IN THE MATTER of the Bail Act 1977 v IN THE MATTER of an application for bail by BLC

2 This application was first listed before me on 10 March 2022. Documents filed before this Court include a Notice of Application for Bail filed on 21 February 2022 by the applicant, and an affidavit in support of bail dated 21 February 2022 and filed on 25 February 2022 on behalf of the applicant. The respondent has filed an affidavit in response dated 1 March 2022 and filed on that date.

3 The matter was adjourned part heard to allow for a Court Integrated Services Program ('CISP') assessment and report. That report was received on 11 March 2022.[1] Prior to resuming, the Court also received further materials from both the respondent[2] and the applicant, which included further information from Corrections Victoria and Justice Health staff in relation to the conditions in custody for [BLC].[3] The matter then resumed and concluded on 15 March 2022.

4 Following the alleged offending on 15 December 2019, the applicant was charged on 9 April 2021 with one charge of manslaughter, and a filing hearing occurred that day. No application was made for bail. Committal proceedings commenced on 23 September 2021 and were adjourned part heard and then completed on 30 September 2021. The application for bail made at the conclusion of the committal was refused.

5 On that application, the applicant relied upon delay, the COVID-19 pandemic, his own medical history, the strength of the prosecution case, and the opportunity to reside with his mother at a static address in [Redacted]. Bail was refused on the basis that exceptional circumstances were not found to exist and the applicant was found to be an unacceptable risk of committing further offences whilst on bail and failing to surrender into custody in accordance with conditions of bail.

6 The applicant appeared before this Court for an initial directions hearing on 19 October 2021 and a further directions hearing on 21 February 2021 at which time a s 198B hearing was listed.

8 It is common ground between the parties that a two-step bail test applies to the application before the Court. The exceptional circumstances test applies in this case because the applicant is accused of committing a Schedule 2 offence,[4] during the period of a Community Corrections Order ('CCO') made in respect of another Schedule 2 offence.[5] Accordingly, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances exist which justify the grant of bail.[6]

9 In deciding whether the test for exceptional circumstances is met, the Court must take into account the relevant surrounding circumstances including, but not limited, to those prescribed in s 3AAA(1) of the Act.

10 Even if satisfied that exceptional circumstances exist the Court must consider whether the Court is satisfied by the respondent that there is a risk that the applicant will engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable risk.[7]

11 In applying the unacceptable risk test the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed that could reduce the risk of granting bail so that the risk is not unacceptable.[8]

12 When interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[9]

13 The applicant is a 49 year old man who lived with his mother, aunt and two of his adult children at an address in [Redacted] prior to the alleged offence. He proposes to return to that address if granted bail. The applicant suffers from epilepsy caused by intracranial arteriovenous malformation (AVM). The applicant was treated with radiotherapy for this condition in 2004 and is currently prescribed medications which he takes twice daily. Nevertheless, he continues to have regular seizures.

14 The applicant has an extensive criminal history commencing in 1985 including convictions for burglary, armed robbery, intentionally causing serious injury, unlawful assault, criminal damage, drug possession and drug use and a range of dishonesty and driving offences. He has also been convicted of contravening a family violence order in 2017 and 2018, breach of community based orders and community correction orders, as well as breach of a suspended sentence order in 2017. The convictions for breach of community based order related to 1996 and 1997 whereas the contravention of the community correction order convictions related to 2018 and 2020.

15 Regarding the applicant's bail compliance, he has been charged for failing to answer bail in 1995 and also in 2018 and also with contravening a conduct condition of bail in 2018 (two charges).

16 The following allegations are summarised in the Crown Summary of Prosecution Opening ('SPO').[10] The deceased [MC] lived in an apartment complex in the south-eastern suburbs owned by the Department of Health and Human Services. [MC] was in an on-again off-again relationship with [KM] who lived within the same complex. It would appear that [the pair] had a tumultuous relationship. [Redacted].[11]

18 On the afternoon of 15 December 2019 the applicant, [MC and KM] were at the deceased's apartment when [KM] confronted the deceased [Redacted].

19 It is alleged that the applicant intervened by placing [MC] in a headlock, and pulled him backwards by the neck.[12] This caused [MC] to fall backwards and lose consciousness. [MC] regained consciousness and resumed fighting with [KM], so the applicant is alleged to have performed the same action again pulling the deceased away from [KM] in the process. On this occasion the deceased lost consciousness, tumbled backwards and then fell face forward onto the ground where he was noted to be turning blue. It is alleged that the accused tried to assist [MC] and then told [KM] to call 000. Paramedics arrived, along with other emergency service workers, but were unable to revive the deceased. By that stage, the applicant had left the scene.

21 [Redacted]. The applicant fled to the [Redacted] Railway Station where he was arrested in relation to an unrelated matter and he subsequently spoke to police about his involvement in the incident. He told police that he had grabbed the deceased twice over the shoulder and around the neck to stop him from fighting with [KM]. The applicant was released pending further investigation.

23 The applicant was charged with manslaughter on 9 April 2021 and remanded into custody that day.

24 The applicant relies on the following matters to establish that exceptional circumstances exist to support a grant of bail and that the allegation of unacceptable risk is not made out:

(a) Strength of the prosecution case: The applicant will contest the charge of manslaughter in accordance with the defence response to the SPO.[13] The applicant denies criminal culpability for the deceased's death, disputing causation and otherwise relying upon self-defence being the defence of another person, namely [KM]. The applicant places a lot of weight in the current application on the weakness of the prosecution case on the charge the applicant faces. Further, Mr Chernok noted that in considering the applicant's behaviour after the alleged incident, it should be remembered that the applicant handed himself in to PSOs at [Redacted] railway station and approached the police interview process with considerable candour. In the months that followed, he did not try and run away although he knew police were investigating the matter.

(b) Accommodation and family support: The applicant relies on a static address with his mother at the stated address in [Redacted] and has the support of his family. Carole C, the applicant's mother gave evidence at the hearing on 10 March. She explained the applicant would have his own room in the home, at the other end of the house to his aunt Joan. Regarding the applicant's epilepsy, she had only ever witnessed him having one fit that she said terrified her. On another occasion, he refused ambulance assistance when it was called for him. He seems accepting of the seizures, tolerating them and then continuing on with his day.

She explained that were [BLC] granted bail and she became aware he breached his conditions, she would contact police. It would be a difficult experience for her, and she knew her son would not agree, but she considered that if his life started to go 'pear shaped', then it would not be in his interests to leave things, and she considered things would need to be referred back to the police. By 'pear shaped' she clarified she meant the applicant recommencing taking drugs and going out late at night. She explained that last time she was living with him, he spent a lot of time outside of the house. She described him as a private person, he did not confide in her or come to her for help and she would not expect him to if he were bailed to live with her. At the time of his arrest, she presumes he was likely living with [KM] and others for some months.

She was of the hope that he had resolved his drug use issue, as it had never served him well. She thought he might have started smoking cigarettes when he was about 14 years old. She thinks he might have started using drugs on-and-off, other than marijuana, when he was about 18 years old. She does not pick up on the body language of people who are on drugs, though she can pick if someone has been drinking. However, she thought she had seen her son 'off his face' a few times perhaps he was in his 30s. There had been a previous intervention order made for Carole C's protection against [BLC] several years ago, that arose out of a physical altercation between her and her son. He allegedly pushed her into a wall and she suffered a small cut on her head. She was not supportive of the order and said the police pursued that application.[14] She could not remember precisely when that was, but considered it was a long time ago.

Mr Chernok argued that the family support available to the applicant is a positive matter and that the applicant's mother gave credible, reliable and candid evidence. With CISP assistance and other restrictive bail conditions, a return to the family home is a reasonable option.

(c) Availability of bail supports: [BLC] has been assessed as suitable for a one-month episode of support through CISP. He will be assisted to attend his regular GP Dr Haines for mental health support the day after he is released if granted bail. He will also have regular supervision appointments to assess his other needs with his first appointment having been booked for two days after his release if granted bail. Ms Fiona Devlin, author of the CISP report, attended Court briefly via video link to provide some additional information about the services CISP can provide to [BLC]. She explained that CISP's involvement could be extended beyond the one month period at the Court's discretion if required. She had not mentioned [BLC]'s history of drug use in her report because he had reported he had been abstinent in the community, whilst admitting some previous cannabis and amphetamine use. Notwithstanding that, Ms Devlin explained CISP could refer [BLC] for drug and alcohol counselling if required. She explained CISP would have weekly case management sessions with [BLC] throughout their involvement to ensure his engagement and compliance with services, and she could attend bail monitoring hearings if needed to advise the Court of his progress.

(d) According to Mr Chernok, his client is aware of the significance of bail granted by this Court and would take it seriously. He would be leaving an environment where he has been abstinent from drugs and alcohol, and where he has been working in prison industries and undertaking courses to help him when he leaves custody.

(e) Employment: [BLC] has undertaken a number of courses whilst on remand including a construction preparedness module and has been working in industries at the prison. He has also undertaken first aid courses which are useful for future employment. He would not be able to keep his role in industries if he were not producing clean urine screens. If he is bailed, it is anticipated that [BLC] could obtain some work in construction through a contact he has in this field (subject to medical limitations). This would help keep him occupied whilst on bail, and would help provide structure to his day.

(f) Special vulnerability: The applicant suffers from epilepsy and relies on letters prepared by Dr [Redacted] Haines of [Redacted] Medical Clinic dated 1 May 2018 and 25 July 2021. [BLC] was most recently seen at that clinic on 20 January 2021 and has been a patient there since 6 February 2013. Dr Haines confirms that the applicant will need to remain on medication for his condition for the remainder of his life.[15] The applicant suffers temporal and grand mal seizures which can lead to him being disorientated and confused afterwards. He states even with regular medication the applicant remains at risk of suffering further seizures which could lead him to suffer a physical injury, and the grand mal seizures in particular could lead to brain damage. Dr Haines notes in his 2021 letter that the applicant had had car and motorbike accidents during seizures in the past, but that as at July 2021 he was unable to drive because of them. His condition makes it difficult for the applicant to work. Dr Haines provides the opinion that the applicant's health would be adversely affected by his imprisonment, noting that seizures are more likely to occur at times of emotional stress and sleep deprivation.

At the hearing on 10 March 2022, Mr Chernok for the applicant confirmed that it was not submitted that the applicant could not receive adequate treatment in custody. He did submit however, that the applicant is in a more vulnerable category in prison because of his condition. The further information received during the adjournment of this application supported the applicant's position regarding additional hardships for him being in custody due to his epilepsy, for example transport to Court is much more problematic. The applicant appeared in person for his bail application on 15 March 2022. Mr Chernok told the Court the applicant was awoken around 5.00 or 5:30am to be transported to court and was placed in an individual pod in the van. The van went to a number of locations before bringing him to the Supreme Court. The material provided by Corrections[16] was somewhat oblique about the applicant's safety were he to have a seizure enroute between the Court and prison. Ms Hosking said the following of the transport arrangements:

There are 2 officers in the vehicle, one is the driver, and the other is monitoring CCTV of the prisoners being transported. Should [BLC] suffer a seizure during transit, the first aid would depend on where the vehicle is between prison and the court, his apparent condition and what options are available.

(g) Delay: The applicant argues that there was delay of 16 months between the incident and the police charging him in relation to this matter. Further, it was submitted that there is likely to be a further delay before the matter can proceed to trial as [BLC] is yet to be allocated a trial date in this Court, although it is hoped that a trial will be heard some time this year. During the period between this incident and being charged, the applicant was aware of the ongoing investigation, but did not make any effort to flee and was offence free.

(h) COVID-19: The applicant contends that the current COVID-19 pandemic is a surrounding circumstance that the Court should take into account on the present application noting that his experience of being in custody has been rendered more difficult by the pandemic. In particular, if the applicant were in custody for his trial the Corrections material shows that he would be in quarantine during trial making conditions very difficult for his mental health and for participation in his trial.

25 On behalf of the applicant it was submitted that there is no objective evidence to indicate that he is likely to fail to surrender himself into custody and that any alleged risk that he might endanger the safety and welfare of others or commit further offences can be rendered acceptable by imposing conditions such as that he not contact prosecution witnesses, not leave the State of Victoria, attend for judicial monitoring and any other conditions the Court seeks to impose.

Respondent's position in respect of the application for bail

26 The respondent opposes bail, alleging that the applicant cannot demonstrate exceptional circumstances justifying the grant of bail and that he poses an unacceptable risk of endangering the safety and welfare of any person, committing an offence whilst on bail and, to a lesser extent, failing to surrender into custody in accordance with the conditions of bail. In support of their argument the respondent puts the following matters:

(a) Strength of the prosecution case: The respondent did not concede that the prosecution case was weak, noting that [BLC] made several admissions after the alleged offending. It is submitted that the principal issue at trial will ultimately be whether he can establish self-defence.

(b) Accommodation and family support: The informant has outlined a concern that if the applicant were to return to reside at his mother's address he will be returning to an unstable environment. His presence at the home is likely to cause friction within the household as a result of the fact that the applicant's mother owns the premises jointly with her sister. Whilst the applicant's mother is happy for him to return living there, the applicant's sister and his sons will merely tolerate it. Further reference was made to the applicant's family violence history.

(c) Special vulnerability: It is argued by the respondent that the material before the Court does not suggest that the applicant cannot receive adequate treatment for epilepsy in custody.

Affidavits of Scott Swanwick of Justice Health and Jenny Hosking of Corrections Victoria were tendered, as were emails containing their responses to several questions posed by the applicant's representatives. Mr Swanwick said that the applicant was medically and psychologically assessed when he was remanded. Between June and September 2021, the applicant complained of experiencing daily seizures in custody. Often these were reported to staff after the fact. He received an EEG on 8 September 2021. His medication was reviewed in June 2021, and the applicant complained about there having been medication changed without his input, and he also complained he was experiencing daily seizures. He requested treatment from a doctor at the Alfred Hospital, though this was denied as there were adequate services available at the prison.

On 25 June 2021, his cell mate alerted prison authorities to the applicant having fallen out of bed and having a seizure. He was transferred to the hospital unit for treatment. He was returned to his unit three days later. Pathology testing was conducted, and sub-therapeutic levels of his sodium valproate were detected, after which the applicant admitted to not taking his medications. His medication was reviewed in September 2021 and Jenny Hosking indicates he was compliant at that time.[17]

Throughout the remainder of 2021 the applicant made numerous request for a single cell as he said his cell mate was becoming afraid of witnessing his seizures. He was advised that it was safer for him to have a cell mate.

In October 2021, he refused an increased dose of his sodium valporate medication, though at the end of October 2021 he reported to a nurse that he had not had a seizure in a long time. In March 2022 the applicant again expressed frustration about the treatment of his epilepsy in custody.

Jenny Hosking states that the applicant was reviewed in January 2022 and that he had been working in a factory at the prison. He received positive reports from his officers.

(d) Delay and likely sentence: The respondent notes that after the applicant was remanded on the current charge on 9 April 2021 he was sentenced in the Ringwood Magistrates' Court on an unrelated matter on 29 September 2021 to three months imprisonment with 92 days reckoned as time served. Therefore, the applicant will have spent 243 days on remand for the present matter by the first date of his bail hearing. The respondent argues that if convicted of the current offence the sentence he will receive will far exceed the time spent on remand. The respondent further argues that a trial date is being mooted in the period between 1 August 2022 to 28 August 2022 therefore the delay in this matter would not be inordinate.

(e) COVID-19: The respondent does not dispute that COVID-19 has rendered the conditions of custody more restrictive.

(f) Views of the deceased's family: The respondent submits that the deceased's family are opposed to the grant of bail for the applicant.

(g) Endangering the safety or welfare of any person: The respondent argues that because of the applicant's extensive criminal history, including convictions for violent offences, he poses an ongoing risk of this kind.

(h) Committing an offence while on bail: The respondent argues that the applicant's history of breaching court orders, including CCOs and FVIOs make him an unacceptable risk of committing offences whilst on bail. Ms Karamicov for the respondent, also referred to past breaches of FVIO's as evidence that the applicant is not good at complying with Court orders. She noted the history in relation to bail including past breaches of bail conditions and fail to appear on bail.

(i) Failing to surrender into custody in accordance with the conditions of bail: The respondent notes that the applicant has three previous convictions for failing to answer bail.

Has the applicant established that exceptional circumstances exist to justify the grant of bail?

27 I consider that the following surrounding circumstances tell in favour of the exceptional circumstances test being met. There was a delay of around sixteen months between the incident relied on to found the charge and the applicant being formally charged and remanded in custody. During that period he did not flee the jurisdiction or reoffend. I note also that other than this offence, he had not offended since October 2019. Further, he has no outstanding charges.

28 The applicant cooperated with police when interviewed following the incident, giving an account from his perspective as to what occurred. The account provided by the applicant gives rise to triable issues and a prospect that the Crown may not be able to establish guilt to the criminal standard.

29 The applicant's epilepsy renders him vulnerable in custody since his prescribed medication does not prevent all seizures from occurring. Indeed he has been experiencing seizures since entering custody in April 2021.[18] The COVID-19 pandemic has increased the level of daily stress prisoners are under, making Dr Haines' reports all the more significant. The 2018 medical report of Dr [Redacted] Haines indicates that the additional stress caused to the applicant by being in custody is likely to aggravate his epilepsy. The 2021 report of Dr [Redacted] Haines notes that each seizure leads to a degree of brain damage and that more frequent seizures will make that worse. In addition, the material provided by Corrections gives rise to a concern that during his trial [BLC] will be subjected to even greater levels of daily stress, by virtue of the transport arrangements that would be required to be in place to and from prison, the long hours each day during the trial (including transportation), and the fact that he would be in a quarantine facility during the trial.

30 The applicant is facing a serious and complex criminal trial in this Court for which he will need to carefully prepare with the assistance of his legal representatives. I accept that taking instructions and gaining the applicant's helpful participation in his trial would be more difficult if the applicant remained in custody. Mr Chernok informed me that his client is well aware of the seriousness of the charge he faces and of the significance of Supreme Court bail. Preparation for trial would be more easily achieved in a non-custodial setting, especially in light of the pressure put on conferencing access due to the COVID-19 pandemic. Given the applicant's medical condition it would be preferable if prisoner movement challenges that accompany a trial in this Court could be avoided.

31 The applicant has a static residence with his mother, aunt and other family members. Whilst his aunt and his adult sons were initially reluctant to have the applicant bailed to their address, they are reconciled to the idea. The applicant's mother gave evidence that the applicant would have a bedroom at the opposite end of the house from his aunt and his aunt would have some privacy from him in the way the house is laid out. It appears to the Court that the support offered by the applicant's mother, along with the additional supervision and support of CISP, is capable of stabilising the applicant if he returns to the community on strict bail conditions. Medical management of his epilepsy is likely to be more achievable if bail is granted with these supports in place.

32 The applicant is at an age now where he may be more amenable to drug and alcohol treatment and counselling support.

33 The applicant faces a delay of at least several months before the earliest possible trial date and there is presently no certain trial date. If he is not convicted of the charged offence the time he spends on remand could ultimately be dead time.

34 It is in his favour that [BLC] has been working in industries in prison, has been providing clean urine screens and has been undertaking courses that would prepare him for a more productive lifestyle when he is released.

35 All of the above factors lead me to conclude that the exceptional circumstances test is met.

Has the respondent established that the applicant poses an unacceptable risk of engaging in any of the conduct set out at s 4E(1)(a) of the Act?

36 I note that, at the hearing on 15 March 2022, Ms Karamicov confirmed that the respondent's main concern was not that the applicant would fail to appear or interfere with witnesses. Rather, the concern was that the applicant might commit further offences on bail or breach the conditions of bail. It seems unlikely that the applicant would fail to appear given he has legal aid organised for his trial and a barrister chosen to represent him, and he did not flee after the incident prior to being charged some 16 months later.

37 Having considered the arguments raised by the respondent about unacceptable risk, I am not persuaded that the applicant would be an unacceptable risk of committing further offences or breaching his conditions of bail, or indeed of any of the matters referred to under s 4E(1).

38 Whilst his offence history in recent years is concerning, it appears to have largely been linked to a chaotic relationship with a former partner, [CC], which has now terminated. During that relationship, although there were family violence orders in place, it appears that [CC] was at times unwilling to keep apart from the applicant and that the drug use of [CC] and [BLC] was a significant factor in their relationship. The applicant, since terminating his relationship with [CC], was in an intimate relationship with a different woman[19]. More significantly, since the occurrence of the incident that brings him before the Court, whilst at liberty, he was offence free for 16 months and according to instructions given to Mr Chernok, was not abusing substances prior to his remand in custody on the charge of manslaughter. He appears to be aware of the seriousness of the upcoming criminal trial in this Court, and his behaviour in custody in maintaining abstinence, undertaking rehabilitative courses, and maintaining a job in industries, are all favourable factors suggesting his capacity to comply with conditions of bail.

39 I accept that he is motivated to work with his legal practitioners to prepare for his upcoming criminal trial in the Court, and that this factor will be an important protective factor in ensuring his cooperation with CISP and with conditions of bail. The support of CISP and the applicant's mother will be beneficial to his ongoing rehabilitation, and the cessation of his past relationship with [CC] should be a further protective factor against further offending. It will also be helpful if he is able to resume regular medical care for his epilepsy from medical practitioners of his choice, and live in a safe environment in the family home. This should be a protective regime in that the applicant will be motivated to maintain pro-social behaviour.

40 I have given careful consideration to the conditions that would be required in order to ensure the applicant's compliance with bail. I will include a condition for bail monitoring in the early phases of bail.

[1] Report of Fiona Devlin, Assessment & Referral Practitioner, CISP Remand Outreach Program.

[2] Being a table of the applicant's history of family violence offending prepared by the informant Detective Senior Constable Kallyn Gent (Respondent Exhibit 4 on this application).

[3] Being: certificates of courses completed by the applicant in prison (Applicant exhibit 4), a urine drug screen result dated 16 July 2021 (applicant exhibit 5), an email containing questions and answers between the applicant's representatives and Jennifer Hosking (applicant exhibit 6), and an email containing questions and answers between the applicant's representatives and Scott Swanwick (applicant exhibit 7).

[4] Namely manslaughter: Bail Act schedule 2, item 2.

[5] Namely, an offence against s 123 of the Family Violence Protection Act 2008 (contravening a FVIO) in the Informant Turner matter in the course of committing which the applicant is alleged to have used or threatened to use violence and in circumstances where the applicant has, within the preceding 10 years, been convicted of an offence in the course of committing which the applicant used or threatened to use violence - the Act, Schedule 2, item 18(a).

[6] Bail Act s 4AA(2)(c)(iv), s 4A(1A) and s 4A(2).

[7] Bail Act s 4E(1)-(2).

[8] Bail Act s 4E(3).

[9] Bail Act s 1B(2).

[10] Dated 30 December 2021, annexed at Exhibit B to the Affidavit in Support.

[11] The details of the alleged offending are redacted as there is an upcoming criminal trial in this Court in relation to the charge.

[12] Which is referred to as a 'choke hold' in the SPO.

[13] Defence Response to Crown SPO was filed on 14 February 2022.

[14] However, it is not clear from the materials before the Court that any such order actually eventuated.

[15] See affidavit in support, Exhibit C.

[16] In their answers to questions from the applicant's representatives, provided to the Court via email (Applicant Exhibit 6 on this application).

[17] Affidavit of Jenny Hosking, [17].

[18] As explained by Mr Chernok at the oral hearing and recorded in Justice Health records.