Requirement to consider unacceptable risk - s 17(3)
"(a) the accused person's background, including criminal history, circumstances and community ties,
(b) the nature and seriousness of the offence,
(c) the strength of the prosecution case,
(d) whether the accused person has a history of violence,
(e) whether the accused person has previously committed a serious offence while on bail,
(f) whether the accused person has a pattern of non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,
(g) the length of time the accused person is likely to spend in custody if bail is refused,
(h) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
(i) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
(j) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
(k) the need for the accused person to be free to prepare for their appearance in court or to obtain legal advice,
(l) the need for the accused person to be free for any other lawful reason."
7Subsection (4) set outs a non-exhaustive list of the matters to be taken into account or in considering whether an offence is a serious offence. It includes matters such as whether or not the offence is one of a sexual or violent nature, whether there were weapons involved, the likely impact of the offence on the victim and the community and the number of offences that are likely to be committed.
8If there is no unacceptable risk, the accused person should be released without bail, on unconditional bail or bail should be dispensed with: s 18. If there is an unacceptable risk, the Court will either grant conditional bail or refuse bail: s 19.
9Section 20(1) is a critical provision in the Act, and it is in the following terms:
"A bail authority may refuse bail for an offence only if the bail authority is satisfied that there is an unacceptable risk that cannot be sufficiently mitigated by the imposition of bail conditions".
10It can be seen that s 20 casts an onus on the party opposing bail. The standard of proof for all matters to be determined under the Act is provided by s 32 and the standard is the balance of probabilities. As I have said the Act does not change certain fundamental concepts that lie in the heart of our criminal justice system. An accused person is presumed to be innocent. The ultimate standard of proof before punishment that can be imposed by the State is proof beyond a reasonable doubt. And third, an accused person is generally entitled to be at liberty until the resolution of the allegations made against them.
11In that last respect, the words of Sperling J in R v David Peter Cain (No. 1) (2001) 121 A Crim R 365 continue to apply. His Honour spoke of the interests of the applicant, his legitimate claim to be at liberty and to be with his family living a lawful life pending trial. In that case, the applicant had been in custody for a year and was likely to stay in custody for a further year before trial. His Honour concluded by saying this:
"The prospect that a private citizen who has not been convicted of any offence likely imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights."
12That was the position under the Bail Act 1978 and it continues to be the position today. The length of the adjournment or remand period is a matter specifically referred to in s 17(3)(g). So that in assessing whether there is an acceptable risk, one of the factors to be taken into account is the length of time the accused person is likely to spend in custody if bail is refused.
13Under the new regime, bail applications will continue to be heard with a degree of informality and the Act provides that the rules of evidence do not apply: see s 31.
14In the context of what happened in this Court yesterday, that provision is also important because it says that a bail authority, and that includes a court, can take into account any evidence or information that the bail authority considers "credible or trustworthy".
15That brings me to the present application. To understand the decision that I have come to, it is necessary to set out a brief chronology of the events and the allegations.
16On 13 January 2014, an incident occurred at premises in Manning Road, Double Bay. That is the residence, as I understand it, of the alleged victim and her mother. The alleged victim was, for a number of years, involved in an intimate relationship with the applicant. They have been married for five years and had children together. Up until those events, it seems that the applicant had regular access to his children. The alleged victim's mother had a dental surgery downstairs.
17The incident, as it is alleged, involved the applicant entering the premises and using a firearm, which is described in the fact sheet as a "small black firearm". The gun was allegedly discharged, not in the direction of any person but by firing it into the floor. It said that the police found a bullet hole in the floor and it is also said, and I think accepted, that a gun was subsequently surrendered to the Crime Commission by the applicant's previous solicitor. I am told that the ballistics evidence may support the proposition that the surrendered gun was the gun used on 13 January, but I gather from Mr James' submission that there may be some issues surrounding the use and admissibility of that evidence, due to the circumstances in which the gun was surrendered.
18In addition to firing the gun, it is alleged that the applicant also made various demands of the occupants. I have only briefly referred to the facts of that case because for present purposes it simply sets the backdrop to the questions I have to decide.
19Importantly, from the point of view of considering one of the unacceptable risks referred to in s 17 (the risk that the applicant might fail to appear), the undisputed fact is that later on the night of 13 January 2014, the accused voluntarily attended the Burwood Police Station and surrendered himself to police.
20The facts as I have recounted them, are not only incomplete but they are, I gather, subject to dispute and the dispute will be ultimately litigated in another court.
21On 27 March 2014, Davies J, sitting in the Bail Court granted the applicant conditional bail. In the course of submissions yesterday, I asked Mr James whether I have the power to revoke that bail. Mr James said first that I do have such a power but secondly, he said, and forcefully so, that I would not do so given that (1) there was no application by the prosecution for me to do so and (2) that bail has been granted after a considered decision by a judge of this Court. I accept the second part of that submission and I need not come to any conclusion as to the first part.
22I accept that the applicant complied with the conditions of bail that were provided by Davies J, at least for a period of time.
23On 29 April 2014, two relevant things happened. First, the applicant attended the Central Local Court in accordance with his bail undertaking. Secondly, four people attended the premises at Manning Road, Double Bay where the incident on 13 January had occurred. By April, the alleged victim's mother had arranged for new security systems to be put in place. She did this in response to the events of 13 January. In the event, it seems that those new systems foiled the attempts of those four people from entering the premises. The four people used a ruse in their attempt to enter the premises. One of them, a woman, pretended that she was a patient of the dental practice downstairs. It seems that she dressed in a way that assisted her to blend into the environment that is Double Bay.
24When they got past the first door the woman decamped and the men attempted to go further into premises but they could not get past a second door which a receptionist within the dental practice was able to lock. As I understand it, all of this was captured on closed circuit television footage and the perpetrators who attempted to enter the premises are nominated in the statement of facts associated with that charge. Importantly, it is said that hammers were produced and there were attempts to put on balaclavas. The applicant was not present. He was at the Central Local Court.
25When the matter came before me yesterday in the bail list two things happened. The first is that I asked Mr Shaw for the Crown what evidence there was to connect the applicant to the events at Double Bay on 29 April 2014. I suggested to him that I had read the facts sheet and the evidence therein connecting him appeared to be "gossamer thin". Mr Shaw accepted that description. In a nutshell, the evidence was, first, the temporal coincidence between the applicant's attendance at court and the incident at Double Bay. The police and prosecution say that this was no coincidence but was a calculated attempt to provide the applicant with an alibi. Secondly, the location of the incident was the home of the applicant's estranged wife and children and mother. Thirdly, an association was said to exist between the applicant and one of the four people involved in the incident. That person is Dimitrios Simitci.
26The second thing that happened at the outset of the bail application was that Mr James raised an objection to part of the material tendered by the prosecution and in particular part of a letter that had been prepared by Detective Sergent Paul Mangan for consideration of the court. The part of the letter that was objected to was the suggestion on page 5 that there was evidence that the applicant and Simitci had agreed that the four people would attend the Double Bay premises for the purpose of threatening the victim and other witnesses into withdrawing their statements in relation to the original incident. Mr James said that there was no evidence to support that assertion. I raised with Mr James the fact that there was similar material in the fact sheet and asked Mr Shaw whether there was in fact any evidentiary support for those suggestions or whether it was purely speculation. Mr Shaw told me that there was material to support the allegation but that it had not been served on the defence.
27At that stage I adjourned the case until later in the day and allowed time for the detectives who investigated this allegation to attend court. Some hours later they did so and produced a compact disc containing a record of interview with the man Simitci. There then developed a dispute between the parties as to what was said in the interview and through the industriousness of the applicant's solicitor I was provided with a truncated synopsis which became ultimately exhibit 2. I was told yesterday that the police disputed parts of the synopsis but I have determined for the purposes of the application that it is "credible or trustworthy" material for the purpose of s 31(1) of the Act.
28In any event because of the confusion surrounding the evidence I indicated that it would be preferable if it was entirely clear exactly what Mr Simitci had said. The reason for that is that Exhibit C before me is a statement from Mr Simitci and that statement indicates that he is prepared to give evidence in accordance with that recorded interview. In the absence of the recorded interview the statement is bordering on meaningless. Plainly, if there is evidence supporting a connection between the applicant and the events which took place in Double Bay on 29 April 2014 from Mr Simitci then what I have described as "gossamer thin" may become compelling evidence supporting the motive for that behaviour that is asserted by the Crown.
29The synopsis which was Exhibit 2 included the fact that Simitci had been asked by the applicant to approach "Sandra and ask her to drop the charges". It was also said that Simitci was to "talk to Sandra and see if we can get custody of the children back for her to drop the statements". Later in the extract prepared by the applicant's solicitor Simitci said that he was to "ask if the statements can be dropped nicely and that the applicant was neither angry nor desperate". Mr James relies on other aspects of the extract to submit that the use of hammers, balaclavas and other methods of intimidation were not the idea of his client but either the result of Mr Simitci going beyond the scope of his instructions or his co-offenders doing so.
30This morning the prosecution was in a position to tender Exhibit B which purports to be a transcript of the interview. One thing it does show is that the efforts of the applicant's solicitor yesterday are to be commended. Nearly everything, if not everything, that she had put in her synopsis can be found in the 357 questions and answers of the record of interview. It is unnecessary for me to go into chapter and verse as to what was said but it is the case that in question 36 Simitci says that his cousin (Mr James accepts that that is the applicant) was asked to go and speak to Sandra with a view "to get his kids back to drop the charges". The answer to question 36 indicates that Simitci was asked by the applicant to go and speak to Sandra "and get his kids back, to drop the charges". Again at question 49 the potential witness says that he is asked if he could "just talk to Sandra and see if we can get custody back, to drop the statements and that for her to drop the statements".
31At questions 90 to 91 the witness was asked why did they do it on Tuesday and he answered "[because] of court." In question 91 he was asked to explain what that meant and he said, "Well, my cousin would have been in court so" and the police officer drew the conclusion for him that it would mean there was no way that he, the applicant, could have been there. His answer was "Yep." Again at question 103 there is reference to the objective being for Sandra to drop the statements but in that same question and answer there is much that Mr James relies on which is that he was not there to hurt them. In that answer the witness introduced the word "intimidate" when he said "Well in a way like intimidate but not to hurt her." Mr James has pointed me to a number of questions and answers which show that it was not the witness who introduced the concept of intimidation into the conversation and there is some confusion at the very least surrounding that. He also notes that the witness himself says that he was asked to talk to Sandra "nicely" and that it seems on one reading of what happened, Mr Simitci went well beyond the scope of the request that had been made of him by the applicant.
32I will just note in passing that there was material in the fact sheet which contained evidence that the applicant himself and members of his family were the victims of shooting incidents at their home and directed toward one of their cars. The facts go on to say that the applicant failed to report those incidents to the police. Mr James made a forceful submission that I should give no weight to those matters and I accept that submission. Indeed, this morning the prosecutor very fairly accepted that that material was irrelevant for present purposes.
33I then come to an assessment of whether there are unacceptable risks for the purposes of s 17. Making such an assessment is incapable of precision as it involves an exercise in prediction. Bail authorities do not have a crystal ball. They are not soothsayers. However, making predictive evaluations of risk is not a task that is foreign to the courts. Such predictions are made under other bail regimes throughout Australia, see for example Williams v DPP [2001] 1 QR 99, Dale v DPP [2009] VSCA 212 and Woods v DPP [2014] VSC 1. Such predictions of future potential risk are also made in the context of various statutory regimes in which the executive applies to have an offender detained beyond the expiration of their sentence or where family law orders are designed for the protection of children, see for example Fardon v Attorney-General (Qld) (2004) 223 CLR 575 and M v M (1988) 166 CLR 69 and such evaluations are also part of the sentencing process when suggestions of future dangerousness arise, see for example Beldon v R [2012] NSWCCA 194 at [53].
34As the cases on bail show and as common sense dictates, no grant of bail is risk free. The question under s 17 is whether the risk is an acceptable one. In determining that question the court can only - and I underline only - take into account the various matters in s 17(3).
35I have considered those matters insofar as they are relevant to the applicant's bail application. Having taken those matters into account and taking the most benign view of all of the circumstances, I am satisfied on the balance of probabilities that there is an unacceptable risk that if granted bail the applicant would make an attempt to interfere with witnesses, pursuant to s 17(2)(d). In doing so I am also satisfied on the balance of probabilities that there is a risk that he would commit serious offences and endanger the safety of the alleged victims: s 17(2)(b) and (c). I am not satisfied that there is an unacceptable risk that he will fail to appear: s 17(2)(a).
36Mr James has submitted amongst many other things that continuing to have the applicant in custody may not rule out the possibility that others may act on his behalf. Indeed, if accepted, anything that happened in the second incident and the one with which I am concerned happened in the absence of the applicant. I accept the logic of that submission to a point but I am firmly of the view that the applicant would find it far easier to interfere with the witnesses if he is at large.
37I should say that in making the assessment of risk that I have taken into account the plain fact that the applicant enjoys excellent support of members from his family and friends and the fact that his record is not one that causes significant concern. Although he does have a prior record, it is not a record of any significance. Apart from the incident in question there appears not to be any evidence that he has previously failed to comply with bail conditions or apprehended violence orders or previously committed serious offences on bail. A matter of great concern when considering s 17 and s 20 is the length of time that this case will take to come on for hearing. I have also taken into account the need that he has to be free for other lawful purposes - in particular, his preparation for the court case. However, the nature and seriousness of the offence and what I now see to be the perceived strength of the case have led me to that conclusion.
38Of course that is not the end of the matter. The question turns on whether there are conditions of bail that are capable of mitigating the unacceptable risks that I have found exist: s 20(1) of the Act. In determining that question the onus is placed on the prosecutor and I must determine the question on the information available and on the balance of probabilities. As I have said, I do not take into account the material in the police letter to which objection has been taken but I do take into account the evidence which has now been placed before me in the electronically recorded interview.
39I note that when the matter was before Davies J on 27 March a number of conditions of bail were imposed. That included non-association orders, non-communication orders, residence orders and curfew orders. In particular the applicant was ordered not to communicate directly or indirectly except through his legal advisers with any person of whom he has received notice is to be called or is likely to be called by the Crown at his committal hearing or trial. He was ordered not to associate or communicate in any way with people whom I will not name here but some of them are people who live at the relevant address in Double Bay.
40There is no explanation for the events of 29 April 2014 and what appeared initially to be a "gossamer thin" case now becomes a strong case, at least in the sense that the purpose of the visit there by those people was to influence witnesses regarding the statements they gave in offences of great seriousness. It is difficult to escape that conclusion based on both the temporal coincidence and the comment in the record of interview that the reason they went there when they did was so that the applicant would be at court and thus unable to be identified as part of the approach to the witnesses.
41While Mr Simitci does eschew any violent suggestions on the part of the applicant, the reality is that sophisticated enough attempts were made to breach the security. The use of balaclavas and hammers (which I am told 'just happened' to be there because there were workers in Double Bay using such tools) cause me great concern.
42In view of that history and in spite of the strength of the applicant's family support, the thorough submissions of Mr James and the extremely stringent conditions which amount to house arrest which he proposes, I regard that I am satisfied on balance that the unacceptable risks that I have identified cannot be sufficiently mitigated by the imposition of bail conditions.
43 Accordingly, bail is refused.