Re Ts
[2021] VSC 213
•27 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0087
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by TS | Applicant |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 April 2021 |
DATE OF JUDGMENT: | 27 April 2021 |
CASE MAY BE CITED AS: | Re TS |
MEDIUM NEUTRAL CITATION: | [2021] VSC 213 |
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CRIMINAL LAW – Bail – Applicant charged with intentionally causing serious injury and other charges – Offending involved single non-fatal stabbing – Applicant identifies as Aboriginal and Torres Strait Islander – Compelling reason established – Applicant does not pose an unacceptable risk – Bail granted with stringent conditions – Bail Act 1977 ss 1B, 3AAA, 3A, 4AA, 4C, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D McGlone | Marshall Jovanovska Ralph Criminal Lawyers |
| For the Respondent | Ms G McMaster | Office of Public Prosecutions |
HER HONOUR:
Introduction
Procedural Background
This is TS’ first time in custody. She has been in custody since 2 December 2020[1] having spent 146 days in custody as at 27 April 2021. She identifies as Aboriginal and Torres Strait Islander. TS has been charged by the Informant, Senior Constable Aaron Elford (‘Elford charges’) over a serious stabbing incident in which TYS is the alleged victim. There are also some less serious charges that relate to TS being physically uncooperative with police when she was arrested Many of the charges are laid as alternatives.
[1]She was formally remanded in the early hours of 3 December 2020.
The Elford charges are as follows:
(a) Charge 1: Intentionally causing serious injury pursuant to s 16 of the Crimes Act 1958 (Vic) (‘Crimes Act’) on 2 December 2020;
(b) Charge 2: Recklessly causing serious injury pursuant to s 17 of the Crimes Act on 2 December 2020;
(c) Charge 3: Unlawful assault with a weapon pursuant to s 23 of the Summary Offences Act on 2 December 2020;[2]
[2]It is noted that the Affidavit in Support of Daniela Jovanovska dated 12 April 2021 (‘Affidavit in Support’) incorrectly identifies this charge as pursuant to s 23 of the Crimes Act. The correct charge, as confirmed by the OPP and the charge sheet, is s 23 of the Summary Offences Act 1966. See Affidavit in Opposition of Lauren Myers dated 22 April 2021 (‘Affidavit in Opposition’), [4].
(d) Charge 4: Assault emergency worker (indictable) pursuant to s 31(1)(b) of the Crimes Act on 2 December 2020;
(e) Charge 5: Resist emergency worker (indictable) pursuant to s 31(1)(b) of the Crimes Act on 2 December 2020;
(f) Charge 6: Intentionally cause injury pursuant to s 18 of the Crimes Act on 2 December 2020; and
(g) Charge 7: Recklessly causing injury pursuant to s 18 of the Crimes Act on 2 December 2020.
TS was refused bail on two occasions in the Warrnambool Magistrates’ Court,[3] before making the current application. On each of the previous applications in the Magistrates’ Court, bail was refused on the basis that TS did not show a compelling reason for granting bail. No findings were made as to risk on either occasion.
[3]On 3 December 2020 and 22 February 2021, both before Magistrate Stratmann.
On 26 March 2021, a committal mention was held at Warrnambool Magistrates’ Court and the matter was listed for a two day committal hearing on 27–28 October 2021. By that time, if she remains without bail on the Elford charges, TS will have spent 329 days in custody.
Circumstances of the Applicant’s arrest on Elford charges
TS lives in government housing opposite the block of units in which the alleged victim, TYS, lives.
It is alleged that on 2 December 2020:
(a) All parties involved were affected by alcohol;
(b) At around 5:00pm, TYS attended the unit of a neighbour, Jessica;
(c) Jessica’s unit is directly opposite TS’ address;
(d) At some point, TS attended Jessica’s unit, uninvited. TYS was still present;
(e) Jessica and TS are known to one another, and have had altercations in the past. Jessica is the Respondent to a Personal Safety Intervention Order (‘PSIO’) where TS is the Affected Person.[4] Jessica is in the process of applying for her own Order against TS;[5]
[4]The Order relates to an alleged assault that occurred on 26 November 2020. The Order expires on 30 November 2021.
[5]That Order was made on 1 December 2020 and was made after an assault that occurred on 26 November 2020. The Order expires on 30 November 2021.
(f) A verbal argument arose between TS and TYS regarding a $10.00 drug debt relating to TYS taking TS’ Ritalin medication. A physical altercation began soon after. Jessica started recording the altercation on her mobile phone, broadcasting it via Facebook ‘Live’.[6] TS’ sunglasses and TYS’ mobile phone were broken;
[6]The police summary indicates the audio of the altercation was recorded on Facebook Live, a transcript of that recording was before the Court on this application.
(g) At some point during the alteration, TS obtained a knife from a kitchen drawer, and said repeatedly to TYS “you’re dead cunt! You’re dead cunt” to which the victim replied “you going to stab me cunt?”. TS then stabbed TYS once to the left kidney area of his torso, causing a two centimetre laceration and heavy bleeding;
(h) Another neighbour, Harley, entered the unit after hearing noise and saw TS and TYS in the kitchen. Harley saw blood coming through TYS’ clothing. TS then left the unit, concealing the knife, and returned to her residence across the road;
(i) TYS left the unit soon after, and told another neighbour, Mathew, that TS had stabbed him. Mathew phoned 000, and police and ambulance attended soon after. TYS was taken to Portland Hospital, and from there he was airlifted to Royal Melbourne Hospital. He was to receive surgery, and appears to have sustained a serious injury arising from a stab wound;[7]
[7]A report from the Victorian Institute of Forensic Medicine was provided to the Court by the Respondent on 27 April 2021, and medical records were provided on 26 April 2021.
(j) Police searched Jessica’s unit and seized a number of items – including bloodied clothes and a knife possibly matching the dimensions of TYS’ wound. Blood samples were also located in the unit and on the footpath outside. DNA results are not yet available;
(k) Police then attended TS’ home and she was placed under arrest. During her arrest she resisted, and twisted the finger of one of the officers while being handcuffed. TS continued to resist, and was taken to ground. She was then transported to Portland Police Station, where she was interviewed;
(l) At approximately 3:00am on 3 December 2020, police searched TS’ residence. They did not locate the knife used to stab TYS. TS was charged, and then remanded in custody.
It must be noted that the matters above are allegations, and the Applicant is entitled to the presumption of innocence. Having reviewed the ‘Facebook live’ transcript it appears to this Court that this was a very confused incident, in which it appears everyone was behaving badly. It is somewhat unclear from the transcript exactly what occurred in the lead up to the stabbing.[8] It would be premature to make any further comments on this topic at this early stage, in advance of the listed committal proceeding.
[8]I note for example that shortly before TYS is injured, TS says that TYS was holding her by the throat, see 17. Later, she reiterates that TYS grabbed her by the throat see 20.
Other outstanding charges
TS is said to have been involved in an incident in October 2020 prior to the incident giving rise to the Elford charges. She had not been charged in relation to that incident prior to the Elford charges being laid. However, she has now been charged on summons over that matter by Informant Constable Mitchley (‘Mitchley charges’).[9] The Mitchley charges are next listed for a Mention at Portland Magistrates’ Court on 25 May 2021. The Mitchley charges involve allegations of criminal damage, assault emergency worker, resist emergency worker (in each case a police officer) and breach of the peace.
[9]That summons is dated 10 December 2020, and the charges are: Charge 1: Intentionally and without lawful excuse destroying or damaging property pursuant to s 197 of the Crimes Act on 25 October 2020; Charge 2: Assault emergency worker (summary) pursuant to s 51(2) of the Summary Offences Act 1966 (Vic)(‘Summary Offences Act’) on 25 October 2020; Charge 3: Resist an emergency worker (summary) pursuant to s 51(2) of the Summary Offences Act on 25 October 2020; and Entering a place in a manner likely to cause a breach of the peace pursuant to s 9(1)(g) of the Summary Offences Act on 25 October 2020.
The background to this incident is that TS had been in a long term relationship with another female, Nikita, for 13 years, which had ended some months earlier. Nikita had since formed a new relationship with TS’ neighbour, Kelvin. Both were at Kelvin’s address on 25 October 2020 when it is alleged that:
(a) At 6.15pm, TS attended the residence and verbally abused Kelvin. When asked to leave, TS was verbally abusive and eventually smashed a bottle of wine through the rear windscreen of Kelvin’s car;
(b) Police later attempted to arrest TS in the vicinity of her own home but she resisted arrest by swinging her arms and pushing her legs against the doors of the divisional van, before spitting at one of the police officers. During a subsequent interview, TS made partial admissions to the alleged offending.
Change to the parties’ positions at the oral hearing on 27 April 2021
Both parties’ positions changed between the filing of their written material,[10] and their ultimate positions expressed at the oral hearing.
[10]In addition to their Affidavits, both parties filed written submissions on 26 April 2021.
Initially, the Applicant submitted that she could be bailed to her usual address, which was across the road from the residences where the incidents, the subject of the Elford and Mitchley charges, had occurred. TS’ father’s address was put forward as an alternative bail address. However, at the oral hearing, the Applicant submitted that TS be bailed to her father’s address, which is further away (approximately 20 minutes’ walk). TS does not drive.
Further, while the Respondent initially submitted in their written material that compelling reason was not made out, ultimately compelling reason was conceded, and thus the principal issue in dispute at the oral hearing was whether TS presented an unacceptable risk.
As such, while I acknowledge and have considered the written material filed by both parties, the oral submissions and evidence given in this matter before me on 27 April 2021 took on prominence. Accordingly, this ruling chiefly deals with those submissions and the evidence given during the hearing.
Criminal and Bail History
TS has a limited criminal history. She has never been subject to a Corrections Order. She has no history of assaults or any violent criminal offending.
She has limited prior history for property damage and dishonesty offences dating back to 2006. Between 2009 and 2015, TS appears not to have engaged in any offending.
In 2017, TS received a fine and conviction for two counts of failing to answer bail. She otherwise has no history of bail offences. She received a small fine in 2016 for contravening an adjournment order, but has otherwise been compliant with two other undertakings.
Family Violence Intervention Orders (‘FVIVO’)
There is a current interim FVIVO in force where TS is the Respondent and her former partner, Nikita and another related person are the affected family members (‘AFMs’). The Order was granted on 27 October 2020, in response to the incident which led to the Mitchley charges. The Order prohibits TS from having any contact with either AFM. That Order will remain in force until the matter is determined on a final basis.
TS was not present in Court when the Order was made.
The Applicant’s subjective circumstances
TS is 41 years old. She is of Aboriginal and Torres Strait Islander descent on her mother’s side. TS’ mother left her when she was an infant, so TS has limited details about her ancestry. TS has contact with members of the Aboriginal community in Portland.
TS ordinarily resides in government housing in Portland, and has lived in the same unit for the last 19 years. The relevant housing authority in Portland has confirmed TS is still the tenant of that property.[11]
[11]Email to Applicant solicitor from Portland Housing Team dated 15 April 2021, and forwarded to the Court on 22 April 2021.
When in the community, TS receives a Job Seeker payment.
TS has two children, a son, who is 16 years old and a daughter who is 20 years old. TS’ daughter lives just over the South Australian border. TS’ son lives with TS’ father. TS’ father is 68 years old and lives in Portland. He has cared for her son while she has been in custody. TS’ father has some ongoing health issues. TS’ children and her father have all visited her while she has been in custody, and are all supportive of her.[12] There have previously been family violence incidents between TS and her son, resulting in a current FVIVO against her son, for TS’ protection, with ‘safe contact’ conditions.
[12]Transcript of Proceedings, 27 April 2021 (S ECR 2021 0087, Justice Jane Dixon)(‘TN’), 12.
TS has Attention Deficit Hyperactivity Disorder (‘ADHD’), for which she is prescribed Ritalin. She also suffers from depression and anxiety, and is prescribed Quetiapine and Venlafaxine.[13] She has a history of occasional alcohol and methamphetamine use.[14] TS has been engaged intermittently with a psychologist over the last few years, and is said to have a therapeutic relationship with her GP.[15] No material from either practitioner was filed in support of this application.
[13]CISP Remand Outreach Program Report (‘CROP Report’) dated 18 February 2021, annexed to the Affidavit in Opposition, being Appendix 1 to the Informant’s Report at Exhibit LM-4 to the Affidavit in Opposition.
[14]As the CROP Report indicates.
[15]Crop Report, 2.
Whilst in custody, she has completed the following courses through Box Hill TAFE:
(a) Infection control short course;
(b) Certificate I in Information, Digital Media and Technology;
(c) Certificate III in Cleaning Operations ; and
(d) Foundation OHS
TS received a grade of ‘competent’ in all of the above courses.
Applicable law
In applying and interpreting the Act, the Court is to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘The Act’).[16] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst taking into account the presumption of innocence and right to liberty.[17]
[16]The Act, s 1B(2).
[17]The Act, ss 1B(1)(a) and 1B(1)(b).
Step 1: Show compelling reason test
Pursuant to s 4AA(3) of the Act, because charges 1 and 2 of the Elford Charges are Schedule 2 offences within the meaning of the Act,[18] and because none of the circumstances under s 4AA(2) of the Act apply in this case, TS must satisfy the Court that a compelling reason exists that justifies the grant of bail.[19] In determining whether a compelling reason is established, pursuant to s 3AAA, I must take into account the relevant surrounding circumstances, which includes the factors set out at s 3A of the Act regarding vulnerability that arises from TS’ Aboriginality.[20] It is clear from the authorities that a compelling reason can be established by a combination of circumstances.[21]
[18]The Act, Sch 2, Item 6.
[19]The Act, ss 4C(1A) and 4C(2).
[20] The Act, s 4C(3).
[21]Re Koshani [2019] VSC 678.
Step 2: Unacceptable risk
Even where the Court is satisfied that a compelling reason exists, the Court must refuse bail if the Respondent discharges the burden of establishing an unacceptable risk that if released on bail,[22] TS would engage in any of the conduct captured by s 4E(1)(a) of the Act, and that the risk is unacceptable.[23]
[22]The Act, ss 4D(1)(b), (3).
[23]The Act, ss 4D(1)(b), (2).
Under s 4E(3) of the Act the Court is again directed to take into account the ‘surrounding circumstances’, which includes the factors at s 3A concerning TS’ Aboriginality, in determining whether there is any relevant risk and whether it is unacceptable. The Court is also directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk.
I note that s 3A was added to the Act in 2021, in response to recommendations from the Victorian Law Reform Commission. In the second reading speech for the amending act,[24] the responsible minister noted that ‘the VLRC noted that Aboriginal Australians are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system…’.[25]
[24]The Bail Amendment Act.
[25]Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007), cited by Bell J in Re SE
Delay and COVID-19
Potential delay as a result of the COVID-19 pandemic gives rise to consideration of the principles to be applied in the context of bail expounded by Beach JA Re Diab.[26]
[26][2020] VSC 196, [38].
The Applicant’s arguments in favour of bail
Compelling reason
While the Respondent concedes that the Applicant has made out a compelling reason, it is useful to set out briefly what the Applicant submitted were the combination of matters that demonstrate a compelling reason exists justifying a grant of bail. The Applicant relied on the following:
(a) The delay in this matter being finalised (due to outstanding evidence, and delays within the Court system caused by COVID-19);
(b) The additional hardship generally of being in custody caused by COVID-19, and to the Applicant specifically being a vulnerable person arising out of her Aboriginality, and diagnosis of ADHD. Counsel for the Applicant noted during the hearing that TS was not receiving Ritalin in prison which was prescribed for her in the community, although she has been receiving her other prescribed medications; and
(c) The availability of a stable bail address with her father and son in Portland and support in the community.
Unacceptable risk
In relation to risk, the Applicant chiefly relied on the evidence of her father and Bradley Sprague, an Alcohol and Other Drugs Worker at the Dhauwurd Wurrung Elderly and Community Health Service (‘DWEC’)[27] given at the oral hearing. In general terms, the evidence of TS’ father and Mr Sprague was that TS would be supported in the community to comply with her bail conditions, though it would ultimately be her responsibility to keep the appointments made for her and to comply with conditions of bail.
[27]Terrie Stewart, Koori Co-ordinator from the County Court of Victoria was also present at the hearing, and had assisted to facilitate the involvement of Mr Sprague in this matter.
TS’ father told the Court that he and TS’ son were very keen for TS to return home to live with them. He also told the Court that he and TS’s son have support workers attending their home regularly to assist them. He confirmed he is himself seven years sober, does not take drugs, and that his was an alcohol and drug free household. He also told the Court that he would do his best to support his daughter to comply with bail, and believed that he would have to report to police any breaches of bail conditions, for example drinking alcohol, although he did not think TS would be so silly as to do anything that might result in her returning to custody.[28] He also confirmed that while he does not drive,[29] his home is very close to public transport. He was aware of the issues TS had had with neighbours and friends near her usual previous address, and confirmed he could assist her to keep away from those people.[30]
[28]TN, 23.
[29]Counsel for the Applicant confirmed the Applicant does not drive either.
[30]TN, 23.
In relation to the previous incidents between TS and her son, both TS and her father told the Court that TS son’s past behaviour was largely due to him not being medicated, and now that he is medicated, there are no issues.
Mr Sprague confirmed that DWEC is primarily a medical clinic, that provides a range of other services including mental health support, drug and alcohol support, cultural services, and community outreach.[31] He told the Court that, if bailed, TS would be allocated a case worker at DWEC and could be tracked as a forensic patient, with a specific program mapped out for her within 24 hours of her release.[32] He was confident DWEC could assist her to meet her bail obligations and to engage in a program tailored to address her needs in a culturally safe environment, that could include mental health support, alcohol and other drugs counselling, and a weekly women’s group.
[31]TN, 26.
[32]TN, 32.
Mr Sprague confirmed that a Youth Worker from DWEC currently works with TS’ son. He confirmed DWEC would be able to work with TS’ existing practitioners, including her psychologist, in a manner that would best suit her. It was apparent from Mr Sprague’s evidence that DWEC has experience dealing with people on justice related orders, and reporting breaches. He was confident that DWEC could assist TS to comply with her bail through having regular contact with her and working out how they might be able to address any issues before they escalate.[33] He was also confident that if needed, TS could be connected with a mental health worker from their service within 24 hours of being granted bail.
[33]TN, 29.
Mr Sprague also told the Court that he was familiar with some of the people involved in the incidents the subject of the charges against TS. In fact, he confirmed he is TYS’ current support worker, and therefore would allocate a different worker to TS. Mr Sprague said that the Applicant could be assisted to navigate the avoidance of those associated with the past incidents and confirmed DWEC would assist TS to build ‘pro-social’ relationships.[34] He noted also that DWEC can assist TS to liaise with either Housing Victoria or Aboriginal Housing to locate a more suitable long-term housing option, and assist her to communicate with job seeking services and liaise with Centrelink.
[34]TN, 19.
Counsel for the Applicant submitted at the hearing that TS would re-engage with her GP and psychologist in Portland if granted bail, in addition to programs offered by DWEC, and would comply with conditions of bail requiring the same.
Respondent’s opposition to bail
At the oral hearing, Counsel for the Respondent conceded that their main concern was ensuring there were suitable supports in the community for TS, as she was ‘a person that should not be in custody, as long as there were proper supports in place.’[35]
[35]TN, 18.
Prior to the further evidence about those supports from the Applicant’s father and Mr Sprague, the Respondent initially maintained a concern that there was not sufficient information about suitable community support to allay the Informant’s concern about TS’s risk, in light of what the Respondent characterised as the ‘underlying cause’ of the offending – being issues with relationships with neighbours and friends. The Respondent continued to oppose the application on the basis that the Applicant posed an unacceptable risk of endangering the safety and welfare of any person; and interference with a witness or otherwise obstructing the course of justice in any manner; and/or committing further offences.
However, ultimately, after hearing the evidence of both the Applicant’s father and Mr Sprague, the Respondent conceded that opposition to bail had lessened. The Informant had input into the substance and wording of protective bail conditions proposed by the Court.
Analysis
Is there a compelling reason that justifies the grant of bail?
I accept the evidence of Mr Sprague and the Applicant’s father given during the oral hearing.
I am satisfied that a compelling reason is established by the combination of the following factors:
(a) It is TS’ first time in custody;
(b) The factor of delay before trial caused by COVID-19;
(c) The particular hardship in custody caused by:
(i) COVID-19;
(ii) The fact that in custody, TS is a very long way from family members in Portland.
(d) That she is a vulnerable person both by reason of her Aboriginality, but also by reason of her ADHD and usual need for medical and care from her usual practitioners;
(e) That she has a limited prior criminal history;
(f) Her behaviour on remand, in which she has undertaken a number of courses; and
(g) Her presentation before me at the oral hearing, which seems to indicate that she is taking her situation very seriously, and that she appears quite lucid and sensible about her approach.
I have also take into account the evidence from her father, and from Mr Sprague, as to the support that they can put in place for TS in the community, along with her pre-existing relationship with a psychologist, who is usually able to attend to the Applicant.
As such, I am satisfied that the Applicant has discharged the burden of establishing compelling reason that justify granting bail in this case.
Does the Applicant pose an unacceptable risk of engaging in conduct described in s 4E(1) of the Act?
All of the above matters that constitute a compelling reason (including the availability of a safe bail address with her father and son), in my view, are also relevant in considering the issue of unacceptable risk that has been raised by the Respondent.
It is acknowledged that bail is not without risk in circumstances where the allegation involves, as it does here, a serious stabbing, and where there is some animosity with other members of the community.
However, in my view, the risk can be managed in this case for the reasons that I have already mentioned, which include that TS can be bailed to live with her father.
TS’ father has indicated that it is an alcohol and drug free household, and that the household is managing well with the support of some social workers already attending. Further, he said that both he and the Applicant's son are keen to have her return to the community and live with them. TS' father does appear to understand the importance of her keeping away from past associates, and particularly from the locale where the incidents the subject of the Mitchley and Elford charges occurred.
I also take account of Mr Sprague’s evidence. He indicated in detail the kind of support and supervision and counselling that can be provided to TS, including a mental health support worker, assistance with applying for alternative long term housing elsewhere from her usual residence, and drug and alcohol support.
It is also apparent that the Applicant is in a position to renew contact with her medical practitioner and her psychologist if granted bail, and that will be in her interests.
During the oral hearing, TS expressed a commitment to staying away from trouble and seeking employment. She has shown a level of commitment in undertaking a number of courses in custody while she has been on remand. She has been on remand for a reasonable period of time now and has had an opportunity to reflect on her circumstances. It seems she has also been in contact with her 20-year-old daughter who is also very supportive and keen to renew contact with her mother.
In conclusion, it is my view that with a number of stringent bail conditions, TS is not an unacceptable risk of committing offences on bail or of endangering the welfare of members of the public or interfering with witnesses. Whilst not put forward as a specific concern, I also do not think she is an unacceptable risk of failing to answer bail.
Accordingly, bail is granted.
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