Re Macumber [2026] VSC 218 (17 April 2026)

1. The applicant has been charged with affray,[1] possess drug of dependence[2] and possess controlled weapon.[3]

1. On 9 February 2026 at approximately 9:13 pm the applicant and an unidentified associate were at the Sunshine Market Place in Harvester Road, Sunshine. The complainant exited the Market Place and a verbal argument ensued between the complainant and the unidentified male. The argument became physical with the complainant kicking the unidentified male. The applicant has then intervened and swung a tomahawk at the complainant before chasing him with the unidentified male.
2. A bystander notified police who attended the scene. The applicant was located and the tomahawk was also located in a bag believed to belong to the applicant.
3. The applicant was arrested and remanded into custody.
4. The complainant was spoken to by police but was uncooperative.

1. Section 1B of the Bail Act 1977 (Vic) ('the Act') recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime. This guiding principle of 'overarching importance', is not the only guiding principle of the Act.[4] The presumption of innocence and the right to liberty,[5] promoting fairness, transparency and consistency in bail decision making[6] and promoting public understanding of bail practices and procedures[7] are also important.
2. The applicant is entitled to bail unless the court is required by the Act to refuse it.[8]
3. In determining an application for bail in relation to a Schedule 1 or Schedule 2 offence, a two step test applies. Step 1 is the exceptional circumstances or compelling reason test. Step 2 is the unacceptable risk test.
4. By virtue of s 4AA(3), the applicant is subject to a 'compelling reason' test as the applicant is alleged to have used a weapon in the commission of the offence. This court is required to 'refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail'. The applicant bears the burden of satisfying the court as to the existence of a compelling reason.[9]
5. If satisfied that a compelling reason exists, the court must then determine whether the applicant presents an unacceptable risk of the kind referred to in s 4E(1) of the Act.[10]
6. The court must refuse bail if satisfied the applicant poses an unacceptable risk notwithstanding the compelling reason test has been met. An unacceptable risk is not merely any risk of the matters referred to in s 4E of the Act. The question is whether such a risk is unacceptable.[11] The respondent bears the onus of satisfying the court as to the applicant posing an unacceptable risk.[12]
7. In considering whether a compelling reason exists and whether an applicant poses an unacceptable risk, the court is required to take into account the surrounding circumstances.[13] S 3AAA(1) of the Act sets out surrounding circumstances, so that (so far as relevant) the court

must take into account all the circumstances that are relevant to the matter including, but not limited to, the following -

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c) the accused's criminal history;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e) whether, at the time of the alleged offending, the accused -

(i) was on bail for another offence; or

(ii) was subject to a summons to answer to a charge for another offence; or

(iii) was at large awaiting trial for another offence; or

(iv) was released under a parole order; or

(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(f) whether there is in force -

(i) a family violence intervention order made against the accused; or

(ii) a family violence safety notice issued against the accused; or

(iii) a recognised DVO made against the accused;

(g) the accused's personal circumstances, associations, home environment and background;

(h) any special vulnerability of the accused, being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;

(i) the availability of treatment or bail support services;

(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

...

1. Further, when making a determination in relation to an Aboriginal person, s 3A(1) of the Act applies. This provision provides a non-exhaustive list of matters to be taken into account including:

(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.

...

The significance of section 3A is evident from the fact that it is a standalone provision, rather than incorporated into the broader list of surrounding circumstances under section 3AAA(1). Its significance is also confirmed by the fact that, following the recent reforms to the Bail Act, the considerations in section 3A(1) must be taken into account regardless of the extent or duration of an applicant's connection to their culture or heritage; and those in paragraphs (a) to (c) must be taken into account whether or not any evidence or information in respect of these issues is put before the court. It is then further reinforced by the requirement for the court, when refusing to grant bail to an Aboriginal person, to expressly identify the specific matters listed under section 3A(1) to which regard has been had. > > In short, although the requirements of the provision are not intended to be onerous, the process of taking an applicant's Aboriginality into account in the manner that section 3A demands must underpin any determination made under the Bail Act in respect of an Aboriginal person, including whether a compelling reason justifying a grant of bail exists, and also whether an applicant poses an unacceptable risk of the kind described under section 4E(1). > > This is of course not to suggest that an Aboriginal applicant charged with committing serious crimes should automatically be granted bail. Nor does it mean that a more lenient test is to be applied in assessing compellability or risk in an application for bail made by an Aboriginal person. However, the Aboriginality of an applicant would ordinarily be a "weighty factor" to which serious regard must be given in any application for bail.[15]

D Evidence and submissions advanced in support of bail

1. The applicant relied upon the affidavits of Patrick Crowle affirmed 30 March 2026, 15 April 2026, 16 April 2026 and accompanying exhibits. The applicant submitted the following matters established a compelling reason that justifies the grant of bail:

D.1 Aboriginality and section 3A of the Bail Act 1997

1. The applicant is a Gunditjmara man.
2. The applicant relies upon each of the matters listed in s 3A but specifically:

(a) The historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over represented in the criminal justice system. Chapter 11 of the Yoorrook for Justice Report 2023 identified that as of May 2023, 48% of Aboriginal adults in Victorian prisons were on remand. In the reporting year ending June 2022, 52% of Aboriginal people were discharged from prison having spent no time there under sentence.

(b) The risk of harm and trauma that being in custody poses to Aboriginal people. The applicant points to the historically high and continuing number of Aboriginal deaths in custody thereby making the applicant vulnerable in custody. The applicant spent the first 21 days of his current period of remand in a police station. The applicant has required and received medical treatment whilst in custody. It was not until a writ of habeas corpus was filed in this Court on 1 March 2026 that the applicant was moved from police custody to the Melbourne Remand Centre. Upon his reception, the applicant was assaulted by another prisoner and has been moved to Ravenhall Correctional Centre.

(c) The applicant is a proud Aboriginal man with ties to culture through his family and friendships. The applicant has had previous engagement with Boorndawan Willam Aboriginal Healing Services by way of group and individual counselling.

(d) Any issues that arise in relation to the persons' 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. The applicant has experienced significant disadvantage in his childhood including periods of homelessness, neglect, abuse and the suicide of relatives. The applicant has experienced profound and cumulative grief and Sorry Business across his life.

(ii) Any experience of out of home care, including foster care and residential care. The applicant spent time in State care from the age of seven years where he was the victim of sexual abuse and also periods of detention in Youth Justice Centres. The significant adverse experiences whilst in State care have led to complex and developmental trauma. The applicant is awaiting financial compensation for a common law claim for damages that he made in relation to the abuse he suffered whilst in residential care.

(iii) The applicant has experienced significant social and economic disadvantage throughout his childhood and adult life. The applicant has experienced periods of homelessness and unstable housing. The applicant's complex mental health and intellectual disability limit the applicant's ability to obtain employment.

(iv) The applicant has been diagnosed with schizophrenia, PTSD, borderline personality disorder, anxiety and depression and major depressive disorder. The applicant's co-occurring mental health conditions are enduring, chronic and require lifelong support. The applicant experiences chronic suicidal ideation particularly when under stress or experiencing isolation.

(v) The applicant has an established intellectual disability and an acquired brain injury.

(e) The applicant will give consideration to the matter proceeding in the Koori Court.

1. The applicant accepts that if found guilty of the offence, a term of imprisonment is an available sentencing option however, there is a risk the time spent on remand will exceed any sentence imposed.
2. The offending, whilst involving a weapon, did not result in any charges for injuries to a complainant. The offending falls towards the mid-range of seriousness for this offence.
3. There are triable issues with the case as the complainant depicted in the CCTV has refused to make a statement. The applicant's friend was engaged in an altercation with the complainant. The CCTV demonstrates the applicant coming to the aid of his friend. The applicant has raised self-defence in his record of interview. Further, evidence that may assist the applicant is no longer available. The police brief of evidence is yet to be served, however it appears that CCTV footage from prior to the assault is no longer available and a statement is yet to be taken from a security guard witness, who observed the event and is currently overseas.
4. A request for disclosure of material has been made however the informant is presently on leave and will attend to the request in due course. There are presently no statements from lay witnesses. The matter is listed for contest mention in May and a contested hearing is unlikely to be listed before August.
5. The applicant has a relevant criminal history however the last sentence for offences of violence was in 2017.
6. The applicant was not subject to bail at the time of the allegations however he does have three prior convictions for offences against the Act.
7. The applicant was however subject to a Community Correction Order ('CCO') at the time of the offence. The applicant's Community Correction case manager has confirmed the applicant is able to continue with the CCO which would provide further supervision and support to the applicant. The applicant's CCO includes a Justice Plan which provides additional targeted support to the applicant.
8. The applicant has the continued support of his partner and is actively engaged with Child Protection agencies regarding contact with his seven children. The applicant also has the support of his Aunty, brother, David Wright and his brother's partner. Mr Wright gave evidence confirming the applicant could live with him. This allows the applicant to reengage with Country and culture by returning to the Warrnambool area. Further, Mr Wright provides an additional layer of support as he will assist the applicant to attend all appointments and undertook to notify the informant of any contraventions of bail.
9. The applicant has been referred to Gunditjmara Aboriginal Cooperative, an organisation that provides localised, culturally appropriate support to Aboriginal people navigating the criminal justice system. This includes supporting people whilst subject to a CCO, court attendance and general system engagement. The organisation is also able to provide assistance with housing and therapeutic supports which includes the applicant's NDIS plan. The applicant has an active NDIS support plan but it requires some improvement. A referral has been made to a new culturally specific Support Coordinator.
10. Jamie O'Shannessy, Local Koori Justice Case Worker from Gunditjmara Aboriginal Collective will assist the applicant to engage with services, including transportation to any appointments if required. A key focus of the support will be to strengthen the applicant's connection to culture.
11. The applicant has also been referred to Dardi Munwurro, a healing and behaviour change program for Aboriginal men. If assessed as suitable, the programs on offer support men to develop insight into their behaviour, strengthen cultural identity and build safer more respectful relationships.
12. The applicant has previously been involved with the Torch Program through the Indigenous Arts in Prisons Program. If granted bail, the applicant has expressed interest in continuing to engage with the Torch Program and explore career pathways in the arts.

1. Finally it was submitted that any risk the applicant posed was not an unacceptable risk and any risk that may exist could be ameliorated by the imposition of conditions.

1. The respondent relied upon the affidavit of James Kibel affirmed 8 April 2026 and attached exhibits.
2. The respondent submitted it was open to find the applicant had established the existence of a compelling reason that justifies the grant of bail.
3. The respondent argued the applicant is an unacceptable risk of committing a Schedule 2 offence, namely a serious assault or similar related offence as the applicant has a significant criminal history involving violence and weapons offences. Further, the applicant is an unacceptable risk of endangering the safety or welfare of any person whether by committing an offence that has that effect or by any other means. Relying on the informant's report, the respondent submitted that bail conditions will not be sufficient to ameliorate the risk to an acceptable level. The applicant has a history of violence with weapons and has difficulties with impulse control.
4. Regarding the surrounding circumstances, the respondent made the following concessions:

(a) Any term of imprisonment imposed in relation to these offences if found proven may exceed the time spent on remand if bail were not granted;

(b) The categorisation of the affray as being towards the mid-range of seriousness is apt. The possess controlled weapon charge carries a maximum penalty of 12 months. Consideration is being given to a different charge pursuant to s 7(1) of the Act which carries a lower maximum penalty, namely six months imprisonment;

(c) An independent third person was not present during the record of interview;

(d) It was open to the finder of fact the applicant acted in self-defence;

(e) Disclosure was currently incomplete and ongoing;

(f) The applicant has no record of failing to answer bail as an adult;

(g) The special vulnerabilities of the applicant;

(h) The availability of treatment and support; and

(i) The complainant is uncooperative with police and has a criminal history spanning some 69 pages.[16]

1. The respondent argues the prosecution case is "solid" with reliance placed on CCTV footage and the record of interview with the applicant.
2. The respondent acknowledged the Court must take into account the matters identified in s 3A and did not challenge the specific submissions made by the applicant in that regard.

1. The applicant has established a compelling reason that justifies the grant of bail.
2. There are triable issues in this case and, as conceded by the respondent, there is a real risk the applicant's time on remand would exceed any sentence imposed. To date, the applicant has experienced a difficult time in custody for reasons beyond his control. This includes being assaulted and held in police custody for a considerable period of time. The applicant is vulnerable in custody as an Aboriginal man with complex mental health needs. To detain the applicant for a period of time in excess of any sentence that might be imposed is intolerable.
3. The respondent has not established the applicant is an unacceptable risk of further offending or endangering the safety or welfare of another person.
4. The applicant has the support of his family, Gunditjmara Aboriginal Cooperative, Dardi Munwurro, an NDIS plan and his CCO together with a Justice Plan. These supports together with appropriate conditions ameliorate any risk.
5. Bail is granted.

[1] Crimes Act 1958 (Vic) s 195H(1).

[2] Drugs Poisons and Controlled Substances Act 1981 (Vic) s 73.

[3] Control of Weapons Act 1990 (Vic) s 6(1).

[4] Re SL [2025] VSC 571, [33]-[35].

[5] Bail Act 1977 (Vic) s 1B(b) ('the Act').

[11] Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).

[14] [2025] VSC 82.

[16] There is no complainant as such in this matter but rather the person seen in the CCTV would be an important witness if available.