Re Jock
[2021] VSC 561
•1 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0217
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by KOANG JOCK |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 September 2021 |
DATE OF JUDGMENT: | 1 September 2021 |
DATE OF REVISED REASONS: | 8 September 2021 |
CASE MAY BE CITED AS: | Re Jock |
MEDIUM NEUTRAL CITATION: | [2021] VSC 561 |
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CRIMINAL LAW — Application for bail — Charges of intentionally causing serious injury in circumstances of gross violence and alternative charges, affray — Delay — Impact of the COVID-19 — Strength of the prosecution case — Parity — Supports in the community — Compelling reason established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4C, 4D, 4E — Cases cited: Rodgers v The Queen [2019] VSCA 214; Director of Public Prosecutions (Cth) v Abbott 97 A Crim R 19; Bchinnati v Director of Public Prosecutions (Vic) (No 2) [2017] VSC 620.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Angela Sharpley | Slades & Parsons Criminal Lawyers |
| For the Respondent | Ms Francesca Holmes | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Koang Jock (‘the applicant’), who is 23 years old. He is one of four co-accused charged following a violent altercation with three men in Cranbourne West in the early hours of 1 January 2021. The applicant seeks bail in relation to the following charges brought by Detective Leading Senior Constable Adam Meagher (‘the informant Meagher matter’):
(a) intentionally causing serious injury in circumstances of gross violence (three charges);[1]
[1]Contrary to s 15A of the Crimes Act 1958 (Vic).
(b) recklessly causing serious injury in circumstances of gross violence (three charges);[2]
[2]Contrary to s 15B of the Crimes Act 1958 (Vic).
(c) intentionally causing serious injury (three charges);[3]
[3]Contrary to s 16 of the Crimes Act 1958 (Vic).
(d) recklessly causing serious injury (three charges);[4]
(e) affray;[5] and
(f) common assault.[6]
[4]Contrary to s 17 of the Crimes Act 1958 (Vic).
[5]Contrary to s 195H of the Crimes Act 1958 (Vic).
[6]Contrary to common law.
The applicant has been remanded in custody since 1 January 2021, a period of 243 days as at the day of this application. He was refused bail in the Melbourne Magistrates’ Court on 5 May 2021 on the basis that he failed to show a compelling reason that justified the grant of bail and that he posed an unacceptable risk within the meaning of the Bail Act 1977 (Vic) (‘the Act’). I note that the applicant being found to have failed to establish a compelling reason was sufficient to dispose of the application, without a finding in relation to risk.
By application filed on 18 August 2021, the applicant seeks a grant of bail in this Court. The application is opposed.
The informant Meagher matter is next listed for committal hearing, which is part-heard, in the Melbourne Magistrates’ Court on 25 October 2021. The committal hearing commenced on 5 July 2021. Ms Holmes, counsel for the respondent at this application, appeared as counsel for the prosecution in that committal. Ms Holmes has informed me that the prosecution sought an adjournment of the committal so that DNA analysis evidence could be obtained from samples taken from the crime scene. That result has now been provided in preliminary form, a matter to which I will return.
The alleged offending
The incident
On New Year’s Eve 2020, the applicant and the three co-accused, Deng Atem, Duach and Dktour Ton, attended a party at the home of TS in Cranbourne West. TS’s cousin had invited Mr Ton to the party, who in turn, had invited several of his friends, including the applicant, Mr Atem and Mr Duach. The group stayed at the party until shortly after midnight, when TS asked them to leave.
The group left the party without issue, however, TS observed them start to yell, push and shove each other as they reached a nearby street. At approximately 12:55 am, police received reports of a brawl at the intersection of Polson Way and Paramount Boulevard in Cranbourne West. Police attended and spoke with the group on Morialta Road, but left a short time later. CCTV footage obtained from that area from approximately 1:23 am onwards depicts the group walking with three unknown males towards Push-Pea Way in Cranbourne West.
At about 1:30 am, a member of the group approached AK, KG and BM, who were celebrating New Year’s Eve at a friend’s house on Push-Pea Way. That member of the group was described as Sudanese, 6 foot 2 inches tall, with short black hair, wearing a white t-shirt and black pants. He was in the company of another Sudanese male, described as being approximately 5 foot 8 inches to 5 foot 10 inches tall, wearing a black puffer jacket and jeans. The prosecution alleges that the second described male was the applicant. The first male asked AK for cigarettes and alcohol, who replied that he was not interested and that he should go away. The male attempted to ‘fist bump’ AK, but was again rebuffed. He allegedly walked away with the applicant, before the pair returned several minutes later. It is alleged that the first male was now in possession of a stainless steel kitchen sink, while the applicant was holding a piece of timber. The first male began to argue with AK and KG, causing Mr Atem and Mr Duach to run towards the altercation.
It is the prosecution case that the applicant and co-accused proceeded to punch and kick AK and KG, knocking them to the ground. At the same time, one of the accused allegedly swung the kitchen sink towards KG, but missed and connected with BM, causing him to fall over. It is alleged that the applicant and co-accused continued to punch and kick the three complainants, and stomped on BM’s head. AK and BM lost consciousness during this time.
While this was occurring, friends of the three complainants who were at the same party had run inside the residence on Push-Pea Way. One of those friends, HS, managed to record footage on her phone from a window inside the house. In that footage, one of the offenders is depicted stomping on BM’s head 11 times, kicking him in the face and filming his own actions before being pulled away by another member of his group.
A witness to these events, MA, was walking past the attack and attempted to intervene, but was then set upon by two members of the group who punched him as he tried to call ‘000’. A further witness at a neighbouring property called ‘000’, during which time the offenders fled on foot.
Police attended a short time later and provided first aid to the three complainants. They were each transported to hospital for treatment, including BM, who was air-lifted to the Alfred Hospital with life-threatening injuries. He suffered significant head trauma, was placed in an induced coma for two weeks, and continues to receive ongoing treatment for an acquired brain injury. KG was treated for extensive facial trauma, and AK underwent surgery for a laceration to his ear and skull fractures.
There is no doubt that the charges the applicant faces in this matter are extremely serious and, if proven, the community would find the applicant’s conduct entirely repelling.
Arrest and remand
At approximately 2:00am on 1 January 2021, the applicant and Mr Atem were arrested in a paddock near the intersection of Missens and Volk Roads in Cranbourne West. It is alleged they were hiding in trees at the time of their arrest. The applicant was wearing a red and black puffer jacket, a white t-shirt and jeans, and was observed to have a distinctive limp said to match that observed in the CCTV footage obtained from Morialta Road. Mr Atem was wearing a white blood-stained t-shirt, blue track pants and red shoes. At about 2:50am, Mr Duach and Mr Ton were arrested at a nearby 7- Eleven store. Mr Duach was found in possession of KG’s phone. The applicant and three co-accused were each taken to the Dandenong Police Station, where the applicant provided a ‘no comment’ record of interview. The applicant and three co-accused were charged and remanded in custody.
Mr Atem and Mr Ton are both on bail. Mr Atem was granted bail in the Melbourne Magistrates’ Court on 2 January 2021. Mr Ton was granted bail in that Court on 13 August 2021. Mr Duach remains on remand and he has not made an application for bail in this matter. These circumstances raise the issue, to some degree, of parity concerning bail. This is particularly so in relation to the grant of bail to Mr Ton. It was submitted that the applicant and Mr Ton were similar in terms of both their circumstances and their alleged involvement in the offending.
Outstanding matters
Application to revoke community correction order
At the time of the alleged offending in this matter, the applicant was subject to an 18-month community correction order (‘CCO’) imposed in the Dandenong Magistrates’ Court on 6 April 2020 for charges of reckless conduct endangering serious injury, refusing to undergo a breath test, and refusing to undergo a preliminary oral fluid test. He had 109 hours of a total of 200 hours of unpaid community work outstanding on that CCO at the time he was remanded in the informant Meagher matter. There is some prospect that Community Correctional Services (‘Corrections’) will make an application to cancel the applicant’s CCO. I was told by Ms Sharpley, counsel for the applicant, that Corrections have told the applicant that he would be able to complete the outstanding work hours on that CCO should he be released on bail.
Informant Goold matter (summons)
On 8 March 2021, the applicant was charged on summons with several driving offences (‘the informant Goold matter’). That matter is next listed for mention in the Dandenong Magistrates’ Court on 26 November 2021.
The applicable legislation
In determining this application for bail, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Act.[7]
[7]Bail Act 1977 (Vic), s 1B(2).
In the present matter, the applicant is accused of committing Schedule 2 offences within the meaning of s 3 of the Act, namely, intentionally causing serious injury in circumstances of gross violence,[8] recklessly causing serious injury in circumstances of gross violence,[9] and intentionally causing serious injury.[10] Bail must therefore be refused unless the applicant satisfies the Court that a compelling reason exists that justifies the grant of bail.[11] In determining whether a compelling reason exists, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those prescribed by s 3AAA(1) of the Act.[12]
[8]Ibid, Schedule 2, item 4.
[9]Ibid, Schedule 2, item 5.
[10]Ibid, Schedule 2, item 6.
[11]Above n 7, ss 4AA(3), 4C(1)-(2).
[12]Ibid, s 4C(3).
The meaning of ‘compelling reason’ is not defined in the Act but has been considered by this Court on a number of occasions. In Rodgers v The Queen, Beach, Kaye and Ashley JJA set out the relevant principles as follows:[13]
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant's detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.
[13][2019] VSCA 214, [43].
If satisfied that a compelling reason exists, the Court must apply the unacceptable risk test.[14] That is, bail must be refused if the respondent satisfies the Court that there is an unacceptable risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act.[15] In this application, the respondent is primarily concerned that the applicant poses an unacceptable risk of further offending, as opposed to flight. In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate risk so that it is not unacceptable.[16]
[14]Above n 7, s 4D(1)(b).
[15]Ibid, s 4E(1)-(2).
[16]Ibid, s 4E(3).
The applicant’s personal circumstances
The applicant is 23 years old. He was born in Sudan and arrived in Australia with his family in 2008 when he was approximately 10 years of age. His father passed away in 2010, followed by his older brother in 2016.
The applicant attended Pakenham Secondary College up until year 11 and thereafter completed studies in carpentry, building and construction at a Dandenong trade school. He went on to work with a Glen Waverley company manufacturing windows and aluminium, but lost his employment due to the economic impact of COVID-19.
Prior to his remand, the applicant lived with his mother and two siblings in their family home in Pakenham. He proposes to return to that address if granted bail.
Criminal history
The applicant has a criminal history commencing in 2016, which includes findings of guilt for various driving and dishonesty offences. He was convicted and sentenced in the County Court on 6 October 2017 for charges of robbery, aggravated burglary, theft (four counts), armed robbery, and burglary (three counts) and sentenced to 15 months’ imprisonment, followed by a three-year CCO. A breach of that CCO by reason of further offending was found proven in the County Court on 24 September 2020. The CCO was confirmed and finalised on 30 November 2020, with the applicant having successfully completed 300 hours of unpaid community work. One would hope that that term of imprisonment and subsequent CCO would have discouraged the applicant from engaging in further criminal offending.
As stated, the applicant is also currently subject to an 18-month CCO imposed in the Dandenong Magistrates’ Court on 6 April 2020 and a summons to answer several driving charges in the informant Goold matter.
The applicant’s contentions
Ms Sharpley of counsel relied on the following matters, in combination, to show a compelling reason that justifies the grant of bail and that the risk of releasing the applicant on bail would not be unacceptable.
Strength of the prosecution case
As I understand it, the applicant concedes that he was present at the scene of the alleged offending, but denies participating in the attack. It was submitted that there are issues concerning both the applicant’s identification and alleged role in the assault. In particular, Ms Sharpley relied on the fact that the applicant was wearing a distinctive bright red and black puffer jacket at the time of the offence, which is not described in any witness statements made to police. The applicant was, however, wearing a white t-shirt which has undergone preliminary forensic analysis. This analysis detected the presence of blood matching that of two of the complainants.
While acknowledging that the prosecution case has strengthened since the DNA analysis of the applicant’s t-shirt, it was submitted that such results are preliminary and subject to change. It was further submitted that the prosecution has not yet provided photographic evidence of the bloodstains on the applicant’s clothing, which might suggest how the blood transferred to the applicant’s t-shirt. Further, it was noted that witnesses state that there were approximately ‘a dozen’ males present at the scene, of whom only four have been charged for their alleged participation in the attack. It was submitted on behalf of the applicant that there are a number of co-offenders who remain to be identified and charged.
Family support and stable accommodation
The applicant has the support of his mother and two siblings, who have remained in contact with him while he is in custody. If granted bail, the applicant proposes to return to reside with his family at [redacted] in Pakenham.
Availability of treatment or bail support services
Ms Sharpley also relied upon the support of Youth Support Worker Mr Jeffah Thabach, from the Centre for Multicultural Youth, who has known the applicant and his family since their arrival in Australia in 2008. In a letter dated 13 April 2021, which was prepared for the purpose of the bail application in the Magistrates’ Court in May 2021, Mr Thabach states that he has met regularly with the applicant during his time on remand to provide him with support and mentorship, and proposes to continue to offer this support if he is released on bail. Mr Thabach gave evidence on this application. As I followed Mr Thabach’s evidence, he has contacted the applicant only twice since the applicant’s bail application was refused in May 2021. However, Mr Thabach made it clear in his evidence that he will continue to support the applicant, particularly if the applicant is released on bail, and do whatever he can to ensure the applicant’s compliance with the law and any conditions of bail. In my opinion, Mr Thabach is a helpful influence so far as the applicant is concerned.
In addition, the applicant has support available to him from his local church community. Pastor Tut Jock of the Clarinda Nuer Presbyterian Church has known the applicant and his family for approximately 10 years. In a letter dated 14 April 2021, presumably also prepared for the May 2021 bail application in the Magistrates’ Court, he advises that the applicant has been actively involved in a church youth choir program over that time and has regularly attended bible studies. Mr Tut Jock states that he will provide emotional and personal support to the applicant in the event he is granted bail, and will encourage his continued engagement with the church. The applicant’s available support in the community is positive, and stands at odds with the alleged offending on 1 January 2021.
The applicant has been assessed for his suitability to engage with supports through the Court Integrated Services Program (‘CISP’). A CISP report dated 31 August 2021 advises that the applicant is not in need of ongoing case management through that service due to the existence of support from his community, church and family. CISP do, however, recommend that the applicant attend his general practitioner to obtain a mental health care plan for referral to individual counselling. The assistance of the CISP report is very limited. It recommends only that the applicant self-refer to various services.
Youth
As I earlier noted, the applicant is 23 years old and was 22 at the time of the alleged offending in this matter.
Delay
The applicant has been remanded in custody since 1 January 2021. The committal hearing for the informant Meagher matter commenced on 5 and 6 July 2021, but was adjourned part-heard to 25 October 2021 for reasons I have already outlined. It was submitted that if the applicant is committed to stand trial, based on current County Court protocols, he will not receive a trial date for at least 18 months. This delay could ultimately extend to three years, meaning the applicant would face a significant period of time on remand should he not be granted bail. It was also submitted that there is a significant degree of uncertainty as to when the applicant’s trial will proceed given that current lockdowns necessitated by the COVID-19 pandemic are impeding the running of criminal trials. It did not appear to be in issue at this application that delay between charge and trial will almost certainly be a period of some three years.
COVID-19 and onerous conditions in custody
The current COVID-19 restrictions, and the pandemic generally, have presented numerous difficulties for people in custody. The applicant has not been permitted personal visits and has limited access to education and courses which might assist his rehabilitation whilst remanded in custody.
It was submitted that conditions in custody are a relevant factor in this application, especially given the significant and uncertain delay the applicant faces before the informant Meagher matter proceeds to trial.
Parity
It was submitted that the principle of parity is relevant in this application, noting that Mr Atem and Mr Ton have each been granted bail in this matter. While acknowledging that Mr Atem does not have a criminal history, it was noted on behalf of applicant that Mr Atem was arrested while wearing a bloodstained t-shirt and clothing matching the description provided by several witnesses. With respect to Mr Ton, it was submitted that he was arrested close to the scene of the alleged offending, with preliminary analysis indicating the presence of KG’s blood on his shoes. It was submitted that parity has greater relevance insofar as it relates to Mr Ton, noting that he is 20 years of age and has a relevant criminal history.
Surety
The applicant’s mother, Nyabobe Reng, proposes to offer a surety in the amount of $5,000. Whilst $5,000 is not a significant sum of money in the context of bail applications generally, Ms Holmes appropriately accepted that this is a very substantial amount of money for Ms Reng given her financial circumstances.
Unacceptable risk
It was submitted that appropriate conditions of bail would moderate any risk that the applicant’s release may pose to an acceptable level. Proposed conditions of bail included the applicant residing at a fixed residence, curfew, reporting, remaining within Victoria, and prohibiting his contact with prosecution witnesses (save for the informant) and the co-accused.
The respondent’s contentions
Ms Holmes of counsel, on behalf of the respondent, opposed the application on the basis that the applicant had failed to show that a compelling reason exists that justifies the grant of bail. Bail was also opposed on the basis that the applicant posed an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail.
The respondent relied on a report prepared by the informant for the purposes of this application, which addresses the surrounding circumstances of this application in some detail.
Strength of the prosecution case
It was submitted on behalf of the respondent that the prosecution case against the applicant is strong. Ms Holmes submitted that the ‘landscape’ of the case has changed now that a preliminary DNA analysis of an apparent blood stain on the applicant’s t- shirt has been linked to AK. I was told that the likelihood ratio is of the order of 100 billion to one, however the analysis is yet to be reviewed and therefore that evidence has not been finalised. As Ms Sharpley appropriately conceded, if AK’s blood is on the applicant’s t-shirt the case against the applicant is stronger than it otherwise would be.
Family support and stable accommodation
The applicant was residing with his mother and siblings at their Pakenham home at the time of the alleged offending in the informant Meagher matter, and at the time of his previous offending. It was submitted that this somewhat diminishes the value of the applicant’s proposed family support and accommodation.
Availability of treatment or bail support services
Similarly, it was submitted that the community supports upon which the applicant relies were available to him prior to the alleged offending in the informant Meagher matter.
Criminal history
It was submitted that while the applicant successfully completed all 300 hours of community work required by the CCO imposed in the County Court on 6 October 2017, he was nevertheless found to have contravened that CCO in the County Court on 24 September 2020.
Delay
It was conceded on behalf of the respondent that the applicant faces a lengthy period of time awaiting trial in this matter.
Surety
It was submitted that, while the proposed surety may be a substantial amount for the applicant’s family, it does not alleviate the concern that the applicant poses an unacceptable risk of endangering the safety and welfare of any person or committing an offence while on bail.
Unacceptable risk
It was submitted the applicant poses an unacceptable risk of committing further offending if he were to be released on bail. It was not submitted that there is an unacceptable risk of flight or that the applicant would otherwise fail to surrender himself to the Court when required to do so.
Conclusion
In deciding this application, I must first decide whether or not the applicant has established a compelling reason justifying the grant of bail.
The primary reason relied upon to establish a compelling reason was the likely delay in this matter finalising. It does seem inevitable that the delay will be in the order of three years, and possibly longer. As things presently stand, there are a very large number of cases outstanding in the County Court, where the applicant’s trial will proceed, and significant uncertainty about how and when the backlog in that court is going to be resolved. At the time of this ruling, Victoria is in the third week of a sixth lockdown. It is becoming apparent on a day-to-day basis that this lockdown, which stands in the way of conducting criminal trials, is not going to lift in the immediate future. As to whether provision can be made to enable trials to resume during lockdown, I am by no means clear. I simply do not know whether that is possible or not. Some attempt was made towards the end of 2020 and start of 2021 to conduct trials in a COVID safe manner, however as I understand it this is not currently occurring. Large sections of the community are suffering significantly as a result of COVID-19 and the lockdowns necessary to curtail the virus. This is especially so for people remanded in custody, who are subject to harsh custodial conditions and ever increasing delays before their matters reach trial. In my view, something simply must be done in the immediate future to try to expedite the hearing of trials and make doing so as safe as is possible within the context of the pandemic. What measures will be taken remain a mystery.
As to the strength of the prosecution case, there remain triable issues. I accept Ms Holmes’ submission that the bloodstain on the applicant’s t-shirt strengthens the case against him, making it less circumstantial in nature. However, what the bloodstain evidences about the applicant’s role in the alleged offending is not clear. Of itself, it may or may not demonstrate that the applicant was an assailant. At this stage, this is unknown. There also remain issues, as I understand it, about no witness identifying the applicant as an assailant and the variation between what clothing the alleged assailants were wearing and the clothing the applicant was wearing.
Parity is a relevant consideration in this application, particularly in relation to Mr Ton.[17] Mr Ton has a criminal history and the case against him is, at least to some degree, similar to the case against the applicant.
[17]Director of Public Prosecutions (Cth) v Abbott 97 A Crim R 19, 29 (Gillard J); Bchinnati v Director of Public Prosecutions (Vic) (No 2) [2017] VSC 620 [70], [73] (Croucher J).
I accept that the surety offered by the applicant’s mother is a significant sum of money for her. One would hope that the applicant’s connection with his family would be sufficient to deter him from breaching his bail and causing his mother significant financial loss.
In all the circumstances, albeit with a degree of hesitation, I am satisfied that the applicant has established a compelling reason justifying the grant of bail.
I am further satisfied that, with the imposition of strict conditions and given the family and community supports available to the applicant, the risk of releasing the applicant on bail is not unacceptable. This risk will continue only until the resumption of the committal, at which time the applicant’s bail will be able to be again considered by the presiding Magistrate. I propose to add conditions which involve this Court monitoring the applicant’s behaviour between now and the committal resuming.
I will grant bail and make the following orders:
1.The said Koang Jock (‘the applicant’) be admitted to bail on his own undertaking with a surety in the amount of $5,000 by Nyabobe Reng and with the following conditions:
(a)The applicant reside at [redacted], Pakenham in the State of Victoria (the ‘place of residence’), and not change his place of residence without the leave of this Court;
(b)The applicant not leave his place of residence between the hours of 9:00 pm and 6:00 am (‘curfew hours’);
(c)The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of the informant Detective Senior Constable Adam Meagher or his nominee, being an authorised member of Victoria Police;
(d)The applicant report to the Officer in Charge of the Pakenham Police Station or their nominee each day between the hours of 9:00 am and 7:00 pm;
(e)The applicant not contact or associate with, directly or indirectly, any witness for the prosecution other than the informant or his nominee;
(f)The applicant not contact or associate with, directly or indirectly, any of his co-accused;
(g)The applicant not attend within 2 kilometres of Push Pea Way, Cranbourne West, in the State of Victoria;
(h)The applicant not leave the State of Victoria;
(i)The applicant not attend any points of international departure;
(j)The applicant surrender any current passport or travel document in his possession or control to the informant or his nominee within 24 hours of being released on bail;
(k)The applicant engage in treatment and comply with all lawful directions of the Court Integrated Services Program (‘CISP’);
(l)The applicant continue to engage on a weekly basis with Mr Jeffah Thabach and follow all lawful directions of Mr Jeffah Thabach;
(m)The applicant appear:
(i)At this Court, for the purpose of judicial monitoring, on 15 September 2021 at 9:30 am and thereafter as directed by this Court; and
(ii)At the Magistrates’ Court in Melbourne on 25 October 2021 at 9:30 am and thereafter as directed by the presiding Magistrate.
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