Re Naaman
[2024] VSC 118
•8 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0027
| IN THE MATTER of the Bail Act 1977 (Vic) |
| - and - |
| IN THE MATTER of an application for bail by BAHA NAAMAN |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 March 2024 |
DATE OF RULING: | 8 March 2024 |
CASE MAY BE CITED AS: | Re Naaman |
MEDIUM NEUTRAL CITATION: | [2024] VSC 118 |
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CRIMINAL LAW – Bail – Charges of trafficking and possessing drugs of dependence – Commercial quantity – Schedule 1 offence – Requirement to show exceptional circumstances – Nature and seriousness of the alleged offending – Strength of prosecution case – Special vulnerability – Family support and stable accommodation – Criminal history – Absence of any history of failure to comply with bail conditions – Impact of delay on the applicant – Surety – Exceptional circumstances not established – Applicant an unacceptable risk – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | T Antos | Allied Lawyers |
| For the respondent | J Malobabic (solicitor) | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
On 16 February 2024, an application for bail was filed on behalf of Baha Naaman (“Naaman”).
Naaman was arrested and remanded into custody on 25 November 2023 in relation to offending alleged to have occurred on the same date. The charges against him are:
(1)Trafficking a drug of dependence, namely methylamphetamine, in a quantity not less than the commercial quantity applicable to that drug, contrary to section 71AA of the Drugs, Poisons and Controlled Substances Act1981 (Vic).
(2)Trafficking a drug of dependence, namely methylamphetamine, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act.
(3)Possessing a drug of dependence, namely methylamphetamine, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(4)Trafficking a drug of dependence, namely cannabis, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act.
(5)Possessing a drug of dependence, namely cannabis, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(6)Possessing cartridge ammunition without a licence, contrary to section 124(1) of the Firearms Act 1996 (Vic).
(7)Dealing with property suspected to be the proceeds of crime, contrary to section 195 of the Crimes Act 1958 (Vic).
Naaman previously made an application for bail in the Mildura Magistrates’ Court. The application was refused on 21 December 2023 on the grounds that Naaman was unable to demonstrate the existence of exceptional circumstances to justify the grant of bail, and that even if he had established exceptional circumstances, he would present an unacceptable risk of the kind referred to in section 4E of the Bail Act 1977 (Vic) if he were to be released on bail.
The matter was adjourned to a committal mention on 28 February 2024. The committal hearing is scheduled to be held on 23 April 2024 at the Mildura Magistrates’ Court.
In support of Naaman’s application for bail before this court, he relied upon a number of factors to establish the existence of exceptional circumstances justifying the grant of bail. These included, but were not limited to, issues with the prosecution case, his special vulnerabilities, family support and stable accommodation, his history of compliance with bail conditions, the impact of delay in the proceeding and his offer of a surety.
Naaman also argued, in relation to the question of whether he would pose an unacceptable risk if he were to be granted bail, that there was no suggestion within his history that he would breach or commit offences on bail. In addition, while he has a history of violent offences, the witnesses in this matter are predominantly (if not exclusively) police members and thus the risk of Naaman interfering with any witness would be minimal. Finally, he argued that the bail conditions he sought to put forward would ameliorate any such risks.
The application for bail was opposed by the prosecution on the basis that exceptional circumstances had not been established, but that in any event, Naaman would present an unacceptable risk of offending, endangering the safety or welfare of members of the community and failing to answer bail if the application was granted.
B. Background
B.1 Applicant’s personal circumstances
Naaman is 41 years of age and is a resident of Yagoona, New South Wales. He was 40 years of age at the time of the alleged offending. He has 10 children with his former partner, ranging from 6 to 20 years of age. His former partner also now resides in New South Wales along with their children.
Naaman has a limited level of education and a “sporadic (if not non-existent)” work history due to numerous medical conditions. More particularly, he suffers from:
(1)Lung issues, including chronic asthma, recurrent chest infections and recurrent pneumonia.
(2)Migraines.
(3)Gastro-oesophageal reflux disease.
(4)Sleep issues, including insomnia and sleep apnoea.
(5)Allergic dermatitis.
(6)Severe joint, neck and back pain due to osteoarthritis, disc protrusion, disc bulge, s-shape scoliosis of the thoracic and lumbar spine, possible impingement, and small left pleural effusion.
(7)Panic attacks, depression, and anxiety since the passing of his father.
(8)Loss of concentration, loss of memory and an inability to think clearly.
By his counsel, Naaman submitted that he began smoking cannabis at 22 years of age to assist with his pain management. It is also recorded in a medical report relied upon by Naaman that he “has had schizophrenia”, but no further details were provided to the court.
Naaman has an extensive criminal history dating back to 1998, including prior convictions and findings of guilt for:
(1)Reckless conduct endangering serious injury.
(2)Resisting a police officer.
(3)Resisting an officer in execution of duty.
(4)Driving a vehicle while exceeding the prescribed concentration of drugs.
(5)Destroying or damaging property.
(6)Stealing a motor vehicle.
(7)Common assault.
(8)Stalking and intimidation.
(9)Unlicensed driving.
(10)Driving while suspended.
(11)Possessing a prohibited drug.
Naaman’s 13 year old daughter suffers from an intellectual disability and cognitive challenges. It was submitted that Naaman is a key figure in his daughter’s daily care and management. It was also submitted that prior to his arrest, Naaman was regularly caring for his elderly mother, Elham Naaman.
B.2 Alleged offending
Turning to the alleged offending the subject of the present application for bail. At approximately 12.40pm on 25 November 2023, police intercepted a white Isuzu truck bearing New South Wales registration plates on the corner of Ontario Avenue and Jubilee Drive in Mildura, Victoria. The truck was later identified as being registered in the name of Naaman’s brother, Mohamed Naaman, who was in custody in New South Wales at that time.
As police approached the vehicle, the left hand side passenger was seen throwing what appeared to be a zip lock bag containing a substance later established to be methylamphetamine out of the vehicle. Police also observed a glass pipe and part of a ripped plastic zip lock bag inside the vehicle.
Police asked the occupants to step out of the vehicle and identified Naaman as the driver, Akin Cifti (“Cifti”) as the middle passenger and Mustafa Pehlivan (“Pehlivan”) as the left side passenger.
Police conducted a search of the vehicle and pat-down search of Naaman, Cifti and Pehlivan pursuant to section 82 of the Drugs, Poisons and Controlled Substances Act. They located the following items:
(1)A small plastic zip lock bag containing cannabis located on Cifti.
(2)A small plastic zip lock bag containing cannabis located on Pehlivan.
(3)A small plastic zip lock bag containing methylamphetamine in the rear of the vehicle.
(4)A key to room 15 at the Mildura Golf Resort (“Room 15”) in Naaman’s possession.
(5)$528.50 cash in Naaman’s possession.
Naaman, Cifti and Pehlivan were each placed under arrest and transported to the Mildura Police Station.
At 3.10pm that afternoon, a search warrant pursuant to section 81 of the Drugs, Poisons and Controlled Substances Act was executed at 15/287 Twelfth Street, Mildura, Victoria, being Room 15, where Naaman had been staying for several days. It was later confirmed that Naaman himself had booked and paid for this room.
During the search of Room 15, police located the following items:
(1)3 plastic zip lock bags containing approximately 99 grams of methylamphetamine, located in a black duffle bag.
(2)A bag containing a receipt with Naaman’s name on it under the sink in the bathroom.
(3)A zip lock bag containing approximately 331 grams of methylamphetamine, located in a green shopping bag inside a grey suitcase in the bathroom.
(4)A smaller zip lock bag containing approximately 15 grams of methylamphetamine, located inside the grey suitcase in the bathroom.
(5)5 containers containing cannabis located throughout Room 15.
(6)A box of .22 calibre ammunition, located inside a sleep apnoea machine belonging to Naaman.
Police seized the above items and returned to the Mildura Police Station, where the zip lock bags containing the white crystal substance were tested and confirmed to be positive for methylamphetamine.
The prosecution relied upon the fact that the proportion (or purity) of the methylamphetamine located inside the grey suitcase was later tested by police and found to be 57 percent pure. It was submitted this indicated that the methylamphetamine had, by the point in time at which it was seized, been cut or laced with other compounds in preparation to be sold.
The total weight of methylamphetamine seized was approximately 417 grams.[1] The total weight of cannabis seized was approximately 32 grams. The street value of the methylamphetamine is alleged to be between approximately $150,950 and $250,200.
[1]This figure is less than the total of the figures referred to above, but was the most recent evidence of the total sum.
These investigations led police to believe that Naaman was actively involved in trafficking drugs of dependence, including methylamphetamine and cannabis.
Cifti and Pehlivan have each been charged with separate offences to Naaman, relating only to possession of illicit substances. Consequently, neither are considered to be co-accused of Naaman as they have not been charged with trafficking a commercial quantity of a drug of dependence. It was clarified during the hearing that Pehlivan has been bailed to an address in New South Wales.
B.3 Proposed conditions of bail
In support of his application for bail, Naaman proposed the following conditions, namely that he must:
(1)Reside at a residential address in Yagoona, New South Wales (“the Yagoona Residence”).
(2)Report to police.
(3)Remain at the Yagoona Residence between the hours of 10.00pm and 6.00am each day (“the Curfew Hours”), unless attending to a medical emergency.
(4)Present at the front door of the Yagoona Residence during the Curfew Hours if and when called upon by police to do so.
(5)Not leave the State of New South Wales, unless attending Victoria for court appearances.
(6)Not attend any points of domestic or international departure unless attending Victoria for court appearances.
(7)Provide the informant with a travel itinerary, including tickets and any accommodation requirements for court appearances, prior to attending Victoria.
(8)Use only 1 mobile phone and provide the informant with his mobile phone number, pin number and International Mobile Equipment Identity number.[2]
(9)Not have any association with Cifti or Pehlivan.
(10)Not contact, directly or indirectly, any witnesses for the prosecution other than the informant.
(11)Surrender all passports and travel documentation to the informant prior to his release from custody.
(12)Report to the informant on a daily basis.[3]
[2]A unique 15-digit serial number for identifying a device.
[3]The last of these proposed conditions was only raised towards the end of the hearing and the practicalities were not raised with the nominal informant when he gave evidence today.
In addition, Naaman’s mother, Elham Naaman, offered $500,000 as surety in support of her son’s application for bail.
C. Legal principles
In interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B, including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.[4]
[4]See Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
Naaman has been charged with drug trafficking offences listed under Schedule 1 of the Bail Act.[5] He must therefore demonstrate that exceptional circumstances exist that justify the grant of bail.[6]
[5]Bail Act, sch 1, item 6(a) and (b).
[6]Ibid, s 4AA(1).
The phrase “exceptional circumstances” is not defined in the Bail Act. In order to be “exceptional”, the circumstances relied upon must be such as to take the case out of the normal and justify the granting of bail.[7] However, although high, this is not an impossible standard to reach.[8] As observed in Woods v Director of Public Prosecutions:[9]
The Bail Act does not define “exceptional circumstances”. Reflecting the ordinary and natural meaning of these words, it has been held that “there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant before those circumstances can be characterised as exceptional”.[10] The category is not closed. It was held by Warren J that “the hurdle is a high one, but … should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail”.[11]
An individual circumstance, or combination of circumstances, can constitute exceptional circumstances.[12] … [I]t is the (oft-cited) view of Vincent J in Moloney that the court must be persuaded that, viewed as a whole, the circumstances are exceptional “to the extent that, taking into account the very serious nature of the charge … the making of an order admitting the person to bail would be justified”.[13] This “appears to be a question of degree” in each individual case.[14]
[7]Re Brown [2019] VSC 751, [65] (Lasry J), citing Re Sam [2017] VSC 91, [22] (Beach JA). See also Re Strachan [2021] VSC 538, [27] (Lasry J).
[8]Re Brown [2019] VSC 751, [65], citing Armstrong v The Queen [2013] VSC 111, [31] (Lasry J).
[9](2014) 238 A Crim R 84, 97-98 [38]-[39] (Bell J) (original citations). While substantial reforms were made to the Bail Act on 1 October 2018, the expression “exceptional circumstances” remains.
[10]Re Scott [2011] VSC 674, [14] (T Forrest J). See also R v Tang (1995) 83 A Crim R 593, 596.7 (Beach J); Re Muhaidat [2004] VSC 17, [13] (Kaye J); Re Dalton [2013] VSC 690, [49] (Kaye J).
[11]Re Whiteside [1999] VSC 413, [10] (Warren J).
[12]Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1-2; Re Whiteside [1999] VSC 413, [13]; Director of Public Prosecutions v Cozzi (2005) 12 VR 211, 215 [19]-[20] (Coldrey J); Armstrong v The Queen [2013] VSC 111, [31]-[32] (Lasry J).
[13]Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1-2.
[14]Director of Public Prosecutions v Cozzi (2005) 12 VR 211, 216 [25].
If satisfied that exceptional circumstances exist, the court must then consider whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[15]
[15]Bail Act, s 4D(1)(a).
Bail must be refused if the court is satisfied that there is an unacceptable risk that an applicant would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness or otherwise obstruct the course of justice in any matter, or fail to surrender into custody in accordance with the conditions of bail, notwithstanding that the exceptional circumstances test has been met.[16] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[17] In assessing risk, the court must consider whether there are conditions of bail that may be imposed to mitigate the risk.[18]
[16]Ibid, s 4E(1).
[17]Ibid, s 4E(2).
[18]Ibid, s 4E(3)(b).
Both in considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[19] Such surrounding circumstances include, but are not limited to, the matters listed in section 3AAA(1) of the Bail Act, namely:
[19]Ibid, ss 4A(3), 4E(3)(a).
…
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused—
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v) was subject to a community correction order …
…
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including … being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
…
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
Another relevant matter to consider is whether the period of incarceration while on remand is likely to exceed the length of any prison sentence, in the event that the applicant is ultimately found guilty.[20]
[20]Re Barda [2019] VSC 716, [24] (Weinberg JA), citing Re DR [2019] VSC 151, [56] (Champion J); Re Dillon [2019] VSC 80, [41] (Maxwell P); Re Logan [2019] VSC 134, [72]. See also Re Kelly [2022] VSC 232, [73] (Tinney J).
D. Submissions
In support of the grant of bail, it was submitted on behalf of Naaman that exceptional circumstances were established by the combined weight of several factors, namely:
(1)The prosecution’s case does not prove exclusive ownership of any drugs by Naaman. In particular:
(a)the case is presently deficient without any DNA[21] or fingerprint evidence connecting Naaman to the drugs found; and
[21]That is, deoxyribonucleic acid.
(b)as there were other occupants, it is a live issue whether the prosecution can prove that Naaman was aware that there was a commercial quantity of drugs in Room 15.
(2)There is no evidence that Naaman has breached earlier grants of bail or committed any offences whilst on bail.
(3)At the time of the alleged offending, Naaman was not subject to bail, a summons, at large awaiting trial, on parole, or the subject of any community correction order.
(4)There are no family violence intervention orders in force against Naaman.
(5)If released on bail, Naaman proposes to reside with his mother at the Yagoona Residence. This is a 3 bedroom home occupied by Naaman’s mother.
(6)Prior to his arrest, Naaman cared for his mother and his 13 year old daughter, and if released on bail, intends to continue caring for them.
(7)Naaman is also said to have the support of his former partner with whom he has had regular communication since his arrest.
(8)Naaman’s various medical conditions are special vulnerabilities for which he was receiving treatment whilst in the community.
(9)There would likely be delays in the proceeding affecting the length of time Naaman would spend on remand. It was submitted that the trial would likely be listed in a Mildura County Court circuit in either late 2024 or early 2025, as this matter is not likely to be given priority and there is no set circuit date yet.
(10)In support of her son’s application, Naaman’s mother has offered $500,000 as security over her family home.
Although each of these matters were relied upon, at the hearing the applicant placed particular emphasis upon issues with the strength of the prosecution case and the likely delay in this matter coming to trial, as well as the ongoing support of Naaman’s mother.
It was also submitted that Naaman’s history did not indicate that he would breach bail or commit offences while on bail. Moreover, it was submitted that it would be possible to sufficiently mitigate any risk associated with a grant of bail by the imposition of appropriate conditions.
Naaman did, however, appropriately concede the following matters:
(1)The alleged offending is of a very serious nature.
(2)While it was argued there are issues in the prosecution case, the prosecution can make out an association between Naaman and Room 15, being the premises where the drugs were found.
(3)Should he be found guilty of trafficking in a commercial quantity, it is likely he will receive a lengthy custodial sentence that far exceeds the time he is likely to spend on remand.
Further, although the affidavit of Naaman’s former partner filed in support of the application was tendered, there was quite properly no attempt to challenge the serious issues that had been raised by the prosecution in relation to its reliability.[22]
[22]These included the prosecution’s challenges to the statements made by Naaman’s former partner to the effect that Naaman was a key figure in the care of his 13 year old daughter and his elderly mother.
In response, the prosecution submitted that Naaman had failed to discharge his burden of satisfying the court as to the existence of exceptional circumstances. However, even if the court were so satisfied, it was submitted that Naaman presented an unacceptable risk of committing an offence while on bail, endangering the safety or welfare of other persons, as well as failing to surrender into custody in accordance with the conditions of bail.
More particularly, the prosecution raised the following matters and surrounding circumstances in arguing that exceptional circumstances did not exist and that Naaman otherwise posed an unacceptable risk:
(1)The nature of the alleged offending is of a very serious nature and involved significant quantities of drugs that posed a considerable threat to the community.
(2)There is a strong case against Naaman with sufficient evidence to link him to the drugs located by police.
(3)While Naaman has extensive medical issues for which he was receiving treatment in the community, he is receiving treatment and medication whilst in custody, including being provided a continuous positive airway pressure machine for his sleep apnoea.
(4)There is no evidence to suggest that any delay in the proceeding would amount to anything which ought to be considered unusual. It was submitted that delay in of itself cannot amount to an exceptional circumstance.
(5)To the extent it was argued that COVID-19 considerations still have application, the prosecution submitted this ought to be rejected. The court was referred to Chief Judge Kidd’s update on the status of the County Court’s COVID-19 backlog of criminal jury trials dated 9 October 2023.[23]
[23]County Court of Victoria, “Chief Judge Peter Kidd provides an update on the status of the County Court’s COVID-19 backlog of criminal jury trials” (Media release, 9 October 2023). The update states, among other things, that the court’s criminal jury trial lists are past the point of being overwhelmed by pandemic related delays. In circuit locations, the time to trial range generally matches pre-pandemic levels.
(6)There is no evidence that Naaman has employment prospects or income, despite the evidence of his former partner that she relies on the income he provides. On this basis, it was argued that there is a significant risk that upon release, Naaman will offend to support himself, his former partner and children.
(7)There is a high risk of Naaman returning to drug use, and consequently a higher risk of offending if released on bail, as he has admitted to using cannabis for approximately 20 years.[24]
(8)Naaman has significant family ties in Victoria, Queensland and New South Wales. These family members could potentially assist him to flee.
E. Consideration
E.1 Exceptional circumstances
[24]See par 10 above.
E.1.1 Nature and seriousness of the alleged offending
It was common ground between the parties that the nature of the allegations are serious.
E.1.2 Strength of the prosecution case
A key consideration when assessing the existence of exceptional circumstances is the strength of the prosecution case. The evidence regarding Naaman’s alleged offending is direct evidence from the police, most of which is not in dispute. The case is properly characterised as strong. The prosecution need not establish that Naaman was in exclusive control or exclusively trafficking the drugs of dependence. Consistent with counsel for Naaman’s concession, the evidence overwhelmingly demonstrated that the prosecution could make out an association between Naaman and Room 15 where the drugs were found.
In my view, the explanation given by Naaman to police as to why he was in Mildura, hundreds of kilometres from his home, was fanciful.[25] It could be given no credence in circumstances where: (1) Naaman was driving the white Isuzu truck (which was in his brother’s name); (2) the truck contained methylamphetamine and cannabis; (3) Naaman was found in possession of a room key for Room 15 (which was booked and paid for by him); and (4) commercial quantities of illicit substances, other drug paraphernalia and gun ammunition were later found in Room 15.
[25]When asked by police at the time of his arrest why he was in Mildura, Naaman responded by saying he was there to pick grape wine leaves.
Lending further weight to the strength of the prosecution case is that although his various medical conditions prevented him from maintaining any consistent employment, his former partner maintains that Naaman financially supports her and the children. On the doubtful assumption that this evidence should be given some weight,[26] in the absence of any evidence of any other source of income, the obvious inference to draw is that drug trafficking activities may constitute Naaman’s, and by extension his family’s, primary source of income.
[26]See par 38 above.
With respect to the current unavailability of fingerprint evidence (which is due to be provided before the committal hearing next month), of DNA evidence (which it is estimated will be available in 6 to 8 months) and further investigations in relation to Naaman’s mobile phones (which may take between 12 to 18 months),[27] none of these matters presently indicate the trial of the proceeding is likely to give rise to inordinate delay. Of course, if the position were to change, Naaman may make a further application for bail.
[27]Noting that 18 months was the outer limit and the agreed position was the likelihood of a trial commencing was late 2024 or early 2025.
E.1.3 Special vulnerability
Naaman relied upon special vulnerabilities, namely, his various medical conditions, and the fact he was receiving treatment and management for these whilst in the community. The prosecution did not challenge the existence of these conditions.
I am not satisfied that Naaman’s special vulnerabilities weigh in favour of the existence of exceptional circumstances. The prosecution submitted that Naaman has been, and continues to be, treated for his medical conditions while on remand. This was not disputed. While I note that it is suggested Naaman’s anxiety has significantly increased and he misses his children, there is no suggestion beyond this of any material aggravation or worsening of his underlying medical conditions.
E.1.4 Family support and stable accommodation
The suggestion that Naaman had regular, almost daily contact with his children and was a key figure in the care of his 13 year old daughter was in dispute. For the purposes of Naaman’s previous application for bail in the Mildura Magistrates’ Court, his former partner swore an affidavit in December 2023, providing her residential address as being in Queensland (and thus located where Naaman could not provide regular care). Further, checks conducted on Naaman’s mobile phone in the month prior to his arrest identified that:
(1)He did not attend his former partner’s address where the children were residing.
(2)He had 5 phone calls and no text messages with his former partner.
(3)He had 3 phone calls with 1 of his adult sons.
(4)He had 13 phone calls with another adult son.
(5)There were no phone calls or text messages between Naaman and his 13 year old daughter.
There was no attempt made to rebut this evidence.
Furthermore, notwithstanding it was contended Naaman was his mother’s ongoing carer, the analysis of Naaman’s phone records also established that he made no phone contact with his mother while he was away from home prior to his remand. The prosecution also submitted that other people, including family members who reside with Naaman’s mother, assist with her care. This evidence also remained unchallenged.
In these circumstances, I am not satisfied that in the time period leading up to his arrest, Naaman was a key figure in the day-to-day care of his 13 year old daughter or his mother, or that any role Naaman may have had as a carer was significant.
E.1.5 Absence of history of any failure to comply with bail conditions, or any court orders in effect at the time of the alleged offending
Naaman relied on there being no evidence that he has breached earlier grants of bail or committed offences on bail. In addition, at the time of the alleged offending, Naaman was not subject to bail, summons, at large awaiting trial, on parole, or the subject of any community correction order, and there is no family violence intervention order in force against him.
While relevant, these factors, either in and of themselves, or in combination, are not indicative of exceptional circumstances. The mere fact that an alleged offender has not breached any earlier grant of bail in the past or committed offences while on bail, and was not otherwise currently subject to any court orders at the time of the alleged offending, does not elevate the circumstances to a level of being unusual or out of the ordinary.
E.1.6 Impact of delay
While any delays are likely to cause Naaman personal difficulty if he continues to remain in custody, the anticipated delays in this case cannot be characterised as unusual or unduly burdensome. There is no evidence before the court to suggest that Naaman’s medical conditions are not being treated while on remand.
As already noted, Naaman conceded that should he be found guilty of trafficking in a commercial quantity, it is likely he will receive a lengthy custodial sentence that far exceeds his time spent on remand.
E.1.7 Surety
The offer of $500,000 surety is a significant matter in the assessment of whether or not exceptional circumstances exist. However, I have grave concerns about the circumstances in which this offer was made.
Naaman’s mother does not speak English. She gave evidence today with the assistance of an interpreter and confirmed she could not read English. Despite this, an affidavit was filed which she purported to have sworn in English without translation. She clarified that a solicitor had read the affidavit to her. There was no basis to be satisfied it had been faithfully and accurately translated to her before she purported to swear it. In those circumstances, Naaman was not permitted to rely upon this affidavit in support of this application.
By her oral evidence during the hearing, Naaman’s mother agreed to the surety of $500,000 and swore that she understood she could lose her home if Naaman breached his conditions of bail. However, when asked in her evidence in chief about what charges had been laid against her son, she simply said through the interpreter “drugs”. When asked later by the court to elaborate on her answer, she was unable to do so, stating “I don’t know” and “We never heard about this and we never known [sic] about it”. Further, when asked during cross-examination about her knowledge of what Naaman was required to do if he was granted bail, she responded by simply stating “stays at home”.
In short, it was far from clear that Naaman’s mother had any real awareness of either the true nature and seriousness of the charges he faces or the conditions Naaman would be subject to if granted bail (or what would be required of him in order to comply with those conditions). These circumstances raise serious concerns about the manner in which the offer of the $500,000 has been procured. As I would have refused bail whether or not such circumstances existed, it is unnecessary to elaborate on this matter.[28]
[28]To be clear, this is not to suggest in any way that there was any impropriety on behalf of Naaman’s counsel who raised the matter himself in examination in chief.
E.1.8 Other factors
There were certain other factors which Naaman submitted were relevant to the assessment of exceptional circumstances, including personal circumstances such as his limited education and COVID-19 considerations. I do not consider any of those factors to demonstrate exceptional circumstances in this case.
E.1.9 Whether exceptional circumstances exist
In conclusion, having considered the matters referred to above in combination, in the context of the surrounding circumstances including those referred to in section 3AAA(1) of the Bail Act, Naaman has failed to establish that exceptional circumstances exist.
E.2 Unacceptable risk
For completeness, even if exceptional circumstances had been established, I would have been satisfied that there is an unacceptable risk that if Naaman were granted bail, he would endanger the safety or welfare of others or would commit an offence while on bail. In forming this view, I have taken into account Naaman’s ongoing lack of employment and his struggles with addiction. The risk of committing an offence whilst on bail is heightened by the fact that Naaman’s issues with maintaining gainful employment and substance abuse have persisted for many years.
In addition, there is reference in a medical report filed with the court and dated 13 December 2023 that Naaman has been diagnosed with schizophrenia. This is curiously absent from other descriptions of Naaman’s medical conditions throughout the applicant’s material. If Naaman continues to suffer, or is susceptible to be suffering, from schizophrenia, this would pose a significant and unacceptable risk in circumstances where there is no suggestion that Naaman intends to seek any treatment for this condition.
Naaman’s criminal history, over a long period of time, is also relevant to his risk of offending.
Further, if I had been required to rule on the matter, I would not have been satisfied that the proposed conditions of bail would ameliorate these risks to an acceptable level.
F. Conclusion
For the reasons stated, I am not satisfied that exceptional circumstances exist justifying the grant of bail. Further, I am satisfied that Naaman does pose an unacceptable risk. Accordingly, bail is refused.
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