Re Farah
[2024] VSC 196
•27 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0128
IN THE MATTER of the Bail Act 1977
– and –
IN THE MATTER of an Application for Bail by Abdisamad FARAH
– and –
IN THE MATTER OF an Application for Revocation of Bail by the Director of Public Prosecutions
BETWEEN:
| Abdisamad FARAH |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 March 2024 |
DATE OF JUDGMENT: | 27 March 2024 |
DATE OF REASONS: | 23 April 2024 |
CASE MAY BE CITED AS: | Re Farah |
MEDIUM NEUTRAL CITATION: | [2024] VSC 196 |
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CRIMINAL LAW — Application for bail — Application to revoke bail — Application to vary bail — Heard together — Re Dukic [2018] VSC 664 — Charges of murder and kidnapping — Further offending leading to charges of possessing an imitation firearm, possessing a drug of dependence, committing an indictable offence whilst on bail, contravening a condition of bail, state false name —Bail application denied, bail revocation application granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Accused | J Poole | McNally & Gleeson Lawyers |
| For the Director of Public Prosecutions | G Hayward | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Abdisamad Farah [‘Mr Farah’] is one of eight accused charged by Detective Senior Constable Thomas Stalder with the murder of Khalid Mahat [‘the deceased’] and the kidnapping of Abdulahi Abdi. The matter is next listed for directions hearing in this court on 12 April 2024 before Freeman JR. The trial is listed to commence on 5 August 2024. Mr Farah is currently on bail in this proceeding [‘the informant Stalder matter’]. On 12 February 2024, Mr Farah was remanded on new charges by Constable Jacob Archibald, which was listed in the Heidelberg Magistrates’ court on 18 March 2024 [‘the informant Archibald matter’], and adjourned on this date for further mention.
There are three applications presently before the court:
(a) an application to vary bail filed in the informant Stalder matter by Mr Farah on 9 February 2024 (i.e. prior to Mr Farah’s remand in the informant Archibald matter) [‘the variation application’];
(b) an application to revoke bail filed in the informant Stalder matter by the Director of Public Prosecutions [‘the Director’] on 16 February 2024 [‘the revocation application’]; and
(c) an application for bail filed in the informant Archibald matter by Mr Farah on 7 March 2024 [‘the bail application’].
In Re Dukic,[1] the court considered an application for bail and an application to revoke bail simultaneously, in circumstances where the Director had filed the latter application in light of Mr Dukic’s remand on new charges. The court found that consideration of both applications together was ‘in the public interest to save time and unnecessary expense’.[2] In that case, the court also noted that the arguments of both parties were ‘largely common to both applications before the Court’.[3]
[1][2018] VSC 664.
[2]Ibid [6].
[3]Ibid [50].
Consistent with the approach taken in the decision cited above, the court has heard the three applications together at the hearing on 12 March 2024, given the significant overlap of content relevant to the respective applications.
Procedural History
On 16 October 2022 the applicant and seven co‑accused are alleged to have been involved in events involving the kidnapping of Abdulahi Abdi and the murder of the deceased. On 2 November 2022, Mr Farah was arrested and charged in the informant Stalder matter and remanded in custody. On 23 June 2023, following a contested committal hearing, Mr Farah was committed to stand trial in the Supreme Court alongside six of his co‑accused. At the completion of the committal hearing on 23 June 2023, Mr Farah applied for bail. That application was granted by Magistrate Sonnett, with conditions that Mr Farah:
(a) report to Preston Police Station every Monday, Wednesday and Friday between 6:00am and 9:00pm;
(b) reside at [an address] in Preston;
(c) surrender valid passports or any other valid travel documents held within 24 hours of release to the informant and not apply for any other;
(d) not attend any points of international departure;
(e) not leave Australia;
(f) not leave the state of Victoria;
(g) not contact witnesses for the prosecution other than the informant;
(h) not associate with any co‑accused;
(i) not leave his place of residence between the hours of 9:00pm and 6:00am except in the company of Mahad Farah and/or Safio Dudaaye;
(j) present at the front door of his residence during curfew hours upon request of any member of Victoria Police;
(k) not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation under that Act;
(l) attend the Supreme Court on 13 July 2023;
(m) report to Youth Justice by 4:00pm on 27 June 2023;
(n) comply with all lawful directions of the Youth Justice Bail Service Program;
(o) not possess more than one mobile phone;
(p) provide the informant with the phone number and IMEI of [the] mobile phone within 24 hours of first use of such mobile phone; and
(q) produce the mobile phone for inspection by any member of Victoria Police upon request.
On 9 February 2024 the variation application was filed on behalf of Mr Farah seeking to remove the requirement he comply with the Youth Justice condition of his bail, given he had turned 21. The Director did not oppose the variation application. However, on 12 February 2024, prior to the variation application being determined, Mr Farah and an associate were intercepted by police driving in Preston during the early hours of the morning in breach of a curfew condition attached to the grant of bail by the Magistrate. During a search of the car, police found prescription medication (amitriptyline) belonging to another person in the glove box and an imitation ‘glock’ firearm under the driver’s seat. Mr Farah was previously the respondent to a final family violence intervention order [‘FVIO’], and so was considered to be a prohibited person under the Firearms Act 1996. When asked to provide his details, Mr Farah provided police with his brother’s name. Mr Farah and his passenger were arrested and taken to Preston Police Station. The passenger was charged and granted bail, and Mr Farah was charged by informant Archibald (without being interviewed) and remanded in custody on the following offences:
(a) prohibited person possessing an imitation firearm;[4]
[4]Contrary to s 5AB(2) of the Control of Weapons Act 1990.
(b) possessing a drug of dependence (amitriptyline);[5]
[5]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
(c) committing an indictable offence while on bail (two counts);[6]
(d) contravening a conduct condition of bail (two counts);[7] and
(e) stating a false name when requested by police.[8]
[6]Contrary to s 30B of the Bail Act 1977.
[7]Contrary to s 30A(1) of the Bail Act 1977.
[8]Contrary to s 456AA(3)(b) of the Crimes Act 1958.
On 16 February 2024, the revocation application was filed by the Director. That application is opposed by Mr Farah. The variation application has been held in abeyance, pending determination of the revocation application.
In an affidavit resisting the application to revoke bail and submitting that the variation application should be granted, Mr Farah raised his intention to rely on Court Integrated Services Program [‘CISP’] support and indicated a further variation of his Supreme Court bail would be sought to add a condition that he comply with the requirements of CISP. A letter from Ms Xerri of CISP was exhibited to the affidavit. Ms Xerri’s letter stated, amongst other things, that Mr Farah is recommended for case management support (through CISP) ‘if bail is granted from the Heidelberg Magistrates’ Court when that application is listed’. By email to the court on 5 March 2024, Ms Xerri clarified that if bail is not revoked and is varied in the Supreme Court, then CISP cannot provide ongoing case management support. Rather, the support available to Mr Farah in that scenario would be a four‑week brief intervention service, whereby CROP[9] would link Mr Farah to available supports within the community.
[9]CISP Remand Outreach Program.
Following a discussion with Ms Xerri, Mr Farah’s solicitor again emailed the court on 5 March 2024, stating even if Mr Farah’s bail on the informant Stalder matter was not revoked, CROP would still be unable to support him as he would remain on remand and therefore be unable to access intervention services. Further, it would not be possible for Mr Farah to have CROP as a condition of bail for the informant Stalder matter and to have CISP as a condition of bail for the informant Archibald matter at the same time.
Accordingly, the position is that if bail is granted, CISP could only be made a condition of bail in relation to the informant Archibald matter.
The applicable legislation
Guiding principles
I note that amendments to the Bail Act 1977 [‘the Act’] will commence on 25 March 2024. The transitional provisions of the amending Act make it clear that the amendments apply to applications made, or appeals commenced, under the Act on or after the commencement of that provision, regardless of when an offence is alleged to have been committed. Given these applications were made prior to the amendments coming into force, they have no application here.
Section 1B(1) of the Act sets out principles the court must apply when interpreting and applying the Act, namely:
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
Application to revoke bail
An application to revoke bail is made under section 18AE of the Act:
18AE Application for revocation of bail
(1) The informant or the Director of Public Prosecutions may apply for revocation of bail granted to a person.
(2)An application under subsection (1) is to be made—
(a) in the case of a person charged with treason or murder, to the Supreme Court;
(b)in any other case, to the court to which the person is required to surrender under his or her conditions of bail.
Section 18AF of the Act provides that on an application under section 18AE, the court may either revoke bail or dismiss the application.
In Re Gloury‑Hyde (No 2), Priest JA stated:
Section 18AF provides that on an application under s 18AE, the court may either revoke bail or dismiss the application, but the Act otherwise gives no guidance as to how the discretionary powers in the section are to be exercised. That said, the Court must, of course, exercise the powers reserved to it under s 18AF by reference to the guiding principles in s 1B of the Act.[10]
[10][2018] VSC 520, [13].
In Re Dukic, the court found that the Act ‘does not elaborate as to any requirements or considerations when determining such an application beyond the guiding principles contained in section 1B’.[11]
[11][2018] VSC 664, [18].
Application for variation of bail
An application to vary bail conditions is made under section 18AC of the Act, which sets out, in part:
18AC Application for variation of bail conditions
(1) A person who has been granted bail, whether or not the person is in custody, may apply for variation of the amount of bail or the conditions of bail.
(2) The informant or the Director of Public Prosecutions may apply for—
(a) variation of the amount of bail or the conditions of bail; or
(b)the imposition of conditions in respect of bail which has been granted unconditionally.
(3) An application under subsection (1) or (2) is to be made—
(a) in the case of a person charged with treason or murder, to the Supreme Court;
(b) in any other case, to the court to which the person is required to surrender under his or her conditions of bail.
Section 18AD of the Act states that on an application under section 18AC, the court must take into account the surrounding circumstances and may:
(a) vary the amount of bail or conditions of bail if it appears to the bail decision maker that it is reasonable to do so having regard to those circumstances; or
(b) in any other case, dismiss the application.
The surrounding circumstances include those set out at section 3AAA of the Act. The guiding principles under s 1B of the Act are again relevant to a court’s determination whether to vary bail conditions.
Section 18AH(1) of the Act preserves the Supreme Court’s inherent jurisdiction in respect of bail, stating:
Nothing in section 18, 18AA, 18AC or 18AE derogates from any other right of application or appeal to the Supreme Court or the County Court.
First application: Application for bail — Informant Archibald matter
Legal principles
Step 1 — Exceptional circumstances
By virtue of section 4AA(2)(c)(i) of the Act, the exceptional circumstances test applies where an applicant for bail is accused of an offence under schedule 2 of the Act alleged to have been committed while that person was on bail for any schedule 1 or schedule 2 offence. In this case, the exceptional circumstances test applies in relation to the application for bail as Mr Farah is charged by informant Archibald with committing indictable offences whilst on bail and contravene conduct conditions of bail,[12] while on bail for murder, a schedule 1 offence.[13]
[12]The Act, sch 2, item 30.
[13]Ibid sch 1, item 1.
As such, the court is required to refuse bail unless satisfied of exceptional circumstances justifying a grant of bail. In applying the exceptional circumstances test, a court must have regard to the surrounding circumstances including but not limited to those set out at section 3AAA of the Act.[14] The onus in satisfying the court in relation to exceptional circumstances lies with the accused.[15]
[14]The Act s 4A(3).
[15]Ibid.
Step 2 — unacceptable risk
Should the court be satisfied that exceptional circumstances exist justifying bail, the court must then apply the unacceptable risk test.[16] That is, a court must refuse bail if satisfied an applicant for bail would pose a risk of one of the kinds set out at section 4E(1)(a) of the Act, and that risk is unacceptable.[17] The prosecutor bears the onus in satisfying the court of unacceptable risk, both in terms of the existence of the risk and that it is unacceptable.[18] Further, in considering unacceptable risk, the court must have regard to the surrounding circumstances, again including those at section 3AAA of the Act, and whether the risk can be mitigated to an acceptable level through the imposition of bail conditions.[19]
[16]Ibid s 4A(4), s 4D(1)(a).
[17]Ibid s 4E(1)(b).
[18]Ibid s 4E(2).
[19]Ibid s 4E(3).
The Director’s contentions
Exceptional circumstances
The Director submitted that the court should find that Mr Farah has not demonstrated that exceptional circumstances exist which would justify a grant of bail in the informant Archibald matter, for the following reasons. Many of the following factors were relied on in relation to both the Director’s resistance to the application for bail, and in support of the revocation application, and I have considered them in that way.
Nature and seriousness of the alleged offending and strength of the prosecution case
In relation to the informant Archibald matter, the Director conceded at hearing that there was no DNA or fingerprint evidence on the imitation firearm, though emphasising it was under Mr Farah’s seat. DNA testing is still outstanding in relation to the imitation firearm. Despite this, the Director submitted that Mr Farah was out past his curfew (at 1:43am) in a car, stated a false name, and failed to provide his PIN to police, such that he poses a risk of committing further offences. It was noted that the car being driven was not a stolen car, but registered to a business.
As a result, the Director submitted that whatever conclusion the court comes to in relation to the strength of the evidence in regard to the possession of the imitation firearm, the accused clearly disobeyed his curfew condition by driving a car, not in the company of his parents, and lied to police, falsely trying to ‘pass himself off’ as one of his brothers.
Special vulnerability
The Director submitted that it is not clear that Mr Farah is particularly vulnerable as a young man, not a child, in adult custody.
Delay
The Director submitted at the hearing that the issue of delay is less relevant in this matter, given Mr Farah will be facing trial in August.
Family violence incidents and criminal history
The Director raised the fact that on 14 October 2020, Mr Farah punched his mother to the face after she refused to give him cigarettes, and also damaged her car. The police were called and his mother was taken to hospital by ambulance. He was charged and bailed with intervention order conditions to appear at Heidelberg Children’s Court.
Mr Farah was ultimately diverted on these charges. The Director also highlighted the information in the Youth Justice report that in 2020 Mr Farah was also dealt with a long list of other charges by way of diversion, including affray, recklessly cause injury and assault.
Youth Justice Bail Service Report
The Director relies generally on a Youth Justice Bail Service Report dated 22 June 2023, which was completed prior to Mr Farah’s application for bail in the Magistrates’ Court. The report determined Mr Farah not suitable for Youth Justice supervised bail and summarised his background, family support, personal circumstances, previous Youth Justice involvement and circumstances while in custody. Amongst other things, the report referred to four incidents in 2020 in which Mr Farah is said to have become verbally and/or physically abusive to family members, with an incident in October 2020 leading to a now‑lapsed family violence intervention order being imposed, which had named Mr Farah as the respondent. The report also notes that he was ultimately expelled from high school due to a physical altercation with another student, and after this point, did not hold down work, and commenced drug use. Mr Farah also received diversion for some serious alleged offences prior to the informant Archibald and informant Stalder allegations. Whilst these factors were present at the time Magistrate Sonnet granted Mr Farah bail, it was submitted that they are still relevant considerations for the court.
The Director submitted that most of what Mr Farah asserted to Ms Xerri during her assessment was ‘aspirational’, and highlighted that prior to being remanded on the fresh allegations he was already being assisted by Youth Justice. In this sense the Director submits that the court should have little faith that the accused would, if bailed, comply with the conditions of bail.
Unacceptable risk
The Director contends that if Mr Farah were to remain on bail, he would present an unacceptable risk of committing further offences, endangering the safety and welfare of any person and contravening bail conditions, relying on the informant’s report in support of these contentions. The Director submits that the current conditions of bail do not reduce Mr Farah’s risk to an acceptable level, having regard to the nature and seriousness of the alleged offending as well as his character, associations, background and home environment.
The Director did not oppose the application to vary bail to remove the Youth Justice condition prior to Mr Farah’s remand on the new charges, and has not expressed a view on the proposal to incorporate CISP as a condition of bail.
Endangering the safety and welfare of any person
It is submitted that Mr Farah has demonstrated disregard for, and poses a clear risk to the safety and welfare of, others in light of the charges he is currently facing, being murder, kidnapping and being a prohibited person possessing an imitation firearm. Further, it is asserted that the imitation firearm appears very realistic, and therefore contended that an average person would likely have been unable to tell it was an imitation.
Committing an offence whilst on bail
It is noted that Mr Farah has been charged with committing indictable offences whilst on bail.
Contravening conditions of bail
The Director submits that Mr Farah has not complied with all of his current conditions of bail. It is acknowledged that Mr Farah has complied with the reporting obligation attached to his current grant of bail, but submitted that this has not led to him being compliant with other conditions of bail more generally. In addition, the Director, via the informant, expresses a general opinion that Mr Farah has a negative influence on his peers, with reference to the passenger and co‑accused who was charged alongside Mr Farah in the informant Archibald matter, who had no prior criminal history and who — prior to that event — had never been arrested or charged by police.
Mr Farah’s contentions
In response to the Director’s contentions, and in addressing the surrounding circumstances, Mr Farah relies on the following, both in support of the bail application and in resisting the application to revoke bail in the informant Stalder matter.
Exceptional circumstances
Nature and seriousness of the alleged offending and strength of the prosecution case
Mr Farah accepts that the charges against him are serious. However, he contends the prosecution case on murder is weak, in terms of both establishing presence, and complicity, and submitted that after the contested committal in mid‑2023, Magistrate Sonnet assessed the case against Mr Farah in relation to the murder charge as weak. In relation to the informant Archibald matter, Mr Farah also suggests the prosecution case is also not just weak, but lies at the lower end of the spectrum in terms of gravity. Noting where the imitation firearm was located in the vehicle (under the driver’s seat), Mr Farah disputes knowledge of the item, and knowledge of the prescription amitriptyline medication (found in the vehicle’s glovebox). Defence counsel also noted that the co‑accused was interviewed and after caution stated the imitation firearm was his but later reneged on this statement.
It was submitted that even if found guilty of the imitation firearm offence, it would be highly unlikely that Mr Farah would be sentenced to a term of imprisonment, and that resolution in this matter is not likely to occur until after the trial in this matter.
Counsel also submitted that even if Mr Farah were found guilty of the kidnapping in the informant Stalder matter, any sentence would be unlikely to exceed the 14 months he has already served in custody.
Criminal history and bail compliance history
Mr Farah has no prior criminal history, and submits he has no prior history of failing to comply with bail. In contrast, Mr Farah relies on his positive compliance with bail, highlighting that he was subject to onerous bail conditions since bail was granted on the informant Stalder charges on 23 June 2023, until 12 February 2024 when he was remanded in relation to the informant Archibald matter. During this time, it is submitted he was compliant with bail conditions.
Mr Farah submits he has complied with the requirements of Youth Justice, and further that he had good attendance at supervision, drug counselling and other support appointments. Further, he is said to have complied with his reporting condition. Mr Farah also highlights there are no allegations of him having associated with co‑accused. This eight month period of bail compliance was contrasted with many of the other co‑offenders in the informant Stalder matter.
Previous engagement with Youth Justice and personal circumstances
In submitting he has complied with his current grant of bail, Mr Farah relies on reports from Youth Justice dated 12 July 2023, 19 October 2023 and 14 December 2023. These reports note that, despite being assessed as unsuitable, Mr Farah was released on Youth Justice Supervised Bail by the Magistrates’ Court on 23 June 2023.
The reports noted Mr Farah’s engagement to be positive. He attended all scheduled appointments with Youth Justice and engaged openly. Youth Justice confirmed with police that he had complied with all reporting requirements.
On being granted bail, Mr Farah resided at the family home in Preston with his parents and his five siblings. Mr Farah’s father works full‑time as a bus driver while his mother is unemployed. It emerged in the evidence of Mr Farah’s father that he is currently unemployed. It is highlighted that Mr Farah’s father had travelled to Somalia for a year, prior to the alleged offending in the informant Stalder matter, returning home on Mr Farah’s arrest. Despite family violence incidents noted during the initial assessment, Mr Farah reported a positive relationship with his family and no further incidents had been noted.
Mr Farah reports a history of cannabis and Xanax use from around age 17, and social use of alcohol from age 18. On being released on bail, he was referred to the Youth Support and Advocacy Service for drug and alcohol support and engaged in six sessions. The service ceased Mr Farah’s drug and alcohol support on 16 November 2023 after his outreach worker indicated there were no further concerns regarding drug use.
Although Mr Farah has no formal mental health diagnosis, he disclosed previous suicidal ideation and reported his mental health had deteriorated upon his initial remand. While he at first declined mental health support, upon being granted bail he agreed to engage with Orygen, attending seven scheduled appointments. Although Mr Farah engaged well, he is reported to have showed some reluctance to continued engagement with mental health services.
Prior to his remand on the informant Stalder matter, Mr Farah was in his final weeks of a carpentry pre‑apprenticeship and re‑enrolled in this course in August 2023. However, he decided not to continue after discovering he would need to redo the entire course. Mr Farah instead consented to Youth Justice referring him to other employment opportunities. While he did not attend any appointments with employment services, he reported to Youth Justice on 14 December 2023 that he had secured factory work.
The Youth Justice report also notes that Mr Farah presented as vulnerable during his assessment and has decided not to socialise with the general prison population in custody. His counsel submitted he was essentially vulnerable to corruption in his present environment.
Family support and stable accommodation
Mr Farah submits he can return to stable accommodation with his parents and siblings at [an address] in Preston, if bail is granted. This is said to be a supportive home, with Mr Farah having strong family support. No‑one else in the family support has had trouble with the law, it was submitted, and Mr Farah’s parents noticed a positive change during the course of the time he was on bail. In terms of the past family violence incidents, it was submitted that, as stated in the CISP report of Ms Xerri, Mr Farah reports a positive relationship with his family currently, and there have been no further incidents noted since 2020.
Mr Farah’s counsel called evidence from his father, Mr Farah Sr. His father confirmed that on the morning of 12 February this year the police arrived at his house in Preston. Mr Farah Sr said he had fallen asleep and was supposed to be at the mosque at the time. He said he told police when asked that he did not know if Mr Farah was at home at the time. He stated that he told police that his son might be at the mosque, when upon inspection it was clear he was not at home. He stated he was unaware his son was not at home at the time. In cross‑examination, Mr Hayward emphasised to Mr Farah Sr that even if he thought his son had been at the mosque on the morning of the 12th, this would have effectively been a breach of his bail conditions, given he was required to be in the company of his mother or father during such hours. Mr Farah Sr agreed that it was fair to say that he was guessing where his son might be when he was asked by the police.
Mr Farah Sr gave an undertaking to the court that he would report any breaches of bail to the police if his son was again granted bail, and that he would ensure he was awake at 9:00pm to check that his son came home each night and obeyed his curfew.
Availability of treatment or bail support services
Mr Farah submits he does not have any drug or alcohol issues. Although Mr Farah is no longer able to access support from Youth Justice, given he has turned 21, he relies on the availability of CISP support should bail be granted and the application to revoke bail be refused. CISP assessed Mr Farah at Ravenhall on 27 February 2024 and indicated case management support may be incorporated as a condition of bail in relation to the informant Archibald matter. Ms Xerri of CISP noted Mr Farah to have a genuine interest in developing an understanding of the causes of his offending behaviour, as well as a willingness to comply with the therapeutic components of the program. It is proposed CISP will support Mr Farah in engaging with intensive youth‑specific mental health treatment, education and employment.
In relation to the issue of unacceptable risk posed by Mr Farah, his counsel submitted that risk can be ameliorated by the imposition of stringent bail conditions, which were sufficient to effectively hold him for a period of nearly eight months before the informant Archibald matters.
Parity
It was submitted that all co‑accused in the informant Stalder matter were granted bail. The current position is that the bail of co‑accused SA, BM and YA was revoked in September 2023 given their involvement in a high‑speed police pursuit (which also breached the non‑association clause of their bail). It was submitted that this offending was far more serious than the informant Archibald matter.
Second application: Application to revoke bail – Informant Stalder matter
In terms of the application to revoke bail in the informant Stalder matter, many of the factors I have addressed above are relevant, but I will briefly mention the following for completeness.
The Director’s contentions
The Director submitted at hearing that a factor relevant to deciding whether bail ought to be revoked is an assessment of whether a person who has previously been granted bail now presents an unacceptable risk of the kind set out in section 4E of the Act. The Director noted that whilst it might have been that exceptional circumstances were present when bail was first granted, and may continue, an individual may nevertheless pose an unacceptable risk, with regard to the surrounding circumstances per section 3AA of the Act.
In terms of the test, as I have already discussed, the Director also submitted that the court’s power must be exercised in accordance with the guiding principles set out in section 1B of the Act, including the maximisation of the safety of the community, the presumption of innocence and the right to liberty.
The Director ultimately submitted that bail should be revoked as Mr Farah now presents an unacceptable risk of the kinds set out in section 4E of the Act. In assessing that risk, the Director pointed to many of the factors already canvassed as part of the bail application.
As to the strength of the prosecution case in the informant Stalder matter, the Director submitted the prosecution case was ‘relatively’ strong in relation to the kidnapping charge, which Mr Farah’s counsel did not dispute. CCTV evidence and body worn camera footage was pointed to in this regard. The Director submitted that when one looks at the evidence of the ‘intercept’ by police at 1:38am on 16 October 2022, and CCTV from around 3:22am that same morning, it clearly shows the accused in company in the early hours of the morning, and then having a knife and jumping over a fence. CCTV footage and cell tower evidence from later that day also, in the Director’s submission, suggests that Mr Farah is one of the people who emerged from the red car and kidnapped the victim Abdi. The Director further contended that Mr Farah may, if found guilty of this charge, be sentenced to more than the 14 months he has already served on remand.
With respect to the murder charge, the Director conceded it did not have cell tower evidence after 2:30pm on the day of the events in relation to Mr Farah, but submitted that there is a reasonably arguable circumstantial case that Mr Farah was present and complicit in the murder.
The Director submitted the informant Stalder matters represent an incredibly serious allegation of murder, where someone was set upon and stabbed to death in the chest in the context of a retaliatory attack.
Mr Farah’s contentions
In written submissions, Counsel agreed that the discretion to revoke bail must be exercised by reference to the guiding principles in section 1B of the Act, with the onus of proof on the Director to satisfy the court that it is appropriate for bail to be revoked.
In short, it was submitted that bail should not be revoked in the informant Stalder matter, on the basis that:
(a) the case against Mr Farah on the most serious charges is weak and he has a reasonable chance of being acquitted;
(b) having regard to the surrounding circumstances already canvassed, any risks can be reduced to an acceptable level; and
(c) the dismissal of the application to revoke bail is consistent with the bail decisions made in respect of other co‑accused (i.e. bail has only been revoked where there has been more serious offending and the accused presented a greater risk than here).
Counsel submitted that the ultimate question for the court is whether the alleged offending in the informant Archibald matter is sufficiently serious to make Mr Farah an unacceptable risk, given that all other factors were present at the time Mr Farah was granted bail by Magistrate Sonnet. In the submission of defence, given all the circumstances raised that I will not repeat, the answer to that question should be no.
Analysis and conclusions
As a matter of logic, it appears most appropriate to consider the application for bail in relation to the informant Archibald matter first, given the parties largely addressed the surrounding circumstances as directed towards the exceptional circumstances and unacceptable risk tests.
Decision on bail application
As agreed by the parties, as Mr Farah was on bail for the schedule 1 offence of murder and is now charged with an indictable offence of being a prohibited person in possession of a firearm whilst on bail, the accused must satisfy the court that exceptional circumstances exist that justify a grant of bail.
Exceptional circumstances
As to whether the exceptional circumstances test is met, I have had regard to Mr Farah’s family circumstances and stable residence, potential vulnerability in custody, age, the possible supports to be offered to him, lack of prior criminal history, any likely sentence he may receive, and the bail status of his co‑accused in the informant Stalder matter, as I am required to do.
Whilst Mr Farah does have strong family support, and a stable residence available, I have had regard to Mr Farah Sr’s evidence about his son’s whereabouts on the night of the alleged offending. The court is not comforted by the fact Mr Farah’s parents were not aware of his whereabouts on the night of the informant Archibald allegations, nor the fact that the explanation offered by Mr Farah Sr appeared to suggest his son might have been travelling to the mosque during curfew hours without his parent/s present.
Whilst the time Mr Farah has now spent on remand may have had a deterrent effect on him, and he is a relatively young man with no prior criminal history, it must be noted that he is not a child, is facing extremely serious charges in the informant Stalder matter, and will be tried within the next six months for such matters. In the circumstances, this is not a matter where a lengthy period of delay is a compelling factor pointing towards a grant of bail.
Furthermore, in my opinion, the prosecution case in relation to the informant Archibald matters is relatively strong. While there are clearly some triable issues in relation to whether Mr Farah was indeed the owner or in possession of the imitation firearm, it appears he was undoubtedly out driving late at night, in breach of his bail conditions. Whilst it is not the task of this court to make final statements about the strength of the cases, it does not appear foredoomed to fail. Whilst these are not the most serious possible allegations, particularly with respect to the co‑offenders whose bail has been revoked in relation to more serious allegations, the allegations are concerning and evidence a disrespect for the orders of this court, provided in respect of a very serious set of allegations.
I note in passing that no explanation appears to have been advanced in any of the applications as to why Mr Farah was found to be driving a motor vehicle in alleged breach of his bail conditions. It is of course to be acknowledged that an accused in the position of Mr Farah is not obliged to provide evidence of his guilt, but on occasions, an explanation as to relevant circumstances can assist the court in determining an application of the present kind.
Whilst exceptional circumstances were made out when Mr Farah initially applied for bail, given the change in circumstance represented by these new allegations, I am not satisfied the test is met.
Unacceptable risk
Given my conclusion on the above, I am not required to move onto the next step of the test, being the unacceptable risk test, and bail must be refused. Despite this, I will make the following brief remarks.
As with my decision on the revocation application, I consider the accused poses an unacceptable risk if bailed, predominantly of endangering the safety or welfare of people, or committing offences whilst on bail. The informant Stalder allegations, as canvassed, are inherently of the most serious nature. However, a circumstance has been added by the present informant Archibald allegations. These allegations, which appear strong or at least arguable, are capable of demonstrating a preparedness on the part of Mr Farah to breach his bail conditions and engage in a level of serious breaching conduct. The presence of an imitation firearm is highly concerning in terms of the continued safety of the community.
In all the circumstances, I do not consider that these risks could be ameliorated to an acceptable degree by the imposition of further bail conditions. Whilst the support of Mr Farah’s family is admirable and well‑intended, the court has concerns that they would be able to supervise him to the degree necessary to assuage the risk posed. For these reasons, and in light of all the surrounding circumstances, I consider Mr Farah does pose an unacceptable risk and bail must be refused.
Decision on revocation application
The Director has applied for the revocation of bail in the informant Stalder matter given what has occurred with the bringing of fresh charges in the informant Archibald matter.
The court’s power to revoke bail is contained in section 18AF of the Act. It is a discretionary power that must, naturally, be exercised in light of the guiding principles of the Act.
I have taken into account all of the surrounding circumstances, Mr Farah’s right to liberty, and the presumption of innocence in making a decision on the revocation application, and particularly make the following observations:
(a) the case against Mr Farah in relation to the kidnapping does appear relatively strong, and serious, such that I am not of the opinion that the period he has spent on remand is likely to exceed any sentence he may receive;
(b) a trial date has been set for August of this year;
(c) CISP support would only be available in relation to the informant Archibald matters for which I have refused bail; and
(d) circumstances have changed in light of the informant Archibald allegations, which present an altered surrounding circumstance.
Given what I have said above, and with reference to the same factors, I also satisfied that bail should be revoked in relation to the informant Stalder matter.
The orders of the court will be that:
(a) on the informant Stalder matter, Mr Farah’s grant of bail will be revoked; and
(b) on the informant Archibald matter, the application for bail is refused.
It is unnecessary to determine the application to vary bail in the informant Stalder matter.
Appendix A: Co-accused — Informant Stalder matter
YA
YA is on remand. He was granted bail by the Magistrates’ Court at committal on 23 June 2023. Bail was revoked by Champion J on 16 October 2023.
ZHA
ZHA is on bail. Trial bail was granted by the Magistrates’ Court at committal on 23 June 2023.
MG
MG is on bail. Bail was granted by Champion J on 7 March 2023: see Re SQA; Re MG [2023] VSC 359. Trial bail was granted by the Children’s Court at committal on 26 June 2023. An application to vary bail was refused by Champion J on 19 January 2024.
SQA
SQA is on remand. Bail was granted by Champion J on 7 March 2023: see Re SQA; Re MG [2023] VSC 359. Trial bail was granted by the Children’s Court at committal on 26 June 2023. An application to revoke bail was refused by Croucher J on 24 July 2023. On 25 September 2023, a further application to revoke bail by consent was granted by Hollingworth J.
BM
BM is on remand. Bail was granted by Hollingworth J on 14 December 2022. Trial bail was granted by the Children’s Court at committal on 26 June 2023. Bail was revoked by consent by Hollingworth J on 25 September 2023.
IM
IM is on bail. Bail was granted by Champion J on 5 April 2023: see Re IM [2023] VSC 360. Trial bail was granted by the Children’s Court at committal on 26 June 2023.
SA
SA was charged and bailed on 8 November 2022, and entered into trial bail on 23 June 2023.
Appendix B: The alleged offending in the informant Stalder matter, for which the Director seeks that bail be revoked
Mr Farah is charged with murder and kidnapping (contrary to common law) in relation to the events set out below. The prosecution case in relation to murder is put on a complicity basis: that if they were not the primary offender, each accused charged with murder either assisted or encouraged the primary offender, or had come to an agreement, arrangement or understanding with the primary offender that the deceased would be killed or really seriously injured.
Background
In the early hours of 16 October 2022, a white Toyota Corolla is seen on CCTV parking outside IM’s home in [redacted], Bellfield. It is alleged that Abdi (the complainant in the alleged kidnapping) and the deceased were amongst the vehicle’s occupants. IM’s sister FM was home at the time and saw a group of males exiting the vehicle armed with machetes. FM called 000. The group left again in the Corolla. IM’s other sister, AM, then called IM. Shortly after this, a red Toyota Corolla (registered to YA’s sister) was seen entering [the Bellfield address], doing an abrupt U‑turn then leaving.
Police attending [the Bellfield address] in response to FM’s call saw a white hatchback, followed by a red hatchback, travelling at speed down [redacted], Heidelberg West. Police followed the red hatchback, which returned to YA’s residence at [redacted], Heidelberg West. Police spoke with the vehicle’s occupants, identified as MG, ZHA and Farah. While they were speaking, a black Kia Cerato arrived at the residence. Police identified that vehicle’s occupants as Musa Elmi (who is not charged in relation to this proceeding) YA, IM, SQA and SA. Police interactions with the group are captured on body‑worn camera footage. During these interactions, MG stated he had come from his cousin’s address in Bellfield. YA said he was the cousin of the occupants of the Bellfield address and had picked IM up from that address prior to the intercept. YA is overheard saying to ZHA ‘before these cunts get too far’. IM told police he had come from the [Bellfield] address and that his friends there were helping him because a group of men with knives had come to his house, and that he had left because he was scared.
YA, ZHA, MG and SQA then left in the red Corolla, while Elmi, IM and SA left in the black Kia. Over the following hour, various calls are made between IM, SQA, YA, FM and BM. Both vehicles then attended a service station in Reservoir. Over the next hour, YA, Farah, MG, SQA, ZHA, Elmi, IM and SA had various conversations while entering and exiting both vehicles. Both vehicles left service station at 3:10am.
Telecommunications data suggests IM returned to his sister’s address in Reservoir overnight, while SQA returned to his grandmother’s address in Bundoora.
At 3:19am, the red Corolla parked outside [redacted], Heidelberg West, which backs onto YA’s family home. YA’s address can be accessed by jumping the fence of the [Heidelberg West] property. CCTV shows the occupants of the red Corolla, being YA, MG, SA, Farah and ZHA entering [the Heidelberg West property]. MG is seen handing YA a large black‑handled knife. Telecommunications data suggests the group remained at YA’s home until the late morning.
At 9:08am, police attended [the Heidelberg West address] after a neighbour had reported people jumping the fence. The neighbour gave police the keys to the red Corolla (which had been dropped).
Around 11:08am, after seeing people again jump the fence, the neighbour confronted the occupants of YA’s address. She recorded this interaction with her mobile phone. The footage shows YA, Farah, SA, MG and ZHA. The neighbour told them she had handed the car keys to police. Consequently, the group attended Heidelberg Police Station to collect the keys, before visiting some shops. During this time, several phone calls were made between members of the group and SQA, IM, and BM.
Kidnapping of Abdi
At 1:44pm, YA, Farah, SA, MG and ZHA drove the red Corolla to Abdi’s residence in [redacted], Reservoir. The white Corolla involved in the previous evening’s events was parked outside. The group exited the red Corolla, pulling their hoods over their heads. SA went to the driver’s seat of the red Corolla. YA, ZHA, MG and Farah approached Abdi, who was outside his house. One of the group (described as having a short black ‘Afro’ hairstyle) demanded the key card to the white Corolla, and also demanded Abdi’s phone, threatening to stab him in the neck. Another of the group held a knife to Abdi’s back. Abdi handed over those items and was made to sit in the rear passenger seat of the white Corolla.
The two vehicles then left [the Reservoir street]; the red Corolla driven by SA with MG as a passenger, and the white Corolla occupied by YA, Farah, ZHA and Abdi. The group in the white Corolla arrived at IM’s sister’s house in Reservoir, where they met IM and BM. The group then waited for SA and MG in the red Corolla. IM and BM got into the red Corolla, and the two vehicles travelled in convoy to Bundoora Park. Various calls were made between the occupants of the two vehicles during the journey.
After the two vehicles arrived at Bundoora Park, Abdi was made to exit the vehicle. The group punched, slapped and laughed at him, and struck him with a hammer. Abdi saw three knives passed between group members. He was then directed to get into the boot of the white Corolla.
SA then drove the red Corolla (still with BM, IM and MG as passengers) to a location in Bundoora, where he collected SQA, Hamza Hassan and Abdihafdi Yusuf. SA drove the red Corolla to his grandmother’s residence nearby and exited the vehicle. SQA took his place and it is not alleged SA had any further involvement in the offending.
During this time, the white Corolla and its occupants had remained at Bundoora Park. Around 2:40pm, a bystander had called emergency services after seeing a group of males punch another male in the face and push him into the boot of a white Toyota Corolla, before the vehicle then left.
The red and white Corollas and their respective occupants then arrived in convoy at Yulong Park, Bundoora. The group from the red Corolla (now SQA, MG, Hassan, BM and IM) left the vehicle and joined the occupants of the white Corolla (being YA, Farah and ZHA) in removing Abdi from the boot of the white Corolla and punching, slapping and kicking him. The Director alleges Abdi was forced to call the deceased and find out his location. It was arranged for Abdi to meet the deceased at [redacted], Heidelberg West, this address belonging to Farhiya Ahmed.
The two vehicles left Yulong Park at 3:10pm. The deceased called Ahmed (who was home) and told her he would be meeting Abdi there shortly.
Alleged murder of the deceased
After arriving at [the Heidelberg West address], the deceased spoke briefly with Ahmed. A car horn beeped and the deceased went outside the house and stood in the front yard. CCTV from a nearby property shows the white Corolla running into the deceased. Ahmed, still inside, saw a white car racing towards the house and heard a loud bang. Abdi, who had remained in the boot, heard words to the effect of ‘that’s him’, before feeling the vehicle speed up, turn sharply and crash.
CCTV then shows the red Corolla arriving and its occupants running towards where the white Corolla had hit the deceased. Ahmed describes several masked people coming towards her from a red car, and people standing around the white car with knives. Ahmed states she saw a ‘final kid’ step over the deceased, stab him in the neck, then leave in the red car. The white Corolla, Abdi and the deceased remained at the scene.
The red Corolla travelled to Edgars Creek, Coburg North, arriving at 3:47pm. YA, MG, Farah, BM, ZHA, SQA and IM all exited the vehicle. They are alleged to have changed clothes and disposed of various items, including a knife, into the creek.
Farah was arrested on 2 November 2022. Prior to interview, Mr Farah was captured on a covert recording stating, amongst other things, he had stayed at YA’s home on [redacted] overnight on 16 October 2022 and left at 11:00am that morning with YA and SA. For the rest of that day, he was home with his mother before meeting friends at a park around 5:00pm or 6:00pm. He said he knew Abdi from school but did not know his face, and that Abdi lives near East Preston Islamic School, close to someone named ‘[redacted]’ (alleged to be BM). Farah said he did not know the deceased, but knew the deceased’s nickname was ‘Klips’.
Forensic analysis was carried out in respect of various clothing and items seized from the accused’s addresses. Farah’s fingerprints were located on the outside surfaces of the red Corolla, and on both inside and outside surfaces of the white Corolla.
Autopsy found the deceased had sustained several applications of blunt force trauma to the forehead, scalp and face, as well as 13 stab injuries, with the fatal injury likely to have been a penetrating stab injury to the left upper chest.