Re Miftari [2025] VSC 843 (24 December 2025)

1 The applicant applies for bail on the single charge of murder he faces. The fatal shooting the subject of the charge occurred on 20 December 2024. The applicant was arrested and charged on 9 January 2025. He has been in custody since that time, and this is his first application for bail.

2 A committal hearing in the case is listed in Melbourne Magistrates' Court on 16 March 2026, although the indications are that the committal is unlikely to proceed on that date. There are two other pre-committal hearings currently listed in the same court. One of those hearings, on 25 February 2026, will concern public interest immunity ('PII') issues.

3 Murder is a schedule 1 offence under the Bail Act 1977 ('the Act'), meaning that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[1] The applicant bears the burden of discharging that onus.[2] In considering whether exceptional circumstances exist, I must take into account the surrounding circumstances, as non-exhaustively set out in s 3AAA(1) of the Act. If I am satisfied as to the existence of exceptional circumstances, I am required to move to the second step of the 2 step bail process. I would be required to refuse bail if satisfied that there is an unacceptable risk of any of the outcomes set out in s 4E of the Act.

4 The applicant maintains that exceptional circumstances exist in this case, and that the applicant does not pose an unacceptable risk. The respondent's position is that the applicant has not discharged the burden of proving exceptional circumstances, and that even had that burden been discharged, bail should be refused because of the unacceptable risk that the applicant would endanger the safety or welfare of the public, or fail to surrender into custody in accordance with the conditions of bail.

5 The applicant is alleged to have been involved, with another man, in the planned shooting murder of a man named Mahmoud Karam in Campbellfield on the evening of 20 December 2024.

6 Evidence indicates that in the weeks leading up to his death, Mr Karam, who lived in Craigieburn, became aware that his life was under threat. As a result, he rented and stayed in a room at the Sylvania Hotel on the corner of Gentles Avenue and Sydney Road, Craigieburn. He often parked his vehicle near a home in Gentles Avenue, some 200 metres from the hotel, ('the address') which was the home of his friend, MM. Mr Karam was known to carry a pistol for protection, and disclosed to MM that he was in dispute with a person in respect of a substantial sum of money owed to him, that is, Mr Karam.

7 It is alleged that on 20 December 2024, at about 9.00 pm, the applicant and Mitchell Jones ('Jones')[3] armed themselves with a triple barrel shotgun and another firearm, and drove a stolen Porsche Macan ('the Porsche')[4] to Gentles Avenue, where they parked near the address and lay in wait for Mr Karam. Just after 10.00 pm, Mr Karam arrived in Gentles Avenue, and parked near the address. Having communicated with MM via WhatsApp as to his intention to join MM at the hotel, at about 10.07 pm, Mr Karam departed his vehicle and proceeded to the front yard of the address, when he was then approached and set upon by the applicant and Jones. He was shot with a number of blasts from the shotgun and another firearm, returning fire with his pistol. Jones was struck in the left lower leg. The applicant was struck in the left lower leg and left arm. After the attack, Jones and the applicant returned to the Porsche. A trail of blood was left on the roadway. The triple barrel shotgun was left at the scene at the rear of Mr Karam's vehicle. At 10.08 pm, the applicant and Jones fled the scene in the Porsche.

8 After being shot, Mr Karam contacted MM by WhatsApp. He told MM he had been shot and asked him to come and help him. Upon his arrival, MM observed a firearm in the hand of the badly injured Mr Karam. He kicked the gun from his hand, then complied with Mr Karam's request to hide the handgun, his mobile phone, and a satchel. MM asked Mr Karam who had shot him, and he replied, 'I want to fuck the sister of them'.

9 Emergency services attended the scene at about 10.20 pm and found Mr Karam bleeding heavily from his wounds. He was transported to the Royal Melbourne Hospital where efforts to save him were unsuccessful and he was pronounced deceased at 11.21 pm.

10 The movements of the Porsche were able to be tracked by investigators through various CCTV sightings. It was driven via a circuitous route to Broadmeadows, where it then commenced to follow a black Mercedes coupe bearing NSW number plates ('the Mercedes') being driven by an unknown person. At 10.18 pm, the Porsche was parked behind the Mercedes. The applicant and Jones got into the Mercedes, which was then driven rapidly to the Northern Hospital in Cooper Street, Epping.

11 At 10.30 pm, the Mercedes was driven into the ambulance bay at the Northern Hospital. The front passenger door opened and the applicant motioned ambulance and hospital staff to assist him. He was taken by wheelchair to the emergency department ('ED'). Jones was also assisted by staff and taken to the ED. The driver of the Mercedes remained in the vehicle, and then drove away from the hospital once his injured passengers had disembarked.

12 At 10.35 pm, a staff member of Northern Hospital contacted triple zero and requested police attendance. Police arrived at the hospital and spoke with the applicant and Jones. Both were arrested by police and then received treatment under police guard at the hospital before being transferred to the Royal Melbourne Hospital ('RMH') for further treatment. On 4 and 9 January 2025 respectively, Jones and the applicant were interviewed by police at the RMH and both declined to comment. They were charged with murder and remanded in custody.

13 The crime scene in Gentles Avenue was processed by police and forensic services. Amongst other things, a triple barrel shotgun was located, as well as various firearms related exhibits. Blood swabs were taken from the roadway where the blood trail was located. A fingerprint was found on the driver's side rear door of a Kia vehicle parked in the street. DNA testing of blood swabs taken from the roadway revealed a single source male profile consistent with having originated from the applicant. The likelihood ratio generated was 100 billion. DNA samples extracted from areas of the shotgun revealed a profile consistent with having originated from Jones. Likelihood ratios generated from several of the samples were 100 billion. The fingerprint found on the rear door of the Kia was found to be that of Jones. Further testing of various exhibits is still outstanding.

14 An autopsy was conducted upon the body of Mr Karam on 22 December 2024. The cause of his death was ascertained to be a shotgun wound to the back. Fired shot and metallic fragments were recovered from the body of Mr Karam. The findings suggested that a shotgun and at least one other weapon had been used in the attack upon him.

15 The Porsche was driven by an unknown person to an industrial estate in Campbellfield and parked in Northbourne Road at 10.40 pm. At 10.49 pm, a person exited the Porsche and removed a petrol container from the boot. Shortly afterwards, the Porsche was engulfed in flames, and the person ran to a white Mercedes Vito van ('the Vito') which had been stolen from South Yarra in May 2024. The Vito was then driven away from the scene.

16 On 26 December 2024, at about 9.36 pm, the Vito, driven by an unknown person, entered Seabrook Reserve in Broadmeadows. It was set alight at 9.39 pm. The arsonist ran from the scene and has not been identified.

17 The applicant is 21 years of age. He is of Albanian background. He has one younger sister. His father Adi Miftari is employed by V/Line. His mother Suzan is a health support worker. The applicant's parents were born in Australia and have no criminal histories. The applicant has lived for most of his life in the family home in Yarraville. He completed his secondary schooling at Footscray Secondary College and then Maribyrnong Secondary College where he completed his VCE in 2022. He commenced a Bachelor of Business at RMIT before changing over to a Bachelor of Applied Science (Construction) at the same institution. He was engaged in that course at the time of his arrest. Throughout his tertiary studies to date, he also engaged in part-time employment as a forklift driver, warehouse operator and trades assistant at various companies. During 2024 he worked three days per week and did two days of university. He was living at home at the time.

18 During the incident in question, the applicant sustained serious injuries, from which he is still suffering the after-effects, including substantial pain.

19 It was indicated during the application that, if granted bail, the applicant would resume his studies at RMIT, but would not work, due to his injuries.

21 In setting out the guiding principles of the Act, s 1B relevantly 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.

22 It is the intention of the legislature that the Act be applied and interpreted having regard to the matters set out above.[5]

(1) In any proceedings with respect to bail -

(aa) the bail decision maker is not bound by the rules of evidence;

....

(e) the bail decision maker may receive and take into account any evidence which the bail decision maker considers is credible or trustworthy in the circumstances.

24 The phrase 'exceptional circumstances' is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[6] 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. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[7]

25 It is plain from the cases that the threshold of exceptional circumstances is high, but not impossible to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[8]

26 The affidavit in support of bail by Theo Magazis sworn 25 November 2025 exhibited a detailed Statement of Material Facts prepared by the informant, Detective Senior Constable Monica Allen from the Homicide Squad. The respondent relied on the description of the alleged offending set out in that document. In addition, the informant prepared an Informant's Report dated 1 December 2025 which was exhibited to the affidavit in response. This report contained a further summary of the facts. It also contained the responses of the informant to a number of the contentions advanced in the first affidavit in support of bail. It was indicated that the post mortem examination of Mr Karam and ballistics analysis indicates that two distinct firearms were used to shoot Mr Karam, a shotgun and a firearm with rifling characteristics, such as a pistol or rifle.

27 There were contentions advanced in the informant's report which were challenged during the application. It was indicated that whilst there is no information to suggest that the applicant is a patched member of any particular outlaw motorcycle gang ('OMCG'), police intelligence suggests that he is linked to Middle Eastern Organised Crime, and heavily associated with a cell of the Bandidos OMCG. The co-offender Jones became a fully patched member of the Bandidos while in custody for this matter. It was alleged that three hours before the shooting of Mr Karam, the applicant met with Jinwar Arian ('Arian'), the current Sergeant-at-Arms of the Bandidos. Arian is listed on the applicant's visitor list at the prison where he is housed. While the applicant has been on remand, Arian met with the applicant's father, which was then the subject of coded conversations between the applicant and his father over the prison telephone system.

28 In addition, it was indicated in the informant's report that police are in possession of confidential intelligence alleging that the murder of Mr Karam was directed by an offshore Middle Eastern serious organised crime figure Kazem Hamad ('Hamad'). Hamad's syndicate hold considerable power in Victoria and police are aware of instances of offenders, having executed acts of violence in Victoria at the direction of Hamad, fleeing the jurisdiction and receiving fugitive refuge from Hamad in the Middle East to escape apprehension and prosecution in Victoria. An example was cited of two gunmen who attempted the shooting murder of Suleiman Abdulrahim following a funeral in 2022, who fled overseas within 48 hours of the shooting, with intelligence indicating that at least one of the men lives with Hamad in Iraq.

29 It was further contended in the informant's report that the murder of Mr Karam has a number of the hallmarks of an organised crime execution.

30 The informant Detective Senior Constable Allen gave evidence on affirmation during the hearing of the application. In her brief examination-in-chief, she indicated that intelligence gained from prison phone calls indicates that the applicant has been accessing the gym at the prison. She also stated that the existence of a substantial bail guarantee does not alleviate her concerns in relation to bail, and explained why this was so. She indicated that the applicant's father has met with Arian on two occasions. She detailed some of the pending evidence for the trial.

31 In cross-examination, Mr Dann KC, who appeared with Ms Wallace for the applicant, explored the state of the evidence concerning the question who fired first during the confrontation, and what had been apparently said by Mr Karam to a witness to whom he spoke before his death, including a statement he had made as to an intention to kill an unnamed person. Mr Dann explored the knowledge the informant had as to the physical status of the applicant in custody, and lockdowns to which he has been subject. He sought to explore police knowledge of the alleged connection between the applicant and Hamad, which the witness stated was subject to PII. The informant reiterated the police position that no conditions of bail could satisfactorily reduce the risks posed by the applicant.

32 In re-examination, the informant indicated that she relied on the information referred to in paragraphs 18 to 35 of her report relating to the suspected connection between the applicant and organised crime gangs and OMCGs.

33 Adi Miftari, the applicant's father, also gave evidence before me on affirmation. He indicated his willingness to provide a bail guarantee of $1 million, and gave an undertaking that he would report any bail breaches by his son to the informant. In cross-examination, he admitted having met Arian once or twice. He explained these meetings as having occurred because Arian was doing a welfare check on the applicant. He said he was unaware that Arian had connections with an OMCG.

34 Prior to the first day of the bail application, a letter from Ashlea Shaune, General Manager, Adult Health Oversight, Justice Health, was provided to the Court. In the letter, Ms Shaune provided information of a general nature concerning the custodial health care system, and a summary of the health care received by the applicant in custody.

35 Prior to the second day of the hearing, an affidavit sworn by the applicant on 19 December 2025 was filed. In the affidavit, the applicant detailed a list of his prescribed medications, and occasions on which he claimed not to have received prescribed medication in the period 26 August 2025 to 30 November 2025. He outlined instances where he had missed tele-health appointments and follow up medical appointments through no fault of his own. He also summarised the periods of run-out he has received in custody, and occasions on which he was denied any time out of his cell.

36 A report of a Consultant Psychologist, Ms Gina Cidoni, dated 18 December 2025, was also provided to the Court prior to the second day of the hearing, and relied upon by the applicant. The prosecution did not seek to have Ms Cidoni, who was present on video-link, called to give evidence. In detailing the applicant's medical history and mental health status, Ms Cidoni largely relied upon the self-report of the applicant. The applicant described his transition into custody from hospital as being detrimental to his recovery, the sporadic and inconsistent access to physiotherapy he had received, his ongoing severe pain as a result of his injuries and inconsistent provision of medication, and his limited runout times. The applicant reported interruptions to his medication as heightening his anxiety regarding his medical safety and condition. He also reported concerns about being confined to his cell for extended periods while experiencing significant pain and being denied physiotherapy. The combination of these factors has contributed to an increase in his psychological distress. The applicant also reported experiencing trauma-related symptoms.

37 Ms Cidoni carried out some psychological testing upon the applicant. She reached diagnoses of post-traumatic stress disorder ('PTSD'), and somatic symptom disorder, with predominant pain. The PTSD was said to stem from the applicant being exposed to a life-threatening incident involving ballistic injury, during which another person was fatally injured. Since that time, he had experienced intrusive recollections and nightmares, heightened physiological arousal, sleep disturbance, and other symptoms. Within custody, these symptoms have been reinforced, rather than ameliorated. Prolonged lockdowns and exposure to other stressors in custody exacerbated his condition. His psychological functioning has been significantly affected by his persistent pain, and his experience of pain has become chronic and intrusive, extending beyond the expected period of acute recovery, and becoming a dominant focus of his daily functioning. Ms Cidoni opined that the custodial environment materially interferes with the applicant's physical rehabilitation and psychological recovery. She stated:

As a result, [the applicant's] symptoms have not followed a typical trajectory of gradual resolution. Instead, trauma-related hyperarousal, sleep disruption, and emotional distress have persisted beyond twelve months, while pain has remained chronic and psychologically burdensome. His capacity to regulate emotion, concentrate, and engage adaptively with his environment has been progressively eroded by prolonged deprivation of movement, social interaction, and therapeutic input.[9]

38 Notwithstanding the above, Ms Cidoni indicated there was no evidence of psychosis, mood disorder, or behavioural instability. She did opine, however, that continued incarceration 'represents a significant barrier to improvement'.[10]

39 Ms Jackie Ashmore, Clinical Director of Adult Health Services, Justice Health, prepared an affidavit affirmed on 18 December 2025, providing an overview of the healthcare provided to the applicant in custody, and medications prescribed to him. In her evidence before me, she indicated what was revealed on her assessment of the Justice Health file as to the various occasions on which the applicant, in his affidavit, claimed to have not been provided with prescribed medication. In summary, it would be correct to say that the evidence of Ms Ashmore confirmed that on a number of occasions, for various reasons, medication had not been provided as prescribed.

40 Mr Anthony Calandro, General Manager, Complex Classifications Unit, Corrections Victoria, prepared an affidavit affirmed on 22 December 2025, providing a general overview of the classification of prisoners, and a summary of the various placements of the applicant during his custodial history, and the opportunities for time out of his cell during that time. He indicated that the placements of the applicant and the conditions applicable to him, most recently in the Chartwell Unit, have been in response to safety concerns for the applicant. He has been classified as a long-term management prisoner ('LTMP'). Mr Calandro indicated in the affidavit that the applicant is currently reviewed by a Forensicare psychologist weekly to monitor his mental health, in light of a reported deterioration in his mental health. He also indicated that applications the applicant made to have communication runouts with two other prisoners were not accepted due to the OMCG connections of the two prisoners.

41 In his evidence before me, Mr Calandro indicated that the sessions with the psychologist commenced on 21 November 2025, following a referral from a psychiatric nurse in late-October. In cross-examination, Mr Calandro stated that the applicant had earlier access to mental health nurses, but could not indicate the frequency of any access. He elaborated on the reasons why the applicant was designated as an LTMP. These included his remand on a very serious charge, and media reporting describing the alleged crime as an organised crime 'hit'. He came into custody with gunshot wounds. There was a lot of information in terms of the victim's organised crime connections. In addition, there were a lot of 'information gaps'. Notwithstanding the applicant's professed desire to go into a less strict unit, including at Barwon Prison, Corrections Victoria have maintained the view that the applicant could not be safely housed in an open unit. He indicated that the status of the applicant would be continually reviewed in future, with the next review in January 2026. Mr Calandro described the run-out time available in the Chartwell Unit. He explained that staff will endeavour to provide more than the minimum one hour per day, but he spoke only in terms of an extra half-an-hour to an hour. Mr Calandro also gave evidence about a number of lockdowns that have affected units in which the applicant has been housed. These were usually due to staff shortages. As recently as 22 December 2025, the applicant expressed his continuing desire to be transferred to an open unit.

42 In response to some questions from me, Mr Calandro indicated that the fact of the applicant being aged only 21, with no experience of custody, and suffering from the effect of injuries he sustained before his remand, were matters that were taken into account when decisions were made as to where he should be housed, but pointed out that there are quite a number of young alleged offenders currently required to be held in management units for their safety. He indicated that it would be a realistic possibility that the applicant might be moved to Barwon Prison, but that the timing of this cannot be determined, and it is a matter of waiting for an available bed.

43 Mr Dann relied on a combination of matters in proof of the existence of exceptional circumstances. These were:

a) The availability of a stable residence with his family. Mr Dann indicated that the applicant has lived at the address in question from the age of 3.

b) The availability of a bail guarantee of $1 million. This is a very substantial amount, it was submitted, and any breach of bail would have devastating consequences for the applicant's family.

c) The availability of significant family support. I note that the parents and other family members of the applicant were present throughout the application. It was obvious to me that he has the considerable benefit of great support from his family and friends.

d) The applicant's youth. Mr Dann submitted that the principles relating to the sentencing of youthful offenders apply with even more force to the consideration of bail, where the presumption of innocence applies. The importance of this matter would not be reduced in the case of serious alleged offending.

f) The onerous conditions being confronted by the applicant in custody. Mr Dann relied upon the serious injuries sustained by the applicant during the incident, the fact that he was wheelchair-bound for some months after his arrest, the post-traumatic stress disorder from which he apparently suffers, the 'intractable pain' he is experiencing, deficiencies in the provision of medical services and medication to the applicant, the limitations on the conditions of the applicant in custody, and the lockdowns to which he has been subject. Mr Dann submitted that the conditions being experienced by the applicant are far more than simply onerous. He maintained that the applicant is being held in 'horrendous' conditions, when his very limited daily runout time, his PTSD and deteriorating mental condition, his physical injuries, and his young age are considered. He submitted that this collection of matters, of themselves, would be sufficient to demonstrate exceptional circumstances.

g) The fact that the continuing detention of the applicant is contributing to a worsening of his mental health. In this regard, Mr Dann relied on the report of Ms Cidoni, especially at [60]-[69].

h) The strength of the prosecution case. Mr Dann did not describe the prosecution case as weak, but submitted that it is 'problematic' in a number of respects. He pointed to what he called the lack of forensic evidence indicating the applicant was 'involved in any shooting of the deceased', the evidence indicating that Mr Karam had, in the aftermath of the shooting, asked his friend to hide his gun and other items, the lack of any eye witness to or CCTV footage of the shooting, and the lack of DNA and ballistics evidence. In respect of the DNA evidence, Mr Dann submitted that in determining the strength of the evidence, I should have regard 'to the admissible evidence, what's before the court in terms of the hand-up brief'.[11] Mr Dann likened Mr Karam's attempts to hide his gun to 'consciousness of guilt' evidence in a criminal prosecution, and submitted that his actions would be relevant to the criminality of the applicant. He submitted that whilst evidence may show the applicant's presence at the shooting scene, mere presence is not enough. The prosecution would have to prove he had knowledge of what was to occur, and there may be problems with that. He submitted, further, that the order of events was in issue. If Mr Karam fired first, 'obviously self-defence arises'.[12] Mr Dann submitted that whilst the prosecution case was not weak, 'there are triable issues'.[13]

i) Delay. Mr Dann relied upon a likely delay of two years.

j) The opportunity the applicant would have to explore pain management solutions should he be released on bail.

k) The prospect of the applicant being able to resume his studies were he to be released on bail.

l) The absence of evidence establishing that the applicant poses an unacceptable risk. In this regard, Mr Dann relied upon a statement of Priest JA in Re Gloury-Hyde[14] at [30]. In advancing this submission, Mr Dann argued that, were I to be of the view that there was material showing or suggesting the existence of a risk, I would not be able to take that into account in considering the question whether the applicant has established exceptional circumstances.

44 Dealing in more detail with the aspects of risk pointed to by the prosecution, and whether an unacceptable risk has been demonstrated, Mr Dann submitted that I should consider any risk of flight relied upon against other objective criteria of the case, such as the likely delay, the lack of prior convictions, the youthfulness of the applicant, the difficult conditions under which he is being held, and his medical problems. He referred to the decision of Hollingworth J in Mustica v DPP,[15] in which her Honour had stated:

There is always a theoretical risk of flight. In order to find that there is an 'unacceptable risk', something beyond mere speculation or suspicion must be established.[16]

45 Mr Dann submitted that there is no evidence before the Court in respect of the question of a flight risk. The material contained in the informant's report to which I referred at [28] above is not evidence, he submitted. He likened the material to the assertion contained in the informant's affidavit in the case considered by Hollingworth J in Mustica that the applicant in that case 'has shown a tendency toward violence in the form of retribution for unpaid drug debts'. He submitted that the police intelligence set out in the informant's report in this case as to the possible link with Hamad 'can have absolutely no weight' in the application,[17] was 'useless', 'absolutely worthless'[18] and 'not part of this application',[19] and could not properly be taken into account under s 8(1)(e) of the Act.

46 Elaborating on the asserted risk of flight, Mr Dann noted that there is no evidence pointing to any discussion about, or arrangement made, concerning flight by the applicant. In any event, the availability of the substantial bail guarantee and conditions which could be imposed upon the applicant under a grant of bail would ameliorate any risk to an acceptable level. As to the concern expressed in the informant's report that the combination of the seriousness of the charge, the strength of the prosecution case and the inevitability of a lengthy term of imprisonment may create a strong motivation for the applicant to flee, Mr Dann submitted that this would do no more than indicate a theoretical risk of flight, creating no more than mere speculation or suspicion. As to the other risks alleged, Mr Dann submitted that available bail conditions would satisfactorily ameliorate these.

47 As for any supposed connection between the applicant and the Bandidos, Mr Dann submitted I should make little of it, because there is no evidence connecting the Bandidos to the crime, and as for what such a connection may say as to the character and contacts of the applicant, he has no prior convictions and is presumed to be innocent, and in any event, a condition could prevent any ongoing connection.

48 Finally, on the question of risk, Mr Dann submitted that there is a lack of credible, truthful evidence in respect of any of the asserted risks.

49 In response to a question by me towards the end of his submissions, Mr Dann accepted that the murder alleged against the applicant would be a crime of an extremely high order of seriousness, towards the top end of the range.

50 Having heard Ms Churchill's withdrawal of the risk of further offending as a matter upon which the prosecution placed reliance as unacceptable, Mr Dann questioned how there could still be reliance placed on a risk of endangering the public.

51 Ms Churchill SC, for the respondent, emphasised the fact that the Parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community.[20] Whilst the presumption of innocence and the right to silence remain important, maximising community safety is more so. She submitted that most, if not all, of the surrounding circumstances outlined in s 3AAA(1) of the Act, militate against a grant of bail in this case, and the applicant has fallen well short of establishing exceptional circumstances. She submitted that most of the matters relied upon by the applicant are far from exceptional in their own right, or in combination. In respect of the large bail guarantee offered on behalf of the applicant, Ms Churchill submitted that even a substantial surety is no guarantee of compliance with bail or attendance at court in answer to bail. In this case, the comfortable financial means of the applicant's family, and the questionable interactions between the applicant and his father with a well-known underworld figure should lead the Court to have concerns about the effectiveness of the bail guarantee achieving its intended purpose.

52 In that regard, Ms Churchill submitted that the information contained in the informant's report as to the connection between the applicant and the Hamad crime syndicate was the subject of the evidence of the informant, a reliable and apparently credible witness, and I would be entitled to take it into account under the rules which apply to bail applications. She submitted that the evidence that needs to be 'credible and reliable' is the evidence of the informant. A PII claim is currently on foot, to be considered in the Melbourne Magistrates' Court on 25 February 2026. It would be premature to determine what information may ultimately be released, and what evidence may become part of the prosecution case. The Court at this stage, however, should act on the evidence of the informant about the intelligence holdings of Victoria Police, and what these reveal.

53 Ms Churchill submitted that the relative youth of the applicant is not a significant matter. The Act has special provisions relating to children in light of their special vulnerability. The applicant is not a child, and although he is young, and this is his first time in custody, the charge he faces is very serious, and his age is of limited importance. Many young people come before courts for the first time, and because of the seriousness of their alleged offending, and the risk they pose, are remanded in custody.

54 Turning to the strength of the prosecution case, Ms Churchill made the point that in almost every case, there will be 'triable issues'. This case, however, should be considered to be a strong one. The killing of Mr Karam had some of the hallmarks of an underworld execution, she submitted. There was no known association between the applicant and Mr Karam. There is evidence of substantial pre-planning, supporting the prosecution contention that this was a planned murder. The offenders lay in wait for the arrival of Mr Karam, and then he was shot with the use of two weapons. The blood trail found in Gentles Avenue emanating from one of the two offenders has been forensically linked with the applicant. The shotgun was forensically linked to the co-offender. The movement of the two men through the suburbs to the Northern Hospital was tracked by CCTV footage, and both had sustained gunshot wounds, consistent with having been inflicted by Mr Karam. Even if the question of who shot first, out of Mr Karam or the shooters, was left in doubt by the evidence, the overall circumstances, including the fact that two armed offender lay in wait for Mr Karam at the location where he was shot dead, would make it questionable whether self-defence would even be available to the applicant.[21]

55 Ms Churchill submitted that the delay likely in this case is not extensive, and is attributable to the way that the case is progressing through the system.

56 In relation to the medical health issues, Ms Churchill pointed out that the right to access reasonable medical care and treatment is an enforceable right under the Corrections Act 1986 ('Corrections Act'). Where complaints are made about the standard of care provided, the avenue of enforcing that right is through the authorities who are charged with the care of the applicant, and not through the Court in a bail application. Ms Churchill did acknowledge that the care of the applicant had not been 'optimal', involving some missed appointments, and failures to provide prescription medication, but that there was material indicating that a multidisciplinary approach has been taken to his care, and there was some material indicating that his pain has been appropriately managed.

57 In respect of the defence contention that the applicant's condition is worsening in custody, Ms Churchill accepted that at the least, Ms Cidoni's report indicates that the applicant is not getting better, and she acknowledged that the prison environment is not optimal for his recovery, but is necessary in the circumstances in light of the risk posed by the applicant, and the other circumstances of the case. Reasonable care is being provided to the applicant, and he is now receiving treatment from a Forensicare psychologist.

58 In respect of the onerous custodial conditions, including the limited runout time, Ms Churchill submitted that that factor must be balanced against all of the circumstances, including the fact that those conditions are what have been deemed necessary to ensure the safety of the applicant.

59 As to the question of risk, on the first day of the application, Ms Churchill abandoned any reliance upon the risk that the applicant would commit offences while on bail, and focused on the risk that he would endanger the safety or welfare of the community, or fail to surrender into custody. In respect of the former, Ms Churchill noted that there were two firearms used to kill Mr Karam, and only one of them has been recovered. The indications are that the applicant, at the time of the shooting of Mr Karam, possessed and discharged that firearm, at night, in a residential street, thus endangering the public. She also noted the efforts the applicant made while in custody to affiliate himself with members of OMCGs as being relevant to the risk of endangering the public. On the second day of the application, Ms Churchill disputed that her lack of reliance upon the risk of further offending as an unacceptable risk does not mean there is anything problematic about pointing to the risk of the public being endangered. She also made the point that she was not conceding that there is no risk of further offending, just that it was no longer relied upon as a separate head of unacceptable risk, if I get to that step of the bail process.

60 As for the risk of the applicant failing to surrender into custody, the material in the application indicates the police concern as to the applicant's connection with underworld crime syndicates, which have seemingly unlimited resources and the ability to enable offenders to escape from the jurisdiction. In light of the apparent strength, and obvious seriousness of, the prosecution case, the applicant may have a powerful motive to flee the jurisdiction in order to avoid the risk of a long period of incarceration.

61 The respondent's contention that this shooting bears many of the hallmarks of a planned underworld murder is correct. That would be so without any reliance being placed on the intelligence referred to in the informant's report suggesting as much. Mr Karam feared for his life, and had revealed that to his friend. He had moved out of his normal residence into a place which he considered to be safer, and was in the habit of carrying a pistol for his protection. On the night of the shooting, two men, armed with a shotgun and some other unidentified weapon, proceeded in a stolen vehicle to an area where Mr Karam was accustomed to parking his vehicle before proceeding to the hotel where he was temporarily living. The fact that the men were even aware of that location is indicative of planning and surveillance having been earlier carried out. The two men lay in wait for Mr Karam, and shortly after his arrival in, and departure from, his vehicle, the evidence indicates he was approached and shot repeatedly by the men. Evidence indicates that two separate weapons were used to shoot Mr Karam. During the course of the events, Mr Karam fired his own weapon, and wounded his two attackers. The attackers returned to their stolen Porsche and drove it away from the scene to a predetermined location, where they were collected by an unknown person in the Mercedes. The Porsche was, in due course, taken to another location by an unknown person and destroyed by fire. The person responsible for that then got into the stolen Vito which was, in turn, driven away. A few days later it, too, was destroyed by fire.

62 This type of carefully planned murder must necessarily be viewed as being a crime of a very high order of seriousness, close to the top of the range of seriousness for the always-serious crime of murder. Any person found guilty of such a crime would inevitably receive a very long term of imprisonment.

63 One of the considerations contained within the non-exhaustive list of matters set out in s 3AAA(1) of the Act is the strength of the prosecution case. In many cases, and most certainly, in any case concerning alleged offending of the seriousness of that alleged here, the strength of the prosecution case will be of considerable importance in the ultimate disposition of an application for bail. Because of the early stage in proceedings at which bail applications are routinely conducted, it will often be inappropriate for the bail decision maker to form or express concluded views as to the strength of the prosecution case. In the present case, in light of submissions made by Mr Dann in this regard, I am required to consider in some detail the strength of the prosecution case.

64 Before I turn to the submissions made by Mr Dann as to the strength of the case, I point out the following features of the case which are of relevance to the applicant's position, in addition to the general description of the events set out above.

65 In circumstances where a fatal attack was carried out upon Mr Karam by two men who seemingly lay in wait for him at the shooting scene, two important items of evidence were left at the scene by the attackers, which cast clear light on the identity of the two men. First, the shotgun used to inflict a number of the injuries upon Mr Karam was dropped at the scene by the person who used it. Upon analysis of the shotgun, DNA was extracted from samples taken from a number of areas of the shotgun. Jones could not be excluded as being the source of the DNA. The relevant likelihood ratio was, in the case of three of the samples, 100 billion, providing extremely strong support for the proposition that the DNA was that of Jones.

66 Secondly, swabs taken from the blood trail found at the shooting scene were analysed, and DNA extracted. The results indicated a single-source male DNA profile. The applicant could not be excluded as being the source, and again, the relevant likelihood ratio was 100 billion, providing extremely strong support for the proposition that the blood in the blood trail was the applicant's blood.

67 At 10.30 pm, 23 minutes after the shooting of Mr Karam, Jones and the applicant, who were both passengers in a black Mercedes vehicle driven by an unknown person, arrived in the ambulance bay at the Northern Hospital. It was ascertained that each of them had sustained gunshot injuries.

68 These three aspects of the evidence may be considered by a jury to definitively prove that the two men who lay in wait for Mr Karam were the applicant and Jones.

69 When that state of affairs is considered in conjunction with the items of circumstantial evidence which may tend to suggest that the killing of Mr Karam was a very well planned action, considerable light is cast on the strength of the prosecution case, and the somewhat ambitious nature of the submissions of Mr Dann in respect of that issue is apparent.

70 Mr Dann pointed to a lack of forensic evidence indicating the applicant was 'involved in any shooting of the deceased', in circumstances in which the evidence before me is that the DNA analyses referred to at [65]-[66] above have been communicated to the informant, albeit that the final DNA report has not yet been provided. There is no reason why I would not act on that evidence. The evidence, on its face, ties the applicant to the scene, and has him present during the shooting of Mr Karam. If by 'involved in any shooting of the deceased', Mr Dann actually meant, 'personally shot the deceased', there may be an argument that the available evidence may not establish that the applicant actually fired either of the weapons used to shoot Mr Karam, although that might be seen as being a somewhat tenuous one, in view of the fact that two men attended together at the shooting scene, that between them they had at least two firearms, and one of the firearms was the full-length, triple barrel shotgun apparently held by Jones.

71 More significantly, however, it may seem to a jury somewhat difficult to envisage that the applicant would have been present at that scene if he was not involved in the enterprise, the apparent purpose of which was the murder of Mr Karam. The question whether he can be proved to have actually fired a shot may not be of much importance in the resolution of the case.

72 As to the order of events, and in particular, who shot first, depending on the view a jury took of the facts, that might also be of little importance. Mr Dann submitted that if Mr Karam fired first, 'obviously self-defence arises'. That matter may fall to be decided by the eventual trial judge. Looked at from afar, at this early stage, any reliance by the applicant on the law of self-defence would appear problematic.

73 Mr Dann realistically acknowledged that the prosecution case is not weak. He submitted, however, that the prosecution case is problematic in a number of respects, and that there are triable issues. As Ms Churchill noted, there are almost always triable issues in a criminal trial. Whether the issues pointed to by Mr Dann are realistic triable issues is another matter.

74 Ms Churchill submitted that the prosecution case is a strong one. That submission does not strike me as being an unreasonable one.

75 I turn now to the question of risk. That was a matter first addressed by Mr Dann in the course of his submissions concerning exceptional circumstances. As indicated above, Mr Dann contended that there is an absence of evidence in this case establishing that the applicant would pose an unacceptable risk if released on bail, and that this should be a matter supporting his contention as to the existence of exceptional circumstances.

76 On the question of the evidence available on the matter, as indicated above, Mr Dann questioned the status of material contained in the informant's report suggesting the involvement of the Hamad syndicate in this killing and other organised crime connections with the events. His description of the material as 'useless' and 'absolutely worthless' does not sit comfortably with the law which applies to bail applications.

77 The informant's report, exhibited to the affidavit in response, is an important document. Although it is not itself a sworn document, the informant in her evidence indicated that she was satisfied the information contained in the report is true and correct, to the best of her knowledge. The report was clearly prepared with care, and designed to indicate the police position in respect of this bail application. Under the section, 'The Applicant's Connections with Organised Crime and Outlaw Motorcycle Gangs', a number of propositions were set out based on police intelligence of which the informant is aware. Although the requirements of PII prevented the informant from detailing the intelligence upon which she relied in preparing those parts of the report, the contentions contained therein are by no means outlandish or unrealistic. In respect of the asserted connection between the applicant and the Bandidos, objective material would tend to support the connection indicated by police intelligence. As for the suspected connection between the Hamad syndicate and the shooting of Mr Karam, such a connection may explain the carrying out of a crime such as this, with many of the hallmarks of an organised underworld murder.

78 Contrary to the submissions of Mr Dann, it would be open to me to have regard to matters set out in the informant's report at [18]-[25], in accordance with the law which governs this application, including s 8(1)(e) of the Act. Having said that, I think some conclusions could be reached in respect of the question of risk without regard being had to the impugned sections of the informant's report.

79 In my view, the combination of the considerable seriousness of the offending alleged here, the possible organised crime involvement in that crime in light of its objective circumstances, the inevitability of a lengthy term of imprisonment for the applicant should he be found guilty, and the apparent strength of the prosecution case, would raise the prospect of the applicant feeling a strong incentive to avoid responsibility by seeking to leave the jurisdiction. I do not accept that to reason in that fashion would amount to no more than mere speculation.

80 In support of his contention that I should regard the absence of matters indicating the applicant would pose an unacceptable risk when considering whether exceptional circumstances have been established, Mr Dann relied upon the well-known passage from the judgement of Priest JA in Re Gloury-Hyde:[22]

The concept of exceptional circumstances is an elusive one. But, as Beach JA observed in Ceylan, it is well established that exceptional circumstances for the purposes of the Act may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant. One matter that has often been regarded as important in this context, is the absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways contemplated by the Act.[23]

81 There is no question that the absence of matters pointing to any risk being posed by the applicant would be a matter which would properly be taken into account in the consideration of the first step of the bail process. However, contrary to the submission made by Mr Dann, were I to consider that there are matters pointing to the existence of a risk, that, too, would be properly able to be taken into account. In that case, it would tend against a finding of exceptional circumstances. That this is so is a matter of logic. I am required to have regard to the surrounding circumstances of the case. Where risk is concerned, those circumstances may point towards, or against, the existence of a risk.

82 As was stated by Kaye JA in Re ER,[24] when considering the application of the exceptional circumstances test:

One matter, that is commonly regarded as important in determining whether exceptional circumstances have been established, is the presence or absence of factors which might point to the applicant presenting as an unacceptable risk in any of the ways specified in s 4E(1) of the Bail Act.[25]

83 When the question of exceptional circumstances is being considered, the burden of proving such circumstances is on the applicant. If there are features of the case which raise in the mind of the bail decision maker the spectre of risk, even if these are not such as might be sufficient to prove an unacceptable risk were the burden on the respondent to do so, the circumstances would still appropriately be considered in consideration of the first step in the bail process.

84 In this case, I do not accept Mr Dann's contention as to the absence of circumstances pointing to a risk posed by the applicant. In fact, there are matters which do raise the spectre of risk as a legitimate concern. In some cases, it will be pretty clear that the applicant does not pose any real or appreciable risk of any of the matters specified in s 4E(1). This is not such a case.

85 I turn now to the matters which I view as the most significant amongst those relied upon by the applicant in support of a finding of exceptional circumstances. These are the onerous conditions of custody being experienced by the applicant, in light of all of the circumstances which apply to him, and the concern that his continuing detention is contributing, and will continue to contribute, to a worsening of his mental condition.

86 First I turn to the onerous conditions of the applicant's custody. In short, for reasons outside his control, he has been classified at this stage as an LTMP. The authorities hold concerns for the safety of the applicant, as a result of things they know, and things they do not know. The result of this has been that for many months, the applicant has been held in conditions which have permitted only one hour out of his cell each day, no ability to mix with other prisoners, and the ongoing risk of lockdowns which would deny him even this moderate period out of his cell. I accept that the way in which the applicant is being held is entirely as a result of a decision, made in good faith by the authorities, that this is what is necessary to ensure his safety, and the good order of the prison where he is held. That does not make it any less unfortunate and concerning. It serves to impose a significant additional burden upon the applicant, particularly in light of his age, lack of criminal history, serious physical injuries, and psychological condition.

87 As to the medical treatment provided to the applicant in custody thus far, it is incumbent upon Corrections Victoria to provide to all persons in custody an appropriate level of care in respect of any medical or psychological conditions from which they suffer. Section 47(1)(f) of the Corrections Act provides that every prisoner has:

the right to have access to reasonable medical care and treatment necessary for the preservation of health including, with the approval of the principal medical officer but at the prisoner's own expense, a private registered medical practitioner, dentist, physiotherapist or chiropractor chosen by the prisoner.

88 The aim of Corrections Victoria, as I understand it, is to ensure that every person in custody has access to health care of a standard at least equivalent to that provided in the community through the public health system.

89 On the evidence before me, it does seem that there have been some failures in the provision to the applicant of appropriate care since his incarceration. There is no doubt that he has, on occasions, not been provided with some of the medication, mainly pain-killing medication, which has been prescribed to him. Each one of the alleged failures to provide medication was the subject of evidence from Ms Ashmore from Justice Health. I am confident that the authorities have not intentionally fallen short of what is required, but when a person in custody is prescribed medication, there is simply no excuse for the medication not being dispensed and provided to the person on every occasion. It is not an excuse to say there was a prescription but that the medication had not yet been dispensed. Prisoners are powerless to control their destiny in this and many respects, and the authorities must be astute to ensure that they comply with their obligations.

90 In some other respects, too, the evidence before me indicates that the medical treatment provided to the applicant has not lived up to what should be expected. In particular, a number of physiotherapy appointments which were allocated to him have not proceeded, through no fault of his. For a person suffering the effects of serious injuries, such as the applicant, I would expect appropriate physiotherapy services would be an important part of the treatment picture. Were he at liberty to do so in the community, the applicant would be able to arrange physiotherapy appointments at will, and attend them as required.

91 It is not an answer to these concerns for it to be said that the applicant has an enforceable right to appropriate treatment, for which he can make representations to the authorities. The level of care he has received for his injuries is one of the surrounding circumstances to which I should have regard in determining this application. I am very concerned about any material indicating that the care of the applicant has been deficient in any way. It is simply not acceptable.

92 The other matter which has caused me concern is the contention that the mental condition of the applicant is worsening as a result of his being in custody, with all that that entails. I have had regard to the contents of the report of Ms Cidoni. Mr Dann relies on the report as indicating a worsening in the psychological condition of the applicant due to being in custody. At the very least, Ms Cidoni does state that the applicant, because of his circumstances, is not experiencing the same recovery from his symptoms of PTSD as might be expected or hoped for in the community. Having said that, she does not speak of any dramatic worsening in the condition of the applicant, or any descent into psychosis, mood disorder or behavioural instability. Undoubtedly, prison is far from the optimal location in which to recover, and the conditions in which the applicant is held would constitute a further barrier. More encouraging, however, is the fact that the applicant is now receiving weekly treatment from a Forensicare psychologist.

93 I consider these matters to which I have been referring to be important circumstances in the bail application, but I do not accept that alone, or in combination with other matters, they are sufficient to show exceptional circumstances.

94 I have paid careful regard to all of the matters relied upon in combination by Mr Dann in proof of exceptional circumstances. There are some features of this case, including the injuries sustained by the applicant, his onerous conditions in custody, the apparent deficiencies in the medical treatment he has received, and the mental condition from which he suffers, which could be viewed as being out of the ordinary. Furthermore, his lack of prior convictions, young age, availability of family support, and availability of a substantial bail guarantee are all important matters to which I have regard.

95 However, having considered all of the circumstances, which, importantly, include the very serious nature of the alleged offending, the apparent strength of the prosecution case, the very long sentence which would inevitably follow a conviction for this crime, and the presence of factors which raise concerns about the risk posed by the applicant of endangering the public or failing to answer his bail, I am not satisfied that the applicant has discharged the burden resting on him of proving exceptional circumstances.

96 For that reason, it is necessary that bail be refused.

97 For completeness, I can indicate that even had I been of a different view, I would have concluded that there is an unacceptable risk that the applicant, if released on bail, would endanger the safety or welfare of a person, or fail to surrender into custody in answer to his bail. This would have required a refusal of bail in any event.

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

[3] A pseudonym has been used to protect the identity of the co-offender.

[4] The Porsche had been stolen from a residential address on 8 December 2024.

[6] [2004] VSC 17.

[7] Ibid [13]-[14] as cited in Re Reker [2019] VSC 81 [39] (Beale J); see also Re Sipser [2019] VSC 362 [43] (Beach JA).

[8] See, for example, Re Brown [2019] VSC 751 (Lasry J).

[14] [2018] VSC 393.

[15] [2006] VSC 441 ('Mustica').

[21] Crimes Act 1958 (Vic) ss 322K and L.

[22] [2018] VSC 393.

[24] [2022] VSC 88.

[25] Re ER [30] (Citation omitted. Italics added). His Honour has frequently made the same observation in bail decisions. See, for example, Re KE [2021] VSC 175, [53]; and Re Lesslie [2024] VSC 568, [64].