Re Menon
[2020] VSC 565
•7 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0182
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by Krishna MENON |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 August 2020 |
DATE OF JUDGMENT: | 7 September 2020 |
CASE MAY BE CITED AS: | Re Menon |
MEDIUM NEUTRAL CITATION: | [2020] VSC 565 |
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CRIMINAL LAW – Application for bail – Sexual penetration of a child under the age of 12 – Sexual assault of a child under the age of 16 – Criminal damage – Making threats to kill – Resisting an emergency worker on duty – Complainant nine year-old grandniece – Delay – Strong prosecution case – Lack of criminal history – Impact of COVID-19 on experience in custody – Compelling reason not satisfied – Bail refused – Bail Act 1977 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D. Cronin | Papa Hughes Lawyers |
| For the Respondent | Mr L. Cameron | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Krishna Menon (‘the applicant’) is charged with committing sexual offences against his nine-year old grandniece (‘the complainant’) between 23 and 24 March 2019. He is also charged with offences against other persons, alleged to have been committed on the same occasion. The charges on the indictment are as follows:
(a) sexual penetration of a child under the age of 12 (two charges);
(b) sexual assault of a child under the age of 16;
(c) criminal damage;
(d) making threats to kill (two charges); and
(e) resisting an emergency worker on duty (two charges).
By notice dated 5 August 2020, the applicant seeks a grant of bail from this Court. He was previously refused bail on a number of occasions at the Shepparton Magistrates’ Court and the Melbourne County Court, as detailed below.
As the applicant is charged with Schedule 2 offences within the meaning of the Bail Act 1977 (‘the Act’),[1] the parties accept that bail must be refused unless the applicant can satisfy this Court that a compelling reason exists that justifies the grant of bail.[2]
[1]Namely, sexual penetration of a child under the age of 12 and making threats to kill (being an indictable offence in the course of committing which the applicant is alleged have used or threatened to use an offensive weapon as defined by s 77 of the Crimes Act 1958). See Schedule 2 items 13 and 23 of the Act.
[2]Ibid ss 4AA(3), 4C(1A), 4C(2).
Procedural history
On 24 March 2019, the applicant was arrested, charged and remanded in relation to the charges involving his extended family. Following an unsuccessful application on 26 March 2019, he was granted bail at the Shepparton Magistrates’ Court on 2 April 2019 with conditions prohibiting contact with prosecution witnesses and requiring compliance with a no-contact interim Family Violence Intervention Order (‘FVIO’) made on 25 March 2019. That order named his wife (‘HM’) and the complainant as the affected family members.[3]
[3]The informant states that bail was granted on ‘compassionate grounds’ as the applicant’s mother had died prior to making the application.
On 4 June 2019, the applicant’s bail was revoked as a result of breach-related offending involving repeated instances of contact with HM. The applicant entered a plea of guilty to contravening a conduct condition of bail and persistent breach of a FVIO. He was sentenced in the Shepparton Magistrates’ Court on that day to a fine of $1,200 without conviction.
On the same day, the applicant was charged with a further 19 offences in relation to the same incident in March 2019 and other historical offences against the complainant. However, as is clear from the indictment, the historical offences are no longer pursued and the number of charges relating to the events of 24 March 2019 have reduced.
The applicant has since been refused bail on three separate occasions on 1 August 2019, 11 December 2019 and 23 April 2020. On the most recent occasion, bail was refused on the basis of a failure to show a compelling reason and that the applicant posed an unacceptable risk of committing an offence whilst on bail.
The applicant was committed to trial in the County Court by way of straight hand up brief in November 2019, after which time an indictment was filed. The trial was initially listed to commence on 18 May 2020, but has been adjourned to a date to be fixed as a result of the COVID-19 pandemic.
The matter is next listed for mention at the County Court on 5 October 2020.
The alleged offending
A large amount of material was provided to the Court on this application, including the entirety of the depositions. For the purposes of this judgment, I have summarised the relevant aspects of the Summary of Prosecution Opening.
The prosecution case is, on 23 and/or 24 March 2019, the applicant sexually penetrated and sexually assaulted the complainant. It is alleged that these offences occurred at the applicant’s home in a regional Victorian town, where he resided with his wife and the complainant’s half-sister (‘OR’). The complainant previously resided at that address in the custody of the applicant and HM for approximately two years, before being returned to the care of her father (‘KR’) in October 2018.
On the evening of 23 March 2019, the complainant, KR, and her grandmother (‘SD’) attended the applicant’s home for dinner. The applicant and KR consumed a significant amount of rum throughout the evening, leading to the former becoming intoxicated. During the evening, KR decided to stay the night at the applicant’s home as he did not want to drive in an inebriated condition.
At approximately 9.30pm, HM and OR went to sleep in the master bedroom. The applicant was to sleep in OR’s bed, nearby to a spare bedroom prepared for the complainant and SD to sleep in.
Around 1.00am, SD and KR watched a film in the lounge room, while the complainant and the applicant watched her iPad on the bed in OR’s bedroom. The complainant retreated to the spare bedroom to sleep and was visited by the applicant, who allegedly told her to come to his room after SD had fallen asleep. It is alleged that he stated, ‘I want to fuck you’, before leaving the room.
The applicant returned to the spare room a short time later, where he allegedly pulled his shorts and underwear down and exposed his penis. He then inserted his penis into the complainant’s mouth. The complainant attempted to close her mouth, however, the applicant held her head and forced his penis into her mouth until he ejaculated inside it. The complainant later described that ‘white stuff’ came out of the applicant’s penis and she spat it onto the floor. It is alleged that the applicant lifted the complainant’s t-shirt and kissed, licked and gently bit her breasts before pulling her track pants and underwear down to her knees, exposing her vagina. He allegedly proceeded to touch, kiss and lick her vagina, before using his fingers to separate her vagina and lick inside it. It is alleged he then kissed, and attempted to insert his tongue into, the complainant’s mouth. The prosecution allege that he then placed his left hand on the complainant’s vagina and his right hand on her breasts.
At this time, it is alleged that SD entered the spare room to check on the complainant and observed the applicant naked with his left hand on the complainant’s vagina and his right hand on her breast. His clothes were on the floor. The complainant was trying to pull her pants and underwear back up, stating ‘don’t do it, don’t do it’. Upon seeing SD, the applicant quickly left the room, pulling his pants up. Shortly after, the complainant described the incident to her father in the presence of SD and later to HM. She told HM that ‘Poppy forced me and Poppy pulled his pants down and he put his dick in my mouth’ and ‘… Poppy’s trying to make me naked’. When asked by SD as to why she did not yell out, the complainant said that the applicant was covering her mouth and she could not yell.
It is alleged that HM got out of bed and confronted the applicant, who was found sleeping in OR’s bedroom. She asked him, ‘did you touch [the complainant] you dirty pig?’. The applicant did not respond and became enraged when told that the police were being called to attend. He slapped his wife and yelled at SD, saying ‘what did I do [name], what did I do?’. It is alleged he then confronted the complainant and said, “why did you tell?” and attempted to strike her, but missed and instead hit the side of HM’s face. KR then slapped the applicant, which led him to fall backwards into a wall, causing damage to the plaster. Except for the applicant, all of the persons present then left the house.
It is alleged that the applicant then obtained a machete from the garage and came outside, waving the weapon around while telling his family members to ‘fuck off’. They fled to neighbouring properties in fear of him while KR called police again to inform them that the applicant was now armed. The applicant allegedly chased KR and OR to a neighbour’s home and banged on the front door before returning to his premises. He then used the machete to damage KR’s car and continued to yell abuse and make threats against him.
Upon their arrival, police located the applicant inside his home with the machete. As captured on body-worn camera footage, he refused to drop his weapon when requested to do so and stated ‘see this knife, I will cut your fucking head off’. He used the machete to slash the mesh on the front security door, before thrusting the machete towards police in a threatening manner. The applicant continued to abuse and threaten the police, taunting and challenging them to enter the property. During these events, an officer drew his firearm. The applicant eventually opened the door, but still refused to drop the weapon, and was subsequently tasered, subdued, and arrested.
The applicant refused to be assessed by attending ambulance officers and spat at them. He was arrested and cautioned and remained abusive and uncooperative. He was wrestled into a divisional van by police, and continued to scream abuse and kick the inside of the van. Police formed the opinion he was highly intoxicated.
The applicant was conveyed to Seymour Police Station, where his clothes were seized. During his record of interview, he stated he had consumed approximately a litre of rum and was ‘blind drunk’. He stated he had tucked the complainant into bed and then went to sleep in another room. His next memory was of his wife yelling at him. The applicant stated he did not know why she was angry and followed her to her room, but could not recall anything further until speaking to police at the front door. He denied all allegations of sexual assault and stated he would not abuse his own niece. The applicant admitted to owning a machete, but stated that he could not remember obtaining it or all the events alleged to have occurred after. He said that he could not remember damaging the front door and denied assaulting his wife.
During the record of interview, when informed there was an eyewitness, the applicant responded, ‘I don’t want to see them in my house. I’ll chop their head off.’ When asked why the police used a taser, he said “I don’t know, I was black out”. The applicant was remanded in custody and underwent forensic examination.
The prosecution allege that, following the events that took place at the applicant’s home, the complainant went to a neighbour’s house and asked to be let in. The neighbour observed her shaking and repeating the events that had happened. She repeated that her grandfather had gone crazy with a machete trying to get everyone and that her family ran in different directions. She said that a man had put his penis in her mouth and that she was scared that her grandfather was going to come and find her. After some time, she disclosed that the man that put his penis in her mouth was ‘her grandfather’.
Around 4.00am that morning, SD allegedly gave a version of events to the neighbour, in which she described walking into a room, seeing the applicant on top of the complainant with his penis in her mouth, trying to take her clothes off. Further, the complainant made a subsequent disclosure to an examining ambulance paramedic that she had “a pain in her mouth and throat from where he had put it in there”. The complainant appeared distressed and fearful.
The same paramedic examined the applicant and observed him verbally abusing police, smelling of alcohol and being non-compliant. The applicant abused the ambulance officers, telling them to “get fucked, go fight yourselves” and attempted to spit at them. The ambulance officers declined to examine him further as they regarded him as non-compliant and presenting a safety risk.
The complainant was taken to the Royal Children’s Hospital, where she underwent an examination. On 25 March 2019, a Video Audio Recording of Evidence (‘VARE’) was conducted, during which the complainant disclosed two further instances of sexual assault in 2018 and January 2019. Those incidents are not proceeding as charges.
It is alleged that forensic analysis of both the applicant and complainant identified the complainant’s DNA and possible saliva inside the applicant’s underwear and on his penis. Further, the applicant’s DNA and possible saliva was located on the complainant’s breasts, as well as inside her underwear and t-shirt.
On 25 March 2019, the aforementioned interim no-contact FVIO was imposed. A final FVIO is now in place that does not prevent contact with HM. Other FVIOs have been imposed and are in effect in respect of SD, OR, KR and the complainant.
As above, the applicant breached the conditions of his bail and persistently contravened the interim FVIO. On 7 May 2019, the applicant informed the informant that he had spoken to his wife twice over the phone. After being told that phone checks would be submitted, he admitted to other phone calls and contact with HM. Phone checks revealed that he called HM 34 times and sent her multiple short messages over the course of approximately one month. Phone checks carried out on HM’s phone revealed she had rung the applicant 52 times over a period of approximately three weeks, with the applicant answering those calls on 40 separate occasions. It was also found that HM sent the applicant multiple short messages. Based on these events, the applicant was subsequently charged and fined $1,200 without conviction.
The applicant
The applicant is a 56 year old man, born in Fiji. He attended school until the age of 16, after which he commenced an apprenticeship in his uncle’s business and became a qualified plumber. The applicant moved to Australia at the age of 35, where he met HM. The couple married in 1999 and later purchased the family home, where they have resided for approximately ten years. The home is subject to a mortgage serviced by the applicant.
The applicant became an Australian citizen in 2007. He has maintained gainful employment since moving to Australia, most recently as a service technician at Hobart Food Equipment for approximately 15 years. In that role, he held an Australian National Clearance which allowed him to access military bases.
The applicant’s criminal history is limited to offences subsequent to the present charges, being the breaches of bail and contraventions of the interim FVIO detailed above. There are no outstanding matters against him.
The applicable legislation
As the applicant is charged with Schedule 2 offences,[4] the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.[5] The applicant bears the onus of satisfying this test.[6] In considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’ set out in s 3AAA of the Act.[7]
[4]Namely, sexual penetration of a child under the age of 12 and making threats to kill (being an indictable offence in the course of committing which the applicant is alleged have used or threatened to use an offensive weapon as defined by s 77 of the Crimes Act 1958). See Schedule 2 items 13 and 23 of the Act.
[5]The Act ss 4AA(3), 4C(1A).
[6]Ibid s 4C(2).
[7]Ibid ss 4C(3).
The meaning of ‘compelling reason’ was considered by the Court of Appeal in Rodgers v The Queen.[8] Drawing on a number of decisions delivered by this Court, the Court of Appeal summarised the relevant principles 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’.[9]
[8][2019] VSCA 214.
[9]Ibid [43] (Beach, Kaye and Ashley JJA) (citations omitted).
If the Court is satisfied as to the existence of a compelling reason, it must then consider the unacceptable risk test.[10] This requires the Court to refuse bail if satisfied by the prosecution that there is an unacceptable risk that the applicant would, if released on bail –
[10]The Act s 4D(1)(b).
(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.[11]
[11]Ibid ss 4E(1), 4E(2).
In considering whether any relevant risk is unacceptable, the Court must again consider the relevant ‘surrounding circumstances’ and whether any conditions of bail may be imposed to mitigate the risk to an acceptable level.[12]
[12]Ibid s 4E(1).
As the alleged offending involves family violence offences, the Court is also required to consider whether, if the applicant was released on bail, there would be risk that he would commit family violence and whether that risk could be mitigated by the imposition of bail conditions or the making of a FVIO.[13] As above, the applicant is currently subject to four FVIOs in relation to the complainant, HM, KR, SD and OR.
[13]Ibid s 5AAAA(2).
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[14]
[14]Ibid s 1B(2).
The evidence
Both parties provided sworn affidavit material to the Court. The Court also heard viva voce evidence from two witnesses, which I have summarised below.
Detective Senior Constable Nathan Trimby
The informant in this matter, Detective Senior Constable Nathan Trimby, referred to a summary of offences report he prepared in relation to the applicant. With respect to phone contact between the applicant and HM between 10 April and 14 May 2019, he informed that the call and message history of the applicant’s phone had been wiped clean, such that he could not obtain any evidence of the text messages between them.
Further, the informant gave evidence that, despite having made a statement to police that supported the prosecution case, HM’s attitude changed shortly after the incident and she has refused to cooperate ever since. He stated that she became quite hostile and has been extremely abusive towards him, other police officers and the Court during bail hearings, to the point where she has been removed from the courtroom.
The informant also expressed the belief that HM had attempted to interfere with witnesses and assaulted KR. He deposed that she attempted to intimidate him at the Melbourne Magistrates’ Court in October 2019, causing him to be fearful for his partner and his children.
With respect to the alleged disclosure by the complainant to a neighbour, he confirmed that this person was not a family member of the complainant or applicant. He noted he was not aware of any previous contact between the complainant and that neighbour prior to the night of the alleged offending.
During cross-examination, the informant confirmed that the applicant contacted him and voluntarily disclosed he had been in contact with his wife. He confirmed he was aware that the applicant and HM have been married for at least 20 years and that he had seen medical material that HM had previously suffered a stroke, ankle injury and depression.
With respect to whether the applicant is a flight risk, the informant confirmed that the applicant had travelled to Queensland for a funeral and returned to Victoria in accordance with a variation of his bail.
The informant opined that the complainant was a credible and consistent witness, but agreed the content in her VARE had yet to be tested. When questioned about the issue of transference of DNA, he noted that the complainant had identified where the applicant allegedly touched her and that DNA saliva was located in those places. He confirmed there was high statistical weighting of the complainant’s DNA on the body of the applicant, compared to the low statistical rating of the DNA result of KR’s DNA being on the applicant’s body. The informant also pointed to a high statistical rating of the complainant’s DNA being on the front panel of the applicant’s underwear. As such, in addition to the eyewitness evidence of SD, he asserted that there was extremely good corroborative evidence of the applicant’s offending.
Kathryn Potempski
The applicant called Kathryn Potempski, who is HM’s sister, to give evidence. Ms Potempski confirmed that, should the applicant be granted bail, he would be able to reside at her premises with her and her husband. She gave evidence that her home does not contain alcohol and that there would be adequate facilities for the applicant.
Ms Potempski expressed her belief that the applicant is a kind, gentle and honourable person whom she admires, who does not like to swear in front of women. She confirmed her knowledge of the allegations against him.
Ms Potempski was prepared to provide the Court with an undertaking to contact the police should the applicant breach any bail conditions, and emphasised she would have no hesitation in doing so. During cross-examination, she confirmed there would always be someone at home if the applicant was bailed to live at her address.
The applicant’s contentions
The applicant relies upon the following matters in combination to demonstrate the existence of a compelling reason justifying the grant of bail.
Delay
The applicant’s trial was originally listed to commence on 18 May 2020, but was adjourned in accordance with the County Court’s response to COVID-19. It is next listed for mention on 5 October 2020. The applicant anticipates ‘very significant’ delay before the trial can be heard, noting that the prosecution witness, SD, currently resides in Fiji, which may cause further issues in listing the matter.
It was noted that an application will be made pursuant to s 198A of the Criminal Procedure Act to cross- examine SD prior to trial. Due to COVID-19 international travel restrictions, it is unknown when she will be permitted to travel to Australia and logistical difficulties are anticipated in having her travel to a suitable location in Fiji to give evidence over video link. Further, the complainant will give evidence in a special hearing, with the assistance of an intermediary, which will add to the delay. As such, it is submitted that the delay experienced by the applicant will be longer than usual and potentially significant.
It is acknowledged that the allegations are serious and that, should the applicant be found guilty, a significant term of imprisonment would likely be imposed. However, it is noted that the applicant has been on remand for approximately 17 months and that the standard sentence for a sexual assault is four years’ imprisonment.
Ultimately, the applicant submits that the trial is hoped to commence in 2021, but that this would be conditional on jury trials restarting in Victoria. It is submitted that he is facing the prospect of up to a two-year delay before the matter is finalised.
Strength of the prosecution case
The applicant denies the alleged offending. It is submitted there will be a contested trial, and that the credibility and reliability of the complainant and SD are heavily in issue. With respect to SD, it is noted that she may be motivated to make false accusations against the applicant due to ongoing criminal proceedings in Fiji in which he is a complainant. The applicant’s legal representatives were granted leave to cross-examine her regarding her possible familial connection to that case.[15]
[15]Pursuant to s 198A of the Criminal Procedure Act 2009.
With respect to the complainant, it is submitted that an issue at trial will be whether the complainant was coached by SD or KR to make false allegations. It is also noted that she has made previous allegations against other individuals that have not proceeded. The applicant notes the complainant has only made one VARE on the day following the incident, meaning that the purported consistency in her evidence can only be assessed over a 24 hour period.
Acknowledging that the DNA evidence appears prima facie attractive, the applicant submits that those findings may be explained by a process of transference. It is noted that the complainant was at the applicant’s home on the night of the alleged offending, presumably used the same bathroom as him and slept on bedding at the residence. The applicant pointed to the findings of KR’s DNA being present on the applicant’s penis. It is contended that these issues will be explored prior to trial.
As to the strength of the prosecution case, the applicant notes it cannot be regarded as weak or flawed. It is accepted that the complainant complained about the applicant’s conduct almost straight away and gave a detailed account of the events later in her VARE. However, it is argued that coercion or construction of a false story could have occurred at an earlier time, being an issue for the jury to determine.
COVID-19 and onerous conditions of custody
The applicant contends that he has limited opportunities to self-isolate in response to the threat of COVID-19 while in custody. Given his age, it is submitted that this matter weighs heavily on him, making his experience of custody more onerous. Further, he is unable receive visits from his wife given COVID-19 restrictions. The applicant points to HM’s ill health as a matter rendering his experience in custody more onerous than it otherwise would have been.
Ties to the jurisdiction and impact on the applicant’s family
The applicant has lived in Australia since 1998 and became a citizen in 2007. It is submitted he has strong ties to the jurisdiction, including his and his wife’s ownership of a house subject to a mortgage. Further, he has two sisters that reside in Melbourne and Brisbane. He continues to enjoy a strong relationship with his wife and has maintained daily phone contact with her since being permitted to do so under the FVIO. Prior to the introduction of COVID-19-related restrictions, he had also been receiving weekly visits from her.
The applicant submits that his family has suffered hardship as a result of his remand. A letter from HM’s general practitioner states that he had previously provided support to her following her stroke in 2017 and that she requires ongoing support for mobility issues related to a fractured ankle. The letter also notes that HM’s depression has worsened during the applicant’s period in custody. Further, as the applicant is the sole income earner in his household, it is submitted that his family has experienced financial hardship as a result of his ongoing remand.
Stable accommodation
As above, the applicant has an offer of stable accommodation with his sister-in-law Kathryn Potempski and her husband in Werribee. Ms Potempski gave an undertaking in evidence to report any breaches of bail to police.
Employment
According to a letter dated 4 December 2019, the applicant is held in high regard by his previous employer, Hobart Food Equipment, however, there is no work currently available to him at the company, ostensibly due to the impact of COVID-19. However, it is noted that the applicant is a qualified plumber and service technician with an exemplary work history. As such, should he be granted bail, it is submitted he would readily be able to source new employment.
Lack of criminal history and compliance with earlier grant of bail
It is submitted that the applicant complied with reporting conditions and court appearances as required by his earlier grant of bail. He also attended his mother’s funeral in Queensland without incident and subsequently returned to Victoria.
It is conceded that he breached a condition of his bail and the interim FVIO by contacting HM. However, the applicant notes that his mother had passed away in the months prior and that he had sought comfort from his wife. It is further noted that HM later applied to vary the FVIO to permit their contact. Additionally, it is submitted HM provided a statement to police on 5 June 2019 that she was not clearly informed that she was not required to make a statement in relation to the alleged offending and would not have done so had she known this would prevent her contact with the applicant. In assessing the gravity of these breaches, it is contended that the applicant’s guilty plea and fine of $1,200 without conviction should be considered.
Unacceptable risk
It is submitted that the applicant’s risk of offending while on bail can be rendered acceptable by the imposition of conditions including residence at his sister-in-law’s address, a prohibition on contact with any prosecution witnesses apart from his wife and the informant, in addition to conditions preventing him from leaving Victoria, attending points of international departure and re-applying for a passport. It is advised that the applicant’s only passport is currently in the possession of police following his earlier grant of bail.
It is noted that he has no prior involvement with police and had been drinking significantly before his violent reaction. It is contended that in an environment where he is not drinking or out late at night, alcohol abuse can be avoided, thus reducing the likelihood of further violent activity against any person. The applicant submits that the allegations involve an isolated episode of violent offending.
Further, the applicant notes the geographical distance between Werribee and the regional town in which the events took place, and suggested a geographic exclusion zone as a potential condition. It is submitted that there would be no opportunity for contact between the applicant and complainant or other witnesses. Additionally, it is proposed that conditions could be imposed regarding the consumption of alcohol, and a curfew.
The respondent’s contentions
The respondent opposes bail on the basis that the applicant has failed to establish a compelling reason justifying the grant of bail. It is also contended that, should the applicant satisfy the compelling reason test, he remains an unacceptable risk of committing an offence, interfering with a witness or otherwise obstructing the course of justice, or fail to surrender into custody in accordance with conditions of bail.
Nature and seriousness of alleged offending and strength of the prosecution case
It is submitted that the alleged offending is objectively very serious, involving penetrative offending against a nine-year-old child in the context of a significant breach of trust. The applicant is further alleged to have assaulted others including his wife, used a machete to chase family members and threatened to kill police officers.
The respondent argues that the prosecution case is strong. It relies on the immediate complaint communicated to multiple people on the night, the clear account provided by the complainant in her VARE, the eyewitness account of SD, the multiple 000 calls made on the evening, the violent reaction of the applicant, body-worn camera footage of his alleged offending against police, DNA evidence that corroborates the complainant’s account and the applicant’s admission of having been ‘black out’ drunk. It is submitted that allegations of collusion or concoction of evidence by SD and KR are not supported by any evidence and that previous allegations of sexual offending made by the complainant against others did not proceed because the briefs were not authorised, rather than being positively disproven.
Compliance with earlier grant of bail and criminal history
While it is conceded that the applicant complied with reporting conditions attached to his earlier grant of bail, it is submitted that he contravened non-contact conditions and breached the FVIO within days of the grant of bail. The respondent characterises his contact with HM and OR as ‘significant contraventions’ of his bail, noting that he lied as to the extent of such contact when first questioned by police.
It is conceded that the applicant has no prior convictions, and was not on bail at the time of his alleged offending.
Hardship to family and proposed accommodation
The respondent notes that the applicant has not identified paid employment currently available to him that would alleviate the asserted financial hardship if granted bail. Further, it is contended that HM has managed her health issues without the applicant’s support for over a year while he has been on remand.
It is also noted there are concerns regarding the support and supervision available from HM. The respondent points to allegedly false or questionable evidence given by her at the applicant’s previous application for bail in December 2019 and her stated unwillingness to report breaches of bail, as well as his alleged assault of her. The informant also has concerns regarding the suitability of the proposed bail address, namely that Ms Potempski may be unwilling to report breaches of bail to police and the potential contact between the applicant and children.
COVID-19 and conditions of custody
The respondent points to the various measures taken by Corrections Victoria to protect prisoners and address the impact of COVID-19. It is noted that the applicant currently resides in a shared cottage with one other prisoner at Hopkins Correctional Centre and has the capacity to self-isolate. Further, it is submitted that he has not identified any special vulnerability as a result of COVID- 19.
Further, the applicant has not pointed to any treatment or bail support services available to him should he be released on bail.
Delay
At the hearing of this application, the applicant had served 442 days on remand. Based on the County Court’s current process for relisting of trials, it appears likely that his trial will be heard between 4 October 2021 and 30 September 2022. However, the respondent anticipates that this trial will be given priority given the nature of the offending, the involvement of a child complainant and the applicant’s remand status.
It is submitted that the potential delay is not disproportionate in light of the strength of the prosecution case, the seriousness of the alleged offending and the likely sentence should he be found guilty of some or all charges, which the respondent anticipates will be a significant custodial sentence well in excess of his time on remand. The respondent notes the maximum penalty of 25 years imprisonment for sexual penetration of a child under the age of 12, and that the most serious alleged offences are standard sentence offences.
Unacceptable risk
The respondent submits that the applicant poses an unacceptable risk of committing an offence while on bail, given his significant non-compliance with the earlier grant of bail, his use of violence in the course of the alleged offending and his disregard for police when they attended the scene. Further, the informant indicates that KR has expressed concerns for his family’s welfare and safety, fearing that the applicant may carry out retributive acts as he knows where KR and the complainant live.
With respect to the applicant’s risk of interfering with prosecution witnesses, the respondent again notes the applicant’s repeated contact with his wife in breach of bail. It is argued that HM’s attitude towards the police investigation deteriorated following the applicant’s release on bail and she has allegedly subsequently interfered with witnesses, abused judicial officers and made threats to the informant. As above, it is noted both the applicant and HM know where the complainant and KR live.
Finally, the respondent notes the informant’s concerns that the applicant will fail to surrender into custody despite his ties to the jurisdiction. It is acknowledged he has family and friends interstate and in Fiji. As such, it is submitted there is a real risk he may flee to Fiji once international travel restrictions ease, particularly as the case against him has strengthened since he was last on bail with the availability of DNA evidence. The respondent notes a degree of uncertainty about whether a formal extradition treaty between Australia and Fiji exists. There is apparently some form of extradition agreement, but that any release of the applicant by the Fiji authorities might nevertheless be difficult to achieve.
Analysis and conclusions
It is common ground that the applicant must satisfy the Court that a compelling reason exists that justifies the grant of bail, being a reason that is forceful, convincing and difficult to resist.
The applicant argues that a combination of factors exist such that the compelling reason test is satisfied. As outlined above, the factors relied on include delay, his strong ties in the jurisdiction, his strong relationship with his wife, the availability of stable accommodation which is geographically distant from his family home, his exemplary work history and prospects of new employment, his lack of criminal history and the impacts of COVID-19 on his experience in custody.
Whilst taking all the combined factors into account, it is my opinion that the most significant factor weighing in favour of the applicant being admitted to bail is the delay he will experience before these proceedings are completed. As noted above, the applicant has been committed to trial in the County Court, with the matter being next listed for mention on 5 October 2020. Due to the impact of COVID-19 restrictions, the period of anticipated delay remains uncertain. There is a significant possibility the trial will not proceed until the latter half of 2021 or early 2022. As such, he may remain in custody for up to a period exceeding two years from when his bail was revoked in June 2019. I have taken this into account as a significant factor in the determination of this application.
In considering whether the compelling reason test has been met, I am also required to take into account the strength of the prosecution case. The respondent submits the case against the applicant is a strong one, pointing to numerous matters which I have summarised above. The applicant was unable to submit otherwise, but noted the trial will be defended. It was submitted that the possibility of concoction by the complainant and other family members will be explored, with reference to circumstances in Fiji and Australia which may suggest a motivation to do so.
It is not my role to analyse the evidence in detail. However, it may be observed that there is an eye-witness account which, if accepted, is capable of significantly supporting the complainant’s version of events. I also note the almost immediate complaint made by the complainant and that her VARE interview contained a clear, credible and coherent account of the alleged events by an intelligent child. Further, the complainant’s account appears significantly supported by DNA evidence found in locations she alleged to be in contact with the applicant. On face value, those findings appear to be inconsistent with what might be described as places of innocent contact. In forming that view, I have also considered the DNA findings from a third source in some of these locations and the applicant’s submissions regarding the possibility of transference. After considering the evidence and submissions, it appears that the prosecution case can be realistically described as a strong one.
With respect to delay, it is relevant to note that if the applicant is found guilty of any or all of the most serious charges, the sentence imposed would be significantly longer than the period he would be expected to remain on remand. I note the seriousness of the two sexual penetration charges that involve a nine-year old child related to the applicant. Such offences have a significant maximum penalty and are standard sentence offences. Further, given that there is to be trial, the applicant would not qualify for a s 6AAA discount applicable to a plea of guilty to the charges. The threats and violence towards the police were serious examples of this type of offending, involving the use of a weapon by the applicant who exhibited a significant loss of self-control.
As noted above, I am required to take into account the relevant surrounding circumstances in s 3AAA of the Act in assessing whether a compelling reason has been established. These matters include the serious nature of the alleged offending; the strength of the prosecution case; the applicant’s failure to comply with the conditions of a grant of bail; the fact that no particular vulnerability of the applicant was put forward; the FVIOs taken out against the applicant; his personal circumstances, associations, home environment and background; the fact that no bail support services were proposed; the views of the father of the complainant; the length of time the applicant is likely to spend in custody if bail is refused; and the likely sentence to be imposed should he be found guilty of the alleged offences.
I have also taken into account his lack of criminal history and the impact of the COVID-19 restrictions on his experience in custody.
Further, apart from the evidence of the applicant’s sister-in-law and the proposed bail address, there is no material before the Court to explain the degree of violence exhibited by him towards the attending police. It appears to me that the only evidence which goes to his state of mind is a letter from his medical practice which does not record any major mental health problems or substance abuse issues. Whilst the letter notes there is no record of previous family violence or abuse, it remains unexplained why the applicant demonstrated the degree of explosive rage he exhibited on the night of the incident. This question is inextricably related to the issue of whether he presents a risk in the future.
Having considered all the circumstances in combination, and including the surrounding circumstances, I am not satisfied to the requisite degree that the applicant has shown a compelling reason justifying the grant of bail. Thus, I am not persuaded that the applicant has shown a reason that is forceful, and therefore convincing, or one that is difficult to resist.
Unacceptable risk
In determining that a compelling reason has not been established, it is not necessary to consider whether the respondent has shown the applicant is an unacceptable risk under the Act. However, had the compelling reason test been satisfied, I would have nevertheless been satisfied by the respondent that the applicant is an unacceptable risk in all the circumstances. In particular, I am of the opinion that there is an unacceptable risk of the applicant committing further offences on bail, and interfering with witnesses. In the absence of specific evidence I would not be satisfied that the applicant represents a flight risk.
Such a decision compels the consideration of the surrounding circumstances, as well as whether there is a risk that the applicant would commit further family violence offences if released.[16] I have also taken those matters into account.
[16]The Act s 5AAAA(2).
In all the circumstances outlined above, the application will be dismissed.
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