Re Kumar
[2017] VSC 742
•6 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0291
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by AMIT KUMAR |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 December 2017 |
DATE OF JUDGMENT: | 6 December 2017 |
CASE MAY BE CITED AS: | Re Kumar |
MEDIUM NEUTRAL CITATION: | [2017] VSC 742 |
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CRIMINAL LAW – Bail – Applicant required to ‘show cause’ why detention not justified – Whether unacceptable risk – Bail refused – Bail Act 1977 ss 4(2)(d)(i), 4(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr G Boas | Emma Turnbull Lawyers |
| For the Respondent | Mr M Regan | Mr John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
Amit Kumar, an Indian national aged 43 years,[1] seeks bail. His application is supported by the affidavit of his solicitor, Emma Turnbull, affirmed 13 November 2017. The respondent opposes bail, and relies on the affidavit of Laura Keys, solicitor of the Office of Public Prosecutions, affirmed 28 November 2017.
[1]His date of birth is 17 June 1974.
The applicant has been in custody since 11 June 2016, the day he was arrested and charged with the following offences:
· attempted murder;
· intentionally causing serious injury;
· recklessly causing serious injury;
· aggravated burglary;
· destroying or damaging property;
· contravening a family violence safety notice intending to cause harm or fear for safety;
· contravening an interim personal safety intervention order;
· unlawful assault; and
· committing an indictable offence whilst on bail.
Following committal, an indictment has been filed in this Court charging the applicant with:
· contravention of a family violence safety notice intending to cause harm or fear for safety (charge 1);
· destroying or damaging property (charge 2);
· aggravated burglary (charge 3);
· attempted murder (charge 4);
· intentionally causing serious injury (charge 5); and
· recklessly causing serious injury (charge 6).
Each charge arises from events that occurred on 10 June 2016, involving the applicant’s former partner, Amy Hemming, and Ms Hemming’s current partner, Muhammed Idrees. For a period of about two and a half years, between 2012 and 2014, the applicant and Ms Hemming were in a relationship. They have a child, who was aged two years when the alleged offending took place.
The prosecution alleges that at about 9.00 pm on 10 June 2016, the applicant went to Ms Hemming’s residence, a unit in Caulfield East. Mr Idrees was present at the unit. The applicant ‘peeped’ through the window, then left.
About an hour later, the applicant again went to the unit and tried unsuccessfully to force open the front door. Ms Hemming locked the front door from the inside and told the applicant to leave.
The applicant looked through the window and saw Mr Idrees inside. He abused both Ms Hemming and Mr Idrees, and in Hindi threatened several times to kill Mr Idrees. The applicant also threatened to break the window if he was not allowed inside. He then broke the window and attempted to climb through it. While the applicant did this, however, Mr Idrees opened the front door and attempted to leave, so that the applicant was able to enter the house through the open front door.
Whilst inside the unit, the applicant armed himself with a large piece of broken glass from the broken window, and allegedly committed a number of acts founding the offences with which he is charged, including:
· striking Mr Idrees once to the head with the piece of broken glass;
· assaulting him and threatening to kill him;
· stabbing Mr Idrees to the face, neck and chest with two smaller pieces of glass while shouting at him that he would kill him; and
· making further threats to Mr Idrees when he returned to retrieve his clothing which he initially left behind.
As a result of the applicant’s attack upon him, Mr Idrees suffered serious and deep lacerations and stab wounds to his chest, neck, ear and hands (including defensive injuries), requiring surgery. He has been left with permanent injuries, including scarring, loss of full use of his right thumb and numbness and pain to the left side of his face due to nerve damage.
Show cause
The applicant has previously been refused bail with respect to the present charges in the Melbourne Magistrates’ Court on 7 September 2016, and at the conclusion of his committal hearing on 5 May 2017.
At the time of the alleged offending, the applicant was on bail with respect to four charges of contravening a family violence intervention order (‘FVIO’) between 18 and 24 February 2015, the victim also being Ms Hemming. Those matters have since been finalised. On 23 December 2016, three charges were struck out, and the applicant was convicted and fined $1,000 on the fourth charge.
By virtue of various parts of s 4(4) of the Bail Act 1977 (‘the Act’), this court must refuse bail unless the applicant ‘shows cause why his detention in custody is not justified’. For example, the applicant is charged with an offence against the Act (s 4(4)(d)); is charged with contravening a family safety notice in which he is alleged to have used violence and, in the previous 10 years, has been found guilty of the same charge (s 4(4)(ba)(i)); is alleged to have used an offensive weapon, namely a shard of glass, in the course of committing the offences with which he is charged (s 4(4)(c)); and is charged with aggravated burglary (s 4(4)(bc)).
The applicant’s background
The applicant was born in India and moved to Australia in 2009, with his ex-wife, Ms Semma Seema. They have two daughters, aged 5 and 7 years. The applicant assaulted Ms Seema on two occasions on 29 March 2013. After he and Ms Seema separated in around 2012, the applicant commenced a relationship with Ms Hemming, producing another child. The children live with their mothers.
Presently, the applicant is in Australia on a spousal visa; but he has been given notice by Australian Border Force that he is an unlawful non-citizen, and, if released on bail, will be kept in immigration detention or deported.
This is the first time that the applicant has been in custody. His criminal history includes two prior findings of guilt in 2014 and 2015 for offences of violence against Ms Hemming, and a prior conviction for contravention of a FVIO — also against Ms Hemming — in 2016. He was not gaoled for those offences.
The applicant’s contentions
The applicant relies on the following factors in combination to show cause why his continued detention in custody is not justified, and to address the issue of unacceptable risk:
· Delay: It seems that the matter is currently to be listed for trial in April 2018. There is a degree of uncertainty as to the matter proceeding on that date due to the outstanding disclosure by the Office of Public Prosecutions of the transcripts of ten hours of ‘Arunta’ calls. There may be issues that arise with respect to the accuracy of translation and the relevance of a further number of hours of calls which have not been transcribed.
· Limited criminal history: The applicant has never previously been in custody and has a very limited criminal history.
· Addressing of issues whilst in custody: The applicant has completed courses whilst on remand which are hoped to address his issues managing emotions and ‘harm reduction’.
· The prospect of immigration detention minimises flight risk: The applicant submits that he will be detained by immigration authorities if released on bail. For that reason, he will not be a flight risk.
· Family Violence Protection Order in place: A final Family Violence Protection Order was granted by the Melbourne Magistrates’ Court on 5 September 2016 protecting Ms Hemming and her daughter. The applicant is fully aware of the order. There is also a Final Intervention Order, dated 17 May 2017, in place protecting Ms Seema from the applicant. This was made after he contacted her requesting help with his immigration matters. He became aggressive during these conversations.
· The applicant’s passport has been surrendered: The applicant’s passport is in the custody of Victoria Police.
The respondent’s submissions
The respondent opposes the application for bail and submits that the applicant has not shown cause why his detention in custody is not justified. Furthermore, the respondent contends that there is an unacceptable risk that the applicant, if released on bail, would harm Ms Hemming. The respondent relies on the following:
· Lack of supervision in immigration detention: The informant gave evidence. It seems that he has made enquiries with the Security Liaison Team of the Australian Department of Immigration and Border Protection (‘the Department’). Relevantly, the Department has informed him that telephone calls made by the applicant cannot be monitored because he would not be incarcerated but, rather, would be in immigration detention.
· Subjective apprehension of fear by the applicant’s ex-partners: The informant has asked the applicant’s two ex-partners, Ms Hemming and Ms Seema, their attitude to the applicant’s release on bail. They report that they fear for their safety if the applicant is released on bail. Indeed, Ms Seema has reported that she is fearful that the applicant will kill her if she remarries. In that regard, it is to be noted that on 9 March 2017, an Interim Intervention Order, and on 17 May 2017, a Final Intervention Order, were granted against the applicant naming Ms Seema as the affected family member, the grant of those orders being based at least partly upon intimidating contacts made to her by the applicant, and by an intermediary on his behalf.
· Immigration detention: The respondent submits that it is likely that the applicant would not be released immediately into immigration detention, noting that the Department would be obliged to deport the applicant unless a State Criminal Justice Stay Certificate was issued by the Director of Public Prosecutions. After such a Certificate issues, the Department would consider whether or not to grant the applicant a State Criminal Justice Stay Visa; and, if the applicant is successful in obtaining that visa — and I consider that there is a live question as to whether he might be — he could no longer be held lawfully in immigration detention and would be released into the community.
· The applicant’s criminal history: The respondent disputes that the applicant’s criminal record is limited, and relies on his repeated contravention of intervention orders and the consistency of his offending against the same complainants.
· Further breaches of FVIOs: Finally, the respondent submits that the applicant has likely continued to breach the intervention orders that he is subject to by having contacted Ms Hemming whilst in custody, and by allegedly arranging for his family members and associates to contact her as well.
Discussion
Section 4(2)(d)(i) of the Act provides that a court shall refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail, fail to surrender himself into custody in answer to his bail; commit an offence whilst on bail; endanger the safety or welfare of members of the public; or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. In considering whether there is an unacceptable risk that the applicant if released on bail would ‘interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person’, I am required to consider the nature and seriousness of the alleged offences[2] and the strength of the evidence against him;[3] and to take into account his character, antecedents, associations, home environment and background,[4] and any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.[5] The applicant is not required to show an absence of unacceptable risk.
[2]Section 4(3)(a).
[3]Section 4(3)(d).
[4]Section 4(3)(b).
[5]Section 4(3)(f).
Section 4(4) does, however, place a burden of persuasion on the applicant to show cause why his detention in custody is not justified, should any of the conditions enumerated in the subsection obtain. Of course, the mere fact that any of the matters set out in s 4(4) are attracted does not necessarily establish that the applicant poses an ‘unacceptable risk’ within the meaning of s 4(2)(d)(i). Determination of whether he does — or does not — pose an unacceptable risk requires an evaluation of the suggested risk, consistently with the requirements of s 4(3) of the Act.[6] As has been observed previously, any grant of bail must carry some risk.[7] Section 4(2)(d)(i) contemplates, however, that there are some risks which may be acceptable. The Act also contemplates that there will be cases where what might initially be thought to be an unacceptable risk might be rendered acceptable by, for example, the imposition of strict conditions of bail.
[6]Robinson v The Queen (2015) 47 VR 226, 243–4 [62]–[65] (Priest JA); Re Guirguis [2015] VSC 242 [40]–[43] (Priest JA).
[7]Ibid.
In my opinion, bail should be refused. There is, in my view, an unacceptable risk that the applicant would, if released on bail, commit an offence whilst on bail, or interfere with witnesses or otherwise obstruct the course of justice. Even were the applicant to go immediately into immigration detention upon his release on bail, in the circumstances I could have no confidence that he would not be in a position to threaten, intimidate or otherwise interfere with Ms Hemming (for example, by telephone or through an intermediary). The existence of FVIOs does not much mitigate that risk, in my view, given the applicant’s past willingness to breach similar orders.
Moreover, given the present state of the evidence — and notwithstanding the applicant’s submissions to the contrary — I can have no confidence that the applicant would not be released from immigration detention on a State Criminal Justice Stay Visa. I would not regard the applicant’s release into the community as desirable, given that I think that there is a very real risk that, should he be released, the applicant will commit further violent offences directed towards his former intimate partners or Mr Idrees. In light of the applicant’s past breaches of court orders designed to protect others from the applicant’s violence, I do not consider that such risk may adequately be addressed by strict conditions of bail.
Given that I regard the applicant to pose an unacceptable risk in the manner described, he has failed to satisfy me that his detention in custody is not justified.
Order
The application for bail is refused.
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