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[2020] VSC 561
Supreme Court of Victoria
2020-09-02
LASRY J
Original judgment source is linked above.
1 This is an application for bail by John Assaad ('the applicant').
2 The application is made in connection with serious offences arising from an alleged agreement between the applicant and his father, Pierre Assaad (the 'co-accused') to engage the services of a "hitman" to carry out two murders. The intended victims of that agreement were the applicant's estranged wife and a man who was a pastor at their church.
3 On 18 June 2020, the applicant was arrested at his home by police and later charged with two counts of conspiracy to commit murder, two counts of incitement to murder, possessing cartridge ammunition without a licence, and contravening a family violence intervention order ('FVIO') intending to cause harm or fear. He has been in custody since his arrest.
4 On 2 July 2020, the applicant applied for bail in the Melbourne Magistrates' Court. On 7 July 2020, the application for bail was refused. Although the presiding Magistrate was satisfied that exceptional circumstances justifying the grant of bail had been established, she refused bail on the basis that the release of the applicant on bail involved an unacceptable risk within the meaning of the Bail Act 1977 (Vic) (the 'Act').[1]
5 The co-accused was charged with three counts of conspiracy to murder and three counts of incitement to murder. The further charges against him relate to an alleged plan, in which the applicant was not involved, to also arrange for the murder of his ex-wife (who is also the applicant's mother). The co-accused has not made an application for bail.
6 The matter is next listed for committal mention on 11 September 2020 at the Melbourne Magistrates' Court. On present indications, there would be no contested committal proceeding prior to the second half of 2021 and, consequently, little chance of a trial in this Court before the middle of 2022. I am told there is no chance of resolution in this matter.
Background and circumstances of the alleged offending
8 The applicant's mother and father were married for approximately 25 years. The applicant is the eldest of their five children.
9 It is alleged that the applicant's father subjected the applicant's mother to ongoing family violence throughout their marriage. The applicant's mother sought guidance from the pastor at her church, who encouraged her to report the family violence to police. The co-accused later formed the belief that the applicant's mother and the pastor had also engaged in an affair.
10 The marriage between the co-accused and the applicant's mother ended in December 2014, following a particularly violent assault on her by both him and the applicant. Both men were charged in relation to that incident, and an FIVO was made against them, naming the applicant's mother as the protected person. Reportedly, the applicant's mother later resumed contact with the applicant after the FIVO expired, but their relationship was no longer a close one.
11 In 2016, the charges against the applicant were resolved by a guilty plea to the charge of resisting police, and he received a discharge following a court diversion.
12 The co-accused is alleged to have transferred all the family assets into the applicant's name to circumvent any claims made by the applicant's mother in the divorce.
13 In July 2017, the applicant married his now-estranged wife in Lebanon. She moved to Australia to live with him. Over the course of their marriage, it is alleged that the applicant repeatedly beat, choked and threatened his estranged wife. The applicant is alleged to have told her that he would kill her if she went to the police.
14 However, on 12 March 2020, the applicant's estranged wife attended the Reservoir Police Station to report an incident from the previous day. She told police that the applicant had assaulted her following a dispute over laundry. During the course of the assault, the applicant allegedly smashed a plastic bucket over her head, pushed her to the floor, hit her with a wooden chair until it broke, choked her, and then hit her head with a frying pan.
15 It is alleged that he then told her not to tell anyone what had happened or he would kill her, stating, 'You know how much money I have. I can pay someone to come after you'. The applicant's estranged wife believed that the applicant meant that he would pay someone to kill her, and she took this threat seriously. Later that morning, the applicant's estranged wife told the applicant that their marriage was over.
16 While at the police station, police took photos of the injuries alleged to have been caused during the assault. The applicant's estranged wife also made further allegations of serious violence. This included one occasion where the applicant is alleged to have pointed a loaded firearm at her while threatening to kill her.
17 On 25 March 2020, the applicant was arrested and interviewed in relation to those allegations and released pending charges. A search warrant was executed at his residence, and police seized four firearms that were registered to his brother as well as ammunition. At that time, the applicant did not have a firearms licence as a result of the 2014 FVIO. The applicant was eventually charged in relation to these allegations of family violence and the firearms offences on 26 June 2020, and he remains on summons for those matters (the 'informant Carland matters').
18 On 2 April 2020, a final FVIO was issued by the Broadmeadows Magistrates' Court against the applicant, naming the applicant's estranged wife as the affected family member. The FVIO expires on 1 April 2021 and prohibits the applicant from, amongst other things, attempting to locate, surveil or contact her.
19 It is alleged that the applicant and his father believed that the applicant's estranged wife shamed and embarrassed their family by contacting the police and separating from the applicant. They were also concerned that the applicant's estranged wife would be entitled to half of the family's substantial assets in a divorce as they remain in the applicant's name. Accordingly, they agreed with each other to have the applicant's estranged wife murdered.
20 The prosecution further allege that they also agreed to have the pastor murdered as the applicant and co-accused believed he caused the breakdown in the marriage between the co-accused and the applicant's mother, a fact that the co-accused has been unable to forgive.
21 In the following weeks, Victoria Police became aware that the co-accused was looking to engage someone to commit the murders for payment. On 21 May 2020, the co-accused met with a person he believed to be a such a person but who was in fact a covert police operative ('CO').
22 At their meeting in a Bunnings' parking lot, the co-accused is alleged to have been extremely surveillance conscious, taking steps to ensure their conversation was not recorded. The co-accused is alleged to have explained his reasons for having the complainants murdered and agreed to pay $40,000 for each person. The co-accused is also alleged to have agreed to provide the CO with a dossier of information for both intended victims. Once ready to proceed, the co-accused was to call the CO and give the coded message: 'I have the building plans and permits'.
23 The co-accused and CO discussed destroying their mobile phones once the murders were carried out, with the co-accused indicating he may obtain a second mobile phone and use a computer at the library while collecting the dossier information in order to avoid detection. Following their initial meeting, the co-accused only contacted the CO using public phones. Shortly after the co-accused first met the CO, he called the applicant to confirm that they could still meet later that day.
24 Although the applicant did not meet with the CO himself, to establish the agreement between them, the prosecution relies on: intercepted telephone conversations of the applicant and his co-accused, the frequency of their communications over the phone and in person, and the fact that their in-person meetings often took place after the co-accused's contact with the CO.
25 On 22 May 2020, the co-accused contacted an associate to see whether he had a spare mobile phone that the co-accused could purchase. He then offered to pay the associate to buy a SIM card and credit on his behalf. That evening, the applicant met the co-accused at his residence.
26 On 23 May 2020, the co-accused asked whether the applicant trusted an unnamed third person and, before he responded, he reminded the applicant to be cautious when using phones as they might be tapped.
27 Additional intercepted conversations record them discussing their intention to get family and members of their community to obtain information about the applicant's estranged wife's whereabouts, under the guise of mediating a reconciliation between the couple. Between themselves, the applicant and his co-accused are alleged to have said the plan to mediate was 'fake', they were 'putting on a show', and 'it is a game they have to play now.'
28 In another conversation, the applicant asked his friend, Maryo Girges, to take screen shots of anything on the applicant's estranged wife's Facebook page that would damage her character and credibility. His request to Mr Girges came shortly after the co-accused had advised the CO that the 'library was closed' and he was therefore having issues printing off 'the council documents' and 'plans and permits'.
29 It is alleged the true intention of these inquiries was to collect the applicant's estranged wife's details to provide to the CO.
30 On 3 June 2020, although only a short time after the applicant left the co-accused's residence, the co-accused called the applicant. It is alleged the two had a "coded" discussion involving the applicant 'working with a picture', and confirming that 'he knew what needed to be done and what they required'.
31 The following morning, the applicant allegedly purchased a subscription to NordVPN, which would allow him to browse the internet anonymously. He also used his work computer to compile extensive information relating to the pastor, including photographs of him and his family members as well as details of his movements, routine and places he frequents. He is then alleged to have called his co-accused and, in another coded conversation, he said, 'Good news', to which the co-accused replied, 'Thank you very much'.
32 The next day, 5 June 2020, the applicant called the co-accused to advise that 'what he was preparing was ready'. The co-accused then called the CO from a public phone and stated, 'The plans and permits are ready'. He advised he would contact him in a few days to arrange a time and place to meet.
33 In the following days, the co-accused and the applicant had 24 phone conversations and one in-person meeting before the co-accused again contacted the CO on 10 June 2020. He confirmed that he had all the documents and was 'good to go'. He again advised he would call later to set up a meeting.
34 That night, after another meeting between the applicant and the co-accused, the co-accused called the applicant. They engaged in a coded conversation wherein the applicant informed the co-accused that he has money for a 'farm', which appears to have confused the co-accused. The applicant clarified the money was for 'anything he sees' and 'in case he sees something that he thinks is worth it and doesn't have the money'.
35 On 11 June 2020, the applicant contacted the co-accused to ask whether he needed anything, to which the co-accused responded, 'Everything is already done'.
36 On 12 June 2020, the co-accused made arrangements with the CO to meet at the same Bunnings carpark on 14 June. The applicant and the co-accused met afterwards and, between 12 and 14 June 2020, the two called each other nine times.
37 On the morning of 14 June 2020, a police surveillance unit ('PSU') observed a meeting between the applicant and co-accused outside the co-accused's residence. The applicant is alleged to have handed an unknown item to the co-accused while they looked into the open boot of a vehicle registered to the co-accused's partner. The PSU then observed the applicant putting his wallet back into his pocket.
38 At approximately 12:21 pm that afternoon, the co-accused met with the CO as planned. It is alleged that the co-accused gave the CO a blue folder containing the dossier on the pastor as well as the agreed deposit for his murder. The deposit, being $4,950 in cash, was wrapped in a black plastic bag.
39 They discussed the logistics of the murders, and the co-accused is alleged to have indicated he now wanted the applicant's mother to be killed as well. He is alleged to have told the CO he was '2000 per cent sure' he wanted to proceed with the murders of the pastor, the applicant's estranged wife and the applicant's mother. The co-accused then visited the applicant at his home for some two hours.
40 On 15 June 2020, the applicant allegedly used his work computer to view his estranged wife's Facebook page and later made a request of his insurance company to remove his estranged wife from the family's policy. The next day, the applicant called Mr Girges to tell him a psychic that he had unexpectedly encountered had said that his estranged wife would 'not be here much longer' and that 'she was the second person to have told him that recently'.
41 On 18 June 2020, the applicant and co-accused were arrested. A search warrant executed at the co-accused's home located: a wallet containing $640 and a card with the phone numbers of the CO and the pastor written on it; $16,900 in cash, wrapped in black plastic similar to what was used for the deposit; $1,050 in cash underneath his bed; and a mobile phone, printer and computer.
42 Search warrants were also executed at the applicant's home and his business address. Police seized shotgun ammunition; three knives in a backpack in his vehicle; and multiple printers, computers, mobile phones, hard drives and CCTV devices from his home. At his business address, police located a set of nine coloured folders, which were the same kind as the folder holding the dossier given to the CO. Investigators noted that the folders are sold in packs of 10, and the blue folder was missing from the pack seized.
43 The applicant and co-accused both provided 'no comment' interviews, save for the applicant denying that he had met with his father on the morning of 14 June 2020.
44 Subsequent forensic examination of the dossier provided to the CO identified the applicant's fingerprints on eight of the documents and the co-accused's fingerprints on four of the documents. Examination of the applicant's work computer linked the dossier documents to the search history on the computer. Investigators also noted that text messages sent by the applicant to his estranged wife over a two-year period show an escalation of family violence. The results of further forensic examination of seized electronic devices are presently outstanding.
45 The applicant is 27 years of age and grew up in the Templestowe area. He attended Doncaster East Secondary College before pursuing a finance course at Swinburne University of Technology in 2011.
46 In 2015, the applicant took over his father's business called Half Price Salon Supplies, a wholesaler of hair and beauty supplies, when his father briefly returned to Lebanon. He continued to manage the business until his arrest in June 2020.
47 The applicant has no prior criminal history, save for the discharge following the successful completion of a court diversion program to which I have already referred.
48 As previously noted, the applicant was charged on summons on 26 June 2020 in relation to the informant Carland matters, namely, making threats to kill (two counts), being armed with a firearm with criminal intent, unlawful assault with a firearm, possession of a longarm without a licence, recklessly causing injury, unlawful assault, and unlawful assault with an instrument (three counts).
49 In the present application, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail.[4]
51 In order to reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant 'must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail'.[6] Exceptional circumstances may be established by reason of a single exceptional circumstance, or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[7] A combination of delay, onerous custodial conditions, and the relative weakness of the prosecution case may, when considered with all relevant circumstances, compel the conclusion that exceptional circumstances have been established.[8]
52 If the Court is satisfied as to the existence of exceptional circumstances, it must then apply the unacceptable risk test.[9] That is, bail must be refused if the Court is satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act and that such risk is an unacceptable risk.
53 In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the 'surrounding circumstances' contained in s 3AAA of the Act and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
54 The applicant is currently subject to a final FVIO as well as allegations of family violence offences in relation to his estranged wife. Accordingly, the Court must consider whether there is a risk the applicant would commit family violence if released on bail and whether the imposition of conditions could mitigate that risk.[10]
56 Mr Dunn, of senior counsel, for the applicant relied upon a number of matters in combination to demonstrate the existence of exceptional circumstances justifying a grant of bail.
57 Counsel on behalf of the applicant conceded that the alleged offending is serious, however, he submitted that the prosecution case in relation to the applicant is entirely circumstantial and is therefore not a strong case.
58 Mr Dunn referred to a lack of evidence, circumstantial or otherwise, connecting the applicant to the co-accused's dealings with the CO. He submitted that the applicant's actions relied upon by the prosecution, such as meeting with his father at dinner time, are equivocal and incapable of supporting the inference that the applicant was party to an agreement to murder any person.
59 In the written materials filed in support of the application, it was submitted that none of the applicant's recorded conversations support the proposition that the applicant was aware of his co-accused's plans and are instead indicative of a family anticipating divorce proceedings. In particular, the co-accused similarly warned his niece to be wary of phone tapping as the applicant's estranged wife might be taping their conversations and, in the applicant's call with Mr Girges, he clearly stated he wanted information to discredit his estranged wife in court.
60 Counsel for the applicant also contended that, notwithstanding the co-accused's longstanding dislike of the pastor, at the earlier application for bail, the informant conceded there was no evidence of hostility on the part of the applicant towards the pastor.
61 It was submitted that the applicant will be facing a significant delay in having these matters go to trial as a result of the COVID-19 pandemic. The parties appeared to agree that it is unlikely the applicant's trial in this Court could proceed until the middle of 2022. That is, of course, a very significant delay and, in the ordinary course, would be unacceptable. Mr Dunn has submitted that such a period of remand is even more significant where there is a prospect of acquittal, as in this case.
62 The applicant nevertheless accepted that he faces a significant term of imprisonment if found guilty of the charges. There is no question arising of the period on remand exceeding a sentence that would be imposed were the applicant to be found guilty of the charges.
63 The applicant is currently on remand at the Metropolitan Remand Centre. When first entering the facility, he was subject to a 14-day quarantine period and, since then, has been confined to his cell on further occasions due to concerns regarding COVID-19 within the prison.
64 On behalf of the applicant, counsel submitted that the applicant's anxiety regarding exposure to COVID-19 while on remand will make his time in custody more onerous, as will the associated anxiety regarding the health of his paternal grandmother and the impact of both COVID-19 and his absence on his business.
65 In the written materials, it was submitted that the applicant has been unable to have personal visits since he was arrested, and it is anticipated that these restrictions will remain in place for the foreseeable future.
66 As previously stated, the applicant has no prior criminal history, save for the discharge in 2016, and no previous contraventions of bail alleged against him.
67 His current remand represents his first time in custody. It was submitted on behalf of the applicant that the time he has spent on remand will serve as a 'salutary lesson' of the significance of complying with bail, particularly in light of the onerous conditions of his custody to date.
Stable accommodation, ties to the jurisdiction and surety
68 In the written material filed in support of the application, it is submitted that the majority of the applicant's family resides in Melbourne, which provides him with a large support base in Australia.
69 If granted bail, the applicant proposes to reside with his uncle, Kamel Assaad, at 54 Floristan Grove, Eltham. Kamel Assaad lives at that address with his wife, daughter and son-in-law. At the hearing of the application, he gave evidence that he is willing to offer an undertaking to immediately notify the informant in the event the applicant breached any conditions of his bail.
70 In addition, Kamel Assaad is willing to offer a surety of $200,000 by way of equity in the proposed bail address. In the written material, it was submitted that residing with his surety would create an additional safeguard against any breaches of bail.
71 It was submitted on behalf of the applicant that Half Price Salon Supplies would be unable to continue should he remain in custody. An undated letter from Tanisha Bartolo, a casual sales assistant, was annexed to the affidavit in support. In her letter, Ms Bartolo states that she is the only other employee at Half Price Salon Supplies and is currently managing its operations alone. However, she indicates that, as a result of limited training and lack of authorisation, she unable to continue sales and the business may shut down.
72 It was further submitted that the applicant's business services the mortgages on his three properties. A letter from the applicant's accountant, which was also annexed to the affidavit in support, expressed the opinion that the business not sustainable in his absence, and its closure may lead to foreclosure on his properties.
73 The written material stated that, prior to remand, the applicant's primary residence is a rural, 100-acre property containing livestock, which are currently being cared for by friends and neighbours. It was submitted that the support is unlikely to continue long term.
74 Further, it was submitted that the applicant's paternal grandmother, Martha Assaad, is of poor health and requires a caregiver. Exhibited to the materials was a letter from Martha Assaad's general practitioner, Dr Sam Assaad, reportedly of no relation. The letter states that she requires an in-house caregiver due to her conditions, which are described as 'multiple medical and mental conditions' for which she has 'multiple medications and... medical appointments'. The written material indicated that the co-accused and the applicant had been her primary and secondary carers, respectively.
75 Although other family members have provided support in their absence, it is suggested their resources are stretched. It is proposed that, should the applicant be granted bail, he would take on a significant role in caring for his grandmother.
76 If granted bail, the applicant proposes to have his location electronically monitored via an ankle bracelet administered through Attenti Australia Pty Ltd ('Attenti'), a private company. The service, which costs $25,000 (excluding GST) for 12 months, would be funded by the applicant. It is submitted that such monitoring will provide an additional supervisory layer should he be released on bail.
77 Philipp Schluter, the Business Development Manager at Attenti, gave evidence at the hearing of the application. In his evidence, he stated that, if the applicant were to be bailed with a condition imposing electronic monitoring, a GPS device in the form of an ankle bracelet fitted to the applicant by an Attenti technician. The device would provide the applicant's location every 30 minutes and can be configured to create a "geofence" to enforce conditions of bail such as exclusion zones or curfew. Mr Schulter advised the Court that, in the event the applicant attempted to tamper with or remove the device, a notification would be sent to a nominated police officer notifying them of the breach within 20 seconds, in addition to a secondary contact and the closest police station, if required.
78 Counsel on behalf of the applicant submitted that the above factors also address the issue of risk and that his lack of criminal history is of particular relevance in assessing his risk of reoffending. The applicant proposed a number of conditions that could be imposed upon the applicant that would mitigate the risk to an acceptable level.
79 In the course of his submissions, Mr Dunn proposed an additional condition that the applicant's funds be placed in a trust account held by either his accountant or solicitor and that he not be permitted to access those funds without the informant's oversight.
80 Mr Hutton, on behalf of the respondent, opposed the application on the basis that the applicant has failed to demonstrate exceptional circumstances justifying the grant of bail. The respondent also submitted that the risk the applicant posed, if released on bail, was unacceptable.
81 In response to the applicant's submissions regarding the strength of the prosecution case, the respondent conceded that the case against the applicant was not as strong as the one against his co-accused. It was also conceded that the case in relation to the charges regarding the pastor was also stronger than those regarding the applicant's estranged wife. However, counsel for the respondent did not concede that the case against the applicant is weak. It is submitted that the evidence, while circumstantial, it is substantial.
82 In the written materials filed in opposition to the application, the respondent noted the following evidence in particular:
83 The respondent also relied on a sworn statement authored by the informant in this matter. In that statement, the informant outlined his concerns regarding the suitability of the proposed surety. In particular, at the previous bail application, Kamel Assaad stated that he was unaware of the charges faced by the applicant, and did not view the actions of his family members as being 'his business'.
84 During the hearing of the present application, Kamel Assaad was aware that the applicant had been charged with 'plotting to kill' someone. He did not know of any charges that related to the applicant's estranged wife and was unaware of the applicant's history with firearms. When asked how he would supervise the applicant's access to mobile phones, Kamel Assad stated he 'wouldn't have a clue' but would do his best.
85 The informant's statement also says that the applicant's business is running at usual capacity, subject to COVID restrictions, and that there are more employees at Half Price Salon Supplies than Ms Bartolo. Investigators also have evidence that Mr Girges has been overseeing its operation, including a call with the applicant on 29 July 2020, where Mr Girges stated that he could run the business full time and employ staff should the applicant be refused bail.
86 In addition, investigators understand the applicant has access to considerable funds, assets and equity. On 10 August 2020, the applicant is alleged to have told Mr Girges that he had enough money in an offset account to service his mortgages.
87 The informant indicates that, prior to his arrest, the applicant's was regularly assisted on his rural property by his brothers, other family, and his neighbour, George Kesic. Mr Kesic has continued to look after the farm while the applicant has been on remand along with another neighbour.
88 The informant also referred to evidence in the form of call records and location data to establish that the applicant has not been a caregiver for his grandmother. During the hearing, under questioning from the respondent's counsel, Kamal Assaad gave evidence that family members, include the co-accused, had been involved in her care, but the applicant had not.
89 With respect to the proposed electronic monitoring condition, the informant states that investigators are unfamiliar with Attenti and have not previously worked with them in any capacity. The informant also held concerns over the company's interests in circumstances where the applicant would be its paying client.
90 Additionally, in response to questioning by Mr Hutton, Mr Schluter acknowledged that the device is reliant on a mobile network and cannot send tracking location if the device loses reception. He indicated that, in these circumstances, the system would provide an alert of the last known location.
91 For my part, I would be reluctant to support such a condition where the supplier of the device was a private company who regarded an accused person as their client.
92 Counsel on behalf of the respondent submitted that the applicant, if released on bail, poses an unacceptable risk of:
93 The respondent submitted that there are significant concerns for the safety of the complainants and their families, given the nature of the offences alleged. It was also submitted that this risk is increased given the applicant's access to firearms, despite his licence having been cancelled, especially when combined with his alleged history of serious violence against others. The written material indicates that the complainants are extremely fearful of the applicant, and his release on bail would cause them apprehension and disrupt their lives.
94 Mr Hutton, on behalf of the respondent, further submitted that the applicant has demonstrated a willingness to have others perform acts for him and has significant assets to back those requests. It was further submitted that the applicant has also utilised family members and associates to breach court orders, specifically the FIVO in place to protect his estranged wife, as previously mentioned.
95 In addition to the present allegations, the informant notes an incident following the applicant's arrest in which a female, unknown to the applicant's estranged wife, attended her workplace. She asked questions about the applicant's estranged wife and stated that she knew the applicant. The applicant's estranged wife also reported that she has received persistent phone calls from private numbers.
96 The informant also referred to a phone call between the applicant and Mr Girges on 30 June 2020 regarding the difficulty Mr Girges had raising money for the applicant's bail. It is alleged that the applicant directed Mr Girges to move to a private room where he would not be overheard and then instructed him to retrieve a heavy toolbox from the applicant's factory. The applicant told Mr Girges to take the toolbox away from the factory before opening it and to not take it to his residence. He is alleged to have said, 'Everything else will be in there, and I can't say much more'. This, it was submitted, suggests that the applicant is either using others to hide something relevant to the investigation or to collect his money to fund his own surety.
97 At the hearing of the application, the informant gave evidence that the applicant's mother, who will be a witness for the prosecution, received a text message from Mr Girges the evening before the hearing, which purported to convey a message from the applicant. The message said:
Hi, I hope you are well. I have a message from John. Request that Julian Bisi to please pray for him at 7:15pm tonight, while he also prays at the same time. Thank you.
98 The informant stated that the applicant's mother did not understand the message, and she was very distressed when she received it. It is noted that, during cross-examination by Mr Dunn, the informant conceded that they did not have any other evidence at that time that the applicant had instructed Mr Girges to send that message.
99 Finally, counsel for the respondent noted that the applicant has $1.2M in bank accounts in Australia. He is also a dual citizen of Lebanon and has extended family in that country. On this basis, the respondent submitted that the applicant poses a flight risk. Despite the current restrictions on international travel, it was submitted that, given the length of time before any trial, these circumstances may change.
100 Overall, the respondent submitted, through Mr Hutton, that any conditions imposed on the applicant would not mitigate these risks to an acceptable level.
101 The first question is whether the applicant has established the existence of exceptional circumstances that would justify a grant of bail, the onus being on him to do so.
102 I am conscious of the often-stated, broad principle that exceptional circumstances can be established by one factor that is, of itself, exceptional or by a combination of factors that may not be exceptional in themselves but together achieve that result. With that context, I will deal with the relevant surrounding circumstances from s 3AAA of the Act.
103 In examining the nature and seriousness of the offences, it is not in contention that the charges of conspiracy and incitement to commit murder are very serious and, if proved, expose the applicant to a maximum penalty of life imprisonment pursuant to ss 321C and 321I of the Crimes Act 1958 (Vic).
104 The strength of the prosecution case was in contention during the hearing of this application and is an important consideration in circumstances where the evidence has yet to be tested at a committal proceeding.
105 The issue in the trial will, of course, be whether the applicant and his father conspired to arrange for the killings of the pastor and the applicant's estranged wife. Mr Dunn, on behalf of the applicant, relied on there being no direct evidence of any contact between the applicant and the CO. The respondent accepted that to be so. The case against the applicant would be significantly stronger if the evidence demonstrated that he also met with the CO and took part in the discussions that concerned these proposed killings but such evidence is not necessary to prove the charges he faces. This is a circumstantial case but that does not mean the case is without strength.
106 At this early stage, the only meaningful observation I can make is to say that there is a circumstantial case to which the applicant has a viable defence and some prospect of acquittal. However, on the material as it stands in relation to all charges, I would not conclude it is a weak case.
107 Next, the applicant does not have a criminal history, though there are subsequently charged informant Carland matters that have not yet been dealt with.
108 As to the applicant's personal circumstances reliance was placed on the assertion that his family, business and financial assets mean that he has significant ties to Victoria.
109 It was also put that the applicant and his family would experience significant hardship should he remain in custody. He has an interest in a salon supplies business and owns several properties, which are subject to mortgage. It was also put that the applicant would be involved in some form of caring activity for his grandmother who suffers from physical ailments referred to in a three-line letter from a doctor and which were about as non-specific as they could possibly be. I think it unlikely that the applicant will be involved in any "team" in the care of his grandmother.
110 As to the delay in this matter coming on for trial, I have previously noted that if bail is refused, the applicant is likely to spend at least a further two years in custody before trial given the present circumstances. The length of that time may vary depending on the progress of the attempt by the State Government to deal with the COVID-19 pandemic. In my view that is a significant delay. In the present climate of a COVID-19 pandemic, it is not just the likely delay but the uncertainty that surrounds all criminal trials in this state which is to be considered. Mr Hutton, on behalf of the respondent very fairly conceded that 'a delay in the vicinity of two to three years to get to trial is well capable of being viewed as an inordinate delay, and that's the circumstance that we are all in at the moment'.
111 Having considered all of the matters relied on by the applicant, I have reached the conclusion, based on the likely delay of two or more years before this trial can be heard, the applicant's lack of prior convictions, and the circumstantial nature of the prosecution case that exceptional circumstances that would justify a grant of bail have been established.
112 However, that is not the end of the matter. I must next determine whether the risk of releasing the applicant on bail is an acceptable one and, here, the onus is on the respondent.
113 Reliance is placed by the applicant on his family support and financial ties to Victoria. His uncle, Kamel Assad, has been proposed as a surety and has undertaken to contact the informant if the applicant were to breach his bail conditions. It is concerning that Kamel Assad seemed to have very little knowledge of the charges his nephew was facing.
114 As to the applicant's history, though previously on a diversion for resisting police, he kept that diversion and has abided by the 2014 FVIO.
115 Whilst the respondent' concerns as I have outlined them are entirely appropriate, I have reached the view that the appropriately strict conditions can mitigate the risk arising from the applicant's release. The conditions I propose to impose are intended to directly address those concerns of the respondent, particularly in relation to the applicant's access to substantial assets and firearms as well as the prospect of him being a flight risk. As can be seen, some of those conditions will need to be complied with prior to the applicant's release on bail. In my view, the conditions I have formulated are capable of making the risk of releasing the applicant acceptable.
116 I would add that I propose to monitor this matter to some degree. The orders I am about to make will be provisional and I will require the applicant to present himself before this Court at 9:30 am on Tuesday, 22 September 2020. On that date, I will review the applicant's compliance with these conditions to that point and determine whether the orders should be continued.
117 I will now ask the parties for their submissions on the conditions which I have formulated as being appropriate to be imposed.
[1] Bail Act 1977 (Vic) s 4E ('Bail Act').
[6] Re CT [2018] VSC 559 [64] citing with approval Re Sam [2017] VSC 91.
[7] Re CT [2018] VSC 559 [65] citing with approval Re Fairest [2015] VSC 375.
[8] El Nasher v DPP (Vic) [2020] VSCA 144 [42].