Re Mongan (No 2) [2019] VSC 119 (1 March 2019)

1 The applicant applies for bail for a second time in this Court, having had his application for bail on the same charges refused by me on 24 October 2018.[1]

2 The facts of the charges, the applicable law, the circumstances of the applicant, the submissions made by both sides, and my detailed reasons for refusing bail on that occasion, are set out in that earlier judgment. I will not repeat them here, except insofar as it is necessary to do so.

3 Because of the nature of some of the offences alleged to have been committed by the applicant, a provision of the Bail Act 1977 ('the Act') would require me to refuse bail unless satisfied that a compelling reason exists that would justify the grant of bail in this case. [2] That was also the position at the time of the previous application.

4 There is a live issue in this case whether the applicant is entitled to make this second application for bail. Section 18 of the Act permits a further application for bail by a person who has been refused bail. However, section 18 AA(1) imposes a limitation on that right. The sub-section relevantly provides:

(1) A court must not hear an application under section 18 unless -

(a) The applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail; or

5 Section 18AA(2) provides, on the other hand:

Nothing in this section derogates from the right of a person in custody to apply to the Supreme Court for bail.

6 The applicant, who appears in person in the application, relies on a number of matters which I will turn to shortly as amounting to new facts and circumstances. The respondent, for whom Ms Warren of counsel appears, disputes that new facts and circumstances have been shown, and submits that in light of section 18AA(2) of the Act, this application should not be entertained.

7 In that regard, Ms Warren submitted that section 18AA(2) should not be read as permitting a further application for bail in this court after the refusal by this Court of a previous application, and should be confined to applications after the refusal of bail in a lower court.

8 Accepting, while not deciding, that the latter contention is correct, I have considered the question of whether new facts and circumstances have been established here.

9 The new facts and circumstances relied upon by the applicant were originally set out in the application for bail dated 8 January 2019. I will not set out all of the matters in the application here. Some of them no longer apply, and some are clearly of more moment than others.

10 As I perceive it, taking into account the matters originally set down in the application, and the submissions made by the applicant in this Court, the most important matters relied on as constituting new facts and circumstances, were:

1. A decline in the mental health of the applicant since the last application, and concerns regarding his personal safety since his imprisonment;
2. The relocation of the complainant to a location in the Albury-Wodonga area that is unknown to the applicant;
3. The fact that it is now proposed that if the applicant is released on bail, he will reside with his girlfriend in Monbulk, a suburb of Melbourne, which would have him residing a substantial distance away from the complainant.

11 In respect of the requirement for new facts and circumstances, Ms Warren cited several cases that throw light on the sorts of facts that have been held to amount to new facts and circumstances, and what the term actually means.[3]

12 She submitted that the first matter mentioned above was something which did not go beyond matters that were already before me in October last year, and was within my contemplation at that time. As for the relocation of the complainant, that was not really a new fact or circumstance that would go towards the granting of bail, it was submitted. The applicant, being a resourceful person, would readily be able to find out the address of his former wife if he sought to do so. As for his own proposed new address, it was not a new fact or circumstance in the sense required either. The applicant could readily travel from Melbourne to northern Victoria should he so desire.

13 Although it was by no means a clear-cut decision, I consider that there were new facts and circumstances established before me. As things appeared at the time of the previous bail application, the conditions proposed would have had the applicant residing within a distance of 30 kilometres or so of the complainant, whose address he knew, in circumstances where it was anticipated he would have continued contact with his children. The position proposed now would be markedly different from that.

14 I now turn to a consideration of the submissions made by both sides on the question of whether a compelling reason has been shown to exist that would justify the grant of bail, and if so, whether or not there is an unacceptable risk of any of the matters set out in section 4E.

15 In spite of the fact he still retains legal representatives in respect of his upcoming committal hearing, the applicant was unrepresented during this application for bail. He prepared and filed a handwritten application and affidavit in support of the application. That material was of a very high standard, no doubt reflecting his high level of intelligence, his clear understanding of the law and procedure in respect of bail applications, and his ability, in spite of the ordeal he is now going through, to organise his thoughts effectively.

16 His submissions before me were of a similarly high standard.

17 Mr Mongan relied on a combination of matters to establish the existence of a compelling reason in support of bail being granted. These included:

• Other than the findings of guilt for breaches of the intervention orders, for which he received a non-conviction disposition, he has no criminal history, and in particular, no history of violence. The breaches of the intervention orders occurred during a period when he was not coping well with the breakdown of his marriage;
• There is no history of interfering with witnesses;
• The very substantial delay which would occur before the trial of these matters, which he described as unreasonable. The delay was solely due to court congestion, and would have a material effect on him in many ways;
• The prosecution case, although outwardly strong looking, depended for its strength on an acceptance of the evidence of the complainant, which would be challenged;
• If bailed, he would reside with his partner and her children in Monbulk. This would be a loving and supportive environment many hours away from the location of the complainant. His partner would provide supervision of him whenever he was away from Melbourne;
• The applicant would be able to secure employment in his field as an accountant;
• If granted bail, the applicant would be able to continue his legal studies at Deakin University, an option which would not be open to him as a remand prisoner;
• Continued incarceration will impose a very substantial drain on his financial circumstances;
• The applicant's mental wellbeing has continued to suffer as a result of his continuing exposure to the traumatic and violent environment of prison;
• The applicant's continuing incarceration imposes a substantial practical, financial, and emotional burden on his family;
• The applicant has the continuing support of his family;
• The availability of a substantial surety of $20,000;
• The CROP assessment report;
• The assessment of the psychologist Bernard Healey that there is a low to moderate risk of reoffending;
• The reality that after the long period of remand which will occur if he is not released on bail, he may emerge with little or no life to go back to; and
• The fact that he is acutely aware of the serious consequences of a breach of bail upon his freedom and his ongoing relationship with his children.

18 I should note that one of the matters relied upon by the applicant in his previous application, namely the fact that his continued incarceration jeopardized the survival of the farm he had jointly owned with his former wife, is no longer relied upon. As a result of his circumstances, the applicant has seen fit to dispose of the farm, and it is currently under contract to be sold.

19 Ms Warren for the respondent submitted that a compelling reason has not been shown why the applicant should be released on bail, and further, that even if such reason was established, there was an unacceptable risk that he would endanger the complainant, commit an offence, or interfere with a witness if released on bail. Amongst the matters upon which Ms Warren relied were:

• The residential and other conditions proposed to minimise the risks to the safety of the complainant inherent in the release of the applicant would not, in reality, reduce those risks satisfactorily. The applicant is a resourceful person and would easily be able to locate the complainant should he seek to do so. Furthermore, the fact that he would be residing some distance away would not alleviate the safety concerns;
• The offending alleged occurred during a period when the applicant displayed the outward appearance of being a law-abiding person leading a stable life. He had a great deal of support at the time, and yet allegedly carried out the crimes in question;
• In respect of the likely delay, it would be best described as unfortunate rather than unreasonable. It needs to be measured against the strength of the prosecution case and the seriousness of the offending. Furthermore, the delay would not be such as to equate to the sentence likely to be received by the applicant should he be convicted;
• The offending which led to the applicant being dealt with for breaching the intervention order was significant. Ms Warren tendered as Exhibit B a summary relied on in the Magistrates' Court;[4]
• In respect of the CROP report, the applicant does not manifest the sorts of problems that would be amenable to assistance from the authorities. The report should provide no further level of comfort that the applicant would abide by conditions of bail;
• The prosecution case is extremely strong. The account of the complainant would be supported by independent evidence of the identification of the accused, and CCTV footage showing him at the premises in question, including running from the premises at the same time as the complainant could be seen escaping over the fence to the neighbour's property;
• Ms Warren agreed with the description I gave in the decision for the earlier bail application as to the seriousness of the offending. She submitted that there was a chilling level of premeditation involved, raising serious questions as to what the applicant may be capable of;
• In all the circumstances, the applicant continues to pose a grave risk to the safety of the complainant;

20 It is abundantly clear, when consideration is given to the catalogue of matters relied upon by the applicant in support of bail, that he has mounted a powerful application in this Court. At the heart of it all is the reality that the applicant is a man of excellent previous character, and considerable ability in a number of fields. He has been a high-achieving person over his working life. His current circumstances represent a shocking and unexpected fall for him, which no doubt has caused untold distress to him, his family, and all his loved ones. It would be impossible to consider this case without pondering and being affected by those matters.

21 The reality, of course, is that the consideration of whether or not bail should be granted must be conducted in a reasoned and dispassionate way, taking into account all of the relevant aspects of the circumstances, acknowledging the important guiding principles for the Bail Act set out in section 1B, and bearing in mind that in this application, the onus is on the applicant to establish that there is a compelling reason for his release on bail.

22 I have considered the submissions of the applicant very carefully, as I sought to do on the previous occasion. Having done so, I am moved to the conclusion that he has failed to discharge the onus resting on him under section 4C of the Act.

23 I will not repeat the conclusions I reached in the previous application. They are there to be read and are well known to the applicant. Suffice to say, the two matters which point so clearly to the need for bail to be refused here are as they were in October last year. They are the considerable seriousness of the alleged offending in this case, and the strength of the prosecution case.

24 In respect of the first matter, I said in my earlier decision:

This attack upon the complainant in her own home, which only came to an end when, fortuitously, she was able to escape, was calculated to, and did cause, great terror to the complainant. The alleged offending was pre-meditated and involved a significant degree of planning and the use of equipment taken along for the purpose of incapacitating the complainant. It was offending which was brazen, frightening and disturbing. Only the escape of the complainant prevented a continuation of, and possible escalation of, the offending. The threat to kill her and her family was especially chilling.[5]

25 Ms Warren described the prosecution case as 'extremely strong'. That, in my view, is an apt description. If anything, the additional material which was drawn to my attention during this application has reinforced my view as to the powerful appearance of the case. I have seen still photographs from CCTV footage which is available of the premises of the complainant.[6] Those photographs show a man, who on all of the evidence, could only have been the applicant, arriving at the front of the property. The man can be seen to walk along the driveway to the rear, interfere with a CCTV camera in operation in the rear of the premises, and then, later, run away from the property, shortly before the complainant, bound by the ankles, can be seen hopping along the other side of the property and throwing herself over the side fence.

26 There is no doubt that the account of the complainant, which if accepted, would establish the guilt of the applicant, will be supported by the CCTV footage and the evidence of other witnesses.

27 Another of the matters in section 3AAA worthy of note at this time is subsection (1)(j), which relevantly provides:

any known view or likely view of an alleged victim of the offending on the grant of bail.....

28 On that score, it remains the position that the complainant is fearful of the applicant. In fact, as I was informed by Ms Warren, the complainant is convinced that if the applicant is released, he will kill her. That fear apparently held by the complainant is understandable, to my mind. I take it into account.

29 I have carefully taken into account the submissions made by both sides in this application, and in doing so, have also carefully considered all of the matters required to be taken into account under section 3AAA of the Act. I dealt with others of those specifically during the course of my previous decision. I will not touch on those again now.

30 Suffice to say that in my view, the applicant has again fallen short of establishing that a compelling reason exists that would justify a grant of bail. I said in the past, and I repeat, that far from being satisfied of forceful, and therefore convincing reasons in justification for bail, the circumstances, as I see them, clearly point to the need for the applicant to be kept in custody.

31 Furthermore, I note that even had I been satisfied of the existence of a compelling reason under section 4C, I would have been satisfied that, in the second step of the two-step test, there would be an unacceptable risk of the matters set out in section 4E(1)(i) to (iii).

32 In all of the circumstances, the application for bail is refused.

[1] Re Mongan [2018] VSC 638.

[2] Section 4C(1A).

[3] Re Application for Bail by Peter John Hewat [2014] VSC 240 (Rush J); Re Application for Bail by Tyler Foxwell [2014] VSC 145 (Dixon J); Re Application for Bail by Steve Al-Jinavo [2017] VSC 413 (Beale J).

[4] I note that the applicant challenged the contention that the summary as tendered was the summary as relied on in the Magistrates' Court. There were several matters deleted and not relied upon. I took those matters into account in considering the summary.

[5] [2018] VSC 638 [47].