Application for bail by DS [2021] VSC 332 (7 June 2021)

2 She has been charged by Detective Senior Constable McGowan ('the McGowan matter') with two charges of attempting to pervert the course of justice,[1] (Charges 1 and 2) one charge of perjury,[2] (Charge 3) committing an indictable offence whilst on bail,[3] (Charge 4) and contravene a conduct condition of bail[4] (Charge 5).

3 Charge 1 relates to 6 December 2020, being the day of the fatal shooting, and although the charge sheet only particularises that the applicant removed 'items' from the scene of a murder prior to police attendance, the informant's report clarifies that charge is based on evidence that the applicant can be seen in CCTV footage arriving at the address without a yellow shopping bag, but leaving the scene with a yellow shopping bag after the alleged gunman left the scene. The police rely on inferential reasoning to assert that the bag contained evidentiary items of potential relevance to the crime scene.

4 Charges 2 and 3 each relate to an allegation that the applicant made a sworn statement to police on 7 December 2020, in which she told lies about what she witnessed, and what she did, at the time of the shooting, thereby deliberately misleading the police.

5 Charge 4 would only be made out if the applicant were convicted of any of Charges 1 to 3. Charge 5 relates to the fact that the applicant was on bail for other matters when she visited the South Oakleigh address where the fatal shooting occurred as her attendance was in breach of curfew conditions imposed as part of previous bail.

6 The McGowan charges are listed for committal hearing at the Melbourne Magistrates' Court on 30 June 2021.

7 The following documents were filed on behalf of the applicant:

(a) First affidavit in support dated 24 May 2021 (sic) and filed on 23 May 2021;

(b) Second affidavit in support dated 23 May 2021 and filed on 23 May 2021;

(c) Surety Affidavit dated 30 May 2021 and filed on 31 May 2021; and

(d) Outline of submissions dated 3 June 2021 and filed on 3 June 2021.

8 In response the following documents were filed by the respondent:

(a) Affidavit in response dated 1 June 2021 and filed on 1 June 2021.

(b) Criminal record of KH.

9 The McGowan charges involve the following circumstances (I will anonymise certain named persons in these published reasons):

(a) The applicant and her close friend, DC visited TW at his Oakleigh South apartment at around 2.00am on 6 December 2020. Upon arrival they met KM[5] and NH, who were seated at a table smoking ice and drinking. After a while, the applicant and DC went out to the courtyard to smoke. While they were outside, at around 2.50am, an unidentified male wearing dark clothing and a hoodie entered TW's apartment from the rear courtyard, and after a brief verbal exchange with KM, shot him dead before fleeing the scene at 2.54am. The person who shot KM has not been identified by investigators.

(b) CCTV footage shows that the applicant left TW's address at 2.59am after the unidentified male departed the scene. PA told police in a statement dated 11 December 2020, that the applicant phoned him in the early hours of the morning on 6 December 2020 and asked him to collect her. He did so and brought her back to his own home address.

(c) TW called 000 at 3.02am, and police attended and searched the crime scene. Investigators were unable to locate drugs or drug paraphernalia or the mobile phone of TW, although they considered that these items should have been present based on other evidence. The police allege that the applicant conveyed these items from the scene in a yellow shopping bag which she is seen carrying away in the CCTV footage.

(d) On 7 December 2020 the applicant attended Oakleigh Police Station at their request and provided a sworn statement about what she witnessed and what she did around the time the deceased was shot ('the applicant's witness statement'). Police allege that she deliberately lied in that statement when she said:

(i) that the gunman was let into the courtyard of the apartment by TW.

(ii) that she herself was in the courtyard when the male gunman entered the apartment and that she left within a minute of the male entering the apartment (the applicant's witness statement did not mention being present at the address at the time of the shooting, but CCTV footage shows she departed five minutes after the alleged shooter left the address).

(e) Although not founding the basis for the perjury charge, police also allege that the applicant did not tell the police about the bag she removed from the address.

(f) On 30 December 2020, the applicant was interviewed about the allegations that she deliberately removed items from the scene of the murder, and knowingly told lies in her witness statement on 7 December 2020.

(g) The police allege the applicant admitted that her witness statement contained lies in that she falsely told police in her witness statement that TW let the unidentified male into the courtyard, and falsely said she left a minute later. When asked about the shopping bag that she can be seen[6] carrying away from the scene five minutes after the suspected shooter left, she said the bag contained a mobile phone and clothing that she had left there on an earlier occasion, and that she had retrieved it from the apartment before going out to the courtyard with DC.

(h) Police allege that the applicant could not account for her movements over the five-minute period before she left the crime scene address, that she admitted giving a false account in her record of interview, and that she gave as her reason for misleading police that she was frightened and did not want to be involved in the incident.

(i) At the conclusion of the interview concerning the McGowan charges the applicant was remanded in custody (on 30 December 2020).

10 Whilst on remand, the applicant made several phone calls to her parents and a call to KH ('the Arunta calls'). In those calls her mother spoke to her about having told lies to the police in her statement. The applicant told her mother, by way of explanation, that she feared for her life after the incident. She also spoke to her parents about arrangements for her father to retrieve a bag from DC. The prosecution alleges that these comments about the bag were references to the yellow shopping bag removed from the crime scene on the night of the shooting. The applicant also expressed a grievance against PA when she spoke on the prison phone to KH on 7 January 2021. She spoke of having a vision in which she 'caved his head in'.

Prior criminal history, previous grants of bail, and outstanding matters

11 The applicant had not been convicted of any offences prior to 6 and 7 December 2020, (the date of the alleged offending on the McGowan charges). However, she had entered two separate undertakings of bail prior to that date, and if convicted of the McGowan charges she would be in breach of those bail undertakings. She admits that by being at the address where the homicide occurred, at the time and date in question, she was in breach of a conduct condition regarding a night-time curfew in respect of bail granted in the Hall matters. The bail undertakings applicable to the applicant on 6 and 7 December 2020 are discussed below:

(i) On 22 April 2020, the applicant was granted bail in the Dandenong Magistrates' Court on 11 charges laid by Constable Hall ('the Hall matters'). The charges include negligently dealing with the proceeds of crime; dealing with property suspected of being the proceeds of crime; possessing a drug of dependence (five counts: ecstasy, hashish, Methylamphetamine, cannabis and 1,4 butanediol); going equipped to steal; possessing a controlled weapon; resisting an emergency worker on duty; and committing an indictable offence whilst on bail. These charges arise from the seizure of $7,920.50 in cash, drugs of dependence, and other items from a vehicle in which the applicant was a passenger on 5 April 2020. Bail was granted with conditions, including a curfew between the hours of 8.00pm and 8.00am each day (unless in the company of her parents). A contest mention has been set down for 27 July 2021

(ii) On 19 November 2019, the applicant was granted bail by police in relation to charges of burglary and theft (three charges) brought by Senior Constable Bonnett ('the Bonnett matters'). The Bonnett matters were disposed of along with other outstanding matters as part of a consolidated guilty plea in the Moorabbin Magistrates' Court on 26 March 2021. The applicant was sentenced to an aggregate term of 90 days' imprisonment (with 87 days reckoned as time already served).

12 The applicant is also on summons in two further matters:

(i) Leading Senior Constable McLaughlin charged the applicant with possessing a drug of dependence (cannabis). The charge relates to cannabis seized from a vehicle in which the applicant was travelling on 28 August 2019. The matter is next listed for mention in the Dandenong Magistrates' Court on 27 July 2021.

(ii) On 21 January 2021, Senior Constable Baido charged the applicant with burglary, theft, possessing a drug of dependence (1,4 butanediol), and possessing a controlled weapon (a Taser). It is alleged that the applicant and a co-accused stole a number of security 'fobs' from a Southbank apartment complex used to access the apartment carpark on 6 August 2020. The pair fled prior to police arriving at the complex. The car they had been using was found to contain a number of items including a Taser and a vile containing approximately 0.5 millilitres of 1,4 butanediol. This matter is next listed in the Melbourne Magistrates' Court for mention on 11 June 2021. It has been adjourned by police a number of times due to the brief not being available. The applicant is anxious to have the Baido charges dealt with as soon as possible.

13 The applicant is 36 years old. Prior to her remand, she resided with her parents in Murrumbeena and held intermittent employment in their Camberwell delicatessen.

14 The applicant claims she was introduced to methamphetamine three years ago by her long-term partner and that he inflicted family violence on her, leading to the breakdown of that relationship two years ago. She continued to use methamphetamine after the breakup in order to cope with psychological trauma she was still experiencing. She began to attract police attention in the past few years in the context of drug use and contact with other drug users.

15 Both parties agree that the 'exceptional circumstances test' applies to the current application because the applicant is accused of committing Schedule 2 offences in the McGowan matter[7] while on bail for another Schedule 2 offence in the Hall matter.[8] It is therefore common ground that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist justifying the grant of bail.[9]

16 In determining whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those prescribed in s 3 AAA(1) of the Act.[10]

17 If satisfied that exceptional circumstances exist, the Court must apply the 'unacceptable risk test'.[11] Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[12] In considering whether any relevant risk is unacceptable, the Court must again have regard to the 'surrounding circumstances' set out in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[13]

Evidence called in support of bail being granted

18 Counsel for the applicant, Mr Kounnas, called Maria Hutchison to give evidence in support of the current application. Ms Hutchison is Chief Executive Officer at The Cottage, a residential drug rehabilitation facility in Shepparton. A letter authored by Aaron Gilhooley, General Manager of The Cottage, confirms that a bed at the facility will be available for the applicant from 9 June 2021.[14] Ms Hutchison referred to a document that was provided to the applicant with the title: 'Being bailed to The Cottage.'[15] An initial assessment of the applicant was conducted by the General Manager of The Cottage, Aaron Gilhooley. That assessment was as to the applicant's willingness to change and how she would fit in to the community at the facility. She was found suitable.

19 Ms Hutchison then conducted a comprehensive assessment on 19 May 2021 regarding the applicant's drug and alcohol history. She used a Turning Point document, which was said to be a Victorian Government approved assessment tool. She said she looked for a willingness to change, lack of blame on others, and a sense of self-accountability. She had asked the applicant what was different this time, and the applicant spoke about her nephew, and about the 'wakeup call' she had in custody. The applicant mentioned past domestic violence and her desire to turn her life around. She admitted that her drug use had escalated to daily use with a cannabis and methamphetamine habit for the past 10 years. The applicant told Ms Hutchison that she was willing to 'live clean'.

20 The written report prepared by Ms Hutchison, dated 19 May 2021, stated that the applicant had attempted treatment at Malvern Private Hospital two years ago, but only lasted four days before she left and resumed drug use. The applicant reported that, in contrast to that time, she is now older and has a two-year-old nephew whom she wants to be a role model to. Ms Hutchison said the applicant had expressed that she wanted to live without drugs. The applicant was willing to embrace the structured program of education and recovery support and recognised she needed help.

21 Ms Hutchison recommended that the applicant be admitted to The Cottage for a minimum period of four months and that she be referred to Dr Professor Ed Ogden at Goulburn Valley Health for treatment of her addiction and underlying mental health issues.[16]

22 The Cottage program operates on a model of self-empowerment to help residents to change negative life patterns and to assist in their rehabilitation and reintegration into community. It requires residents to abstain from alcohol and illicit substances, undergo regular drug screening, participate in educational and therapeutic meetings and workshops, and comply with all rules at the facility. In the event that an individual residing at The Cottage as a condition of bail absconds from the facility or returns a positive urine screen, staff at The Cottage report such matters to the relevant police informant as soon as practicable.

23 In her oral evidence, Ms Hutchison was questioned about how staff at The Cottage could ensure residents did not have contact with undesirable associates or persons that their bail conditions prohibited contact with. She explained the limitation on access to phones in the first month of the program, and the oversight over any permitted calls made from the office. She also explained the steps that would be taken to ensure that all bail conditions were complied with, including any non-association conditions. Breach of bail by a resident is reported to the informant and the Shepparton police.

24 The applicant also provided a CISP assessment that had been prepared on 24 February 2021, prior to an unsuccessful application for bail in the Magistrates' Court of Victoria. That report described a significant drug history in the period before the applicant was remanded in custody on the McGowan charges. The applicant told the author of the CISP report that she was experiencing nightmares and flashbacks from abuse suffered in her previous relationship and had sought referral while in custody for help to address those issues. She reported that in the 12 months preceding her remand, she was smoking approximately one gram of methamphetamine daily and ingesting 20 to 30 millilitres of gamma-hydroxybutyrate-acid ('GHB') every few days. She experienced a number of overdoses in that period, including one instance which required hospitalisation. She also said that she was fearful of retribution regarding the current charges. She was found by the author of the CISP report to be anxious throughout the assessment.

25 The applicant relies upon the combination of the following matters to demonstrate the existence of exceptional circumstances justifying the grant of bail.

26 The applicant argues that the prosecution case is weak in respect of the attempt to pervert the course of justice charge related to the yellow bag. It was argued that the only evidence about what was in the bag that the applicant took away from the address is what she told police in the record of interview on 30 December 2020. At that time, she said a jumper and a mobile phone belonging to her that she left at the address on a previous occasion were in the bag. She said she had obtained the bag from inside the premises before the shooting occurred.

27 Regarding Charges 2 and 3, it was argued that it would be difficult for the prosecution to prove that the applicant's witness statement was deliberately untruthful and misleading or that it was an attempt to pervert the course of justice. It was argued that the context in which she made her statement was that she had recently used drugs and she was frightened about her own safety after the shooting took place. It was also argued that the alleged lies were not particularised with enough certainty to establish perjury.

28 Regarding Charges 1 to 3, it was submitted that even if convicted of those offences (which was submitted to be an unlikely outcome), the offending would be ranked at the lower end of the scale for charges of this nature. As such, any sentence imposed would not exceed the period of time she would likely spend on remand awaiting a trial in the County Court.

29 The applicant relies on her absence of criminal history at the time of the McGowan charges being laid. She submits that it was after 2018 that she engaged in any conduct which forms the basis for outstanding charges or for the convictions incurred in 2021. This corresponds with the breakdown of her previous long-term relationship, her escalating drug problem, and her association with other criminal associates within the drug milieu.

30 The applicant acknowledges her drug abuse and the connection between drug abuse and her recent criminal history. It was put on her behalf that she has remained abstinent on remand, and that she now desires to actively address her drug abuse. If granted bail to 'The Cottage' in Shepparton she would be motivated to comply with the program and any other conditions of bail.

31 During her time on remand, the applicant completed courses in traffic management, construction site safety ('white card' training), food handling, and industrial cleaning to enhance her employment opportunities on release. She also sought to engage with therapeutic services, including seeking referral to staff from Western Region Centre Against Sexual Assault ('WestCASA') in relation to her past experience of family violence.[17] She has had limited opportunities for sustained treatment whilst in custody.

32 The applicant's parents and sister remain strongly supportive of her, and she has maintained contact with them whilst on remand to the extent that this has been possible.

33 The applicant's mother offers a surety in the amount of $5,000.

34 Owing to delays caused by COVID-19, it was common ground between the parties that, if the applicant is committed for trial on the current charges, the trial is unlikely to be listed before 2023. As mentioned, it was argued that the length of time the applicant might spend on remand awaiting trial was likely to outstrip any sentence she is currently facing. Also, that conditions in custody have been more onerous because of the COVID-19 pandemic.

35 The applicant submits that conditions of bail are available to mitigate any risks that bail might pose. Bail should be granted subject to the condition that she be bailed to reside at The Cottage, along with a $5,000 surety provided by her mother. This would provide a strong foundation for managing risk. It was put on behalf of the applicant that she is aware of the sacrifice offered by her family to support her bail by helping fund her place at The Cottage, and putting up a surety. This would place significant pressure on her to comply with conditions of bail. The applicant's parents are also willing for her to reside with them after completion of the four-month drug rehabilitation program.

The respondent's contentions in opposition to bail

36 At the oral hearing it became apparent that the respondent did not take issue with the existence of a number of factors relied on by the applicant to make out exceptional circumstances. It was accepted that the McGowan charges could be contested on the basis of the applicant's interpretation of the evidence, although that interpretation differed from the Crown's interpretation of the evidence. Also, that, even if convicted of the first three charges, the offending did not fall in the higher range of gravity for these kinds of offences. Further, it was accepted that the applicant was unlikely to be tried before 2023 as a result of estimates based on current listing dates.

37 Additionally, the respondent did not seek to cross examine or challenge Ms Hutchison about the adequacy of the regime for bail that is available upon admission to the residential rehabilitation at The Cottage.

38 In light of the respondent's approach, it appeared to the Court that the argument advanced to resist a finding of exceptional circumstances was only lightly pressed. More emphasis was put by the respondent on the aspect of unacceptable risk. Of course, the respondent bears the onus of establishing unacceptable risk.

39 The respondent in their documents filed in response to the application for bail referred to an unacceptable risk that the applicant would commit offences whilst on bail, interfere with a witness, or otherwise obstruct the course of justice, endanger the safety or welfare of any person, or fail to surrender into custody in accordance with the conditions of bail.

40 However, at the oral hearing the chief grounds of opposition referred to were the risk of the applicant interfering with witnesses and/or obstructing the course of justice, and the risk of the applicant committing further offences whilst on bail.

41 The informant, in his written report, pointed to the risk that the applicant would make contact with other persons of interest in relation to the ongoing homicide investigation. The concern was that she would (directly or indirectly) interfere with witnesses such as PA, NH or DC. Such actions could constitute an obstruction of the course of justice. Attention was focused on the content of the Arunta call transcripts.[18] Reliance was also placed on the applicant's recent association with criminal and drug-using associates leading up to her arrest.

42 The informant raised concerns that the applicant would continue to seek to associate with DC if granted bail, noting his extensive criminal history. It was also noted that the applicant had phone contact with both DC and TW after being placed on remand. Also, when speaking to her friend KH in January 2021, the applicant made a number of threatening remarks concerning PA. KH has a significant criminal history, including convictions for drug trafficking. Her criminal record was provided to the Court to show why the applicant ought not be permitted contact with KH.

43 If the applicant were granted bail, the informant sought strong protective conditions preventing contact with persons of interest in relation to the unsolved homicide investigation, and with named criminal associates, including KH.

44 Regarding the risk of the applicant committing offences whilst on bail, reference was made to the applicant's unsuccessful attempt at inpatient admission for drug treatment two years ago. The respondent also referred to the applicant's history of non-compliance with past grants of bail, noting that the applicant was on bail in the Bonnett and Hall matters at the time of the alleged offending in the present matter.

45 It is premature at this stage, prior to committal proceedings being held, for the Court to make other than a broad-brush assessment of the strength of the Crown case on the McGowan charges. That said, I observe that Charges 1 to 3 (and by implication Charge 4) may ultimately prove challenging for the Crown to establish to the requisite standard of proof.

46 I also accept that on the current state of the evidence, if she were found guilty of the McGowan charges, it is plausible that the extent of time spent in custody awaiting trial could outstrip any sentence to be imposed, given her lack of prior convictions at the time of the McGowan offences. This assessment is based on the agreed position between the parties about the likely delay before a trial date in the County Court.

47 These factors form part of the surrounding circumstances I have considered combined with other significant factors, including the availability of the residential rehabilitation bed at The Cottage, the offer of a surety, strong family support, and the obvious need for the applicant to receive treatment for drug addiction. I have also had regard to all relevant surrounding circumstances as required by s 3AAA of the Bail Act. The combined factors are sufficient for the applicant to have discharged her onus to show exceptional circumstances.

48 I have been somewhat more troubled when approaching the question of unacceptable risk. The respondent raised some legitimate concerns regarding the attitude evinced by the applicant in early January 2021, when recorded in the Arunta calls speaking to her parents and KH. On the other hand, regarding the comments made by the applicant to KH about her feelings towards PA I accept that several months have passed since that phone call. The call occurred when the applicant was still in lockdown after her arrest, and she may have been in a heightened emotional state about her isolated situation in lockdown at the time of the call.

49 A matter of additional concern to the Court is that, despite asserting a willingness to approach rehabilitation at the Cottage with sincerity, the application documents submitted that the applicant, if granted bail, ought to be permitted to remain in contact with DC. On the oral hearing, it was suggested that even if she was prohibited from contacting DC, the applicant should not be prohibited from contact with KH if granted bail. This suggests a lack of insight on the part of the applicant that contact with past associates would be likely to endanger her rehabilitation.

50 On the other hand, the author of the CISP report and Ms Hutchison from The Cottage seem to have been persuaded that the applicant is genuine in her wish to rehabilitate. The applicant's family are willing to devote themselves to helping the applicant, and are willing to fund her place at the Cottage and put up a surety.

51 Ultimately, I accept that if the Court imposes very strict bail conditions, the risk posed by the applicant can be rendered acceptable. Once again, I have had regard to all the surrounding circumstances as required by the Bail Act in determining whether the conditions of bail proposed by the applicant would render the risks she poses acceptable.

52 The processes maintained by The Cottage for notifying of a breach of bail appear rigorous. If the applicant leaves the facility, she is likely to be swiftly apprehended. Shepparton is well away from the geographic location of the persons of concern mentioned by the informant. There is no question in my mind that the applicant should not be permitted to have contact with the persons of concern, including persons of interest in regard to the homicide and persons connected to her previous drug using lifestyle.

53 The committal on the McGowan charges is listed towards the end of the current month, so it should not be necessary for this Court to engage in judicial monitoring of the applicant's bail. Ultimately, at 36 years of age, the applicant must take some responsibility for her own future rehabilitation.

54 If for some reason the applicant's committal is not finalised before the four-month rehabilitation program at The Cottage is completed, she will need to return to this Court for review of her bail conditions.

55 Bail will be granted on the terms listed in the draft orders which will be circulated to the parties.

[2] Pursuant to s 314 Crimes Act 1958 (Vic) ('Crimes Act').

[3] Pursuant to s 30A (1) Bail Act 1977 (Vic) ('Bail Act').

[4] Pursuant to s 30B of the Bail Act.

[7] Namely, committing an indictable offence whilst on bail and contravening a conduct condition of bail (sch 2 item 30 of the Act).

[8] Namely, committing an indictable offence whilst on bail (sch 2 item 30 of the Act).

[9] Sections 4AA(2)(c)(i), 4A(1A) and 4A(2) of the Act.

[10] Ibid s 4A(3).

[11] Ibid s 4D(1)(a).

[12] Ibid ss 4E(1)-(2).

[13] Ibid s 4E(3).

[14] Affidavit in Support, Exhibit DS-06.

[16] Affidavit in Support, Exhibit DS-06.

[17] Affidavit in Support, Exhibit DS-05.

[18] Although the respondent withdrew reliance on conversations mentioned in the informant's report that had not been transcribed.