Re Madden
[2021] VSC 817
•9 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0337
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by ANDREW MADDEN | Applicant |
---
JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 and 8 December 2021 |
DATE OF ORDERS: | 8 December 2021 |
DATE OF JUDGMENT: | 9 December 2021 |
CASE MAY BE CITED AS: | Re Madden |
MEDIUM NEUTRAL CITATION: | [2021] VSC 817 |
---
CRIMINAL LAW – Application for bail – Charges of intentionally causing injury, making threat to kill, unlawful assault with a weapon and using a controlled weapon – Applicant on Community Correction Order – Compelling reasons established – Unacceptable risk not demonstrated – Bail granted – Bail Act 1977 ss 1B, 3AAA, 3A, 4C, 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Habib | Criminal Lawyers Geelong |
| For the Respondent | Mr N Watt | Legal Services Department, Victoria Police |
HIS HONOUR:
Introduction
Andrew Madden (‘the applicant’) was remanded in custody following his arrest on 2 November and was refused bail in the Geelong Magistrates’ Court[1] the following day in respect of four charges brought: intentionally cause injury; make threat to kill; unlawful assault with a weapon; and use a controlled weapon.
[1]The applicant failed to show compelling reasons and was found to be an unacceptable risk of committing a further offence, endangering the safety or welfare of another person, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody. Risk was the ‘determining factor’ due to the close proximity of the applicant’s residence to the complainant and his history of bail-related offending.
The applicant applies for bail. The charges are next listed in the Geelong Magistrates’ Court on 8 March 2022 for a contest mention.
The alleged offending
What follows appears from the prosecution summary.
The applicant and Timothy Thomas are neighbours, residing in opposing units at an address in Corio. At 11.20 pm on 2 November 2021, the applicant allegedly approached Mr Thomas’ unit and banged on the window. Mr Thomas and his partner, Megan Christensen, went outside to the shared driveway area where the applicant was yelling and accusing him of using cameras to watch him.
The applicant approached and attempted to punch Mr Thomas, who then struck the applicant to the face causing him to fall to the ground. He got up and tried to strike Mr Thomas again but was hit a second time. The applicant then ran inside his unit yelling ‘you’re dead, I’m gonna fuck you up’ and Mr Thomas and Ms Christensen went back inside their unit.
A short time later, the applicant again started yelling from the driveway area, Mr Thomas, Ms Christensen and Mr Thomas’ housemate, Chris Moore, went outside and saw the applicant holding a knife in his right hand. He swung the knife twice at Mr Thomas causing him to back away and then stabbed him once to the left forearm.
Emergency services attended and police directed the applicant to exit his unit. He made admissions to stabbing Mr Thomas and yelled at him ‘if they let me back, [you’re] dead dog’ and ‘I hope he dies I really do’ as he was escorted to an ambulance by police. This was captured on body worn camera footage.
Paramedics administered stitches to a cut on the applicant’s lip and Mr Thomas was taken to hospital for treatment for a dislocated elbow and a laceration to his arm requiring stitches.
At 3.15 am on 3 November, the applicant was taken to Geelong Police Station and interviewed. He stated he acted in self-defence and had stabbed Mr Thomas with the knife seized from his kitchen after Mr Thomas assaulted him.
Outstanding matters
At the time of the alleged offending the applicant was subject to a Community Correction Order (‘CCO’) (‘the CCO matter’).
He was sentenced to a CCO on 11 May 2021, with conditions to complete 30 hours of community work and engage with treatment as directed, after he was convicted of threatening to inflict serious injury, criminal damage, and breaching a final family violence intervention order (‘FVIO’). These offences arose out of a dispute with a female neighbour on 10 August 2020, during which the applicant threatened her with a chainsaw which he then used to damage a car in her driveway, in breach of a FVIO at the time.
A contravention summary report, dated 23 September 2021, notes that the applicant has been ‘difficult to engage’ and had not completed any of the community work hours. The report ultimately recommends that the CCO be cancelled and the applicant re-sentenced.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (‘the Act’).[2]
[2]Bail Act 1977 s 1B(2).
The applicant must satisfy the Court that there are compelling reasons to justify the grant of bail as he is charged with a Schedule 2 offence, namely committing an indictable offence whilst subject to a CCO.[3]
[3]Ibid sch 2, item 1(d).
In determining whether a compelling reason exists, the Court must take into account the relevant ‘surrounding circumstances’, including but not limited to, those prescribed by s 3AAA(1) of the Act.[4]
[4]Ibid s 4C(3).
If satisfied that a compelling reason exists, the respondent seeks to establish that the applicant should be refused bail as he is an unacceptable risk of endangering the safety of another, committing offences while on bail, interfering with witnesses, and failing to answer bail. In considering these risks, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[5]
[5]Ibid s 4E(3).
As the applicant identifies as an Aboriginal person, the Court must take into consideration any issues arising due to his Aboriginality.[6]
[6]Ibid s 3A.
The applicant’s personal circumstances
The applicant is a 36 year old Aboriginal Palawa man and a member of the Wathaurong Aboriginal Cooperative in North Geelong.
He has resided alone at the address where the alleged offending occurred for the past two years, which is a public housing unit. He has a history of mental health issues, trauma, and using methylamphetamine, alcohol, cannabis. He has diagnoses of borderline personality disorder, depression, anxiety, and he attempted suicide in 2011.
The applicant has a lengthy criminal history dating back to 1998 with a wide variety of offending. He has numerous relevant convictions for assaults on persons and emergency workers, making threats, using and possessing weapons, and breaching and failing to answer bail.
Further to the CCO matter, other relevant priors are summarised as follows:
(a) 7 January 2020: the applicant was convicted of two counts of recklessly causing injury, persistent contravention of a FVIO, contravening a FVIO with intent to harm, and making a threat to kill after he physically assaulted a former partner multiple times in two days.
(b) 20 November 2018: he was convicted of controlled weapon possession after being found with a knife and drugs.
(c) 21 December 2017: he was convicted of two counts of possessing a prohibited weapon after being found with a knuckle duster and retractable knife.
The applicant has been sentenced to community-based orders on nine occasions and has breached seven of these orders, having been found guilty of breaches on 12 occasions.
An interim personal safety intervention order (‘PSIO’) listing the applicant as the respondent and Mr Thomas as the protected person was made at Geelong Magistrates’ Court on 3 November 2021, with full conditions prohibiting the applicant from being within five metres of Mr Thomas or his residence. The matter is next listed for mention on 8 March 2022.
The applicant is also currently the respondent in two other intervention orders:
(a) a final FVIO protecting the applicant’s sister, in place until 1 November 2024; and
(b) a final no contact PSIO protecting the neighbour who was involved in the CCO matter, in place until 11 January 2022.
The applicant’s submissions
The applicant relies on the following matters, in combination, in support of the application for bail.
It is not conceded by the applicant that this is a serious example of the offending, as he relies on self-defence and submits there is a lack of evidence in relation to the alleged injury.
The applicant submits that the prosecution case cannot be considered strong by reference to witness statements supporting the applicant’s account. Further, the applicant submits there is evidence to suggest he acted in self-defence, including:
(a) the statement by a ‘somewhat’ independent witness, Mr Moore, that Mr Thomas assaulted the applicant and intended to continue this;
(b) that the applicant received treatment for injuries from ambulance officers; and
(c) that the incident occurred in the vicinity of the applicant’s residence, not Mr Thomas’.
The applicant concedes he has an extensive and relevant criminal history and was subject to a CCO at the time of the alleged offending.
The applicant identifies as Aboriginal and has a range of mental health issues, and submits that access to culturally-appropriate supports and mental health services, delay, and overrepresentation of Aboriginal persons in custody are all relevant considerations under s 3A of the Act.
The applicant proposes to return to reside in Corio.
The applicant proposes to receive support through the Court Integrated Services Program (‘CISP’).
The applicant was previously assessed and found unsuitable for CISP on three occasions in 2010, 2013 and 2014.
He was most recently assessed on 2 December 2021 and was tentatively recommended for case-management at which point it was determined that the applicant is:
(a) suitable for case management, provided that he is also referred to a local area mental health service (‘LAMHS’), specifically Barwon Health; or
(b) not suitable for case management if he is discharged to an in-patient facility, or, not referred to a LAMHS.
The author of the CISP report enquired with Geelong’s Mental Health Advice and Response Service who advised that the applicant is well-known to Barwon Health and was ‘case-closed’ to case management on 12 October 2021, reporting:
[M]ultiple psychiatric admissions in the context of anti-social personality disorder, drug-induced psychosis, situational crises, and suicidal behaviour. Previous discharge summaries also note histories of depression, obsessive-compulsive disorder, anxiety, and Cluster B personality traits (heightened emotional or unpredictable thoughts and behaviour)’.
CISP have determined that the applicant has acute mental health support needs which they are unable to manage and which limit his capacity to meaningfully engage with their services. It is recommended that he be referred to a LAMHS for primary case management, however, CISP are prepared to assist the Court with secondary case management by liaising with the LAMHS, assisting with referrals to other services, and providing reports.
During his CISP assessment, the applicant reported a history of mental health, substance use and trauma, and indicated previous engagement with treatment and pharmacotherapy through his regular general practitioner, Dr Ed Poliness, at Wathaurong Aboriginal Cooperative. He reported compliance with medication in custody and expressed a willingness to engage with counselling.
In an amended report dated 7 December 2021, the applicant was assessed as suitable. That report followed a discharge summary prepared by Forensicare on 7 December. In that summary, it was recommended, amongst other things, that the applicant continue his current medication and consider starting on a mood stabiliser, and it was noted that he is eligible for voluntary follow-up with a liaison arranged by Barwon Health Acute Mental Health Services.
The applicant submits there will likely be a lengthy delay in obtaining a contested hearing date as the contest mention is scheduled in March 2022 and the estimated time he will spend on remand is excessive considering the seriousness of the offending. If refused bail, this will limit appropriate treatment given his Aboriginality and mental health concerns.
The applicant submits that the availability of community supports and supervision, treatment for substance use, stable accommodation, and conditions that he comply with the PSIO and CISP directions, and not contact any witnesses would reduce any risk to an acceptable level.
The respondent’s contentions
The respondent opposes the application on the basis that the applicant has not demonstrated any compelling reason that justifies the grant of bail. Further, it is submitted that, if granted bail, he poses an unacceptable risk of endangering the safety or welfare of any person, committing a further offence, interfering with a witness or otherwise obstructing the course of justice, and failing to answer bail.
The respondent submits this is a serious example of offending due to the alleged use of a knife causing injury and that it occurred in public, near residential premises. The respondent disagrees with the applicant’s submission that the prosecution case is not strong, relying upon the statements of Mr Thomas, Ms Christensen and Mr Moore whilst acknowledging the possibility of self-defence.
The respondent submits that the applicant has an extensive and relevant criminal history with prior convictions involving violence, threats and use of weapons, possession of weapons and drugs, breaching orders, and a history of failing to appear and offending whilst on bail.
The applicant concedes that the applicant is an Aboriginal man with mental health concerns and that there are relevant considerations under s 3A of the Act.
The respondent submits that the proposed address is unacceptable as it is the place of offending and is adjacent to Mr Thomas’ residence. Further, as the applicant resides alone there is a lack of appropriate supervision. The respondent also notes that there is no evidence to support the applicant’s submission that he has applied for a public housing transfer.
The respondent submits there is a real risk the applicant will be released without immediate or adequate support, particularly as he has to seek out some of the supports proposed by CISP.
Unacceptable risk
The informant is concerned for the safety of Mr Thomas and the community if the applicant is released on bail as the applicant instigated the incident, stabbed Mr Thomas, and has a history of possessing and using weapons carrying a real possibility of serious injury or death. The respondent submits that, regardless of whether this incident occurred in the context of self-defence, the applicant’s history demonstrates ‘an obvious risk’. The informant is also concerned the applicant will follow through on the threats he made as he was escorted to the ambulance by police.
The respondent submits that if the applicant returns to live at the Corio address, the risk to Mr Thomas’ safety is exacerbated and this is so regardless of the existence of a PSIO given the applicant’s history of breaching these orders. Based on threats already made, it is submitted that the applicant may interfere with these witnesses by intimidating them and making further threats.
The applicant has eight convictions for failing to answer bail as well as numerous breaches of FVIOs and CCOs, demonstrating a disregard for court-imposed orders and bail conditions.
Consideration
The applicant must persuade the Court that there are compelling reasons justifying a grant of bail. As explained by the Court of Appeal in Rodgers v The Queen,[7] what is required is that 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.[8] It is not necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
[7][2019] VSCA 214.
[8]Ibid [43] (Beach, Kaye and Ashley JJA).
The offending is serious and involves an injury inflicted by a knife and a threat to kill. However, having read the statements, there is certainly a viable defence of self-defence. Of course, whether or not that defence will prevail at a hearing cannot now be known, but the material is of sufficient cogency for me to give it significant weight in my overall and preliminary assessment of the prosecution case. And the applicant enjoys the presumption of innocence.
The applicant has a rather abysmal criminal record and it is concerning that there are a number of offences relating to breach of bail, contravention of CCOs, and offences of violence. These factors increase the risk that the applicant might offend if granted bail.
I also note that the applicant is the subject of a FVIO in respect of which the applicant’s sister is the protected person. There are two PSIOs in place – one to protect a neighbour who was involved in the CCO matter, and the other the alleged victim of the present charges.
Equally, however, it is necessary to take into account the applicant’s history of mental illness. The applicant has a long and troubling medical history that suggests he suffers from personality disorders associated with disordered thought processes and impulsivity. He also has a history of psychosis, most likely drug induced, which is reflective of well-established abuse of alcohol and drugs, including cannabis and methamphetamine.
In addition, the material points to a strongly dysfunctional upbringing with little parental supervision and the trauma of the murder of an elder brother when the applicant was 14 years old.
The CISP report and recommendation that the applicant is suitable for supervision under the CISP program, together with the Forensicare discharge summary gives some hope that the applicant, if granted bail, will have support in the community for his mental health challenges. I note that the Forensicare summary contemplates that the applicant will voluntarily engage with Barwon Health and that he will be supported in this by CISP.
I also take into account, as I am required to do, that the applicant identifies as an Aboriginal man. Section 3A of the Act requires me to take into account any issues that arise in this context, including the applicant’s cultural background and his ties to extended family or place. The applicant has a regular general practitioner at the Wathaurong Aboriginal Cooperative, but there is little evidence that might better inform the application of s 3A in this case.
I also take into account both the delay that will be involved and the particularly onerous conditions that currently apply in prison as a result of the pandemic. Although the charges are currently, and are likely to continue, in the summary stream and the delay in the Magistrates’ Court is not as affected as those that are currently being experienced in the County Court, nevertheless, there will be some delay. Although at this stage I cannot be satisfied that the delay would mean that the time on remand would exceed any sentence, the proportion on remand would likely be substantial. Further, the conditions, including reduced visiting and the risks of lockdown, make incarceration considerably more onerous than in other times. In this respect, it is relevant that the applicant’s mental health is likely to make incarceration more burdensome.
Balancing the matters as best I can, I am persuaded that it would be unjust for the applicant to remain incarcerated on remand pending trial. He has shown compelling reasons.
Having regard to his past record, there is a risk of further offending whilst on bail. However, I am satisfied that the risk of offending or the risk to the safety or welfare of other persons is not unacceptable. In reaching that conclusion, I have given weight to the CISP recommendation and am persuaded that there will be support for the applicant in the community. I will require, as a condition of bail, that the applicant comply with any directions of CISP.
---