Re SQA
[2023] VSC 359
•7 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0003
IN THE MATTER of the Bail Act 1977
– and –
IN THE MATTER of an Application for Bail by SQA
BETWEEN:
| SQA | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
S ECR 2023 0007
IN THE MATTER of the Bail Act 1977
– and –
IN THE MATTER of an Application for Bail by MG
BETWEEN:
| MG | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 February 2023 |
DATE OF JUDGMENT: | 7 March 2023 |
DATE OF REASONS: | 26 June 2023 |
CASE MAY BE CITED AS: | Re SQA; Re MG |
MEDIUM NEUTRAL CITATION: | [2023] VSC 359 |
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CRIMINAL LAW — Applications for bail — Child applicants — Charges of murder and kidnapping — Exceptional circumstances — Circumstantial case — Prospect of significant delay — Special vulnerability — Exceptional circumstances shown — Unacceptable risk — No criminal history — Parity — Co‑accused granted bail — Risk can be rendered acceptable with appropriate bail conditions — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant (SQA) | Sai Ranjit | Kimani Boden |
| For the Respondent | Jordan Johnston | Andrea Royston |
| For the Applicant (MG) | Glenn Casement | Lisa Andrews |
| For the Respondent | Jordan Johnston | Andrea Royston |
HIS HONOUR:
Introduction
By applications dated 5 January 2023 and 10 January 2023 respectively, SQA and MG each seek a grant of bail from this court in respect of the following allegations over which they are both charged:
(a) murder contrary to the common law; and,
(b) kidnapping pursuant to section 63A(1) of the Crimes Act 1958 (Vic).
On 16 October 2022, Abdulahi Abdi [‘the complainant’] was kidnapped by a group of males, taken to various locations, assaulted, and then made to lure Khalid Mahat [‘the deceased’] to an address in Heidelberg West. After attending the address, the deceased was set upon and killed by a group of males during the course of an attack involving multiple weapons.
On 27 October 2022, MG, who is 17 years old, was charged with murder and kidnapping, and remanded in custody.[1]
[1]At the time of the alleged offending, MG was on summons for charges of handling stolen goods, stating a false name, and stating a false address. The matter is next listed for further mention at the Heidelberg Children’s Court on 8 March 2023.
On 1 November 2022, SQA, who is also 17 years old, but was 16 years old at the time, was charged with murder and kidnapping, and remanded in custody.
There are an additional five co‑accused who have been charged with both murder and kidnapping: YA, AF, ZHA, IM and BM.[2] A further two co‑accused have been charged with kidnapping alone: SMA and AY. At the time of the alleged offending, all co‑accused were aged between 16 and 19 years of age.
[2]BM was granted bail in the Supreme Court on 14 December 2022: Re BM (Supreme Court of Victoria, Hollingworth J, 14 December 2022) (not published).
The applications
On 5 January 2023, SQA filed an application for bail in this court.
On 11 January 2023, MG filed an application for bail in this court. He has not previously applied for bail in these proceedings.
The applications are supported in the following ways:
(a) in the case of SQA, by an affidavit of Kimani Boden, solicitor of Starnet Legal P/L, dated 5 January 2023, to which are attached a series of exhibits; and
(b) in the case of MG, by an affidavit of Sally Vardy, solicitor of Balmer & Associates, dated 10 January 2023, to which are also attached a series of exhibits.
In response, the Director of Public Prosecutions [‘the respondent’] relies on two affidavits of Alastair James Hodgeman, solicitor at the Office of Public Prosecutions. Both affidavits are dated 13 February 2023. A number of exhibits are attached to them, in particular an Informant’s Report authored by Detective Senior Constable Thomas Stadler, dated 9 February 2023.
Both SQA’s and MG’s matters were listed in the Melbourne Children’s Court for committal mention on 1 March 2023. The date of that hearing has now passed.
The prosecution cases
Background
In the early hours of 16 October 2022, a white 2022 Toyota Corolla GoGet rental car travelled to the address of one of the co‑accused, IM, in Bellfield [‘the Bellfield address’].
IM’s sister observed five males standing around a white Toyota and two persons approaching their residence. The males, wearing balaclavas and carrying machetes, saw IM’s sister and ran back to the car. One of the males made threatening motions with his machete, before the car drove away.
IM’s sister called 000 and reported the incident. A few moments later, she observed a red Toyota Yaris drive by, perform a U‑turn and immediately leave without stopping. This vehicle is registered to a sibling of another co‑accused.
Responding police members were en route to the Bellfield address when they observed the white Toyota. Shortly after, the officers saw the red Toyota travelling at speed northbound in Heidelberg West. Police followed the red Toyota to an address on Oriel Road in Heidelberg West. They spoke to the occupants, who were identified as MG and two of the co‑accused.
Shortly afterwards, a black Kia Cerato arrived at the same address, with SQA and other co‑accused inside. IM approached the officers, provided his name, and said that his sister had called 000 to report the incident with the males from the white Toyota. He explained that the co‑accused were assisting him after he fled his home in response to the machete carrying, balaclava clad males. During the discussion, one of the responding officers overheard one of the co‑accused whisper: “before these cunts get too far away from us”. After speaking with the officers, the males returned to their respective vehicles and left.
Later that evening, the occupants of the red Toyota and black Kia went to a petrol station in Reservoir together. Telecommunications data placed them in the same vicinity as one another between the hours of 2:00am and 3:10am.
At 3:19am, the red Toyota, with MG and other co‑accused inside, parked outside an address on Morotai Parade in Heidelberg West (a residence under construction, with temporary metal fencing erected to prevent vehicles and people from entering). They jumped the fence to gain entry, at which time MG reportedly passed one of the co‑accused a large knife.
Later that morning, the owner of the Morotai Parade property arrived at the address and discovered keys to the red Toyota on the property. She reported it to police, and police attended to collect the keys.
At 11:08am, the accused individuals returned to the address, ostensibly to locate the missing keys, but were confronted by the property owner who used her mobile phone to record her interaction with them. Around 12:38pm, two of the accused individuals attended Heidelberg Police Station to retrieve the missing red Toyota keys.
Between 12:45pm and 1:40pm, telecommunications data places the phones of the accused at a number of locations together.
The alleged offending
Incident one: Kidnapping the complainant
At 1:38pm, the red Toyota was captured leaving Northland Shopping Centre. Three of the accused were depicted on CCTV exiting the car approximately 60 metres from the complainant’s house and placing hoods over their heads. The group then travelled in convoy (by foot and car respectively) to the complainant’s house.
It is the complainant’s evidence that he was approached by five males, three wearing balaclavas and two others wearing another form of face covering. One of the males yelled at the complainant “gimme the key card” (in reference to the key to the white Toyota involved in the incident earlier that morning) and “gimme your phone or I’ll fucking kill you, I’ll stab you in the neck”.
During the confrontation, a knife was held against the complainant’s back. The complainant handed over the key card to the white Toyota and his phone, before being forced into the back seat of the white Toyota.
At approximately 2:00pm, the Toyotas left the complainant’s house and travelled to an address in Reservoir, where additional co‑accused individuals entered the red Toyota.
Sometime afterwards, the vehicles drove to Bundoora Park, where the complainant was told to get out of the white Toyota, and was assaulted by the occupants of both cars. The complainant observed three kitchen knives being passed around, and a hammer with a red and black handle. The hammer was used to hit him on the back of his right shoulder, before he was forced into the boot of the white Toyota. A witness observed the incident.
Incident two: Murder of the deceased
The cars left Bundoora Park and drove to Yulong Park in Bundoora. The complainant was taken out of the boot of the white Toyota and assaulted by the accused individuals.
At 2:58pm, the complainant was forced to call the deceased and arrange to meet him at a house in Heidelberg West [‘the Heidelberg West address’] (under the guise that the complainant would be bringing the deceased the white Toyota). The deceased was unaware that the complainant was being held against his will, and proceeded to make his way to the Heidelberg West address.
At 3:33pm, the Toyotas travelled in convoy to the Heidelberg West address, with the complainant still in the boot of the white Toyota. The complainant recalls the white Toyota slowing down, an occupant saying “that’s him”, and the car accelerating at speed towards the deceased, who was standing in the front yard of the Heidelberg West address. The complainant was able to partially observe the scene from the boot of the white Toyota.
The woman living at the Heidelberg West address was inside her house at the time. She had been speaking to the deceased inside earlier, but he had exited the house after hearing a horn honking out the front. She looked through her window and saw a car racing towards the house, before hearing a loud bang and feeling the house shake. The white Toyota had accelerated directly at the deceased, narrowly missing him, before crashing over a metal picket fence and into the house.
The red Toyota arrived shortly after the white Toyota and parked out the front of the house. The woman living at the Heidelberg West address observed four occupants exit from each of the cars (eight people in total) carrying long knives. She described all occupants as “kids” and saw one of them stab the deceased in the neck and return to the red Toyota.
It is the prosecution case that the accused were all involved in a fatal attack against the deceased out the front of the Heidelberg West address. During that attack, the deceased was stabbed in excess of 10 times, inclusive of fatal stab wounds to the side of his neck and his chest. He also received blunt force trauma to his head.
Emergency services arrived shortly after, and found the deceased in cardiac arrest. He died at the scene.
Police examined the scene and seized several items, including two knives.
The above account of incidents one and two are allegations and have not yet been proven. That will be for a court at a later time.
Post‑offence conduct and investigation
Following the attack against the deceased, the accused drove in the red Toyota to Coburg North. There, they exited the car and walked to Edgars Creek, where they exchanged clothing and threw items of clothing and a knife into the creek.
At 10:49pm, the red Toyota was driving to Caddy Court in South Morang — approximately 75 metres from YA’s house — where YA dumped clothing in a storm water drain and returned home.
Later, clothing worn by MG was located and retrieved from Edgars Creek and clothing belonging to AF was found in the Caddy Court storm water drain. The red Toyota was also seized from Caddy Court, and a hammer with a black and red handle was located inside.
Crime scene analysis of the white Toyota revealed a large amount of blood on the rear left quarter panel. Fingerprints from the co‑accused were located on or within the car.
On 17 October 2022, an autopsy was conducted and the deceased’s cause of death was determined to be a combination of blunt force trauma to the head and multiple stab wounds.
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.[3] Section 1B provides:
[3]The Act, 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).
Determination in relation to a child
Because the applicants are children, the court must also consider the following matters outlined in section 3B(1) of the Act:
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(f)the likely sentence should the child be found guilty of the offence charged; and
(g)the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
The court may consider any recommendation or information contained in a report by a bail support service.[4]
[4]Ibid s 3B(2).
Step 1 — exceptional circumstances test
Because the applicants are both accused of the Schedule 1 offence of murder,[5] their bail applications must be refused unless they satisfy the court that exceptional circumstances exist that justify the grant of bail.[6] In making this determination, the court must have regard to the relevant surrounding circumstances, a non‑exhaustive list of which is set out in section 3AAA(1).[7]
[5]Ibid sch 1, item 2.
[6]Ibid ss 4AA(1), 4A(1A)–(2).
[7]Ibid s 4(1A)–(3).
Step 2 — unacceptable risk test
If satisfied to the requisite standard at step 1, the court must still refuse bail to the applicants if (again having regard to the surrounding circumstances in section 3AAA(1)) it is satisfied by the respondent that the applicants pose an unacceptable risk of doing any of the matters set out in section 4E(1)(a) of the Act, and that such a risk cannot be moderated by conditions of bail.[8]
[8]Ibid ss 4A(4), 4D and 4E.
The application for bail by SQA
The applicant, SQA, relied on an eight page written submission and supplemented these by oral argument.
SQA’s contentions
Exceptional circumstances
SQA relies on a combination of matters in support of the argument that he has satisfied the exceptional circumstances test.
Strength of the prosecution case
It is submitted that, at this stage, the prosecution case is circumstantial and largely reliant upon mobile phone data. SQA made a “no comment” record of interview and has not been identified as one of the persons directly involved in the murder of the deceased. In particular, it is noted that SQA is not alleged to have been one of the persons in the white Toyota at the time it drove at the deceased, or shortly after when multiple persons emerged from it with weapons and stabbed the deceased. There is, it is submitted, no forensic evidence tying him to the murder weapon. It is pointed out that SQA’s fingerprint is found in the red Toyota, and not on or in the white Toyota. It is submitted that partial CCTV footage is capable of demonstrating that none of the occupants leaving the red Toyota are seen to be in possession of a weapon, unlike the group of occupants emerging from the white Toyota (which rushed towards the deceased). In this regard, SQA points to a concession made by the informant that “the applicant has not been identified as one of the persons directly involved in the murder of Khalid Mahat, nor was he an occupant of the white Toyota Corolla”. Furthermore, it is argued that there is no evidence of SQA being involved in an agreement to kill or seriously injure the deceased, or that he knew that such an agreement existed, if it did.
In the context of the argued weakness of the prosecution case, the court is reminded of SQA’s entitlement to the presumption of innocence.
Delay
SQA intends to plead not guilty to the charges. He was remanded on 3 November 2022, when 16 years old. The committal mention was listed on 1 March 2023, and it is anticipated that the matter will then later proceed to a contested committal hearing. It is submitted that SQA will likely spend close to 24 months on remand before the matter proceeds to trial and eventual resolution. It is submitted that the prospect of a significant delay, given SQA’s vulnerability and young age, is a significant matter. It was further submitted that the issue of delay should be given particular weight given the triable issues in the case.
Personal circumstances
SQA was 16 years old at the time of the alleged offending. He is currently 17. Prior to his remand, he lived in Bundoora with his parents and siblings and had recently commenced a carpentry apprenticeship. He was born and raised in Somalia, and is an Australian citizen. He completed Year 10 at school before beginning his apprenticeship.
SQA’s parents are both employed, and he is the second youngest in a sibship of four children. It is submitted that he has no drug or alcohol abuse issues and has not been diagnosed with any serious mental illnesses. Despite this, Youth Justice have noted some concerns from the Department of Education regarding his cognitive functioning. SQA has been assessed as having a “vulnerable cognition” and scores from an assessment place him in a very low to low‑average range of functioning. Further assessment is recommended to investigate whether he has an intellectual disability.
Significantly, SQA is able to return to the family home, to continue his employment, and is willing to engage with Youth Justice if bail is granted.
Criminal history and outstanding matters
SQA has no formal criminal history. However, SQA states that he has previously been the subject of a diversion order, in November 2021, for charges of theft and unlawful assault.
It is submitted that SQA has no prior convictions, and no outstanding matters. However, the affidavit in response asserts that he is currently facing two charges of armed robbery, two charges of false imprisonment, two charges of intentionally causing injury and a single charge of affray, relating to events alleged to have occurred on 24 June 2022 — that is, preceding his remand in the present matters. It is said he was charged on summons with these offences on 14 December 2022, following his remand in the present matters and that they were listed in the Melbourne Children’s Court on 22 February 2023.
Bail compliance history
It is submitted that SQA has previously been subject to both bail and a diversion order, and was compliant with both. Further, it is submitted that at the time of the alleged offending, he was not subject to any grant of bail or summons. It is also contended that there is no evidence to suggest he would disregard bail conditions if his application is granted.
Family support and stable accommodation
If granted bail, it is proposed that SQA reside with his parents and siblings at the family home in Bundoora, a place he has lived at since his birth. Youth Justice has recently assessed his home as suitable and determined that it represents a stable environment.
Employment
Prior to his arrest, SQA was three months into a carpentry apprenticeship with a company in Thomastown. If granted bail, SQA proposes to continue this apprenticeship, and to this end relies on an undated and unsigned letter from his employer, ABM, who speaks favourably to his character and states that his apprenticeship remains open to him to return to. It is submitted that return to his previous employment will provide an opportunity for further structure and support.
Special vulnerability
It is noted that SQA is a child, and that the special considerations in section 3B of the Act apply to the determination of his application. It is further submitted that the stigma attached to SQA and the charges he faces is great within his tight‑knit, conservative Somali community. Finally, it is submitted that SQA’s low cognitive functioning provides an added level of vulnerability in the custodial setting.
Availability of treatment or bail support services
SQA has been assessed as unsuitable for Youth Justice supervised bail on the basis that his application is premature, and that Youth Justice cannot properly assess the safety concerns to him and the community if bail is granted.
It is submitted that supervision by Youth Justice would ameliorate any alleged risks associated with the grant of bail to SQA. Furthermore, SQA was cooperative during the assessment with Youth Justice. It is pointed out that the co‑accused, BM, who was granted bail by Justice Hollingworth on 14 December 2022,[9] was similarly assessed by Youth Justice as unsuitable for bail support services on the basis that his application was premature. In particular, Youth Justice held concerns that there was no confirmed return‑to‑school plan for BM, that there were limited community support services secured, and that it was difficult to assess the risk to BM and the community if bail was granted.
[9]Re BM (Supreme Court of Victoria, Hollingworth J, 14 December 2022) (not published)..
On this application, SQA called Jennifer Crehan, the author of the Youth Justice Report dated 13 February 2023, to give evidence. Ms Crehan has been a Youth Justice Case Manager for 10 years. Ms Crehan confirmed that SQA had been found unsuitable for Youth Justice supervised bail on the basis of the severity of the alleged offences. She reiterated that there were no other concerns with respect to SQA but for the severity of the offending. She confirmed also that if SQA was granted supervised bail, this would mean he would have weekly appointments with Youth Justice, that there would be communication with him and his family, and that he would be referred to support services.
Further, Ms Crehan said that SQA was motivated to engage with Youth Justice, and was open to any other referrals made by that agency. Youth Justice would update the informant if there were any issues or concerns around SQA’s bail, and would do so immediately if there was further offending or non‑compliance. Weekly appointments would involve face‑to‑face meetings about SQA’s well‑being and assessments of his bail compliance. Youth Justice has had regular contact with his family, and they have agreed to contact Ms Crehan if they have any concerns. Ms Crehan reported that SQA’s family have been very receptive about engaging with her. She assessed them as being quite open in their communications with her. Further, Ms Crehan indicated that the family had informed her that if SQA did not comply with bail conditions, they would notify her or the informant, or both.
SQA has no formal diagnoses in respect of his mental health but he has indicated some stresses whilst in the custodial setting at Malmsbury.
COVID‑19 and onerous conditions in custody
It is SQA’s first time in custody. He submits that being on remand in the context of the COVID‑19 pandemic has made his time in custody more onerous, with a surge in cases following his remand affecting visitation from his family. In giving her evidence, Ms Crehan noted the incident reports in custody about SQA’s alleged misbehaviours.
Parity
It is again noted that the co‑accused, BM, who is also charged with kidnapping and murder, has been granted bail.
Unacceptable risk
The respondent bears the onus of demonstrating that an unacceptable risk exists in respect of SQA, such that bail should be refused. It is submitted that the respondent has failed to so satisfy the court.
It is further submitted that SQA has no prior criminal history, and that there is no evidence to suggest he has a propensity to disobey court orders or interfere with witnesses. Accordingly, it is contended that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including that SQA:
(a) reside at his home address in Bundoora;
(b) report to Bundoora Police Station three times a week;
(c) not attend any international points of departure;
(d) not leave the State of Victoria;
(e) surrender any valid passport to the informant within 24 hours of release, and not apply for any other passport;
(f) not contact the prosecution witnesses, other than the informant;
(g) not contact any co‑accused; and
(h) comply with all lawful directions of the Youth Justice bail program.
The respondent’s contentions in respect of SQA
The application for bail is opposed on the basis that SQA:
(a) has not discharged the burden of satisfying the court as to the existence of exceptional circumstances that justify the grant of bail; and
(b) is an unacceptable risk of endangering the safety and welfare of any person, committing an offence whilst on bail, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody.
In response to SQA’s contentions, and in addressing the surrounding circumstances and alleged unacceptable risk, the respondent relies on the following matters.
Exceptional circumstances
Strength of the prosecution case
It is conceded that the prosecution case against SQA is circumstantial, however, the respondent submits that it remains a strong case which is supported by more than just phone location records. Further, it is noted that there is still important outstanding forensic analysis being undertaken which was anticipated to be completed before the committal mention on 1 March 2023.
Outstanding matters
The contention that SQA has no outstanding matters is disputed. It is noted that SQA was charged on summons on 14 December 2022 in relation to events on 24 June 2022, involving both himself and four co‑accused (three of whom are co‑accused in the present matter). It is alleged SQA and the co‑accused forced two complainants into an abandoned building and wielded machetes at them, while making demands for their phones and money. One of the complainants was struck with the machete, and the other held against a wall and punched as his possessions were taken. It is alleged that a third person who walked into the building by chance was also accosted and threatened with stabbing.
Family support and stable accommodation
It is conceded that SQA has stable accommodation, however it is submitted that the family residence is not appropriate as there is a risk SQA will be exposed to anti‑social behaviours, on the basis that his siblings have criminal histories. The respondent also has concerns that SQA’s family members (based on past conduct) would not inform police if he were to breach bail. Further, SQA’s brother and co‑accused, SMA, currently resides at the family home, which may make the residence unsuitable for the purposes of non‑association.
Employment
It is noted that the letter in support of SQA’s employment is unsigned and appears to have redactions at the bottom of the page, making it difficult to confirm who the author is.
Delay and likely sentence
It is submitted that the likely sentence imposed upon SQA upon a plea or finding of guilt will exceed any time he spends on remand.
COVID‑19 and onerous conditions in custody
It is submitted that enquires made with the operations manager at the Department of Justice and Community Safety have confirmed that, as of 25 January 2023, restrictions surrounding COVID‑19 have been reviewed and eased in custody. The easing of restrictions removes any difficulties associated with visitation.
Unacceptable risk
Endangering the safety and welfare of any person
It is submitted that the offending the subject of this application, and the outstanding matters SQA faces, are extreme examples of causing harm to, and endangering the safety or welfare of any person.
Committing an offence whilst on bail
It is accepted that SQA has no prior convictions for committing offences while on bail, however if he were to be granted bail, there are concerns that his family would actively assist him to breach bail and then obstruct police trying to investigate breaches.
Interfering with a witness or otherwise obstructing the course of justice in any matter
If SQA were to be bailed to his family residence, it is submitted that it is highly likely that he would associate with his brother and co‑accused, resulting in an unacceptable risk that an obstruction of justice might ensue. Furthermore, it was noted during the respondent’s cross examination of Ms Crehan, that SQA had identified key connections with his alleged co‑offenders such that Youth Justice held concerns that he may struggle to disassociate himself from those peers. This was an issue that Youth Justice had discussed with SQA, and whilst he had indicated he would be able to disassociate himself, there remained concerns that, as a young person well connected with these peers, SQA might struggle in this regard.
Failing to surrender into custody in accordance with the conditions of bail
While it is conceded that SQA has no priors for failing to appear on bail, it is noted that — three days after the murder of the deceased — SQA and his parents made an urgent application for a passport in his name with an intended travel date of 23 October 2022, leading police to believe he intended to flee the country to avoid apprehension. It is on this basis that there are concerns he may fail to surrender if bail is granted.
The application for bail by MG
MG relied on an 11‑page written submission and supplemented it by oral argument.
MG’s contentions
Exceptional circumstances
MG relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Strength of the prosecution case
It is submitted that, at this stage, the case against MG is circumstantial and there will be triable issues to explore. It is also submitted that the prosecution case is attended by significant problems, including:
(a) Call Charge Record [‘CCR’] evidence seeking to place MG at various locations before, during and after the alleged offending, has not been fully assembled and served on the defence;
(b) an outstanding autopsy result;
(c) difficulties in identifying which of the accused were involved in the physical assault on the deceased;
(d) difficulties in identifying who was present in various motor vehicles and at the physical assault; and
(e) a lack of evidence as to how many persons were armed, and who those persons were.
In short, it is submitted that the prosecution case is likely to suffer from significant hurdles.
Delay
MG has been in custody since his arrest on 27 October 2022, and as at the date of the committal mention on 1 March 2023, will have spent 127 days on remand. It is noted that statements and forensic testing remain outstanding, and it is submitted that MG is likely to spend well over 15 months on remand awaiting trial if bail is not granted. It is submitted that the matter is unlikely to proceed to trial within 2023. It is contended that this delay is significant, especially when viewed in the context of MG’s young age.
Counsel for MG submits that it is more desirable for MG to be supervised in the community with employment and support services, compared to spending a lengthy period of time in custody. The court was also reminded that there are multiple alleged offenders in this matter, which will likely contribute to delays being experienced in the resolution of the allegations.
Personal circumstances
MG is 17 years of age. He was born in Australia and is of Somali heritage. He is the youngest of a sibship of five, and ordinarily resides with his parents and siblings in Reservoir. His father works as a taxi driver, and his mother as a disability support worker. Two of MG’s brothers work as plumbers, with another working as an electrician. MG’s sister is a nursing student. MG undertook his Victorian Certificate of Applied Learning [‘VCAL’] studies at Charles La Trobe College and hopes to secure an electrical apprenticeship.
Family support and stable accommodation
Prior to his remand, MG resided with his parents and siblings at their longstanding family home in Reservoir. It is proposed that, should he be granted bail, he will return to this stable and secure accommodation. In a report dated 13 February 2023, Ms Emma Hunter, Advanced Case Manager, Youth Justice, notes MG and his family report a strong relationship. Further noting that some members of MG’s family have prior findings of guilt, it is submitted that these are limited and somewhat dated in all the circumstances. Youth Justice have also assessed the family home as being suitable, and a stable environment. MG’s family have been assessed as receptive to working with Youth Justice and have committed to supporting MG in complying with any bail conditions that might be imposed.
Counsel for MG called evidence from his 21‑year‑old older sister, SM, to the effect that she lived in the family home with her parents and siblings. She is expected to graduate from nursing at RMIT Bundoora in June 2023. The witness undertook that, in the event MG was granted bail on conditions, that she, as well as other members of her family, would be prepared to immediately call the informant should they become aware of MG breaching any bail conditions. In this regard, she said the family was “all on the same page”. SM told the court that she would be prepared to support her brother by assisting him to attend necessary appointments that might arise.
Employment
MG has previously worked with his brother as a labourer over school holidays and occasional weekends. It is submitted that he will be able to resume this arrangement on an ad hoc basis if granted bail. It is further submitted that MG has an opportunity for regular and stable paid employment at a barber shop in Heidelberg. His prospective employer, AHM, is currently undertaking a Bachelor of Counselling at the Australian College of Applied Professions [‘ACAP’] and works as a school guidance aid. If MG is granted bail, AHM would also provide mentoring and support to MG. It is submitted that the desirability of allowing this education, training and proposed employment to continue must be taken into account on the application before the court.
AHM gave evidence during the application and confirmed that employment is available. He also confirmed that he is building a youth centre which has just been approved as a not‑for‑profit charitable organisation. On being employed, MG would work in the Heidelberg shop alongside the witness. He would work four days each week from 10:00am to 6:00pm, and could start work immediately. AHM confirmed that if MG was found in breach of bail conditions he would report that circumstance.
Special vulnerability
As above, MG is 17 years old. It is submitted that he has a special vulnerability because of his age and due to his limited involvement with the criminal justice system. He was arrested on 26 October 2022 and has remained in custody from that time. This is his first time in custody. He has no criminal history. It is submitted that the risk of contamination and the effects of stigma surrounding his remand are high.
MG acknowledged that the Youth Justice report identified that there have been some behavioural issues attaching to him whilst in custody. It was submitted that MG has not been charged with any matters arising out of these allegations, and in any event they could be regarded as disciplinary matters. Ultimately, it was submitted that MG is under stress in the custodial environment, and is vulnerable, and it would be safer for him to be removed from that environment.
Availability of treatment or bail support services
MG is not an abuser of drugs or an alcohol user. He has no formal mental health diagnosis. MG has been involved with community organisation Youth Activating Youth [‘YAY’] on a voluntary basis for approximately 18 months. YAY is a non‑profit organisation that assists disadvantaged multicultural youths to re‑engage with their communities. They also offer a “CHANGE” program designed to engage young people in the criminal justice system. It is proposed that, if granted bail, MG will actively engage with YAY for support. As noted, he would also be supported by his prospective employer, AHM, if bail is granted.
MG proposed to rely on the support of Youth Justice, however, in the report dated 13 February 2023, he was assessed by Youth Justice as unsuitable for bail support services at this time. It was Youth Justice’s position that MG’s bail application is premature, on the basis that he does not have any plans in place for a structured day program (noting that he has not yet secured an apprenticeship) and due to the potential risk of retribution if he is to return to the community. Youth Justice states that its ability to assess the risks to MG and the community is limited, and in turn its ability to put appropriate measures in place to mitigate this risk is also limited. During the application, it was acknowledged that Youth Justice agrees that MG now has a day program in place, albeit he is still regarded as unsuitable for a grant of bail. Nevertheless, Youth Justice have indicated it will still work with MG should he receive a grant of bail.
It is submitted by MG that the court is not bound by Youth Justice’s assessment of unsuitability, and that the issues raised by Youth Justice — when properly scrutinised — should not be given significant weight.
Furthermore, MG can attend weekly psycho‑social programs with Caraniche Youth Forensic Service.
Parity
MG relies on the principle of parity, on the basis that the co‑accused BM — who is charged with the same offences — was granted bail in this matter on 14 December 2022. BM was also 17 years old, with no prior convictions, and was also not supported by Youth Justice in making his bail application.[10]
[10]See paragraph 60 above.
Unacceptable risk
It is acknowledged that whilst the allegations are serious, there is a presumption of innocence. Further, MG has no prior history of violent offending, and comprehensive services and his proposed employment (as discussed above)[11] are directed towards addressing risk factors that may lead to offending behaviour. It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including:
[11]See paragraphs 88–95 above.
(a) maintaining a fixed residential address;
(b) imposition of a curfew of 8:00pm to 6:00am, with MG not to leave the premises unless with a parent;
(c) presenting at the front door of the premises during curfew hours;
(d) reporting (as the court requires) between 6:00am and 8:00pm at the relevant police station closest to his residential address;
(e) engaging with YAY and/or any other support service and obeying their lawful directions;
(f) not contacting (directly or indirectly) any co‑accused;
(g) not contacting (directly or indirectly) any witnesses for the prosecution, except the informant;
(h) providing the informant with the phone number and IMEI number of any mobile phone he possesses or uses within 24 hours of first having access to that phone;
(i) producing any mobile phone he possesses or uses for inspection upon reasonable request of the informant or nominee;
(j) surrendering any passports and not applying for any other travel documents;
(k) not leaving the State of Victoria;
(l) not attending any points of international departure; and
(m) submitting to judicial monitoring.
It was submitted that, as set out and discussed above,[12] there is a suite of protective measures that can be placed around MG, such that the risk attaching to him can be reduced to an acceptable level.
[12]See paragraph 97 above.
The respondent’s contentions in respect of MG
In response to MG’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following matters.
Exceptional circumstances
The application for bail is opposed on the basis that, although there are circumstances that could properly amount, in combination, to a finding that exceptional circumstances have been shown, the prosecution does not concede that the exceptional circumstances test has been met.
Strength of the prosecution case
It is conceded that the case against MG is circumstantial, however, it is submitted that the prosecution case is a moderate‑to‑strong one in respect of each accused’s involvement. Furthermore, the respondent also relies on the objective seriousness of the alleged offending. It is acknowledged that forensic examination of a number of important exhibits is yet to be completed and there are a number of materials outstanding, including the forensic report. It is noted that there is a great deal of electronic and media material, including CCR data and cell tower data to be assessed.
As to the motive for the offending, it is submitted that there is evidence of animus apparent from an examination of the police brief, arising from intimidating behaviour between individuals and a chase involving motor vehicles. It is submitted that the circumstances that developed were an instance of retribution against the deceased man. These features led to the kidnapping of one victim, and the killing of the deceased. The respondent submitted that there are, amongst other things, pieces of CCTV footage that demonstrate the involvement of MG, seen at one point driving a particular relevant motor vehicle. It is submitted that there is clear evidence of MG’s association with his alleged co‑offenders. At one point, it is alleged that MG handed an alleged co‑offender a large knife during the course of the morning’s activities.
In short, the prosecution set out in some detail the circumstantial case that currently exists against MG, part of which includes the inference that an agreement existed between the parties to kill or seriously injure the deceased in an act of retribution.
Criminal history
It is conceded that MG has no criminal history, however it is submitted that the charges the subject of this application are extremely serious.
Family support and stable accommodation
Whilst it is acknowledged that bail must not be refused to a child based on the unavailability of adequate or suitable accommodation, it is submitted that there are risks of further exposure to criminal offending if MG is bailed to his family’s residential address. This is on the basis that MG’s three older brothers all have prior convictions and his mother has a prior conviction for assaulting a police officer who was attempting to arrest her son. It is the respondent’s submission that MG’s parents would be unable to adequately ensure his compliance with bail conditions. This noted, the respondent takes no issue with the suitability of the home environment if MG was to be granted bail. Specifically, the prosecution did not take issue with the evidence of MG’s sister.
Youth Justice
It was submitted that, as Youth Justice have considered MG to be unsuitable for supervised youth justice bail, this should represent a concern for the court.
Delay and likely sentence
It is submitted that, if MG were found guilty of the offences the subject of this application, the imposed term of imprisonment would far exceed any time he spends on remand. Nevertheless, it was noted by the respondent that delay in respect of a young person on remand is always a matter of concern.
Parity
As to whether the exceptional circumstances test has been met, the respondent submits that the concession made before Justice Hollingworth in BM’s bail application (that it was open to the court to find that exceptional circumstances existed) is not maintained by the respondent in these applications. It was submitted that the brief has now been delivered, at least in part, and thus the assessment of this aspect of the application is now in a different category.
Unacceptable risk
Endangering the safety and welfare of any person
The particulars of the alleged offending; namely the brazen kidnapping and repeated assaults on the complainant and targeted attack on the deceased are relied on to demonstrate MG poses a danger to the safety and welfare of any person. It was submitted that the risk of endangering the safety or welfare of another person arises in this case from the nature of the alleged offending, and the conduct of MG on remand was put forward with some concern. The informant’s report emphasis the extreme example of violence present in MG’s case.
Analysis and conclusions
As discussed above,[13] section 3B(1) of the Act sets out a list of considerations that the court must take into account when considering whether to grant bail to children such as SQA and MG, both of whom are aged 17. These considerations make it clear that, when it comes to bail, children are in a special category. As was observed by the Court of Appeal in HA:[14]
Section 3B of the Act reflects the underlying principle in the criminal justice system that a decision to hold a child in custody should be made only as of a last resort. In considering whether to grant bail, and in the sentencing process, courts are astute to avoid imposing a term of detention, unless there is no other reasonable disposition available.
[13]See paragraph 41 above.
[14]HA (a pseudonym) v The Queen [2021] VSCA 64, [55] (Maxwell P and Kaye JA).
Moreover, in an oft‑cited passage, T Forrest J held in Re JO:[15]
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child. [emphasis added]
[15][2018] VSC 438, [14] (T Forrest J). His Honour’s observations have been repeatedly applied by this court: see, for example, Re RN [2023] VSC 9, [20] (Priest JA), Re KE [2021] VSC 175, [51] (Kaye JA), Re GG [2021] VSC 12, [47] (Incerti J), Re JS [2020] VSC 606, [24] (Kaye JA), Re IH [2020] VSC 325, [33] (Tinney J), Re Moore [2019] VSC 344, [18] (Priest JA), Re LT [2019] VSC 143, [37] (Elliott J), Re NB [2019] VSC 37, [29]–[30] (Lasry J).
That does not of course mean that children who are alleged to have committed violent crimes should automatically receive grants of bail. Each case must be determined according to its own facts and circumstances. The non‑exhaustive list of surrounding circumstances in section 3AAA of the Act makes it clear that a child’s age is merely one factor (albeit an important one) to be considered.[16]
[16]The Act, s 3AAA(1)(h).
This conclusion is further supported by the guiding principles in section 1B of the Act. When determining whether to grant bail, the court must consider factors beyond the applicant’s circumstances; it must 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 this in mind, I turn to the applications made by SQA and MG.
General observations applicable to both applicants
Nature of the alleged offending
It is beyond question that the alleged offending is of an extremely serious kind, involving the violent kidnapping of the complainant, and what appears to have been the brutal killing of the deceased. The murder is alleged to have been carried out by multiple young offenders, using bladed weapons. Little mercy appears to have been shown to either the complainant or the deceased by the persons that attacked them and those that may have been complicit in these events.
Parity
On 14 December 2022, Justice Hollingworth granted bail to BM. BM is charged with the same offending as the present applicants. He was then 17 years old and had no prior criminal history. Her Honour noted in her reasoning that it was, at that point, too early to make useful observations about the strengths and weaknesses of the prosecution case. Justice Hollingworth also noted that BM had a stable home environment and strong family support. In that application, a number of BM’s close family members gave evidence confirming ongoing support and supervision and undertook that the informant would be notified of any breaches of bail conditions. Her Honour granted bail despite there being an absence of support for BM for a period of weeks across January.
In the present application it was submitted on behalf of MG that, even despite the service of the brief of evidence, the case against MG has not materially advanced beyond the state of the case against BM at the time Justice Hollingworth granted bail. I am of the opinion that this submission applies equally to SQA.
In support of their applications, both SQA and MG rely on the fact that BM received a grant of bail. They argue that their circumstances do not significantly differ from his. On the other hand, the respondent argues that a material difference is that due to the service of a significant part of the police brief, it can be discerned that the case against the applicants is strong, thereby creating a distinction weighing in favour of a refusal of bail to the applicants.
In my opinion the prosecution case is not advanced to a point where considerations of the strength of the prosecution cases are so materially different to the case before Justice Hollingworth so as to distinguish that case from the present cases.
Similarly as to the position taken by Justice Hollingworth, I am not in a position to form further opinions about the strength of the prosecution case, other than to remark that the cases against SQA and MG are circumstantial, and there appears to be little evidence of identification of the applicants as direct perpetrators in the events that occurred.
The court is acutely conscious of the nature of these allegations, which represent a very serious example of a killing committed in company against a lone individual. The seriousness of such allegations is a major factor in weighing whether bail should be granted, however, it is not the only factor. Both SQA and MG are children, and this fact must weigh in favour of a grant of bail. Further, neither has a criminal history or comes from a dysfunctional or disturbed background of the kind often seen in this court.
The Youth Justice report
Neither applicant is deemed suitable for Youth Justice supervised bail. However, it appears the primary reason for these conclusions is the seriousness of the allegations and not past behavioural issues.
Otherwise, Youth Justice appears to find MG and SQA suitable. Acceptable levels of support are provided by their families, in that they have stable homes and environments which include the opportunity for both to be occupied in the period leading to their trials. It is to be noted that neither has previously been in the custodial setting.
The determination of SQA’s application
Exceptional circumstances
Not unexpectedly, considerable emphasis was laid on SQA’s young age, being 16 when the alleged offending took place, and now 17. He has stable accommodation available to him, employment and the support of Youth Justice should he receive a grant of bail. The court is also able to impose strict conditions upon him.
It is submitted that there are genuine triable issues in the case alleged against SQA. However, it was contended in response that there are demonstrated weaknesses in the prosecution case. Combined with the prospect of a significant delay occurring, family support, and no criminal history or failure to abide by court orders, it was submitted that these factors together amount to exceptional circumstances, such that bail can be granted.
It is also submitted that there is a real question of delay to be considered, and some consideration should be given to the possibility of severance applications by the co‑accused. If this occurs, it would likely lengthen the time until resolution of the charges against SQA.
Taking into account all of the circumstances and the requirements of the Act, including the surrounding circumstances, I am of the opinion that SQA has met the exceptional circumstances test. However, this is of course not the end of the matter.
Unacceptable risk
The court is required to consider the question of unacceptable risk. It is trite that the question to ask is not whether the risk can be eliminated but rather whether it can be reduced to an acceptable level such that bail can be granted. In practical terms it becomes a question of whether there is an unacceptable risk that the applicant will commit further offenses, or further violence if bailed, or may interfere with the course of justice. I do not consider that the risk of flight is one that looms large in SQA’s case.
An area of particular concern is whether SQA can remain disconnected from his alleged co-accused. It was noted during the respondent’s cross examination of Ms Crehan that SQA had key connections with his alleged co‑offenders, such that Youth Justice held concerns that he may struggle to disassociate himself from those peers. This was an issue that Youth Justice had discussed with SQA, and whilst SQA had indicated he would be able to disassociate himself, there remained concerns that, as a young person who is well‑connected with these peers, he might find this difficult.
I have given this application anxious consideration. Taking all matters into consideration and weighing them, in my opinion risk can be reduced to an acceptable level. SQA has no prior criminal history, and is well supported by his family and other pro‑social supports in the community. In my opinion, conditions can be imposed on a grant of bail that will have the effect of reducing the identifiable risks, particularly the risk of future violence and the risk of interference with the case by SQA.
The determination of MG’s application
Many of the comments made in SQA’s application are also pertinent to the resolution of MG’s application.
Exceptional circumstances
As to the strength of the prosecution case, it appears that a version of the hand up brief has now been served, but is yet to be completed. There is apparently still no expert report explaining the implications of CCR telephone data, which presumably will be used to identify where MG’s telephone was at various times during the course of the events of that day.
As to any identification of MG, it is submitted there is a major problem with respect to proving MG’s involvement in the events, in the context of a circumstantial case. The prosecution rely on association, CCR data, and CCTV at various stages said to place MG and relevant associates in similar locations before the events. It was submitted that there is no direct evidence of identification by way of a witness asserting MG was present at the scene of the fatal events, or what role he is alleged to have had. Furthermore, it appears that there is little direct evidence of a pre‑concert agreement between the actors, such agreement being inferred from circumstantial evidence. Despite the service of the partial brief of evidence, it is submitted that there are a number of triable issues and that there are “good prospects of being acquitted”.
It is not the role of this court to try the alleged offending, but to attempt to come to some broad conclusions about the strength and weaknesses of the prosecution case, in particular whether or not it might be said that prosecution case is inherently weak. If so, the weakness of the prosecution case can be a highly relevant factor to the determination of the bail application. As I have discussed above,[17] I am not prepared to make any firm assessment of the strength or weaknesses of the prosecution case, even in the context of the police brief now being served as it has.
[17]See paragraphs 119–120 above.
As with SQA, the case is a circumstantial one, with apparently little, if any, direct evidence of the alleged role of MG. Further, MG has no prior convictions, and accordingly no adverse bail history. It has been argued that he is vulnerable in the custodial setting.
I note that Youth Justice says MG is unsuitable, on the basis that the bail is premature and the fact that MG does not have a day program in place. However, it appears to me that the day program is now in place. It seems Youth Justice maintains its position that MG is still unsuitable for a grant of bail because the alleged offending is serious. It appears this is now the only basis on which unsuitability is really founded.
Keeping in mind the conclusions of the Youth Justice report, it was submitted that, should MG be released on bail, he will have satisfactory supervision gained from his employment and from living at home with his family amongst his parents and siblings, who all reside at home. Noting that some of the family have prior convictions, it was submitted that those matters are not of a serious nature, and in any event are somewhat dated.
With respect to the aspect of supervision, MG called evidence from his elder sister, a nursing student, who undertook to the court that, having discussed the issue with her family, each would be prepared to immediately notify the informant should MG breach any bail conditions imposed on him. I find the evidence of the sister, which appeared to be essentially unchallenged, to be acceptable and credible.
I note that Youth Justice also conducted an assessment of MG’s home in the context of the present bail application, and considered it to be a stable and suitable environment for MG to return to if granted bail. Youth Justice also noted that MG’s family members are receptive to working with Youth Justice and are committed to supporting MG in complying with any bail conditions imposed.
Having considered all the matters placed before the court in this application, I am persuaded that the exceptional circumstances test has been satisfied through the combined force of the matters put forward.
Unacceptable risk
That, of course, is not the end of the matter. The court is again required to consider the question of whether the risk in granting bail is an unacceptable one. Turning to that issue, as with the other application, I have given MG’s application for bail anxious consideration.
Primarily, this is because the allegations are very serious and involve allegations of extreme violence. However, acknowledging that, and taking all matters into consideration and weighing them, in my opinion risk can be reduced to an acceptable level. As I have said, MG has no prior criminal history and, like SQA, is well‑supported by his family with other supports in the community.
Parity of treatment is also a matter of concern, as between MG and SQA, as well as between the alleged co‑accused, BM. In my opinion, sufficient conditions can be imposed on a grant of bail that will have the effect of reducing the identified risks (namely, the risk of future violence and the risk of interfering with the course of justice by MG).
Conclusion
In the circumstances, I will grant both SQA and MG bail, but I will discuss with counsel the appropriate conditions. Once I have done that, I will ask the parties to discuss between themselves the detail of any matters that need to be completed that are not currently within my knowledge.
I propose to grant bail broadly on the applicants’ own undertakings and on the following special conditions:
(a) that they attend the Melbourne Magistrates’ Court or the Children’s Court on a day that will be identified by the parties and then surrender themselves, and then must not depart without the leave of the court, and if leave is given, return at the time specified by the court and then surrender themselves into custody;
(b) that each will reside at their respective home addresses, which will be identified in the orders that will be made. They will reside there and not change those addresses without the leave of the court;
(c) that they will remain at those addresses between the hours of 8:00pm and 6:00am each day for the duration of bail. These times might change depending on the discussions between the parties, because issues of employment and daily activities might affect the time at which the curfew will operate;
(d) that each present themselves at the front door of their premises during curfew hours, if and when called upon by a member of Victoria Police;
(e) that each notify the informant at least 14 days in advance of a proposal to change the place of residence;
(f) that each report during the week (I propose Monday, Wednesday and Friday or the nearest day thereafter if those days fall on public holidays) to the officer in charge of the relevant police stations closest to the residential areas of both. These reporting conditions will of course be during hours of the day, which again can be discussed between the parties depending on anything that arises from any work obligations;
(g) that each reports to a person at Youth Justice within two working days after this order comes into effect. These persons will either have to be named or will otherwise be the manager or the delegate;
(h) that, in respect of MG, he will engage with YAY and/or any other relevant support services and comply with all lawful directions of any support service program;
(i) that each comply with the lawful directions of the Youth Justice bail service program and report to Youth Justice within 24 hours of release from custody;
(j) importantly, that each not contact their fellow co‑accused or any of the co‑accused (either directly or indirectly). The parties will need to discuss the situation concerning SQA’s brother and co‑accused, who also resides in the same family setting;
(k) that each not contact (directly or indirectly) any witness for the prosecution, except the informant;
(l) that each not possess or use more than one mobile telephone;
(m) that each provide the informant with the phone number and IMEI number of the mobile telephone that they possess or use, within 24 hours of first having access to that phone;
(n) that each produce their mobile phone for inspection, on the reasonable request of the informant or his nominee;
(o) that each not leave the State of Victoria;
(p) that each surrender any passport that may be held to the informant within 24 hours of release, and not apply for another passport;
(q) that each not attend any point of international departure; and
(r) that each not apply for a passport or travel document (whether directly or indirectly), or cause any other person to do so on their behalf.
Both applicants will reappear before this court for judicial monitoring, to review compliance with the bail orders, at 9:30am on a date that will be chosen between my associates and the parties, and any other further dates that the court appoints during the course of this order.
Finally, an order will be made for the applicants not to have contact with each other. The episodes of judicial monitoring will take place on separate days, so that MG and SQA will not be able to have any contact with each other during the course of the period of bail.
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