Re Brown [2022] VSC 166 (4 April 2022)

1 This is an application for bail by Rohan Michael Brown ('the applicant'), who is self-represented. By application filed in this Court on 24 December 2021, he seeks bail in relation to 51 charges brought by Senior Constable Simona Tuica (the 'Tuica matter'), as follows:

(a) stalking (nine charges);

(b) using a carriage service to menace, harass or cause offence (nine charges);

(c) intimidating a law enforcement officer or a family member of a law enforcement officer (nine charges);

(d) harassing a witness (four charges);

(e) contravening a conduct condition of bail (10 charges)

(f) committing an indictable offence whilst on bail (nine charges); and

(g) contravening a personal safety intervention order ('PSIO').

2 The applicant is alleged to have committed the offending in the Tuica matter between 31 August 2020 and 11 August 2021. During that period, the applicant was on bail in respect of the following charges:

(a) stalking (three charges), and using a carriage service to menace, harass or cause offence (three charges) brought by Detective Senior Constable Iain Samson (the 'Samson matter'); and

(b) contravening a conduct condition of bail, and harassing a witness (two charges) brought by Detective Senior Constable Andrew Russell (the 'Russell matter').

3 The applicant was granted bail in the Samson matter in the Melbourne Magistrates' Court on 3 August 2018, and in the Russell matter by me on 15 November 2019. The applicant remains on bail in both those matters.

4 The applicant has been in custody since his arrest in the Tuica matter on 11 August 2021. He was refused bail in the Melbourne Magistrates' Court on 27 August 2021 on the basis that he was considered to be an unacceptable risk of committing an offence while on bail.

5 The Tuica matter is next listed for committal case conference and committal mention in the Melbourne Magistrates' Court on 20 January 2022.

6 The Samson matter is next listed for mention in the Melbourne County Court on 31 January 2022, followed by a trial in that Court commencing on 8 February 2022. The Russell matter returns to the Melbourne Magistrates' Court for special mention on 24 February 2022.

7 The applicant was charged in the Samson matter on 16 July 2018 following a referral to the Victorian Fixated Threat Assessment Centre ('VFTAC'). His referral to the VFTAC and the charges laid against him were the result of a number of emails, telephone calls and Facebook posts between 6 March and 16 July 2018 in which the applicant is alleged to have abused, harassed and offended individual members of Victoria Police and Corrections Victoria staff.

8 The applicant was remanded in custody in the Samson matter until 3 August 2018, when he was granted bail in the Melbourne Magistrates' Court.

9 On 9 September 2019, the applicant was arrested and charged in the Russell matter for allegedly continuing to use the internet to harass and offend a number of public servants via email and Facebook posts between 29 July and 6 September 2019. He was remanded in custody and was subsequently refused bail in the Magistrates' Court. The applicant then filed an application for bail in this Court on 15 October 2019.

10 On 15 November 2019, I granted the applicant bail in respect of the Russell matter. The conditions of bail imposed by me included that the applicant reside at [redacted], that he not contact any witnesses for the prosecution, including the informant, that he not use social media, the internet and/or emails to publish any communication that is of a menacing, offensive, harassing, abusive, disparaging or threatening nature, that he not attend within 200 metres of a Victoria Police Station other than to report a bona fide offence or attend court, that he not otherwise communicate with any member of Victoria Police, and that he not cause any other person to engage in conduct prohibited by his conditions of bail.

11 The charges the subject of the present bail application relate to multiple phone calls allegedly made and numerous emails, Facebook and text messages allegedly sent by the applicant to a number of Victorian Police members and their associates between 31 August 2020 and 11 August 2021. Those members of Victoria Police are known to the applicant in relation to various matters, including matters currently before the courts. It is the prosecution case that the content of those communications was derogatory, harassing, and offensive in nature, leading several of those in receipt of the communications to suffer psychological harm and anxiety.

12 The prosecution further alleges that applicant's conduct is in contravention of the conditions of bail imposed by me in the Russell matter on 15 November 2019, as is his alleged failure to reside at the address stipulated in my orders. The applicant's alleged contact with a particular Victoria Police member is also said to be in contravention of a Personal Safety Intervention Order ('PSIO') made by the Melbourne Magistrates' Court on 14 October 2017 prohibiting the applicant from contacting or communicating with that person.

13 The applicant was arrested on the morning of 11 August 2021 and a search warrant was subsequently executed at his [redacted] residence. He was then transported to the Melbourne West Police Station and charged with 46 of the 51 charges he currently faces in the Tuica matter. He was then remanded in custody, where he has remained. A further five charges were laid in the Tuica matter on 11 November 2021.

14 The applicant is 51 years old and identifies as a First Nations person. He reports that prior to his remand, he resided with a friend in [redacted] and was engaged in full-time work in his own online marketing business. He states that he was also at that time beginning to reconnect with his now 18-year-old son, who he notes has been diagnosed with autism.

15 In support of his application for bail, the applicant has provided a psychiatric report authored by Dr Leon Turnbull, dated 11 December 2017. In that report, Dr Turnbull indicates that the applicant would likely meet the criteria for a diagnosis of autism spectrum disorder.

16 The applicant has a criminal history commencing in 1986 including convictions for drunk driving, dishonesty and violence offences. His criminal history also discloses relevant convictions for stalking (two counts in 2017), assaulting a police officer (2017), making a threat to kill (2017), using a carriage service to menace (two counts in 2017), contravening a conduct condition of bail (2017), committing an indictable offence whilst on bail (three counts in 2017), failing to answer bail (1995 and 2017), contravening a community correction order (2018), contravening a PSIO (seven counts in 2017), and contravening a family violence intervention order ('FVIO') (2017).

17 In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Act.[1]

18 Contravening a conduct condition of bail and committing an indictable offence whilst on bail are both Schedule 2 offences within the meaning of s 3 of the Bail Act 1977 (Vic) (the 'Act').[2] The applicant is charged with these offences in the Tuica matter whilst on bail for other Schedule 2 offences in the Samson and Russell matters, namely, contravening a conduct condition of bail,[3] and stalking in circumstances where he has previously been convicted of the same offence within the preceding 10 years.[4] Accordingly, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances exist which justify the grant of bail.[5]

19 In determining whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those prescribed in s 3AAA(1) of the Act.[6]

20 The phrase 'exceptional circumstances' is not defined in the Act, but has been the subject of much judicial commentary. A number of decisions of this Court have held that in order to be considered exceptional, the totality of the circumstances relied upon by the applicant must take the case out of the ordinary such that bail is justified.[7] In referencing a number of common factors relied upon to reach this threshold, the Court of Appeal in Roberts v The Queen observed:[8]

[47] What appears to underpin the judicial recognition of these different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending...

[48] It is the perceived need to avert or mitigate such injustice which justifies the grant of bail - provided always that the circumstances can properly be characterised as exceptional.

21 If satisfied that exceptional circumstances exist, the Court must apply the 'unacceptable risk test'.[9] That is, bail must be refused if the respondent satisfies the Court 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.[10]

22 In considering whether any relevant risk is unacceptable, the Court must again have regard to the 'surrounding circumstances' contained in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[11]

23 As the applicant identifies as a First Nations person, s 3A of the Act is enlivened, requiring the Court to take into account any issues that arise due to the applicant's Aboriginality, including his cultural background, ties to extended family or place, and other relevant cultural issues or obligations.

24 Finally, as the applicant is charged with a Commonwealth offence,[12] the Court must have regard to s 15AB(1)(b) of the Crimes Act 1914 (Cth). Section 15AB(1)(b) provides that in determining whether to grant bail to a person charged with an offence against a law of the Commonwealth, or in determining conditions to which bail granted to such a person should be subject, a bail authority:

(b) must not take into consideration any form of customary law or cultural practice as a reason for:

(i) excusing, justifying, authorising, requiring or lessening the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates; or

(ii) aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.

25 In the material filed in support of the present application, the applicant details a number of grievances with Victoria Police and the Victorian criminal justice system generally which will not be reiterated in these reasons as they are irrelevant to this application.

26 The following is a summary of the surrounding circumstances that the applicant relied upon to demonstrate the existence of exceptional circumstances justifying the grant of bail.

27 The applicant contended that his alleged conduct does not amount to serious examples of the offences with which he is charged. In particular, he characterised his email correspondence to the complainants in the Tuica matter as non-threatening and truthful. I would observe that this is not the applicant's strongest argument.

28 The applicant submitted that informant Tuica admitted under cross-examination during his earlier application for bail in the Magistrates' Court that she did not investigate the allegations made by the complainants, but rather, relied upon their statements, which he characterises as misleading and fraudulent. Further, with respect to the specific allegation that he contravened the PSIO in place to protect a member of Victoria Police, the applicant counters that charge by submitting that the PSIO itself was obtained by fraud.

29 He further contended that the prosecution case is frivolous, vexatious and lacking any chance of success owing to the fact that his conduct was carried out as an act of self-defence to terminate his continuing remand, which he considers an unlawful deprivation of his liberty. In particular, the applicant asserted that his remand was unlawful as he was not provided a copy of the charges laid by informant Tuica on 11 August 2021 until nine days later on 20 August 2021.

30 The applicant also challenged the capacity of the prosecution to establish the 'physical' element of the various offences with which he is charged, and contended that it will have similar trouble demonstrating the 'fault' element by reason of his provisional diagnosis of autism.

31 The applicant submitted that his criminal history is a matter of contention, and asserted that his previous convictions dating back to July 2012 have been obtained by fraud.

32 The applicant submitted that he was compliant with a previous grant of bail made in the Supreme Court in September 2016 until such time as he asserts he was physically assaulted and arbitrarily detained by a member of Victoria Police.

33 The applicant also claimed that the subject matter of the charges which are now laid against him was, in a sense, necessary due to his interactions with police. In my view, this argument has no prospect of success.

34 The applicant acknowledged that he was on bail in the Samson and Russell matters at the time of the alleged offending, but argued that the charges in those outstanding matters are also frivolous and vexatious, with no chance of success. He advised that those charges are being contested in the Magistrates' and County Courts with the applicant intending to advance self-defence as an argument in both matters.

35 The applicant outlined a number of ties to the jurisdiction, including his relationship with his son, his online marketing business, and his residence in [redacted] which he shares with a good friend.

36 As I have already stated, the applicant identifies as a First Nations person, and prior to his remand, had been actively pursuing his family history on his father's side, which he has traced back to Bourke in New South Wales.

37 The applicant relied on the report of Dr Turnbull to support the contention that he has a diagnosis of autism. He submitted that he has no access to his psychiatrist while on remand, nor his physical therapist, to whom he was referred for shoulder problems sustained during his arrest on 11 August 2021.

Attitude of the complainants regarding the grant of bail

38 The applicant contended that each of the complainants in the Tuica matter have been actively involved in various forms of misconduct as detailed in his affidavit in support of the application for bail.

39 The applicant contended that the sentence he may receive if found guilty of the present offences is irrelevant given the likelihood that the charges will not ultimately proceed. In particular, he submitted that the hand-up brief for the Tuica matter was, at the time of writing, 24 days' overdue.

40 In concluding his application for bail, the applicant appeared to suggest that he is the subject of a malicious prosecution. He sought orders for his immediate release from custody and for the return of his property.

41 The respondent, by way of response, conceded that it is open to the Court to find that exceptional circumstances exist that justify the grant of bail. Primarily, the concession is made on the basis of the applicant's autism diagnosis, the relationship the applicant is seeking to establish with his son and other relevant circumstances the respondent appears to accept are capable of amounting to exceptional circumstances.

42 The respondent nevertheless opposed the application on the basis that the applicant, if released on bail, poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail, interfering with a witness or otherwise obstructing the course of justice in any matter, or failing to surrender into custody in accordance with the conditions of bail.

43 In an affidavit filed with the Court on 12 January 2022, informant Tuica detailed that contrary to the applicant's assertion that he was not provided a copy of the charges in this matter until 20 August 2021, a copy was left with the applicant's property while he was being held in a police cell following his interview on 11 August 2021. Informant Tuica deposed that the charge sheets then travelled with the applicant when he was taken from the Melbourne West Police Station to the Metropolitan Remand Centre. She further stated that a copy was also emailed to Victoria Legal Aid, whose services the applicant subsequently refused. The applicant reportedly stated that he had still not received a copy of the charges during a hearing in the Magistrates' Court on 19 August 2021. Informant Tuica stated that a further hard copy of the charge sheets was then hand delivered to the Melbourne Assessment Prison and placed in the applicant's property following the hearing.

44 With respect to the applicant's submission that the hand-up brief in the present matter had not been filed by the due date of 12 November 2021, informant Tuica stated that she attended the Ravenhall Correctional Centre on that date to serve the brief in person. When she was advised that the facility was in lockdown due to a positive COVID-19 case having been detected on site, informant Tuica stated that she gave a copy of the hand-up brief to the property clerk to provide to the applicant and was given a receipt confirming same.

45 In her 12 January 2022 affidavit, informant Tuica contended that the applicant poses an unacceptable risk within the meaning of the Act as follows.

Endangering the safety and welfare of any person

46 Informant Tuica stated that the applicant has continued to harass and intimidate the complainants in the present matter, some of whom are witnesses in this and other matters currently before the courts. One of the complainants is undertaking counselling to deal with the mental stress caused by his dealings with the applicant, while other complainants have all taken periods of leave from work as a result of the applicant's harassment.

47 It was further submitted that the applicant has continued to send correspondence to informant Tuica while on remand in the guise of legal communication which includes offensive language and descriptors of Victorian Police members and others, such as defective, corrupt, low-life and terrorist. Informant Tuica deposed that the applicant fails to grasp the impact of his actions, with his correspondence often mocking the complainants along with their treating doctors and counsellors.

48 Informant Tuica contended that the applicant's conduct far exceeds any genuine engagement with police informants usually seen in the course of their work and notes that his contact with one police member resulted in the Melbourne Magistrates' Court imposing a PSIO which remains in place until 13 October 2022. In addition, informant Tuica advised that other members of Victoria Police have each made applications for PSIOs which have not yet been heard and determined in the Magistrates' Court. Informant Tuica further advised that the applicant has in the past been the respondent to five other intervention orders which have now expired, and noted that he has a number of previous convictions for relevant offences, including unlawful assault, stalking, and making a threat to kill.

49 Informant Tuica noted that the applicant is charged in the present matter with committing further offences against the Act while on bail for contravening a conduct condition of bail in the Russell matter. In addition, she noted that the applicant has prior convictions for contravening a conduct condition of bail, committing an indictable offence whilst on bail, failing to answer bail, contravening a community correction order, contravening a PSIO, and contravening a FVIO.

50 Informant Tuica contended that this history demonstrates that the applicant has little regard for court orders, and that despite being granted multiple opportunities, has continued to offend whilst on bail against the same complainants.

Interfering with a witness or otherwise obstructing the course of justice in any matter

51 The applicant currently faces a number of charges for harassing prosecution witnesses. Informant Tuica contended that the applicant has utilised assorted methods to harass those individuals, several of whom have expressed concerns about giving evidence in court by reason of the applicant's intimidation tactics. Informant Tuica further submitted that some of the complainants have felt compelled to change their behaviours out of concern that the applicant may locate them and/or their family members.

Failing to surrender into custody in accordance with the conditions of bail

52 Informant Tuica contended that the risk of the applicant failing to surrender into custody in accordance with conditions of bail is established by his prior convictions for failing to answer bail and his demonstrated resistance to complying with court orders.

53 Informant Tuica stated that there are no conditions of bail available that would render the above risks acceptable.

54 In my ruling on the applicant's application for bail in 2019 for the Russell matter, I said:

[67] I have considered the meaning of 'exceptional circumstances' alongside the relevant factors of s 3AAA of the Act raised by the applicant, particularly the applicant's vulnerability and, perhaps most importantly, the delay that will occur before the Russell matter will be finalised. In my opinion, and in view of the respondent's concession, exceptional circumstances have been established by the applicant justifying a grant of bail.

55 The respondent makes the same concession in this application and the applicant's vulnerability to which I referred in 2019 still prevails. In the circumstances, I am prepared to conclude that exceptional circumstances that justify the grant of bail have been established. In my view, the applicant's conduct, troublesome and offensive as it is, is the product of a mental health condition for which he needs assistance. Those steps will have be taken sooner or later. In my opinion, these circumstances are exceptional.

56 The next question to be determined is whether the respondent has established that the risk of releasing the applicant on bail would be unacceptable within the meaning of the Act.

57 During the course of the hearing of the applicant's application for bail in 2019, the following exchange occurred between the applicant and myself:

APPLICANT: I certainly fully comprehend that sending emails to members of the police station (indistinct) benefit me and ah if I had to learn to---

HIS HONOUR: Well, if I release you on bail toady---

APPLICANT: I won't be sending any emails - further emails.

HIS HONOUR:---and you do, you know what happens.

APPLICANT: Absolutely and they - they'd be able to find me, ah, I know, five minutes flat, and make sure I'm back into remand or the cells or whatever so I certainly don't want to go back down that same path. That would be foolish.

58 As a result of this exchange, in my ruling I said:

[69] I am satisfied that the applicant clearly understands that if he were to breach his bail conditions, he would immediately be returned to custody. I am also willing to accept the applicant's perception that it would be futile to engage in such behaviour. The applicant is an intelligent man and, in my view, has a clear understanding of his present circumstances.

[70] The conditions that were imposed in the Samson matter are quite stringent and would achieve the effect of preventing the applicant from engaging in the kind of impugned conduct currently alleged, if they are complied with.

[71] Whilst I do not take it as an undertaking as such to the Court, as I have made clear, the applicant has given an assurance that he clearly understands that the immediate effect noncompliance will be a return to custody. If that means that he is in custody until the Russell matter comes on for hearing in the County Court in over a year's, then that will be the consequence. In my opinion, the potential delay of more than 12 months puts a new context around the issue, and it is very much in the applicant's interests to comply with the conditions that I intend to impose.

59 I think it is obvious from recent events that I was in error in my assessment of the applicant at that time and in my acceptance of his assurance. Since I released the applicant on bail in 2019, he has allegedly committed the offending in the informant Tuica matter.

60 On this application, when the matter narrowed to a discussion about whether releasing the applicant on bail posed an unacceptable risk, I asked the applicant to enter the witness box and he was affirmed. The applicant affirmed, as the transcript will reveal, that he would not communicate with members of Victoria Police and other government agencies other than in a respectful and professional manner.

61 As counsel for the respondent insightfully observed, this matter somehow has to be brought to a conclusion. The applicant cannot be kept in custody indefinitely. The most pragmatic way to deal with this matter is to endeavour to impose conditions of bail on the applicant that will prevent a recurrence of this kind of offending. Counsel for the respondent appeared to concede in the course of submissions that appropriate conditions of bail could be imposed to ameliorate the risk of releasing the applicant on bail to an acceptable level.

62 In all the circumstances, I am not persuaded that the applicant poses an unacceptable risk within the meaning of the Act. I am sure that the applicant understands, after all the opportunities that have been extended to him, that this is absolutely and completely his last opportunity to comply with his bail obligations. Any breach of the conditions I will shortly indicate will result in his immediate return to custody.

63 The applicant will be admitted to bail and I make the following orders:

1. The said Rohan Michael Brown ('the applicant') be admitted to bail upon his own undertaking and with the following conditions:

(a) The applicant reside at [redacted] in the state of Victoria ('place of residence');

(b) The applicant not leave his place of residence between 9:00 pm and 7:00 am ('curfew hours');

(c) The applicant present at the at the front door of his place of residence during the curfew hours upon the reasonable request of the informant Detective Senior Constable Simona Tuica or her nominee, being an authorised member of Victoria Police;

(d) The applicant must not change his place of residence, nor should he attempt to do so, unless he has notified the informant 7 days prior to any proposed change of address;

(e) The applicant not contact or associate with, whether directly or indirectly, any witnesses for the prosecution, other than the informant;

(f) The applicant is not to use social media of any description, the internet, and/or email to publish any communication that is of a menacing, offensive, harassing, abusive, disparaging or threatening nature;

(g) The applicant is not to attend within 50 metres of any Victoria Police station other for the bona fide reason of reporting an offence or attending a court;

(h) The applicant is not to communicate in any manner, whether in person or telephone, text message, Whatsapp or any other platform, with any member of Victoria Police, officer or employee of the Government of Victoria or officer of the Office of Public Prosecutions, subject to condition (i);

(i) The applicant may communicate with an officer of the Office of Public Prosecutions in order to respond to an enquiry relating to court proceedings where he is the accused, but not initiate any such contact;

(j) The applicant is not to cause any other person to engage in conduct prohibited by this order on his behalf; and

(k) The applicant is to appear:

(i) at the Melbourne Magistrates' Court at 2:00 pm on 20 January 2022 and thereafter as directed by that Court.

(ii) at this Court, for the purpose of judicial monitoring, at 9:30 am on Tuesday 1 February 2022; and

(iii) at the Melbourne County Court at 9:30 am on 8 February 2022 and thereafter as directed by that Court.

[1] Bail Act 1977 (Vic), s 1B(2).

[5] Ibid, ss 4AA(2)(c)(i), 4A(1A), 4A(2).

[6] Ibid s 4A(3).

[7] See, e.g., Re KE [2021] VSC 175 [50] (Kaye JA); Re Sam [2017] VSC 91 [22] (Beach JA).

[8] [2021] VSCA 28, [47]-[48] (Maxwell P, Niall and Emerton JJA).

[9] Above n 1, s 4D(1)(a).

[10] Above n 1, ss 4E(1)-(2).

[11] Ibid, s 4E(3).

[12] Namely, using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth).