Applicant v Respondent

B The circumstances of the alleged offending

1. It is alleged that, over the course of some months, the deceased collected deposits paid by customers of the applicant's business, but instead of passing that money onto the applicant, the deceased would keep it. On 14 and 15 October 2024, the applicant sent two text messages written in Turkish to the deceased which, I am told, translate to:

(a) 'Muhittin, 19 grand still hasn't hit the account today'; and

(b) 'I swear, your death will be at my hand'.

1. Then, on 17 October 2024, the applicant, his wife Oksan Akdag, and the deceased attended Craigieburn Police Station where the deceased signed a statutory declaration. That statutory declaration is not before me, but I am told that it says that the deceased collected $96,500 from customers for work completed by the applicant's business, used those funds for his own expenses, and agreed to repay the monies to the applicant within six months.

1. It is alleged that on 23 November 2024 at about 5:39pm, the applicant, the deceased and an associate of the applicant, Ismet Akdogan, met at a vacant block of land on Glossodia Way, Mickleham. The applicant, it is alleged, confronted the deceased and assaulted him, causing the deceased's ear to bleed from a laceration and bruising to his face. At 6:43pm, Mr Akdogan sent multiple text messages to his wife, including:

(a) 'We are in a vacant lot.. he is beating his enemy';

(b) 'I cant call';

(c) 'The moment is getting crazy'; and

(d) '140 thousand stolen'.

1. Mr Akdogan took a photograph which is not before me but, I am told, shows the applicant on top of the deceased and the deceased's ear bleeding.
2. That evening, the deceased was hospitalised at the Northern Hospital, Epping. He told the hospital staff that his injuries had arisen from a fall at a restaurant, during which he had struck his head on a table. He did not mention an assault to staff at the Northern Hospital.
3. The next morning, at about 8:25am, the applicant visited the deceased at the Northern Hospital. He took a video of the deceased in a hospital corridor, in which the deceased has a bandaged left ear. The applicant sent the video via WhatsApp to Mr Akdogan, who replied by sending to the applicant the photograph of the applicant allegedly assaulting the deceased.
4. Months later, on 1 March 2025, the applicant sent a series of text messages to his girlfriend, Kiyoco Escobar, which the respondent alleges relate to the assault of the deceased on 23 November 2024, including:

(a) 'And I only did couple smack when I bashed that guy';

(b) 'After my smack his ear come off half, it was hanging'; and

(c) 'And they did stitches and little but front of ear too'.

1. It is alleged that on 30 March 2025, the applicant told the deceased that he was going to collect payment from a customer for work that they had completed, and the pair travelled to a construction site on Supreme Avenue, Greenvale. The applicant called the customer, who told the applicant that the deceased had already collected the payment.
2. The applicant, it is alleged, then confronted the deceased. Between 12:10pm and 12:25pm, the deceased sent a series of text messages to an associate requesting money. The Informant has described the tone of those text messages as 'frantic'.
3. At about 12:16pm, the applicant called a friend of his, Zeki Ersoy. The call was overheard by Mr Ersoy's family. It is alleged that the applicant said: 'I'll give you an address, quickly come here now. I will kill this son of a bitch today'.
4. A short time later, at about 12:24pm, emergency services were called by a neighbour in relation to an assault occurring at the Supreme Avenue construction site. Police arrived at 12:39pm where, I am told, they spoke to the applicant and the deceased, took some photographs of injuries sustained by the deceased, then left after they determined that the deceased did not wish to make a formal complaint. I am told that this interaction was captured on the police officers' body-worn cameras.
5. At about 1:09pm, an associate of the applicant and the deceased, Gunay Kuyucuogullari, arrived at the Supreme Avenue construction site. Shortly afterwards, an audio recording was captured on the deceased's mobile phone in which, it is alleged, the applicant can be heard saying 'sneaky fuckin' bastard' and noises in the background that sound like slapping.
6. CCTV footage shows that the applicant left the Supreme Avenue construction site in his car at about 3:20pm. Mr Kuyucuogullari and the deceased were in the back seat. He drove to the Northern Hospital, where he parked in the ambulance bay and they sought assistance from paramedics. The deceased was unconscious. The applicant and Mr Kuyucuogullari, it is alleged, told staff at the Northen Hospital that the deceased had fallen from a truck. The deceased was transported to Royal Melbourne Hospital as he was suffering from bleeding on the brain.
7. The deceased died in hospital approximately two weeks later on 15 April 2025. An autopsy report, obtained the day before the application for bail, indicates that the deceased had various bruises over his body consistent with his being assaulted, but died from a cerebral haemorrhage that could have been caused by a blow to the head or could have been caused by a fall from a truck.

1. The applicant was arrested on 31 March 2025 and participated in a record of interview. He made admissions to using a pipe to assault the deceased on his body, but denied hitting him on the head or causing his injuries. He was released without charge.
2. On 17 April 2025, Ms Escobar (the applicant's girlfriend) sent a WhatsApp message to the applicant, which said: 'Your justice here is protecting yourself... self defence.... This 42 year old was not innocent!!!!'. It is alleged that Ms Escobar sent that message to the applicant in response to an earlier message about a media article that had been published about the deceased's death.
3. The applicant was re-arrested on 29 July 2025, and participated in a second record of interview. On this occasion, the applicant admitted to 'smacking' the deceased on the head once on 30 March 2025, but said that he did this in response to the deceased's kicking him. In relation to the alleged assault on 23 November 2024, the applicant said that he and the deceased had pushed each other, that he had shaken the deceased and otherwise denied causing the injuries shown in the photograph taken by Mr Akdogan.
4. As noted above, the applicant has been charged with intentionally causing injury to the deceased on 23 November 2024, and murdering the deceased on 15 April 2025 (being the date he died following the alleged 30 March 2025 assaults), and has been in custody since his arrest on 29 July 2025.
5. Mr Kuyucuogullari has, I was told, given two statements and has been interviewed. I was told that when he first spoke to the police he made no mention of any assaults and said he believed that the deceased had fallen. He later said that he was aware of the assaults in November 2024 but did not witness any assaults on 30 March 2025, and that he did not see the applicant get into, or fall from, the truck, but saw him on the ground beside the truck. None of these statements were before me.
6. It is alleged that while the applicant was at the Northern Hospital, he called his friend Mr Akdogen and that Mr Akdogan then travelled to the Supreme Avenue site where the assault, resulting in death, is alleged to have taken place. That Mr Akdogan did this is, it is alleged, established by phone data showing that he travelled to that area, and a 'pin drop' location he sent his wife at 4:18pm that day.
7. Mr Akdogan has refused to provide a statement and is to be compulsorily examined in the coming weeks. Accordingly, it is, at present, unknown what he might say.
8. It is alleged that the applicant spoke to the his girlfriend, Ms Escobar, for about 14 minutes from the hospital on 30 March 2025. Ms Escobar is also to be compulsorily examined in the coming weeks, and again, it is at present unknown what she might say.
9. There are also, according to the Informant, three neighbours who were eye-witnesses or potential eye-witnesses to the alleged 30 March 2025 assault. They have all refused to provide statements. Two of them have recently been compulsorily examined, and the other is to be compulsorily examined in the next few weeks. No transcripts of the two examinations that have already taken place have yet been prepared. The Informant, however, who heard the examinations, said that:

(a) The three witnesses are neighbours of the Supreme Avenue site;

(b) The first witness to be examined was the person who made the triple-0 call that led to the police arriving. She said that she saw and heard a male beating another male for about 45 minutes, including with the use of a pipe and including kicking him when he was on the ground, before she called the police. After the police had left, she was too distressed to keep watching but heard the assaults recommence after a third person had arrived. She assumed, from the victim's voice or cries, that he was a child. She was not asked, it seems, about whether she saw anyone fall from a truck;

(c) The second witness was the son of the first witness. He said he saw one person punching and kicking another person on and off for a long period of time. He saw the police arrive and saw that, after they left, the assault continued with punching and yelling or swearing. He saw a lot of punches above the waist, but did not see a pipe being used. It was not suggested that he saw anyone fall from a truck and I assume, in those circumstances, that he did not say that he did so; and

(d) The third witness, who is believed to have make 'more constant observations of the assault', is yet to be examined.

D Phone calls relating to potential witnesses

1. Prior to his arrest, as I understand it, telephone calls made to or from the applicant's phone and Mr Kuyucuogullari's phone were intercepted and recorded. The transcripts (and translations, as some of them were in Turkish) have not yet been prepared. But the Informant has listened to them and when they were in Turkish has been told the substance of what was said. The Informant gave evidence that the applicant spoke by phone with witnesses and that these discussions 'often involve discussing the witness evidence and statements in depth'. In her oral evidence, the Informant said that the applicant was 'highly suggestive' in these discussion as to what had occurred.
2. Shortly after being charged, the applicant was remanded at the Melbourne Assessment Prison and then transferred to the Metropolitan Remand Centre. I am told that the applicant made calls to his wife, Ms Akdag, and to his girlfriend, Ms Escobar. As these conversations took place while the applicant was in custody, they were recorded. The transcripts (and translations, as again some of them were in Turkish) have not yet been prepared. But, again, the Informant has listened to them and when they were in Turkish has been told what they say. The Informant swore that in those calls the applicant:

(a) Asked for his wife's assistance in coming up with a 'cover story' for the alleged incident on 30 March 2025;

(b) Asked his wife to speak to Mr Akdogan to ensure he 'remembers' that only an argument occurred on 23 November 2024;

(c) Asked his wife to arrange for an associate to make Mr Ersoy 'look bad';

(d) Asked his girlfriend to not speak to anyone but his solicitor;

(e) Spoke to his girlfriend about concealing their relationship; and

(f) Spoke to his girlfriend about coming up with 'alternate meanings' behind their messages if they are questioned.

1. In her oral evidence, the Informant said of these recordings:

It's the applicant speaking to his wife in particular and attempting to facilitate a number of witnesses, including ones that have not yet - um have - have not yet provided a statement, or have not yet been compulsorily examined. In particular, Mr Akdogan. In regards to approaching him and discussing and, I'll use the word 'reminding' or ensuring that he remembers certain points of information that will directly result in what we will be speaking to him about. Um there's also a number of calls made to Ms Escobar um that discuss her evidence and are again extremely suggestive and instructive as to what to say if she is approached by investigators again.

1. Because of the nature of the charges, the applicant must be denied bail unless he can establish that there are exceptional circumstances that justify the grant of bail.[1] In considering whether exceptional circumstances exist, I must take into account the 'surrounding circumstances'.[2] The surrounding circumstances are 'all the circumstances that are relevant to the matter' and include: whether the applicant would be sentenced to a term of imprisonment, and, if so, whether the time the applicant would spend remanded in custody if bail is refused would exceed a likely term of imprisonment; the nature and seriousness of the alleged offending; the strength of the prosecution case; the applicant's criminal history; and the applicant's personal circumstances, 'associations, home environment and background'.[3]
2. If I am satisfied that exceptional circumstances exist that justify the grant of bail, I must then grant bail unless I am satisfied there exists an 'unacceptable risk' that the applicant would, if released on bail, commit a Schedule 1 or Schedule 2 offence, endanger the safety or welfare of any other person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the conditions of bail.[4] When considering whether a risk of that type is an 'unacceptable risk', I must take into account, again, the surrounding circumstances and whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[5] All these tests are to be applied and interpreted having regard to both the overarching importance of maximising the safety of the community and persons affected by crime, but also the presumption of innocence and right to liberty of persons who have not been, and may never be, found guilty of the charges alleged against them.[6]

F Are there exceptional circumstances that justify the grant of bail?

1. The applicant submitted, in summary, that exceptional circumstances exist because the applicant is a hard-working man with no criminal record and a family dependent on his earnings, the Crown case is circumstantial, there will likely be a substantial delay before any trial, and a substantial surety is offered.

1. The applicant was born in Turkey in 1977, and emigrated to Australia with Ms Akdag in 2001. They have four children, aged between 14 and 18 years,. I am told that the applicant has the support of his wife and children, and is able to return to the family home. The applicant has clearly worked hard over many years building up his business, which has been successful. Importantly, he does not have a criminal record and it seems that this is the first time he has ever been in trouble with the police.
2. The applicant says that he currently has significant liabilities including: $38,300 of credit card debt; $116,000 for a vehicle loan; $146,000 for a truck loan; $117,000 for an excavator loan; and $1,216,000 owing between two mortgaged residential properties, being the family home and a property in Avondale Heights. The material exhibited to the affidavit in support, which was sworn by the applicant's solicitor, did not establish each of these liabilities, but I accept that the applicant has significant liabilities. The applicant's solicitors swore, I assume on information and belief, that the applicant is 'under significant financial strain' and under 'immense financial strain' and set out the liabilities referred to above. The affidavit said that without his release the family home and his children's welfare would be 'at grave risk' and that this financial stress was 'not speculative but immediate, supported by documents [which] are exhibited to this affidavit', and that the applicant's prolonged detention would 'create disproportionate hardship not only for him but for his innocent dependents'.

1. The applicant's counsel did not submit that the Crown's case was particularly weak, and it could not be so characterised, especially when evidence is still being collected, and where there is evidence that suggests that the applicant was assaulting the deceased on 30 March 2025 and that the deceased died of a blow or blows to the head suffered on that day, whether from the assaults or from a fall, and that at present there is no eye-witness that supports the applicant's contention that the deceased fell from a truck after any assaults had finished. However the applicant's counsel submitted, and I accept, that there are triable issues as to both causation and intention.

1. The applicant was arrested and taken into custody on 29 July 2025. The hand-up brief will be completed, but for some outstanding DNA evidence, within the next eight weeks. The DNA evidence is not due until early next year. It relates to a piece of plastic piping approximately a foot long, which, I assume, it is alleged was used by the applicant in his assault on the deceased on 30 March 2025. In circumstances where the applicant has accepted in a record of interview that he struck the deceased with a piece of pipe, it is difficult to see how the DNA evidence will advance matters much, unless I suppose, as was suggested by the applicant's counsel, it shows there is some hair on it which might go to indicating that the applicant struck the deceased's head (although I am not sure why DNA analysis would be required to determine whether or not there is hair on the pipe, rather than whose hair it is if there is hair.)
2. On the basis of the above, the applicant submitted that a committal mention could not be heard before February or March next year, and a committal would likely not be not be heard until late next year, with the result that any trial would not take place until about halfway through 2027, by which time the applicant will have been in custody for approximately two years.

1. The applicant's stepbrother, Murat Kali, has offered to provide a surety of $750,000 if the applicant is granted bail. Mr Kali resides in New South Wales and, he says, has no means to monitor the applicant's compliance with any conditions of bail on a daily basis, but has sworn in an affidavit that he 'will do everything within [his] power' to ensure that the applicant would not leave Victoria, if bail is granted.
2. The Informant suggested that Mr Kali had a criminal record such that he was not an appropriate person to provide a surety. I do not accept that. I approach this application on the basis that Mr Kali is and has been for many years a law-abiding citizen. Ultimately, the respondent submitted that it did not 'take issue with the provision of the surety and the amounts referred to'.

F.5 Conclusion - exceptional circumstances not established

1. Having considered all these factors and the information set out earlier in these reasons, I am not, however, satisfied that exceptional circumstances exist that justify the grant of bail. In particular, I note that:

(a) The applicant is not a young or vulnerable person;

(b) The applicant has been charged with a very serious crime, and it seems that he has at least accepted that he struck the deceased on the day that the deceased later died of head injuries, and, as I understand it, and as noted above, there is at present no one (other than him) who may be prepared to say that the deceased died from a fall from a truck rather than as a result of blows inflicted by the applicant;

(c) I accept that the applicant's business has ongoing commitments, and that if he is remanded in custody he will be unable to operate his business and that will result in financial loss to him and his family and may also result in the destruction of the business he built. But the affidavit in support did not provide the full picture of the applicant's family's financial position. The affidavit created the impression that the applicant had two loans secured by a property (or possibly two properties) in Sydney Street, Avondale Heights. The exhibited documents suggested that the applicant's family home was in Creekbridge Street in Craigieburn. There was nothing produced to suggest that this property was mortgaged. Also, based on the Informant's affidavit, and she was not cross-examined on this point, the applicant failed to refer to:

(i) A property at 15 Mealie Avenue Mickleham, in the name of his wife;[7]

(ii) A property at 17 Mealie Avenue, Mickleham, also in the name of his wife;

(iii) A property at 30 Labichea Street, Craigieburn, in the name of the business; and

(iv) A property at 34 Carroll Lane, Greenvale, in the name of his daughter;

(d) In these circumstances, I am not able to take at face value the assertions made by the applicant's solicitor on the applicant's behalf as to his financial position or the financial implications of his ongoing custody on the applicant and his family. Although, as noted above, I accept that the applicant's continuing custody would cause financial disadvantage to him and his family and would or could damage his business, and that this is a significant matter, I am not persuaded that it would result in the loss of their family home or 'disproportionate hardship' for him or his family;

(e) Although I accept that there have been some delays, I am not persuaded, if it be relevant, that the Crown has been dilatory in its preparation of this case. I accept the explanation offered by the Informant that there have been difficulties with preparing the evidence due to witnesses not being willing to cooperate with police in their investigations, and the need to get translations and then transcripts of recorded telephone calls. Further, I am not persuaded that there will necessarily be an 'inordinate delay' or a delay of the dimension put forward by the applicant, particularly with the potential availability of a 'fast track' process in this Court. Also, this is not a case where the period of time spent on remand would exceed any term of imprisonment if the applicant were to be found guilty, even if he is ultimately found guilty of some lesser offence than murder (if left to a jury); and

(f) The surety is generous, but in circumstances where the applicant is not a flight risk, and, as discussed further below, any concern that the applicant might breach a condition of his bail is directed more at the question of his interfering with witnesses, the provision of a surety even of this amount does not amount to an exceptional circumstance that would justify the grant of bail. The concern about the applicant contacting witnesses is a concern that he would do so in an undetectable manner and the provision of a surety would not adequately guard against that being done.

1. Ultimately, the circumstances of this application are not such that the test of exceptional circumstances is made out.

1. If I were satisfied that exceptional circumstances existed that justified the grant of bail, I would in any event have been satisfied that there is an unacceptable risk that the applicant, if granted bail, would interfere with witnesses and in that way obstruct the course of justice.
2. There are important witnesses, known to the applicant, who have not yet committed themselves on oath (or even in a signed statement). Based on the evidence of the Informant, which I accept for the purpose of this application, while noting that the relevant transcripts of phone calls have not yet been prepared, the risk of the applicant seeking to do this is very real. Based on that evidence, the applicant has already sought to influence witnesses either directly himself or by asking others to do so both in telephone calls prior to his arrest and from the prison facilities. It may be, as was suggested by his counsel, that he was doing no more than seeking to ensure that witnesses told the truth, as it were. The transcripts, when they are available, might support this characterisation. But on the basis of the present evidence, the risk that he was doing otherwise cannot be ignored and in my assessment is unacceptable in the context of a murder trial such as this. Further, this is not a risk that can be sufficiently ameliorated by the imposition of conditions such that the applicant not contact witnesses other than the Informant or keep a curfew or only have one mobile phone the details of which are provided to the Informant. There is an unacceptable risk that a person prepared to seek to influence a witness or a potential witness would not be prevented from doing so by a condition of bail, and the provision of a surety gives little comfort because of the prospect that any improper influence may be undetected. Also, and relevant to that point, the influence may be direct and in person, or may be, as the Informant said the applicant had sought in his phone calls, via requests made by others.

1. For the above reasons, the application for bail will be dismissed.

[1] Bail Act 1977 (Vic) s 4AA(1).

[2] Ibid s 4A(3).

[3] Ibid s 3AAA(1).

[4] Ibid s 1B.

[5] Ibid s 4E(3).

[6] Ibid s 1B.

[7] I should add, for completeness, that the Informant's report suggests that the applicant resides at this address.