Re Malhotra
[2020] VSC 577
•13 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0088
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and |
| IN THE MATTER of an application for bail by PIYUSH MALHOTRA |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 May 2020 |
DATE OF RULING: | 13 May 2020 |
CASE MAY BE CITED AS: | Re Malhotra |
MEDIUM NEUTRAL CITATION: | [2020] VSC 577 |
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CRIMINAL LAW —Application for bail — Charges of rape, aggravated burglary and recklessly causing injury — Attack on rider in applicant’s taxi — Whether compelling reason established — Discussion of meaning of compelling reason — Whether unacceptable risk if released on bail — No prior criminal history — Delay — COVID-19 pandemic — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4C, 4D, and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Page | Emma Turnbull Lawyers |
| For the Respondent | Mr B Sonnet | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Piyush Malhotra (the ‘applicant’). He faces charges of rape, aggravated burglary and recklessly causing injury arising from events that are alleged to have occurred on 21 September 2019. He was charged with those offences and remanded in custody on 23 September 2019.
As the applicant is accused of committing Schedule 2 offences under the Bail Act 1977 (Vic) (the ‘Act’), namely, rape and aggravated burglary,[1] it is not a matter of contention between the parties that I must refuse bail to the applicant unless I can be satisfied by him that a compelling reason exists that justifies the grant of bail.[2]
[1]Bail Act 1977 (Vic) sch 2 items 9 and 22(b) (‘Bail Act’).
[2]Ibid ss 4AA(3), 4C(1A) and 4C(2).
Procedural history
The applicant has been refused bail in the Melbourne Magistrates' Court on three previous occasions. On 24 September 2019, he was refused bail on the basis that he had not demonstrated a compelling reason and was considered an unacceptable risk of failing to surrender into custody in accordance with the conditions of bail.
His application was again refused on 10 January 2020, having failed to establish new facts and circumstances. Finally, on 27 April 2020, he was refused in the Magistrates' Court on the grounds that he had not shown a compelling reason justifying a grant of bail and was an unacceptable risk of failing to surrender into custody.
This matter is next listed for a contested committal at the Melbourne Magistrates' Court on 28 October 2020, after having been adjourned from its previous listing on 8 April 2020. That adjournment occurred as a result of the Court's response to the COVID-19 pandemic. I am told that the respondent seeks to obtain a further adjournment of the committal on the basis that the October date is unsuitable for the informant and another witness. It is not yet known when that new date will be.
The alleged offending
On 21 September 2019, the female complainant attended a hens party and had consumed a significant amount of alcohol such that, around 7:50 pm, she was denied entry to a hotel attended by the group she was with. She and a friend left the hotel and went to the friend’s residence in Toorak. At approximately 10:45 pm, the complainant hailed a taxi driven by the applicant to go home.
The applicant drove the complainant to her Hawthorn address, arriving at about 11 pm. The applicant failed to activate the meter in the taxi during the trip, resulting in no trackable fair being logged for Silver Top Taxis. The complainant did, however, pay a fare of $26.57 at the completion of the trip using her debit card on an EFTPOS terminal inside the taxi.
After paying, the complainant exited the vehicle and walked down a long driveway towards her unit. The prosecution allege that the applicant also got out of the taxi and followed the complainant to the front door of her unit. As she entered, the complainant turned to see the applicant running towards her. As she tried to get inside and close the front door, he is alleged to have pushed the door open and entered her unit.
Once inside, it is alleged that he pushed her onto the floor in the entry way and laid his full body weight on top of her, saying, 'Come on, come on'. The complainant fought back by kicking and punching the applicant and scratching his neck. However, he managed to pin her down and cover her mouth with his hand. He then allegedly put his hand under her skirt and penetrated her vagina with his fingers over the top of her underwear. The complainant cried and continued to struggle against the applicant during the course of this incident. After about a minute and a half, the applicant got up and left the unit.
The complainant attempted to call her partner and a friend, but they did not answer. At 11:13 pm, her partner called her back, and she told him that a taxi driver had attacked her inside her house. She was crying, hysterical, and hyperventilating. Her partner returned home to comfort her.
At about 11:20 pm, the complainant called the Camberwell Police Station and reported the incident. The police attended her unit about 15 minutes later, where they observed that her keys were still in the front door. They found the complainant to be in an intoxicated and shaken state. Police took the clothing worn by the complainant during the incident and made arrangements to attend the residence again the following morning.
While at the unit the next day, police located and seized the back of a pin on the floor of the entryway.
On 23 September 2019, the complainant made a statement and provided police with a copy of her bank records showing the taxi fare transaction from the night of the alleged offending. Inquiries conducted with the owner of the EFTPOS terminal revealed that it was currently in a taxi owned by another individual, who, in turn, confirmed that his taxi was in the applicant's possession on the night of 21 September 2019. That the applicant was driving the taxi on that day is not in contention between the parties, and it has also been confirmed through closed-circuit television footage from inside the taxi.
Significantly, on the same day, police located three fingerprints on the outside of the complainant’s front door. Those fingerprints have been identified as belonging to the applicant.
As stated, he was arrested on 23 September, and a search warrant was executed at his Glenroy residence. Clothing that was worn by him on the night of 21 September 2019 was seized for forensic examination, including a jacket with the pin located on the lapel. It was noted that the back of that pin was missing.
The results of forensic examination of clothing seized indicated the presence of the complainant's saliva on the sleeve of the applicant's jacket, while the applicant's DNA was located on the outer chest region of the complainant’s shirt. There were fingernail scrapings taken from the complainant on 24 September 2019, but they did not identify the presence of any DNA that could be said to belong to the applicant. The pants that the applicant was wearing on the night of the alleged offending were also analysed for carpet fibres; however, no fibres consistent in appearance with the carpet fibres from the complainant’s residence were detected.
During the search of his premises, the applicant told the police that he had a dispute with a girl who had not paid him. He stated she had a fight with her boyfriend, had hit his cab and also scratched his neck. After being conveyed to the Melbourne West Police Station, he provided a ‘no comment’ record of interview and was later charged.
On 25 September, the complainant noticed bruising on her chest from the incident, which she photographed. Those photos were later examined at the Victorian Institute of Forensic Medicine.
The applicant
The applicant is a 33-year-old Indian national, currently in Australia on a bridging visa. Prior to being on remand, he lived in Glenroy and was employed as a taxi driver and a chef. He is married with two children, though his family presently reside in India. He has no criminal history, and the current remand period represents his first time in custody.
The applicable legislation
Section 4 of the Act makes it plain that the applicant is entitled to bail unless the Act requires the Court to refuse bail. As stated, in the circumstances of the present application, the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail,[3] the burden of which rests with the applicant.[4]
[3]Bail Act ss 4AA(3), 4C(1A).
[4]Ibid s 4C(2).
In considering whether a compelling reason exists, the Court is required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[5]
[5]Ibid s 4C(3).
If the Court is satisfied that a compelling reason exists that justifies the grant of bail, it must then apply the ‘unacceptable risk test’ pursuant to s 4D(1)(b) of the Act. In accordance with ss 4E(1) and 4E(2) of the Act, the Court must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant would, if released on bail –
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
When interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[6]
[6]Ibid s 1B(2).
Meaning of ‘compelling reason’
The meaning of ‘compelling reason’ was considered by the Court of Appeal in Rodgers v The Queen [2019] VSCA 214. Drawing on a number of decisions previously delivered by this Court, their Honours summarised the principles to be applied when considering the compelling reason test as follows:
(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 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’.[7]
[7]Rodgers v The Queen [2019] VSCA 214 [43] (citations omitted).
In Re Diab [2020] VSC 196, Beach JA, sitting in the Trial Division of this Court, summarised the principles emerging from recent case law on the way in which the COVID-19 pandemic may be relevant in applications for bail. In the context of an application involving the higher threshold of ‘exceptional circumstances’, his Honour explained that:
(1)Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence'.
(2)The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases. The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail'.
(3)The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand. Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
(4)In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail. [8]
[8]Ibid [38].
In Re Guinane [2020] VSC 208, Tinney J found compelling reasons justifying the grant of bail, having accepted the applicant’s submissions regarding the significant delay and ‘increasingly onerous and restrictive conditions’ of remand caused by the current health crisis, among other factors.
In Re Ashton [2020] VSC 231, Elliott J found that compelling reasons were established in circumstances where that applicant also faced charges of aggravated burglary and rape. In that matter, delay in setting down a committal hearing and time in custody being rendered ‘significantly more difficult than usual’ due to COVID-19 restrictions, considered in the context of other surrounding circumstances including stringent proposed conditions of bail, the applicant’s prospects of employment and a limited criminal history, were determinative.
In reaching this conclusion, Elliott J stated:
I have taken into account that any delay is unlikely to result in the applicant, if found guilty of the charges, spending more time on remand than the significant term of imprisonment that would likely be imposed (reflecting the maximum penalties applicable for each charge). However, this fact, nor any of the other matters raised in opposition, does not expunge the existence of, or outweigh the factors giving rise to, the compelling reason.[9]
[9]Re Ashton [2020] VSC 231 [68].
In that matter, Elliott J also made reference to the impact of the introduction of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), which contemplates the option of judge-alone trials where consented to by the accused. His Honour explained:
Trials by judge alone may possibly assist with reducing the delays faced by the justice system (assuming appropriate judicial resources are available), however, assuming each of the other prerequisites are met, ultimately the decision whether or not to proceed in this manner is a matter for the applicant. If the appropriate time to consider this issue arises in the future, and trial by judge alone is not consented to, the fact of likely significant delays remains. In any event, this recently introduced alternative manner of proceeding with the trial does nothing to alleviate the unsatisfactory delay leading up to the committal.
… Regardless, in all the circumstances, there is significant delay in this case stemming from the COVID-19 pandemic, whichever course might be adopted in the future.[10]
[10]Ibid [65]-[6].
The effect of these measures on the present issues of delay is difficult to estimate, at least at the present time, and made all the more difficult in the absence of knowing whether someone in the applicant's position would be prepared to give up his right to trial by jury.
The applicant’s contentions
The applicant has relied, amongst other things, on the weakness of the prosecution case, coupled with inordinate delays and onerous conditions in custody occasioned by the COVID-19 pandemic to demonstrate a compelling reason that would justify the grant of bail.
Strength of the prosecution case
On his behalf, Mr Page conceded that the offending in this case is serious but pointed to issues in relation to the strength of the prosecution case. Primarily, he appeared to rely on the issues of credibility and reliability that will arise in relation to the complainant given her state of intoxication on the night and the fact there is a lack of forensic evidence supporting the allegations. On that basis, it was submitted that there is a significant prospect that the applicant will be acquitted.
This matter is still in its early stages as there has not yet been a committal. In my opinion, the most that can be said about the prosecution case is that the complainant has made statements to police which, on the face of them, appear to be consistent, and it will not be until her evidence is tested that any real conclusion can be drawn about her credibility. But even if her credibility is affected by the amount of alcohol she consumed on the night — which, no doubt, she will readily admit — her evidence, of course, is not the only evidence to be considered, and I will return to that in a moment.
Delay and length of pre-trial custody
More significantly, Mr Page relied on the delay. As I have said, the applicant was arrested on 23 September 2019 and has now been in custody a period of nearly eight months. The committal is again to be rescheduled from October 2020 to some future date. It was submitted on his behalf that the delays in this matter to date are already substantial and there continues to be uncertainty about how long he will spend on remand if bail were to be refused.
It is not in contention, I would not have thought, that if he is convicted of these matters the applicant will receive a substantial sentence, which will undoubtedly exceed any time that he has served on remand.
COVID-19 and onerous conditions of custody
Mr Page, on behalf of the applicant, also relied on the fact that restrictions imposed by Corrections Victoria as a result of the COVID-19 pandemic have resulted in more onerous conditions in custody. It was noted that the applicant is currently only permitted to leave his cell for one hour per day and cannot receive visits.
Fortunately, as of today’s date, there has been no diagnosed cases of COVID-19 in any of the Victorian prisons. Mr Page informed the Court, however, that in the last few days, the prison where the applicant is currently held was on lockdown, due to what appeared to be a false positive COVID-19 test result.
Absence of prior convictions
As I previously noted, the applicant has no prior convictions or other outstanding matters. This is also his first time in custody.
Stable accommodation and surety
The applicant further relied the availability of stable accommodation in the community. It was proposed that he will reside with his brother at 6 Harding Street, Thomastown. His brother does not have a criminal history, and Mr Sonnet, on behalf of the respondent, has indicated that there is no particular issue in relation to that address or the applicant’s brother.
His brother will also offer a surety in the sum of $5,000, which is not substantial but is nonetheless a surety.
Unacceptable risk
Mr Page submitted that the above matters also demonstrate that he would not present an unacceptable risk if released on bail. It was also submitted that any risk in his release can be made acceptable by the imposition of conditions.
The respondent’s contentions
On behalf of the respondent, Mr Sonnet submitted that the applicant has failed to demonstrate a compelling reason and, with some considerable justification, did not accept that there is a weakness in the prosecution case.
Indeed, his submission was that it was an overwhelmingly strong prosecution case, which is supported by DNA and fingerprint evidence implicating the applicant, together with defensive scratch wounds on the applicant’s neck and the pin back from the applicant’s jacket found inside the complainant’s home. There was no reason why the applicant would have been in the vicinity of the victim's front door or inside her premises, other than to be committing the offence.
Counsel for the respondent submitted that the offending is ‘extremely serious’, as it is alleged to have taken place inside the complainant's home in circumstances where she was vulnerable, being alone and intoxicated, and leaving visible bruising.
Mr Sonnet conceded that some delay is anticipated due to the COVID-19 pandemic but effectively submitted any conclusion about delay is, to a degree, speculative at this time. In the written material, the respondent contended that the delay was not disproportionate having regard to the seriousness of the offending.
The respondent opposed the application on the basis that the applicant is an unacceptable risk of failing to surrender into custody, given that he has a wife and two children in India and that he had told the informant, upon his arrest, that he planned to return to India in December 2019. His only connections in the jurisdiction are his brother and sister-in-law. Counsel for the respondent also submitted that a $5,000 surety is not sufficient to reduce his risk of absconding overseas and that seizure of his passport does not allay this concern.
Analysis
In determining whether the applicant has demonstrated a compelling reason, I have considered the matters relevant matters within s 3AAA of the Act that were raised by counsel.
It was not in dispute that the offending, if proved, is very serious. I am also not persuaded by any means that there is a weakness in the prosecution case. It will depend on the testing of the evidence at the committal whether there is any flaw in the evidence given by the complainant, but I do not see any reason to judge this case as weak.
However, the applicant has no prior convictions and is in custody for the first time. He has now been on remand for just over seven months. In the present circumstances, I would estimate that a trial of this matter would remain at least some 12 months away, which would mean the applicant’s pre-trial custody would be in the order of 20 months. That is, of course, only an estimate, but it remains that the applicant is facing a very substantial period of pre-trial custody.
That delay has been brought about, in part, by the present COVID-19 pandemic. It is self-evident that the suspension of jury trials by both this Court and County Court is having a significant effect on the delays that will be experienced — particularly in the County Court, where the volume of work is so high. In my opinion, it is doubtful that the right to trial by judge alone will make a significant difference to these delays. In any event, as I indicated earlier, that would depend on an accused person being willing to forego their right to trial by a jury.
Those matters, in my opinion, do amount to compelling reasons to justify the grant of bail. However, that is not the end of the matter, as I must also consider the question of unacceptable risk.
It is true that the applicant has no ties to the jurisdiction beyond his brother and sister-in-law. However, it is also true that apart from the mere assertion that the applicant could obtain false travel documents, there is no evidence before the Court to suggestion that he has a history of obtaining false documents nor that he has the means to do so. The applicant is without prior convictions, which also means there is no history of noncompliance with bail orders or other court orders, and I am therefore not persuaded that the imposition of strict conditions would not ameliorate the risk.
Conclusion
I therefore propose that the applicant be admitted to bail upon his own undertaking, with one surety in the amount of $5,000, and with the following conditions:
1) The applicant is to appear before the Melbourne Magistrates’ Court on 28 October 2020 and thereafter as directed by that Court.
2) The applicant is to reside at 6 Harding Street, Thomastown in the State of Victoria (the ‘place of residence’) and not change his place of residence without first providing written notice to the informant within 48 hours of the proposed change;
3) The applicant is not to be absent from his place of residence between the hours of 8 pm and 8 am (the ‘curfew hours’) each day, and is to present himself at the front door of his place of residence during the curfew hours if and when called upon by a member of Victoria police to do so;
4) The applicant is to report by telephone from his place of residence to the informant, or their nominee, as and when directed by the informant to do so;
5) The applicant is to report to the Officer in Charge, or their nominee, at the Reservoir Police Station every Monday, Wednesday, Friday and Saturday between the hours of 9 am and 5 pm, but such reporting is suspended until the informant has notified the applicant that in-person reporting has resumed;
6) The applicant is to surrender any passports or any other travel documents to the informant prior to his release on bail and not apply for other such document;
7) The applicant is not to leave the State of Victoria without first obtaining leave from this Court or the Melbourne Magistrates’ Court;
8) The applicant is not to attend any points of international departure; and
9) The applicant is not to contact or associate with, directly or indirectly, any witness for the prosecution other than the informant or their nominee.
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