Re Guirguis [2015] VSC 242 (29 May 2015)

Supreme Court of Victoria|2015-05-29|Before: PRIEST JA

The applicant's personal circumstances and other matters

30 The applicant will turn 40 years of age next month. His de facto partner, with whom he has two children aged 3 years and 5 years, remains supportive of him, as do his parents - who were in court - and his brother. He has lived in his current place of residence, his parents' former home, for most of his life.

31 So far as employment is concerned, the applicant appears to have been in stable employment since leaving school to complete an apprenticeship as a motor mechanic. The evidence suggests, as I have said, that he has work immediately available to him if released.

32 I regard the applicant's prior convictions as largely irrelevant. In the main, they disclose illegal drug use, which is consistent with the picture which emerges from the complainant's account of her drug use with the applicant, and Mr Ball's report. The applicant's prior criminal history does not, however, reveal any previous breaches of court orders or any sexual offending.

33 As to the strength of the prosecution case, it relies for its cogency upon the evidence of the complainant, bolstered, perhaps, by a complaint of rape to Mr McCall and a series of telephone and text messages (many of which, it might be argued, are simply consistent with two people involved in a torrid, and troubled, amorous affair). Given that it will turn mainly on the credibility of the complainant, against the background of what seems to have been a tumultuous and drug-fuelled relationship, the prosecution's case could not fairly be described as overwhelming.

34 The applicant is said to have introduced the complainant to ice, and the alleged offending might be viewed against the milieu of their mutual drug use. Moreover, as I have said, the applicant's prior convictions tend to bespeak a history of illicit drug use, which is confirmed by Mr Ball's opinion that the applicant fits the diagnostic criteria of 'mild stimulant disorder'. The picture is completed by the evidence of Senior Detective Coy, who has information that the applicant is a more prolific drug user than he may have conveyed to Mr Ball.

35 When the matter was before the Magistrates' Court, the applicant was recommended for case management by the Court Integrated Services Program ('CISP'), so that alcohol and substance abuse issues might be assessed and treated. With the encouragement of the parties, the Court administratively made contact with CISP. On the information available to the Court, it seems that the applicant remains suitable for CISP, although it is necessary that he attend a further appointment to be re-assessed.

36 Further, Mr Ball has recommended that the applicant should undertake supervision and drug treatment relapse prevention treatment with Ms Kim Dowse as directed by Mr Ball. If the applicant fails to attend for directed treatment, Mr Ball has undertaken to report such failure.

Unacceptable risk and 'show cause' under the Bail Act

37 There was a dispute between the parties as to whether the applicant was in a position that he had to 'show cause why his detention in custody is not justified'.

38 So far as relevant, s 4(2)(d)(i) of the Act provides:

(2) Notwithstanding the generality of the provisions of subsection (1) a court shall refuse bail -

(i) that there is an unacceptable risk that the accused if released on bail would -

fail to surrender himself into custody in answer to his bail;

endanger the safety or welfare of members of the public; or

interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;

39 And s 4(4)(b) of the Act provides that:[8]

...

(b) with an offence against section 21A(1) of the Crimes Act 1958 (stalking) and -

(i) the accused has within the preceding 10 years been convicted or found guilty of an offence against that section in relation to any person or an offence in the course of committing which he or she used or threatened to use violence against any person; or

(ii) the court is satisfied that the accused on a separate occasion used or threatened to use violence against the person whom he or she is alleged to have stalked, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence;

the court shall refuse bail unless the accused shows cause why his detention in custody is not justified ...

40 Since 4(2)(d)(i) provides that a court shall refuse bail if satisfied that there is an unacceptable risk that an accused would, if released on bail, do any of the things spelled out in the subsection, it is plain that any burden of persuasion as to unacceptable risk cannot lie with the applicant for bail. He is not required to show an absence of unacceptable risk.[9]

41 That position may be contrasted with the situation that obtains under s 4(4)(b), where a burden of persuasion is placed on the applicant for bail. If the applicant for bail is charged with stalking, and the court is satisfied that the applicant has previously used or threatened violence against the person stalked, the court shall refuse bail unless the accused shows cause why his detention in custody is not justified.

42 The mere fact that a person is charged with stalking (and has previously used or threatened violence), however, does not necessarily carry with it the concomitant that he poses an 'unacceptable risk' within the meaning of s 4(2)(d)(i). Whether or not he does so requires an evaluation of the putative risk or risks, consistently with the requirements of s 4(3) of the Act.

43 Any grant of bail must carry some risk. Subsection 4(2)(d)(i) contemplates that there are some risks which are acceptable; and that, in certain situations, what might initially be deemed to be an unacceptable risk may be rendered acceptable by, for example, the imposition of strict conditions of bail. Subsection 4(3) of the Act provides:[10]

(3) In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant, that is to say -

(a) the nature and seriousness of the offence;

(b) the character, antecedents, associations, home environment and background of the accused;

(c) the history of any previous grants of bail to the accused;

(d) the strength of the evidence against the accused;

(e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;

(f) any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.

44 At the beginning of the hearing before me, I asked counsel for the respondent to articulate the reasons why it was contended that the applicant was in a show cause situation under s 4(4)(b). He submitted that the assault (charge 9) where the applicant bent the complainant over a vehicle, qualified as a separate occasion where the applicant had used or threatened violence within the meaning of s 4(4)(b)(ii), since, he submitted, the calls and messages which constituted the stalking were subsequent to this assault.

45 The view may be open that the assault was not a separate occasion from the stalking, but rather part of a single course of conduct, so that s 4(4)(b)(ii) is not engaged. In my view, however, I do not have to decide that issue, since, on the assumption that the subsection applies - and the applicant does indeed carry the burden of showing cause why his detention in custody is not justified - in my opinion he has discharged the onus.

46 Properly analysed, the posed unacceptable risks of committing an offence whilst on bail and of interfering with witnesses are isolated to the complainant. Furthermore, although I do not ignore the suggested obsessional nature of the applicant's feelings for the victim, it seems to me that the offending alleged appears to have been connected to the applicant's use of ice and its disinhibiting effects. In my view, the posed risks are amenable to acceptable reduction and management by appropriately strict and restrictive bail conditions. In particular, so far as the applicant's risk of offending might be seen as having a connection to illicit substance abuse, that risk may be reduced by his engagement with CISP, and with Ms Dowse and Mr Ball.

47 In my view, the applicant does not pose an unacceptable risk in the manner posited by the respondent. Any risk may be adequately controlled by conditions of bail. Given that is so, having regard to the applicant's personal circumstances (including his family supports), his employment prospects and his prior history, and taking into account the nature and limited strength of the prosecution case, insofar as the applicant might have been required to show cause why his detention in custody is not justified, in my view he has done so.

The applicant is to be admitted to bail on his own undertaking with the following conditions:

The applicant must reside at 4 Denise Place, Melton West, in the State of Victoria.
The applicant is to report each Monday, Wednesday and Friday, between the hours of 6:00am and 9:00pm to the Officer in Charge of Melton Police Station or his or her nominee.
That, save in the case of sudden or extraordinary emergency, the applicant is to remain at his residence at 4 Denise Place, Melton West, every day between the hours of 9:00pm and 5:00am, and to present himself at the front door of the residence if and when requested to do so by a member of police.
The applicant must attend the CISP Office at Melbourne Magistrates' Court at 9:30am on 9 June 2015 for an interview, and thereafter comply with all requirements of the CISP programme as directed by those administering that programme.
The applicant must attend the office of Ms Kim Dowse, Suite 1009, 1 Queens Road, Melbourne, at 11:00am on 1 June 2015 for an interview, and thereafter submit to such supervision and drug relapse prevention treatment as directed by Ms Kim Dowse or Mr David Ball or their nominees.
The applicant must not contact (whether directly or indirectly by any means including via social media) any witnesses for the prosecution other than the informant.
The applicant must comply with the conditions of the Intervention Order imposed by the Magistrates' Court at Melbourne on 14 April 2015.
The applicant must appear at the Magistrates' Court at Melbourne on 2 September 2015 and thereafter as directed by that court.

[9] Cf Haidy v DPP [2004] VSC 247, [12] (Redlich JA).

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