Re Ninua

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0140

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by Vakhtang NINUA

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2024
DATE OF RULING:	28 June 2024
CASE MAY BE CITED AS:	Re Ninua
MEDIUM NEUTRAL CITATION:	[2024] VSC 391

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CRIMINAL LAW – Application for bail – Charges of armed robbery and other indictable offences involving the use or threatened use of an offensive weapon – Schedule 2 offences – Requirement to show a compelling reason – Nature and seriousness of alleged offending – Strength of prosecution case – Anticipated delay – Limited criminal history – Personal circumstances – Availability of stable accommodation – Availability of bail support service – Compelling reason established – Applicant not an unacceptable risk – Bail granted – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4C, 4D, 4E, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the applicant	J P McQuillan	James Dowsley & Associates
For the respondent	C Foot	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

On 3 May 2024, the applicant, Vakhtang Ninua (“Ninua”), was charged with the following offences alleged to have been committed on 2 May 2024:
(1)Kidnapping, contrary to common law.
(2)False imprisonment, contrary to common law.
(3)Extortion with a threat to kill, contrary to section 27 of the Crimes Act 1958 (Vic).
(4)Causing injury intentionally, contrary to section 18 of the Crimes Act.
(5)Causing injury recklessly, contrary to section 18 of the Crimes Act.
(6)Armed robbery, contrary to section 75A of the Crimes Act.
(7)Dealing with property suspected of being proceeds of crime, contrary to section 195 of the Crimes Act.
Ninua first applied for bail at the Melbourne Magistrates’ Court on 4 May 2024. That application was refused on the basis that Ninua posed an unacceptable risk.
Ninua made a further application for bail at the Melbourne Magistrates’ Court on 7 June 2024. On 11 June 2024, the application was refused, again on the basis that Ninua posed an unacceptable risk.
The matter is next listed at the Melbourne Magistrates’ Court on 29 July 2024 for a committal case conference.
In support of Ninua’s application for bail before this court, he relied on a number of factors said in combination to establish the existence of a compelling reason justifying the grant of bail. These included triable issues with the prosecution case, the length of time likely to be spent on remand if bail were refused, his limited prior criminal history, his personal circumstances, including the dependence of his unwell mother on him for care, the availability of stable accommodation and the availability of a bail support service including electronic monitoring.
The application was opposed by the prosecution on the basis that a compelling reason had not been established, but that in any event, Ninua would present an unacceptable risk if he were to be released on bail.
For the reasons that follow, Ninua’s application for bail is granted.

B. Background

B.1 Alleged offending

The following account is based on the prosecution case and comprises allegations only.
It is alleged that at approximately 12.30pm on 2 May 2024, Mark Darwish (“Darwish”) telephoned Michael Vukovic (“Vukovic”) and requested that he meet him at an address in Caulfield South (“the Caulfield South Residence”). The meeting was allegedly arranged under the pretence of Vukovic being paid $10,000 to assist Darwish in locating a vehicle.
The Caulfield South Residence was Ninua’s home address. It is alleged that at this time, Darwish and Vukovic knew each other, while Ninua knew Darwish but did not have any association with Vukovic.
At approximately 2.00pm, Vukovic arrived at the Caulfield South Residence by vehicle, met with Darwish outside and followed him up the driveway towards an open garage.
Once both men were inside the garage, Darwish allegedly dropped an envelope on the ground in front of Vukovic as a means of distraction, and then began striking Vukovic to the head multiple times with closed fists. It is alleged that Ninua and another unidentified man then ran and closed the garage door, preventing Vukovic from leaving.
These events were allegedly captured on dash camera footage from Vukovic’s vehicle, though it was accepted by the informant at the hearing that there were issues with the quality of the available footage.
Vukovic allegedly began fighting back, before Ninua, Darwish and the unidentified man allegedly proceeded to strike Vukovic multiple times to the head with hammers, causing Vukovic to fall to the ground.
Each of the 3 men then allegedly grabbed and dragged Vukovic against his will into the house through the internal garage door.
Once inside the house, the 3 men allegedly continued to strike Vukovic to the body, arms and legs, leading to Vukovic sustaining multiple lacerations and puncture wounds. It is alleged that Ninua was using a hammer and Darwish was using a hand-held garden tool.
Ninua allegedly then positioned himself on top of Vukovic and began wrestling with him on the ground, before positioning himself behind Vukovic and putting him in a “chokehold” and squeezing tightly. It is alleged that Vukovic was rendered unconscious as a result. Vukovic cannot recall how long he remained unconscious, stating it could have been anywhere from a minute to 20 minutes.
Ninua and Darwish then allegedly bound Vukovic’s hands and wrists together behind his back, using duct tape and electrical tape. It is anticipated that Vukovic will give evidence describing himself having been “hog-tied”, as his hands were taped very tightly to his feet. The 3 men also allegedly taped Vukovic’s mouth shut so that he could not call for help.
While he was unconscious, Darwish allegedly removed Vukovic’s wallet from his pants pocket. Upon Vukovic regaining consciousness, Darwish demanded that he provide the PIN[1] codes to his bank cards. Vukovic initially refused, and Ninua then allegedly commenced burning Vukovic with a device which was referred to by Vukovic as a “heat gun”. Vukovic was burned several times before eventually providing the men with his PIN numbers.
[1]That is, personal identification number.
It is then alleged that Darwish took Vukovic’s car keys and attempted to leave in that vehicle, but snapped the key inside the ignition which set off the car alarm. He returned to the house and demanded that Vukovic disable the car alarm. When Vukovic indicated that he did not know how to, Ninua and the unidentified man allegedly commenced kicking Vukovic in the ribs and stomping on his head.
Darwish then left the Caulfield South Residence in his own vehicle. He was captured on closed-circuit television footage attending a service station in South Yarra at approximately 2.17pm. After filling up his vehicle with petrol, Darwish entered the service station and allegedly used a bank card owned by Vukovic to withdraw $1,300 in cash.
While Darwish was absent from the Caulfield South Residence, Ninua and the unidentified man allegedly continued to assault Vukovic by kicking him to the head several times. One of the blows allegedly rendered Vukovic unconscious for a second time.
When Darwish returned to the Caulfield South Residence, the 3 men allegedly continued to assault Vukovic for several hours. Ninua and Darwish allegedly demanded that Vukovic sell a number of licenced firearms they believed he owned and then bring them $120,000. Darwish allegedly said to Vukovic words to the effect of, “that’s how you are getting out of this”, or “this is your way out of this”.
Vukovic then allegedly agreed to sell the firearms and give Darwish the money. In exchange for his cooperation, Darwish then allegedly untied Vukovic and led him into the shower, washing blood off him. Ninua allegedly then provided Vukovic with a tracksuit to wear, as his original clothes were now bloodstained.
Ninua is alleged to have also threatened Vukovic that he had made enquiries of unknown individuals to see if Vukovic would speak to police after the incident. Ninua also allegedly told Vukovic that he “pays off police”.
Ninua and Darwish then allegedly put Vukovic into Darwish’s vehicle and he was driven home by Darwish. Closed circuit television footage captured Vukovic getting out of Darwish’s vehicle at his home address at approximately 6.12pm. Vukovic then reported to his wife what had allegedly occurred, and she immediately called emergency services. Police first arrived at Vukovic’s residence at approximately 6.35pm. After receiving first aid treatment and speaking with police, Vukovic was transported to the Alfred Hospital.
Vukovic was treated for several injuries, including 3 burns to his leg and back, lacerations to his head, face, chest and abdomen, buttocks, and hands, a rib fracture, a right ulnar fracture and bruising to several areas of his face and body. He spent 6 days in hospital. At the time of the hearing, he was receiving ongoing medical treatment for complications relating to his fractured ulnar.
At approximately 7.15am on 3 May 2024, police attended Darwish’s home address and located his vehicle parked approximately 100 metres away. At approximately 7.49am, Darwish was arrested by police while attempting to leave the address. At the time of his arrest, Darwish was allegedly carrying, among other things, a hand-held garden tool covered in blood. Darwish was transported to the Moorabbin police station for interview.
At 10.07am the same morning, Ninua was arrested leaving the Caulfield South Residence. Police simultaneously executed a search warrant at the Caulfield South Residence. Upon entry, police identified a strong smell of cleaning supplies. Throughout the address, multiple particulates of what appeared to be blood were located. Swabs of this material were obtained and forensic analysis is yet to occur.
Vukovic’s vehicle was located in the driveway. As noted above,[2] investigators obtained dash camera footage from inside the vehicle. Inside the Caulfield South Residence, police also located, among other items, a bin with a rubbish bag containing a blood soaked blanket, duct tape and various cleaning items, as well as a curling iron said to be consistent Vukovic’s burn injuries.[3]
[2]See par 13 above.
[3]Other police reports make reference to a “fire starter” or a “heat probe” being located at the Caulfield South Residence. It is expected that the prosecution will allege that 1 of these items is the “heat gun” used during the alleged offending: see par 19 above.
Ninua was transported to the Moorabbin police station for interview. A search of Ninua’s person located $1,725 in cash, predominately $50 notes inside his underwear. Further, his shoes were seized and his left shoe appeared to show blood around the front sole area.
When interviewed at the Moorabbin police station, Ninua stated he was the victim of a home invasion by Vukovic, who had arrived drunk and was behaving erratically. He claimed he acted in self-defence and lost track of time during the home invasion. He stated he lived at the address with his partner, whom he had met shortly before the alleged offending, and that she was upstairs for the entirety of the incident.
He further stated that Darwish had attended the address with Vukovic and that they both had to restrain Vukovic from damaging any property or assaulting Ninua with a kitchen knife. Ninua claimed he tried to calm Vukovic down, however, he remained in a heightened, aggressive state. Ninua stated he was grateful he did not punish Vukovic more for coming into his house. He then stated upon leaving the house, he gave Vukovic some of his own clothes to wear.

B.2 Ninua’s personal circumstances

Ninua is 38 years of age. He has reported being exposed to civil war in his birth country of Georgia from a very young age. His first memory at age 7 is witnessing violence, bombings and shootings, and living in bunkers with no electricity or running water and having to collect wood and light fires to keep warm.
He arrived in Australia at age 13, which he reports was a very difficult transition. He experienced racial and ethnic bullying and harassment from his peers, and faced isolation and difficulties integrating into the community. Further, Ninua’s father remained in Georgia for approximately 20 years after the rest of the family migrated, an absence which caused Ninua great difficulty.
Ninua attended Cheltenham Secondary College, completing year 12 and subsequently completing courses in personal training and warehouse management. He worked in construction for a period of time, before commencing work at an optometry clinic for several months operating optical lens machinery.
He last worked as a spray painter for a close friend for a period of 2 years, before a motorbike accident in 2015 caused significant spinal injuries resulting in him being unable to work. Ninua had previously had another motorbike accident in 2010, and continues to suffer from chronic pain and back injuries due to these accidents. In 2019, he started receiving Centrelink payments and was in the process of applying for a disability support pension prior to being remanded.
Ninua has reported being diagnosed with post-traumatic stress disorder and bipolar disorder more recently. He has been medicated with different anti-depressants over a number of years, but has never taken any specific medication for treatment of bipolar disorder. A general practitioner who has treated Ninua as a patient for over 20 years outlined in a letter provided to the court that he was diagnosed with anxiety and depression in 2008 and post-traumatic stress disorder in 2015. Obtaining a psychological assessment was not possible in the time available.
Ninua first tried alcohol and cannabis at the age of 15, initially on a weekly basis. At age 20, this increased in frequency to daily in order to block out his thoughts and trauma and to cope with not having his father in his life. He has further reported that he ceased using all alcohol or drugs at the age of 22, being the time he returned to Georgia to be with his father. On returning to Australia 2 years later, he continued to remain abstinent.
At age 27, Ninua reportedly relapsed, using cannabis and alcohol daily in significantly larger quantities than before. At age 33, being when his father came to Australia, Ninua reportedly ceased all drug and alcohol use and remained abstinent for the next 3 years.
At age 36, he reportedly relapsed again following the death of his father, using methamphetamines and heroin in increasingly large quantities up until the time of his arrest.
Shortly prior to the alleged offending, Ninua had commenced a new relationship, though he has had no further contact with his partner since being remanded. He reports being supported by family, including his mother, brother (who lives in Indonesia) and sister-in-law, as well as friends. He does not have any dependants.
Ninua has a criminal history dating back to 2012, including, but not limited to, offences of unlawful assault, resisting a police officer, resisting an emergency worker on duty, unlicenced driving, theft and possession of drugs of dependence.[4] His most recent offending resulted in convictions in November 2023, for which he was made the subject of a community correction order.
[4]As defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
He has no relevant prior criminal history for offending whilst on bail or failing to comply with conditions of bail, though the community correction order remained in force at the time of the alleged offending.
Ninua had never been in custody prior to his remand and has never been sentenced to a term of imprisonment.

C. Legal principles

In interpreting and applying the Bail Act 1977 (Vic), the court is required to take into account the guiding principles set out in section 1B. These include competing considerations of maximising the safety of the community and the presumption of innocence and the right to liberty.[5]
[5]Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
Ninua is charged with offences listed under Schedule 2 of the Bail Act; namely, armed robbery[6] and other indictable offences that involved the use or threatened use of an offensive weapon.[7]
[6]Bail Act, sch 2, item 22(a).
[7]Ibid, sch 2, item 23. These are the charges in relation to false imprisonment, extortion, intentionally causing injury and recklessly causing injury (see par 1(2)-(5) above). The prosecution noted during the hearing that although kidnapping contrary to s 63A of the Crimes Act is a Schedule 2 offence (Bail Act, sch 2, item 21), Ninua is charged with kidnapping contrary to common law (see par 1(1) above), which offence is not listed under Schedule 2.
Accordingly, pursuant to section 4AA(3) of the Bail Act, he must demonstrate that a compelling reason exists to justify the grant of bail.
The term “compelling reason” is not defined in the Bail Act. However, the analysis of Beach JA in Re Ceylan[8] has been subsequently applied on numerous occasions by this court,[9] and was helpfully summarised by the Court of Appeal in Rodgers v The Queen as follows:[10]
(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 [of the Bail Act]) 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 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”.
[8][2018] VSC 361, [45]-[48] (Beach JA). It is worth mentioning that when Beach JA considered the meaning of “compelling reason” in this context, it was in determining whether there was “compelling reason why [an applicant’s] detention in custody is not justified” under a previous version of the Bail Act. The test now outlined in s 4C(1A) of the Bail Act instead requires the court to refuse bail unless satisfied that “a compelling reason exists that justifies the grant of bail”. However, in Re Alsulayhim [2018] VSC 570, Beach JA stated that “[w]hile the statutory language is slightly different, the expression ‘compelling reason’ remains” and as such held that there was “no reason to depart from the analysis or holding in [Re Ceylan] concerning the proper construction of the expression ‘compelling reason’” (at [28]).
[9]See, for example, Re JB [2020] VSC 184, [24] (Kaye JA); Re JM [2019] VSC 156, [56]-[58] (Champion J); Re Alsulayhim [2018] VSC 570, [27]-[28].
[10][2019] VSCA 214, [43] (Beach, Kaye and Ashley JJA). These principles have been cited in a number of subsequent decisions by this court. See, for example, Re CR [2024] VSC 197, [65] (Fox J); Re Wills [2024] VSC 168, [27] (Kaye JA); Re Mangion [2024] VSC 23, [37] (Champion J).
While it may be the case that none of the matters relied upon may be regarded as compelling individually, when taken together, their combined weight may satisfy the compelling reason test.[11]
[11]Re AC [2022] VSC 370, [72] (Champion J).
If satisfied that a compelling reason exists, the court must then determine whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[12] In assessing that risk, the court must consider whether the risk posed may be mitigated by any conditions of bail.[13]
[12]Bail Act, s 4D(a).
[13]Ibid, s 4E(3)(b).

The court must refuse bail if satisfied that there is an unacceptable risk, notwithstanding that the compelling reason test has been met.[14] The notion of unacceptable risk does not concern merely any risk of offending. Rather, the question is whether such a risk is unacceptable.[15] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[16]
[14]Ibid, s 4E(1).
[15]Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).
[16]Bail Act, s 4E(2).
In considering both whether a compelling reason exists and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[17] Such surrounding circumstances include, but are not limited to, the following matters listed in section 3AAA(1) of the Bail Act:
[17]Ibid, ss 4C(3), 4E(3)(a).
…
(aa)whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—
(i) that the accused would be sentenced to a term of imprisonment; and
(ii)if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment.
(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;
…
(e)       whether, at the time of the alleged offending, the accused—
…
(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—
…
(iii)      experiencing any ill health, including mental illness; or
…
(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;
…
If the court is considering the release of an applicant on bail, it must impose any condition that, in the opinion of the court, will reduce the likelihood of risk that the applicant may endanger the safety or welfare of any other person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the bail undertaking.[18] However, those conditions must be no more onerous than is required and must be reasonable, having regarding to the nature of the alleged offence and the circumstances of the applicant.[19]

D. Submissions

[18]Ibid, s 5AAA(1).

[19]Ibid, s 5AAA(2).

D.1 Ninua’s submissions

In support of bail, it was submitted on behalf of Ninua that a compelling reason was established by the combined weight of several factors, namely that:
(1)While it is likely Ninua would be sentenced to a term of imprisonment if found guilty, it was not conceded that the time spent on remand if bail were refused would exceed that term of imprisonment.[20] This submission was made on the basis of anticipated delay in the proceeding, namely due to:
[20]Ibid, s 3AAA(1)(aa) and (k).
(a)charges which will necessitate fingerprint and DNA[21] analysis, as well as e-crime analysis on a tablet device, which must all be completed prior to the matter proceeding to a committal hearing. It was submitted that the timeline for such testing to be completed is invariably uncertain and can never be guaranteed. Indeed, on this application, the prosecution was unable to provide any meaningful indication as to how long the delay was likely to be;
[21]That is, deoxyribonucleic acid.
(b)there being at least 1 co-accused, Darwish, charged at this stage, which has the potential to delay the listing of future proceedings; and
(c)there being a potential third offender yet to be identified or charged, which also has the potential to delay future proceedings. In this regard, it was submitted that when the results of DNA analysis eventually became available, there was a real prospect that the third person could be identified, and that any resulting charges would necessarily cause delay to the commencement of Ninua’s trial.
(2)While accepting that the alleged offending is serious, it was submitted that it falls within the low to middle range of such offending.[22]
(3)While it was accepted that the prosecution case is strong, it was submitted that there are real triable issues, most notably on the basis that Ninua has claimed he was acting in self-defence and defence of another in his record of interview.[23]
(4)Ninua has a limited criminal history and this is his first time in custody.[24]
(5)Ninua has no prior criminal history for offending whilst on bail or failing to comply with conditions of bail,[25] though it was conceded that he was the subject of a community correction order at the time of the alleged offending.[26]
(6)Ninua suffers from drug and alcohol dependency, post-traumatic stress disorder, depression and anxiety.[27] He has reportedly found his first time in custody to be “particularly salutary”. If granted bail, Ninua would attend his general practitioner to be assessed for a mental health care plan.
(7)He proposes to reside with his mother, which is submitted to be a stable address.[28]
(8)Ninua’s mother has ongoing and serious health issues, and she has no one else to assist with her care.[29]
(9)Ninua has been assessed as a suitable candidate for the BailSafe Health Group program (“BailSafe”).[30] As part of this program, he would be electronically monitored and tracked by GPS[31] devices which have the ability to record and report on his position and generate alerts 24 hours per day. He would also participate in a 12 week outpatient treatment program, involving case management, general practitioner sessions, psychoeducation, group therapy, narcotics anonymous sessions, digital mental health education, and bi-weekly supervised drug screens.
[22]Bail Act, s 3AAA(1)(a).
[23]Ibid, s 3AAA(1)(b).
[24]Ibid, s 3AAA(1)(c).
[25]Ibid, s 3AAA(1)(d).
[26]Ibid, s 3AAA(1)(e)(v).
[27]Ibid, s 3AAA(1)(g) and (h)(iii).
[28]Ibid, s 3AAA(1)(g).
[29]Ibid.
[30]Ibid, s 3AAA(1)(i).
[31]That is, global positioning system.
Further, it was submitted that it would be possible to sufficiently mitigate any unacceptable risk associated with a grant of bail by the imposition of conditions requiring that Ninua:
(1)Reside at a static address.
(2)Notify the informant or his nominee of any plan to change that address.
(3)Not change his place of residence without leave of the court.
(4)Not leave his place of residence without being in the company of his mother, or to attend upon a treatment or medical appointment.
(5)Surrender any valid passport and not to leave Victoria.
(6)Not apply for a passport or any travel document.
(7)Not attend any points of international departure.
(8)Not associate with any co-accused.
(9)Not contact Vukovic or cause anyone else to contact Vukovic.
(10)Report to a police station as often as required by the court.
(11)Observe a curfew between certain hours specified by the court.
(12)Present at the front door of his residence during the curfew hours at the request of the informant or his nominee.
(13)Only possess 1 mobile telephone.
(14)Provide the informant with the international mobile equipment identity number and phone number of his mobile phone.
(15)Not install any encrypted message applications on his phone.
(16)Produce the mobile phone in his possession for inspection upon the request of the informant or his nominee.
(17)Not use or possess any drug of dependence without lawful authorisation.
(18)Not consume alcohol.
(19)Attend upon and comply with the directions of BailSafe Health Group.
(20)Attend upon and comply with the directions of Moorabbin Community Corrections Services.
(21)Attend upon his general practitioner to obtain a mental health care plan.
(22)Submit to regular supervised drug screenings.
(23)Provide the results of each drug screen to the informant by email within 24 hours of receiving the results.
Ninua was otherwise willing to agree to any other conditions the court deemed appropriate.

D.2 Respondent’s submissions

In response, the prosecution submitted that Ninua had not discharged his burden of satisfying the court that a compelling reason existed to justify the grant of bail.
The prosecution submitted the alleged offending did not, as had been submitted on behalf of Ninua, fall within the low to middle range of that type of offending, but instead fell within the middle to high range. Although it was accepted that Vukovic’s injuries did not meet the definition of serious injury, it was submitted that the court should have regard to the fact that he had spent a significant amount of time in hospital and required operative repair to his arm. Further, on Vukovic’s account, the alleged offending was premeditated and planned, with him being lured to the Caulfield South Residence and held against his will for a number of hours. Furthermore, in addition to the injuries inflicted, demands were made for Vukovic’s property and he had property stolen from him. Moreover, the alleged offending was committed by multiple perpetrators and involved the use of several weapons.
The prosecution placed particular reliance upon the strength of its case, submitting that Ninua’s claim of self-defence was “outrageously far-fetched”. In support of its case, and in denial of Ninua’s claims of self-defence and defence of another, several matters were referred to, including that:
(1)The footage retrieved from Vukovic’s dash camera is consistent with a pre-planned and organised act of violence, such as a kidnapping, as opposed to self-defence in response to a home invasion. The footage appears to show Darwish and Vukovic acting peacefully and not aggressively towards each other upon Vukovic’s arrival, suggesting Vukovic was lured into the garage, as opposed to Vukovic committing a home invasion. The footage also shows Darwish holding an envelope,[32] and both parties continuing to act peacefully as Vukovic follows Darwish into the garage. Although very dark and blurry, it was claimed by the informant that the footage then shows Darwish dropping the envelope, apparently as a distraction, before striking Vukovic. Two people, alleged by the prosecution to be Ninua and the unidentified third offender, are then captured on the dash camera footage entering the garage from a side door and closing the garage door behind them. It is alleged that these 2 people would not have easily seen who the alleged aggressor was before choosing to shut the garage door, which suggests premeditated violence, as opposed to a spur of the moment dispute in which Ninua and the unidentified man intervened in self-defence or defence of another.
(2)No contact was made with emergency services with respect to any home invasion at the Caulfield South Residence during the time of the alleged offending.
(3)Closed circuit television footage shows Darwish at a service station allegedly using a bank card owned by Vukovic to withdraw funds, which appears to corroborate Vukovic’s account of kidnapping for a financial motive, as opposed to legitimate claims of self-defence or defence of another.
(4)The weapons alleged to have been used against Vukovic during the assault, including a “heat gun”[33] and hammers, are not items a reasonable person would have “on hand” and available to defend themselves.
(5)Similarly, weapons recovered during the execution of a search warrant at Darwish’s home address, such as shock collars, handcuffs, a crossbow and 3 handguns, are items said to be commonly used during kidnappings and extortions (as opposed to a reasonable person exercising self-defence or defence of another).
(6)Vukovic was 1 person against a minimum of 3 alleged offenders. The level of violence used and extent of injuries sustained were not reasonable or proportionate in the circumstances.
(7)Darwish presented a different version of events to Ninua in his record of interview, conceding that Vukovic was “hog-tied”.[34]
(8)Vukovic was delivered home, as opposed to driving his own car home, demonstrating the level of control the 3 men had over Vukovic at the time of the alleged offending.
(9)Vukovic was not delivered home until approximately 6.12pm, making it more likely that Vukovic remained “hog-tied” and beaten for some hours whilst being extorted, as opposed to being violently uncontrollable as claimed by Ninua in his record of interview.
(10)In her witness statement, Ninua’s partner stated that at the time of the alleged offending, Ninua told her not to come outside and that she would not want to know what was happening.
[32]See par 12 above.
[33]See par 19 above. It is not presently clear exactly what weapon was used in this regard: see fn 3 above.
[34]Issues in relation to the admissibility of this evidence were not raised on this application.
Although the informant’s evidence was imprecise on the issue, counsel for the prosecution accepted there may be issues raised at trial in respect of Vukovic’s credibility. Without descending into the detail, the contents of a statement already provided to police suggested Vukovic’s sources of income are somewhat unconventional.
In relation to delay, the prosecution submitted that the prospect of locating and charging a third offender is ultimately speculative. This submission was made on the basis that police had conducted a thorough investigation to date and unless further evidence came to light, that person might remain unidentified. As such, it was then submitted that this was not something that would necessarily cause delay in and of itself. That being said, the prosecution accepted that there would likely be some level of delay in the proceeding, at least in respect of awaiting results of forensic testing.
The prosecution noted that although Ninua’s criminal history is limited and this is his first time in custody, he has a history of breaching court orders, including having been the subject of a community correction order at the time of the alleged offending. In addition, Ninua has a history of violent offending, including unlawful assaults and resisting police.
As to Ninua’s personal circumstances, the prosecution expressed concern that Ninua’s mother appeared to have had no prior awareness of his history of drug and alcohol abuse until she was recently advised of this by his legal practitioners. Given the apparent lack of communication and transparency between them, it was submitted that Ninua’s mother may not be able to properly monitor and assist him if he were granted bail to reside at her address, as has been proposed. In addition, although Ninua’s general practitioner has provided a letter noting various diagnoses in respect of his mental health, there has been no report from a qualified psychologist in relation to those matters.
Finally, it was submitted that the views of Vukovic and concerns he has expressed about his own safety were Ninua to be released on bail are a relevant surrounding circumstance in determining whether there is a compelling reason in this case.
Ultimately, the prosecution submitted that none of the factors relied upon by Ninua, either alone or in combination, met the threshold of a compelling reason.
Even if a compelling reason could be established, however, it was submitted that Ninua posed an unacceptable risk and the proposed conditions of bail were not capable of ameliorating that risk or bringing it to an acceptable level. More particularly, it was submitted that Ninua posed an unacceptable risk of:
(1)Endangering the safety or welfare of Vukovic. Given threats allegedly made by Ninua to Vukovic in relation to speaking with authorities,[35] should Ninua be released on bail, police are concerned for Vukovic’s welfare. It was further submitted that BailSafe is not an appropriate mechanism to protect Vukovic and his family in circumstances where Vukovic’s home address is known to Ninua. While BailSafe may detect breaches, it was submitted that BailSafe technology is unlikely to assist in locating Ninua should the devices be removed by him, and it cannot be assumed that an immediate police response to a breach is achievable at every moment in time.
(2)Endangering the safety or welfare of the community. It was submitted that Ninua has proven to be a violent person, and has previously been convicted of assaulting a police officer. Although he has no prior convictions for bail-related offending, he has reason not to comply with bail and to interfere with prosecution witnesses, given the strength of the case against him and the likelihood that a sentence will be imposed. Ninua and Darwish also had access to firearms and prohibited weapons at the time of the alleged offending, which presents an inherent risk to community safety. In addition, Ninua has shown no regard for the terms of his community correction order. Finally, Ninua is also a person of interest in another active investigation involving kidnapping, although no charges have been laid at this stage due to a lack of complainant engagement.
(3)Interfering with witnesses or otherwise obstructing the course of justice. This submission was made on similar grounds to those outlined above in relation to endangering the safety or welfare of others, including the threats allegedly made to Vukovic during the course of the alleged offending. It was further submitted that the degree of risk associated with this factor was increased by the fact that the alleged third offender had not yet been identified, and that investigations were ongoing in that regard.
(4)Failing to surrender into custody in accordance with the conditions of bail. It was submitted that Ninua is a flight risk, given the serious nature of the allegations against him, the likely penalty if he is convicted and available means of fleeing the jurisdiction undetected. If a warrant for Ninua’s arrest were to be issued following any breach, police believe this would also give rise to safety risks given Ninua’s history of assaults against police and emergency workers and his access to weapons.

E. Consideration

[35]See par 25 above.

E.1 Compelling reason

Notwithstanding the strength of the prosecution case and the serious nature of the alleged offending, which I do not accept is at the low range of this type of offending, the issue of whether a compelling reason justifying the grant of bail had been established was relatively straightforward. Without being exhaustive, there were a number of factors that demonstrated a compelling reason existed.
First, the issue of delay is significant. Although there has been no notable delay in the proceeding to date, the evidence did demonstrate that there is likely to be considerable delay in future with respect to forensic testing, which is necessary for the prosecution of this case.
Further, as already touched upon above,[36] there is a real possibility of substantial future delay in the event that the third alleged offender is located and charged. It was not suggested by the prosecution’s counsel that, if a third person were to be located and charged prior to the commencement of a trial, the case against Ninua and Darwish could proceed to trial without the third alleged offender. There is a strong presumption that there would be a joint trial of all 3 alleged offenders,[37] meaning that further delay would inevitably result.
[36]See par 55(1)(c) above.
[37]Criminal Procedure Act 2009 (Vic), s 170(2). See also Kannan v The King [2023] VSCA 58, [26] (Priest, Niall and Macaulay JJA); R v Ferguson (2009) 24 VR 531, 587 [310] (Maxwell P, Buchanan and Weinberg JJA); Webb v The Queen (1994) 181 CLR 41, 88.7–89.4 (Toohey J, with whom Mason CJ and McHugh J relevantly agreed); R v Demirok [1976] VR 244, 251.9–252.6 (Young CJ, Lush and Crockett JJ).

Secondly, the health of Ninua’s mother is a relevant consideration. She suffers from serious medical conditions and needs the assistance of a carer, a role that has been performed by Ninua in the past. She gave evidence that she can lose consciousness as a result of these conditions and that, without the attentiveness of her son, there were 2 occasions in the past where she might have died.
Thirdly, Ninua’s own health is relevant. He has had issues with alcohol and drug abuse in the past, and if granted bail, would be able to receive treatment and support through BailSafe as part of his stated desire to engage in rehabilitation. He would also be able to seek treatment for what appears to be significant psychological issues he has suffered and continues to suffer from as a result of trauma associated with his childhood and past.
Finally, a significant electronic monitoring arrangement through BailSafe has been proposed as a condition of bail. Extensive details of the proposed arrangement were provided, which included an open invitation to the informant to be directly involved is determining aspects of the arrangement in order to ensure maximisation of safety and minimisation of risk.

E.2 Unacceptable risk

As recently observed by the Court of Appeal, the question of risk is “forward-looking and involves a predictive exercise often based on incomplete material”.[38] That is certainly the position in this case. However, having taken into account all the circumstances including the surrounding circumstances, I am of the opinion that the prosecution has not discharged its burden of establishing Ninua poses an unacceptable risk.
[38]FT v The King [2024] VSCA 90, [79] (Beach, McLeish and Niall JJA).
Each of the matters referred to above in determining that a compelling reason exists are also relevant to the question of risk. In light of these matters, I have formed the view that, were Ninua to be granted bail on very stringent conditions and with an electronic monitoring arrangement in place, any risk he may pose of endangering the safety or welfare of any person, interfering with witnesses or failing to answer to bail will not reach the threshold of unacceptability.
In this regard, it is relevant that Vukovic has expressed concerns for his safety if bail were to be granted to Ninua. To address this, the electronic monitoring arrangement will include the demarcation of an area which Ninua is to be prohibited from entering at all times, even when accompanied by his mother. Extensive curfew hours will also be put in place to provide further protection in this regard.
Further, Ninua will be required to reside with his mother. She gave evidence at the hearing, and was an impressive witness who has held a responsible full-time job for 17 years. She undertook to immediately notify the informant of any breach of Ninua’s conditions of bail. She gave evidence that she is able to work at home at least 3 days per week, meaning she would be home with her son for a minimum of 5 out of 7 days per week. She also agreed to a condition of bail prohibiting Ninua from leaving the proposed bail address outside of curfew hours except in her company and undertook to accompany him to mandatory reporting, screening and treatment sessions.
Furthermore, the fact that Ninua’s mother depends on him for care provides a very significant incentive for him not to breach bail. This must also be viewed in light of the fact that he has now started to take responsibility for his issues with substance abuse and his mental health. There is a real possibility that Ninua will be able to use his time on bail, particularly with the support of BailSafe, to take meaningful and long-term steps towards rehabilitation in a manner that would not be available to him if he remained on remand. The conditions to be imposed will include mandatory urine screening to ensure that commitment to abstain from the use of any illicit substances will be closely monitored.
As a final remark, I wish to make clear that I would not have granted bail to Ninua had it not been for the availability of support and supervision from both his mother and BailSafe, and the strict electronic monitoring arrangement to which he has agreed to subject himself.

F. Conclusion

For the reasons stated, I am satisfied that a compelling reason exists justifying the grant of bail. Further, on the basis of the conditions to be imposed, the prosecution has not established that Ninua poses an unacceptable risk.
Accordingly, bail is granted on the following conditions, namely that Ninua must:
(1)Reside at [address] (“the Residence”).
(2)Not change his place of residence without leave of the court.
(3)Report to the officer in charge of the Moorabbin Police Station, or her or his nominee, every Monday and Friday between the hours of 9.00am and 7.00pm.
(4)Not leave the Residence between the hours of 8.00pm and 8.00am each day (“the Curfew Hours”), except in the case of a medical emergency in respect to himself or his mother.
(5)Present at the front door of the Residence during the Curfew Hours upon the reasonable request of the informant, Senior Constable [name], or his nominee, being an authorised member of Victoria Police.
(6)Not leave the Residence between the hours of 8.00am and 8.00pm each day, unless in the company of his mother.
(7)Not possess any firearm as defined in the Firearms Act 1996 (Vic).
(8)Not consume alcohol.
(9)Not use or possess any drug of dependence as defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
(10)Not possess or use more than 1 mobile telephone.
(11)Provide the informant or his nominee with the telephone number, international mobile equipment identity (“IMEI”) number, subscriber identification module (“SIM”) card number and any password or passcode of the mobile telephone he possesses or uses, within 24 hours of first having access to that mobile telephone, and notify the informant or his nominee of any change of password or passcode of that mobile telephone within 24 hours of that change.
(12)Produce the mobile telephone he possesses or uses for inspection upon the reasonable request of the informant or his nominee.
(13)Provide any password or passcode for the mobile telephone he possesses or uses upon the reasonable request of the informant or his nominee.
(14)Not possess or use any computer, tablet or other electronic device that has any applications installed that allow for encrypted communications.
(15)Not leave the State of Victoria.
(16)Not attend any port, airport or international point of departure.
(17)Surrender any current passport or any interstate or international travel documents in his possession or control to the informant or his nominee within 24 hours of the date of these orders.
(18)Not apply for any passport or any interstate or international travel documents or cause, whether directly or indirectly, any other person to do so on his behalf.
(19)Not have any contact with, or seek to contact, any witnesses for the prosecution, whether directly or indirectly, other than the informant.
(20)Not have any contact with, or seek to contact, any co-accused, whether directly or indirectly.
(21)Attend upon and comply with all lawful directions of the BailSafe Health Group, including in relation to not entering the following geographical areas:
(a)The Noble Park area, being the geographical area within the boundaries of Chandler Road, Cheltenham Road, Springvale Road and Heatherton Road in Noble Park, Melbourne, Victoria; and
(b)The Dandenong area, being the geographical area within the boundaries of Cheltenham Road, Princes Highway and Railway Parade in Dandenong, Melbourne, Victoria.
(22)Attend upon and comply with all lawful directions of Moorabbin Community Corrections Services.
(23)Attend upon his general practitioner at [address] at 10.00am on 1 July 2024 for the purpose of obtaining a mental health plan.
(24)Submit to supervised drug screenings twice per week at [nominated pathologist] every Tuesday and Friday.
(25)Provide the results of each drug screening conducted pursuant to paragraph 1(24) of these orders to the informant by email at [email address] within 24 hours of receiving the results.
(26)Attend the Magistrates’ Court of Victoria at Melbourne at 10.00am on 29 July 2024 and there surrender himself and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.

[2024] VSC 391

28 June 2024