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

Asmar, Bail application [2005] VSC 487 (29 November 2005) - VSC 2005 case summary — Zoe

[23]

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:

[29]

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 -

[42]

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 -

[50]

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.

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Judgment (51 paragraphs)

Cases Cited (3)