Tamo v Director of Public Prosecutions
[2016] VSC 89
•4 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0011
IN THE MATTER of an Application for Bail by Merime Tamo
Between:
| MERIME TAMO | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2016 | |
DATE OF JUDGMENT: | 4 March 2016 | |
CASE MAY BE CITED AS: | Tamo v DPP | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 89 | |
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CRIMINAL LAW - Application for bail – Applicant initially charged on summons with offences alleging violence against former partner – Charges withdrawn after complainant made a “statement of no complaint” – Complainant subsequently alleged applicant threatened to harm her unless she withdrew allegations – Applicant then charged with attempting to pervert course of justice, family violence charges revived and new charges of family violence laid – Complainant subsequently alleged applicant raped her at the same time as the incidents giving rise to the first set of family violence charges – Whether applicant in a “show cause” position – Whether applicant, if granted bail, would present an unacceptable risk of offending and/or of interfering with a witness – Residence – Community support – Strong work history – Bail ultimately not opposed by Director – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Dane QC with Mr M Goldberg | Valos Black & Associates |
| For the Respondent | Mr N Batten | John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by Merime Tamo.
Mr Tamo is charged with numerous offences committed against or arising out of his relationship with his former partner. The charges include rape, stalking, assaults, threats, attempting to pervert the course of justice and damaging property.
Mr Tamo has been in custody since 21 August 2015, when some of the charges were laid. He was refused bail in the Magistrates’ Court on 22 August 2015 on the basis that there was thought be an unacceptable risk that he would commit offences if released on bail. On 21 September 2015, he was refused bail again by the same court on the same basis, and on the additional basis that he had failed to show cause why his detention in custody was not justified.
In October 2015, several other charges – including the most serious of them, rape – were laid over three separate days. No further applications for bail have been made since then.
Mr Tamo is due to face a committal proceeding in the Magistrates’ Court on 27 June 2016. It is expected that any trial would not be listed in the County Court until at least the end of this year.
For reasons that follow, I would grant bail, albeit on rather strict conditions.
The allegations and charges
In summary, the prosecution allege the following.
On 31 December 2013, police were called to a residence where Mr Tamo lived with his (then) girlfriend, the complainant. Mr Tamo was removed from the home and a family violence safety notice was served on him. An interim intervention order was also issued against him on 2 January 2014.
On 18 February 2014, the complainant made a statement to police alleging violent behaviour by Mr Tamo at their home earlier that day. Mr Tamo was charged later that day with damaging property, assault, aggravated assault and causing injury recklessly. A further interim intervention order was made against him on 21 February 2014.
On 8 March 2014, the complainant made a “statement of no complaint” to the police regarding the 18 February incident and those charges were ultimately withdrawn.
On 19 August 2015, the complainant made a statement to police alleging offences by Mr Tamo on 31 December 2013 and 1 January, 7 August and 13 August 2014. Mr Tamo was interviewed by police on 21 August 2015 and charged with stalking, threatening to inflict serious injury, theft, indecent assault, criminal damage, assault with a weapon, throwing a missile to injure and unlawful assault. He was then remanded in custody.
On 14 September 2014, the complainant made a further statement to police alleging that, in addition to the matters raised in her earlier statement, Mr Tamo also raped her on 1 January 2014. The complainant also said that she had made the statement of no complaint to the police regarding the 18 February incident because Mr Tamo told her to do so and she was afraid of him and fearful of what he would do if she did not comply with his wishes. The complainant requested that the charges relating to the 18 February incident be reinstated as she was now more supported and felt able to proceed with the case.
On 5 October 2015, Mr Tamo was charged with conduct endangering persons and destroying or damaging property relating to the alleged incident of 31 December 2013.
On 8 October 2015, Mr Tamo was interviewed by police and charged with rape and procuring sexual penetration by threats. These offences are alleged to have been committed on 1 January 2014.
On 13 October 2015, Mr Tamo was charged with attempting to pervert the course of justice together with the six charges (which had previously been withdrawn after the statement of no complaint) relating to the alleged incident on 18 February 2014.
While some of the charges against Mr Tamo have since been substituted or amended, the remaining charges allege rape, stalking, attempting to pervert the course of justice, theft, conduct endangering persons, procuring sexual penetration by threats, causing injury recklessly, indecent assault (two charges), destroying or damaging property (six charges) and common law assault (nine charges). These offences are alleged to have been committed during the period from November 2013 to 21 August 2015.
Mr Tamo denies the allegations.
The applicant’s personal circumstances
Mr Tamo was born in Cameroon and is 29 years old. While in Cameroon, Mr Tamo was a national champion in long jump and represented his country in international competitions on three occasions.
Mr Tamo came to Australia in March 2009. He has been living here on a provisional partnership visa as a result of his relationship with the complainant. After the charges were laid, his visa was cancelled. That visa was reinstated following a hearing in the Administrative Appeals Tribunal. He intends to apply for permanent residency and citizenship.
Mr Tamo has a strong educational and employment history. He holds a Bachelor of Social Science and a Diploma in Juvenile Justice. Prior to his arrest, he worked as a supervisor at the Malmsbury Youth Justice Centre. He was also an AFL Community Multicultural Ambassador, is a qualified AFL umpire and was completing a Diploma in Management.
Mr Dane QC, who appeared with Mr Goldberg on behalf of the applicant, advised that, while he expected Mr Tamo would not be allowed to return to his former position at the Youth Justice Centre, his instructions were that another job (elsewhere) was available for him, if granted bail, although the details were uncertain at present.
It was proposed that, if released on bail, Mr Tamo would reside with his friends, Sani and Keila Biao, who are also from Cameroon and live with their three children in Thomastown. Mr and Mrs Biao’s residence is a considerable distance away from the complainant’s home. Mr Biao was also an outstanding athlete and it is proposed that he could assist Mr Tamo with community athletic coaching.
Mr Tamo and the complainant have a very young child. It is not proposed that Mr Tamo have access to the child while on bail. Mr Dane explained that the decision has been taken that it is preferable that there be no contact between Mr Tamo and the complainant while the criminal proceedings are on foot, which might occur were he to have child access visits.
Mr Tamo has no criminal convictions. In 2011, he had findings of guilt recorded, without conviction, at an appearance in the Magistrates’ Court on charges of public drunkenness, resisting police, acting in an indecent manner, refusing to state name and address and failing to answer bail.
The application is not opposed
While it had been foreshadowed (in the affidavit material filed with the Court) that the application was opposed, when the matter came on before me this morning, Mr Batten, who appeared for the Director, advised that his instructions were not to persist in that course. Mr Batten also proposed several conditions I might consider were I minded to grant bail. All of those conditions were agreed by Mr Tamo.
Mr Batten explained that, initially, it had been thought that, because he was charged with stalking, in order to be granted bail, Mr Tamo had to show cause why his detention in custody was not justified.[1] Counsel advised that, in the particular circumstances of this case, the Director was not in a position to establish the statutory preconditions that would place Mr Tamo in a “show cause” position, and that his instructions were not to seek to do so. In particular, there was no evidence that, within the preceding ten years, Mr Tamo had been convicted or found guilty of an offence of stalking; and, further, while the complainant had alleged a previous instance of violence by Mr Tamo when they were together in Thailand, Mr Batten explained that he was not in a position, on this application, satisfactorily to prove that, on an occasion other than those giving rise to the charge of stalking, Mr Tamo had used or threatened violence against the complainant.[2]
[1] See s 4(4)(b) of the Bail Act 1977 (Vic).
[2] See s 4(4)(b)(i) and (ii) of the Bail Act 1977 (Vic).
Mr Batten also advised that, while the informant had real concerns that Mr Tamo might commit an offence or interfere with the complainant as a witness were he to be granted bail, it was accepted that, on the material before the Court and in light of the proposed conditions of bail, the Director was unable to establish an unacceptable risk that either of those things would occur.
Conclusions and orders
In my view, those were proper concessions to make. In the result, on the material before the Court and in light of the Director’s carefully considered concessions and the proposed conditions, I am not satisfied that there is an unacceptable risk that, if granted bail, Mr Tamo would commit an offence or that he would interfere with witnesses. Bail must be granted in consequence.
Accordingly, Mr Tamo is admitted to bail on his own undertaking with the following conditions:
1.The applicant is to report to the officer in charge of the Epping Police Station every Monday and Friday between 6:00 a.m. and 9:00 p.m.
2.The applicant is to reside at [Mr and Mrs Biao’s residence in] Thomastown in the State of Victoria.
3.The applicant is to surrender any passports or travel documents in his possession to the informant within 24 hours of being granted bail.
4.The applicant is not to enter any points of international departure.
5.The applicant is not leave the State of Victoria.
6.The applicant is not to contact any prosecution witness, either directly or indirectly, other than the informant.
7.The applicant is to remain at his place of residence in Thomastown between the hours of 9.00 p.m. and 6.00 a.m. (“the curfew hours”).
8.The applicant is to present himself at the front door of his residence during the curfew hours, when requested to do so by police.
9.The applicant is not to attend the suburbs of Box Hill, Ashwood or Ashburton.
10.The applicant is to appear at the Magistrates’ Court at Melbourne on 27 June 2016 and thereafter as directed by that court.
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