Re Glasby
[2021] VSC 428
•21 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0160
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by Luke Glasby |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 July 2021 |
DATE OF JUDGMENT: | 21 July 2021 |
CASE MAY BE CITED AS: | Re Glasby |
MEDIUM NEUTRAL CITATION: | [2021] VSC 428 |
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CRIMINAL LAW – Application for bail – Charges of contravening a family violence intervention order, persistent contravention of a family violence intervention order, committing an indictable offence whilst on bail, criminal damage and attempting to pervert the course of justice – Applicant on bail and summons in three other matters at the time of alleged offending involving the same complainant – Applicant must demonstrate exceptional circumstances justifying grant of bail – Limited prior criminal history – Prior conviction for similar offences against a former partner – Exceptional circumstances not satisfied – Unacceptable risk found – Bail Act 1977 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Z Menon | Victoria Legal Aid |
| For the Respondent | Mr N Batten | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Luke Glasby (‘the applicant’) was charged by First Constable Luke Phillips on 25 February 2021 with the following offences (‘the Phillips matters’):
(a) contravening a final family violence intervention order (‘FVIO’) (four charges);
(b) persistent contravention of a FVIO;
(c) committing an indictable offence whilst on bail;
(d) criminal damage; and
(e) attempting to pervert the course of justice (two charges).
These charges arise from alleged incidents in May 2020 involving CWH, the applicant’s former partner (‘the complainant’). At the time of his arrest and remand in the Phillips matters, the applicant was on bail and summons in three other matters involving allegations made against him by the same complainant.
The applicant was remanded in custody following his arrest on 25 February 2021. On 18 May 2021, he was refused bail at the Melbourne Magistrates’ Court on the basis that whilst having found that the applicant satisfied the exceptional circumstances test that applied in his circumstances, there was nevertheless an unacceptable risk that he would commit an offence while on bail or endanger the safety or welfare of any person. By notice filed on 29 June 2021, the applicant now seeks a grant of bail in this court.
The matter is next listed on 5 August 2021 at the Melbourne Magistrates’ Court for a committal hearing.
Procedural history and alleged offending
The applicant was in an intimate relationship with the complainant from April 2017 until he ended the relationship in February 2020. It appears the couple then recommenced their relationship, but separated permanently around September 2020.
In addition to the Phillips matters, for which he seeks bail, the applicant faces charges brought by three further informants, with similar alleged offending against the same complainant. He is currently on bail for two of those matters and subject to summons in the other.
The procedural history and summary of alleged offending for all the applicant’s outstanding matters is summarised below.
Constable Emma Faliszewski matters (on bail)
The applicant was first charged by Constable Emma Faliszewski on 10 March 2020 with the following offences (‘the Faliszewski matters’):
(a) making a threat to kill;
(b) reckless conduct endangering life;
(c) possessing a prohibited weapon without exemption or approval; and
(d) unlawful assault (three charges).
Between May 2019 and August 2019, the applicant is alleged to have pushed the complainant onto a bed causing her nose to bleed; said, ‘I promise I am going to kill you’ before putting on a set of knuckle dusters; and, hit the complainant to the head with a tyre pump.
On 29 February 2020, the applicant ended the relationship with the complainant and moved out of their shared apartment.
On 7 March 2020, the complainant attended the applicant’s residence where he allegedly called her a ‘fucking dog’; punched her to the stomach; and strangled her with both hands. The complainant reported the matter to the police that night.
The applicant was arrested and charged on 10 March 2020, and released on bail by the police.
This matter is next listed on 4 October 2021 at the Melbourne Magistrates’ Court for contested hearing.
Initial FVIO
On 23 March 2020, a final FVIO with full conditions was made by the Melbourne Magistrates’ Court until 15 May 2020, which named the applicant as the respondent and the complainant as the protected person. This intervention order was served on the applicant on 9 April 2020.
Informant Singh matters (on bail)
On 15 May 2020, the applicant was arrested at the complainant’s residence, and charged by Senior Constable Mohan Singh with (‘the Singh matters’):
(a) persistent contravention of a FVIO;
(b) contravening a final FVIO (six charges); and
(c) committing an indictable offence whilst on bail.
In addition to the allegation of attending the complainant’s residence, the applicant is alleged to have called the complainant 22 times between 1 and 9 May 2020.
On the same date as his arrest, the applicant was granted bail at the Melbourne Magistrates’ Court with conditions that he:
(a) reside at 1508/250 Elizabeth Street, Melbourne; and
(b) comply with the intervention order protecting the complainant.
This matter is next listed on 3 September 2021 at the Melbourne Magistrates’ Court for contest mention.
Variation of the FVIO
The day before the applicant’s arrest on the Singh matters, on 14 May 2020, the FVIO matter returned to the Melbourne Magistrates’ Court for an application to revoke the FVIO that had been made by the complainant. However, the Magistrate ordered that the application for revocation be varied to an application for variation, and made an interim FVIO with conditions that the applicant must not:
(a) commit family violence against the complainant;
(b) intentionally damage any property of the complainant or threaten to do so; or
(c) go to or remain within 200 metres of the complainant’s address or any other place where the complainant lives, works or attends school.
The varied FVIO was served on the applicant on 15 May 2020. As such, it had not been served on the applicant at the time of the alleged offending in the Singh matters.
Informant Schumann matters (on summons)
On 15 February 2021, the applicant was charged by Leading Senior Constable Pierre Schumann on summons with the following offences (‘the Schumann matters’):
(a) contravening a FVIO (five charges);
(b) persistent contravention of a FVIO;
(c) making a threat to kill;
(d) criminal damage;
(e) assault with a weapon;
(f) unlawful assault (two charges); and
(g) committing an indictable offence whilst on bail.
It is alleged that this offending occurred between July and September 2020, and reported by the complainant to the police on 14 September 2020. It is alleged that:
(a) On 25 July 2020, the applicant allegedly attended the complainant’s residence and was aggressive towards her; waved a knife around; punched her to the face and pushed her against a wall.
(b) On 6 August 2020, the applicant allegedly attended the complainant’s residence while intoxicated; yelled at her and broke a fan in her bedroom.
(c) On 30 August 2020, the applicant was at the complainant’s residence watching a game of football. In reference to an allegation of a player assaulting a woman, the applicant allegedly yelled that ‘women are all evil’ and asserted that ‘shit women’ all do the same thing. The complainant asked the applicant to leave, which he did.
(d) On 2 September 2020, the applicant arrived at the complainant’s residence while intoxicated. He insisted on taking his dog back. The complainant asked if she could keep the dog for a while longer, but the applicant refused and pushed the complainant against a wall.
(e) During this period, the applicant sent a Facebook message to the complainant threatening to kill her. The complainant was unable to provide a copy of this message to the police, and believes the applicant deleted it.
The applicant was arrested on 15 November 2020, and was charged on summons on 15 February 2021. It is noted that the complainant sought to provide a secondary statement withdrawing her initial complaint.
Informant Phillips matters (on remand, seeks bail)
As noted, the applicant was charged with the Phillips matters on 25 February 2021. The alleged offending occurred in May 2020 involving the same complainant as in the other outstanding matters described above.
On 4 May 2020 at 8:18am, Faliszewski sent an email to the complainant asking whether she had had ‘a chance to think about the criminal proceedings’ against the applicant, and advised that if she had changed her mind and was less supportive about pursuing the charges that it was ‘OK’.
On 5 May 2020 at 9:23am, it is alleged that the applicant used the complainant’s email account to reply to the above email, stating:
Hi Emma,
How are you today?
Sorry for the late reply,
Ive [sic] been thinking these days.
Is this too late to consider about dropping the charges?
Regards,
[The complainant]
Faliszewski responded on 5 May 2020 at 12:06pm asking for the reason why the complainant wanted to consider dropping the charges.
On 13 May 2020, it is further alleged that the applicant attended the complainant’s residence and she observed him using her mobile phone. The complainant checked her phone and identified that the applicant had sent an email at 11:29pm from her account to Faliszewski in response to the above email, stating:
I was very emotional and upset at the time. Through my whole relationship with [the applicant] I was never afraid of him he was never violent. But I saw what Hana did to him in the past and how it affected him and I wanted to show him how much pain he had put me through.
I regret that now because this is not the person I am and I know I did it for the wrong reasons.
An argument between the applicant and complainant ensued, during which the applicant allegedly punched a hole in the complainant’s wall, before leaving her residence.
On 13 May 2020 at approximately 11:43pm, the complainant messaged the applicant over the Facebook messenger application. In the messages, the complainant refers to the applicant putting a hole in her wall (and also sent photographs of it), as well as to the applicant sending an email without her consent.
The complainant provided a statement to the police in relation to this matter on 16 November 2020.
On 25 February 2021, the applicant was arrested and charged. He made no admissions to the allegations in his record of interview.
Current FVIO
On 7 May 2021, a final FVIO was made at the Melbourne Magistrates’ Court naming the applicant as the respondent and the complainant as the protected person. The order expires on 22 March 2025 and provides that the applicant must not:
(a) commit family violence against the [complainant];
(b) intentionally damage any property of the [complainant] or threaten to do so;
(c) go to or remain within 200 metres of 380 Little Lonsdale Street, Melbourne or any other place where [the complainant] lives, works or attends school.
A copy of this order has been served on the applicant.
The applicant
The applicant is 30 years old, having been born in March 1991. He was subject to child protection involvement throughout his childhood and spent large parts of his early years in the care of his grandmother, before moving into State-based residential care from when he was an early teenager. He currently has an improved relationship with his biological mother.
The applicant has the following criminal history in the adult jurisdiction:
(a) 20 November 2019: convicted at the Magistrates’ Court of persistent contravention of a family violence notice or order; unlawful assault; theft and committing an indictable offence whilst on bail. He was sentenced to a Community Correction Order (‘CCO’) for a period of 12 months, with a condition to perform unpaid community work.
(b) 8 November 2019: convicted of possessing cannabis and fined.
(c) 15 October 2013: convicted of robbery at the Magistrates’ Court. He was sentenced to a CCO for a period of 12 months with a condition relating to assessment and treatment for alcohol abuse or dependency.
The applicant has other findings of guilt in the youth jurisdiction.
The applicable legislation
Guiding principles
When applying and interpreting the Bail Act 1977 (Vic) (‘the Act), the court is required to take into account the guiding principles set out in s 1B(1).[1] This includes, amongst other things, maximising community safety to the greatest extent possible and taking into account the presumption of innocence and right to liberty.[2]
[1]The Act, s 1B(2).
[2]The Act, s 1B(1)(a) and (b).
First step - exceptional circumstances
The applicant is required to demonstrate exceptional circumstances justifying the grant of bail under s 4AA(2)(c)(i) and (iv) of the Act as he is accused of Schedule 2 offences in the Phillips matters,[3] alleged to have been committed:
(a) while the applicant was on bail for a Schedule 2 offence in the Faliszewski matters (s 4AA(2)(c)(i));[4] and
(b) during the period of a CCO made in respect of the applicant for Schedule 2 offences (s 4AA(2)(c)(iv)).[5]
[3]Persistent contravention of a FVIO (sch 12, item 19) alleged to have been committed between 5 May 2020 and 13 May 2020; and an offence against the Act (sch 2, item 30) alleged to have been committed on 13 May 2020.
[4]Bail granted on 10 March 2020 for offences including a Schedule 2 offence (making a threat to kill that is also a family violence offence: sch 2, item 7).
[5]CCO imposed on 20 November 2019 for a period of 12 months for, inter alia, Schedule 2 offences, being persistent contravention of family violence notice or order (sch 2, item 19); and an offence against the Act (sch 2, item 30).
It follows that bail must be refused unless the court is satisfied that exceptional circumstances exist that justify the grant of bail.[6] In considering whether exceptional circumstances exist, the court must take into account the surrounding circumstances, including, but not limited to, those in s 3AAA(1) of the Act.[7]
[6]The Act ss 4A(1A) and (2).
[7]The Act s 4A(3).
Meaning of exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act. The relevant principles have been discussed at length over the years and were summarised by Lasry J in Re Brown[8] as follows:
•The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
•Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
•Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[9]
[8][2019] VSC 751 (Lasry J).
[9]Ibid [65] (citations omitted).
Second step - unacceptable risk
If satisfied that exceptional circumstances exist, the court must apply the unacceptable risk test.[10] Bail must be refused if satisfied by the prosecution that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one.[11]
[10]The Act s 4D(1)(a).
[11]The Act s 4E.
In applying this test, the court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[12]
[12]The Act s 4E(3).
Risk of family violence
As the alleged offending involves a family violence offence, the court must consider whether, if the applicant were released on bail, there would be risk that he would commit family violence and whether that risk could be mitigated by the imposition of a bail condition or the making of a family violence intervention order.[13]
[13]The Act s 5AAAA(2).
As noted, a final FVIO with limited conditions was made on 7 May 2021 against the applicant to protect the complainant. The FVIO expires in 2025. The respondent has confirmed that there is no other active FVIO in force against the applicant.
The evidence
At the hearing of the application, the applicant called Ms Tam Nguyen to give evidence. Given the unavailability of the informant Phillips, the respondent called Constable Emma Faliszewski as the nominal informant.
Tam Nguyen
Tam Nguyen was the applicant’s housemate from early May 2020 until the time he went into custody in February 2021. She gave evidence at the application offering a place of residence for the applicant in the event bail is granted, being her two-bedroom apartment in Southbank where the applicant formerly resided and she currently resides alone. Ms Nguyen confirmed she was aware of the charges against the applicant and his prior criminal history.
Ms Nguyen stated that she works as an accountant and works from home on a full-time basis, an arrangement she expects will continue. She gave evidence that should the applicant be granted bail to reside at her apartment, she understood her responsibility to report any non-compliance with conditions, such as a curfew or prohibition on drug consumption. Ms Nguyen stated she would take this responsibility seriously as she is a professional and because her family and friends visit her home.
In cross-examination by the respondent, Ms Nguyen confirmed the applicant had been her tenant for some time and clarified details of the tenancy, including its duration and payment. She stated her belief that the applicant worked as a doorman but noted she did not know further details, as she respects the privacy of her tenants. Ms Nguyen gave evidence that they had become friends, but had not been in a romantic relationship.
Ms Nguyen gave evidence that, should the applicant be granted bail, she would assist him with rent until he could obtain employment. She stated that, during the time they previously lived together, she never had problems with his behaviour or fears for her safety. Ms Nguyen emphasised how important it was for her to live with someone with whom she felt safe. She gave evidence that while the applicant did drink beer on weekends or when he had friends over, she never had concerns about him drinking to excess and had never observed him to be badly affected by alcohol at the apartment. She also indicated that she had no knowledge or impression that he used drugs, though noting that she did not have much experience with drug users.
With respect to the complainant, Ms Nguyen stated that when the applicant first moved in, the complainant had texted her asking about the nature of their relationship. She gave evidence that the complainant has since messaged her via WhatsApp about the court proceedings and that she did not reply. She noted the messages had not been threatening, hence why she did not report them to the police. Ms Nguyen gave evidence that she had not had any interactions with the complainant in person, beyond observing her on two occasions, and had not witnessed the complainant’s interactions with the applicant. Ms Nguyen did, however, state that her own experiences with him were such that she considers him a ‘really nice man’.
In response to questions by the Court, Ms Nguyen clarified that the apartment in Southbank belongs to her relative and provided details of the rental arrangement. She stated that the applicant had first contacted her in response to her search for a housemate, and that the basis of him residing at the apartment had been his contribution to rent. Ms Nguyen was questioned about the applicant’s movements during July to September 2020, when some of the offending is alleged to have occurred, in the context of Melbourne being in strict lockdown due to COVID-19. She stated that the applicant had left the apartment for food and to visit his girlfriend, but that she could not provide any further information as she does not interfere in the lives of her tenants.
Emma Faliszewski
First Constable Emma Faliszewski stood in for the informant Phillips in the present application. She is also the informant in respect of the charges against the applicant from March 2020.
Faliszewski confirmed there were no independent witnesses or evidence in relation to any of the allegations of assault made against the applicant. She gave evidence that the complainant had attended the Melbourne East Police Station on the evening of 7 March 2020, when she reported an alleged instance of strangulation on that day, later making a statement to police on 10 March 2020. She confirmed that the complainant also gave her some history and a statement as to other incidents that she alleged had occurred in the previous year.
Faliszewski gave evidence that there were no physical injuries in relation to any of the historical incidents alleged or the incident of 7 March 2020. In relation to the alleged strangulation, Faliszewski stated that she examined the complainant on the day and did not observe any marks, thus photographs were not taken.
In relation to the alleged breaches and persistent breaches of the FVIO, Faliszewski agreed that the FVIO itself and court records constitute supporting evidence or evidence bearing on those charges.
With respect to the complainant, Faliszewski indicated that she last contacted her via email on 7 May 2021. She stated that she had not needed to make contact with her since nor had she been aware that she was required to make contact with her before the application. As such, she was unable to comment on whether the complainant is contactable at the moment.
Faliszewski stated that she had not been aware of the complainant’s attitude to the bail application in the Magistrates’ Court, being that she had no concerns if bail was granted and that she had moved on from the relationship with the applicant. She stated that she did not necessarily have reservations about that statement of the complainant’s attitude, but did note that the complainant does not have any family in Australia and minimal friends that could provide her with support in making such a decision.
With respect to the present application, Faliszewski confirmed that her opinion is that bail should be opposed, but could not provide any further comment in relation to the risks that might arise if the applicant was granted bail. In response to questions about the FVIO against the complainant, she confirmed she had seen the order on the system but was not aware of the circumstances in regards to it. She was also unable to comment on whether there is any evidence supporting the allegation that the applicant sent a message to her on 5 May 2021 regarding the complainant’s attitude towards the charges against him.
In cross-examination by the applicant, Faliszewski stated she was not aware of any concerns about the proposed accommodation should bail be granted. She was unable to accurately recall when her last telephone conversation with the complainant occurred, but believed they spoke on the phone this year in regards to a civil hearing for an intervention order between the parties, where the complainant was listed as an affected family member. She stated that that matter returned to court on 7 May 2021, where an interim intervention order with limited conditions was imposed, namely a prohibition on the applicant committing family violence against the complainant or going near or damaging her property. Faliszewski stated that she had no knowledge of the complainant desiring a full no-contact order.
Supplementary affidavit of Nakita Barba
Following the hearing of the application, the Court received a supplementary affidavit in support of the application for bail from the applicant’s solicitor, Ms Nakita Barba, dated 14 July 2021. Exhibited to the affidavit were two statements by the applicant. The first statement dated 26 December 2020 makes complaint that the complainant followed the applicant and texted him. In the second statement dated 9 January 2021, the applicant makes complaint that the complainant had contacted him, approached him, physically engaged with him and tried to damage his property.
The applicant’s contentions
Strength of the prosecution case
Whilst accepting that the prosecution case is to be taken at its highest at this stage, the applicant submits that the case cannot be said to be a strong or overwhelming one. It is submitted that there are multiple triable issues, as the applicant denies sending any emails to the informant; attending the complainant’s residence; sending the messages over Facebook to the complainant; or damaging property. Further, at the hearing, it was contended that there are some procedural issues in bringing the matter to a committal, which may also contribute to some weakness in the prosecution case.
It is submitted that the primary evidence in relation to the charges is from the complainant, noting there does not appear to be any medical or forensic evidence. The credibility and reliability of a complainant’s evidence is said to be the main issue in any trial. At the hearing, it was also submitted that the delay between some of the alleged incidents and the complaints against the applicant is relevant to the credibility and reliability of this complainant.
Criminal history and longest period in custody
It is acknowledged that the applicant has a criminal history, however it is relied upon that he has never served a term of imprisonment. It is noted that his current period on remand, since 25 February 2021, is the longest time he has been in custody.
Availability of CISP support
The applicant provided the Court with a report from Ms Fiona Devlin, from the Court Integrated Services Program (CISP), dated 12 July 2021. Ms Devlin indicated that the applicant had been assessed by the CISP Remand Outreach Program and recommended that he receive case management by the Indictable Stream CISP Team. The report detailed problems with drugs and alcohol, mental health, family violence and anger management. Based on these issues, Ms Devlin outlined an initial treatment and support plan for the applicant should he be granted bail. In the event bail is granted, she recommended that CISP should form part of the conditions.
Delay
The applicant is remanded only in relation to the Phillips matters. He has been remanded in custody since 25 February 2021, with the matter next listed on 5 August 2021 for a committal hearing. It is submitted that the applicant is likely to face significant delay in this matter reaching trial. At the hearing, the applicant submitted that this likely delay is the principal matter relied upon to establish that exceptional circumstances exist justifying the grant of bail.
Further, it is submitted that the time spent on remand could potentially be more than any eventual sentence the applicant may face in relation to this matter.
Stable accommodation
The applicant proposes to reside in an apartment in Southbank if released on bail. As above, Ms Tam Nguyen resides at this address and gave evidence at the hearing of the application, as well as in an affidavit dated 25 June 2021.
Unacceptable risk
At the hearing, the applicant referred to the circumstances in which the complaints were made, arguing that the Court is unable to find that the applicant was an perpetrator of escalating family violence. While acknowledging that the applicant was charged with very serious offences alleged to have occurred between July to September 2020, it was pointed out that the complaints were made at a significantly later time in circumstances where there were allegations of strong violence.
The applicant also noted that the above allegations were made shortly after an intervention order was taken out against the complainant in protection of the applicant on 13 September 2020. The conditions sought were that the complainant must not commit family violence against the applicant; contact him by any means; approach or remain within 5 metres of him; or go or remain within 100 metres of 2106/250 City Road, Southbank. It is noted that the narrative alleged by the police in the application was that the applicant had returned home to his apartment building to find the complainant waiting in the foyer. The complainant blocked the applicant from getting into the elevator, pushed the applicant to the wall and took his mobile phone. Further, the applicant notes that he said he believes the complainant does not want their relationship to end and persistently attends his address. Furthermore, the reason for the FVIO, as stated in the application, was to prevent an escalation of the situation as there was nothing to prevent the complainant from attending the applicant’s residence and harassing him. An interim FVIO was granted and remained in place until 7 May 2021, when the application was withdrawn by the police.
As above, it is submitted that, in December 2020, the complainant made a statement of no complaint in relation to the allegations in July to September 2020. As such, it is contended that the risk posed by the applicant is limited. It is also noted that the applicant has no prior criminal history for interfering with a witness or otherwise obstructing the course of justice.
With respect to the two charges of attempting to pervert the course of justice, the applicant argues that the alleged sending of emails is ‘vastly different’ conduct from intimidation, coercion, actual violence or bribery, which could also form the basis of these charges. It is submitted that the objective gravity of that offending is towards the lower end and there is minimal risk if bail were to be granted.
In terms of his capacity to harass or intimidate witnesses, the applicant pointed out that there is really only the complainant who, at the moment, wants nothing to do with him and has moved on. It is noted that there has been no ongoing relationship between the applicant and complainant.
The applicant acknowledged his conviction in 2019 in respect of family violence offences against a former partner, but argued that his history can be contrasted against someone with a demonstrated history of regularly physically assaulting another person.
Proposed conditions
The applicant proposes conditions of bail related to residence; reporting to Southbank Police Station; a curfew between 10pm and 6am; and complying with the conditions of CISP and/or their nominee. It is submitted that, in those circumstances, the applicant’s risk can be managed to an acceptable level.
The respondent’s contentions
The respondent opposes the application for bail. The respondent agrees that the onus is on the applicant to satisfy that exceptional circumstances exist justifying the grant of bail and, if satisfied, the respondent must satisfy the unacceptable risk test.
At the hearing, the respondent took the Court through a chronology of the allegations against the applicant. It was submitted that whilst the prosecution case is not the strongest given the lack of corroboration, it is certainly not a weak case. The respondent described the messages allegedly sent by the applicant to Faliszewski as ‘striking’, particularly the message sent on 13 May 2020. Further, the respondent pointed to the photograph of the damage to the property on that day and a series of text messages following the incident in which the applicant allegedly states he is sorry for what happened. As such, it is not conceded that the prosecution case is weak in relation to the allegations of what took place on 13 May 2020.
It was acknowledged that there has not been any allegations of offending from 2 September 2020 until the applicant’s arrest on 25 February 2021. The respondent noted that the complaint to Faliszewski that led to the present matter was raised in the context of the relationship between the applicant and complainant having reached a more ongoing separated status.
The respondent contended that the surrounding circumstances, as required to be taken into account by the Court in applying both the exceptional circumstances and unacceptable risk tests, include an alleged deviance of the intervention order; ignoring an intervention order; ignoring the obligations of bail and engaging in violent behaviour towards the complainant on a number of occasions, including an act of strangulation and threats to kill her.
The respondent also indicated that while a trial date was difficult to estimate, it is ‘within the bounds of reasonable possibility’ that the matter may not come on for trial until late 2022. It was noted that further enquiries were being made of the County Court on this matter.
With respect to the matter of delay, the respondent submitted that the applicant’s concern that he will be on remand longer than any eventual sentence is unjustified. It is contended that this set of charges involves aggressive behaviour, including damaging a wall. The respondent also argues that the applicant has been charged with serious offences of family violence in the context of repeated allegations of family violence and offending in defiance of court orders.
In relation to the applicant’s criminal history, the respondent argues that while not extensive, it is certainly very relevant and recent. The respondent rejects the applicant’s submission that the risk of danger is limited to this complainant, referring to the assault and breach of intervention order in relation to the applicant’s former partner in 2019.
Consequently, the respondent contends that exceptional circumstances are not made out in the present case and thus bail ought to be refused.
Analysis and conclusions
It is acknowledged by both parties that the applicant in the present matter must satisfy the exceptional circumstances test provided for in the Act. Namely, the applicant must show that there exists a circumstance, or circumstances in combination, that justify the admission of the applicant to bail. In making this assessment, the Court must take into account the surrounding circumstances. I have taken into account and applied the applicable legal principles set out above.
The applicant faces a series of serious allegations of misconduct over an extended period of time, in relation to one person with whom it is alleged he had been in an intimate relationship. I note the alleged offending does not extend beyond the complainant. Nevertheless, the allegations are of a very serious nature, involving multiple instances of strong physical violence, including assaults with a weapon and assaults by physical striking. There are also allegations of damage to property associated with the alleged physical assaults. Of particular concern is the allegation of strangulation of the complainant.
It is to be understood that description immediately above relates to the totality of the alleged offending against the applicant in respect of the complainant. The present application relates to the refusal of bail by the magistrate in respect of the Phillips matters, which have been summarised above. The Phillips matters do not involve serious examples of assaults by the applicant against the complainant. However, they do involve an exhibition of anger and frustration when the applicant is alleged to have been affected by alcohol, was argumentative, when he visited the complainant at her apartment, as well as multiple occasions when an FVIO was alleged to have been breached.
On the occasion when the damage was alleged to have occurred, it is alleged that the applicant attempted to pervert the course of justice by using the complainant’s telephone, pretending to be her, and sending a message to a police officer in an attempt to have an existing FVIO revoked. The applicant has been charged with persistently breaching an FVIO in the above context of multiple allegations of violence having been committed against the complainant. It is impossible to disregard the overall allegations of violence when assessing the surrounding circumstances to the exceptional circumstances test, and if necessary, the evaluation of the degree of unacceptable risk.
The Court is aware of the fact that the allegations of actual physical violence to the complainant appear unsupported by independent supporting evidence such as photographs or the observations of a police officer or other person. However, the lack of supporting evidence as to physical violence is not a circumstance that is determinative of this application. Rather, it is a matter that will eventually go to the weight of the complainant’s account of the alleged events.
Furthermore, arguments associated with the delay in making reports to the police, and evidence of the complainant signing a statement of desired withdrawal of a complaint are also matters of weight, going to her credibility. It is to be noted that there is some evidence supporting the allegations of damage to property and multiple telephone communications by the applicant to the complainant. Further, there is evidence of a communication to the police that forms part of the prosecution case alleging an attempt to pervert the course of justice by the applicant.
In all, it cannot be said the prosecution case is a weak one, nor may it be said it is necessarily strong or overwhelming. There may well be triable issues, but even so, that is but one matter in the overall assessment of the exceptional circumstances test. Furthermore, a question remains as to the eventual admissibility of the alleged events of assaults, the use of weapons, and intimidating conduct such as abuse including the making of threats to kill the complainant, and repeated instances of breaches of the FVIO, in the trial to be held on the Phillips matters. Those will be questions for the trial judge to resolve.
It is of some relevance that the evidence reveals that FVIO orders are in place as against the applicant, (and in one instance against the complainant) and that such orders have been made upon magistrates being satisfied that such orders were appropriate. However, I place limited weight on these particular circumstances as it is not for this Court to look behind the making of those orders.
I note that delay has been relied upon as the primary, though not sole, basis for this application of bail. The applicant submits that there will be significant and undue delay to the resolution of the Phillips matters, being the only charges upon which bail was refused, and that the expected delay amounts to an exceptional circumstance, especially so when considered in combination with other matters put forward. I note that the Phillips matters will be the subject of committal hearing on 5 August 2021, some three to four weeks from this date. Accordingly, once the complainant has given her evidence, and all the evidence is examined, the learned magistrate will then be in the best position to assess the strength of the prosecution case and make a clearer assessment of the delay expected in the resolution of these matters. It must reasonably be envisaged that on the conclusion of that hearing, in the event that the magistrate commits the applicant for trial, then he or she can re-visit the question of bail in the context of a date for the next stage of the proceedings in the County Court.
I also note that in the days following the hearing of the application for bail, the Victorian government announced a lockdown of the Victorian community for a period of five days. I simply state that I have taken this circumstance into account, as I have taken into account the impact of COVID-19 circumstances as they have applied during the applicant’s period on remand on these matters. For the purposes of the resolution of this application, I must act on the assumption that the lockdown will end at midnight on 20 July 2021, as presently stated by government. However, if the period of lockdown was to be extended, with the result being that the date of the committal hearing in this matter is postponed, that may result in further attention being given to applicant’s present custodial circumstances.
I have also taken into account the evidence of Ms Nguyen who is prepared to provide a place of residence for the applicant, along with an undertaking to the Court to report the applicant to the police should he not abide by any bail conditions.
In all the circumstances, having taken into account all the matters advanced by both parties, I am unable to conclude that the exceptional circumstances test has been met. In my opinion, at this point of the proceedings, the expected delay is not exceptional, nor do the circumstances put forward in combination satisfy the test.
The allegations against the applicant are serious, and should he be found guilty of the Phillips matters, I am not of the view that he necessarily risks serving more time on remand than he might receive by way of sentence. These matters involve multiple charges of contravening a FVIO, committing an indictable offence whilst on bail, criminal damage, and two charges of attempting to pervert the course of justice. It is of relevance, in the assessment of this particular issue of possible penalty, to take into account the other matters with which the applicant is charged, some of which involve allegations of strong physical violence, with one occasion involving an episode of alleged strangulation of a female, being an allegation of a particularly serious nature. These matters currently remain unresolved, but are progressing through the system.
I will take the opportunity to observe that it seems quite undesirable that four separate occasions of alleged offending against the same complainant should be proceeding as separate hearings in circumstances where it is tolerably arguable that the allegations appear on their face to be a series of connected events, and potentially cross-admissible into evidence, at least to some extent.
I also will take the opportunity to observe that had I been satisfied that the exceptional circumstances test had been satisfied by the applicant, I would have concluded that bail should be refused on the basis of his unacceptable risk of committing further offences. In this respect, I have assessed all of the evidence, particularly noting the applicant’s prior matter involving violence towards an intimate partner for which he received a CCO; the allegations of persistent offending behaviour involving physical violence against the complainant; and the allegations concerning his regular disobedience of court orders with respect to conduct towards the complainant. In my opinion, this history confirms that the applicant remains an unacceptable risk of committing further offences that cannot be ameliorated by strict conditions attaching to a grant of bail.
In the above circumstances, the application for bail will be refused.
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