Re Kontogeorgis
[2022] VSC 44
•31 January 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0379
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by BILL KONTOGEORGIS |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 January 2022 |
DATE OF JUDGMENT: | 31 January 2022 |
CASE MAY BE CITED AS: | Re Kontogeorgis |
MEDIUM NEUTRAL CITATION: | [2022] VSC 44 |
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CRIMINAL LAW – Application for bail – Application for bail – Applicant charged with reckless conduct endangering serious injury, intentionally causing injury, unlawful assault, criminal damage, careless driving, contravening an interim FVIO – Strength of prosecution case – Delay – Lengthy criminal history – Exceptional circumstances not found – Unacceptable risk – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Kounas | Oxford Partners |
| For the Respondent | Ms A Phelan | Victoria Police |
HIS HONOUR:
Introduction
By application dated 20 December 2021 Bill Kontogeorgis (the ‘applicant’) applies for a grant of bail from this Court.
The applicant was arrested on 22 November 2021 and remanded in custody on charges brought by Senior Constable Ashleigh Thompson, as follows:
· reckless conduct endangering serious injury;
· intentionally causing injury;
· recklessly causing injury;
· unlawful assault (two counts);
· criminal damage;
· careless driving;
· making a threat to kill; and
· contravening an interim family violence intervention order (‘FVIO’).
Later, on 29 December 2021, the applicant was charged by Constable Luke Wellner with further offences in the same matter, as follows:
· possessing a prohibited weapon; and
· possessing a controlled weapon without excuse.
The applicant has been twice refused bail in the Magistrates’ Court. First, on 22 November 2021 on the basis that he failed to demonstrate exceptional circumstances that justified the grant of bail, and that he posed an unacceptable risk of committing an offence whilst on bail and endangering the safety or welfare of any person. Second, on 13 December 2021, he was denied bail on the basis that he failed to establish new facts or circumstances under s 18AA of the Bail Act 1977 (Vic) (‘the Act’).
The matter is listed on 1 June 2022 at Sunshine Magistrates’ Court for a two-day contested hearing.
The application
The application is supported by the affidavit of Janine Alcantara, principal solicitor, dated 20 December 2021, attaching a series of exhibits, some of which will be noted below. The applicant supplemented his written material with oral submissions on the hearing of the application.
In response to the application, the respondent filed an affidavit sworn by Danielle Pastoors, a legal practitioner employed by Victoria Police, dated 17 January 2022, also attaching a series of exhibits, including a report prepared and authored by Senior Constable Luke Wellner dated 6 January 2021.
The respondent also relies on written submissions dated 24 January 2022, which were also supplemented by oral submissions.
The parties agree that the exceptional circumstances test applies to this application, and accordingly it proceeded on that basis, without objection. Further, both parties indicated that they were content to proceed by relying on the filed written material, and oral submissions. The parties did not require viva voce evidence to be called, and neither did the Court.
The alleged offending
Background
There are two complainants in this matter, Tania Kontogeorgis (‘TK’) and Michael Kostrzewa (‘MK’). The applicant was married to TK for twenty years. The couple separated in or around 2016 and are involved in ongoing family law proceedings. MK is TK’s new partner.
Some time prior to the alleged offending, the applicant filed an enforcement application to sell his and TK’s joint home, where she was living with MK. Subsequently, and prior to the alleged offending, the house where the applicant was living in Caroline Springs was vandalised. The applicant believes TK and MK were responsible, and has reported as much to the police.
The Informant Thompson matters
The following summary of events represents the allegations against the applicant made by the prosecution, and as such, are not yet proven.
The prosecution alleges that at 4:00pm on 21 November 2021, TK and MK were driving on Ballarat Road in Deer Park when the back of their car was hit in the rear by the applicant’s car in the service road. The applicant reversed his car after the complainants had exited their vehicle and it is alleged he then drove it at MK. MK attempted to jump out of the way, but was struck, rolled across the bonnet of the applicant’s car, fell to the ground and hit his head. The applicant then attempted to drive towards TK, but his car became bogged on the nature strip located off the side of the service road.
TK and MK ran towards the applicant’s car and held the door shut to prevent him from exiting. From a seated position the applicant attempted multiple times to lunge at the complainants with a knife causing multiple stab wounds to MK’s arms and hands. The applicant was shouting “I want to fucking kill you”.
TK took a shovel and metal bar from a witness’ motor car and tried to use them to disarm the applicant. The applicant got out of his vehicle holding a knife in a state of readiness. The applicant overpowered TK and removed one of the items from her hands. MK then hit the applicant to the head with the shovel, punched him three times to the head, and removed the knife from his hand. He appeared to be unconscious at that stage and lying on the ground when struck with the shovel. TK and MK then left the scene and drove themselves to Sunshine Hospital, where MK was treated for multiple lacerations to both hands and forearms before discharging himself.
Paramedics arrived to find TK and MK leaving the scene of the incident and then rendered assistance to the applicant, who was unconscious and lying face down in front of his car. After he regained consciousness, the applicant was transported to Royal Melbourne Hospital for treatment. He sustained significant bruising to the forehead and left eye, and lacerations to his arm.
It appears that some of the events on the side of the service road were witnessed by a number of people, resulting in a number of instances where dash-cams and mobile telephones have recorded some of what occurred.
Later that day the applicant was arrested and interviewed at the Sunshine Police Station. He denied intentionally hitting the complainants’ car and stated he found a knife in the centre console of his car and only made contact with MK due to being in fear of him, because MK was preventing him from exiting his car.
On 22 November 2021, police executed a search warrant of the applicant’s car and located a knife and homemade knuckle dusters.
Outstanding matter
In addition to the matters the applicant is currently on remand for, he is charged on summons for the following charges.
The Wainwright matter
On 6 August 2020 an interim FVIO was issued against the applicant, protecting his 17-year old son, NK. The order included a condition which prohibited the applicant from contacting his son by any means, and not to commit family violence on him.
Between 8 September and 12 November 2020 it is alleged the applicant sent NK a number of text messages in contravention of the FVIO. The applicant was charged on 7 July 2021 with persistently contravening a FVIO on multiple occasions over a two-month period. At present, there is one charge before the Court, but the respondent foreshadows there may be a later amendment to that charge.
A final FVIO was made in the Sunshine Magistrates’ Court on 8 December 2020, which it is understood has now lapsed. This matter is listed on 29 April 2022 at the Sunshine Magistrates’ Court for a mention hearing.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Act.[1]
[1]The Act, s 1B(2).
The applicant is accused of a Schedule 2 offence[2] whilst subject to summons for a Schedule 2 offence, namely persistent contravention of a FVIO.[3] Therefore bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justifies the grant of bail.[4] In determining whether exceptional circumstances exist, the Court is obliged to take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[5]
[2]Namely make threat to kill in a family violence context (sch 2, item 7).
[3]Namely persistent contravention of a FVIO (sch 2, item 19).
[4]The Act, ss 4AA(2)(c)(ii), 4A(1A)-(2).
[5]Ibid s 4A(3).
If satisfied that exceptional circumstances exist, the Court must then move to consider the unacceptable risk test.[6] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[7] In determining whether a risk is unacceptable, the Court must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[8]
[6]Ibid ss 4A(4), 4D(1)(a).
[7]Ibid ss 4D(2)-(3), 4E.
[8]Ibid s 4E(3).
Finally, s 5AAAA(1) of the Act requires the Court to make inquiries of the respondent as to whether there is in force against the applicant a FVIO, family violence safety notice or another recognised domestic violence order. Further, as the applicant is charged with family violence offences, the Court must consider whether, if he were released on bail, there would be a risk that he would commit family violence, and if so, whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.[9]
[9]Ibid s 5AAAA(2).
The respondent has confirmed that at the time of the alleged offending the applicant was subject to an interim FVIO, listing TK as the AFM. The order was granted on 11 August 2021 and includes full no-contact conditions, with exceptions to do anything permitted under a Family Law Act order and communicate through a lawyer or mediator. This order was in operation at the time of the alleged offences, and still remains in effect.
The applicant is also subject to a family violence safety notice (‘FVSN’), listing complainant MK as the AFM. The notice includes full no contact conditions. This order came into operation as a result of the present alleged offences, and remains effective until 31 December 2030.
The exceptional circumstances test
In Re Strachan,[10] Lasry J observed:
[10][2021] VSC 538.
The Act does not define what is meant by ‘exceptional circumstances’. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:
a) The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
b) Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
c) Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[11]
[11]Ibid at para [27].
In determining this application I will apply the test as set out by Lasry J.
The applicant’s personal circumstances
The applicant is 59 years old.
He has two adult children with complainant TK, who reside with their mother. Prior to his remand, the applicant resided with his father in Caroline Springs.
The applicant was employed as a truck driver with ERB Resources Pty Ltd, and the applicant expects he will resume this employment if granted bail.
Criminal history
The applicant has criminal history in Victoria spanning 1983 to 2018, including the following court outcomes:
· May 2015: the applicant was fined $600 with conviction for three counts of contravene a FVSN and making a threat to kill. This relates to two incidents whereby the applicant was acting aggressively towards complainant TK, and subsequently contravened a FVSN.
· Jun 2016: the applicant was fined $1,000 with conviction for offences of contravene FVIO, unlawful assault and fail to answer bail. This involved a dispute between the applicant and complainant TK, whereby the applicant spat on the complainant.
· Sep 2016: the applicant was fined $850 with conviction for offences of criminal damage and unlawful assault. This involved a dispute between the applicant and his employer, whereby the applicant punched the complainant multiple times and threw a rock at his vehicle.
· Feb 2017: the applicant was fined $3,000 with conviction for offences of stalking and four counts of persistent contravention of FVIO. These offences related to the applicant sending multiple abusive and threatening messages to complainant TK in contravention of the FVIO.
· Apr 2018: the applicant was fined $800 with conviction for criminal damage. This involved a dispute between the applicant and complainant TK, whereby the complainant kicked the applicant’s vehicle causing a dent. The applicant then threw a paver through the rear window of the complainant’s vehicle, and the complainant threw a paver at the applicant’s windscreen causing a deep scratch.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail. As noted above, the applicant addressed oral submissions to the Court in addition to his written material supporting the application of bail. The applicant noted in oral argument that by themselves these individual matters might be regarded as “fairly ordinary” but when considered in combination with each other satisfy the exceptional circumstances test.
Strength of the prosecution case
The applicant submitted that the real crux of the exceptional circumstances argument put forward relates to the video footage of the incident in Ballarat Road. The applicant referred to one particular piece of footage which captured the majority of the incident, being referred to as the “Crimestoppers footage”. It was pointed out that the footage did not show the lead up to the incident, but showed MK attempting to keep the applicant inside his car, the applicant producing a sharp implement, and the incidents that followed which included a shovel being produced by TK, leading MK to proceed to beat the applicant violently. It was submitted that the actions of the complainants could be relied upon as exceptional circumstances for two reasons. First, because the footage can be seen to undermine the credibility of the complainants, which will be front and centre due to the alternative narrative at play. The applicant advanced the proposition that the applicant was not the instigator of the incident. Rather, it was said that the incident resulted from a mix of poor behaviour by both TK and the applicant, in the context of a longstanding acrimonious relationship. Further, the applicant raised some doubts with respect to the narrative advanced by the prosecution, being that the applicant initiated the chain of events by striking the complainant’s stationary car from behind.. The applicant points to inconsistencies in the accounts of witnesses who saw the events unfolding, and argues that there is a lack of clarity and consistency in the accounts given in statements, and in recordings of contemporaneous 000 calls. Accordingly, it was submitted that the alternative narrative is that the incident was not started by the applicant, and if accepted, casts a very different complexion on the entirety of the incident. The narrative includes the argument that there was a road rage incident perpetrated by MK, and the three protagonists then end up on the side of the road.
The second aspect relied on as being exceptional is that the violence depicted in the footage provides strong mitigation on the basis that it amounted to extra curial punishment meted out to the applicant. Thus it was put forward that even if there is a finding of guilt against the applicant as to the principal offending, there is strong mitigation given the violent punishment he received at the hands of the complainants. It was argued that the extreme level of violence against the applicant is capable of amounting to such a degree of mitigation that it will make a difference between a significant term of punishment on a finding of guilt, and a likely lesser punishment in all the circumstances. Accordingly, it was submitted that there will be a strong argument that the applicant will have already served sufficient punishment through his period on remand.
Thus the applicant submits there are triable issues in the prosecution case, including the complainants’ credibility, inconsistency in witness statements, and the existence of video footage which is said to depict the applicant being assaulted by the complainant MK. The applicant submits that the video footage and witness statements support the applicant’s argument that he was acting in self-defence and did not instigate the alleged acts against the victims. It is submitted that the evidence provides a strong contradictory narrative which must impact the credibility of the complainants at the contested hearing of the matter. Furthermore, in support of his argument the applicant relies on the fact that the alleged victims of his offending continued to strike him while he lay motionless, that he was hospitalised as a result of the assault, and that the injuries he received have led to ongoing adverse consequences for him.
Furthermore, submissions were advanced for the applicant pointing out a lack of clarity in the police brief, as well as criticisms relating to the actions of the complainants in confronting the applicant rather than simply driving away, which was a matter of their choice from which an inference can be drawn supporting the alternative narrative. On behalf of the applicant it was pointed out that given the events that occurred, it was surprising that MK was not charged with any offences in relation to this incident. Furthermore, it was pointed out that MK provided a second statement which created more questions than it answered, due particularly to his stated difficulties in recalling key events.
Given the importance to the applicant’s arguments as to what is depicted on the video footage, the Court was specifically invited to view the material, it being argued that it represents the “most exceptional factor in the entirety of this case”.
Criminal history
The applicant’s criminal history is conceded. It is set out in the written materials filed on the application.
Family support and stable accommodation
It is proposed that the applicant return to reside at his parents’ address in Caroline Springs if bail is granted. However, because this property is intended to be sold to fund the applicant’s parents’ current placement in aged care, this arrangement will not be permanent.
The applicant has a close relationship with his sister Efstathla Solomos, who is willing to support the applicant if he is released on bail. In her affidavit, Ms Solomos has agreed to visit the applicant on a daily basis if he is granted bail, and assist him in finding alternative accommodation after the sale of the property. It was pointed out in oral submissions that Mrs Solomos is unable to provide the applicant with accommodation because of a full household, but that she would be supporting him with work, with food, and with everything else that he might need. It is to be noted that in her affidavit, Ms Solomos also provided background information as to the 20-year relationship between the applicant and TK, its breakdown, and the nature of the turbulent relationship between them more recently. She also deposed as to her concerns for the applicant’s physical and mental health in custody.
Employment
The applicant is employed by ERB Resources Pty Ltd as a truck driver. He submits that his employer will retain his position for as long as practicable in anticipation of bail being granted. In a letter dated 2 December 2021, Director of ERB Recourses, Eric Baroi, confirms that the applicant has been working with the company since September 2021, and is regarded as reliable. It was submitted that he will be able to return to work immediately if granted bail.
Special vulnerability
The applicant reports untreated ongoing pain as a result of the injuries he sustained during the alleged offending, including a perforated eardrum, numbness to the left side of his face and body, severe headaches and pain in his kidneys. It is submitted that, in addition to these physical health issues, the applicant suffers poor mental health which has been exacerbated whilst in custody. The applicant was unable to shed further clarity on whether his injuries will be long lasting, but noted current symptoms including difficulties with the tendons on the applicant’s face, difficulties with walking, laying down properly, and experiencing ongoing headaches. The applicant specifically pointed out that he was hit multiple times by shovel, and was unconscious on the ground as a result.
Delay and likely sentence
The applicant submits that his time on remand will likely exceed the sentence imposed if he is found guilty of the offences. It is submitted that there are unusual features of these events which will involve challenge to the credibility of the complainants, and if a finding of guilt is made in relation to the applicant’s offending, there is a set of extra curial factors that the Court will need to consider.
It was submitted that the mitigating effect of extra curial punishment at the hands of the complainants has relevance to the length of sentence that may be imposed, and that this has relevance in turn to delay, and the amount of time the applicant might serve on remand. During argument, it was noted that on 20 January 2022, a contest mention was heard in the Magistrates’ Court, with a hearing of this matter set down for 1 June 2022. Nevertheless, the applicant maintains the submission that if he remains in custody until that time, there is a realistic chance that he will serve more than a sentence ultimately imposed upon him.
Unacceptable risk
The applicant relies on the matters discussed above to cast doubt over the complaint alleged before the Court, and these matters are relevant to the assessment of unacceptable risk. It was pointed out that when all the factors are considered, there is a real question as to whether the applicant remains an unacceptable risk to the community or to the complainants in this matter.
The applicant conceded in argument that his criminal history was somewhat lengthy, and in part related to family type incidents in respect to TK. It was pointed out that lawyers have now been engaged to handle the family law aspects of the case, and the applicant will be assisted in that respect.
It is further submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including as to residence, geographic exclusion, weekly reporting to police, compliance with the FVIO and non-contact with any prosecution witnesses. It is submitted that the applicant is well aware that if conditions were breached he would be return to custody, and that that was a powerful counterweight to the unacceptability of risk.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has failed to demonstrate exceptional circumstances which justify a grant of bail. In particular, the respondent submitted that the combination of factors put forward to the Court by the applicant do not meet the exceptional circumstances test. The respondent further submits that the applicant poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail and interfering with a witness or otherwise obstructing the course of justice, with particular reference to endangering the safety and welfare of TK. As noted above, the respondent addressed oral submissions to the Court in support of the argument that bail should not be granted to the applicant.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Nature and seriousness of the alleged offending
The respondent submits that the alleged offending was pre-meditated, as it appears that the applicant was following the complainants’ vehicle and armed himself with two knives and a knuckle duster. Further, in the face of a relationship breakdown, it was submitted that the evidence reveals the applicant to have used a motor vehicle to strike another vehicle in which his ex-partner was a passenger, and that this was an aggravating feature to this family violence incident. There was, it was submitted, a complete disregard for an existing order involving non-contact.
Strength of the prosecution case
The respondent disputes that the video footage shows that the applicant was acting in self-defence and it is submitted that it rather supports the allegations made by the complainants. The respondent described the Crimestoppers vision as confronting, but that if viewed in isolation, did not show the full picture. Accordingly, the Court was invited to review the 000 calls in order to put the proper context around the actual offending. The Court was also invited to give particular consideration to the statements of TK and MK, indicating that their vehicle was struck from behind, and detailing that the applicant drove his car at them to the point where MK had to jump out of the way, before the applicant attempted to drive his car at TK. In short, it was submitted by the respondent that the evidence of damage to both vehicles is capable of establishing that the applicant deliberately drove into the back of the complainant’s stationary motor vehicle.
The respondent submitted that the Crimestoppers footage clearly establishes blood on the outside of the applicant’s motor vehicle, with MK trying to stop the applicant from getting out of his car after he had attempted to run them down. The prosecution case is that after having been stabbed a number of times, causing blood to appear on the outside of the applicant’s vehicle, MK grabbed a weapon, being a shovel, in order to defend himself. The applicant had exited the vehicle holding the knife. The prosecution further points to the fact that at relevant times the applicant had a knife in the vehicle in easy reach.
The prosecution also rely on the inferences to be drawn from the timing and statements made by onlookers as recorded in 000 calls in which each caller describes various aspects of the events they were observing.
Family violence intervention order in force
The applicant has been the subject of ten family violence reports whereby the AFM is TK. The respondent is of the view that the imposition of bail conditions could not adequately ameliorate the applicant’s risk of committing further family violence offences if granted bail. The respondent laid particular emphasis on the persistent breaching and harassing activity of the applicant towards TK, since their separation in 2015. The respondent also notes a previous instance of family violence against an ex-partner, occurring in 1993, for which he received a 4-month suspended sentence of imprisonment.
Family support
The respondent took no issue with the stability of housing offered to the applicant, noting the applicant experiences difficult family relationships.
Employment
The respondent has been unable to locate contact details for ERB Resources Pty Ltd or Eric Baroi, and therefore cannot confirm the applicant’s employment. The respondent expressed concerns over whether the employment was still available, noting a reference dated 2 December 2021 from his employer which did not state specifically that the applicant’s employment will be held open for him. Further, there was no reference in the letter to the effect that the employer knew of the charges being faced by the applicant, or the particular type of offending alleged.
Delay
The respondent pointed out that the applicant’s charges are listed for a two day hearing on 1 June 2022. It was submitted that in all the circumstances of the case, this represented a four-month delay from the present time, leading to the conclusion that the applicant will have been in custody for about six months from the time of these events, until the resolution of this case. It was submitted that six months was a quick turnaround for a contested hearing.
Complainants’ views on bail
The complainant TK has vehemently opposed the applicant being bailed, and MK has expressed his wish for the applicant to stay away from him and TK. Further, in the face of previous breaches of orders to protect her, TK has expressed concerns for herself and her children, and her belief that if bailed, the applicant will be likely to breach orders and assault her. She remains concerned that the applicant’s violence will escalate, and that he will continue to contravene any orders made. In this regard, the respondent submitted that the applicant’s prior convictions alone demonstrated an escalation, and a preparedness to continually breach orders by using harassing and intimidating behaviour.
The respondent also noted that there was nothing placed before the Court by the applicant as to his mental health situation. It was submitted that this aspect gathered force from the applicant’s own sister, Mrs Solomos, who it was said expressed concern for the applicant’s mental and physical well-being, as well as his memory. Accordingly, it was submitted that there was no evidence of mental health counselling, that anger management counselling or behavioural change has not been addressed, and there was no proposal as to intensive supervision such as CROP or from CISP placed before the Court, that might add to mitigating risk towards victims or reducing the prospect of further contraventions, or committing further offences. It was submitted that there was nothing in the material that indicated that the applicant had insight into his continual contraventions of intervention orders against TK.
Unacceptable risk
Endangering the safety and welfare of any person
The applicant is accused of committing serious family violence offences against his ex-partner and her new partner whilst subject to a FVIO, and it is submitted that he will continue to pose a risk to their safety if released on bail. The respondent asserts that the applicant’s propensity to engage in violence involving motor vehicles presents a danger to road users.
Committing an offence whilst on bail
The respondent submits that the applicant is at risk of committing further offences if granted bail, on the basis that he is alleged to have committed the offences in the Thompson matter whilst subject to summons and a FVIO. It is asserted that the applicant has no remorse or insight into his offending, and the respondent expects the applicant to seek retribution against the complainants.
Furthermore, it is submitted that the applicant was prepared on this occasion to engage in offending behaviour by using a vehicle in a public setting. Thus it is submitted that he has demonstrated that he is an unacceptable risk to the community and not just the complainants.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The applicant’s history of contacting TK in contravention of the FVIO suggests that this behaviour may continue if the applicant is released on bail.
It was submitted that the applicant’s previous family violence history indicates that intervention orders have been in place on a number of occasions, that they had been put in place for a reason, namely to protect the victim. Further, that his prior history indicated a preparedness to engage in violence towards people that he has been associated with in the past.
Analysis and conclusions
As above, it is to be emphasised that the allegations put forward by the prosecution are as yet unproven. Accordingly, I have approached the assessment of this application on that basis.
It is common ground that the exceptional circumstances test applies to this application. The applicant has argued that he has satisfied the test, and further, that the respondent has not satisfied the Court that the applicant is an unacceptable risk such that he should be denied a grant of bail. The burden of establishing exceptional circumstances remains on the applicant. The burden of establishing the applicant is an unacceptable risk lies on the respondent.
In making an assessment of whether the applicant has satisfied the requirements of the exceptional circumstances test I have had regard to the relevant provisions of the Act as have been set out above. Further, I am well aware that the test can be satisfied by a combination of factors, observing that whilst each of the factors might individually be regarded as ordinary, when viewed together, may satisfy the test. Further, I have considered and applied the observations expressed in Roberts v The Queen[12] as set out by Lasry J in Re Strachan.[13]
[12][2021] VSCA 28, at [9].
[13][2021] VSC 538, at [28].
Having given the matter careful consideration I am not satisfied the applicant has satisfied the test, and that exceptional circumstances have been made out, justifying a grant of bail. The material filed on this application included a copy of the ‘preliminary brief’, which I have read. Further, I was invited by the parties to review the multi-media material, and I have watched and listened to it. The vision of the events that are alleged to have occurred is not complete and it is not possible to see the alleged striking of the complainant’s car by the applicant’s car, and what occurred immediately before that. Furthermore, the vision does not capture the applicant allegedly driving his car at the complainants once they had alighted from their car. However, one witness, Vissa,[14] reported in a 000 call that the applicant’s car appeared to run up the other car ‘purposely’, that the first vehicle ‘backed-off’ and when the ‘other people got out of their car’, he tried to ‘run down the female’. Furthermore, the respondent points to 000 calls from a female in Vissa’s car, and the witness Nesic, reporting their views of the events suggesting that the applicant’s vehicle tried to run over the people that had alighted from their car. The point at which the main example of recorded material begins depicts a side on view of the applicant’s motor vehicle, with blood smears already on the driver’s side of the car, with MK standing beside the driver’s door of the applicant’s car appearing to have his hand on the side of the car, with the applicant waving a knife from within the car, then exiting his vehicle through the driver’s door. The inference can be reasonably drawn that penetration of MK’s body by the knife has occurred before the visions starts. It is apparent from the vision that the applicant appears to have a knife in his hands at the time when he got out of his car.. From that point onwards it is clear that the vision depicts extremely violent events that occurred at the side of the applicant’s motor vehicle, initially involving TK. At one point MK appears to be striking the applicant on the body with a weapon, possibly spade or an iron bar, with the applicant lying still on the ground.
[14]The evidence of Vissa, Nesic and Beki is referred to in the written submissions of the respondent, but statements of these persons did not appear in the Preliminary Brief. Their 000 calls are, however, part of the provided recorded material to which regard has been had.
As might be predicted, the recorded 000 material provides an overall similarity of observations, but also demonstrates that a number of witnesses saw some things differently, and from varying perspectives. In most cases the contemporaneously recorded material reveals the observers were horrified, and in some cases frightened, as to what they witnessed occurring. The circumstances were violent, bloody and very confronting for the innocent bystanders obliged to watch what was playing out in front of them as they went about the normal lives.
Noting that the recorded vision does not depict the totality of the events that occurred, the applicant argues that there are triable issues in relation to these events, including issues to do with what led up to the events at the side of the car. The applicant asserts that the credibility of the two complainants is in issue. I have also read the lengthy transcript of the record of interview of the applicant. It appears to me that on a number of occasions the applicant struggled to maintain focus in his explanation as to what happened and to put forward a cohesive narrative of the events.
It is not the role of this Court to try the case against the applicant, but rather attempt to make some broad assessment of whether the case against the applicant might be regarded as strong or weak. An assessment either way can be of real relevance to a decision about whether the exceptional circumstances test has been met, and if it is, whether there is an unacceptable risk. The events may well be heavily contested by the applicant at his trial, however, at present I am of the opinion that there is sufficient evidence suggesting that the applicant acted in a deliberate manner in using his vehicle to strike the complainants’ vehicle from behind, when it was stationary.
The events that took place appear to have occurred in the context of an acrimonious and problematic breakup of a long-term marriage, and with ongoing anger between the parties. It may turn out there is fault on both sides, but it is not my role to make that decision. That all said, in my opinion the prosecution case could not be said to be weak, albeit it that there may be significant issues of credibility to be placed before the Court as to the accounts given by the complainants.
It is particularly relevant, in my opinion, that in the context of the events that occurred, and the history of the acrimonious relations between the parties, that the applicant has a long list of previous convictions. These are relevant to an assessment of the risk he poses to the complainants, as well as the wider community. His prior history reveals he has used violent behaviour on a number of occasions and has been charged and convicted of stalking, as well as contraventions of previous FVIOs, meaning court-imposed orders. I note that in light of this past history and the present allegations of violence, no material pertaining to the applicant’s mental state has been put before the Court. I accept the submission of the respondent that the applicant has shown a disregard for court imposed FVIO orders since 2015, and that he has a history of violence towards ex-partners. It is a very troubling history, appearing to show little insight into his violent behaviour, and demonstrating a preparedness to harass, intimidate, and use violence when it has suited him. His history, as do the presently alleged events, tends to demonstrate a predilection towards losing self-control on the part of the applicant. It is quite disturbing that the applicant appears on this occasion to have followed the complainants when he was in possession of two significant weapons in his car. It is also disturbing that it is alleged he then used his car as a weapon in its own right, when the opportunity presented itself, namely to strike another car deliberately, but also being alleged to have used his car as a weapon against the complainants when they were on foot. Further, the events that have been alleged took place in a public place, and involved a display of violence in a service road on the side of busy Ballarat Road, with some members of the public finding themselves physically close to the unfolding events.
Furthermore, in addressing the aspect of risk, as relevant to the question of the exceptional circumstances test, I note that little in the way of a plan has been put forward, apart from family support, the imposition of conditions, and the prospect of employment. It appears to me that the letter from his employer is quite non-specific, and in the end, quite uninformative. I am left in considerable doubt as to whether the author was aware of the events alleged to have taken place, and that the applicant is presently in custody.
Finally, in respect of the issue of delay, I note that the applicant is due to face a contested hearing of these matters in 1 June 2022. In these circumstances I do not consider the delay that he will have faced from the time he was arrested, and from now until the date of hearing, to be such that it is a very significant factor in the resolution of this application. For instance, this is not a case where the delay is expected to run into late 2022, or into 2023. Having considered the serious nature of the allegations of what has occurred, as discussed above, the criminal history of the applicant, and having considered the submissions made, I do not consider it likely that if he is found guilty of the main charges preferred against him, that he would receive a sentence less than the time he will serve on remand. In coming to this conclusion I have taken into account the evidence, and the submissions, made about the impact of what was described as ‘extra-curial punishment’ that he is alleged to have suffered at the hands of the complainants. Ultimately, it will be for a Magistrate to determine the facts and circumstances surrounding this aspect of the case, and whether there was an element of punishment of the applicant justifying mitigatory impact.
Having concluded that the application fails on the basis outlined, I comment in passing that if I am incorrect in respect of the applicant’s failure to satisfy the exceptional circumstances test, I would have otherwise concluded that the respondent has satisfied me the applicant represents an unacceptable risk within the meaning the Act. In my opinion the applicant’s criminal history generally, but in particular with respect to his offending against the complainant, his past breaching of court imposed orders, and that no satisfactory proposal is available to supervise him in the period leading up the hearing of these matters, in combination, satisfy me that the risk is unacceptable and cannot be ameliorated by conditions that might have otherwise attached to a grant of bail.
Having considered all the matters raised, I am satisfied that the application for bail must be dismissed.
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