Re Singh
[2025] VSC 266
•14 May 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0076
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an Application for Bail by SHIV KARAN SINGH |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 May 2025 |
DATE OF JUDGMENT: | 14 May 2025 |
CASE MAY BE CITED AS: | Re Singh |
MEDIUM NEUTRAL CITATION: | [2025] VSC 266 |
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CRIMINAL LAW – Bail – Charges including stalking and making a threat to kill – Show compelling reason test – Victim of alleged offending a work colleague of sister of applicant, towards whom he developed an infatuation – Letter delivered to complainant on behalf of applicant in which he claimed to be a member of Australian Federal Police – Numerous Instagram messages then sent by applicant to complainant from his sister’s account – Further threatening messages sent to another work colleague of complainant - Applicant relied upon a combination of matters, including young age and lack of criminal history in proof of compelling reason - Compelling reason established by applicant – Respondent failed to demonstrate unacceptable risk – Risk capable of being mitigated by strict conditions – Bail granted – Bail Act 1977 ss 1B, 3AAA(1), 4C-4E, 4AA, 5AAA and Schedule 2.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Josephine McColl, Solicitor Advocate | Victoria Legal Aid |
| For the Respondent | Mr J.J. Jassar, Solicitor Advocate | Victoria Police Legal Practice Group |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of eight charges laid by Constable Taylor, for offences allegedly committed between 27 March – 3 April this year. The alleged offences are making a threat to kill,[1] stalking,[2] using a carriage service to menace (x2),[3] impersonating police (x2),[4] falsifying documents,[5] and possessing a drug of dependence. [6]
[1]Crimes Act 1958 (Vic) s 20 (‘Crimes Act’).
[2]Ibid s 21A.
[3]Criminal Code Act 1995 (Cth) Sch 1.
[4]Victoria Police Act 2013 (Vic) s 256(1).
[5]Crimes Act (n 1) s 83A.
[6]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73.
The parties agree that the correct test for this application pursuant to the Bail Act 1977 (Vic) (‘the Act’) is the ‘show compelling reason test’,[7] as the applicant is charged with an indictable offence (namely, making a threat to kill), in the course of which he is alleged to have threatened to use a firearm. [8]
[7]Bail Act 1977 (Vic) s 4C (‘The Act’).
[8]Ibid s 4C; s 4AA(3); Schedule 2 Item 23.
Procedural history
The applicant has been refused bail by magistrates on two previous occasions in April this year.
The matter is next listed for contest mention on 16 June 2025. If this application for bail is refused, the applicant will have spent 76 days on remand by that date.
The alleged offending
Other than the possession charge, these charges relate to a series of actions which the applicant took in seeking to pursue the apparent infatuation he had with a female work colleague of his sister, whom I will hereafter refer to as ‘the complainant’. The applicant and the complainant had no relationship prior to these events, although it seems they had met each other in passing.
On 27 March 2025, the applicant attended the workplace of his sister and the complainant, and apparently directed his young niece to hand the complainant a letter. The letter purported to be a ‘classified message’ from ‘AFP Agent Singh’ which directed the complainant to call him.
Later that night, the complainant contacted the applicant’s sister and asked for an explanation of the letter which she had been handed earlier that day. After some back and forth messages with the person she believed to be the applicant’s sister, the complainant called the phone number on the letter she had been given, and her call was not answered. The complainant’s boyfriend then called the same number, and when the call was answered, the complainant was able to recognise the voice of the applicant.
The complainant came to realise that the applicant was messaging her from his sister’s social media account. During the course of this conversation, the applicant sent the complainant a string of bizarre messages, including a photo which contained a painting that the complainant had completed two years earlier, and which the applicant had apparently obtained through his sister; a photograph of the complainant which was similarly from a few years prior; and various chauvinistic messages, including ‘king chooses her queen first to raise his kids. Then he jump in the battlefields’. The applicant also appeared to maintain the pretence that he was a police officer in some messages.
Thereafter, the applicant sent a further 77 messages until approximately 3:00am the following morning, despite the fact that the complainant at one point threatened to contact the police if he continued to message her.
In the following days, the applicant sent a message to the complainant’s boyfriend asking him to remove photos of the complainant from his profile ‘just out of courtesy’.
The complainant showed the letter she received from the applicant to a work colleague, whom I will call SP. On 31 March 2025, SP telephoned the applicant’s number which he obtained from the letter, and in due course, the applicant called him back. SP did not answer the call, but there then followed communication by way of messages between the two, with the applicant apparently being initially under the mistaken impression that this other person was the complainant’s boyfriend. In some of the messages, the applicant threatened to ‘fuck you up their and throw you guys in that damn’ and ‘hunt you down’. The applicant told this other man that he was planning to ‘hijack an really fkn adorable girl’ and detailed various contemplated ‘approaches’, including:
Second I wait for tomorrow morning when she starts her wrk Follow her and hold her arm pull behind her back and aim this barel at her side of her obliques back And just tell her don’t make impulsive moves either she can get shot, when will order her to moveee. Take her in that parental room and then put a bullet straight through her head
The other man forwarded the screenshots of his messages with the applicant to the complainant, who then reported the matter to police.
Personal circumstances
The applicant is 25 years of age. He has no criminal history and this is his first time in custody. He was born in India and arrived in Australia in February 2020 on a student visa. He is currently on a bridging visa. Prior to being remanded, he lived with his sister Navreet Kaur and her young daughter in Brookfield, a suburb of Melton. He previously lived for two and a half years with his uncle Manjeet Singh Bal and his family in Darley, near Bacchus Marsh. The applicant is currently enrolled in a Graduate Diploma of Management at Marriott Academy in Melbourne which was due to start on 31 March 2025. If granted bail, it is the applicant’s intention to proceed with that course, which he can apparently do online.
The law
In setting out the guiding principles of the Act, s 1B relevantly provides:
(1AA) The Parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.
(1) The Parliament also recognises the importance of—
…
(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.
It is the intention of the legislature that the Act be applied and interpreted having regard to the matters set out above.[9]
[9]The Act s 1B(2).
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 2 offence, as is the case here. Threatening to use a firearm while committing an indictable offence (here, making a threat to kill) falls under the remit of Item 23 of Schedule 2. Section 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[10] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[11] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[10]Ibid s 4C(2).
[11]Ibid s 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D of the Act.[12] The respondent bears the onus of satisfying the Court that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk. In my assessment of whether the risks mentioned in s 4E(1)(a) are likely, I am again required to consider the surrounding circumstances,[13] including, but not limited to, those prescribed in s 3AAA(1), and to consider whether there are any conditions of bail, including electronic monitoring conditions,[14] that may be imposed to mitigate the risk, so that the risk is not an unacceptable one. [15]
[12]Ibid s 4C(4).
[13]Ibid s 4E(3)(a).
[14]Ibid s 4E(4).
[15]Ibid s 4E(3)(b).
If the unacceptable risk onus is met, then bail must be refused.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said by the Court of Appeal in Rodgers v The Queen:[16]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[17]
[16][2019] VSCA 214 (Beach, Kaye and Ashley JJA) (‘Rodgers’).
[17]Ibid [43] (citations omitted).
Evidence led in the application
The Informant, Constable Danielle Taylor, was called by Mr Jassar. In her sworn evidence she outlined a number of aspects of the alleged offending, and the concerns she held as to the risk posed by the applicant. She gave evidence about two occasions on which police had attended the home of Navreet Kaur, the applicant’s sister, in response to her complaints about the applicant’s behaviour. She explained the delay which has occurred in the completion of the police brief. In cross-examination, she provided some context to the involvement of SP in the events. In response to some questions from me, Constable Taylor indicated that the execution of a warrant under the Firearms Act 1996 at the premises of the applicant revealed no firearms, and she confirmed that there is no reason for police to believe the applicant has a firearm. She further indicated that even if bail was granted with a condition that the applicant live well away from Melton, she would remain concerned with the risk he posed to the safety of the complainant, due to the extent of his apparent infatuation with her.
Additionally, in her Informant’s Report, the Constable outlined that the complainant has expressed her strong opposition to the applicant being granted bail and fear that she will be further targeted by him, if he returns to the community.
Ms Kaur, the sister of the applicant, was called by the applicant. In her sworn evidence, she confirmed her strong level of support for the applicant, and her willingness to have him reside with her notwithstanding their occasional conflict in the past. She indicated that in the past, the applicant has been of great assistance to her in looking after her young daughter, and that she was keen to have him back in her daughter’s life. She also confirmed that she had no fears for her safety if the applicant were bailed to live with her.
Mr Bal, the uncle of the applicant, gave sworn evidence before me. He had earlier provided an affidavit which was included in the applicant’s material. The affidavit noted the strong family bond with the applicant, and the fact that the applicant had resided with Mr Bal for two and a half years upon his arrival in Australia. He indicated his opinion that the charges faced by the applicant reflected his immaturity. He stated his willingness to mentor and support the applicant by offering him employment.
In his sworn evidence, Mr Bal stated that the transport business of which he is a director has substantial work in Western Australia transporting iron ore to the port. The company maintains a four bedroom house in Meru, near Geraldton, in which Mr Bal and some of his employees reside. Mr Bal stated that he would be happy to have the applicant live with him in those premises. This would provide the opportunity for the applicant to pursue his studies online. He also offered a bail guarantee of up to $10,000. In response to questions from me, Mr Bal indicated that if the applicant was bailed to live with him, he would report any behavioural issues or any breaches of bail of which he became aware to Victoria Police. He also undertook to ensure that the applicant would return to Victoria when required for legal proceedings, and said that he would provide funds for the applicant’s travel.
Applicant’s submissions
Ms McColl, in her written and oral submissions, relied upon a combination of matters in proof of the existence of a compelling reason, and in resisting the respondent’s contention of unacceptable risk. These were:
a) That the applicant is very unlikely to receive a custodial sentence. Ms McColl pointed to the features of the alleged offending, which had about them the aura of hyperbole, creative writing and fantasy, as well as the applicant’s age and lack of criminal history, in this regard. She submitted that a community correction order or adjourned undertaking would be well within the range.
b) The relative lack of seriousness of the alleged offences.
c) The lack of strength of the prosecution case. Ms McColl pointed to a number of deficiencies in the case on all of the charges.
d) The applicant’s lack of any criminal history or adverse bail history.
e) The existence of a final Personal Safety Intervention Order (‘PSIO’), where the protected person is the alleged complainant in this matter. Ms McColl submitted that in light of the applicant’s lack of criminal history and other aspects of his background, there is no reason to think that he would not comply with a court order such as the PSIO.
f) The applicant’s personal circumstances, including his young age – 25 – and strong support from his sister and uncle. Ms McColl relied on the applicant’s age as a factor affecting his vulnerability in custody.
g) The applicant’s mental health assessment when he first entered custody. It was submitted that the applicant’s presentation to the Forensicare psychiatric nurse was indicative of his naivety and vulnerability.
h) The salutary effect upon the applicant of having spent 38 days on remand.
i) The availability of a bail guarantee of $10,000.
j) The availability of a residence with his uncle in Western Australia, well away from the complainant.
In respect of risk, Ms McColl submitted that none of the risks pointed to by the prosecution should be considered to be unacceptable in the circumstances, in light of conditions which could be imposed to limit them.
Respondent’s submissions
Mr Jassar, in his written and oral submissions, emphasised the seriousness of the alleged offending, contending that the threat to kill was at the upper end of the range of seriousness for that crime. He described the offending as involving a blueprint that ‘is shockingly disturbing and of grave concern’.[18]As for the stalking, the complainant was a vulnerable female with whom the applicant had become obsessed. Mr Jassar likened the case to that of Luay Sako, a man sentenced to a long term of imprisonment for the murder of a co-worker with whom he had become obsessed, Celeste Manno.
[18]Submissions on Behalf of the Respondent, 8 May 2025 (‘Respondent’s submissions’).
Mr Jassar submitted that the nature and seriousness of the offending is such that a term of imprisonment is highly likely upon conviction, and that such term may exceed the time spent on remand if bail is refused. He referred to some statements of the Court of Appeal in Smith v The Queen,[19] in which male violence against women was described as ‘a scourge of our society’, and the Court stated that those who engage in, or contemplate engaging in such violence should be in no doubt that offending of this kind will attract very heavy sentences. [20]
[19][2020] VSCA 159 (Maxwell P, Kyrou and Weinberg JJA).
[20]Ibid [7].
One of the matters relied upon in opposition to bail was the fear the complainant has of the applicant. The alleged offending has impacted on her peace of mind and employment and other activities. She has serious concerns about what might happen should the applicant be released on bail.
Mr Jassar submitted that the matters relied upon by the applicant in combination are insufficient to establish the existence of a compelling reason justifying the grant of bail.
Turning to the question of risk, in oral submissions Mr Jassar added, to the matters relied upon in the written submissions, the contention that there is a risk that the applicant will not answer his bail. It was submitted that the applicant has only ‘tenuous ties to the jurisdiction’,[21] and Mr Jassar also disputed the suitability of Ms Kaur’s address as a place for the applicant to live.
[21]Respondent’s submissions (n 18) [27(b)].
Mr Jassar submitted that even stringent conditions cannot ameliorate risk to an acceptable level.
In respect of the alternative bail addresses proposed, Mr Jassar, on behalf of the respondent, expressed a preference for the Meru address.
Analysis
Considering the behaviour of the applicant, and the disturbing content of some of the messages that he conveyed to the complainant, it is easy to understand her fear, and the concerns held by the police as to his future conduct.
Having said that, I do not accept the respondent’s contention that the threat to kill is at the upper end of the range of seriousness. Nor do I think, with all due respect to Mr Jassar, that it was appropriate to liken this case to the terrible case of Sako. That was a very different case from this one. Sako had stalked Ms Manno for many months, and broke into her home and murdered her in the face of an intervention order she had taken out for her protection. He knew that she was terrified of him, but persisted in stalking and contacting her in spite of that fact. The seemingly irrational infatuation of the applicant in this case was of short standing. He made no attempt to physically approach the complainant, and made no threatening statements directly to her. Insofar as some of the messages sent to SP indicated a threat, or a musing, from the applicant about harming the complainant and others with a gun, there is no evidence that the applicant has ever had a firearm. From the time the PSIO was taken out, there is also no indication that the applicant has sought to initiate any contact with her or any other witness.
Thoughts may differ as to the strength of the prosecution case. True it is that there is an overwhelming case that the applicant is the person who sent the many messages upon which the case is, in part, based, but that is not an end to the matter. I think there may be something in Ms McColl’s description of the conduct of the applicant as being more consistent with role play and fantasy and make believe than conduct carried out with the state of mind necessary for stalking or making a threat to kill. I do not consider the case to be hopelessly weak, but I think that it is not without its problems.
I turn to what, in this application, is one of the central considerations. Mr Jassar submitted that the nature and seriousness of the offending in this case is such that a term of imprisonment is highly likely, and that such term would probably exceed the period of time the applicant would spend on remand should bail not be granted. Ms McColl argued strongly against those contentions.
I do not accept Mr Jassar’s submissions in this regard. Disturbing and concerning though the conduct of the applicant was, it did not, in the end, go very far. Nor do I think that it was ever the applicant’s intention to cause fear to the complainant, or to harm her. He is a 25 year old man with no criminal history. He has a supportive family. In my view, although it is difficult to be certain about such matters, I do not think it is very likely that, upon conviction, he would receive a term of imprisonment, or at least, a term of imprisonment which would exceed the time he would spend on remand.
This conclusion is an important matter which goes into the mix when I come to consider whether the applicant has proved a compelling reason which justifies the grant of bail. As was pointed out by Beach JA in Re Johnstone (No 2):[22]
The fact that an applicant for bail might have already spent more time in custody than they are likely to be sentenced to on conviction is a very relevant circumstance in determining whether bail should be granted. Generally, and all other things being equal, the fact that an applicant for bail has already spent more time in custody than would be required by any sentence that might ultimately be imposed for the relevant offending, is a compelling reason justifying a grant of bail. For such a circumstance not to constitute a compelling reason in a particular case, one would expect there to be other significant countervailing factors or circumstances affecting the synthesis required to be performed in order to determine whether a compelling reason within the meaning of s 4C of the Act exists.[23]
[22][2018] VSCA 803 (‘Johnstone’).
[23]Johnstone (n 22) [18] (citations omitted).
The applicant, a man of previous good character, has now been in custody for 42 days. Ms McColl submitted that he has learnt a salutary lesson. That remains to be seen. But he would now have a very good understanding of what would await him should he breach any conditions of bail granted to him. Also, he is now subject, for the first time, to a PSIO designed to protect the complainant. There is no reason to believe that he would not fully understand and respect that court order.
Having considered all of the surrounding circumstances, I am satisfied that the applicant has discharged the onus resting on him of proving the existence of a compelling reason which justifies the grant of bail.
As for the question of risk, a range of stringent conditions has now been put forward to control any risk posed by the applicant. One prospect raised was for the applicant to be bailed to his uncle’s address near Geraldton, a long way away from the complainant and the location of the alleged offending. The applicant has indicated a willingness to live in Western Australia with his uncle. Mr Bal has undertaken, in effect, to supervise the applicant, and to provide a bail guarantee. If the applicant lives in Western Australia, it will substantially alleviate the risk of his being tempted to approach the complainant. A social media prohibition would also serve to control his behaviour, and there can be the capacity for police to monitor the applicant’s compliance with that condition.
As for the risk of the applicant failing to answer his bail, I do not accept the prosecution contention that his ties to the jurisdiction are tenuous. The applicant has lived for some years in Australia. He has family members here to whom he is close. He is proposing to study here, and has done so in the past. I accept that it is his desire to be permitted to remain in this country. Were he to fail to answer his bail, that would, as he must well understand, have a disastrous effect on his prospects of obtaining a further visa to remain here.
In my view, the above conditions and others which I would impose should be sufficient to mitigate the risk posed by the applicant so that it is not unacceptable.
In the circumstances, the respondent has failed to discharge the onus of establishing the existence of an unacceptable risk.
Conclusion
I am prepared to grant bail, on the stringent conditions I will shortly state.
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