Act, s 4D(1)(b).
Accordingly, the order will be that the application of bail is refused.
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