Re Wilio
[2020] VSC 677
•14 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0212
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by NORDEN WILIO |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 October 2020 |
DATE OF JUDGMENT: | 14 October 2020 |
CASE MAY BE CITED AS: | Re Wilio |
MEDIUM NEUTRAL CITATION: | [2020] VSC 677 |
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CRIMINAL LAW – Bail - Murder of two men by the use of a double-barrelled shotgun from close range – In context of a planned armed robbery – Eye witness would implicate accused – Some supporting evidence - Case of reasonable strength – Delay not excessive – COVID-19 issues - Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Desmond | Emma Turnbull Lawyers |
| For the Respondent | Mr R Gibson QC with Mr G Hayward | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on charges he faces of the attempted armed robbery and murder of one man, and the murder of his co-offender in the attempted armed robbery. The alleged offending took place on 4 March 2019.
Murder is a Schedule 1 offence under the Bail Act 1977 (‘the Act’). As a result, I am required to refuse bail unless the applicant satisfies me that exceptional circumstances exist that justify the grant of bail.
Procedural history
The applicant has been in custody since his arrest on 26 March 2019. This is his first application for bail.
Between 14 May 2019 and 30 November 2019, the applicant served sentences imposed upon him by the Magistrates’ Court for unrelated offending.
The applicant was committed for trial following a contested committal on 4 October 2019. The original trial date of 4 May 2020 was vacated due to the effects of the COVID-19 pandemic. Preliminary argument is listed to commence before me on 7 December 2020. The trial is listed for 17 May 2021. By that time, taking into account the period of remand during which the applicant was serving sentence, he will have been in custody solely on remand for these charges for 582 days.
The alleged offending
The applicant is charged with the murder of one of his associates, Ali Ali (‘Ali’), and of Deniz Hasan (‘Hasan’), who was the target of an attempted armed robbery by the applicant and Ali.
The applicant is alleged to have intentionally shot and killed Hasan, and to have accidentally shot Ali while trying to shoot Hasan. In relation to the death of Ali, the applicant is charged with common law murder (relying on the doctrine of transferred malice) and, in the alternative, statutory murder occurring in the course or furtherance of the attempted armed robbery of Hasan. He is charged with common law murder in respect of Hasan.
It is alleged that on the afternoon of 4 March 2019, Ali and an associate, Ibrhim El Ali (‘Ibrhim’) made a decision to purchase some cannabis and engaged Ibrhim’s brother, Ali El Ali (‘AEA’), to liaise with Hasan, who was a cannabis dealer. AEA arranged to meet Hasan in Huntley Court, Meadow Heights.
Hasan drove to a pre-arranged location with his associate, Josip Civcija (‘Civcija’). Ali and Ibrhim were driven to Ellam Court, Meadow Heights, close to Huntly Court, by a friend named Bakopoulos. They walked through a paddock before Ibrhim met Hasan in Huntly Court as Ali hid nearby. Hasan provided Ibrhim with a small sample of cannabis. Ibrhim noticed a significant amount of cannabis in the boot of Hasan’s vehicle.
Ibrhim provided the sample to Ali, informing him of what he had seen in the boot of the vehicle. The two men returned to Bakopoulos’ vehicle. Ali requested that he drive them to the applicant’s premises in Broadmeadows. Ali attended inside before returning with the applicant, who allegedly had a shotgun secreted in his jacket.[1] Bakopoulos drove all three men back to Ellam Court. At the same time, Hasan arrived in the area to the south of Ellam Court.
[1]It is not alleged on the prosecution case that Bakopoulos and Ibrhim were aware of the weapon at that time.
The applicant and Ali approached Hasan. An argument occurred between Ali and Hasan, during which the applicant produced the shotgun. After being shown by Ali that the shotgun was loaded, Hasan fled the scene towards Huntly Court. He was pursued by the applicant and Ali, who, it is alleged, intended to rob him of his cannabis.
On his arrival back at Huntly Court, Hasan tried to get into his vehicle, in which Civcija was seated in the front passenger seat. Hasan tried to get into the driver’s seat but was dragged from the car by Ali and hit across the head with the shotgun by the applicant.
While Hasan struggled with Ali, the applicant discharged the firearm towards them, intending to shoot Hasan, but striking Ali to the torso instead. He then discharged the firearm a second time, striking Hasan to the head. Ibrhim witnessed these events from close by, as did Civcija who watched from the passenger seat. Residents in the area heard two shots in quick succession. Ibrhim ran away after the second shot.
Civcija went to the aid of Hasan, who had fallen to the ground. The applicant helped Ali into a nearby shopping trolley and pushed the trolley to a point in Morris Court, Meadow Heights, where the trolley tipped over and Ali fell to the footpath, screaming in pain. At some point whilst in Morris Court, it is alleged that the applicant disposed of two shotgun cartridges and a pair of Ansell gloves in a drain, where they were later recovered by police. The applicant shortly thereafter fled the scene in a motor vehicle driven by Samar El Hussein (‘El Hussein’), whose sister had been summoned to the location by the applicant. Upon being dropped off by El Hussein some distance away from the crime scene, the applicant told her not to say anything or he would hurt her.
Police and ambulance paramedics arrived at the scene of the shootings. Hasan was unconscious and could not be revived. Ali was initially conscious and breathing, but soon lapsed into unconsciousness and died at the scene.
Post mortem examinations revealed that the shotgun blast to the torso of Ali had entered on the left lower anterior chest wall, causing significant internal injury to the lung, left ventricle of the heart, hemidiaphragm, stomach, spleen, and major internal abdominal blood vessels. There was significant bleeding into the chest and abdominal cavities. The cause of death of Hasan was a shotgun wound to the head, with the wound situated on the right side of his face, involving pellet abrasions across the right side of his head and neck and a spread of approximately 24cm.
During a crime scene examination of Huntly Court, a black Raiders cap was located. In a drain in Morris Court, police recovered the pair of gloves and two shotgun cartridges mentioned earlier. Examination of the Raiders cap and one of the gloves found in the drain revealed the presence of DNA consistent with being the DNA of the applicant.[2]
[2]In each case, the statement from the DNA scientist indicated, in respect of those findings, that ‘The DNA evidence is 100 billion times more likely if Norden Wilio is a contributor’.
The applicant was arrested at his home in Broadmeadows on 26 March 2019. He provided a ‘no comment’ interview.
Personal circumstances
The applicant was 23 years old at the time of the alleged offending and is now 25. He was born in Australia as the eldest in a sib-ship of four. He has spent a significant portion of his life in Dubai, having moved at a young age and remained there until he was 17. The applicant has a limited employment history, largely consisting of casual work as an apprenticed mechanic. He reportedly completed three years and eight months of his apprenticeship through the Kangan Institute.
Criminal history
The applicant has a short but significant criminal history. On 29 June 2017, he was convicted of possessing an unregistered general category handgun and several dishonesty offences. He was sentenced to a 12 month community correction order (‘CCO’). On 14 May 2019, while on remand in the present matter, the applicant was found guilty of contravening the CCO imposed on 29 June 2017. He was re-sentenced on the original offences to an aggregate term of six months’ imprisonment. Then, on 30 July 2019, while on remand in the present matter, the applicant was sentenced to four months’ imprisonment for various driving offences, to be served concurrently with his pre-existing sentence.
The applicant has no convictions for failing to answer bail, but the material indicates that on seven occasions in 2016 and 2017, he failed to appear at court in answer to either a summons (four times) or a grant of bail (three times). Warrants for his arrest were issued.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 1 offence, as is the case here. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[3] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances[4], including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Section 4A(2).
[4]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[5] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[6]
[5][2004] VSC 17.
[6]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[7]
[7]See, for example, Re Brown [2019] VSC 751 (Lasry J).
The applicant’s submissions
Mr Desmond, for the applicant, relied upon a combination of matters in proof of exceptional circumstances, as set out in the written material and his oral submissions. These matters were:
(a) The strength of the prosecution case. Mr Desmond submitted that on the central issue of whether or not the applicant was the shooter, the case, whilst not weak, was not overwhelming. There was, he submitted, an arguable or triable issue. At the heart of the submission was the proposition that a conclusion that the applicant was the shooter would depend on an acceptance of the evidence of Ibrhim, whose credit would be subject to attack, for reasons expanded upon by counsel. One reason was said to be a ‘strikingly similar’ prior conviction Ibrhim has for a drug rip-off robbery. As for the other eye witness evidence, it was of limited use in establishing the identity of the shooter, and the incriminating conduct evidence was explicable by an innocent person panicking.
(b) Delay. Assuming the trial proceeds as currently listed, which could not safely be assumed, the applicant will have been in custody on remand for 582 days by the time of the trial. Whilst in the written material, the prospective delay was described as being ‘inordinate’, Mr Desmond did not make that submission. However, he submitted that 582 days in custody is a long time ‘for an innocent man’, and in particular, a person who has not been in custody before.
(c) Circumstances of custody. The applicant has had to deal with difficult conditions on remand due to the COVID-19 pandemic and his own deteriorating mental state. He is depressed and lethargic, with disturbed sleep.[8] He has suffered restricted hours out of his cell, the loss of personal contact with family and friends, the cessation of recreational and other programs, and ongoing anxiety as a result of fears for the future where the virus is concerned.
[8]A report of a consulting psychologist, Warren Simmons, dated 25 September 2020, was filed with the Court in support of the application.
(d) Limited criminal history. Mr Desmond submitted that the firearm found in the possession of the applicant was rusty, and there was no evidence that it was capable of operating, although it was found with ammunition which would fit the pistol. Furthermore, there was no evidence of the weapon having been used in connection with a crime. This was not as serious as some firearms charges, and there was no conviction for having used a firearm. As for the breach of the CCO originally imposed on that and other charges, that did him no credit, but the breach was not by further offending.
(e) Previous compliance with bail. While seven bench warrants had been issued against the applicant in the past, only three of these were for failing to appear on bail. He had not been charged or convicted of failing to answer bail, however, indicating that his explanation must have been acceptable to the authorities. Little weight should be given to the issue of the warrants.
(f) Strong family supports, static address and ties to the jurisdiction. Amongst other things, the affidavit of the applicant’s father was relied upon.
(g) Offer of employment. Mr Desmond relied on an offer of employment by a family friend at a business named Signature Tyres.
(h) The support of CROP/CISP. A report from CROP dated 8 October 2020 was pointed to.[9]
(i) Surety of $100,000. Mr Khaled Alameddine gave sworn evidence before me confirming his willingness to act as surety and to put up the sum mentioned.
[9]The report recommended the applicant for community referral, but indicated that ongoing case management was not required. No specific ongoing measures or supports were proposed.
On the matter of unacceptable risk, Mr Desmond relied on the above matters, as well as on other matters put before the Court which were summarised in paragraph 37 of his written submissions. In particular, Mr Desmond labelled the concern that the applicant might approach or contact Ibrhim as no more than speculation, there having been no approach of any sort made to date. The risk of such contact was a ‘very low level risk’.[10] Furthermore, there was no evidence to suggest that the applicant had ever indicated an intention to avoid facing the charges, or that he had the means to flee the jurisdiction should he wish to do so.
[10]Transcript 39.
Mr Desmond outlined some stringent conditions he submitted would be sufficient to further reduce risk to an acceptable level.
The respondent’s submissions
The material advanced in opposition to a grant of bail was contained in the affidavit of Christina Teague affirmed on 25 September 2020, containing exhibits including a report of the respondent Detective Leading Senior Constable Cashman, the written outline of submissions of Mr Gibson QC and Mr Hayward, and the oral submissions presented by Mr Hayward.
It was contended that the prosecution case should be viewed as being a strong one. Mr Hayward took the Court through the ‘planks of evidence[11]’ showing the strength of the case. It was pointed out that there was no evidence that Ibrhim was ‘criminally concerned’ in the attempted armed robbery as asserted by Mr Desmond. In a number of respects, there was evidence which supported the proposition that, as asserted by Ibrhim, the applicant was the person who carried out the shooting. He did not match the description given by Civcija of the attacker, whereas the applicant did. The prospect of Ali having himself been the shooter of Hasan and himself could be readily dismissed. Furthermore, the incriminating conduct evidence was important evidence strengthening the prosecution case. There would end up being a strong case that it was the applicant who shot the two deceased.
[11]Transcript 53.
The applicant’s criminal history, whilst relatively short, was significant, it was submitted. He has a prior conviction for being in possession of a pistol and ammunition. This was significant in circumstances where a firearm was used in the current offending, and it has not been recovered. There was a risk the applicant may have access to that firearm. Furthermore, whilst there were no convictions for failing to answer bail, it is very concerning that seven warrants have been issued by courts in the past in response to the applicant having failed to attend as required in answer to a summons or grant of bail. Also, he had failed in the past to abide by a CCO.
There was a real question mark, submitted Mr Hayward, as to the ability of the father of the applicant to exercise any real control over him. Furthermore, should the applicant be released on bail, he would be returning to the very community where the offending occurred and where witnesses live.
The delay which would occur in this case could in no way be described as being inordinate, and whilst the onerous nature of conditions in custody was acknowledged, there was no evidence that the applicant has experienced significant hardship by way of deterioration in his physical or emotional condition or any such thing.
Mr Hayward submitted that the matters relied upon by the applicant were not sufficient to amount to exceptional circumstances.
In respect of the question of risk, Mr Hayward submitted that there were a number of things pointing to the existence of significant risk posed by the applicant of all of the matters set out in s 4E of the Act. These things were summarised in the written and oral submissions, and I do not pause to set them out now.
Analysis
A sensible starting point in a consideration of the surrounding circumstances of this case is the first of the matters set out in s 3AAA, which is not to say, of course, that there is a requirement to consider the circumstances in any particular order.
The maximum penalty for murder is life imprisonment. The applicant faces prosecution for two murders allegedly carried out with the use of a shotgun, from which two shots were fired from quite close range. The shootings allegedly occurred in the context of a plan to rob one of the deceased. The offending alleged is of a very high order of seriousness.
As to the strength of the prosecution case, Mr Desmond stopped short of asserting that the prosecution case was a weak one. He described it as not being overwhelming, and asserted that there were triable issues. He focussed attention on the central issue, namely, the identity of the shooter, and submitted that on that issue, Ibrhim’s credit would be subject to strong attack. The prosecution position, on the other hand, was that the case is a strong one. It would be wrong to consider that the case of the applicant being the shooter would depend on the unsupported evidence of Ibrhim.
It is to be remembered, of course, that Ibrhim was the subject of lengthy cross examination at the contested committal hearing. No submission was addressed to me to suggest that he did not withstand the rigors of cross-examination with some success. He maintained his evidence that the applicant is the person who carried out the shootings. No submission was made on behalf of the applicant in pursuit of a discharge at the committal. The applicant was committed for trial in this Court, the Magistrate being of the view that the case passed the committal test.
At least insofar as the case can properly be assessed at this stage, it seems to me that there may be items of evidence, by way of other eye witness testimony, crime scene and forensic evidence, and evidence as to the conduct of the applicant, which may be supportive of the truthfulness of Ibrhim’s account implicating the applicant in the two murders. How his credit holds up in the face of the attack apparently to be mounted upon him remains to be seen.
As things stand at the moment, however, it would be difficult to assess the case as being anything less than reasonably strong.
In the case of a person facing prosecution for two murders, and hence, should he be convicted, a very long term of imprisonment, that assessment as to the strength of the case is very damaging for his prospects of proving exceptional circumstances that would justify a grant of bail. Amongst the other surrounding circumstances relied upon, there would have to be some very powerful matters pointing to the need for bail to be granted to justify such a course. To my mind, there are no such matters.
The likely delay in this case is not excessive. There is a short but significant criminal history involving the possession of a pistol and ammunition, which attracted, in the end, a term of imprisonment. The applicant has failed to comply with bail on several occasions. He has breached a CCO. The current conditions in custody, whilst onerous, have not led to a substantial deterioration in the mental or physical state of the applicant, albeit I note that the report of Mr Simmons does indicate that the applicant has developed a mood disorder. The family supports, offer of employment, and availability of a surety, are not in any way unusual in a case such as this.
In my view, notwithstanding the typically thorough and dogged submissions of Mr Desmond, the material relied on in support of this application has fallen a long way short of proving that exceptional circumstances exist that would justify the grant of bail. For that reason, it would be necessary for this application to be refused.
For completeness, I turn briefly to the matter of unacceptable risk. The witness Ibrhim is, to the applicant’s certain knowledge, a critical witness in the case against him. If the evidence of that witness is accepted by a jury, conviction on the charge of murdering Hasan, if not on both murders, would be inevitable. In those circumstances, the incentive for the applicant to seek to improve his position by interfering in some way with the witness may be quite strong. My understanding is that the applicant knows where to find Ibrhim should he have the opportunity to do so. Furthermore, there is evidence that he threatened another person in connection with these events with retribution should silence not be maintained. There are other important witnesses, also, whose location may be known to the applicant. Should the applicant be released into the community, the risk of him interfering with witnesses cannot be readily dismissed.
Such concerns would be magnified by a consideration of the seriousness of the alleged offending, and the fact that the weapon used to kill two people, which on the prosecution case, was removed from the scene by the applicant, has not been recovered.
Even had I considered that the applicant had achieved success in the first stage of the two step test of bail, I would have considered that there would be an unacceptable risk of the applicant engaging in the conduct contemplated by s 4E(1) of the Act, and that such risk would be unable to be mitigated by the imposition of conditions so as to be acceptable. For that reason, also, bail would have been refused.
Conclusion
For the reasons stated above, this application for bail must be refused.
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