Re Koshani
[2019] VSC 678
•4 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0194
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by MAX KOSHANI |
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JUDGE: | ASHLEY JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 October 2019 |
DATE OF JUDGMENT: | 4 October 2019 |
CASE MAY BE CITED AS: | Re Koshani |
MEDIUM NEUTRAL CITATION: | [2019] VSC 678 |
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CRIMINAL LAW – Bail – Whether compelling reason justifying grant of bail – Whether unacceptable risk – Charges arising in domestic setting – Departure of complainant from Australia – Surrounding circumstances under s 3AAA of Bail Act 1977 considered – Bail granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B Newton | Stary Norton Halphen |
| For the Informant | Mr P McKimmie (Solicitor) | Victoria Police |
HIS HONOUR:
On 4 October 2019 I ordered that, subject to a number of conditions, Max Koshani (‘the applicant’) be admitted to bail on his own undertaking. I said that I would later deliver reasons. These are those reasons.
The applicant applied for a grant of bail by application dated 10 September 2019. He had been arrested and charged with a number of offences on 13 July 2019 in relation to an incident alleged to have occurred that day. He has been in custody since his arrest. He had twice unsuccessfully applied for bail in the Magistrates’ Court, on 15 July and 21 August this year.
The informant, Senior Constable Schultz, opposed grant of bail.
Principles
It is uncontroversial that s 4C of the Bail Act1977 (the ‘Act’) was in point. Thus, to succeed in his application, the applicant carried the burden of establishing that ‘a compelling reason’ exists that justifies the grant of bail. Even then, bail must be refused if the prosecution satisfied the Court that there was an ‘unacceptable risk’ of one or more of the kinds set out in s 4E(1) of the Act. Each inquiry obliged the Court to consider ‘the surrounding circumstances’, a term defined in a non-exclusive way by s 3AAA of the Act. Further, in this application, the Court was required to consider the matters set out in s 5AAAA(2) of the Act, which applies in the case of a person charged with a family violence offence.[1]
[1]See the definition of ‘family violence’ and ‘family violence offence’ in s 3 of the Act, and the definition of ‘family violence’ in s 5 of the Family Violence Protection Act 2008 (Vic).
The concept of ‘a compelling reason’[2] has been discussed in a number of decisions. Recently, in Rodgers v The Queen,[3] this Court summarised the relevant principles as follows:
43…
(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’.[4]
[2]Section 4C(2) of the Act was inserted by section 7 of the Bail Amendment (Stage Two) Act 2018 (Vic).
[3][2019] VSCA 214 (‘Rodgers’).
[4]Ibid [43].
Those principles were somewhat more expansively stated by Beach JA, though in a slightly different statutory context, in Re Ceylan,[5] to which this Court referred in Rodgers. Nothing turns on the different provision considered in Re Ceylan.[6] It is only necessary to add that ‘a compelling reason’ may be established by a number of circumstances in combination.
[5][2018] VSC 361, [47].
[6]See R v Ahsulayhin [2018] VSC 570, [27]-[28].
Circumstances of offending
The alleged circumstances giving rise to the charges in respect of which the applicant was arrested and remanded were conveniently set out in the statement made by the informant in the Preliminary Brief. I will not continue to refer to ‘alleged circumstances’; but that the circumstances are presently allegations is to be understood. These are the circumstances:
Haifei Wang is the applicant’s ex-partner. They were in a relationship for approximately three years. At the time of the incident there were no intervention orders between them. Ms Wang had moved out of the applicant’s home at 28 Klein Street, Noble Park in May 2019.
On Friday 12 July 2019, the applicant asked Ms Wang to come to his home. She did so. An argument occurred when she told him that she could not keep supporting him financially.
The applicant left the address at midnight. Ms Wang stayed the night and left on the morning of Saturday 13 July morning to meet friends.
That day, 13 July, the applicant returned to his address to find that Ms Wang was gone. He called her and questioned her as to where she was. He was angry, and hung up when she told him to calm down.
There was another call. Ms Wang told the applicant that she would come and collect her things later.
A little after 1.15pm that day, the applicant attempted to contact a friend of Ms Wang, Zahraa Al Khalidi. On the fourth occasion that he called, Ms Khalidi answered. The applicant swore at her, and called her a ‘whore’ and ‘motherfucker’. He then said ‘If I get my hands on you, I’ll kill you’.
At about 2.15pm, Ms Wang returned to the applicant’s home. Before doing so, she had called a friend, Siyu Pan, to come with her to collect her belongings.
Ms Pan attended at the premises, together with her boyfriend, Alvin Ang. They waited in their car outside the premises whilst Ms Wang went inside.
The applicant was at home. There was a confrontation. She tried to leave through the front door but it was locked. She then walked to an internal garage door, hoping to leave the premises that way. The applicant stood in the garage, blocking the exit and said ‘You just want to leave. I won’t let you get what you want’.
Ms Wang then called Ms Pan, telling her not to enter the premises. But Ms Pan did so. She saw the applicant standing, holding onto a metal pole about a metre long. It seems to have been a baseball bat.
The applicant shouted at Ms Pan ‘Fuck all Chinese, just come inside’.
Ms Pan did so and the applicant shut the garage door through which she had entered the premises.
Mr Ang also entered the premises. He saw that the applicant was holding Ms Wang in a headlock and holding the metal item in his other hand.
The applicant said to Ang ‘You fucking Chinese. Don’t let me see you again’. When Ang told him to calm down, the applicant slapped Ms Wang to the face.
The applicant then yelled ‘Fucking Chinese. Don’t let me see you again or I’ll shoot you in the head’. He walked towards Ms Pan and stood on her foot. He began flailing his arms towards Ms Pan, hitting her on the back of the head. This caused pain, but no injury.
The applicant then walked into the kitchen and picked up a kitchen knife. He started walking towards the others who were in the premises. They retreated to the garage and shut the internal garage door. The applicant was yelling ‘Open the door, I’ll kill all of you’. Ms Wang said ‘Max Calm down’. The applicant replied ‘I’m calming down already’. Mr Ang then found a remote control for the garage door and opened it. He and Ms Pan returned to their vehicle.
Ms Wang then quickly collected some belongings. The applicant began crying and said ‘I gave you everything I had’. As she left the address, the applicant grabbed her and attempted to prevent her leaving.
There was then a confrontation between the applicant and his victims in the course of which he swore and said ‘I’m going to fuck all you Chinese’. At one point he began to choke Mr Ang with one hand, and this left a red scratch on the right side of Mr Ang’s neck. Ms Pan and Mr Ang got into their vehicle and left. Ms Wang put her belongings into her vehicle and also left. It appears the applicant followed them in his vehicle. At one stage, Ms Wang pulled over to the side of the road after the applicant had cut her off in his vehicle. The applicant walked towards her vehicle and she said to him ‘What do you want? Calm down’.
Ms Wang then continued on towards the Chadstone Shopping Centre. She saw that the applicant continued to follow her car for a distance.
The applicant was arrested at about 8.38pm at his place of work, was transported to Dandenong Police Station and was then interviewed. He agreed that Ms Wang and the others had attended at his home and that he had had a verbal altercation with them. He denied all the allegations which were put to him.
The charges
Arising out of the circumstances as alleged by the informant, 14 charges were laid against the applicant.
In the case of Ms Wang, there were charges of unlawful imprisonment, stalking, threat to kill and unlawful assault.
With respect to Ms Pan, the charges were threat to kill, threat to inflict serious injury, assault with a weapon, and unlawful assault.
With respect to Mr Ang, the charges were threat to kill, threat to inflict serious injury, assault with a weapon and assault.
With respect to Ms Al Khalidi, the charges were use of a carriage service to make a threat to kill and threat to kill.
These 14 charges are listed as a contested matter at the Dandenong Magistrates’ Court on 11 November 2019.
Other charges
These are not the only charges which the applicant is facing. But they are the only charges in respect of which bail had been refused.[7] There are two other charges. They arise out of a commercial dispute in this Court between the applicant and a Ms Chen. The proceeding finalised to the applicant’s very considerable financial disadvantage.[8] The dispute and its outcome seem likely to have informed the applicant’s clearly stated views on 13 July this year about Chinese people.
[7]See paragraph 6 of the supplementary affidavit of Craig Stabler sworn 30 September 2019.
[8]Gao v Koshani [2018] VSC 783, which is subject to an application for leave to appeal: Koshani v Gao [2019] VSCA 141.
There is a charge dated 20 April 2019, again alleging contravention of a personal safety intervention order. This charge relates to an event alleged to have occurred on 5 November 2018.
The circumstances of this alleged offence are as follows. At the relevant time, Ms Zing Chen had a personal safety intervention order where she was the protected person and the applicant was the respondent. The order commenced operation on 14 March 2017. It is active until 31 December 2019. Under the order, the applicant was not allowed to communicate with her by any means. On 5 November 2018, the applicant allegedly sent her an email from an email address which the applicant had used to send Ms Chen many emails in 2015 and 2016. A copy of the email shows that it was copied to a considerable number of people, making a comment about each of them. With respect to Ms Chen, it said simply, ‘You are heartless’.
This matter was listed for mention at the Ringwood Magistrates’ Court on 11 September 2019.
Finally, there is a charge, laid on 28 March 2019, of contravention of a personal safety intervention order. This contravention allegedly occurred on 19 November 2108.
The alleged circumstances of that incident are alleged to be as follows: Ms Chen was a protected person pursuant to an interim personal safety intervention order made on 15 March 2018. One of the conditions of the order was that the applicant must not contact or communicate with Ms Chen by any means. The order was active from 15 March 2018, and was to expire on 2 January 2019.
On 19 November 2018, it is alleged, the applicant attended the Supreme Court for a hearing in the matter involving himself, Ms Chen and her husband. During a recess that morning, the applicant made eye contact with Ms Chen and engaged in conversation with her. A legal practitioner who was with Ms Chen warned the applicant about his behaviour. Thereafter, the applicant pointed at Ms Chen with his finger and said, ‘You want more, you will get more’. Ms Chen and her husband attended on the police the same day and made a complaint.
The matter is listed for plea at the Dandenong Magistrates’ Court on 11 November 2019.
The applicant’s prior criminal history
The applicant has a prior criminal history.
On 19 September 2013, at the Ringwood Magistrates’ Court, he was fined $400 without conviction on a charge of recklessly causing injury. The incident out of which the charge arose involved the applicant and his former wife, Xiao Yan Wang. It is convenient to note here that there are two children of that marriage.
On 13 February 2014, the applicant was sentenced to six months’ imprisonment, partially suspended, on charges of intentionally causing injury, threat to inflict serious injury and contravening a Family Violence Intervention Order. The events giving rise to this conviction and sentence also involved the applicant and his former wife. The applicant told Mr Cummins[9] that Ms Xiao Wang picked him up from Beechworth (prison farm), and that they remain reasonable friends. Ms Xiao Wang’s affidavit affirmed 3 October 2019, to which I later refer, supports what the applicant told Mr Cummins.
[9]See [60] and following.
On 21 October 2016, again in the Ringwood Magistrates’ Court, the applicant was charged with contravention of the partially suspended sentence order. The charge was found proven, but no order was made as to the suspended sentence. The prior criminal history record notes, ‘Significant progress in rehabilitation. Diagnosis of significant PTSD and the nature and content of offending establish exceptional circumstances’.
Also 21 October 2016, the applicant was convicted of using a carriage service to menace. He was convicted and released upon giving a security by a recognisance of $200 on condition that he be of good behaviour for 15 months, contribute $3,000 to the Ringwood Court Fund, continue to receive counselling as and when required with his psychotherapist, and provide the Court with a letter confirming such attendance prior to the end of the adjournment period.
Finally, on 9 September 2019, the applicant was convicted and fined $250 for assault at the 1001 Nights Shisha Bar (the applicant is a co-owner of the Bar) upon a man who came there in connection with some dispute between them. After conversation, the applicant grabbed the other man by the throat. The man left, and immediately reported the matter to the police.[10]
[10]This information is derived from the second supplementary affidavit of Craig Stubler, sworn 3 October 2019.
The applicant was also charged with threat to kill and threat to inflict serious injury arising out of the incident just described. Those charges were withdrawn.
Personal circumstances
The applicant’s solicitor, Sarah Condon, in her affidavit affirmed 10 September 2019, deposed that –
1.The applicant is aged 38. He arrived in Australia in 2002[11] from Iran via Malaysia and Indonesia. For a short period of time he was at the Port Hedland Detention Centre. Now he is an Australian citizen.
2.The applicant is not now married. He has two children, aged eight and ten, from his earlier marriage. The children live with their mother.
3.The applicant has had no contact for years either with his parents or his two sisters.
4.At age 22, after undertaking a building apprenticeship, the applicant became a registered builder.
5.The applicant has had a sound employment history.
6.According to her instructions, the applicant has had no problem with illicit drug use.
7.Again according to her instructions, the applicant has had no admission for psychiatric treatment.
[11]But it may have been 2000.
Issues for trial
Ms Condon deposed that there are matters for trial with respect to the charges of threat to kill, false imprisonment and stalking. What is in issue is the mental element of the offences.
Offer to settle
Ms Condon deposed that an offer was made on the applicant’s behalf that he plead guilty to two charges of unlawful assault — one with respect to Ms Wang and one with respect to Mr Ang. This offer was rejected.
Period of time in custody
As I have already noted, the applicant went into custody on 13 July 2019. The 14 charges arising out of the incident which occurred that day are for contested hearing on 11 November next. So also is the plea with respect to the contravention of a personal safety intervention order on 19 November 2018. Ms Condon deposed that if the applicant remained in custody until the contested hearing, 121 days would have elapsed. She submitted that this exceeds any likely sentence.
The applicant’s mental health and available treatment
Ms Condon deposed that the Court Integrated Services Program (‘CISP’) has said that the applicant is suitable to participate in a bail support programme. Two CISP reports exhibited to her affidavit confirm that this is so. A report dated 3 October which was tendered at the hearing of the application was to the same effect.
Ms Condon further deposed that, at an earlier bail application hearing, the psychologist Mr Jeffrey Cummins gave evidence that he would treat the applicant if he were bailed, and would inform the police if he became aware of any breach by the applicant of bail conditions
Appended to Ms Condon’s affidavit was a report dated 14 August 2019. There, Mr Cummins expressed the opinion that the applicant met the criteria for a diagnosis of complex post-traumatic stress disorder, its genesis being the applicant’s dysfunctional family unit and the political situation in Iran during his formative years. Mr Cummins’ diagnosis is consistent with the note recorded in the applicant’s prior criminal history that, as at October 2016, there was a diagnosis of ‘significant PTSD’.
Mr Cummins’ report, exhibited to Ms Condon’s affidavit, addressed other matters of significance. Thus:
1.The applicant stated that he would agree to cooperate with CISP and undertake an anger management programme and receive ongoing and regular mental health treatment as a condition of bail.
2.The applicant stated that he would accept and act upon a condition of bail which required him to receive mental health treatment either from Mr Jeremy Candappa, whom he has consulted in the past, or in the alternative, Mr Cummins.
3.Mr Cummins assessed the risk of the applicant committing an offence of violence as moderate. It was imperative, in Mr Cummins’ opinion, that the applicant participate in an anger management programme.
4.Mr Cummins did not assess the applicant as having a general anger management problem. Rather, there was a history of traumatisation which had been retriggered as the result of conflict between him and Ms Chen — conflict which had led to the civil proceedings in the Supreme Court in which he was unsuccessful, and which, on his account, had cost him a great deal of money.
In a brief report dated 3 October 2019 Mr Cummins confirmed that he remained willing to treat the applicant, and that he would agree to contact Victoria Police if he became aware of any breach of bail conditions.
Application by Ms Haifei Wang
Exhibited to Ms Condon’s affidavit was an application by Ms Wang to vary an order made under the Family Violence Protection Act to a safe contact order. The intervention order was made on 15 July 2019. The order was varied on 3 September. In the application for variation, dated 8 August 2019, the grounds for the application were stated by Ms Wang as follows:
Have the order varied as I am not in fear of the respondent. There are no concerns regarding contact. I need contact to discuss issues relating to joint business venture. AFM[12] has significant financial interest in that business venture. AFM wants safe contact only.
[12]That is, the affected family member.
Although the Magistrates’ Court record notes that the applicant did not agree to the variation, Ms Condon deposed that this note is inaccurate. It seems improbable that the applicant would have opposed an order which permitted contact with Ms Wang, particularly in circumstances where she was stating that she had no fear of him.
Ms Haifei Wang’s departure from Australia
Since the variation order was made, there has been a further development. By email to the informant dated 2 October 2019, Ms Wang advised that her visa expired on 20 September last, that she had left Australia before that date, and that she has no present plan to return to Australia. A copy of her visa was produced at the hearing. It confirms the reason for Ms Wang leaving Australia — and that it was not indicative of her fear of what the applicant might do if released on bail.
Steven Barbaric
Steven Barbaric, a businessman, has known the applicant since October 2013. He is evidently a friend of the applicant, having maintained contact with him during the current period of remand. He deposed in an affidavit affirmed 2 October 2019 that he has no prior criminal history. He deposed that if the applicant was to be granted bail, he would be willing to have the applicant live with him at his residence, 101/979 Heidelberg Road, Ivanhoe. Alternatively, he would be willing to live with the applicant at the applicant’s rented property, 28 Klein Street, Noble Park.
In an earlier affidavit, affirmed 25 September 2019, Mr Barbaric deposed that the applicant is the co-owner of the ‘1001 Nights’ shisha bar in Noble Park. He has been managing its day to day operations since the applicant was remanded, but if the applicant was granted bail he (the applicant) would manage the cafe with the deponent’s assistance, working between 7.00pm and midnight every day of the week.
In that earlier affidavit, Mr Barbaric stated that he would assist the applicant to comply with any bail conditions and would alert the police in the event of any non-compliance of which he became aware.
Affidavit of Xiao Yan Wang
Xiao Yan Wang is the applicant’s former wife. They married in 2008, separated in 2014 and divorced in 2016. They have two children, aged eight and ten. The applicant’s prior conviction dated 19 September 2013 and 13 February 2014 related to his misconduct towards his former wife.[13] In an affidavit affirmed 3 October 2019, Ms Xiao Wang referred to the applicant’s mental health struggles and his desire to make positive changes to his life. She stated that she had been in contact with him during the period of remand. She deposed that if he was released on bail she would be happy for him to see their children; that she would help him comply with any bail conditions; and that she would notify the authorities if she became aware of any breach. She said nothing to indicate that she is in fear of the applicant.
[13]See [71]-[72] below.
Opposition to grant of bail
By affidavits, the informant opposed the grant of bail. In an affidavit sworn 9 September 2019, Craig Stabler, a legal practitioner employed by Victoria Police, and the solicitor with carriage of the matter, submitted that the applicant had not shown a compelling reason why grant of bail was justified; and that, in any event, the applicant was an unacceptable risk of endangering the safety or welfare of any person and of committing an offence while on bail.
The position changed a little at the hearing. Mr McKimmie, for the informant, acknowledged that the landscape had changed to the applicant’s advantage with respect to the issue of ‘a compelling reason’. He did not, however, concede that the applicant had established a compelling reason; and he submitted that in any event there remained unacceptable risks if the applicant was admitted to bail.
Both issues being alive, I return to Mr Stabler’s affidavit of 9 September. As to compelling reason, he pointed out that the applicant had been assessed as having an anger management problem associated with mental health issues; and that the alleged behaviour was of a very similar nature to previous acts of domestic violence against his former wife.
As to unacceptable risk, Mr Stabler noted that the applicant had prior convictions for contravening a Family Violence Intervention Order; and that whilst these related to a different person, when combined with current and outstanding matters, it showed a disregard for intervention orders.
Other than that, Mr Stabler deposed that there were no outstanding matters for which the applicant is currently on summons.
Exhibited to Mr Stabler’s affidavit was a statement by the informant in respect of the July matters which gives detail of the matters dealt with in the Ringwood Magistrates’ Court on 19 September 2013 and 13 February 2014. Each of them was an incident affecting the applicant’s former wife, Ms Xiao Yan Wang.
On the first occasion, the applicant blamed Ms Wang for previous arguments which had resulted in some limitation of the applicant’s custody access to their daughter. The informant reported that the argument escalated, the applicant grabbing Ms Wang forcefully, striking her to the left ear with an open hand, and holding a knife whilst making threats.
As to the second incident, the informant reported that the applicant grabbed and pulled Ms Wang’s hair, got a meat cleaver from the kitchen and turned to her, saying, ‘If you say any more, I’ll chop you’. Then it is said that she fled the house, chased by the applicant. He knocked her to the ground, then kicked and punched her. He struck her on the buttocks with the meat cleaver, causing a laceration and bruising. Then he retreated to the house with his children and refused to come outside. Negotiations with police resulted in him surrendering after about an hour and a half.
The informant also referred to Mr Cummins’ risk assessment of the applicant, saying that it caused him to have concerns for Ms Haifei Wang’s safety. He referred also to the current intervention order protecting Ms Wang, saying that it was limited and did not restrict the applicant to communicating with Ms Wang only for business purposes. There was no exclusion condition. He noted that Ms Wang and the applicant have significant financial interests in their business and would continue to be in contact on a regular basis.
The concerns identified by the informant, it may immediately be said, could now be put to one side.
In a supplementary affidavit sworn 30 September 2019, Mr Stabler first deposed that the applicant has been before a Magistrates’ Court on four occasions arising out of the July 2019 incident, but had only applied for bail on two of them; and, second, deposed that the informant was concerned that it is likely that family violence will continue. That is because Ms Haifei Wang and the applicant are co-owners of 1001 Nights, and she had advised the informant that the business is slipping. The informant was concerned that the pressure of the joint interest in the business is contributing to family violence. The informant was concerned that, as Ms Wang is financially supporting the business, she and the applicant will continue to interact.
Again, the concerns had with respect to the wellbeing of Ms Haifei Wang could be out to one side in light of recent developments.
On the hearing of the application, Mr McKimmie tendered without objection notes of conversations recently had between a member of the police and Ms Pan and Ms Al Khalidi. The notes, in dot point form, contain a good deal of speculation, and I ignore it. Pertinently, Ms Pan stated that the applicant knows where she and Mr Ang live, and that she is terrified of him, whilst Ms Al Khalidi stated that the applicant does not know her residential address, but that she is concerned because of persons with whom he associates at his shisha bar. Neither said anything to indicate that the applicant or any of his friends or associates have attempted to contact them since the 13 July incident.
Submissions
Counsel for the applicant contended that, in the entirety of the circumstances which I have described, a compelling reason had been demonstrated why grant of bail was justified. He argued that —
1.The case against his client with respect to some of the charges is not strong.
2.If the applicant remained in custody until the contested hearing on 11 November 2019, he was likely to have spent more time in custody than he could expect to receive on sentence.
3.The applicant has secure accommodation, and Mr Barbaric has undertaken to reside with him.
4.Mr Barbaric is willing to supervise the applicant’s release, and to report any contravention of bail conditions.
5.The applicant has a business to conduct; and inferentially, it is likely to do better if, as co-owner, he is in attendance.
6.The applicant is willing to accept the CISP programme, CISP having assessed him as suitable for its programme.
7.The applicant has now recognised that he requires anger management treatment.
8.The applicant is willing to attend upon either Mr Candappa or Mr Cummins, and Mr Cummins is willing not only to treat him but to report any breach of bail conditions.
9.The need for specialist intervention has been treated in earlier decisions of this Court as a circumstance tending in favour of grant of bail.[14]
10.The applicant is vulnerable in a gaol setting, recognised by his removal from one place of custody to another after he was ‘stood over’.[15]
11.The matters stated by Ms Haifei Wang in her application to vary the Family Violence Intervention Order undermine the expressions of concern by the informant.
12.Ms Haifei Wang’s recent departure from Australia, without any scheduled return date, bears upon both the risk of family violence and upon the strength of the prosecution case in respect of some of the charges.
13.The affidavit of the applicant’s former wife contraindicates apprehension of family violence in that setting.
[14]Counsel cited Re Gaylor [2019] VSC 46, [37] (Riordan J).
[15]This is referred to in Mr Cummins’ report dated 14 August 2019. Counsel referred to an exceptional case in this connection: Re Logan [2019] VSC 134 [69] (Elliott J).
As against the matters upon which the applicant relies, counsel for the informant focussed upon a number of the mandatory surrounding circumstances specified in s 3AAA(1) of the Act. He correctly pointed out that such circumstances are relevant both as to compelling reason and unacceptable risk.
He submitted that the charges involved conduct far from the very lower level of examples of the particular offences. On the other hand, he accepted that some of the charges involving Ms Haifei Wang face difficulties of proof so long as she remains abroad.[16]
[16]Although he submitted that hearsay exception provisions of the Evidence Act might be availed of.
He submitted that it is very relevant that, on past occasions, the applicant engaged in violent behaviour in a domestic setting.
He next submitted that Ms Pan and Ms Al Khalidi have expressed their concern if the applicant was to be granted bail.
Again, he submitted that it was by no means a foregone conclusion that, if the applicant was convicted, he would be sentenced to a lesser period of imprisonment than the period he would spend on remand if not granted bail.
Analysis
It might be said that it will only be another six weeks before the charges arising out of the incident on 13 July 2019 are resolved, and that there could be no harm in refusing a grant of bail in light of that timeframe. But that would not be a proper basis for resolving this application. As has been pointed out on previous occasions, the guiding principles of the Act include, on the one hand, maximising the safety of the community and persons affected by crime to the greatest extent possible; and, on the other hand, taking account of the presumption of innocence and the right to liberty.[17] Those guiding principles must be brought to account when considering the operation of the Act in any particular case. They do not make the easy path the correct path.
[17]See s 1B of the Act.
Obviously, whether or not a compelling reason justifying a grant of bail has been demonstrated involves matters of fact and degree upon which minds might reasonably differ. So my judgment cannot be said to be the correct judgment as a matter of certainty. That said, having regard to all the circumstances of this matter, including consideration of the matters mandated by s 3AAA of the Act, I considered that the applicant had demonstrated a compelling reason why grant of bail is justified. Prominent in me reaching that conclusion were Ms Haifei Wang’s attitude as revealed in her variation application; her departure from Australia with no planned return date — this impacting upon both the risk of family violence towards her, and the likely strength of the prosecution case with respect to some of the charges; the length of the period of custody if bail was refused and its relationship to likely sentence; the availability of secure and supervised accommodation; the availability of secure employment; and the applicant’s willingness to engage in relevant programs with health professionals.
That took me to unacceptable risk. The departure of Ms Haifei Wang from Australia removes what would otherwise be the risk of family violence towards her. The affidavit of the applicant’s former wife does not suggest that she fears for herself or the children. There is nothing but speculation to suggest that the applicant would wish to confront the other people involved in the 13 July incident But let it be assumed that such a risk existed. In my judgment the informant did not establish that the assumed risk was unacceptable. I considered that conditions could be put in place which would alleviate such an assumed risk to the point where it was no longer unacceptable.
In the event, I decided to grant bail to the applicant upon his own undertaking, but subject to the following conditions:
(1)The Applicant reside at 28 Klein Street, Noble Park, Victoria with Mr Stephen Barbaric and advise any change of address to the informant no later than 24 hours prior to any proposed change.
(2)The Applicant is to report to CISP within three days of this order, and thereafter:
(a)comply with all lawful directions of CISP or their nominee; and
(b)attend all appointments as directed by CISP or their nominee.
(3)The Applicant engage in psychological treatment with Mr Jeffrey Cummins, as per Mr Cummins’ directions and recommendations for treatment.
(4)In the event that Mr Cummins recommend that the Applicant engage in psychiatric treatment for his mental health issues, the Applicant comply with that recommendation.
(5)The Applicant report to the police officer in charge, or his nominee, at Springvale Police Station each Monday between the hours of 8.00am and 6.00pm.
(6)The Applicant not contact directly or indirectly any witness for the prosecution, except the informant, and Ms Heifei Wang but only in conformity with the Family Violence Intervention Order made by the Melbourne Magistrates’ Court on 3 September 2019.
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