Re Hamad [2020] VSC 440 (21 July 2020)

1 The applicant, who faces charges of murder, intentionally causing injury (ICI) and attempting to pervert the course of justice, has brought an application for bail. Because he is charged with murder, pursuant to ss 4AA(1) and 4A(1A) of the Bail Act 1977 ('the Act'), I must refuse the application unless the applicant satisfies me of the existence of exceptional circumstances that would justify the grant of bail.

2 The applicant has been in custody since his arrest on 6 February 2019. This is his first application for bail. The applicant's co-accused, Ahmed Al Hamza ('Al Hamza') has made no application for bail.

3 Since the applicant was committed for trial in this Court, there have been a number of directions hearings and other hearings. The trial was scheduled to commence on 24 February 2020 but was delayed through no fault of the applicant due to the fact that Al Hamza was not ready for trial. The trial was again scheduled to commence on 17 August 2020, as one of the early trials to proceed after the planned re-commencement of jury trials following the hiatus brought about by the COVID-19 pandemic. Due principally to ongoing uncertainty about the legal representation of Al Hamza, the trial was adjourned from that date. It is now listed to proceed on 15 February 2021. This means that, assuming the trial proceeds as currently scheduled, the applicant would have been on remand for a period in excess of two years by the time he stands trial.

4 The timing of this application for bail is interesting, and, to my mind, somewhat premature. The case of murder against the applicant is put on the basis of s 3A of the Crimes Act 1958. The prosecution seeks a ruling from the Court 'as to what it is required to prove in order for an accused person to be found guilty of the offence of statutory murder'. The Crown filed an outline of submissions in relation to that issue on 22 June 2020, including the cases relied upon. This material runs to in excess of 800 pages. The applicant filed submissions on the same matter yesterday. That pre-trial matter is listed for hearing on 17 August 2020. I will be required to rule on that matter on or after that day, and I have been informed by the parties that whatever my decision, it is likely to be subject to an interlocutory appeal.[1]

5 The applicant and Al Hamza are charged with the murder of Anwar Teriaki ('Teriaki'). Al Hamza is charged with common law murder. The applicant, on the other hand, is charged pursuant to s 3A of the Crimes Act 1958. A third person originally charged with the murder is Haidar Odom ('Odom')[2]. He ended up pleading guilty to lesser offending, was sentenced by me, is no longer in custody, and is now a prosecution witness.

6 The circumstances of the alleged murder as sought to be established by the prosecution are as set out in the Updated Summary of Prosecution Opening for Trial filed in this matter on 12 December 2019. It is not necessary to set them out fully here. In short, it is alleged that the applicant and Al Hamza were friends, and that Odom was a friend of the applicant who met Al Hamza through him. Odom frequently drove the applicant around in his vehicle, an Audi TT. According to Odom, he became aware that the applicant and Al Hamza were intent upon assaulting Teriaki over a drug debt owed to Al Hamza. On the night of 8 August 2017, Odom, who was driving the applicant around in his Audi vehicle, was directed to a park in Lalor where they met up with Al Hamza. The applicant told Odom that they needed some baseball bats which Odom was carrying in his vehicle to bash Teriaki that night. He gave two baseball bats to the men, one of them wooden, the other metal. He agreed to drive the applicant and Al Hamza to the vicinity of the home of Teriaki at 7 Coronet Avenue, Roxburgh Park. Before attending there, the three men drove in Odom's vehicle to a second location in Lalor at which all three men got into a previously stolen Toyota Camry. Once in the Camry, Odom was informed that the plan was to bash Teriaki to the legs. Odom was told that his role was to await the arrival of Teriaki and then drive the vehicle alongside Teriaki's vehicle. Odom drove the Camry to Coronet Avenue and parked in a location in an intersecting street from which the men would have a view of traffic travelling north and south on Coronet Avenue. There, the three of them lay in wait to ambush Teriaki on his arrival home. The applicant and Al Hamza were both wearing hoodies, at least one of them with the hood up around his head. Both were wearing gloves.

7 After 40 minutes, at about 12.35 am on 9 August 2017, Teriaki arrived outside his home in his Toyota Corolla motor vehicle. Al Hamza told Odom to drive, and he did so, stopping next to the Corolla, facing in the opposite direction. By this time, Teriaki had the front door of his vehicle open in readiness to get out of the vehicle. The applicant and Al Hamza both got out of the Camry, each of them in possession of a baseball bat. The applicant and Al Hamza struck Teriaki repeatedly with the baseball bats. During the course of the attack upon Teriaki, the wooden baseball bat snapped in half, with the hitting-half falling inside Teriaki's vehicle. This part of the baseball bat was subsequently found by police on the driver's seat of the vehicle.

8 After being struck a number of times to the arms, Teriaki managed to get past his two attackers, and proceeded to run away from them down the street as they pursued him on foot. He ran a distance of about 300 metres, before turning into 39 Coronet Avenue and running up to the doorway. Shortly after Teriaki commenced his flight from the scene, Odom did a U-turn and followed the three men along the street.

9 Having arrived at the front door of 39 Coronet Avenue, Teriaki banged on the front door and cried out for help. As Odom arrived in the vehicle outside number 39, he heard Teriaki's cries for help. He observed him in the porch area with the applicant and Al Hamza standing close by him, Al Hamza being the closer of the two to Teriaki.

10 Within a few seconds of his arrival outside the address, Odom heard the first of three shots fired, and then another two shots after a pause. The applicant got into the car after the first of the shots. On the prosecution case, Al Hamza shot Teriaki three times, once in the chest, once to the back, and once to the right side of the groin. Al Hamza got into the car shortly after the final shot. Odom later claimed that up to the point of hearing the shots, he had been unaware that either of the others had a gun with them.

11 After Al Hamza got back into the Camry, he made an unsuccessful effort to retrieve the broken bat. After this, the three men returned to Odom's vehicle in Lalor. Once there, Al Hamza directed Odom and the applicant to remove their clothing. Clothing removed by the three men was placed by Al Hamza in the stolen Camry. Al Hamza then left the scene in the stolen vehicle, which he later set alight.

12 Odom drove the applicant to his home in Mill Park. On the way, Odom asked him what had happened in Coronet Avenue. The applicant put his finger to his lips and said nothing.

13 Odom arrived home and at the request of Al Hamza, made via an encrypted communication application, staged a break-in to his vehicle to explain the missing baseball bats. He later reported the break-in to the police.

14 Later on 9 August 2017, when Odom asked him what had happened, the applicant admitted being present when Al Hamza pulled out a gun and shot Teriaki. He claimed that he had not previously known that Al Hamza had a gun, and that when he realised Teriaki had been shot, he ran back to the car.

15 Following a police investigation, all three men were arrested and interviewed. None of them made any admissions. All three were charged with murder and remanded in custody. Odom and the applicant ended up in custody together at the Metropolitan Remand Centre ('MRC') and later at Barwon Prison. It is alleged that under pressure from the applicant and Al Hamza, Odom confessed his guilt of the murder to police on 21 June 2019. He claimed that he was the actual shooter, in accordance with a script provided to him by the applicant. The three men were committed for trial on 14 August 2019. On 15 November 2019, having changed solicitors, Odom commenced to make a 'can say' statement to his solicitor, implicating the applicant and Al Hamza in the murder and changing his role to a lesser one. Arrangements were made for him to be moved into protection within the prison system. On 27 November 2019, the case against him resolved. He finalised a statement to police on 28 November 2019. He pleaded guilty on 4 December 2019, and a plea hearing was held.

16 The applicant is 25 years of age. He was born in Iraq, arriving with his family in Australia when he was four. He became an Australian citizen at the age of six. He spent ten years back in Iraq before finally returning to Australia in 2015. From that time until his arrest, he worked as a concrete finisher.

17 The applicant has a limited criminal history. On 4 May 2017, he was convicted and fined for arranging the posting of two parcels to a prisoner at the MRC containing eight pairs of boxer shorts into the lining of which had been placed some strips of buprenorphine, a drug of dependence. On 27 July 2017, he was convicted and fined for contempt of court, having refused to answer questions at a compulsory examination listed in the Magistrates' Court at Melbourne in relation to a person charged with murder. In addition to those matters, the applicant faces pending charges in relation to an alleged affray in the Atrium Bar at Crown Casino on the night of 26 January 2019. That matter is listed for hearing on 27 November 2020.

18 Section 1B of the Bail Act 1977 ('the Act') sets out the guiding principles of the Act and reads in part as follows:

(1) The Parliament recognises the importance of -

(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and

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

...

(2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).

19 Section 4 of the Act makes plain the fact that there is generally to be a presumption in favour of the granting of bail. In a number of situations set out in the Act, however, that presumption is displaced by the requirement that the applicant establish the existence of either exceptional circumstances or a compelling reason that would justify a grant of bail.

20 Section 4AA(2) of the Act dictates that the exceptional circumstances test applies in this case. Pursuant to s 4A(1A) of the Act, the Court must refuse bail unless 'satisfied that exceptional circumstances exist that justify the grant of bail'.

21 The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.

22 If satisfied of the existence of exceptional circumstances, the Court is required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires the Court to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:

i. endanger the safety or welfare of any person; or

ii. commit an offence while on bail; or

iii. interfere with a witness or otherwise obstruct the course of justice in any matter; or

iv. fail to surrender into custody in accordance with the conditions of bail.

23 The respondent bears the burden of proof in respect of the unacceptable risk test. In considering the test, again, the Court is required to take into account the surrounding circumstances pursuant to s 3AAA. The Court is also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.

1. The meaning of exceptional circumstances has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[3] stated the relevant principle as follows:

Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[4]

... the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be 'exceptional', it has been accepted that:

• The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
• Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
• Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[6]

26 Mr Dunn QC, who appeared with Ms Dwyer for the applicant, relied on a combination of matters in proof of the existence of exceptional circumstances and in resisting the respondent's contention as to an unacceptable risk in this case. These were set out in the first affidavit of Adrian Lewin in support of bail and in the oral submissions. The most important of these were the asserted weakness of the prosecution case of murder, the delay in proceedings, and the onerous nature of the current conditions of remand.

27 As to the weakness of the prosecution case, Mr Dunn submitted that the fact of the prosecution having asked for a pre-trial ruling on the s 3A issue implied a concession by the prosecution of legal problems with its case. Therefore, in accordance with the approach of Croucher J in the bail decision of Haver v The Director of Public Prosecutions ('Haver'),[7] and in particular, paragraph 32 of that decision, I should, for the purposes of this application, consider that the prosecution case is 'relatively weak'. Mr Dunn submitted that this fact alone was sufficient to amount to exceptional circumstances. Mr Dunn submitted that I could decide this aspect of the bail application without any resort to the merits of the matter for consideration in the pre-trial ruling, based on the application by the Crown for that ruling.

28 Another aspect to the asserted weakness of the prosecution case was that it was submitted that even were I in the end to rule in favour of the prosecution in respect of the s 3A matter, there would be evidence indicating that the foundational offence relied upon by the Crown had come to an end by the time Al Hamza shot Teriaki dead. In supporting the contention he made that the witness Odom actually provided a defence to the applicant, Mr Dunn asserted that Odom would say that the applicant did not know that Al Hamza had a gun, and would indicate, in effect, that the foundational offence was over and the applicant was back in the car before the gun was produced and the shots fired. Mr Dunn described it as a viable defence to the murder prosecution that the shooting of Teriaki did not take place in the course of or in furtherance of the agreement to assault because the applicant was not present when it occurred and had no knowledge of the presence of the weapon.

29 At the time of the filing of the first affidavit, the applicant had another major plank to his attack upon the strength of the prosecution case. It was asserted that the case would be reliant upon a jury accepting the narrative of events from the key prosecution witness, Odom. He would have 'fundamental issues with his credibility', and it would be very difficult for a jury to accept him as being truthful in light of the absence of any corroborating evidence. The prosecution took strong issue with the claim as to a lack of corroborating evidence, with good reason in my view. In any event, Mr Dunn before me no longer sought to rely upon the foreshadowed attack upon the credit of Odom as a matter weakening the prosecution case.

30 All-in-all, as I have indicated, Mr Dunn submitted that I should view the Crown case as relatively weak. This on its own, he submitted, would amount to exceptional circumstances, and in combination with other matters relied on, certainly would.

31 On the question of delay, Mr Dunn submitted that the trial had been adjourned twice through no fault of the applicant. Assuming the trial proceeded as currently listed, that is, on 15 February 2021, the applicant would have been in custody for more than two years. This delay would be inordinate. Mr Dunn submitted that the Court could not be certain that the trial would proceed on the proposed date in any event, due to the considerable uncertainty brought about by the pandemic.

32 Another aspect of delay relevant to both exceptional circumstances and unacceptable risk was the fact that there was a period of 18 months between the time of the offence and the charging of the applicant. In that time, the applicant, who knew he was a suspect from an early time, made no attempt to abscond, continued to work, and was not involved in any offending other than that represented by the incident at the casino which is yet to be determined.

33 In respect of the onerous conditions on remand, these were canvassed in detail in the written and oral submissions. Even before the advent of the COVID-19 pandemic, the applicant had endured difficult and very restrictive conditions. He had spent an initial period in solitary confinement for his own protection before being placed in mainstream at Barwon Prison. When Odom made his statement, the applicant had been placed into a high security unit and permitted only five hours out of his cell per day. That period had been reduced to 2 ½ hours in response to the pandemic. He receives no personal visits, and in other respects, the conditions are most onerous. For a 25 year old man with little criminal history, a long period on remand under such a tough regimen is an important matter going towards the establishment of exceptional circumstances, it was submitted.

34 Other matters relied upon in proof of exceptional circumstances were the availability of accommodation with the parents of the applicant, the absence of relevant criminal history, the fact that this is the first time the applicant has been in custody, and the fact that where risk is concerned, there was no agreement by the applicant to carry out the murder, his offending being 'truly constructive'.

35 Turning to the matter of risk, Mr Dunn submitted that the behaviour of the applicant in conducting his life appropriately and failing to abscond in the period between the offences and time of charging is very telling. Amongst other things during that period, the applicant went overseas and then returned home. Relying on the case of Dale v Director of Public Prosecutions ('Dale'),[8] Mr Dunn pointed to the risk of the onerous conditions under which the applicant is currently being held producing psychological harm. Unlike the position in Dale itself, in which the Court of Appeal accepted that the applicant was suffering from 'moderate to severe' mental illness, in this case there was no evidence or submission advanced to indicate the mental condition of the applicant has been adversely affected by his incarceration.

36 Mr Dunn noted, relying on Re Asmar,[9] that predictions of future dangerous behaviour are notoriously difficult. He disputed that the applicant would have a strong incentive to interfere with the central prosecution witness or his family. Indeed, he went as far as to submit:

To say that we want to interfere with Odom is a nonsense. We want Odom alive because he gives us the ticket out.[10]

37 Mr Dunn submitted that there was nothing to indicate any attempt by the applicant to locate or contact Odom, [redacted]. He submitted that no grant of bail is ever free of risk, but that in this case, the stringent bail conditions proposed, including a surety of $200,000, a curfew, and geographical exclusions to protect the family of Odom, would ameliorate any risk to a level where it should be viewed as reasonable in the circumstances, especially in light of the long period of remand in prospect, and the onerous nature of the current conditions of that remand.

38 Ms Churchill, who appeared with Ms Foot for the respondent, submitted that the applicant had failed to meet the high threshold of establishing exceptional circumstances, and further, that he poses an unacceptable risk of interfering with witnesses, endangering the welfare of the public, and committing a further offence whilst on bail.

39 In respect of the s 3A issue, Ms Churchill submitted that in seeking the advance ruling of the Court on that matter, the prosecution made no concession that the case was weak or would fail. It made sense in the circumstances for that ruling to be sought and provided, rather than for that to occur at the end of a trial. There is nothing unusual about rulings being sought by one side or another in advance of a trial, and nothing at all exceptional about such a ruling having been sought here.

40 Ms Churchill accepted that the way the case would be put against the applicant would turn on the ruling of the Court, but submitted that if the Crown's position was accepted, the case would be a strong one, as the accused has admitted his presence at the scene.

41 On the question of whether or not the applicant had withdrawn from the foundational crime, or whether that crime had come to an end by the time of the shooting, Ms Churchill pointed out that the applicant was present and in company with Al Hamza in the porch area of the house at the time the first shot was fired, having chased Teriaki with Al Hamza to that location from the site of the commencement of the attack. There was nothing to indicate the foundational offence had finished at the time of the shooting.

42 On the matter of delay, Ms Churchill submitted that if the trial proceeded in February 2021, the delay of two years, whilst unfortunate, should not be considered to be inordinate in the circumstances, particularly when the seriousness of the allegations is considered.

43 On that score, Ms Churchill noted that the attack in the context of which the alleged murder occurred was a very serious one, being a planned ambush of a person by a group of offenders, intended to cause injury with the use of weapons. It occurred late at night, in a public street outside the home of Teriaki, in the context of a drug debt supposedly owed by the victim. The deceased was shot three times outside the front door of the home of an unconnected person. The charge of attempting to pervert the course of justice was itself a very serious one, arising as it did after the applicant was charged with murder, and out of a desire by him to avoid responsibility for that crime. Even if the applicant was not found guilty of murder, but was found guilty of the other offences charged, it could not be said that the period he would spend on remand would outweigh the sentence he would be likely to receive, it was submitted.

44 In respect of the current onerous conditions in custody, it should not be forgotten that life is difficult for the whole community at this time, as it is for all those who are in custody.

45 Regarding the risk posed by the applicant, Ms Churchill submitted that the very nature of the charge of attempting to pervert the course of justice, in light of the serious crime of murder with which the applicant is also charged, highlights the risk that the applicant may seek to interfere with Odom. This is especially so in light of the threats repeatedly made by the applicant towards Odom and his family. The concern held by the prosecution that the applicant may pose a risk to the safety of Odom and his family was a realistic one, she submitted.

46 Ms Churchill took issue with the defence contention that the evidence of Odom would help the applicant. Notwithstanding the fact that the defence might seek to rely on some aspects of the account of Odom, there is no doubt that the prosecution case against both the applicant and Al Hamza became much stronger with the advent of the evidence of Odom. He placed both accused at the scene and actively involved. His account would provide the narrative of the crimes committed.

47 In respect of the criminal history of the applicant, in the relatively short period of time he was back in the country until his arrest on these matters, he was convicted of sending drugs into a prison and contempt of court, and charged with the current offence of attempting to pervert the course of justice, indicating that he has somewhat of a disregard for court orders and the criminal justice system as a whole. In that context, a failure to abide by the conditions of bail may be more likely.

48 Ms Churchill submitted that in the overall circumstances of this case, the risk of the applicant interfering with Odom or his family or otherwise endangering the public would remain unacceptable even with the imposition of stringent conditions.

49 A sensible starting point in considering whether the applicant has discharged the high onus resting on him of establishing exceptional circumstances is the first of the matters set out in the non-exhaustive list of matters in s 3AAA of the Act.

50 The offending alleged here is of a high order of seriousness. The murder with which the applicant is charged took place in connection with a serious, planned group-attack upon a defenceless man in a public street with the use of significant weapons, carried out because of a drug debt owed. The fact that the applicant is charged on a s 3A basis does not mean that the crime alleged against him could be viewed as being anything less than very serious. The offence of attempting to pervert the course of justice alleged, for the reasons advanced by Ms Churchill, is itself a serious instance of that serious crime.

51 Turning to the strength of the prosecution case on the charge of murder, some assessment of that matter is required to be undertaken, but it will necessarily be an imperfect and imprecise one. Unlike many judges contemplating bail applications, I am to be the trial judge in this case, and therefore have a knowledge of the case beyond that which would usually be so in a bail application. That said, I have not read the depositions, and act essentially on the material placed before me by both sides in the application. Importantly, the s 3A issue has not been ventilated before me on the application. Whilst outlines have now been provided on both sides, which I have read, I have not been asked, and nor would it be appropriate for me to form a concluded view on the merits of the respective arguments. Indeed, counsel for the applicant submitted that I should not go beyond the fact of the respondent having sought the advance ruling on this matter. He submitted, relying on what was said by Croucher J in Haver, that the very fact of the ruling having been sought by the prosecution would be a proper basis for me to consider that the prosecution case is 'relatively weak'.

52 I earlier described the timing of this application as being interesting and somewhat premature. The application was brought by the applicant in full knowledge that in one month, the pre-trial issue which will go a long way to illuminating the strength or otherwise of the prosecution case will be ventilated before me and resolved by the Court. Rather than await that process, the applicant, as was his right, brought the application at this time, seeking to have the Court slavishly follow the approach Croucher J took to a consideration of the strength of the prosecution case in the particular case he was considering.

53 I do not accept that that the way in which Croucher J viewed the strength of the prosecution case in Haver would be an appropriate way for me to view the prosecution case now before the Court.

54 In the overall circumstances of Haver, it is easy to understand why Croucher J was moved to view the prosecution case as relatively weak, and then to conclude that for that and other reasons, exceptional circumstances had been made out. That case was a very different one from this case. The case concerned the accidental shooting death of a co-offender during the course of a planned attack upon another man. The charge of murder laid against Haver and his two co-accused was put on the basis of s 3A. The case was clearly problematic, there being little if any authority for the proposition that s 3A could extend that far. Haver and his co-offenders were discharged on the charge of murder at the committal, the experienced magistrate having had the benefit of detailed written and legal submissions on the matter. The men were the subject of a direct indictment in this Court. That was all important background to the conclusion Croucher J reached as to the relative weakness of the prosecution case. Croucher J said:

Counsel were not able to point me to any cases in Victoria where s 3A had been relied on to charge and convict an accused of murder arising from the accidental killing of an accomplice in the course of another crime. I am not aware of any such case in Victoria's history either at common law or since the introduction of s 3A.

Thus, given the foregoing, it was not surprising that Mr Albert, while maintaining that there is a case of murder against the applicant, conceded that it is arguable that s 3A does not extend to inculpating the applicant on the facts alleged. Further, counsel are agreed that this issue should be determined pre-trial and that an interlocutory appeal will be launched by whichever party receives an adverse ruling.

It is not my function on this application to determine which, if either, is the better view. That question will be determined prior to trial after full argument. But it is my function on this application to have regard to the strength of the prosecution case. The respondent's concession, which I accept, that it is arguable that the murder charge cannot be sustained at law, is equivalent to a finding that the prosecution case is relatively weak. In my view, that finding, together with the fact that no similar case has ever been launched under s 3A, amount to exceptional circumstances. However, even if I am wrong about that, as will be seen below, there are other matters that add to the conclusion that, in combination, there are exceptional circumstances in this case which justify the grant of bail.[11]

55 The respondent made no concession before me that it is arguable that the murder charge cannot be sustained at law. The prosecution will contend, based on authority, that the case is well able to be sustained. Ms Churchill's contention is that if the issue is decided in favour of the prosecution, the case against the applicant will be a strong one. That would seem to be so.

56 For now, I believe it is appropriate to view the prosecution case as being of reasonable strength. The evidence may be capable of establishing, and the applicant seemingly does not dispute, that he was present with the other two men in a stolen vehicle, that he lay in wait with the others for the return of Teriaki to his home, that he was then one of two men who set upon Teriaki with the use of baseball bats, that he was involved in the pursuit of Teriaki over a distance of 300 metres or so along Coronet Avenue, and that he was present in the front yard of 29 Coronet Avenue when Al Hamza produced a firearm and shot Teriaki for the first time. The claim on behalf of the applicant that the foundational offence had concluded by the time of the production and use of the firearm may well be considered by a jury to be somewhat unrealistic and well able to be rejected. If the prosecution assertion as to the effect of s 3A in this case is correct, then the prosecution case would need to be viewed as being strong. The uncertainty about the outcome of the legal ruling is what would reduce it somewhat from that level, but not to the extent asserted by the applicant.

57 The criminal history of the applicant is by no means lengthy, but nor is it insignificant. He arranged to transmit drugs of dependence into a prison. He committed a contempt of court. He awaits prosecution for an affray allegedly committed at Crown Casino shortly before he was charged with these matters. He is not a stranger to criminal offending, and respect for the authority of the Court may not be high on his order of priorities.

58 The applicant has no negative bail history, and nor was he subject to any sentence of a court at the time of the alleged offending. In terms of his personal circumstances, these seem stable enough, although it must be noted that he had the same family and other supports at the time of this alleged offending, and, as far as I am aware, his prior offending.

59 The understandable attitude of the family members of the deceased to a grant of bail is a matter to which weight must be given.

60 Turning to the length of time the applicant would be in custody if bail is refused, that is a significant matter. He would spend at least two years on remand before his trial. Mr Dunn submitted that the Court cannot be certain that the trial will even proceed at that time. That is true, but nor is there ever complete certainty about the listing of a matter. The future course of the pandemic, and its resulting effects upon the criminal justice system, is unclear. The proposed trial date is still seven months away. There is every reason to be confident that by February 2021, things will have improved to the extent that this trial should be able to proceed as scheduled. It is reasonable for me to act upon that basis.

61 In respect of the likely sentence to be imposed should the applicant be found guilty of the offences with which he is charged, a conviction for murder would undoubtedly result in a long term of imprisonment. Even a conviction for ICI and attempting to pervert the course of justice would inevitably result in a significant term of imprisonment which would be highly likely to exceed any period on remand.

62 The onerous conditions under which the applicant has been held for some time, and would be held for some time to come should bail be refused, were relied on heavily by the applicant. It is interesting to note that in his case, the impact of the onset of COVID-19 arrangements has been less substantial than would have been the case for many of those in custody. Because of the circumstances applicable to the applicant, he was already subject to stringent restrictions upon his freedom in the prison environment before the advent of COVID-19. His hours outside his cell have been further reduced, and the cessation of personal visits and other restrictions imposed now mean that he, like many in custody, is being held subject to quite onerous conditions. That may be viewed as being especially important in light of the fact that he has not been incarcerated before, and of course, the presumption of innocence applies to him. I take into account, as one of the surrounding circumstances of this case, the onerous conditions under which the applicant is being held.[12]

63 The exceptional circumstances test is a high hurdle for the applicant to clear, whilst of course, not an impossible one. The matters relied upon must be sufficient to take the case 'right out of the ordinary' or normal to warrant a grant of bail. Having carefully considered all of the matters relied upon, I do not believe the applicant has discharged the onus resting upon him of establishing the existence of exceptional circumstances. For that reason alone, it would be necessary for bail to be refused.

64 For completeness, I believe it is appropriate to make some comments on the question of unacceptable risk. It was asserted on behalf of the applicant that whilst he posed a risk, such risk could be ameliorated to an acceptable level by the imposition of strict conditions. Important in the defence position was the assertion that the applicant would have nothing to gain by interfering with Odom or his family, because Odom is his 'ticket out'. I do not accept that contention. In my view, it is undeniably the case, as was asserted by Ms Churchill, that the prosecution position is materially stronger against both accused with the availability of Odom than it was before Odom became a prosecution witness. It is alleged against the applicant that before the change of position of Odom, the applicant made repeated threats to the safety of not only Odom but also his family. Odom will say, as I understand it, that when he and the applicant were in the MRC, the applicant told him that he needed to 'take the fall for this one'. It is alleged that in reinforcing that requirement, the applicant repeatedly threatened to kill Odom, and said, 'If we can't get you, we will get your family'. It is alleged that these demands and threats were made for some months in that prison, and that when all three men were transferred to Barwon Prison, the pressure intensified even further, resulting in Odom making a false confession to the police in accordance with a script given to him by the applicant. Notwithstanding the assertion of Mr Dunn to the contrary, it is reasonable to consider that if released on bail, the applicant may see it as being in his own, or Al Hamza's interests, to seek to interfere with Odom or his family, with a view to dissuading him from giving evidence, or modifying the evidence he may give. In light of the considerable seriousness of the charges faced by the applicant, he may have a strong incentive to do that. In those circumstances, the concerns felt by the respondent for the safety of Odom and his family can only be viewed as being well justified.

65 In those circumstances, I consider that the risk posed by the applicant to the safety and welfare of Odom and his family should he be released on bail would be unacceptable, and unable to be sufficiently ameliorated by the imposition of conditions of bail.

66 For that reason, also, I would have refused this application for bail.

67 For the reasons I have stated, this application for bail must be refused.

[1] Criminal Procedure Act 2009, s 295.

[2] To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of this individual.

[3] [2004] VSC 17.

[4] Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].

[5] [2019] VSC 751.

[6] Ibid [65]-[66] (citations omitted).

[7] [2013] VSC 622 ('Haver').

[8] [2009] VSCA 212 ('Dale').

[9] [2005] VSC 487.

[12] Re Tong [2020] VSC 141 [33].