Re Edwards [2025] VSC 498 (19 August 2025)

2 The charges the applicant faces, and for which she seeks bail, have been consolidated into a single proceeding in the Magistrates' Court. The consolidated proceeding is being managed in the new Intensive Case Management List, which was established to deal with proceedings requiring a priority hearing. As a result, the proceeding is currently being mentioned in court on a weekly basis.

3 In support of her application, the applicant relied on two affidavits of Ms Sarah Dunstan dated 6 August 2025 and 14 August 2025 and the oral evidence of Ms Ellen Bailey, Mental Health clinician attached to the Royal Melbourne Hospital. In resisting the application, the respondent relied on two affidavits of Mr Leigh Harrison dated 13 August 2025 and 14 August 2025. Both parties filed written submissions.

4 The offending for which bail is sought spans the period 22 January 2021 to 30 June 2025. The offending ranges from lower level property offending, such as thefts and obtaining property by deception to much more serious offending involving violence, such as intentionally cause injury, make threat to kill and assault with a weapon. There are charges of burglary, aggravated burglary, criminal damage and handle stolen goods, as well as charges involving controlled weapons and drugs. There are numerous charges of fail to answer bail, contravening conduct conditions of bail and committing an indictable offence while on bail.

5 The number of charges is voluminous and I do not intend to summarise, or even categorise, all of the offending. The most serious offending involves the charges laid by the informants Janiw, Fengler and Bain‑King.

6 The Janiw charges consist of aggravated burglary, burglary, two charges of theft and dealing with property suspected to be the proceeds of crime. This offending is said to have occurred on 14 February 2021. The statement of alleged facts sets out the following:

On 14th February 2021 at approximately 11:20PM, the accused entered the rear yard of the victims address by jumping the side gate. The accused was carrying a black backpack.

The premises is a single story house with a backyard. The backyard contains a laundry and a undercover gym area, both detached from the main residence of the house.

The accused walked to the rear of the premises where she entered the laundry through an unlocked door. Whilst inside the laundry the accused located a black leather satchel bag belonging to the victim's father, [redacted]. The accused walked to the gym area of the backyard where she used the black bag, and placed two small weighted plates inside the bag. The accused returned to the laundry where she placed a beach towel, a doorstop and a roll of toilet paper inside the bag.

The accused then entered the residence by the back door of the house which was unlocked. Whilst inside the residence the accused rummaged through the kitchen and lounge room. The accused located a set of AirPods on the kitchen table and placed them in the jacket she was wearing. The accused also located and moved two kitchen knives from the kitchen of the residence.

At approximately 11:30PM, the victim [redacted] was lying in her bed in her residence at Charnwood Crescent in St Kilda. The lights were off in the house as the victim was going to sleep. Whilst lying in bed, the victim [sic] noises coming from the lounge room inside the house. The victim heard her dog growling and went to inspect the noises. The victim walked from her room to the lounge room where she observed a silhouette of a person moving things in the lounge room, at this stage the lights were still off.

The accused then confronted the victim and stated "my girlfriend said I could come here". The victim turned the lights on [sic] observed the accused wearing a red coat, carrying a black backpack and the black satchel with a roll of toilet paper in it. The victim immediately called "000" for Police.

The accused, overhearing the victim calling the Police began to walk towards the front door of the premise, the victim attempted to block the accused from getting to the door whilst on the phone causing the accused to physically push and shove the victim. Whilst this was happening the victim observed her father's AirPods case fall from the accused's person and stated "you're stealing from me".

At this stage the victim was in between the accused and the front door inside the house. The accused stated "I'm going to break the glass" and swung the bag at the door used the black satchel bag containing the weight plates to swing at the victim and the front door.

Failing to escape out the front door, the accused headed towards the back door on the other side of the house. The victim followed and grabbed the accused to prevent her from escaping pulling her red coat off her. The accused got to the back door and began trying to unlock it. The victim grabbed the accused to prevent her escape. Whilst this was happening the victim observed a kitchen knife on the floor which she noticed was not there prior to going to bed.

The accused escaped through the back door and jumped the side fence of the premises, leaving the black satchel at the base of the side gate. The accused was located and arrested in the front yard of the address by Senior Constable Jonathan IRIS and Constable Sarah WELLER.

7 The Fengler charges are alleged to have been committed on 16 February 2021, whilst the applicant was on bail. There is a charge of make threat to kill and a charge of assault with a weapon. The statement of alleged facts sets out the following:

On 16 February 2021 around 12:30PM accused attended the driveway beside the Beverley Crest Hotel situated at 47 Barkly Street, St Kilda.

Accused approached victim [redacted] in the driveway between 53 and 47 Barkly St, St Kilda. Accused attacked [redacted] and used a screwdriver in a stabbing motion to [redacted]'s abdomen resulting in no visible injury. The victim then ran back to her apartment with the accused following her. The accused [sic] repeatedly banged on the victims door shouting that she was going to kil her. The victim was fearful for her life.

8 The Bain-King charges are alleged to have occurred on 25 January 2023, whilst the applicant was on bail. The charges include a charge of intentionally cause injury said to have been committed by the applicant against a person who had let her sleep at his apartment for the night. The statement of alleged facts sets out the following:

On Wednesday 25 January 2023 at approximately 5:00AM, the accused became agitated and verbally abusive towards [the victim] over a dispute about personal belongings.

The accused picked up a black handled steak knife with a 5 centimetre long blade from inside the apartment and stabbed [the victim] in the left hand side of his ribs causing a 1 centimetre deep laceration.

9 In the Magistrates' Court, the bail application proceeded on the basis that the applicant was required to show a compelling reason that justifies the grant of bail because she has been charged with a schedule 2 offence under the Bail Act 1977 ('the Act'). The application to this Court was made on a similar basis. However, the parties have now agreed that the applicant must satisfy the Court that exceptional circumstances exist that justify the grant of bail.

10 In this regard, the Bain-King charge of intentionally cause injury (described above) is a schedule 2 offence, being an indictable offence in the course of committing which the applicant is alleged to have used an offensive weapon.[1] At the time that this offence was alleged to have been committed, the applicant was on bail for the Janiw offence of aggravated burglary, itself a schedule 2 offence[2] and the Fengler charge of make threat to kill, also a schedule 2 offence given the use of a weapon.[3] By reason of s 4AA(2)(c)(i) of the Act, the exceptional circumstances test is applicable.

11 In determining an application for bail, the court is required to have regard to the guiding principles set out in s 1B of the Act which provides:

(1AA) The Parliament recognises the overarching importance of maximising,

to the greatest extent possible, the safety of the community and persons affected by crime.

(1) The Parliament also recognises the importance of -

(b) taking account of the presumption of innocence and the right to liberty; and

(c) promoting fairness, transparency and consistency in bail decision making; and

(d) promoting public understanding of bail practices and procedures.

12 To be exceptional, the circumstances must be out of the normal or out of the ordinary; that is exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[4] The threshold, although high, is not intended to be near impossible to achieve,[5] and may be established by a combination of circumstances.[6]

13 In considering whether exceptional circumstances exist, the Court must take into account the surrounding circumstances, which include the non-exhaustive list set out in s 3AAA of the Act and which relate both to the strength of the prosecution case and the personal circumstances of the applicant.

14 As acknowledged by Priest JA in Re Gloury-Hyde,[7] one matter that has often been regarded as important in the context of an assessment of exceptional circumstances is the absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways contemplated by the Act.

15 If satisfied of the existence of exceptional circumstances, the Court is required to apply the unacceptable risk test.[8] The Court must refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail -

(a) commit a schedule 1 offence or a schedule 2 offence; or

(b) otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means; or

(c) interfere with a witness or otherwise obstruct the course of justice in any matter; or

(d) fail to surrender into custody in accordance with the conditions of bail.[9]

16 Again the Court must take into account the surrounding circumstances. The Court must also consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[10]

17 The applicant's Aboriginality is directly relevant to her application for bail by reason of ss 3A and 3AAA of the Act.

18 Significantly, s 3A provides:

(1) In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person's Aboriginality, including the following -

(a) the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population;

(b) the risk of harm and trauma that being in custody poses to Aboriginal people;

(c) the importance of maintaining and supporting the development of the person's connection to culture, kinship, family, Elders, country and community;

(d) any issues that arise in relation to the person's history, culture or circumstances, including the following -

(i) the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence;

(ii) any experience of out of home care, including foster care and residential care;

(iii) any experience of social or economic disadvantage, including homelessness and unstable housing;

(iv) any ill health the person experiences, including mental illness;

(v) any disability the person has, including physical disability, intellectual disability and cognitive impairment;

(vi) any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child;

(e) any other relevant cultural issue or obligation.

(2) The bail decision maker is to take account of an issue set out in subsection(1) by reference to the evidence and information that is reasonably available to the bail decision maker at the time, including information provided by -

(a) the Aboriginal person's family and community; and

(b) providers of Aboriginal bail support services.

(3) Despite subsection (2), the bail decision maker is to take account of the issues set out in subsection (1)(a) to (c) whether or not any evidence or information is before the bail decision maker in respect of those issues.

(4) The requirement to take an issue set out in subsection (1) into account applies regardless of -

(a) whether the person's connection to their Aboriginality and culture has been intermittent throughout their life; and

(b) whether the person has only recently connected to or discovered their culture or heritage; and

(c) when the person first discloses that they are an Aboriginal person.

(5) If a bail decision maker refuses bail to an Aboriginal person, the bail decision maker must -

(a) identify the matters the bail decision maker had regard to in taking into account the issues set out in subsection (1); and

(i) state those matters orally when refusing bail and ensure that an audio visual recording, or an audio recording, is made of that statement; or

(ii) record those matters in writing in a form that the bail decision maker considers appropriate.

19 The applicant's Aboriginality is not just relevant to the exceptional circumstances test. It is also relevant when considering the unacceptable risk test.[11]

20 The applicant submitted that the exceptional circumstances test was satisfied and that the Court ought not be satisfied that there was an unacceptable risk within the meaning of s 4E of the Act, relying on:

(a) the applicant's personal circumstances, including her Aboriginality and the matters set out in s 3A of the Act; and including matters such as her inability to engage with entities such as banks and Centrelink;

(b) the dated nature of the more serious alleged offending, with the most serious conduct dating back to February 2021;

(c) the opportunistic and non-confrontational nature of the majority of the offending, as well as such offending being a reflection of her indigent and impoverished state; and

(d) the availability of support services and the applicant's preparedness to undergo methadone treatment, such treatment having recently commenced.

21 It was also submitted that a term of imprisonment was not a forgone conclusion and that the applicant had already accrued 208 days pre-sentence detention.

22 The respondent opposed the application for bail on the basis that the applicant had not discharged the burden of satisfying the Court as to the existence of exceptional circumstances; and on the basis that the applicant, if released on bail, would be an unacceptable risk of:

(a) committing a schedule 1 or 2 offence;

(b) otherwise endangering the safety or welfare of any person; and/or

(c) failing to surrender into custody in accordance with the conditions of bail.

23 The applicant's Aboriginality was central to this application. There is no doubt that the s 3A factors as set out in the legislation, extracted above, constitute powerful considerations in favour of granting bail. They have general application to all Aboriginal people and particular relevance to the applicant in this matter. I further accept that the following specific considerations will weigh heavily on the applicant if she were remanded in custody:

(a) she will be in a custodial setting while in sorry business from the recent death of her partner;

(b) she will not be able to access culturally specific grief counselling;

(c) she has had trauma by reason of previous experiences on remand and incarceration, which is compounded by reason of personally having known Aunty Veronica Nelson during childhood.

24 I also accept that the applicant's alleged offending is likely to be causally linked to her social and economic disadvantage by reason of being an Aboriginal woman and a descendant of the Stolen Generation and someone who has experienced a traumatic and unstable upbringing. She has a history of homelessness, poly-substance abuse and domestic violence, with some memory difficulties, and she currently has a serious back injury.

25 These are all matters that were confirmed in oral evidence by Ms Bailey and would most likely tip the scales in the applicant's favour, in respect of meeting the compelling circumstances test.

26 However, it is a different matter when it comes to meeting the exceptional circumstances test. Although the personal circumstances and Aboriginality of the applicant provide powerful considerations in support of a grant of bail, it is necessary to take into account all of the surrounding circumstances.

(a) the number of offences in respect of which bail is sought - there are 73 pending criminal proceedings (now consolidated) with a combined total of 265 charges;

(b) the seriousness of some of the alleged offences - it is not only the February 2021 offending that is of a serious nature; the alleged use of a knife to stab a victim in January 2023 is of some concern as are a number of burglaries alleged to have been committed in 2024 and 2025;

(c) many instances of confrontational offending, resulting in fear to the relevant victims;

(d) the extensive criminal history of the applicant including prior convictions and findings of guilt for offences such as drug possession, handling stolen goods, theft and assault; and

(e) a pattern of non-compliance with bail conditions by the applicant; and noting that many of the pending charges against the applicant include multiple charges of fail to answer bail, committing an indictable offence while on bail and contravening a conduct condition of bail.

28 I accept that the quantity of outstanding charges must be tempered by the significant number of lower level alleged offending and the possibility of resolution on a global basis. It appears that the prosecution and defence are having sensible discussions about the possibility of resolution and the best way to progress this matter. In those circumstances I express no view as to the strength of the prosecution case.

29 It concerns me that there are 208 days of pre-sentence detention which will only increase if the prosecution cannot be resolved expeditiously. Any potential delay in having these matters finalised is significantly minimised by reason of the consolidated proceeding being actively managed in the Magistrates' Court, although I accept that if all matters do not resolve, a contested hearing might be some time away.

30 In respect of the potential for bail support services, I take into account the letter from CoHealth dated 29 July 2025 in which it is noted that:

(a) the applicant has been supported by CoHealth since 2017 in respect of complex housing and health needs; and

(b) the applicant has voluntarily engaged with supports at CoHealth across the scope of alcohol, drugs, harm reduction, physical health, mental health and psychosocial supports.

31 I also note that the applicant has been referred to the Inner West Area Mental Health Service from 14 August 2024.

32 Unfortunately, the support services provided by CoHealth and the Inner West Area Mental Health Service have not been sufficient to change the applicant's pattern of behaviour to date.

33 I take into account the Cultural Pathways Plan dated 15 August 2025 and the possibility of a priority referral to the Victorian Aboriginal Health Service so as to connect the applicant with further supports.

34 In the event that the applicant were to be granted bail, this would be of importance. But at this stage, bearing in mind all of the matters raised in this bail application and the relevant provisions of the Act, including those relevant to the applicant's Aboriginality, I have concluded that the exceptional circumstances threshold cannot be met.

35 What was said about the applicant in both submissions and evidence was to the effect that the applicant was a loving and generous person whose life circumstances had conspired to put her in the position she was now in. Ms Bailey said:

She's a funny, resilient, beautiful soul who is incredibly generous and incredibly caring for other people within the homelessness community. And those not. But particularly that's where I see her really shine.

36 I accept that description of the applicant and I accept that description of the applicant's circumstances. But the difficulty is that the applicant currently faces a number of charges that must, at some point, be finalised.

37 Only two matters were advanced to suggest that the applicant's circumstances had altered in any way. One was that she had commenced methadone treatment whilst in custody. The other was that the locks had been changed on her West Footscray home - this (it was submitted) should lead to the applicant more readily staying away from residents at Elizabeth Street Common Ground, some of whom (whether directly or indirectly) were influential on her continuing to offend.

38 Neither of these changes is sufficient to overcome the exceptional circumstances test. It is too soon to gain comfort from the commencement of methadone treatment as a potential factor that could break the cycle of offending and non-compliance with bail conditions.

39 As to the change of locks, that could well give the applicant some comfort in relation to lessening the risk of squatters. But it does not overcome other obstacles such as the painful memories of returning there after the death of her partner. Nor does it overcome the applicant's desire to be with the Elizabeth Street Common Ground residents, some of whom are a positive rather than negative influence.

40 Accordingly, I am not satisfied, at this point in time, that exceptional circumstances exist that justify the grant of bail.

41 I further conclude that the risk of granting bail would be unacceptable. Those risks include:

(a) the risk of the applicant committing a schedule 2 offence - noting the pending charges include schedule 2 offences;

(b) the risk of otherwise endangering the safety or welfare of any person - noting the Informant's report in respect of the alleged commission of opportunistic burglaries in North Melbourne, Carlton and Parkville that:

The applicant targets unattended property but is often located and confronted by staff and students. The applicant has been located on university grounds passed out in possession of needles and other drug paraphernalia. When confronted, the applicant has acted erratically and located in possession of edged weapons when arrested by police.

(c) the risk of failing to surrender into custody in accordance with the conditions of bail - noting the chronology of bail contraventions and also noting the Informant's report in respect of the 14 February 2021 aggravated burglary charge in which it is stated:

The matter has been listed at Melbourne on 48 occasions and warrants of apprehension issued on 11 occasions. The [applicant] is currently charged with 14 counts of fail to answer bail. The [applicant's] criminal history with regards to attendance at court reflects a poor history of bail compliance.

42 I am also of the view that there are no conditions of bail that may be imposed which would mitigate the risk so that it is not an unacceptable risk.

The assessment of risk turns on all of the circumstances of the individual and their offending. There will never be an absence of any risk. The real enquiry is about the level of risk that we are content to 'accept' on an application as a society. This test requires the bail decision maker to balance the apparent risk of the applicant with the conditions that are available to mitigate this risk and to determine if this reaches an acceptable level.[12]

44 However, unfortunately, there are no realistic conditions that are available to mitigate the risk to an acceptable level. The applicant's heroin use makes her a danger to herself and others and renders her more likely to continue her pattern of offending. The applicant's drug use and cognitive issues in combination lead to significant concerns about her ability to get herself to court when required.

45 Conditions to engage with treatment and support programs as identified in the Cultural Pathways Plan are unlikely to change the applicant's pattern of behaviour such that the relevant risks can be sufficiently ameliorated or indeed ameliorated at all.

46 The proposal that the applicant reside at her residential address in West Footscray does little to address relevant concerns, bearing in mind her history of choosing to stay with residents at Elizabeth Street Common Ground.

47 In considering the issue of unacceptable risk for the applicant, who is an Aboriginal person, I have kept each of the factors identified in s 3A at the forefront of my reasoning. But this is not a case where the applicant's risk 'teeters on the edge of being unacceptable.'[13]

48 Noting that '[it] is not a more lenient test and the paramount consideration remains the safety of the community'[14] and bearing in mind that 'the applicant's Aboriginality is a weighty factor in bail applications,'[15] the circumstances as a whole leave me with no option but to refuse this application.

49 The assessment of the applicant's eligibility for bail may change if new facts or circumstances arise, such as it becoming clear that a significant time is likely to lapse before the outstanding matters can be finalised in the Magistrates' Court, combined with a positive response to the methadone treatment leading to a sufficient mitigation of her level of risk.

50 However, at this point in time I determine that bail is refused.

[1] Bail Act 1977, Sch 2 Item 23.

[2] Bail Act 1977, Sch 2 Item 22(b).

[3] Bail Act 1977, Sch 2 Item 23.

[4] DPP v Muhaidat [2004] VSC 17, [13].

[5] Whiteside [1999] VSC 413, [10]; Armstrong v R [2013] VSC 111, [31].

[6] Re Debresay [2015] VSC 756, [56] and the cases cited therein.

[7] [2018] VSC 393, [30].

[8] Bail Act 1977, ss 4A(4), 4D(a).

[9] Ibid_,_ s 4E(1).

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

[11] Bail Act 1977, s 4E(3)(a); Re Terei [2024] VSC 294, [58].

[12] Re McLaughlin [2024] VSC 706, [46].

[13] Re Terei [2024] VSC 294, [59].