Asmar, Bail application [2005] VSC 487 (29 November 2005)

• reside at the specified residential address;

• give 24 hours notice to the informant of any proposed change of address;

• report daily to the Officer in Charge of the Police Station at Dandenong or his nominee between the hours of 6:00 am and 6:00 pm;

• not attend any points of international departure;

• not contact or interfere with any prosecution witnesses, with the exception of the informant;

• is to abide by a curfew that he not leave the specified address (or any other address of which notice is given) between the hours of 8 pm and 4 am.

2 On 17 October 2005, Asmar was charged with the following offences:

• three counts of false imprisonment;

• three counts of making threats to kill;

• three counts of making threats to inflict serious injury;

• two counts of unlawful assault;

• one count of possession of an unregistered firearm;

• one count of impersonating a member of the police force; and

• one count of possession of cartridge ammunition whilst unlicensed.

All but the last of these charges relate to a single incident which is alleged to have taken place in the early hours of Friday, 23 September 2005, to which fuller reference will be made below.

3 Paragraph 4(4)(c) of the Bail Act 1977 ("the Act") is applicable, since Asmar has been charged with -

"indictable offence[s] in the course of committing which [he] is alleged to have used or threatened to use a firearm".

In those circumstances, s.4(4) of the Act requires that -

"the Court shall refuse bail unless the accused person shows cause why his detention in custody is not justified."

4 The application for bail is opposed. An earlier application for bail in the Magistrates' Court was refused.

The applicable principles

5 Section 4 of the Act is headed "Accused person held in custody entitled to bail". The attractive simplicity of this statement is, however, not borne out by the complicated provisions of s.4. The entitlement to bail contained in the opening words of s.4(1) is so hedged about with qualifications, with different tests and different onuses according to the class of offence involved, that the "scheme" of the provisions is difficult to discern.[1] (In its recently-published Consultation Paper - Review of the Bail Act, the Victorian Law Reform Commission notes that in its consultations "the most frequently raised problem... was section 4". The Commission is considering whether the Bail Act should be rewritten).

6 The following propositions can, I think, be distilled from the provisions of s.4 (and of s.13, which is incorporated by reference in s.4(2)(a)):

1. If the accused person is in custody pursuant to the sentence of a court for some other cause, bail may be granted but only on condition that the person not be released on bail before he or she is entitled to be released under a parole order. [2]

2. In the case of a person charged with treason or murder, [3] or with drug offences of the kind referred to in s.4(2)(aa), bail must be refused unless the Court is satisfied that exceptional circumstances exist which justify a grant of bail.

3. Bail must be refused if the Court is satisfied that there is an unacceptable risk that the accused person if released on bail would:

• fail to surrender himself or herself into custody in answer to his or her bail;

• endanger the safety or welfare of members of the public; or

• interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or herself or any other person.[4]

4. In the case of a person charged with an offence referred to in s.4(4), bail must be refused unless the accused person shows cause why his or her detention in custody is not justified.[5]

7 It is the inter-relationship of propositions 3 and 4 which requires consideration on the present application. More accurately, the question is how the "unacceptable risk" provisions of s.4(2)(d) relate to the "show cause" provisions of s.4(4). On this question, the applicant and the Crown were united in submitting that the correct approach was that set out by Gillard, J. in DPP v Harika.[6]

8 In Harika, the applicant was charged with armed robbery. Paragraph 4(4)(c) was therefore applicable. It followed, as his Honour said, that the applicant for bail assumed the burden of establishing that his detention in custody was not justified. His Honour continued:

"However, that is not the end of the inquiry. If he establishes cause, the Court shall refuse bail if it is satisfied there is an unacceptable risk that if the applicant is released on bail, he may commit one or more of the prohibited acts set out in s.4(2)(d). ... The factors that must be weighed in considering the question of unacceptable risk are set out in s.4(3). It is noted that the Court must consider all relevant matters, and the list of specified ones is not exhaustive...

The burden of establishing unacceptable risk lies upon the Crown.

The two inquiries can overlap, in the sense that the unacceptable risk factors have to be weighed, when considering whether the applicant for bail has shown cause.

The Act does not define what is meant by the phrase 'shows cause why his detention in custody is not justified.' It is trite to observe that all relevant circumstances must be weighed, leading to the conclusion that the detention in custody is not justified."[7]

9 On this analysis, as encapsulated in the Director's submission in the present case -

"there is a two step process which requires the Court to consider the respective burdens imposed by the two subsections [s.4(4) and s.4(2)(d)]".

In this process, so it is said, the applicant for bail must first "show cause why his detention in custody is not justified". That is the first step. Once cause is shown, the Court then moves to the second step, that is, to decide whether there is unacceptable risk as defined by s.4(2)(d). On that issue, the prosecution bears the onus.

10 With great respect to his Honour, and to counsel who have sought in the present case to uphold the approach, I do not think this analysis is correct. As I read the Act, s.4(4) is a provision which governs - exhaustively - applications for bail by persons charged with offences to which the subsection applies. Subparagraph 4(2)(d) has no application of its own force though, as I explain below, the "unacceptable risk" analysis must still be undertaken.

11 In my view, the question - the only question - for the Court on an application to which s.4(4) applies is:

"Has the applicant shown cause why his/her detention in custody is not justified?"

Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step. (The contrast with the two-step approach which is required in an "exceptional circumstances" case is considered below).

12 This does not mean that the "unacceptable risk" issues identified by s.4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person's pre-trial detention is justified. Parliament has made clear in s.4(2)(d) and in s.5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s.4(4) does) whether the person's detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.

13 There may, of course, be additional considerations which, in a particular case, might be said to justify the person's continued detention. But the four nominated risks must, as it seems to me, be at the forefront of the Court's consideration of the justification for the person's detention. Put another way, I do not see how the Court could be satisfied - as s.4(4) requires it to be - that the accused person's detention in custody was not justified, unless the Court was satisfied that there was no unacceptable risk on any of the four grounds.

14 It follows that if, having considered the four risk issues, the Court is satisfied that the continued detention is not justified, there is no occasion for s.4(2)(d) to come into play. This is precisely because the matters with which s.4(2)(d) is concerned will have already been fully considered in deciding the s.4(4) question. There is no work for s.4(2)(d) to do.

15 This is, in substance, the approach which Eames, J. adopted in DPP v Ghiller,[8] a case decided before Gillard, J.'s decision in Harika. Ghiller was also a "show cause" case under s.4(4) of the Act. His Honour said:

"Even when an applicant for bail must show cause - that is, even when the presumption is that bail will not be granted unless the person makes out a case for bail - the primary question relevant to the grant of bail is whether a person will meet the conditions of bail and attend at the trial, and as required. The question of the strength of the case against the person is merely one of the factors to be considered when evaluating whether it is more or less likely that the person would meet the conditions of bail."[9]

In deciding whether the applicant had shown cause, his Honour went on to consider whether there was an unacceptable risk that, if released on bail, Mr Ghiller would engage in criminal conduct;[10] threaten or harm witnesses;[11] abscond on bail;[12] or breach bail conditions.[13]

16 For the most part, there is little practical difference between the two-step approach propounded by Gillard, J. and the one-step approach described above. As noted earlier, his Honour acknowledged that -

"the unacceptable risk factors have to be weighed when considering whether the applicant for bail has shown cause."[14]

17 At the same time, I think it is important to make clear that once the applicant for bail shows cause that his detention is not justified, that is the end of the inquiry. There is no second step. Nor, therefore, is there any shift of onus. Where s.4(4) applies, the applicant bears the onus from start to finish, of showing that his/her detention is not justified.

18 The one-step approach required by s.4(4) may be contrasted with the two-step approach which has been held to be required where s.4(2)(a) or s.4(2)(aa) applies, that is, where the Court must refuse bail unless satisfied that -

"exceptional circumstances exist which justify the grant of bail."

This Court has consistently held that, once the applicant for bail satisfies the court that exceptional circumstances exist which justify bail, bail must nevertheless be refused - in accordance with s.4(2)(d) - if the prosecution establishes unacceptable risk.[15] No occasion arises in the present case to consider whether, as a matter of construction, the phrase "exceptional circumstances... which justify the grant of bail" itself requires a consideration of "unacceptable risk" issues, such that in truth only a one-step approach is required.

19 In opposing bail in this case, the Crown relied on two of the four risk factors - the risk of further criminal conduct, and the risk of interfering with witnesses. Before I deal with those submissions, I should set out the circumstances in which the offences are alleged to have been committed.

The circumstances of the alleged offending

20 Asmar was born on 7 June 1977. It is alleged that, at approximately 2:15 am on 23 September 2005, three persons (referred to in this judgment as "S", "R" and "O" respectively) attended in Cyber Loop, Dandenong South, which is in an industrial area. They were in a Ford Laser Coupe, and were there intending to perform "slide outs" around corners of the roadway. The area was known to R, who worked at one of the factories in the street. The victims were videotaping the "slide outs" on their video camera.

21 It is alleged that, at about 2:30 am, the victims had finished performing "slide outs" and had parked the car on the side of the road to allow it to cool down. At this time, a vehicle approached at a high speed, pulling up short of them. A man alleged to be Asmar ("the offender") got out of the vehicle holding a black handgun, described as a revolver. The offender pointed the gun at the three victims while he approached them. He was swearing at them and threatening to shoot them. He told the victims to put the camera down on the ground and then to get down on to their knees, which they did.

22 At one stage, the offender put the gun to the head of O and threatened to "blow his head off". One of the victims asked the offender if he was a police officer. The person holding the gun replied, "What do you fucking think? Do you think that I would be carrying one of those if I wasn't? Use your fucking brain". The offender said to the victims words to the effect of - "Which one of you went into my driveway? We have been robbed six times already... Don't lie you thieving little .... We have you on video going into our driveway."

23 One of the victims handed over his licence which the offender looked at briefly before giving it back to him. According to one of the victims, the offender then told them to go home and not come back. As they walked to their car -

"... he was shouting for us not to tell anyone or he would kill us and then he went and spoke to [S] and said for him to tell us not to tell anyone or he would go and kill his whole family."

It is these alleged threats which give rise to the concern that, if released on bail, Asmar would threaten witnesses.

Risk of committing an offence on bail

24 The first ground of the Crown's opposition to bail was that -

"there is an unacceptable risk that the applicant, if released on bail, would commit further offences whilst on bail."

The Crown submitted that, in assessing this risk, I should take into account the seriousness of the offences charged, the degree of criminality involved and the "brazenness" of the threats to witnesses. In his statement made in opposition to the application for bail, Detective A/Sergeant of Police Hayes stated his belief that -

"the accused has a lot to lose and therefore would interfere with prosecution witnesses with violence already shown."

"concerns in particular regarding the firearm's whereabouts. I am left in no doubt that there is a firearm which I believe if the accused was released [he] would have access to..."

25 I deal separately with the risk to witnesses in the next section of this judgment. As to the risk of criminal behaviour if bail were granted, it is widely recognised that the prediction of future dangerousness is notoriously difficult.[16] Making predictions is difficult enough when the person has been found guilty of relevant, recent criminal conduct. How much more difficult it is when - as will always be the case with a bail application - the applicant for bail is presumed to be innocent of the matters charged. In the present case, all that can be said is that the charges are very serious indeed. As Eames, J. said in Ghiller:[17]

"A bail application is not concerned with determining the issues which the jury must decide, nor is it concerned with punishing a person in advance of that adjudication by a jury."

26 Senior counsel for the applicant drew my attention to the following statement by Fox, J. in Burton v R,[18] which is relevant to the present inquiry:

"It is not normally a factor of any great weight adverse to the granting of bail that an accused person may possibly commit a crime while he is on bail. It should not readily be assumed that he might commit an offence, or further offence. If he does, he can be dealt with by the criminal law. There are, however, situations in which the consequences of any crime he commits while on bail may be so serious and have such widespread effect that the possibility that he may commit a crime while on bail is an important consideration."

27 It was not disputed that, if bail were refused, Asmar would be in custody awaiting trial for something in the range of 14-16 months. That is, on any view, a very substantial period of pre-trial detention. One would surely require compelling evidence before deciding to deny a person his freedom for such a period purely on the basis of what he might do if released on bail.

28 While the possibility of Asmar committing an offence while on bail could never be entirely ruled out, I think the risk of that occurring can properly be regarded as small. In so saying, I do not overlook the fact that he has a prior conviction (October 2002) for intentionally causing injury. It is not in dispute that Asmar has not previously committed an offence while on bail. Moreover, he has not previously breached any condition of bail. For reasons set out more fully later, there are very powerful reasons for thinking that Asmar will comply strictly with bail conditions and will ensure that his conduct while on bail is beyond reproach. There is too much at stake for him to do otherwise.

29 Accordingly, I am satisfied that there is no unacceptable risk that, if released on bail, Asmar may commit an offence. In the language of s.4(4), I am satisfied that his detention in custody is not justified on that ground.

Risk of interference with witnesses

30 The ground on which the Crown placed most reliance was that there was -

"an unacceptable risk that the applicant, if released on bail, would interfere with witnesses or otherwise obstruct the course of justice."

In support of this contention, the Crown relied on the threats allegedly made to the victims on the night in question, which were allegedly repeated in a conversation with a third party which took place later that morning.

31 The alleged threats are very serious indeed. Following as they did upon the making of threats to kill the victims, further threats made with the intention of ensuring that the victims did not complain to the police would undoubtedly have been very frightening.

32 Assuming for the purposes of the argument that the alleged threats were made and were made by Asmar, I am nevertheless satisfied that there is no unacceptable risk that Asmar would approach or threaten the victims were he to be released on bail. My reasons are as follows.

33 First, as was pointed out by senior counsel for Asmar, the chronology of events suggests that the police were not concerned, or not unduly concerned, about the safety of witnesses. The alleged offences were committed on 23 September 2005. The victims gave their respective statements to police on 26 September 2005, statements which included a full account of the threats made to them not to go to the police.

34 It was not until more than a week later, on 4 October 2005, that the police searched Asmar's business premises. During that search, eight rounds of .357 magnum ammunition were seized from the office area. Still no attempt was made to arrest Asmar. I can only assume that he would have been arrested had there been any real concern on the part of the police about the risk of Asmar taking reprisals against the witnesses - who had, by this time, made their complaints to police. Instead, appointments were made for Asmar to attend at the police station for interview. On four separate occasions, he failed to attend. It was only after these non-attendances that, on 17 October 2005, police attended at his business premises for a second time. He was arrested and taken to Dandenong Police Station, where he was charged.

35 Thus, a period of more than three weeks elapsed between the time when the victims made their statements to police and the date of his arrest. This sequence of events suggests that police did not consider that there was any real risk that the victims would be in danger from Asmar. Otherwise - as I put to counsel for the Director of Public Prosecutions - their failure to arrest him sooner would seem difficult to understand.

36 Secondly, and in any event, the question of risk must be considered in the light of the Court's ability, under s.5 of the Act, to impose conditions on a grant of bail. Section 5 contemplates the imposition of two types of condition. The first type comprises conditions involving financial security. Under s.5(1), the Court is obliged to consider, in order, the following alternatives, namely, the release of the accused person -

(b) on his or her own undertaking with a deposit of money or other security of stated value;

(c) upon his or her entering into an undertaking with a surety or sureties of stated value; and

(d) on his or her own undertaking with a deposit of money or other security of stated value and a surety or sureties of stated value.

37 The second type of condition is described in s.5(2) as a "special condition". The question for the Court is whether the imposition of special conditions is necessary to deal with (any of) the four risk issues, that is, necessary to ensure that the accused person -

(a) appears in accordance with his bail and surrenders himself or herself into custody;

(b) does not commit an offence whilst on bail;

(c) does not endanger the safety or welfare of members of the public; or

(d) does not interfere with witnesses or otherwise obstruct the course of justice.

38 Plainly enough, Parliament contemplated that what might otherwise be an unacceptable risk - that one or other of these things would occur - could be mitigated by the imposition of appropriate conditions, such that the risk in question either disappeared or was reduced to an acceptable level. In MacBain v DPP,[19] for example, Nettle, J. (as his Honour then was) reached the view that -

"if conditions of that kind are imposed the risk that the applicant would not appear and the risk that she would re-offend whilst on bail may be reduced to a level which should be regarded as acceptable in all the circumstances."[20]

39 The conditions on which I ordered Asmar's release on bail were those which, following argument, the Crown propounded as the minimum which should be imposed. There was no objection on behalf of the applicant to any of the proposed conditions. Relevantly for present purposes, one of the conditions is that Asmar not have any contact with any prosecution witnesses. As I have already said, the evidence led on Asmar's behalf on this application satisfies me that there are very powerful reasons for thinking that he will comply strictly with the bail conditions. I turn now to a consideration of that evidence.

Incentive to comply with conditions

40 Two witnesses were called to give evidence on behalf of Asmar. The first was his wife, Heidi Asmar. Mrs Asmar is 26 years old. In February 2006 she and her husband will have been married for three years. There are no children of the marriage. Asmar is the Managing Director of Asmar Transport Pty Ltd and of Asmar Logistics. This transport and logistics business has 30 employees and has valuable and long-standing contracts with major commercial interests such as Tabcorp and Sealy Bedding Australia.

41 Mrs Asmar works in the business but only in an administrative capacity. She is responsible for answering the phone and booking jobs but, as she said in evidence, it is Asmar who -

"runs the company. He does the invoicing; he sets up the runs; he meets all the targets; he sends the drivers out on their runs and makes sure things are done on time, done the right way."

Mrs Asmar told me that, despite her best efforts, it looks as if the business is collapsing. She said, candidly, that she really did not know a lot about what her husband did in running the business. For example, she had no experience in invoicing or in contract negotiations. Letters were put into evidence which show that the performance of the business has been falling in Asmar's absence and that, unless it improves, there is a real risk that major contracts will be lost.

42 I raised the question with Mrs Asmar whether it would not be possible for a temporary business administrator to be brought in to run the business in her husband's absence. She explained - as did her brother-in-law when he gave evidence - that much of the success of the business depended on the personal involvement of Asmar himself. I accept that evidence.

43 There are, in addition, very difficult personal circumstances affecting Mrs Asmar and her husband. Mrs Asmar's father is in palliative care at the Monash Hospital in Clayton, with a life expectancy of one month. He requires her daily care. The distress which this is causing Mrs Asmar was apparent when she gave her evidence. The applicant's mother suffers from severe mental illness and is dependent upon her son for both psychological and financial support. The applicant's father is also in poor health. In short, Asmar's wife, and parents, and the business which he has been running - apparently successfully - for the last seven years, are all in desperate need of his presence.

44 I pointed out to senior counsel for the applicant that s.4(4) did not confer on the Court a general discretion to grant bail on compassionate grounds. The subsection is not concerned with the applicant showing cause "why he/she should be released". That being so, I asked how these personal factors could bear relevantly on the "unacceptable risk" analysis which must be undertaken. Senior counsel submitted, and I accept, that the existence of pressing personal circumstances such as these is relevant to the Court's assessment of the likelihood that the applicant would, if released on bail, comply with stringent bail conditions.

45 I was particularly impressed with the evidence given by Mrs Asmar, and by the great need which she clearly has for his support, both in her distress over her father's imminent death and in the running of the business. Asmar was in court when that evidence was given and could not but have been deeply affected by what was said.

46 I am confident that Asmar realises, and will remember at all times when he is on bail, that his wife and his family and his business badly need him. I am confident also that he appreciates that any breach of his bail conditions would be simply disastrous for all concerned, himself included.

47 For these reasons, I expect that Asmar will comply with the bail conditions I have imposed. On that assumption, I was satisfied that there was no unacceptable risk on either of the grounds relied on by the Crown and, accordingly, that Asmar's detention was not justified.

[1] cf. G Hampel and D Gurvich, Bail Law in Victoria (Federation Press, 2003) pp. 4-7.

[2] Subsections 4(2)(b), 4(2A).

[3] Subsections 4(2)(a), 13.

[4] Subsection 4(2)(d).

[5] Subsection 4(4).

[6] [2001] VSC 237.

[7] At [44]-[47].

[8] [2000] VSC 435.

[9] At [43] (emphasis added).

[10] [48].

[11] [52]-[53].

[12] [59].

[13] [60].

[14] At [46].

[15] See Beljajev v DPP (1998) 101 A Crim R 362; Re Waters [2005] VSC 443 at [5].

[16] See in this regard Veen v R [1979] HCA 7; (1979) 143 CLR 458 at 463-5 per Stephen J; Kable v DPP [1996] HCA 24; (1996) 189 CLR 51 at 122-3 per McHugh J; Attorney-General v David [1992] VicRp 53; [1992] 2 VR 46 at 61-2 per Hedigan J; Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 78 ALJR 1519 at 1542-3 [123]- [125] per Kirby J.

[17] (Supra) at [43].

[18] (1974) 3 ACTR 77 at 78.

[19] [2002] VSC 321.

[20] At [17].