Re Hammoud (Application for bail revocation)
[2022] VSC 613
•6 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0062
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for revocation of bail granted to Abdullah Hammoud |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 October 2022 |
DATE OF RULING: | 6 October 2022 |
DATE OF REASONS: | 17 October 2022 |
CASE MAY BE CITED AS: | Re Hammoud (Application for bail revocation) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 613 |
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CRIMINAL LAW – Bail – Application for revocation of bail previously granted to respondent – Applicant alleged consistent breaches of conditions of bail by the respondent over extended period of time – Alleged breaches included failure to abide by curfew, reporting and drug testing conditions – Dispute that curfew condition breached – Respondent admitted poor and sporadic compliance with reporting and urinalysis conditions respectively – Clear breaches proved in respect of each condition – Respondent displayed cavalier attitude to compliance with bail conditions – Discussion re appropriate test for revocation - Appropriate and necessary in the circumstances for bail to be revoked – Bail revoked – Respondent remanded in custody – Bail Act 1977 ss 1B, 4E, 18AE, 18AF.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Fisher | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Ms K Ljubicic | Theo Magazis & Associates |
HIS HONOUR:
Introduction
The Director of Public Prosecutions (‘the applicant’) applied for the revocation of bail granted to Abdullah Hammoud (‘the respondent’) on 5 August 2021 by Coghlan JA.[1]
[1][2021] VSC 496. Whilst the application was heard and bail was granted on 5 August 2021, the published decision of his Honour was dated 16 August 2021.
The application, which was opposed, was based upon the contention by the applicant that the respondent has breached a number of the conditions of bail to which he was subject over an extended period of time. The application was opposed by the respondent.
Having heard the application, I concluded that it was appropriate and necessary for the bail granted to the respondent by Coghlan JA on 5 August 2021 to be revoked. I indicated at the time that I would provide detailed reasons for my decision at a later time. These are those reasons.
Procedural background
As a result of events which occurred on 23 June 2020 and 18 July 2020, the respondent was charged with a number of offences including murder and attempted armed robbery. He was charged and remanded in custody on 21 October 2020.
On 5 August 2021, Coghlan JA, who had earlier heard bail applications on behalf of Adam Tiba (‘Tiba’), Tahmid Rahman (‘Rahman’) and Ammair Fahal (‘Fahal’), granted bail to the respondent on strict conditions including conditions that he:
i. Reside at his mother’s address;
ii. Remain at the premises between the hours of 9.00pm and 6.00am each day except in the company of his mother Ibtisam Hammoud or his brother Fawaz Hammoud;
iii. Present himself at the front door of the premises during the curfew hours if and when called upon by a member of Victoria Police to do so;
iv. Abstain from the consumption of any drug of dependence;
v. Undergo supervised urine screens each Monday and Friday and provide a sample of oral fluid for testing if required to do so by a member of Victoria Police, with the results of the urine screens to be provided to the informant;
vi. Attend appointments with psychologist Jeffrey Cummins for assessment and treatment and undergo any treatment directed by Jeffrey Cummins;
vii. Not have contact directly or indirectly with the co-accused or any witness for the prosecution; and
viii. Use only one mobile phone and provide the number of that mobile phone to the informant.
Since the initial grant of bail, there have been a number of occasions on which the respondent has attended in this Court for hearings of various types, and his bail has been extended. Some of these occasion have occurred since the decision was made by the prosecution to not proceed against the respondent on the charge of murder. On 1 June 2022, the current indictment was filed.[2] From that time, the respondent has faced charges of attempted armed robbery and aggravated burglary only. Most recently, he was before the Court for a directions hearing on 24 June 2022, on which occasion the case was set down for a final directions hearing and preliminary argument on 30 January 2023. The trial is listed to commence in this Court on 15 May 2023 before the Honourable Justice Lasry.
[2]Indictment Number C2013966.
At no time has the respondent made any application for variation of his bail, or in any way indicated that any of the conditions of bail have become problematic or unnecessary.
The facts
The respondent is before the court on an indictment which contains 3 charges. Charge 1 charges the respondent and Tiba with attempted armed robbery. Charge 2 charges the respondent, Tiba , Rahman and Fahal with aggravated burglary (intent to assault, person present). Charge 3 charges Tiba alone with murder.
It is alleged that on 23 June 2020, the respondent and Tiba met with two men named Dimitrios Pramatias (‘Pramatias’) and Lorenzo Tigani (‘Tigani’). Pramatias planned to purchase a large amount of cannabis from the respondent. The plan fell apart when Tiba and the respondent attempted to rob Tigani at gunpoint. Pramatias and Tigani entered the respondent’s car, in which he and Tiba were sitting. The respondent said that he would retrieve the cannabis and walked towards the back of the car. Tiba also got out of the car, produced a sawn-off rifle, and said to Tigani words to the effect of, ‘Give me everything’. A physical struggle ensued, during which Tiba and the respondent sustained stab wounds. It is alleged that the respondent knew that Tiba had a firearm in his possession.
On 18 July 2020, Tigani’s friend Christian Rubini organised for Tigani and their mutual friend Adrian Pacione (‘Pacione’) to meet at Rubini’s home in Lalor.
It is alleged that the four accused entered into an agreement, arrangement or understanding to enter Rubini’s home to assault at least one of the occupants, in retaliation for the incident that occurred on 23 June 2020. It is alleged that the respondent, Tiba and Rahman travelled to Rubini’s home together on the evening of 18 July 2020 . Fahal had been sent there earlier to conduct surveillance.
After 10:30pm, Tiba knocked on the front door, and Rubini answered it. Part of Tiba’s face was covered and he held out a gun. Tigani recognised Tiba. Rubini retreated backwards. Tiba started to open the security door (which was unlocked) and said words to the effect of, ‘Boys it’s open.’ Rubini and Tigani saw two other males with Tiba, who the prosecution allege were the respondent and Rahman. Tigani tried to shut the wooden front door. At least one of the accused was able to get at least one of his feet into the home. The occupants were eventually able to shut and lock the door.
The prosecution allege that Tiba then fired four bullets into the front window of Rubini’s home, whilst knowing that there were people inside. One of the bullets struck Pacione’s head. Pacione was taken to hospital with life threatening injuries. He was pronounced dead on 20 July 2020.
The respondent was arrested on 21 October 2020 at his home. A mobile phone was seized from him, and he refused to provide the PIN code.
The basis of the grant of bail by Coghlan JA
I have had regard not just to the decision of Coghlan JA granting bail to the respondent, but to the transcript of the hearing. From the transcript, it can be gleaned that in the circumstances, his Honour was reasonably quickly moved to the view that the exceptional circumstances hurdle may be cleared, and the focus of the application was essentially on the question of unacceptable risk. Mr McMahon SC who then appeared for the respondent[3] conceded that there was ‘clearly a serious risk that your Honour has to consider’.[4] Mr McMahon set about seeking to persuade his Honour that he should be satisfied that arrangements would be in place involving, amongst other things, close supervision of the respondent by his brother and mother, that should alleviate any concerns his Honour may have. In the application, the evidence of the respondent’s brother Fawaz Hammoud (‘Fawaz’) assumed considerable importance. Fawaz attested to the fact that not only was he the respondent’s employer who would see him regularly in that connection, but that he lived at the home address with the respondent and his mother, that he would supervise him, and that he would report any breaches of bail to the police. In the published reasons his Honour delivered for his decision, he noted how impressed he was by the evidence of Fawaz, who had expressed his determination to ensure the respondent does not get involved in further criminal activity, and provided an undertaking to the Court to supervise his brother.
[3]Who was then the applicant.
[4]Transcript of application dated 5 August 2021, 14.
His Honour noted the view of Jeffrey Cummins, psychologist, that any ongoing risk posed by the respondent could be moderated to an acceptable level through twice-weekly urine screens and regular mental health treatment.[5] He went on to grant bail, including the stringent conditions to which I have already referred.
[5][35].
The law
The application is brought pursuant to s 18AE of the Bail Act 1977 (‘the Act’), which provides that an application for revocation is to be made in the case of a person charged with treason or murder, to the Supreme Court, and in any other case, to the court to which the person is required to surrender under his or her conditions of bail. The respondent is required to surrender under his conditions of bail to this Court and will be tried jointly with his co-accused, one of whom is charged with murder. I note, in any event, the fact that this Court has inherent jurisdiction to hear all bail matters.[6]
[6]See Beljajev v DPP (Unreported, Full Court of Supreme Court of Victoria, 8 August 1991); Re Dukic [2018] VSC 664 (Champion J); Re KA (No 2) [2022] VSC 363 (Beach JA).
Section 18AF of the Act provides that the Court may either revoke bail or dismiss the application. The Act does not elaborate as to the requirements or considerations when determining such an application. It has been noted that the discretionary powers in the section must be exercised by reference to the guiding principles in s 1B of the Act,[7] which provides, in part, as follows:
[7]Re Gloury-Hyde (No 2) [2018] VSC 520 (Priest JA at [13]).
(1) The Parliament recognises the importance of –
(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;
...
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
The applicant’s submissions
The applicant’s submissions were contained in the oral submissions of Mr Fisher before me, and in the affidavit in support of the application, sworn by Kerryn Parnham on 14 September 2022 and the associated exhibits, including the informant’s report dated 6 September 2022.
Mr Fisher submitted that the respondent’s bail should be revoked as there was an unacceptable risk that if he remained on bail, he would fail to comply with the conditions of bail. He submitted that insofar as the law relating to revocation proceedings is concerned, I should not revert to a consideration of the exceptional circumstances as contemplated by Coghlan JA, or the question of whether the applicant would now pose an unacceptable risk under one or more of the heads in s 4E of the Act. Rather, it would suffice for revocation if the Court was satisfied that the applicant would pose an unacceptable risk of failing to comply with the conditions of his bail.
The applicant relied on a number of alleged breaches of conditions of bail in combination in support of revocation. He submitted that the respondent had breached his conditions of bail as follows:
i.Failing to comply with curfew;
ii.Failing to report to Broadmeadows police station;
iii.Failing to provide urine screens;
iv.Breaching a condition not to contact any co-accused; and
v.Breaching of condition regarding mobile phone.[8]
[8]Affidavit of Ms Parnham, 14 September 2022 [70].
It would be correct to say that the first three of these were the matters which assumed most prominence in the submissions of Mr Fisher and occupied significant time of the Court. There is no doubt these were the main factors in the application. In the circumstances, I will have nothing to say about matters iv. and v.
Failing to comply with curfew
The available material indicated that on 12 of the 16 occasions on which police had attended at the home of the respondent during the curfew hours in the period 28 November 2021 to 3 September 2022, the respondent was not present. What occurred on each of these occasion was set out in the affidavit of Mr Parnham as follows:
28 November 2021: A curfew check was completed at 12.21am by Detective Senior Constable James Chalmers. Police knocked for ten minutes however no-one answered the door.
18 December 2021: A curfew check was completed at 1.00am by Constable Imogen Frawley. Police spoke to Ibtisam Hammoud who said the respondent wasn’t home and didn’t expect him home until the morning. She said the respondent had gone with friends to the beach and he was sleeping elsewhere that night.
24 December 2021: A curfew check was completed at 12.51am by Constable Jesse Kozak. The respondent was not present. Police spoke to his younger brother Issa who answered the door and was not sure where the respondent or his mother were, or when they were coming home.
29 December 2021: A curfew check was completed at 10.50pm by Detective Senior Constable Bonita Di Gregorio. The respondent was not present at 131 Rokewood Crescent and his mother said that he was out with his brother Fawaz, as per bail conditions. At 11.05pm, Detective Senior Constable Di Gregorio attended 82 Lakeside Drive, Roxburgh Park where the respondent was present at the address. Fawaz Hammoud was not present at the address and two minutes after police arrived, the respondent’s mother arrived at the address.
31 December 2021: A curfew check was completed at 11.09pm by Senior Constable Jessica Lay. Police knocked on the front door several times with no answer or noise from inside.
24 June 2022: A curfew check was completed at 11.29pm by Senior Constable Mulipola. Police spoke to Ibtisam Hammoud who stated that the respondent had left their home address at 8.30pm to attend a birthday party with his brother Fawaz.
26 June 2022: A curfew check was conducted at 2.35am by Sergeant Ayse Mehmet. Police spoke to Ibtisam Hammoud who stated that Hammoud went to the snow with his brother Fawaz on the afternoon of the 25 June 2022.
22 July 2022: A curfew check was conducted at 11.41pm by First Constable Abdallah. Police spoke to Ibtisam Hammoud who stated that the respondent had left the home address at 8.00pm to go fishing with his brother Fawaz.
24 July 2022: A curfew check was conducted at 11.52pm by Sergeant Ian Murphy. Police spoke to Ibtisam Hammoud who stated that the respondent was bored and went round to his sister’s house.
29 July 2022: A curfew check was conducted at 11.15pm by First Constable Shamim. Police spoke to a female who said that the respondent was out with his mother at his grandmother’s house at 11 Correll Way, Roxburgh Park. At 11.37pm police attended the address at 11 Correll Way and were unable to speak to anyone at the address.
30 July 2022: A curfew check was conducted at 11.15pm by First Constable Wayne. Police knocked repeatedly on the front door, however no-one attended.
2 September 2022: A curfew check was conducted at 11.40pm by Detective Senior Constable Rohan Evans. Police spoke to his brother Muhammed who stated that the respondent was out with his brother Fawaz.
3 September 2022: A curfew check was conducted at 11.41pm by First Constable Shahim. Police spoke to the respondent’s sister who stated that the respondent was at a wedding with his mother and brother. Police asked his sister to call Ibtisam Hammoud, who did not answer the phone call.[9]
[9]Ibid [72].
Mr Fisher submitted that the police had been unable to corroborate any of the occasions on which it was claimed that the respondent was out during curfew hours with Fawaz. Mr Fisher submitted that the Court would be able to conclude on the overall material that on repeated occasions, the respondent had failed to comply with the curfew condition. He pointed out that on a number of occasions, the mother of the respondent was not hesitant in claiming that he was away from the house in the presence of his brother Fawaz. She knew what the requirements of the bail were. Therefore, on occasions on which she did not indicate that the respondent was in the company of Fawaz, the Court should be satisfied that he was not.
Further to the above submission, Mr Fisher pointed out that the absence of the respondent from the house on all of the occasions, and the inability of the police to confirm his location, left them with no way of checking up on him as the bail was designed to enable.
Failing to report
The affidavit of Ms Parnham asserted that the respondent maintained a very poor record of reporting on bail. As at 6 September 2022, he had only reported 15 times out of a required 167 times.
The updated bail reporting records were provided to the Court. These demonstrated the respondent’s very poor compliance with the reporting condition. Even accepting, as was asserted on behalf of the respondent, that the respondent had been told by police on 7 August 2021 that he was not required to report, he was well aware as at January 2022 that he was, indeed, required to report. Furthermore, from the time of the previous application to revoke, which was commenced on 15 January 2022, listed in February 2022 and then not pursued, the applicant was aware that his failure to report, amongst other things, had caused such concern to the police as to lead to the commencement of the previous application to revoke. In that knowledge, the respondent’s compliance continued to be unsatisfactory. As recently as the day before the application, the respondent had failed to report as required.
In respect of the reliance by the respondent on the fact that the murder charge faced by the respondent at the time bail was granted had since been withdrawn, Mr Fisher disputed that the seriousness of the charges now faced by the respondent had any bearing on the importance of compliance with the reporting condition or for that matter, the curfew condition.
Failing to provide urine screens
The affidavit of Ms Parnham at paragraph [79] set out the alleged failures of the respondent to provide the twice-weekly urine screens required by the condition. As set out in that paragraph, there were a total of 65 missed screens in the period 26 September 2021 to 6 September 2022.
Results of urine screens provided subsequent to Ms Parnham’s affidavit had the effect of reducing somewhat the number of missed screens, but did not take away from the fact that over a substantial period of time, including the months since the commencement and then withdrawal of the first application for revocation, the respondent on numerous occasions had failed to comply with the requirements of the relevant condition. Mr Fisher submitted that even in the last few months leading up to the current application, the respondent had provided eight screens in a period during which he should have provided 24.
The respondent’s submissions
The respondent’s submissions were contained in the oral submissions of Ms Ljubicic before me, the affidavit in opposition to the application, sworn by Theo Magazis on 29 September 2022 and the further affidavit in opposition sworn by Mr Magazis on 5 October 2022.
In respect of the alleged curfew breaches, it was submitted on behalf of the respondent that in most of the instances, the applicant was unable to establish that it would be open to the Court to find that on the various occasions when the respondent was away from his home, he was not in the company of his mother or his brother.
Ms Ljubicic conceded one curfew breach which would be able to be proved was that alleged on 29 December 2021. She acknowledged that the breach alleged on 18 December on which the respondent’s mother said that he had gone with friends to the beach and was sleeping elsewhere that night was ‘borderline’,[10] but she did not concede the breach was established. In respect of all other alleged failures, Ms Ljubicic submitted that the breaches could not be established.
[10]Transcript 49.
In respect of the proposition that the respondent on occasions was apparently sleeping away from his required residential address, be it at the beach or at the snow, Ms Ljubicic submitted that there were ‘two schools of thought’[11] about what the combination of the residential and curfew conditions actually meant, in circumstances where he was permitted to be absent from his home if in the company of this brother or mother.
[11]Ibid 50.
Mr Ljubicic did concede that there were a lot of occasions on which the respondent was found not to be at home during the curfew hours, which, as she put it, ‘does have a colour of someone that’s out and about and moving around’.[12] This did not necessarily mean, however, that he was in breach of the condition.
[12]Ibid 56.
In any event, Ms Ljubicic contrasted the situation in this case with a situation in which a person on bail could be proved to be out misbehaving. That was not the case with the respondent. There was no evidence that he had been reoffending, or up to no good when absent from his home during the curfew hours.
In respect of the failures to report on bail, Ms Ljubicic admitted the position was different. Here, the compliance of the respondent had been poor. Later, she described the respondent’s compliance with the reporting condition as ‘very poor and sporadic’.
Ms Ljubicic submitted that the respondent was informed by police on 7 August 2021 that he did not need to report.[13] He reported again on 17 January 2022, two days after the prosecution filed the first revocation application. From that time, he was on notice of the requirement to comply with the reporting condition. Ms Ljubicic conceded that from that time, there was not a single week in which the respondent complied fully with the reporting obligation, and that he went for many months without reporting at all. Particularly poor compliance followed the withdrawal of the murder charge, perhaps pointing to a sense of relief in the respondent, and a change of attitude.
[13]Mr Fisher indicated the applicant could not refute this contention.
Notwithstanding the admittedly poor reporting by the respondent, he was not someone who had entirely failed to report. Nor had he ever failed to attend court, or become a flight risk. Ms Ljubicic submitted that there would be no need to revoke bail on account of the poor compliance by the respondent with this condition.
Turning to the urine screens, Ms Ljubicic conceded that the respondent had missed a number of screens, but had also provided a lot. She labelled his compliance as ‘sporadic’ rather than poor. It was difficult for him to provide the screens in light of his hours of employment. Furthermore, there were a number of recently provided results which reduced the figures of missed screens contained in the applicant’s material.
Ms Ljubicic submitted that there was no evidence that the missed screens might have masked ongoing drug use by the respondent. Indeed, she went as far as to submit that the Court could make a finding that the respondent had remained abstinent from drugs in light of the large number of completed screens and the absence of any positive results. As for the most recent screens, these should indicate to the Court that the applicant was not using drugs now at least, a matter which would be relevant to an assessment of whether or not it would be ‘pressing to revoke his bail today’.[14] The breach of the urine screen condition ‘in and of itself doesn’t go very far, given the surrounding circumstances’.[15]
[14]Ibid 70.
[15]Ibid 71.
Ms Ljubicic submitted that the breaches of this condition would not raise a pressing need to revoke bail, in light of the guiding principles underlying the Act.
In respect of the law which applied to the application, Ms Ljubicic submitted that I would be required to go back to the unacceptable risk considerations in s 4E of the Act and determine the question whether the respondent would now pose an unacceptable risk of any of the matters set out in the provision. The onus would be on the prosecution to establish that the respondent would now pose an unacceptable risk. The risk of breaching conditions of bail is not one of the risks countenanced in s 4E. It was not intended by the legislature that the risk of a breach of a bail condition could suffice for the purposes of the unacceptable risk of committing an offence on bail set out in s 4E(1)(a)(ii).
Ms Ljubicic cited no authority for the proposition that the Court in considering an application for revocation of bail would necessarily be required to consider afresh the unacceptable risk test set out in s 4E of the Act.
Ms Ljubicic, referring to the guiding principles set out in s 1B of the Act, noted that in this case, the respondent had attended court every time he was required to do so. He had not been charged with any further offences, or accused of any further criminal activity. There was no allegation that he had endangered members of the public. Ms Ljubicic submitted:
The main submission here, your Honour, it will be conceded that compliance has not been perfect with respect to some of the conditions, and in particular the reporting conditions. It has been poor. But the ultimate submission that I’ll be making is that this is not conduct, really, within the realms which should result in the deprivation of liberty, or at least not yet.[16]
[16]Ibid 37.
Mr Ljubicic submitted that the respondent had been ‘awakened somewhat’[17] by what had happened thus far, and urged upon the Court the view that a warning from the Court, delivered with some judicial force, could remedy the matter, without the need to resort to the deprivation of the respondent’s liberty, ‘especially when the safety of the community, of any persons, are not affected by his conduct’.[18]
[17]Ibid 42.
[18]Ibid 42.
Analysis
Before turning to consider the law which applies to this application, it is worth reflecting on the law which applied to Coghlan JA as he determined the application before him, and arrived at the stringent conditions of bail which he decided were appropriate, and some of the evidence before him.
His Honour took into account, as he was required to do, the guiding principles set out in s 1B(1) of the Act.
His Honour had before him a report of a psychologist Jeffrey Cummins pointing to a major depressive disorder suffered by the respondent, and the proposition that the respondent had reported daily cannabis use in the 15 months preceding his remand, and previous amphetamine use. The prosecution submitted during the application before Coghlan JA that the regular drug use of the respondent had the potential to affect his judgment and increase the risk of further offending.
As noted earlier, Coghlan JA heard evidence of the respondent’s brother Fawaz, which clearly assumed great significance in his Honour’s mind as he moved to consider the question of unacceptable risk.[19]
[19]The particular risk of apparent concern to Coghlan JA was the risk to witnesses, in light of his characterisation of the main offending as a revenge shooting. See transcript of bail application, 12.
Section 5AAA of the Act provides that a bail decision maker considering the release of a person on bail must impose any condition which will reduce the likelihood that the applicant may engage in any of the conduct specified in s 4E of the Act. Section 5AAA(2) of the Act dictates that the conditions imposed must be no more onerous than is required to reduce the likelihood that the applicant may do any of the specified things, and must be reasonable having regard to the nature of the alleged offences and the circumstances of the accused.
In the context of the circumstances of the respondent’s case and the applicable law, Coghlan JA saw fit, in resolving the application for bail in favour of the respondent, to impose a suite of conditions which were stringent, and clearly aimed at reducing the risk posed by the respondent. Clearly, these conditions were no more than his Honour considered to be necessary, reasonable and appropriate. Every condition of bail was important, and as the respondent well knew, every condition was required to be complied with to the letter.
Unfortunately, on any view of the material before me, and as conceded by Ms Ljubicic, the respondent’s compliance with a number of conditions was sporadic at best, and in some cases, very poor.
Considering first the alleged failures to comply with the curfew condition, at least one clear breach was conceded by Ms Ljubicic. Some other identifiable breaches were apparent on the material. The troubling fact that of the 16 occasions over a period of 10 months that the police saw fit to check that the respondent was complying with the curfew, on 12 occasions he was found not to be present in the house, would raise a real concern that he was not abiding by the curfew. On all of the material, I was satisfied that during the period in question, there were, at the very least, repeated occasions on which the respondent broke the curfew condition.
The position was even more stark where reporting was concerned. The updated bail reporting history provided to the Court made for more grim reading. First, it contained the bail reporting history of the respondent in respect of some other charge or charges upon which he was on bail even before he was taken into custody on the current matters. The record showed repeated instances of the respondent failing to report as required. In the period 16 September 2019 to 20 April 2020, the record showed that the respondent reported on 9 occasions and failed to report on no fewer than 16 occasions.
In respect of the reporting of the respondent on the current bail, accepting for present purposes that the respondent was not aware of any reporting requirement from 7 August 2021 until he resumed reporting on 17 January 2022, two days after the first revocation application was filed, the adherence by the respondent to the reporting condition from then onwards was nothing short of derisory. He reported on no further occasions in January 2022, six times in February, four times in March, and twice in April. He did not report at all in July, August or September 2022. He failed to report on three of the four required dates in October 2022 before the revocation application was heard.
It is impossible to view this conduct by the respondent as being anything other than contemptuous of the reporting condition.
Turning to the failures of the respondent to provide urine screens, the lack of regard by the respondent for this condition of his bail was equally plain. The condition of bail imposed by Coghlan JA was imposed for a particular reason apparent on the material in the application. His Honour was concerned about the drug use of the respondent as highlighted in the report of Mr Cummins, and the potential for that drug use to increase the risk of reoffending. In response to that, his Honour saw fit to require the respondent to undergo a urine screen each Monday and Friday, and to provide a sample of oral fluid for testing if required to do so by a member of Victoria Police. This condition was clearly designed to enable the police to monitor any drug use of the respondent, and to enable further testing to be carried out if necessary. The failure of the respondent to comply with the condition denied Victoria Police the opportunity to enforce the monitoring which had been intended by Coghlan JA.
Insofar as Ms Ljubicic submitted that the Court could make a finding that the respondent had remained abstinent from drugs during the relevant period, I reject that contention. The poor compliance of the respondent with the drug testing condition would clearly make such a finding impossible. Indeed, whilst I make no finding that the applicant did relapse into drug use, his poor compliance with the testing requirement would raise real concerns in that regard.
The overall picture created by the conduct of the respondent throughout the duration of his grant of bail was of a person who had scant regard for the conditions which bound him. It is telling that even after he was put on clear notice that his conduct was unsatisfactory, and was being carefully looked at by the authorities, he continued to betray a cavalier attitude to compliance with the conditions of bail.
It is no answer to the poor compliance of the respondent to point to the lack of proven offending by the respondent during the grant of bail, the lack of evidence indicating resumed drug use, and the lack of specific evidence pointing to members of the public having been endangered by the respondent’s conduct. The three conditions of bail upon which this application focused were imposed by Coghlan JA to enable Victoria Police, as far as possible, to monitor the conduct, behaviour and whereabouts of the respondent in a way designed to reduce the risk he would pose to the community. By his actions, the respondent almost entirely thwarted the aim of the conditions, and rendered ineffective the protections intended to be introduced by those conditions.
In respect of the law which applied to the revocation application, I am by no means satisfied that the position is as submitted by Ms Ljubicic. As noted, s 18AF does not elaborate on the requirements or considerations when considering a revocation application. The discretion, as noted by Priest JA, must be exercised by reference to the guiding principles in s 1B of the Act,[20] but there is no apparent requirement for a judge considering a revocation application to return to the exceptional circumstances or unacceptable risk considerations which would have applied at the time of the original application, and consider those afresh. That is not to say that those matters may not be relevant in the disposition of the application. I note, for instance, that in Re KA (No 2),[21] Beach JA, in deciding to accede to an application for revocation of bail where there had been further offending by the respondent during the period of the bail, noted his satisfaction that the applicant then was an unacceptable risk of committing further offences, and that no conditions he could impose would reduce the risk to an acceptable level.
[20]Re Gloury-Hyde (No 2) [2018] VSC 520, [13].
[21][2022] VSC 363.
I think that what is required of a bail decision maker hearing a revocation application is to determine, in the circumstances of the application, and having regard to the guiding principles which are at the heart of the Act, whether or not it is appropriate for bail to be revoked. Often, the particular considerations previously considered in respect of one or more of the steps in the original application will be of great significant. Other times, they may not be. Undoubtedly, evidence showing that a respondent had repeatedly and deliberately breached conditions of bail over a substantial period of time would be an important matter for the Court to consider when contemplating whether bail should be revoked.
Having made these observations as to the proper test, I can indicate that I saw no need to reach a definitive view as to the correct test in the circumstances of this application. It seemed to me that no matter what the test was, it was necessary and appropriate that bail be revoked in this case. For an extended period of time, the respondent showed a complete lack of respect for the conditions of bail, and an unwillingness to comply with them even when on notice that the prosecution were contemplating revocation. In my view, nothing I could do would be sufficient to change his attitude. That left the Court in the position of considering a person who was released on bail on strict conditions who simply refused to abide by them. That would mean that the structure and control intended by Coghlan JA to be in place in and over the life of the respondent for the protection of the community was lacking for an extended period, and would likely continue to be lacking in future should he remain on bail.
In those circumstances, were I required to ask myself whether the respondent would now pose an unacceptable risk of any of the eventualities set out in s 4E, the answer would be yes. There would be an unacceptable risk of the respondent endangering the safety or welfare of any person, or committing an offence while on bail. The risk of reoffending would include but not be limited to offences against the Act.
Conclusion
In the circumstances of this case, and paying full regard to the guiding principles of the Act, I was satisfied that it would be appropriate and necessary for me to revoke the grant of bail previously made by Coghlan JA in this case. I made orders revoking bail and remanding the respondent in custody accordingly.
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