Re Maynard
[2022] VSC 616
•18 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0246
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an application for bail by PHILLIP MAYNARD |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 October 2022 |
DATE OF JUDGMENT: | 18 October 2022 |
CASE MAY BE CITED AS: | Re Maynard |
MEDIUM NEUTRAL CITATION: | [2022] VSC 616 |
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CRIMINAL LAW – Bail – Thirty-seven-year-old applicant with extensive criminal history – Charged with kidnapping, armed robbery, intentionally causing injury and other offences – Alleged offending shortly after completion of sentence for similar offending – Complainant now deceased, having never been cross-examined – Complainant had criminal history – Strength of prosecution case – Whether statements of complainant likely to be admitted into evidence – Whether jury likely to act on evidence of complainant – Case not a weak one – Likely delay of 24 months before finalisation of contested charges – Accommodation, employment and surety available – Applicant’s membership of outlaw motor cycle gang increased risk of reoffending – Compelling reason not made out – Unacceptable risk in any event – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4C, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R de Vietri | Emma Turnbull Lawyers |
| For the Respondent | Mr D Brown | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on a number of charges he faces, in respect of which the informant is Detective Senior Constable Tamika Butters (‘the informant’) of the Echo Taskforce. The charges are as follows:
• Kidnapping (common law)
• False imprisonment (common law)
• Armed robbery
• Intentionally causing injury
• Unlawful assault
• Prohibited person possessing a firearm
•Person subject to firearm prohibition order carry firearm or firearm related item (two charges)
• Possess drug of dependence (four charges)
• Handle stolen goods
• Deal with property suspected of being proceeds of crime
It is agreed between the parties that the Court is required to refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. This is because the applicant is accused of a Schedule 2 offence within the meaning of the Bail Act 1977 (‘the Act’).[1]
[1]Armed robbery is an offence which is contained at item 22 of Schedule 2 of the Act.
Procedural history
The alleged offending occurred on 15 May and 9 June 2022. The applicant was arrested and remanded in custody on 9 June 2022. He applied for bail in the Melbourne Magistrates’ Court on 16 September 2022. Bail was refused by the learned Magistrate. The certified extract from that hearing indicates that the ground for refusal was that there was an unacceptable risk that the applicant would commit an offence while on bail.
Three co-offenders have been charged with offences including kidnapping, false imprisonment, armed robbery and intentionally causing injury (‘ICI’). All have now been released on bail.
The applicant is next due to appear at Melbourne Magistrates’ Court for a committal case conference on 3 November 2022.
Summary of alleged offending
It is alleged that the applicant is a patched member and the Sergeant at Arms of the Melbourne Chapter of the Rebels Outlaw Motor Cycle Gang (‘OMCG’). I note that issue is taken with the second aspect of that. His co-accused are his 33-year-old female partner Rory Walker (‘Walker’), his 16-year-old son TP (‘TP’) and TP’s 35-year-old ex-partner Erin Gray (‘Gray’).
In March 2022, Irfaaz Ali (‘Ali’) was with some friends in Craigieburn when he was approached by Gray for help with her car, which would not start. TP was in the back seat of the car at the time and appeared drug affected. After Ali provided assistance, he and Gray swapped numbers and proceeded to exchange ‘flirty’ messages.
Sometime after their first meeting, Ali met with Gray and TP at Ali’s home. He purchased gamma hydroxybutyrate (‘GHB’) from Gray. TP told Ali at the time that his dad was the Sergeant at Arms of the Rebels, and that he was scared of him.
On 15 May 2022, Ali received a message from a number not known to him. The number was in fact that of the applicant. The message purported to be from Gray, suggesting she had broken up with TP and enquiring as to whether Ali wanted to purchase some GHB from her. Ali agreed to sample some GHB, with a view to potentially purchasing and then helping to on-sell the drug if it was up to his standard.
Later that day Gray and Walker drove to Ali’s house in Craigieburn to pick him up. Ali got into the rear seat of Gray’s car on the understanding that they were driving to the Craigieburn Bunnings carpark to sample the GHB. During the drive he realised the child lock had been activated. Unknown to Ali, the applicant was following behind Gray’s car in his own car.
While in Gray’s car, Walker (who had been covertly messaging the applicant) told Gray that she had arranged a buyer for some of the GHB, and asked Gray to stop nearby to facilitate the transaction. Gray drove to the end of a secluded road and stopped her car. At some point, Ali tried to open the rear door of the vehicle but was unable to do so, the child lock apparently being on. A Mitsubishi Triton utility driven by the applicant pulled up beside them. The applicant emerged from his vehicle and then entered the back seat of Gray’s car, wearing clothing with Rebels insignia on it. He accused Ali of standing over TP. Gray and Walker exited the car.
It is the prosecution case that, over the course of the next 30 minutes or more, the applicant violently assaulted Ali and robbed him. This included punching Ali to the head 15 to 20 times; hitting him with a mini sledgehammer to the face, back of the head and left hand; and forcefully removing a nose ring with pliers.
During the assault, it is alleged that TP entered the driver’s seat of the car and stated – when questioned by the applicant – that Ali had stood over him. The applicant asked Ali about this, and Ali responded: ‘Your son is a fucking liar’. The applicant then allegedly hit Ali repeatedly on the right kneecap with the hammer, which caused Ali to feel he might lose consciousness.
While the two men were still in the car together, it is alleged that the applicant took cash and various personal items of value from Ali at knifepoint; partially removed a black handgun from a bag and displayed it to Ali; and called an associate asking for sulphuric acid and caustic soda, saying, ‘I’ve got a cunt in the back who stood over my son and I need help’, to which the associate responded, ‘I can’t, I’m at work, just put the cunt in the boot and wait until tomorrow.’
At some point during the assault, Ali told the applicant he was connected to the Hell’s Angels OMCG. The applicant then started driving and called someone by the name of Brendon to confirm this, stating, ‘I’ve got one of yours and he’s running around saying he is the President,’ to which Brendon responded by telling the applicant to drop the person off.
The applicant then did some burnouts in the car, before stopping at the corner of Donnybrook and Brookeville Roads in Craigieburn. It is alleged that the applicant then got out of the car, got back into the backseat, and continued to assault Ali. Following this, he gave Ali baby wipes to clean up his blood, and let Ali out of the car. Ali tried but was unable to run. He collapsed to the ground before dragging himself up onto the railing at the side of the road at the intersection of Donnybrook and Brookville Roads. He was observed by a number of passing motorists who called 000 because of Ali’s obviously injured condition. On the attendance of police, a body-worn camera was operated, capturing the appearance and demeanour of Ali and some of the account he gave to the police about what had occurred earlier.
Ali was taken to hospital by ambulance, but self-discharged prior to completion of assessment and treatment. A CT scan was conducted which showed Ali had a broken nose, extensive swelling and tenderness to his right knee/thigh, a swollen black eye and bruising to his hands and arms.
Investigation
On 18 May 2022, Ali attended near the crime scene with members of Victoria Police and then retraced his steps back to the crime scene. The scene was examined by police who located two packets of cigarettes, one of which was of the same distinctive brand used by Ali, and baby wipes which appeared to be contaminated with blood.
On 2 June 2022, Walker’s car (which had been seized earlier) was examined, and blood splatter was located on one of the internal rear passenger doors. Preliminary testing identified the blood to be Ali’s.
On 6 June 2022, the applicant worked with police to put together face-fit images of two of the alleged perpetrators. These images resembled the applicant and Walker.
On 10 June 2022, Ali identified the applicant from a photo board.
Arrest and interview
On 9 June 2022, the applicant was arrested at an address in Kilmore, together with Walker, by members of the critical incident response team (‘CIRT’). The applicant took 18 minutes to surrender himself, during which it is alleged he drilled holes in his and Walker’s phones, making them inoperative.
A search of the house was conducted, during which investigators found a phone belonging to Ali, pliers, a wooden sledge hammer, shotgun shells, various drugs, three mobile phones, a stolen numberplate, a driver licence in the name of a third party, and clothing items with Rebels OMCG insignia on them.
A search warrant was also executed at the applicant’s home address in Wallan, where a gold necklace matching one stolen from Ali was located.
The applicant made no admissions during a police interview, and was charged and remanded in custody.
Recorded calls in prison
The prosecution relies on a number of recorded phone calls between the applicant in prison and his father, and second intimate partner, Kaycee Lewicki, since his remand, including:
· At 1.12 pm on 17 June 2022: the applicant spoke to Lewicki, and said ‘[Gray] is the mastermind behind all of this… I’m not the mastermind behind it all.’
· At 2.40 pm on 17 June 2022: the applicant spoke to his father and said, ‘How did they charge [TP] when pretty much all I said was, ‘Is that the bloke there?’, and [TP] said, ‘Umm, yeah...’ Then [TP] fucked off and I’ve talked to the bloke… That cunt. The whole fucking time I said to him, ‘You’re free to go mate, you can do whatever you like, but don’t stand over me fucking kid’… That’s the only thing that was fucking said, me and him had a bit of a row and that was it… [TP] was sitting in my car from a distance… I didn’t take nothing off him.’
· At 1.19 pm on 19 June 2022: the applicant spoke to Lewicki and said: ‘[TP] had nothing to do with this… When I pulled up I said is that the guy there and I walked over… It wasn’t even as bad as what he is saying it was… I sat in the car but there was no child lock or nothing on the car. I just sat in the backseat and gave him a backhander in the mouth, and I said, ‘You fuckhead… Don’t stand over me son, you’re 30 odd years old and he is 16’, and him and [Gray] drove straight off… Then I said to the cunt, ‘Get out of the fucking car… You’re free to go whenever you want brother, just get the fuck out of the car, go’, and he goes, ‘Nah, nah, I want a lift home…’
Death of complainant
Ali made four police statements between 16 May 2022 and 23 June 2022, each containing the perjury jurat. Ali ended his own life on 31 August 2022. The account he gave in his statements remains untested.
Personal background
The applicant is 37 years old and was born in Tasmania. He has one older sibling. His parents separated when he was a child, and his father later moved to Victoria while his mother remained in Tasmania. The applicant reports having a good relationship with both parents. His father was in Court in support of the applicant, as were his uncle and the proposed surety, Brian Hull. At the age of 20, the applicant moved to Melbourne. He has a history of work as a labourer and crane operator, and reports being in good physical health and having no mental health concerns.
Criminal history
The applicant has a substantial criminal history in Victoria commencing in 2008, which includes priors for a range of violence, behavioural, drug, dishonesty, driving and property offences. It also includes dispositions for breaches of court orders and failing to answer bail.
Relevantly, in 2016, the applicant was sentenced in the County Court at Melbourne to an aggregate term of seven years’ imprisonment with a five-year non-parole period for kidnapping (common law), armed robbery, aggravated burglary with a firearm, and intentionally cause injury.[2] The offending was exceedingly serious, and some of the offences were committed while the applicant was subject to a community correction order. He was released on parole in September 2020. Parole lapsed in February 2022, some four months prior to the present alleged offending.
[2]DPP v Maynard [2016] VCC 2047 (Judge Grant).
The applicant earlier accrued a large number of findings of guilt and convictions from courts in Tasmania, commencing when he was still a child in 1998 and continuing until his move to Victoria and the commencement of his Victorian criminal history. Amongst his many court appearances in Tasmania, the applicant was sentenced in the Supreme Court in 2001 on charges of aggravated burglary and assault.
The law
Section 1B of the Act sets out the guiding principles of the Act, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[3] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[4] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Section 4C(2).
[4]Section 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, 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, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[5]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised 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 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.[6]
[5][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[6]Ibid [43].
Evidence led during the application
The informant gave sworn evidence during the hearing of the application. In examination in chief, she detailed the physical injuries suffered by Ali, the applicant’s history in respect of bail, and the concerns she holds that if released on bail, the applicant would continue to offend, both as an individual and by virtue of his connection with the Rebels OMCG.
In cross-examination, the informant was taken in some detail through Ali’s criminal history, including to some narratives prepared in respect of particular crimes. Whilst acknowledging that there were some matters of violence in Ali’s history, the informant did not agree that the record shows him to be a person with a propensity for serious violence. She agreed that his convictions show Ali to be a person who has used illicit drugs regularly and has a tendency to be erratic and aggressive in the family violence context. He also has convictions for dishonesty offences. The informant acknowledged the central importance of Ali’s statements in the prosecution case. She was taken through the items of corroborative evidence relied upon, and the various addresses associated with the applicant at which searches were conducted. The informant indicated her concerns about the location at which it was proposed the applicant would reside if released on bail, and the practicality of reporting by the applicant, and monitoring of a curfew condition.
The applicant’s submissions
Mr de Vietri commenced his submissions with emphasis upon the guiding principles in s 1B of the Act, and the proposition that the presumption of innocence referred to therein is the same for the applicant, a man with a chequered history, as for any other person. The past background and associations of the applicant must not be allowed to detract the Court from a frank and realistic assessment of the specific charges he faces, which would reveal that he faces the very real prospect of acquittal or even withdrawal of the most serious charges. The prospect of a long delay combined with the weakness of the prosecution case should amplify the importance of the guiding principle concerning the presumption of innocence.
Mr de Vietri took the Court to the meaning of a compelling reason as considered in the case of Re Ceylan,[7] emphasising that the test is not as onerous as the exceptional circumstances test, and that a combination of matters can satisfy the requirement.
[7][2018] VSC 361 (Beach JA).
Mr de Vietri relied upon a combination of matters in proof of a compelling reason in this case. These were:
a) The weakness of the prosecution case. Mr de Vietri submitted that the prosecution case is weak on all charges. There is a real prospect of acquittal, and, worse still, a prospect that when a Crown Prosecutor looks carefully at the charges in preparation for a trial, a determination will be made that charges should not proceed. Whilst in the end, he acknowledged that if the statements of Ali were accepted by a jury at face value, there would be evidence sufficient to prove all of the charges, Mr de Vietri submitted that Ali’s account ‘could not possibly be accepted beyond reasonable doubt by a jury’,[8] and could never result in a conviction. He submitted that on the most serious charges, the prosecution ‘will inevitably fail at reaching the high standard of beyond reasonable doubt in the circumstances of the present case’,[9] and he later described the prosecution’s prospects of a conviction on those charges as ‘hopeless’.[10]
[8]Transcript 52.
[9]Ibid 54.
[10]Ibid 58.
In justification of his unflattering description of the strength of the prosecution case, Mr de Vietri pointed to three ‘lines of defence’ as he put it, or barriers to success by the prosecution. First, there would be the hurdle in s 65 of the Evidence Act 2008 (‘the Evidence Act’) to overcome before the statements of Ali could even go before a jury. The prosecution would not be able to overcome the hurdle of persuading a judge that the representations would qualify for admissibility under either of s 65(2)(b) or (c). Secondly, even if the evidence qualified for admission under s 65, s 137 of the Evidence Act would represent a further stumbling block which would not be surpassed, due to the danger of unfair prejudice constituted by the inability of the defence to be able to test evidence coming from such a dubious source as Ali. Finally, on the matter of the weight which would be attached by a jury to the evidence in question should it actually be admitted, Mr de Vietri submitted that there would be no way that a jury would be satisfied of the accuracy of Ali’s account as to its key issues. None of the matters relied on in corroboration would help the jury understand the events which actually took place, as opposed to simply indicating that something took place. A jury could never be satisfied beyond reasonable doubt of the commission of the crimes.
Notwithstanding some of these more dire assessments of the weakness of the prosecution case, later in his submissions, Mr de Vietri submitted that I should find that there would be ‘a real prospect of acquittal’.[11]
[11]Ibid 72.
b) Delay. it was submitted that the applicant would be likely to spend a period of the order of 24 months on remand should he not be released on bail. That delay should be viewed as being a very significant matter in light of the prospect of an acquittal.
c) The extent of compliance with previous grants of bail and the demonstrated ability of the applicant to comply with parole. Notwithstanding the less-than-perfect criminal record of the applicant, he has accrued no convictions since being released on parole. Nor did he re-offend while in prison. In spite of being on numerous grants of bail in the past, he has not committed offences whilst on bail. Under this head, Mr de Vietri also asserted that with the exception of the applicant’s most recent convictions which led to the prison sentence, the remainder of his history is ‘relatively moderate’,[12] arising from conduct he engaged in when he was a ‘young fellow’.[13]
[12]Ibid 75.
[13]Ibid 76.
d) The availability of an appropriate address. The applicant would be able to reside at an address with his uncle Ian Maynard, who is not a person of concern to the police.
e) The availability of employment. The applicant has a job on offer with Leo Heffer from Wallan Garage. This would give the applicant a meaningful occupation of his time and reduce the risk of him being idle and getting into trouble.
f) The availability of a surety of $10,000. Brian Hull, a family friend, was at Court, and willing to offer this substantial sum. The applicant would have a real sense of obligation towards Mr Hull, and also to his father, whom he would not want to let down.
Turning to the question of unacceptable risk, Mr de Vietri pointed out the requirement to take the surrounding circumstances into account at this stage of the bail process as well. Of course the applicant poses a risk, as do most applicants for bail. Whilst he does have associations with OMCGs, it was disputed that he holds any particular office with the Rebels. The Court must look at the acceptability of the risk posed in light of the long delay and the real prospect of acquittal. The risk that exists can be mitigated by strict conditions and thereby made acceptable. Indeed, the applicant would be amenable to the imposition of any conditions.
The respondent’s submissions
Mr Brown, for the respondent, took issue with Mr de Vietri’s characterisation of the strength of the prosecution case. He submitted that there are two issues. First, is the applicant the person who got into the back seat of the vehicle with Ali? Secondly, is what was set out in the statements of Ali a true description of what occurred? As to the first issue, there is overwhelming evidence that the applicant was the person. As to the snd, there would be a number of pieces of evidence which would entitle a jury to be satisfied beyond reasonable doubt that things happened as described by Ali. Mr Brown took the Court through the supporting evidence. On the question of the admissibility of the statements of Ali pursuant to s 65 of the Evidence Act, Mr Brown submitted that the contents of the body-worn camera footage would support admissibility. He contrasted this case with a bail application in which the judge would be able to strongly factor into the mix the fact that a tendency submission relied upon by the prosecution would be highly unlikely to lead to the admission of evidence. He submitted that there is a very good chance that the statements of Ali would be admitted in this case. On the other hand, there is a good chance they would not be. It would depend on the state of the evidence at the time. It is too early to predict. As looked at now, bearing in mind the question mark over admissibility, Mr Brown did not describe the case as strong. But nor is it weak. And if the evidence does go in, the case would be ‘reasonably strong’.[14]
[14]Ibid 93.
Mr Brown submitted that if the evidence passed the test for admissibility under s 65, it would be unlikely that s 137 would come into play in light of the strong probative value of the evidence. As for the proposition that the inability of the defence to test the material would be a matter pointing to exclusion under s 137, Mr Brown submitted that there have been many cases in Victoria and interstate where untested evidence has been permitted to be led under s 65.
As for the matter of the weight that a jury would attach to Ali’s statements should they be admitted, Mr Brown disputed that the priors of Ali would be such that a jury would not accept his account.
On the question of delay, Mr Brown invited the Court to act on the basis of a likely delay of 18 to 24 months.
Mr Brown took issue with Mr de Vietri’s characterisation of the prior convictions of the applicant. He submitted that five terms of imprisonment have been imposed on the applicant for offences of violence, indicating that he has a substantial propensity for violence.
In respect of the proposed address of the applicant, it is not satisfactory, being in a remote location which would render the enforcement of a curfew condition difficult if not impossible, and would be in close proximity to another patched member of the Rebels.
All-in-all, Mr Brown submitted that the compelling reason test has not been satisfied. The only weighty ground relied upon was delay, and the delay at this stage is not sufficient to lead to a finding of a compelling reason.
As for unacceptable risk, the real risk here is of re-offending, and thereby endangering the safety of members of the community. The informant’s concerns in this regard are based very much in reality. Not too many offenders come before a court in a bail application having accrued five terms of imprisonment for crimes of violence, and with a proven association with an OMCG. Mr Brown placed some, but not so much, reliance on the risk of failing to appear.
As to the status of the applicant in the Rebels, in light of the applicant’s denial before me of being the Sergeant at Arms or holding any office in the organisation, Mr Brown noted that the word Sarge was written on the mirror at the applicant’s girlfriend’s house where he was arrested, his partner referred to him as ‘Sarge’, and the applicant’s son claimed that he was the Sergeant at Arms of the Rebels.
Mr Brown submitted that the current associations and background of the applicant, including the fact of his being subject to a current family violence intervention order (‘FVIO’), do not point to the risk he poses being an acceptable one.
In respect of the nature and seriousness of the alleged offending, Mr Brown submitted that it is self-evident that the alleged offending is extremely serious, committed by someone who was sentenced in 2016 for very similar offences.
It was submitted that none of the conditions of bail would be sufficient to reduce the risk posed to an acceptable one.
Analysis
At the outset, I note that the first of the non-exhaustive list of circumstances set out in s 3AAA(1) of the Act, that is, the nature and seriousness of the alleged offending, is an important matter, which did not receive much attention in the application. That is perhaps unsurprising. It is perfectly obvious that the offending alleged is very serious.
At the heart of the application was the contention, put with varying degrees of force, as to the relative weakness of the prosecution case, and the prospect of an acquittal.
It is often difficult, of course, for a judge in the position in which I find myself, that is, at an early stage of a prosecution, before there has been an opportunity for evidence to be tested and its true force to be crystallised, to make a meaningful assessment of the strength of the prosecution case. In this case, there is the added uncertainty whether or not the evidence by way of the account of Ali will ever get before a jury. If it does not, then the prosecution case would likely collapse on any of the more serious charges.
It would be correct to say, in my view, that in many, if not most, bail applications, in light of the early stage at which such applications are brought, and the uncertainty about how the evidence will pan out, it is best for the bail decision maker to be somewhat circumspect in the assessment of the strength of the prosecution case. That is not to deny that in some cases, the evidence will be obviously strong, or obviously weak, which may warrant a determination accordingly, a matter which will often be of great significance in the outcome of the application. But in many cases, for reasons including questions to be resolved in future as to the admissibility of evidence, the matter of the likelihood of an important witness being accepted by a jury as a witness of truth, or the question of what a jury may make of a largely circumstantial case, it will be difficult to be definitive. In my view, this is such a case.
Having considered this important aspect of the surrounding circumstances set out in s 3AAA(1) of the Act, I do not accept Mr de Vietri’s characterisation of the prosecution case, at some points in his submissions at least, as in effect, a hopelessly weak one.
Accepting, as I believe I should, that there is some uncertainty whether a trial judge would permit the important representations contained within the statements of Ali to go before a jury, I do not believe that the prospect of admission of the evidence is by any means a forlorn one from the prosecution perspective. Without forming a concluded view, and noting that I have not been able to view the body-worn camera footage which might have an important role to play in the determination by a judge whether the representations of Ali pass the test for admissibility under either of the relevant limbs of s 65(2) of the Evidence Act, it seems to me that there may end up being a strong basis for admissibility. It is unnecessary for me to elaborate on my reasons for saying that.
On the matter of the possible application of the exclusionary rule contained in s 137 of the Act, whilst again not being definitive on the matter, I agree with Mr Brown that if a judge was able to be persuaded that the evidence would pass the test for admissibility under s 65, exclusion under s 137 would seem unlikely. The probative value of the representations contained in Ali’s statements would be high, as they would be capable of establishing all of the elements of the more serious crimes with which the applicant is charged. The danger of unfair prejudice pointed to by Mr de Vietri, namely, the fact that the evidence would be unable to be tested, would be unlikely to outweigh the probative value. That danger, after all, is one which is present in respect of many instances of hearsay evidence, and is considered capable of being ameliorated by the giving of appropriate judicial directions.
I turn now to Mr de Vietri’s submission that there would be no way that a jury would be prepared to accept the key aspects of the account of Ali contained in his representations, and could never be satisfied beyond reasonable doubt of the commission of the crimes. As part of those contentions, Mr de Vietri dismissed the supporting evidence relied upon by the prosecution, on the basis that it is not capable of establishing the events which took place. On that last matter, I respectfully think it may betray a misunderstanding of the concept of corroboration, which has of course, in any event, lost the significance it once held in criminal proceedings. A jury may consider that the items of evidence relied on in support – for example, the observations by motorists of the injured and distressed state of Ali shortly after he left the company of the applicant, the finding of his blood on the baby wipes found at the alleged crime scene, and the possible finding of Ali’s blood in the motor vehicle in which he said he was violently assaulted – fit in very neatly with the account given by Ali, provide direct support for some important aspects of that account, and may strengthen the prospect that his overall account was a truthful and accurate one.
I do not accept that Ali’s account has the shortcomings pointed to by Mr de Vietri, and nor do I accept that a jury would necessarily reject his account out of hand on account of his criminal history. He was, after all, a man who volunteered an account to the police which had him as a drug user who was involved in an agreement to traffic drugs. There was no compulsion on him to do that. The fact that he had a criminal history may be no surprise to the jury.
In the end, of course, it will be a matter for a jury what they make of the account of Ali, should they get to hear it. I do not accept that the account could not be accepted by a jury.
In conclusion on the matter of the strength of the prosecution case, I consider that while the prosecution case will have its challenges, and the case could not be described as a strong one, nor could it be considered to be a weak one. It is somewhere in the middle. Of course I accept, as was in the end submitted by Mr de Vietri, that there is a prospect of an acquittal. There always is. That is not to say, however, that there is not also the realistic prospect of a conviction.
I accept that the matter of a likely delay is important. I accept that the delay may run to 24 months or so, which is substantial. If coupled with a prosecution case that was hopelessly weak, it may be determinative. That is not the case here, however. It is notable of course, that when regard is had to the matter in s 3AAA(1)(l), that is, the likely sentence should the applicant be found guilty, it was not submitted on behalf of the applicant that any time on remand would exceed the likely sentence upon conviction. That was understandable in light of the seriousness of the current offending, and the extensive criminal history of the applicant.
I turn now to the third circumstance mentioned in s 3AAA(1) of the Act, that is, the applicant’s criminal history. The history is lengthy and concerning, containing, as noted by Mr Brown, numerous terms of imprisonment for offences of violence, and including prior convictions as recently as 2016 for kidnapping, armed robbery, aggravated burglary and ICI. As I have already noted, the charges in respect of which the applicant was sentenced in the County Court in 2016 were exceedingly serious. The appearance is of a person with a long-term lack of respect for the law, and a worrying propensity for the commission of seriously violent crimes. In that context, the third matter relied upon by Mr de Vietri in support of bail, namely the conduct of the applicant since being released on parole, is of modest weight. He was in custody for five years. Upon his release, he was subject to stringent parole conditions. Within months of the end of parole, he is alleged to have carried out this serious offending.
Under the same head, Mr de Vietri relied on the contention that the applicant has not committed offences whilst on bail in the past. The fact is, the applicant has been dealt with on at least two occasions, once in Tasmania and once in Victoria, for failing to answer bail, and once, admittedly at a very young age, for breach of bail conditions. In addition, he has on a number of occasions been found guilty of breaching suspended sentences and community based dispositions to which he was subject. His overall compliance with orders of courts has not been good.
There is a FVIO currently in place, and I have regard to that as I am required to do.[15]
[15]The Act, ss 3AAA(1)(f) and 5AAAA(2).
Turning to the personal circumstances, associations, home environment and background of the applicant, these are not to his favour. His association with the Rebels OMCG is concerning, and clearly increases the risk of his reoffending. His father apparently has OMCG connections, and on the face of it his 16 year-old son may be heading down the same path.
The address at which it is proposed that the applicant would live, or more properly, the location, is far from perfect, being somewhat remote which would create some practical difficulties which were commented upon by Mr Brown, but at the same time being in close proximity to another patched member of the Rebels.
As for the availability of employment to the applicant, and the availability of a surety, in the context of the extent and subject matter of the past history of the applicant and the nature of the current alleged offending, these would do little to reassure the Court that the applicant would not pose a significant risk of reoffending.
All-in-all, having considered all of the surrounding circumstances of this case, I am not satisfied that the applicant has discharged the burden resting on him of proving that a compelling reason exists that justifies the grant of bail.
That would be sufficient to dispose of this application. For completeness, I can indicate that had I come to consider the question of unacceptable risk as a separate step in the bail process, I would have been satisfied that the respondent has discharged the burden of proving that the applicant, if released on bail, would pose an unacceptable risk of endangering the safety or welfare of any person and committing offences while on bail.
Conclusion
For the reasons stated above, this application for bail must be refused.
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