Re Njovu
[2023] VSC 622
•28 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0133
IN THE MATTER of the Bail Act 1977
– and –
IN THE MATTER of an application for bail by MARVIN NJOVU
BETWEEN:
| MARVIN NJOVU | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 and 21 July 2023 |
DATE OF JUDGMENT: | 28 July 2023 |
DATE OF REASONS: | 25 October 2023 |
CASE MAY BE CITED AS: | Re Njovu |
MEDIUM NEUTRAL CITATION: | [2023] VSC 622 |
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CRIMINAL LAW — Application for bail — Charges relating to failure to answer bail, criminal damage, intentionally causing injury, unlawful assault and contravening a Family Violence Intervention Order — First time in custody — Family support — Men’s Behaviour Change Program — Delay — Exceptional circumstances satisfied — Ties to jurisdiction —No recent contact with complainant — Unacceptable risk not established — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E, 5AAAA, 18, 18AA, 18AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | E Daniel (solicitor advocate) | Daniel Legal Group |
| For the Respondent | M Weinman | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by Marvin Njovu [‘the applicant’]. He seeks bail with respect to 14 charges arising out of the following matters:
Matter Dates Charges Informant Richards‑Jones Alleged offending between 7 May and 22 August 2021
Charged 30 August 2021
Criminal damage
Intentionally causing injury (x2)
Recklessly causing injury (x2)
Unlawful assault (x2)
Threatening to inflict serious injury
Assault with a weapon
Threatening to distribute intimate images
Informant Adams Alleged offending on 16 November 2021
Charged 10 March 2022
Contravening a family violence intervention order [‘FVIO’]
Contravening a conduct condition of bail
Informant Roberts Alleged offending on 1 June 2022
Charged 6 June 2022
Failing to answer bail Informant Kristiansen Alleged offending on 10 March 2023
Charged 13 April 2023
Failing to answer bail Other outstanding matters
The applicant is currently subject to bail in the following matter:
Matter Dates Charges Informant Gataric Alleged offending between 5 and 28 October 2021
Charged 1 March 2022
Perverting the course of justice
Persistently contravening an FVIO
Contravening an FVIO (x3)
Committing an indictable offence while on bail (x3)
Using carriage service to harass
Background and procedural history
In March 2021, the applicant and the complainant commenced an intimate relationship, and in April 2021 they started living in the applicant’s apartment.
On 24 August 2021, the complainant provided a statement to police alleging that the applicant had committed family violence against her on 7 May, 16 May and 22 August 2021.
The same day, the applicant was arrested. On 25 August 2021, he was served with a Family Violence Safety Notice [‘FVSN’] that prohibited him from:
(a) committing family violence against the complainant;
(b) approaching, telephoning or otherwise contacting the complainant unless in the company of a police officer;
(c) being anywhere within five metres of the complainant;
(d) being at or within 200 metres of any place where the complainant lives; and
(e) causing another person to engage in conduct prohibited by the notice.
The applicant was charged in relation to the aforementioned alleged offending by Informant Richards‑Jones and was bailed by police on 25 August 2021 with conditions, replicating the terms of the FVSN.
On 31 August 2021, an interim FVIO was made by the Melbourne Magistrates’ Court. It included conditions prohibiting the applicant from:
(a) committing family violence against the complainant;
(b) going to or remaining within 200 metres of a specified address, or any other place where the complainant lives, or attends school or childcare; and
(c) getting another person to do anything he must not do under the order.
On 3 November 2021, the complainant sought to withdraw her 24 August 2021 statement, and made a statement of no complaint.
On 16 November 2021, police attended the applicant’s address after being called by the complainant’s sister in law, and found the applicant and the complainant together. The applicant was interviewed at the scene.
Towards the end of December 2021, the complainant provided a further statement to police over the telephone, which she signed on 27 December 2021. In this statement, the complainant reported that the applicant had pressured her to make the statement of no complaint.
On 11 January 2022, the applicant was arrested and interviewed in relation to the allegations that he had pressured the complainant to make the statement of no complaint. He was subsequently released pending summons.
On 12 January 2022, the complainant made further statements to police.
On 19 January 2022, the interim FVIO against the applicant was varied to include full no‑contact conditions.
On 1 March 2022, the applicant was charged and summonsed by Informant Gataric, in relation to the allegations that he had pressured the complainant to make the statement of no complaint.
On 10 March 2022, the applicant was charged and summonsed by Informant Adams, in relation to allegations that he contravened the FVIO and a conduct condition of bail on 16 November 2021.
On 1 June 2022, the applicant failed to appear on summons for the Informant Adams matter and on bail for the Informant Richards‑Jones matter, and warrants to arrest were issued. On 6 June 2022, the applicant was arrested in relation to the outstanding warrants. He was charged by Informant Roberts with failing to answer bail, and released on bail in relation to the Informants Adams, Richards‑Jones and Roberts matters, to appear on 2 November 2022.
On 2 November 2022, the applicant reportedly failed to appear and warrants to arrest were issued. On 23 December 2022, the applicant was arrested in relation to the outstanding warrants and released on bail, to appear on 1 March 2023. Having reviewed the information provided to the court by the applicant’s solicitor, it is not clear whether the applicant was charged in relation to this incident.
On 1 March 2023, the applicant appeared in court. However, on 10 March 2023, the applicant again failed to appear in court, and warrants to arrest were issued. On 12 April 2023, the applicant was arrested in relation to the outstanding warrants.
On 13 April 2023, the applicant was charged by Informant Kristiansen in relation to his failure to appear in court on 10 March 2023. Again, on the basis of the voluminous (yet incomplete) information provided to the court by the applicant’s solicitor, it appears that the applicant was refused bail in the Magistrates’ Court that same day (although it is not clear which matters the bail decision related to). Bail was refused on the basis that the applicant did not establish exceptional circumstances and there was an unacceptable risk that he would fail to surrender into custody in accordance with the conditions of bail.
On 30 May 2023, bail was fixed on conditions following the applicant’s committal in the Informant Gataric matter (this matter being one that the applicant was previously subject to summons). The stated reasons for granting bail were that the respondent did not oppose bail, the applicant had stable accommodation, and the occurrence of a likely delay.
On 31 May 2023, the applicant made a further application for bail in the Magistrates’ Court. Unhelpfully, it is again unclear from the material provided by the applicant’s solicitor which matters the bail decision related to. Nevertheless, the application was refused on the basis that the applicant did not establish exceptional circumstances and there was an unacceptable risk that he would commit an offence while on bail, endanger the safety or welfare of any person and fail to surrender into custody in accordance with the conditions of bail.
The applicant has remained in custody since his remand on 13 April 2023. His matters are next listed on:
(a) 12 July 2023 for mention in the Melbourne Magistrates’ Court (Informants Kristiansen, Roberts, and Adams matters);
(b) 8 August 2023 for committal mention in the Melbourne Magistrates’ Court (Informant Richards‑Jones); and
(c) 21 August 2023 for directions hearing in the Melbourne County Court (Informant Gataric).
The alleged offending
Informant Richards-Jones matter (remand)
7 May 2021
On 7 May 2021, it is alleged the applicant punched the complainant’s car windscreen three times, and damaged it.
16 May 2021
On 16 May 2021, the applicant was arguing with the complainant. The complainant subsequently woke up in a pool of blood, with pain to her face. She asked the applicant what had happened, and he said that he had punched her. The complainant went to hospital the following day, where she received stitches for her injuries.
22 August 2021
On 22 August 2021, the applicant and the complainant were drinking at their apartment. The complainant made a comment that angered the applicant. The applicant allegedly grabbed her by the throat and threw her to the floor, causing the complainant to hit her head and the right side of her body on the floor.
He then allegedly got on top of her, grabbed her throat with both hands, and choked her for approximately seven seconds. The complainant could not breathe. The applicant then fetched a hammer, waved it in front of her face, and told her that he would smash her face in if she did not shut up.
The applicant then put the hammer into his belt and told the complainant to take her clothes off, as he wanted to take photos to show his friends what a “whore” she was. The complainant removed her clothes out of fear, sat on the bed naked (except for a bra), while the applicant held his phone. She is unsure whether the applicant took any photos, but thought there might have been a camera flash. The complainant then ran outside, but the applicant told her to come back and she complied.
On 24 August 2021, the complainant attended Prahran police station and provided a statement to police. She reported that she was still in pain. Police photographed her visible injuries, namely marks to her neck and a bruise under her chin.
Later that evening, the applicant was arrested and interviewed. He admitted that he broke the windscreen on 7 May.
In relation to the alleged incident on 16 May 2021, he stated:
She accused me of wanting to sleep with my friend’s wife. We’ve come home and we’ve fought … I’ve gone to restrain her … not sure how she fell and she’s cut her mouth … we did go to hospital.
In relation to the alleged incident on 22 August 2021, he stated:
[The complainant] threw a plate at me … I showed my disapproval … I grabbed her to control her … we fell to the ground. I grabbed her upper arms to stop her throwing things … we tussled and fell to the floor … think she hit her head.
When asked how the complainant came to have marks around her neck, he added:
We had sex that night and she likes rough sex. Some might be from sex and some might be from the altercation … I did hurt [the complainant] during that altercation, not intentionally.
On 25 August 2021, the complainant attended hospital to have her injuries assessed, and the discharge summary noted bruising and tenderness.
Informant Gataric matter (bail)
On 3 November 2021, the complainant attended the Prahran police station and made a statement of no complaint. She said that she wished to withdraw the statement she made on 24 August 2021 because she was not in the right mental state at the time of making it and was affected by alcohol.
Towards the end of December 2021, the complainant provided a further statement to police over the telephone, which she signed on 27 December 2021. In this statement, the complainant reported that the applicant had pressured her to make the statement of no complaint. She said that her initial statement on 24 August was true.
The complainant also provided police with text messages and emails which she received from the applicant in October, telling her to withdraw her initial statement. For example, on 5 October 2021, the complainant received a text from the applicant which states:
I just wrote a response for you to the police which I have emailed to you for your review I would like to send It tonight latest in the morning Let me know your thoughts baby
Earlier that day, the complainant received the following email from the applicant:
----------Forwarded message----------
From: Marvin Njovu <[redacted]>
Date: Tue, 5 Oct 2021 at 5:31 pm
Subject: Letter to policeTo: [The complainant] <[redacted]>
To whom it may concern,
I would like to withdraw the statement I made on the 24th August.
The Main reason for this is that the information I provided is not accurate and should next be used as evidence and or anything regarding any related charges towards Marvin Njovu.
My mental state, alcoholism and the fact I was not taking my medication during the period leading up to the statement made including an inaccurate statement has brought me to do the right thing and withdraw it.
I want all the multiple charges towards Marvin Njovu dropped as they also are not accurate or relevant.
The purpose and outcome of what I wanted has spiralled out of control and has impacted me more than i can take on. Marvin and I are in a relationship and he has been the person supporting, helping and giving me strength each day.
The statement was made during a moment of weakness.
Please withdraw my statement and drop all charges against my partner Marvin Njovu.
Thank you
On 11 January 2022, the applicant was arrested and interviewed. During the interview, the applicant did not admit to sending messages to the complainant about withdrawing the charges. He stated that:
(a) his phone had been recently hacked;
(b) he believed some messages were sent by the complainant as the result of her stealing his phone and/or accessing his accounts;
(c) he had only sent the applicant information about getting legal advice, and told her to tell the truth; and
(d) he had no reason to manipulate her to make a statement of no complaint as he had engaged a lawyer and was defending the allegations in any event.
Informant Adams matter (remand)
16 November 2021
On 16 November 2021, the applicant went through the complainant’s online banking transactions for two to three hours, as he believed she was cheating on him. The complainant wanted to leave while this happened, but the applicant took her car keys.
The applicant was suspicious of transactions that the complainant had made at Chemist Warehouse. He then went to a Chemist Warehouse and took photos of condoms and lubricant being sold in the store, which were of a similar value to the purchases that the complainant had made.
The pair returned to the applicant’s address, and the complainant texted her sister in law saying that she was not able to leave. Her sister in law called the police. Police attended, found the applicant and complainant together and interviewed the applicant.
Informant Roberts matter (remand)
On 1 June 2022, the applicant failed to appear at the Melbourne Magistrates’ Court in accordance with his bail undertaking.
Informant Kristiansen matter (remand)
On 10 March 2023, the applicant failed to appear at the Melbourne Magistrates’ Court in accordance with his bail undertaking.
On 12 April 2023, the applicant was arrested and interviewed. He stated that he had sent an email to the court advising that he would not be able to attend. However, he did not provide a doctor’s certificate as requested by the court.
The applicable legislation
Guiding principles
When interpreting and applying the Bail Act 1977 (Vic) [‘the Act’], the court is required to have regard to the guiding principles set out in section 1B.[1] Section 1B provides:
[1]Bail Act 1977 (Vic), s 1B(2).
(1)The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Step 1 — the exceptional circumstances test
As the applicant is charged with a Schedule 2 offence[2] under the Act, which is alleged to have been committed while he was on bail for other Schedule 2 offences,[3] bail must be refused unless he satisfies the court that exceptional circumstances exist that justify the grant of bail.[4]
[2]Namely, an offence against the Act (Informant Kristiansen matter). See the Act, sch 2, item 30.
[3]Namely, offences against the Act (Informants Roberts and Adams matters). Ibid.
[4]The Act, ss 4AA(2)(c)(i) and 4A(1)–(2).
The applicant bears the onus of proving to the requisite standard that exceptional circumstances exist to justify the grant of bail.[5] In determining whether exceptional circumstances exist, the court must take into account the relevant surrounding circumstances, including, but not limited to, those prescribed in section 3AAA(1) of the Act.[6]
[5]Ibid ss 4A(1A)–(2), 4C(1A)–(2).
[6]Ibid s 4A(3).
Step 2 — the unacceptable risk test
If satisfied that exceptional circumstances exist, the court must then apply the unacceptable risk test.[7] Bail must be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that this risk is an unacceptable one.[8] In considering whether any relevant risk is unacceptable, the court must again have regard to the surrounding circumstances in section 3AAA(1) and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[9]
[7]Ibid ss 4A(4), 4D(1)(a).
[8]Ibid s 4E(1)–(2).
[9]Ibid s 4E(3).
Step 3 — family violence risks
Further, section 5AAAA of the Act provides that, in considering the release of the applicant on bail, the court must:
(a) make inquiries of the prosecutor as to whether there is in force an FVIO, FVSN or recognised domestic violence order made or issued against the applicant; and
(b) in circumstances where the applicant is charged with family violence offences, consider whether — if the applicant were released on bail — there would be a risk that he would commit family violence, and if so, whether that risk could be mitigated by the imposition of a bail condition or the making of an FVIO.
I note that the affidavit in response states that the FVIO to protect the complainant lapsed at the committal hearing in the Informant Gataric matter. There is currently no FVIO in place, however, an application for a new FVIO has been filed, and is listed to be heard at the Melbourne Magistrates’ Court on 8 August 2023.
The applicant’s personal circumstances
The applicant is 42 years old. His father is a medical practitioner and has been the director of a department at Wodonga Hospital since 2004.
The applicant has a seven year old child. Prior to his remand in custody, he shared care of his child with the child’s mother (who is not involved in these matters).
The applicant submits that he has recently started a business, ‘KAPPABLE’, aimed at helping people with special needs by connecting them with those who have the skills and experience to provide help (such as medical practitioners, counsellors and psychologists).
Criminal history
The applicant has a single prior disposition for a charge of unlawful assault, which was dismissed in 2018 following compliance with a bond/undertaking.
This is his first time in custody.
The applicant’s contentions
The applicant relies on him being granted bail in respect of the Informant Gataric matter as an exceptional circumstance in its own right, or alternatively, the applicant relies on a combination of circumstances to meet the exceptional circumstances threshold.
Grant of bail in respect of the Informant Gataric matter
The applicant was granted trial bail on 30 May 2023 to appear at the County Court in the Informant Gataric matter, and bail was not opposed by the respondent. It is submitted that the Informant Gataric charges are similar and relate to the charges subject to this bail application, and that this circumstance is exceptional and justifies the grant of bail.
Surrounding circumstances
Strength of the prosecution case
The applicant submits that while the prosecution case appears strong with respect to some of the charges, the evidence is yet to be tested.
He further submits that he has been overcharged in relation to the alleged offending in the Informant Richards‑Jones matter, and that charges are likely to be withdrawn.
With regards to the allegation that he threatened to smash the complainant’s face with a hammer on 22 August 2021, the applicant submits that the prosecution have not produced any evidence confirming the presence of a hammer (for example, photos) and may not be able to prove this charge beyond reasonable doubt.
With regards to the allegation that the applicant threatened to distribute an intimate image of the complainant on 22 August 2021, counsel for the applicant submits that there is no evidence that he took a photo of the complainant while she was naked. The applicant submits that the strength of the prosecution case with regards to this charge is therefore weak and that the prosecution may not be able to prove the charge beyond reasonable doubt.
Criminal history
The applicant emphasises his limited prior criminal history, and that he complied with his bond undertaking in 2018.
Bail compliance history
The applicant was initially bailed in relation to the Informant Richards‑Jones matter on 25 August 2021.
He submits that, although he has been charged with contravening a condition of bail on 16 November 2021 and failing to answer bail on 1 June 2022 and 10 March 2023, he has maintained compliance with bail overall.
The applicant originally contended he did not appear at the hearing on 10 March 2023 because he was unwell and, further, he was required to take care of his seven year old child. Evidence was provided in the form of an email sent by the applicant to the Magistrates’ Court on the morning of the hearing. The email stated:
Marvin Njovu <redacted>
Fri 10/03/2023 9:35 AM
Hi my name is Marvin Njovu i have a hearing in court room 28 9.30am of which I understand needs to be in person.
I’m currently residing in Seaford unwell and also have my 7 year old child.
Attending in person is not possible.
I can potentially appear via video link if this is possible.
Sorry for any inconvenience.
Thank you
The email was received by the Magistrates’ Court at 9.35am (after the hearing had commenced at 9.30am). When asked by the Magistrates’ Court to obtain a medical certificate as proof of his ill health, the applicant did not do so. This court also asked the applicant to provide additional evidence of his inability to attend the Magistrates’ Court on 10 March 2023, but he was unable to do so. Further, following the hearing on 13 July 2023, the applicant’s solicitor withdrew the submission that the applicant was required to take care of his child, and instead relied solely on his client’s alleged ill health.
The applicant submits that he understood the significance of complying with court orders, but made an error of judgment by failing to obtain leave from the court before deciding not to attend on that day.
The applicant has not been in contact with the complainant since November 2021. He submits that, following the 16 November 2021 incident, he has remained compliant with court orders prohibiting contact with her.
Family support and stable accommodation
The applicant is supported by his father, Michael Njovu [‘Mr Njovu Snr’], and his current partner, MW.
The applicant’s father is willing to support the applicant by enrolling him in appropriate support services. He also offers a surety of $100,000. During the application, Mr Njovu Snr gave evidence that, if the applicant is granted bail, he would assist him in complying with any bail conditions. He stated that he was of the opinion that the applicant may have been suffering from mental health issues, arising out of the death of his mother in 2012. Mr Njovu Snr expressed a desire to help the applicant access mental health support following his release from custody. Finally, Mr Njovu Snr told the court that he would report his son to police if he were to breach any bail conditions.
MW also gave evidence that she will ensure the applicant attends any court‑mandated appointments. During the hearing, MW stated that she would help the applicant “with fitness and doing yoga or anything that could support him”. When asked whether she would report the applicant to police if he were to breach his bail conditions, MW confirmed she would contact police, but added that she was convinced the applicant would not breach any grant of bail because he was a very supportive partner to her.
The applicant proposes to reside with MW at an address in Kallista. During the hearing, MW gave evidence that the land is owned by her parents, who live in the main residence at the address. It is proposed that MW and the applicant will live in a small cottage at the back of the property.
Employment
The applicant submits that, should he remain in custody, his business is likely to fail. He called his business partner, JG, to give evidence regarding this matter.
JG gave evidence that he has known the applicant for around six years. As to the nature of the business, JG stated that ‘KAPPABLE’ works within the NDIS scheme, connecting healthcare workers with recipients of NDIS grants. The business does not have any employees. JG stated that ‘KAPPABLE’ was due to ‘go live’ at the time of the applicant’s arrest. Further, JG gave evidence that, while the applicant remains in custody, the business cannot continue. He opined that, if the applicant is not granted bail, the business will die.
In the event that the applicant is granted bail, JG stated the applicant would be able to immediately resume his role in the business.
Availability of treatment or bail support services
The applicant submitted that he is prepared to undergo counselling and participate in therapeutic programs, such as a Men’s Behaviour Change Program [‘MBCP’] or any other program as may be ordered by the court.
In a supplementary affidavit filed with the court on 19 July 2023, the applicant’s solicitor stated that Mr Njovu Snr had registered the applicant in a MBCP, due to commence on 13 September and conclude on 21 February 2024. A letter from ‘Sanctum’, the organisation providing the program, was annexed to the affidavit. The letter stated that Sanctum’s MBCP is “an evidence‑based educational program” run by “highly qualified and experience professionals”. However, the applicant’s solicitor clarified that the course will be conducted via electronic means, and not in person.
Delay
The applicant submits that there is likely to be a lengthy delay before his matters are finalised. He states that:
(a) the first directions hearing for the Informant Gataric matter is listed in the County Court on 27 June 2023; and
(b) a committal mention in the Informant Richards‑Jones matter is scheduled for 8 August 2023. It is submitted that there is no likelihood of a trial commencing within a reasonable time, as the matter will likely be committed to the County Court due to its relevance to the Informant Gataric matter.
The applicant submits that the expected delay of up to a year until trial justifies a grant of bail.
Surety
The applicant’s father, Mr Njovu Snr, offers a $100,000 surety by way of available equity in his home.
Unacceptable risk
With regards to any risk of failing to appear, the applicant reiterates that he was most recently unable to appear in March 2023 due to illness. He submits that the surety of $100,000 offered by his father will mitigate any risk of him failing to appear in the future.
With regards to contacting the complainant, the applicant submits that he has not contacted her since November 2021, and from that time, he has remained compliant with all court orders prohibiting contact with her. The applicant also highlights that on 30 May 2023, bail was not opposed by the respondent (and bail was subsequently granted by the Melbourne Magistrates’ Court) for the Informant Gataric matter, which relates to allegations that he contacted the complainant in breach of an FVIO and pressured her to withdraw her statement.
The applicant submits that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of the following conditions of bail:
(a) the applicant reside at MW’s address in Kallista;
(b) the applicant’s father provide a surety of $100,000;
(c) the applicant report to Monbulk Police Station three times a week, between 9.00am and 9.00pm;
(d) the applicant participate in the Men’s Behavioural Change Program run by Sanctum, to commence on 13 September 2023;
(e) the applicant appear at the Melbourne Magistrates’ Court on 8 August 2023;
(f) the applicant not attend any points of international departure; and
(g) the applicant not contact any witnesses for the prosecution, other than the informant.
The respondent’s contentions
In her affidavit in response, the respondent conceded that it is open to the court to find that exceptional circumstance exist to justify the grant of bail. However, in her outline of written submissions, the respondent submits that the applicant cannot establish the existence of exceptional circumstances to justify the grant of bail.
Bail is also opposed on the basis that there is an unacceptable risk of a kind set out in section 4E(1)(a), namely endangering the safety or welfare of any person; committing an offence while on bail; interfering with a witness or otherwise obstructing the course of justice in any matter; and failing to surrender into custody in accordance with the conditions of bail. The respondent submits that the imposition of conditions would not mitigate the risks to an acceptable level.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Grant of bail in respect of the Informant Gataric matter
It is conceded that the prosecution did not oppose the granting of bail at the time of the committal hearing in the Informant Gataric matter, however this was in the context of the applicant being held on remand for his other matters. It is also noted that the applicant was charged by way of summons. It is submitted that little weight ought be afforded to the non‑opposition for bail with respect of the Gataric matter.
Surrounding circumstances
Nature and seriousness of the alleged offending
The respondent submits that the applicant is charged with serious offending in the context of family violence, including the use of a weapon.
During the hearing, the nominal informant gave evidence that the complainant was “terrified” at the prospect of the applicant being granted bail.
Strength of the prosecution case
The respondent submits that the case against the applicant in respect of each matter is strong. It is submitted that the applicant faces a significant likelihood of being found guilty of each of the head charges.
In response to the applicant’s submission that the prosecution case is weakened by the absence of photos of the hammer alleged to have been used against the complainant, the respondent contends that the lack of photographic evidence is not fatal. Rather, it is submitted that the existence of photographs of the complainant’s injuries creates a robust prosecution case.
Bail compliance history
The respondent notes that the applicant failed to appear in court in June 2022, November 2022 and March 2023. In relation to the March 2023 incident, the respondent highlights that the applicant has failed to provide any evidence of the illness that allegedly prevented him from attending court.
Family support and stable accommodation
The respondent does not take issue with the proposed bail address.
However, the respondent calls into question the support to be provided by the applicant’s father and current partner. During cross‑examination, the respondent put to Mr Njovu Snr that he was a busy clinician who was rarely in Melbourne. Mr Njovu Snr confirmed that he typically works well above 40 hours a week at Wodonga Hospital. This requires him to live in Wodonga during the working week. On the weekends, he resides in a house in the suburb of Caulfield, some distance from the applicant’s proposed bail address in Kallista. Further, Mr Njovu Snr confirmed he did not know where the suburb of Kallista was and that, prior to this application, he had never met the applicant’s current partner, MW. Based on these factors, the respondent submitted that Mr Njovu Snr would not be in a position to monitor the applicant’s compliance with his bail conditions.
Regarding the support to be provided by MW, the respondent highlighted that MW had only been in a relationship with the applicant since February 2023 (a total of five months). During cross‑examination, MW confirmed she was not aware of the applicant’s mental health issues, but that she had read the charges against him.
Employment
In response to the applicant’s submission that he would be able to resume his business with his business partner, the respondent notes that the ASIC extract provided by the applicant only indicates a single business holder (being the applicant). The respondent also contends insufficient details about the business have been provided.
During cross‑examination by the respondent, JG confirmed that in practice, ‘KAPPABLE’ is operated solely by the applicant. To date, JG has been a silent financial partner, providing the funding to the applicant. JG also confirmed that he has no experience in the healthcare sector, having only worked in the construction industry.
JG gave further evidence that, as part of his role, the applicant is required to travel throughout Victoria by himself, and regularly works without supervision. When asked whether the applicant could be accompanied by another person, JG appeared unsure but stated it was something he could look at implementing. Importantly, JG stated that he had only recently become aware of the fact that the applicant was facing charges and, at the time of giving evidence, was unaware of their nature.
In light of the evidence from JG, the respondent submits the court should not give the ‘KAPPABLE’ business any significant weight. The respondent contends there is no evidence of the applicant’s specific duties other than designing the app, and little guarantee of daily supervision. Further, it highlighted that the presence of any future criminal convictions in respect of the applicant could result in KAPPABLE’s certification being withdrawn by the NDIS.
Availability of treatment or bail support services
The respondent initially noted that the applicant had not provided any details of referrals to support services. However, this issue appears to have been addressed by the subsequent provision of the Sanctum enrolment letter.
Delay and likely sentence
The respondent concedes there will be some delay in the listing of a trial, however it is submitted that some priority will be given to the listing, as the matter relates to family violence. It is further submitted that the delay relates only to the Informant Richards‑Jones matter, as it will be uplifted to the County Court.
Finally, it is contended that the applicant faces the prospect of a custodial sentence if he is convicted.
Family violence intervention order
The respondent notes the applicant has been charged with contravening an FVIO, including on a persistent basis. It is acknowledged that the FVIO in respect of the complainant has lapsed, but an application for a new order has been made.
Unacceptable risk
The respondent alleges that the applicant, if released, poses an unacceptable risk in four ways.
Endangering the safety or welfare of any person
The respondent notes that the applicant is charged with serious allegations of assault against the complainant, including the use of a weapon.
Committing an offence while on bail
The respondent notes the applicant is alleged to have committed offences while on bail.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent highlights that the applicant is currently charged in relation to allegations that he pressured the complainant to withdraw her original statement and make a statement of no complaint in 2021. As such, it is submitted that the applicant is aware of the significance of the complainant’s evidence.
Failing to surrender into custody in accordance with the conditions of bail
The respondent highlights that the applicant has failed to appear in accordance with bail conditions on a number of occasions. Despite the applicant having a limited prior criminal history, it is submitted that the strong prosecution case and likely further term of imprisonment increase the risk that the applicant will fail to appear.
Analysis and conclusions
As noted above, the applicant bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail. If he succeeds in doing so, the onus then shifts to the respondent to satisfy the court that an unacceptable risk exists that cannot be mitigated by the imposition of any bail conditions.
In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the surrounding circumstances. Further, it must also be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.
With these factors in mind, I turn to considering the merits of the application.
Has the applicant shown that exceptional circumstances exist?
As he is entitled to do, the applicant relies on a combination of circumstances to support the argument that he has satisfied the exceptional circumstances test. It is well‑understood that although the circumstances may not satisfy the test when considered separately, they may do so in combination.
The matters relied on by the applicant include the following.
Firstly, dealing with the question of delay and eventual sentencing outcome, the applicant argues that if he remains in custody, the delay in finally resolving his charges will be inordinately lengthy. He also submits that any sentence of imprisonment may well be less than the time he will serve on remand.
As to the strength of the prosecution case, the applicant relies on an argument that, while some aspects of the case appear to be strong, there are others that have not been tested. He argues that he has been overcharged and that some charges are likely to be withdrawn. He also points to the fact that there is a lack of independent supporting evidence in respect of some charges and argues that the prosecution may not be able to succeed in respect of these.
Having considered the applicant’s submissions, I am unable to say that any of the charges against him are weak or foredoomed to fail. While it is not the role of this court to try these matters, the case against him appears to be of reasonable strength.
As for the issue of delay, it is unclear what charges the applicant will be convicted of and how long the matters will take to resolve. However, in my opinion, it appears likely that the delay in finalisation will be significant if all matters remain contested.
I note particularly that there is a County Court trial for which it appears the applicant remains on bail, which has not yet been listed. This matter was the subject of a mention on 30 May 2023, when the applicant’s bail was extended despite him having been charged with a failure to appear on bail on 1 March 2023. As I understand it, the prosecution did not oppose the extension of bail on that occasion. It is not clear to me why this was the case. Furthermore, it is apparent that the question of bail was not the subject of anything but the most cursory discussion during the mention.
In any event, the applicant faces a number of charges in five different matters, none of which appear to be particularly close to resolution. I note that the applicant was arrested on 12 April 2023 and has been in custody for over three months.
I have also taken into account that the applicant was arrested following his failure to appear in the Magistrates’ Court on 10 March 2023. The evidence suggests that the circumstances of his failure to appear are not straightforward. It is accepted that on the day he was to appear, the applicant sent an email to the Magistrates’ Court asserting that he was unwell and would not be able to attend. The email appears to have reached the Court’s registry. But it is alleged that, having been asked to provide a medical certificate, the applicant failed to do so. Later the same day, the warrant was issued.
It is of note that these events appear to have led to his remand in custody, albeit there were at least two other occasions on which he also failed to appear. The applicant did provide some explanation for his absence that day. Further, during the course of hearings in this matter, I was informed that there is a prospect the charge arising from these events may be withdrawn. However, I cannot act on the applicant’s hope that that may occur.
All things considered, it appears to me that with his history of alleged non‑appearances, the applicant has been dilatory with respect to his obligations to the court. He has lacked diligence in his responsibility to attend hearings on previous occasions. Further, he has shown disdain and disrespect for the court, resulting in wasted time and resources, and ultimately leading to his remand. In this respect, he has been the sole architect of his present custodial predicament.
However, disrespect and obstruction aside, I do not consider the applicant to amount to a realistic risk of flight. He has ties to this jurisdiction. It seems to me that the applicant’s attitude is more consistent with someone who is attempting to control the court’s processes for his own ends and has little regard for his legal obligations.
Turning to other matters, the applicant is 42 years old, and his father is a senior medical practitioner with public responsibilities and a reputation to consider. The applicant has a criminal history, but it appears limited. Furthermore, this is the first time the applicant has been in a custodial setting.
He argues that he is supported by his father and current partner, with the former offering a surety of up to $100,000 in support of this application. Furthermore, Mr Njovu Snr gave evidence that he would provide support to the applicant in complying with bail conditions and that he would report his son were he to breach those conditions. I take that undertaking seriously.
The applicant’s partner, MW, also gave evidence and confirmed that she was prepared to make sure the applicant attends court‑mandated appointments and obligations. I also take that commitment seriously. Furthermore, MW will reside with the applicant at an address in Kallista, it being proposed that the applicant and MW will live in a cottage at the back of MW’s parents’ property in the suburbs.
I also take into account that there is some evidence the applicant has a business project called ‘KAPPABLE’. However, I have not placed significant weight on this, as I am not satisfied the business is beyond its formative stage. I found the evidence called about this project to be less than compelling.
As to the availability of support services, the applicant notes that he is prepared to undergo counselling and participate in therapeutic programs. In this regard, the organisation Sanctum will provide a remote program run by professional persons. I have noted and taken into account that the applicant’s father believes his son has been suffering from poor mental health since the death of a family member.
The applicant also submits that he has not been in contact with the complainant since late 2021 and, following the incident of 16 November 2021, he has remained compliant with court orders prohibiting contact with her. There appears to be no evidence contradicting this position.
Noting that the respondent opposes a grant of bail and argues that the exceptional circumstances test has not been satisfied, I am nevertheless of the opinion that in all the circumstances, the applicant has satisfied this test.
In coming to this conclusion, I have given consideration to the respondent’s submission that the applicant faces allegations of serious offending in the context of family violence and allegations of persistently contravening an FVIO. I have therefore considered the provisions of the Act regarding family violence. On this point, I note that family violence is completely unacceptable to this court and any other court in this State. Moreover, I have taken into account that the complainant is concerned about the prospect of the applicant being granted bail.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
In seeking to establish that the applicant is an unacceptable risk, the respondent relies on a number of matters set out in the Act. There is clearly a degree of risk that exists in respect of the applicant. However, the question to ask is not whether the risk can be eliminated but whether it can be reduced to an acceptable level by the imposition of conditions.
As above, in considering this question, the court is required to take into account the surrounding circumstances, including those matters set out in the Act. I have therefore considered the applicant’s alleged controlling behaviour and violent conduct, including the use of a weapon. I am of the opinion that his alleged choking of the complainant is a particular risk factor. I have also had particular regard to the series of photographs provided that demonstrate the complainant has sustained some injuries to her face and neck. This is a matter of concern, as choking and violence to the throat and face of a female is often a precursor to homicide.
I note, however, that there is no suggestion the applicant has contacted the complainant since 2021. It seems to me that this is a significant factor suggesting that the risk towards her may have reduced over the passage of time. Further, the proposed 20‑week MBCP to be run by Sanctum is expected to address the applicant’s alleged propensity to engage in angry and violent behaviour in a domestic setting.
Moreover, the evidence before this court is that the applicant has now entered a new (and stable) relationship with MW. MW has provided evidence about the nature of this relationship, and proposes to reside with the applicant should he be released on a grant of bail.
In my opinion, a geographical exclusion zone can be put in place to restrict the applicant’s activities so that he does not come into contact with the complainant. It appears to me there is no reason why the applicant needs to be anywhere near the vicinity of the complainant. In my opinion, this can reduce the risk of interference to an acceptable level. The applicant must understand that, should he breach any non‑contact conditions, he will likely find himself returned to custody immediately. Further, the respondent has not alleged that the applicant is a risk to the wider community.
As to the risk the applicant will commit an offence while on bail, it is clear that this is not a remote risk. He is alleged to have committed an indictable offence while on bail, namely failing to appear on bail for an indictable offence, which has required him to satisfy the exceptional circumstances test. Nevertheless, it must be noted that the applicant’s most recent offending concerns offences against the Act, rather than offences of a substantive criminal nature. I also consider that the applicant understands that the commission of further offences, be they offences of a criminal nature or offences against the Act, will result in his revocation of bail and his return to custody immediately.
As to failing to surrender into custody in accordance with the conditions of bail, the applicant faces a number of charges alleging he has failed to appear on bail. He is also alleged to have failed to comply with bail conditions. In this regard, he puts forward his father, a senior medical practitioner in a responsible public position, as being able to provide a surety. Furthermore, Mr Njovu Snr has given an undertaking to the court. The applicant must understand any breach by him of his bail conditions will place his father’s financial position and reputation at considerable risk.
Importantly, it has not been asserted that the applicant is a risk of flight from the jurisdiction. Rather, it appears the risk of failing to surrender into custody is more focused towards the applicant’s disdain for the court’s authority. In my opinion, that situation can be ameliorated by requiring the applicant to be monitored by this court.
Accordingly, I have considered each of the matters put forward by the respondent in support of the argument that the applicant is an unacceptable risk. Having weighed them individually and in combination, and taking into account the surrounding circumstances, in my opinion the respondent has not satisfied me that the applicant poses an unacceptable risk that cannot be moderated by stringent bail conditions.
Conclusion
Accordingly, bail will be granted in the following terms, namely that the applicant be admitted to bail with a surety to be provided by his father to the value of $100,000 and the following special conditions:
(a) he attend the next hearing of the matter at the Melbourne Magistrates’ Court on 8 August 2023 and surrender himself to the court;
(b) he not depart the court without the court’s permission and, if permission is given, return at the time specified by the court and again surrender himself into custody;
(c) he reside MW’s address in Kallista, Victoria and not change that address without leave of the court;
(d) he remain at MW’s address in Kallista, Victoria between the hours of 9.00pm and 5.00am each day for the whole duration of the bail provided by this court;
(e) he present himself at the front door of MW’s address in Kallista, Victoria during those curfew hours if and when called upon by a member of Victoria Police to do so;
(f) he notify the informant at least 14 days in advance of any proposal to change his place of residence;
(g) he report every Monday, Wednesday and Friday (or the nearest day thereafter if it falls on a public holiday) to the officer in charge of the police station at Monbulk or his or her nominee between the hours of 6.00am and 9.00pm;
(h) he not go to the suburb at which the complainant lives or consciously be within one kilometre of the complainant at any time during the course of the duration of bail;
(i) he not contact the complainant by any means whatsoever, directly or indirectly, or cause any person to do that on his behalf;
(j) he not contact any other witnesses for the prosecution, except the informant;
(k) he not leave the State of Victoria;
(l) he not attend any international point of departure;
(m) he reappear before this court for judicial monitoring at a time to be fixed, and any further dates appointed during the course of this order; and
(n) he complete the Men’s Behaviour Change Program to be provided by Sanctum.
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