Re Application for Bail by Sam Abdulrahim [2017] VSC 411 (17 July 2017)

2 The applicant was charged with causing death by culpable driving, and various related offences, arising out of a fatal collision that occurred on 10 July 2015. These matters are the subject of a County Court trial that is currently scheduled to commence on 20 November 2017.

3 After being interviewed and charged with these offences, the applicant was bailed on his own undertaking.

4 Subsequently, on 5 December 2015, the informant made an application in the Magistrates' Court to vary the applicant's bail so as to include a condition that he not drive a motor vehicle. That application was opposed by the applicant, who was present in Court. The particular incident that prompted the variation application arose out of an interception by police of the applicant on 6 November 2015. He was seen to be driving a motor vehicle in an erratic manner, including having overtaken another vehicle over a single white line. The applicant produced a South Australian driver licence to police. Inquiries revealed that he had made an application on 23 July 2015 to obtain such a licence, but had given a false address to do so.

5 The application for variation of bail was granted by the magistrate, who found that the applicant had acted dishonestly in obtaining the South Australian licence. Accordingly, as from that day, the applicant was no longer permitted to drive in this State.

6 Subsequently, a contested committal on the charge of culpable driving, and the related matters, was heard on 8 and 9 February 2016. On that day, the applicant was committed for trial, and granted trial bail.

7 In or about November 2016, the applicant was arrested and charged with affray and assault at a bar. The allegation is that, on 22 July 2016, the applicant, in company with three other men, became involved in a brawl. Punches were thrown, and the applicant is said to have picked up a bar stool and used it to keep others at bay, while a co-accused fought with the primary victim. The applicant then left the bar, but shortly thereafter returned alone. He was then set upon by several others. He was charged and bailed in relation to this matter in November 2016.

8 In the interim, on 4 August 2016, police executed a warrant at a particular address in Epping. During the search, a .22 calibre handgun, a 9 mm Beretta handgun, a quantity of ammunition and 150 grams of methylamphetamine, together with $1900 in cash was located. The applicant was found in one of the rooms of the house, where a firearm was located. Bail conditions were set in relation to this matter.

9 On 15 January 2017, the applicant and an unknown male attended the Star Car Wash in the lower carpark of the Highpoint Shopping Centre. They left a vehicle to be washed. CCTV footage taken from inside the Shopping Centre depicts the applicant as having, at about 4.45 pm, returned to the car wash. The applicant and the unknown male were told that the car was not yet ready, and that they would have to wait another quarter of an hour or so. An argument ensued. The applicant can be seen on the CCTV footage to be advancing towards the main victim, who steps back, before handing over the keys to the car. The applicant and the unknown male are then seen to walk away. However, the applicant's companion then throws a fruit juice cup at the victim. The victim then ran out of the office, and both the applicant and the unknown male followed him, before they retreated. A melee then ensued, involving the applicant, the unknown male and about seven employees of the Car Wash. The CCTV footage shows the various individuals involved using poles, bats, chairs and upright benches as weapons. This took place in the presence of members of the public. Eventually, the incident came to an end, with no one having, at that stage, been injured.

10 However, both the applicant and the unknown male then returned to their vehicle. The applicant got into the driver's seat. The CCTV footage from a different camera, extending over a period of 15 seconds, depicts the applicant driving the vehicle forward, away from the employees, who were huddled in a group, before aggressively reversing it, some ten metres or so, into the crowd. The employees can be seen to disperse in a hurried manner. The applicant then drove forward through the group, and through the car park. During the applicant's reversing of the vehicle, a particular individual was struck by the boot of the car. He suffered pain, stiffness and bruising. A second individual was clipped by the applicant's vehicle. He suffered cuts, and grazing to the legs and hands.

11 The applicant was arrested and charged on 19 January 2017, in relation to the Star Car Wash incident. He was remanded in custody. He sought bail in the Magistrates' Court but his application was refused.

12 It can be seen, therefore, that, at the time the applicant was charged and remanded for the offences at the Star Car Wash, he was already on at least two sets of bail. The trial bail, as varied, the subject of the culpable driving matter, specifically prohibited him from driving a motor vehicle. To make matters still worse, the applicant was also a suspended driver as a result of a demerit points loss of licence, which came into effect on 9 January 2017. That suspension was activated as a result of two traffic infringement notices issued on 12 May 2016, arising out of the applicant having driven a vehicle at between 35 and 40 kilometres above the posted speed limit. He had also been driving a prohibited vehicle, having had only a probationary licence at the time.

13 The circumstances giving rise to the charge of culpable driving should be more fully set out. The applicant was driving a silver two-door Ferrari Spider that belonged to his brother when, at about 3:10 pm on Saturday 27 June 2015, he was involved in a collision with a Mazda sedan, driven by Ms Lynette Vernall. The collision resulted in the death of Ms Vernall's elderly mother, Muriel Hallett, and a number of serious injuries to Ms Vernall. The applicant is alleged by police to have been driving at a speed of about 125 kilometres per hour in a 60 kilometre per hour zone. He is said, while travelling south along High Street, Reservoir, to have crossed from the left lane, over into the right lane, and onto the wrong side of the road, where the Ferrari crashed into several oncoming vehicles, one of which was the Mazda.

14 Witnesses say that the Ferrari appeared to have hit the left kerb, skidded and rotated clockwise across the right lane, and into the right northbound lane, directly into the path of oncoming northbound traffic. It is alleged that, by his driving, the applicant unjustifiably and to a gross degree failed to observe the standard of care expected of a reasonable driver.

15 On 15 February 2017, Judge Hannan, in the County Court, revoked the applicant's bail in relation to the culpable driving and related offences matter. That led to the applicant foreshadowing an application for bail in this Court that was listed to be heard on 1 March 2017. However, that application was withdrawn, when it was agreed between the parties and Lasry J that it would be more appropriate for the applicant to make a fresh application for bail before Judge Hannan, based upon what were agreed to be new facts and circumstances.

16 Those new facts and circumstances essentially came down to a delay in the commencement of the culpable driving trial, which had been scheduled to begin on 28 February 2017. The delay was brought about by the need to obtain further evidence regarding the speed at which the applicant was driving including, it is said, evidence from Ferrari, in Italy. It seems that the applicant, while conceding that he was exceeding the speed limit at the time, maintains that he was not travelling at anything like the speed estimated by police.

17 On 6 March 2017, Judge Hannan rejected the application for bail that she had earlier heard on 1 March 2017. She noted that she had previously revoked the applicant's bail on the culpable driving and related offences charges, on 15 February 2017, but accepted that the new trial date amounted to a change of facts and circumstances.

18 In her reasons for refusing bail on 6 March 2017, her Honour observed that the prosecution had opposed bail on the grounds that the applicant posed an unacceptable risk of committing offences whilst on bail, and/or through that offending, endangering the safety and welfare of members of the public. She noted that the submissions advanced on behalf of the applicant, challenging only the actual speed at which he was travelling at the time of the collision, in effect conceded that charges of dangerous driving causing death and serious injury were made out.

19 Judge Hannan recited the history of the applicant's offending, subsequent to the culpable driving incident in July 2015. She said that she had viewed the CCTV footage of the Star Car Wash incident, and that she regarded the applicant's conduct on that occasion as 'concerning at best'. She observed that, not only was he driving at the Car Wash, contrary to the terms of his bail, but that he was driving 'appallingly'.

20 Judge Hannan noted that the applicant's brother had given evidence in support of his application for bail. The brother said that, if bail were granted, he would employ the applicant, and supervise his curfew at night. He offered an assurance that the applicant would never leave his sight. He also offered to stand surety in the sum of $100,000.

21 Judge Hannan observed that the applicant's brother had previously posted surety in the sum of $150,000. She commented upon the fact that the brother had given detailed evidence before her, denying knowledge of the litany of breaches and further offending by his brother, as alleged by the prosecution.

22 Her Honour considered the applicant's brother's answers to be evasive, and said that she did not find him an impressive witness. She concluded that the brother was entirely unsuitable to supervise the applicant's bail in any sense. In those circumstances, she was satisfied that the applicant was an unacceptable risk of committing offences whilst on bail. She added that, given the nature of those offences, he was also an unacceptable risk of endangering the safety and welfare of members of the public. She added that she had no confidence that the applicant would comply with any conditions of bail.

23 The application for bail relates to both the culpable driving matters, and the Star Car Wash incident.

24 Before me, it was submitted that, as regards the culpable driving matter, the defence would be that, contrary to the prosecution case, the applicant was driving at somewhere between 60 and 80 kilometres per hour at the relevant time, and not at the speed alleged by the police. The applicant's solicitor deposed that, in the pending trial, there was a 'significant and real prospect' of the charges being reduced to dangerous driving causing death, and similarly related offences, rather than culpable driving. He said that was because there was no suggestion that the applicant had been using drugs, or that he had consumed any alcohol, at the time.

25 The solicitor further deposed that the informant in the Star Car Wash matter had accepted that what occurred on that occasion was spontaneous, and 'clearly the result of the actions of the co-accused'. The solicitor went on to say that the applicant was not guilty of any offence in respect of the Star Car Wash incident, other than the charge of driving whilst his licence was suspended. Indeed, he asserted that the CCTV footage would serve to exculpate his client.

26 The solicitor also claimed, among what he described as 'other relevant circumstances', that while the applicant had been in custody, there had been 'protective concerns' in his classification and, as a result, he was spending considerable time in isolation, in lockdown.

27 Finally, the solicitor referred to a report prepared by Dr Michael King, a clinical psychologist. That report contained a proposal for treatment and support of the applicant until trial. It noted that the applicant's father's mental health had recently deteriorated. It seems that the applicant had been a regular caregiver for his father, and it is suggested that his incarceration may have been having some deleterious effects upon his father's wellbeing. Dr King gave evidence before me on the bail application, and I shall deal with that evidence later in these reasons for judgment.

28 In response to the applicant's solicitor's affidavit, the solicitor with the conduct of culpable driving matter for the prosecution asserted that the charge of culpable driving would proceed. She described the case against the applicant regarding the speed at which he was travelling as 'strong'.

29 The prosecution solicitor went on to say that it was not accepted that the applicant had not driven intentionally into the group of people at the Star Car Wash. Moreover, it was not accepted that he had played a lesser role in that incident than the unknown male with him. Finally, it was not accepted that the CCTV footage in any way exculpated the applicant. Rather, it was submitted that the footage substantiated the prosecution case that the applicant had intentionally reversed the car into a crowd of people.

30 The solicitor then said that the applicant's various offers to report more frequently to police, to provide a substantial surety, and to comply with a curfew, did not alleviate police concerns that he was an unacceptable risk of committing further offences whilst on bail, and of endangering the safety and welfare of members of the public. She referred to the applicant's prior convictions, and emphasised his appalling driving record in support of that submission.

31 Finally, the solicitor noted that the applicant had not been classified as a 'protective prisoner'. Rather, he had been placed in the Management Unit because of intelligence received about his links to other criminal figures, and/or his outlaw motorcycle gang affiliations.

32 As regards the report of Dr King, the solicitor noted that the bases upon which his opinions were expressed were scantily addressed. She foreshadowed that the prosecution would seek to cross-examine Dr King at the bail application.

33 The starting point must be ss 18 and 18AA of the Bail Act 1977. Section 18(1) provides that an accused who has been refused bail, and is in custody pending the hearing or trial of a charge may make a further application for bail. Section 18AA provides that a court must not hear an application under s 18 unless, relevantly, the applicant satisfies the court that new facts or circumstances have arisen since the refusal of bail. However, nothing in s 18AA derogates from the right of a person in custody to apply to the Supreme Court for bail.

34 Accordingly, the applicant is not required to show 'new facts or circumstances'.

35 The applicant is, however, required to show cause pursuant ss 4(4)(a) and (d) of the Bail Act 1977. That is because he is charged an indictable offence alleged to have been committed whilst he was on bail awaiting trial for another indictable offence. Accordingly, the Court must refuse bail unless he shows cause why his detention in custody is not justified.

36 The police contend that the applicant is an 'unacceptable risk' of committing further offences while on bail, and consequently of endangering the safety and welfare of members of the public. In the support of that contention, they rely primarily upon the applicant's lengthy record of offending, and his history of breaching court orders.

37 I have seen the CCTV footage of the Star Car Wash incident. It is fair to say that, in my view, it neither exculpates the applicant, nor conclusively establishes his guilt of the various offences with which he is charged arising out of his driving on that occasion. In any event, a bail application such as this is not the appropriate occasion on which to delve deeply into disputes about the strength about the prosecution case, in the absence of more conclusive material.

38 Much the same can be said of the submission that the applicant has a viable defence to the charge of culpable driving. An assertion of that kind is incapable of being tested, on the limited material available.

39 What is significant is the fact that Judge Hannan noted that the applicant had virtually conceded that he was guilty at least of dangerous driving causing death, and related offences. That concession on his part was repeated before me by Mr Hill QC who, in his eloquent and cogent submissions, recognised the reality of the situation, and acknowledged that the applicant would readily offer a plea to the lesser offence if one were available to him. Indeed, I was told, entirely frankly, that such an offer had been made.

40 That is the context within which this application must be considered. On any view, the applicant will be sentenced to a substantial term of imprisonment, whether it be for culpable driving causing death, or dangerous driving causing death. At best, therefore, he stands to gain some four months or so of freedom between now and November of this year, if he were granted bail.

41 No doubt, that period of four months would be of some benefit to the applicant. He could utilise that time to receive psychological counselling from Dr King. He would also be able to assist the members of his family in looking after his father who is suffering from significant cognitive impairment, and requires constant care. Nonetheless, the granting of bail in this case would only be a temporary respite, or Band-Aid solution, to the current family difficulties, and those of the applicant himself.

42 In that regard, as previously mentioned, Dr King gave evidence before me on this application. Essentially, he said that he had been asked by the family to see the applicant's father who was obviously suffering significant cognitive difficulties. He confirmed that the father was finding it difficult to focus, and needed regular and sustained care. He had been asked by the family to see the applicant as well. It was not his normal practice, as a clinical psychologist, to see prisoners in custody, or to prepare reports regarding their mental state. He had, however, on this occasion, made an exception. He had seen the applicant once, for about two hours. He had assessed him, using certain tests, and found him to be at the lowest level of cognitive functioning, further marred by moments of what appeared to be 'a complete disruption to his train of thought'. He noted that the applicant had gone into what he described as a 'fugue state' as soon as he was put under pressure of psychological testing. He explored the applicant's history, and referred to several events in his childhood that might have contributed to his current difficulties. He described the applicant as having a major mental illness which he said would certainly satisfy the criteria of Post-Traumatic Stress Disorder. He considered that the applicant might, with further treatment, change his ways in the future. He indicated a willingness to treat the applicant if released on bail. I regarded Dr King as an impressive witness.

43 The applicant's older sister gave evidence before me as well. She said that she is currently living at home with her parents, a younger sister and a brother. She is not working at present, and is unlikely to be working again in the immediate future, as, sadly, she is suffering from a serious illness. She indicated that her father needed regular care, which she and her siblings, as well as her mother, provided. She undertook to look after the applicant if he were bailed, not permitting him to leave home except in her company. She said that she would contact police immediately if he failed in any way to comply with bail conditions. She gave the same assurance on behalf of her younger sister.

44 I had no hesitation in accepting the applicant's sister as a credible witness. Nonetheless, her evidence was something of a two-edged sword. She left me with the clear impression that her father was being well cared for by all the members of the family, and that any contribution that the applicant might make in that regard, while useful, and of benefit in terms of relieving the strain upon other family members, was by no means essential.

45 During the course of argument, I explored with Mr Hill the applicant's entire criminal record. His convictions go back as far as 2009, but the oldest ones are Children's Court matters, and of no particular relevance as far as I am concerned.

46 The applicant's adult convictions really begin in 2013. They include driving at a 'speed dangerous' while using a mobile phone, for which he was convicted on 18 October 2013, and fined $3000, as well as disqualified from driving for 12 months. On the same day, he was convicted of driving whilst his driver licence was suspended and sentenced to two months' imprisonment, wholly suspended.

47 On 2 December 2014, the applicant was convicted of common law affray and fined $750. On 7 May 2015, the applicant was convicted of having breached his earlier suspended sentence, which was then extended by a further six months. The breach consisted of driving whilst his driver licence was suspended. On 15 December 2015, the applicant was convicted of common law affray and fined $2000. On 22 March 2016, the applicant was convicted again of common law affray and given a 18 month Community Correction Order, requiring him to perform 200 hours of community work. On 4 November 2016, he was convicted of contravening a conduct condition of bail and of stating a false name or address and fined an aggregate of $1000. Finally, on 29 May 2017, the applicant was again convicted of common law affray and fined $1000.

48 In addition, the applicant is presently facing the charges that are set out in paragraph 8 of these reasons for judgment. Those matters are listed to be heard on 31 August 2017 at the Heidelberg Magistrates' Court. I was told they would be contested.

49 Mr Hill submitted that what was significant about the applicant's prior convictions was that he had never previously received a term of imprisonment that had to be served, and the six months or so that he has now spent in custody, since January 2017, was his only experience of actual custody.

50 Finally, Mr Hill submitted that, were I to grant bail, under stringent conditions, the applicant would not pose an unacceptable risk of further offending.

51 Mr Hannan, who appeared in opposition to the grant of bail, submitted that the applicant's record of offending, including his disregard of court orders, breaching bail, and otherwise involving himself in quite serious acts of violence bespeaking anger management problems, meant that the onus resting upon him to show cause why his continuing detention was not justified had not been discharged.

52 I concluded that, notwithstanding Mr Hill's powerful submission, the applicant had not satisfied me that he did not pose an unacceptable risk of further offending. That offending might take one of two forms. The applicant appears to have a 'short fuse', taking umbrage at even the mildest of provocations, resulting in his becoming violent. Merely by being in the company of his sister, assuming that could be assured, would not overcome that risk.

53 In addition, the applicant has shown himself to be an utter menace on the roads. He has, on more than one occasion, driven when not permitted to do so, and in a manner dangerous to others. He has obtained a South Australian driver licence dishonestly, and by fraud.

54 When one balances all these matters, with the virtual certainty that the applicant will be incarcerated for a substantial period of time later this year, irrespective of whether he is dealt with for culpable driving or some lesser offence, the only conclusion reasonably available was that bail should be refused. It was for these reasons that I rejected his application for bail.