Re Jal
[2024] VSC 539
•4 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0145
| Between: | |
| CHADUER JAL | Applicant |
| -and- | |
| DETECTIVE SENIOR CONSTABLE KATHERINE LAVARS | Respondent |
---
JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING & ORDERS: | 26 June 2024 |
DATE OF WRITTEN REASONS: | 4 September 2024 |
CASE MAY BE CITED AS: | Re Jal |
MEDIUM NEUTRAL CITATION: | [2024] VSC 539 |
---
CRIMINAL LAW — Application for bail — Applicant, aged 27, charged with armed robbery, possess unregistered handgun, and intentionally causing serious injury — Police allege applicant with his brother and another passenger exit a car in Dandenong, and passenger discharges sawn‑off shotgun into air — Applicant then approaches complainant and swings him by shoulder bag, causing him to drop bag and applicant’s shoe to fall off — Complainant flees and applicant’s brother chases him — While applicant puts on shoe and picks up comb he dropped, brother catches complainant and hits him twice to the head with handgun, knocking him unconscious — Brother then takes bag — Incident in part recorded on CCTV — Applicant arrested two months later — Hours before incident, applicant robbed of phone, which he reported to police later on day of alleged offences — Whether compelling reason justifying bail — Whether, if bailed, unacceptable risk of endangering safety or welfare of any person — Applicant living with mother and seven siblings — Employed full‑time — Completed university degree — Mother dependent on financial and other assistance from applicant — No criminal history; only prior engagement in ROPES program as a child on charges including recklessly causing serious injury, nearly ten years ago — Significant weaknesses in Crown case including on identity, claim of right, contemporaneity, and complicity — Compelling reason established — Asserted risk not unacceptable — Bail granted on own undertaking with conditions.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Hooper | Emma Turnbull Lawyers |
| For the Respondent | Ms M Arceri | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Overview
On 26 June 2024, I heard an application for bail by Chaduer Jal (“the applicant”), who is aged 27. He was charged with armed robbery,[1] possessing an unregistered handgun,[2] intentionally causing serious injury,[3] and, in the alternative to the latter charge, recklessly causing serious injury.[4]
[1]Contrary to the Crimes Act 1958 (Vic), s 75A(1).
[2]Contrary to the Firearms Act 1886 (Vic), s 7B(1).
[3]Contrary to the Crimes Act 1958 (Vic), s 16.
[4]Contrary to the Crimes Act 1958 (Vic), s 17.
After hearing evidence and submissions, I gave brief ex tempore reasons to the effect that I was satisfied that compelling reasons exist that justify a grant of bail, and that I was not satisfied that there is an unacceptable risk that, if bailed, the applicant would endanger the safety or welfare of any person. Accordingly, I ordered that the applicant be released on bail on his own undertaking on a number of conditions.
I promised to publish detailed written reasons for my decision and orders at a later time. These are those reasons.
Summary of alleged events
The alleged events giving rise to the charges may be summarised in this way.
Between 5:05 a.m. and 5:35 a.m. on Friday 12 April 2024, the applicant and his younger brother, Luak Jal, were picked up by Annie Nguyen in a white MG wagon. Tristan Le was in the front passenger seat. The applicant and his brother sat in the back.
At about 5:35 a.m., Luka Tang was on Scott Street, Dandenong, when the MG passed by. The MG pulled over on the north side of the street, and the applicant, his brother and Mr Le got out of the car. The two brothers ran towards Mr Tang, while Mr Le stayed nearer to the car and pointed a sawn‑off shotgun in that direction. Shortly afterwards, Mr Le discharged a shot into the sky. Then he got back into the MG, which drove off and did a U‑turn.
The applicant and his brother chased Mr Tang towards Thomas Street. The applicant caught up with Mr Tang on the footpath, and grabbed his over‑the‑shoulder bag, swinging him around, which caused both men to fall to the ground. Mr Tang’s bag fell from his shoulder and the applicant lost his shoe in the course of this movement.
Mr Tang got up, and then fled down Thomas Street, leaving his bag behind. Luak Jal chased Mr Tang while holding a small handgun in his right hand. Moments later, Mr Tang circled back to where he had first been caught by the applicant. Another moment later, Luak Jal caught up to Mr Tang as they veered onto the roadway, and struck him twice to the head with the handgun. This caused Mr Tang to fall to the ground and become motionless. Luak Jal patted down Mr Tang’s clothing and then picked up his bag. While all this was happening, the applicant was putting on his shoe and picking up a hair comb he had dropped.
At about 5:38 a.m., the applicant and his brother got back into the MG. It pulled up near Mr Tang, who was still motionless, before driving off towards Burwood.
Ten minutes later, police arrived. They administered first aid to Mr Tang, and then conveyed him to hospital for treatment for a serious head injury.
The police took statements of witnesses and obtained CCTV footage which identified the MG. It turned out to be an Uber car share, and had a GPS tracker. Police then tracked the MG to an address in Burwood.
At around 5:00 p.m. the same day, Ms Nguyen was found cleaning the MG. She was arrested, and a number of items were seized. When interviewed, Ms Nguyen said she had no involvement in the incident, other than helping people who had had their phone stolen.
Police obtained a search warrant for an address in Burwood, where Mr Le was arrested at 10:35 p.m. A number of items were seized. A black Mercedes Benz was also searched at that address, and two guns and some ammunition were found and seized. When interviewed by police, Mr Le said that he was in the car in the middle of the back seat between two African males. A male he described as an Islander was in the front seat. Ms Nguyen was driving. He said the males had asked for a lift and were talking about their phone and wallet being taken. He said he had no involvement in the fight or the robbery. He said that, after the incident, one of the males had wanted to throw his backpack inside some laundry.[5]
[5]Of course, ordinarily, none of what either Ms Nguyen or Mr Le told police would admissible either for or against the applicant at trial.
On 19 June 2024, police went to the address of the applicant and his brother with a search warrant.[6] They arrested both brothers. Police also found and seized a pair of Nike ‘Tn’ shoes, two mobile phones, a pair of black leather shoes, a black coat, a grey sweater, and a blue suit. These items are said to match those captured on CCTV footage of the incident. Both the applicant and his brother gave “no comment” interviews.
[6]Pursuant to s 465 of the Crimes Act 1958 (Vic).
At the time of this hearing, forensic testing of the items seized remained outstanding.
Previous bail application
On 19 June 2024, the applicant was refused bail in the Melbourne Magistrates’ Court on the basis that there was an unacceptable risk that, if bailed, he would endanger the safety or welfare of any person.
Other evidence
Applicant’s sister
In addition to the summary set out earlier, I received the following evidence, commencing with the viva voce evidence from the applicant’s younger sister, Nyaruach Jal.
Ms Jal explained the familial relationships and financial circumstances of the applicant and their mother, who is aged 45.
Ms Jal and her brother are from a family of nine children. The applicant, Ms Jal and three of their brothers share the same father. Their mother re‑partnered and had four additional children who are now aged between six and 14.
Ms Jal said that all eight of her siblings usually live with their mother. However, the applicant and his brother Luak are currently remanded in custody. When at home, the applicant has his own separate bedroom. Ms Jal lives with her children separately.
Ms Jal said that her brother had completed a bachelor’s degree in business at Deakin University and was due to graduate in September. Before his arrest, he had been working as a team leader in a corporate organisation and was earning about $1,900 per fortnight.
Ms Jal said that their mother works part‑time at an aged care facility and earns approximately $1,400 per fortnight. The rent on her home is between $700 and $800 a fortnight, and groceries are around $400.[7] While Ms Jal was unable to say how much utilities might be, she did say that their mother takes care of the water bills and that the applicant pays the internet and gas. Ms Jal said that the applicant makes significant contributions to the family’s household finances. She also said that their mother would not be able to meet all of her expenses without the applicant’s assistance. Ms Jal said that none of her other siblings is currently working and she was not aware of any other person contributing to the household finances.
[7]For a household of nine, including at least two teenage boys, this estimate strikes me as a little askew.
Ms Jal said that their mother has type‑2 diabetes and was recently diagnosed with high blood pressure. She said their mother was not present at the application for bail as she had a doctor’s appointment in relation to the latter diagnosis.
Other than her brother Luak, who has a significant criminal history, and the present charges against the applicant, Ms Jal said none of her other siblings had any involvement with the police.
Ms Jal is a disability worker. On Tuesdays while she is at work, and the applicant is not working, he assists her in caring for her daughter. Ms Jal also said that the applicant assists their mother with the school drop‑off and pick‑up of his younger siblings.[8]
[8]Ms Jal’s circumstances, I should add, meant she had to bring her two‑year‑old daughter to court. Her mother explained that she insisted on having the metal detector wand waved over her by security officers, just like everyone else. During Ms Jal’s evidence, her daughter sat as quiet as a mouse, and ever so patiently, in the body of the court — assisted, no doubt, by some biscuits my associates had managed to find for her.
Detective Acting Sergeant Robert Brain
I also heard viva voce evidence from Detective Acting Sergeant Robert Brain. He is not the informant, but is one of those involved in the investigation, and he has some knowledge of the matter before me.
Detective Brain explained that, while on the day of the incident, Ms Nguyen and Mr Le were arrested, there was difficulty initially in identifying the applicant and his brother. He said that the brothers were identified through CCTV footage from the Players Hotel from before, during and after the incident.[9] He said that, given Luak Jal’s violent history, it then took some time for suitable arrangements to be made to effect the safe arrest of the applicant and his brother.
[9]Mr Hooper objected to this identification evidence from Detective Brain. Notwithstanding that, in proceedings with respect to bail, decision makers are not bound by the rules of evidence (see s 8(1)(aa) of the Bail Act 1977 (Vic)), he relied on Smith v The Queen (2001) 206 CLR 650 as to this issue. I proceeded on the basis that I was prepared to hear the evidence on the bail application, but that Smith would be relevant as to the admissibility of this identification evidence at trial and thus any arguments on this application as to the strength of the prosecution case.
Detective Brain said that a number of exhibits have been lodged with forensic examiners, including the firearms, a hair comb, and swabs from the MG. He said that traces of DNA had been located on the comb and that the applicant had provided his DNA voluntarily, but that a comparison between the two had not yet been undertaken.
Detective Brain said that the applicant had attended the Dandenong Police Station on 12 April 2024 at around 6:00 p.m. to report a robbery on him at 1:30 a.m. that morning in the Dandenong CBD in which his mobile phone was taken. He initially did not proceed with the complaint but returned approximately two hours later to make a statement, which was signed at 9:44 p.m. Detective Brain said an investigation was being undertaken by the Dandenong Police but that the applicant’s mobile phone had not been recovered.
Detective Brain said there was no issue with the suitability of the proposed address to which the applicant might be bailed. He said that he had observed the applicant’s room as being a separate self‑contained bungalow at the back of the property.
Detective Brain said his concern in relation to unacceptable risk was that the incident alleged was quite serious, involving the complainant receiving a fractured skull and having to have some of his skull removed to relieve pressure. Additionally, as the applicant had been drinking that evening, he held concerns as to the effect alcohol may have on him — such as becoming violent and using excessive force.
In cross‑examination, Detective Brain said that, from his perspective, there were no bail conditions which could render the applicant’s risk acceptable. However, he said that any conditions of bail would reduce the risk somewhat, and in particular he agreed that conditions not to contact the co‑accused, not to attend any licenced premises or consume alcohol, to abide by a curfew, not to contact any witnesses, and to report to police, would all reduce the risk somewhat.
CCTV footage and stills
As part of Detective Brain’s viva voce evidence, some CCTV footage of the incident was played and three images were tendered.
The first piece of CCTV footage is said to show the applicant getting out of the driver’s side rear door of the MG and his brother getting out of the passenger side rear door. Next, it shows the firearm being discharged by another passenger.
The second piece of CCTV played is said to show the applicant making contact with Mr Tang. It also shows the other events as described in the summary of evidence of the incident.
A still from that footage depicts Mr Tang lying on the ground while the person said to be the applicant is leaning down to pick something up off the ground, which is thought to be his hair comb.
Two photos taken by Detective Brain were also in evidence. One is an overall photo of the driver’s side of the car located in Burwood. A hair comb that is dark blue with a light blue handle and a light blue band beneath the comb teeth is next to the rear wheel. The second photo is a closer shot of the comb in the same position. The hair comb in these photos appears consistent with the item being picked up from the ground in the CCTV footage, but it is not clear.
Statement of the applicant
I was provided with a statement of the applicant signed at 9:44 p.m. on 12 April 2024. The contents of the statement may be summarised as follows.
On Friday 12 April 2024 at around 1:30 a.m., the applicant and his brother, Luak, were leaving the Orange Shisha Lounge in Dandenong. Three to five people approached them. The group were Sudanese in appearance and wearing dark coloured clothing. A male in the group said, “Give me your wallet and phone.” He grabbed the applicant’s jacket, and the applicant hit him. The rest of the group “jumped in”, and the applicant was pushed to the ground and hit to the left side of his face. After a short time, the group ran away. The applicant’s wallet had fallen to the ground and his iPhone had been taken from him.
Prior to this incident and after finishing work at 7:00 p.m., the applicant had been drinking heavily (he had had about 15 drinks), and had taken two Xanax. The applicant also attended the Players Hotel at some point during the night.
The applicant had attended the Dandenong Police Station at around 6:00 p.m. to report the matter but decided not to proceed. He later changed his mind, returned and made his statement.
Criminal history
The applicant has only one matter in his LEAP history. In February 2015, at the age of 17, he appeared in the Children’s Court on a charge of recklessly cause serious injury and various other charges, including assault in company, which I take to be alternatives. The record shows that the applicant completed the ROPES program and was discharged.
Before the advent of diversion in the Children’s Court,[10] the ROPES program was often employed in that court as a de facto form of diversion. Instead of proceeding to a determination of the charges, the child would be given the opportunity to participate with police in a series of physical challenges, such as a high ropes course and rock climbing, interspersed with education sessions about criminal records and antisocial behaviour. Upon satisfactory completion of the program, the Children’s Court would discharge the charges without a hearing. Like diversion itself, the aim of the program was to divert children away from the criminal justice system. Part of that aim was achieved by ensuring that the matter would not appear on the child’s criminal record check. While, in the applicant’s case, the matter is recorded on his LEAP history, it is described accurately as a discharge instead of a conviction or a finding of guilt.
[10]See Division 3A of Part 5.2 of the Children, Youth and Families Act 2005 (Vic), which was inserted in 2017 by s 59 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (Vic).
Thus, it is correct to say that the applicant has no prior findings of guilt or convictions.
Applicable tests for bail
Counsel agree that, on this application, because the applicant is charged with Schedule 2 offences (namely, armed robbery[11] and intentionally causing serious injury[12]), bail must be refused unless he satisfies the Court that a compelling reason exists that justifies the grant of bail.[13]
[11]See item 22(a) of Schedule 2 of the Bail Act 1977 (Vic).
[12]See item 6 of Schedule 2 of the Bail Act 1977 (Vic).
[13]See ss 4AA(3) and 4C of the Bail Act 1977 (Vic).
Further, if that test is met, bail still must be refused if the prosecution satisfies the Court that there is an unacceptable risk that, if released on bail, the applicant would endanger the safety or welfare of any other person.[14] If the Court is not so satisfied, bail must be granted.[15]
[14]See ss 4C(4), 4D(a) and 4E(1)(a)(i) and (b) of the Bail Act 1977 (Vic). There is no assertion that any other of the specified risks in s 4E(1)(a) are present.
[15]See s 4 of the Bail Act 1977 (Vic).
In considering each of these statutory tests, the Court must take into account the so‑called “surrounding circumstances” listed in s 3AAA of the Bail Act 1977 (Vic), which in this case include at least the following matters:[16]
[16]See ss 3AAA, 4C(3) and 4E(3)(a) of the Bail Act 1977 (Vic).
a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
b)the strength of the prosecution case;
c)the accused’s criminal history;
d)the accused’s personal circumstances and background;
e)the length of time the accused is likely to spend in custody if bail is refused;
f)the likely sentence to be imposed should the accused be found guilty of the offences charged; and
g)whether, if found guilty of the offences charged, the accused is likely to be sentenced to a term of imprisonment and, if so, whether the time the accused would spend in custody if not bailed would exceed that term of imprisonment.
Further, in considering whether a risk of the kind alleged is an unacceptable risk, the Court must consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[17]
Compelling reasons
[17]See s 4E(3)(b) of the Bail Act 1977 (Vic).
Applicant’s submissions
Mr Hooper, who appeared for the applicant, submits that compelling reasons justifying bail are established based on the following combination of factors.
First, Mr Hooper submits that there are a number of significant weaknesses in the prosecution case against the applicant as it stands currently. In that regard, he developed the following points in his written submissions and in the course of his oral argument:
Weak identification evidence: Mr Hooper submits that the Crown case on identity is weak. He submits that evidence as to the police’s opinion as to the identity of the alleged offender would be inadmissible at trial.[18] The complainant does not identify the applicant as the offender and there has been no photo‑board identification. There is no forensic evidence linking the applicant with the offending. While there were clothes seized matching the description of the alleged offender, none of the clothing is unique or can otherwise be linked to the incident. The applicant’s police statement could not be used for any higher purpose than to say that he was in the vicinity of the Players Hotel at some point on the evening of the incident. Mr Hooper submits that the jury would be left to look at both the CCTV footage and the applicant to consider whether they were satisfied, beyond reasonable doubt, that the person depicted is the applicant. It follows, Mr Hooper submits, that this is a profound weakness in the Crown case.
[18]See, e.g., Smith v The Queen (2001) 206 CLR 650.
Claim of right: Mr Hooper submits that, even if identity were capable of being proved, given the applicant’s police statement that a person had stolen his phone only a few hours prior to the incident, yet another weakness in the Crown case is the reasonable inference that he had an honest belief that he had a right to take the complainant’s property. This claim of right would go to the element of dishonesty in the theft, which is an element of robbery and armed robbery.
Absence of coincidence of act and intent: Further, for a robbery or an armed robbery to be established, the force applied must be causally connected with the stealing. More formally, the relevant provision requires that “immediately before or at the time of [stealing], and in order to do so, [the accused] uses force on any person or puts or seeks to put any person in fear that he or another will then and there be subjected to force”.[19] Thus, an additional weakness in the Crown case, submits Mr Hooper, is that, on the CCTV footage, it is plain that the application of force and the alleged theft occur at different times (and by different persons).
[19]See s 75(1) of the Crimes Act 1958 (Vic).
Absence of complicity: Further, Mr Hooper submits that there is no evidence upon which a jury could find that there was any agreement between the applicant and his brother in respect of the use and possession of a handgun or the theft of the bag. He submits there is also no evidence that the applicant was aware of the firearm possessed by his brother. Nor, in his submission, is there any evidence that the applicant intentionally assisted, encouraged or directed any of the offending of his co‑accused. On the contrary, the CCTV footage supports the view that his brother acted alone in having the handgun, in assaulting the complainant, and in taking the bag. This, Mr Hooper submits, is another major weakness in the Crown case.
Absence of serious injury: Mr Hooper submits that yet another weakness in the Crown case, or at least a triable issue, is whether there is sufficient evidence to establish that the complainant suffered a serious injury.[20]
[20]See the definition of “serious injury” in s 15 of the Crimes Act 1958 (Vic).
Second, Mr Hooper submits that the applicant’s personal circumstances are such that compelling reasons exist. These circumstances include the applicant’s full‑time employment, that his mother would not cope financially if he could not assist, the support he provides his siblings, that he has a stable relationship of two years, and the support he can receive from his family were he to be granted bail.
Third, Mr Hooper submits that the applicant’s good character favours a finding of compelling reasons. For this submission, he relies on the applicant’s lack of adult criminal history. He also submitted that the prosecution should not have alleged the applicant’s appearance in the Children’s Court, because the offences alleged must have been committed more than 10 years ago.[21] While the date of the appearance is known, the date of the alleged offences is unknown; and, in his submission, it is incumbent upon the respondent to demonstrate on what basis the offences are admissible. He submits that, in the alternative, if the record may be alleged, it should be afforded little weight because of the age of the alleged offences and the fact that their circumstances are not known.
[21]See the definition of “previous conviction” in s 3 of the Criminal Procedure Act 2009 (Vic).
I should add here that, for the reasons I gave earlier, the applicant’s appearance in the Children’s Court in 2015 did not result in convictions or findings of guilt. This, then, is reason enough to say that that appearance should not have been alleged.
Additionally, Mr Hooper relies on the applicant’s lack of prior convictions for breaches of bail, both in terms of his good character, and in their own right as a factor favouring a finding of compelling reasons.
In submitting that the applicant is of good character, Mr Hooper also relies on the applicant’s full‑time employment, that he is about to graduate from university, the financial assistance he provides to his mother, and the assistance he provides his siblings in both childcare and school runs. Additionally, it is not alleged that the applicant committed any offence during the two months between the incident for which he is now remanded and his arrest.
Fourth, Mr Hooper submits that the delay in awaiting trial and any sentence that would be imposed upon guilty verdicts favours a finding of compelling reasons. He submits that, given the weaknesses in the Crown case, this matter is unlikely to go to trial, but that, given those same weaknesses, it must proceed to trial unless the Crown has a change of heart. Given the complexities of the case and that there are three co‑accused, it is submitted that the delay is likely to be extended, which would mean realistically that a trial might not be listed until 2026.
While Mr Hooper concedes that, should the applicant be found guilty of all charged offences, any total effective sentence would be measured in years, he submits that, given the weaknesses in the Crown case, at this stage, the most the applicant could be convicted of is common law assault. If that were the result, Mr Hooper submits that it is unlikely the applicant would receive a term of imprisonment. In the alternative, he submitted that, should the applicant be convicted of all offences and receive a term of imprisonment, his time on remand, if not bailed, may well be longer than any non‑parole period fixed.
Respondent’s submissions
In oral submissions, Ms Arceri, who appeared for the respondent, indicated that the focus of her submissions, prior to the hearing, was going to be on an absence of compelling reasons. However, in light of my discussion with Mr Hooper during the hearing on the strength of prosecution case, while she maintained formal opposition to bail, Ms Arceri did not press me on any of the matters in her written submissions. I took this as a concession that it would be open for me to find compelling reasons.
Consideration
I am satisfied that the factors pressed by Mr Hooper, in combination, amount to compelling reasons justifying bail. Those factors include the following:
a) the weaknesses in the prosecution case;
b) the applicant’s personal circumstances;
c) the support the applicant has in the community and from his family;
d) the fact that he has no prior convictions or findings of guilt;
e) the absence of any concerns in relation to previous bail history; and
f) the length of time he is likely to spend in custody prior to the determination of his sentence, were he convicted of all offences charged, compared with any non‑parole period that might be fixed.
In my view, the most important factor going to whether there is a compelling reason in this case concerns the strength or otherwise of the Crown case. As the case stands, I find it difficult to see how the applicant could be convicted of the charges against him. Putting the issue of identity to one side, I struggle to see how it could be said that the applicant was complicit in the alleged offending of his brother. At the time of the assault depicted on the CCTV, the applicant is more concerned with his shoe than anything happening with the complainant. Further, he does not even appear to notice his brother pick up the bag or assault the complainant. Additionally, a defence of claim of right appears open.
Further, it might be thought that, if the applicant believed he had committed any offence at around at 5:35 a.m. on the morning of 12 April 2024, he would not have gone to the police later that same day to make a statement about being robbed of his phone at 1:30 a.m. that morning. In other words, if the applicant is the one depicted in the CCTV as losing his shoe and his hair comb during the incident, it might be said that his subsequent behaviour in reporting his phone as stolen suggests he did believe that he had a claim of right, or at least that he had not committed any offence, whether it be armed robbery or complicity in offences of intentionally causing serious injury and possession of a handgun. Thus, his behaviour in reporting his phone stolen bespeaks a consciousness of innocence, not a consciousness of guilt.
These matters concerning the weaknesses in the prosecution case are sufficient to cause me to find that there is a compelling reason justifying bail. The additional matters relied on by the applicant only reinforce that conclusion.
Unacceptable risk
Applicant’s submissions
On unacceptable risk, Mr Hooper submits that the Crown would have difficulty satisfying the Court that the applicant poses any meaningful risk at all, let alone one that is unacceptable.
Mr Hooper submits that the applicant’s lack of any adult criminal history, that he has rehabilitated himself since his Children’s Court appearance, that he is employed full‑time, that he has completed a university degree and that he has family support, combine to mean his risk is vanishingly small.
Mr Hooper also submits that bail conditions — such as a curfew, a restriction from licenced premises, a prohibition on contacting the co‑accused and witnesses, and a reporting condition — are capable of addressing any risk and rendering it acceptable.
Respondent’s submissions
Ms Arceri fairly submitted that there would be significant difficulties in trying to persuade the Court that the applicant poses an unacceptable risk of the kind asserted. As with compelling reasons, while Ms Arceri maintained a formal opposition to bail, in the end, I did not understand her to press an adverse conclusion in relation to unacceptable risk, especially when the conditions or bail proposed by Mr Hooper were weighed in the balance.
Consideration
The onus is on the respondent to prove there is an unacceptable risk of the kind asserted — that of endangering the safety of any person — were he granted bail.
I am not satisfied the respondent has discharged this onus. As I understood things, this was, in effect, conceded as open to me by Ms Arceri.
As I have said, I do not consider that the applicant’s appearance in the Children’s Court in 2015 resulted in convictions or findings of guilt. In any event, in the nine years since then, he has incurred no criminal convictions but instead has finished school, gone to university and is about to graduate with a bachelor’s degree in business in a few months’ time.
Until his arrest, he was living at home with his mother and seven of his siblings. He was helping his mother support the family, both financially and with things like school pick‑ups and drop‑offs. He was also assisting his sister with childcare.
Mr Hooper submits that I should be of the view that the applicant presents no risk at all. I understand that submission, but I do not think there is no risk. It is difficult to determine that any person presents no risk. Specifically in this matter, in circumstances where I have seen CCTV footage of the alleged offences and heard other things about the surrounding circumstances, and notwithstanding my view that the charges alleged are very unlikely to succeed, it is hard to say that there is no risk.
However, I am not satisfied that any such risk as there may be is at an unacceptable level. On the contrary, I am positively satisfied that any risk is at an acceptable level for the purposes of granting bail.
This is not only because of the absence of any criminal history, and the protective factors that would be involved in the applicant’s going back to work, and supporting and being supported by his family, but also because the conditions that I shall impose assist in mitigating any risk.
Conclusion and order
Accordingly, I am satisfied that the application for bail must be granted.
The applicant will be admitted to bail on his own undertaking and on the following conditions:
(a) Mr Jal is to reside at [redacted] (“the residence”);
(b) Mr Jal is to report to the [redacted] police station each Monday, Wednesday and Friday;
(c) Mr Jal is not to leave his place of residence between the hours of 11:00 p.m. and 7:00 a.m. (“the curfew hours”), except in the company of his mother or his sister Nyaruach Jal;
(d) Mr Jal is to present himself at the door of the residence during the curfew hours, if requested to do so by a member of Victoria Police;
(e) Mr Jal is not to leave Victoria;
(f) Mr Jal is not to attend any points of international departure;
(g) Mr Jal is to surrender to the informant or her nominee any passport or other travel document held by him within 24 hours of his release from custody, and he is not to apply for any further passport or other travel document;
(h) Mr Jal is not to contact witnesses for the prosecution, except the informant or her nominee;
(i) Mr Jal is not to contact his co‑accused, namely Annie Nguyen, Tristan Le, and Luak Jal;
(j) Mr Jal is not to attend any licenced venue; and
(k) Mr Jal is to appear at the Magistrates’ Court at Melbourne for committal mention at 9:30 a.m. on 31 July 2024, and thereafter as directed by that court.
---
0
2
0