//
[2026] VSC 26
General information, not legal advice.
Supreme Court of Victoria
2026-02-05
K Judd J
Original judgment source is linked above.
CRIMINAL LAW - Bail pending appeal - Custodial portion of sentence will have been served before appeal heard - Family violence - Exceptional circumstances - Unacceptable risk - Re Zoudi [2006] VSCA 298; (2006) 14 VR 580.
1 This is an application for bail by Nicholas Morrish. Mr Morrish is 49 years old. He grew up in Alice Springs. His father died when he was three years old. After his mother re-partnered, the family 'moved a few times and travelled a lot'. He relocated to Victoria about four years ago. He has qualifications in mechanical engineering but has struggled to find consistent employment in Victoria. He has been diagnosed with autism spectrum disorder and has a history of drug and alcohol use.
2 The charges for which the applicant seeks bail are unlawful assault,[1] use carriage service to menace,[2] persistent contravention of a family violence intervention order[3] and two charges of drive whilst disqualified.[4] On 6 November 2025, he was convicted and sentenced to an aggregate term of six months' imprisonment combined with a 15‑month community corrections order for these offences, other than the charge of use carriage service to menace. In respect of the charge of use carriage service to menace, he was convicted and discharged. An appeal against sentence has been listed for hearing in the County Court on 7 May 2026. By 8 March 2026, the applicant will have served his six-month term of imprisonment.
3 There are a number of outstanding matters of relevance to this bail application. On 13 August 2025, the applicant was convicted of a number of offences including threat to kill, persistent contravention of an intervention order and stalking. He was sentenced to a 12-month community corrections order. He lodged an appeal against conviction and sentence on 28 August 2025. This appeal is also scheduled for hearing in the County Court on 7 May 2026.
4 The charges for which the applicant seeks bail involve offending against Ms Duffy, with whom the applicant had previously had a brief casual relationship, and Mr Kleman, with whom Ms Duffy was in a relationship at the time of the offending.
5 On 29 August 2025, the applicant followed Mr Kleman to the apartment building where Mr Kleman and Ms Duffy resided. The informant's report, dated 27 January 2026, states:
6 On 30 August 2025, the applicant sent a number of texts to Ms Duffy and made a number of phone calls to her, threatening to kill and harm her and on one occasion saying 'I'm going to kick you in the guts until your baby's dead'.
7 On 8 September 2025, police observed the applicant driving in the vicinity of the address where Ms Duffy and Mr Kleman resided.
8 This offending occurred on and from 29 August 2025, one day after the applicant had lodged his appeal in respect of the outstanding matters referred to above.[5] The community corrections order he had been sentenced to was stayed by operation of s 264 Criminal Procedure Act 2009, as he had by this time lodged an appeal. However, it is relevant for the purposes of the exceptional circumstances test that he was 'at large awaiting trial' at this time.[6]
10 In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B of the Bail Act 1977 (the 'Act'), which 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.
11 The applicant is required to show exceptional circumstances. Persistent contravention of an intervention order is a Schedule 2 offence and, at the time of committing that offence, he was at large awaiting trial for other Schedule 2 offences.
12 To be exceptional, the circumstances must be out of the normal or out of the ordinary; that is, exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[7] The threshold, although high, is not intended to be near impossible to achieve,[8] and may be established by a combination of circumstances.[9]
13 In considering whether exceptional circumstances exist, the Court must take into account the surrounding circumstances, which include the non-exhaustive list set out in s 3AAA of the Act and which relate both to the strength of the prosecution case and the personal circumstances of the applicant.
14 As acknowledged by Priest JA in Re Gloury-Hyde, one matter that has often been regarded as important in the context of an assessment of exceptional circumstances is the absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways contemplated by the Act.[10]
15 Further, it has long been accepted that, in determining whether exceptional circumstances exist, it is relevant to consider the likelihood that the custodial portion of a sentence will have been served before an appeal is heard.[11] It was emphasised by the Court of Appeal in Re Zoudi that exceptional circumstances
... will, in many cases, be demonstrated when it can be shown that the whole of the custodial portion of the sentence will have been served, as distinct from the non-parole period, by the time when the appeal can be heard.[12]
16 If satisfied of the existence of exceptional circumstances, the Court is required to apply the unacceptable risk test.[13] The Court must refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail:
(a) commit a Schedule 1 offence or a Schedule 2 offence; or
(b) otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means; or
(c) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(d) fail to surrender into custody in accordance with the bail undertaking.[14]
17 Again the Court must take into account the surrounding circumstances. The Court must also consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[15]
18 The applicant relied on the affidavits of Will May, solicitor, made 7 January 2026 and 2 February 2026, and the exhibits therein, which included:
(a) a psychological assessment and court report by Christine Kennedy, psychologist, dated 31 October 2025;
(b) a letter from Brett Morris, Chaplain at the Fulham Correctional Centre, dated 7 December 2025, advising that the applicant had been completing The Salvation Army Positive Lifestyle Program; and
(c) a certificate of participation from the Fulham Correctional Centre, dated 4 December 2025, confirming that the applicant had attended Alcoholics Anonymous and Narcotics Anonymous meetings.
19 The applicant also relied on a Confidential Suitability Report by the County Court's Court Integrated Services Program ('CISP'), dated 3 February 2026.
20 The prosecution relied on affidavits of Jacqueline Sihua Zhu, solicitor, made 23 January 2026 and 28 January 2026.
21 Detective Acting Sergeant Maddock gave evidence confirming the content of the informant's report and elaborating on the intervention orders currently active against the applicant, namely:
(a) an intervention order listing Ms Duffy as the protected person with full exclusion conditions, expiring 29 June 2027;
(b) an intervention order listing Mr Kleman as the protected person with full no contact conditions, expiring 14 January 2028;
(c) an intervention order listing the applicant's sister and her two children as the protected persons with full exclusion conditions, expiring 9 July 2027;
(d) a safe contact order listing the applicant's mother as the protected person with conditions that he not commit family violence against his mother and not damage property, expiring 9 July 2027; and
(e) a safe contact order listing the applicant's stepfather as the protected person in similar terms to that regarding his mother, expiring 14 August 2026.
22 Detective Maddock indicated that the proposed bail address was 800 metres away from the applicant's sister's home. While he had not been able to contact the applicant's sister, he indicated that, to his knowledge, the applicant and his sister are estranged and she wants no contact with him.
23 Detective Maddock conceded that, notwithstanding the safe contact order, his mother had informed him that she did not hold concerns for her own safety, she still supported him, she visits him in gaol, she regularly contacts him by telephone and she was supportive of his application for bail.
24 Detective Maddock also conceded that, since he had been in custody, the applicant had not attempted to contact anyone in breach of the active intervention orders, including Ms Duffy.
25 The applicant relied on the following matters in support of his application for bail:
(a) if bail is refused, then the applicant will have served the entirety of his sentence prior to his sentence appeal being heard;
(b) the applicant has a stable address in Berwick, owned by his parents, which is some distance from Ms Duffy's address;
(c) the applicant has a special vulnerability, by virtue of his autism spectrum disorder diagnosis;
(d) treatment and support services are available through CISP; and
(e) the risk of endangering the safety and welfare of any person can be ameliorated with strict conditions.
26 Counsel for the applicant submitted that the applicant was desirous of bettering himself and had given instructions that he had attended numerous courses whilst in custody.
27 It was submitted that the applicant, now 49 years old, had been on remand for 58 days prior to being sentenced and that this was the first time that the applicant had been in custody. The applicant had learnt from that experience. It is noted that, in her report, Ms Kennedy stated that the applicant had 'found incarceration a daunting and salutary experience that he does not wish to repeat'.
28 The prosecution opposed the application for bail on the basis that the applicant had not discharged the burden of satisfying the Court as to the existence of exceptional circumstances that justify the grant of bail. The prosecution emphasised that this was serious offending which could not be described as isolated. The prosecution acknowledged that the applicant had been assessed as suitable for CISP, but noted that the recommendation came with reservations. The prosecution submitted that there were two sides to the applicant's diagnosis of autism spectrum disorder, with Ms Kennedy opining that he presents with social blindness and that his symptoms of autism spectrum disorder have contributed to his offending.
29 Further, the prosecution submitted that there was an unacceptable risk of the applicant endangering the safety or welfare of any person. The prosecution relied on the fact that the offending the subject of appeal involved similar offending to the outstanding matters and both sets of offending involved Ms Duffy.
30 Finally, the prosecution submitted that there was an unacceptable risk of the applicant interfering with a witness or otherwise obstructing the course of justice. The prosecution relied on the fact that the alleged offending involved the applicant contacting Ms Duffy one day after the filing of the appeal against conviction and sentence in his outstanding matter.
31 In respect of the bail conditions proposed by the applicant, the prosecution expressed concern about the proposed residential address, it being the same as his residential address at the time of offending.
32 The prosecution also relied on the informant's report, which noted the following in respect of the proposed residential address:
33 The fact that the custodial portion of the applicant's sentence (that is, the six-month term of imprisonment) will have been served prior to his appeal against sentence being heard by the County Court is particularly relevant to the determination of his bail application. However, this circumstance cannot be considered in isolation.
34 Balanced against this consideration are a number of circumstances, including but not limited to:
(a) the very serious nature of the offending;
(b) the existence of intervention orders against him, with one of the offences relevant to this bail application being persistent contravention of an intervention order;
(c) the fact that the offences the subject of this bail application were committed a very short time after the applicant had been convicted and sentenced to a community corrections order in respect of similar offending;
(d) the applicant's limited ability 'to exercise good judgment and to plan and execute positive and self-sustaining behaviours'; and
(e) community safety and an absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways contemplated by the Act.[16]
35 It is of relevance that the applicant was deemed suitable for CISP. But that suitability came with reservations. In the CISP report dated 3 February 2026, the violent and aggressive nature of the applicant's alleged offending was noted, as well as his dismissive and minimising attitude towards Ms Duffy, and his role in the events.
This suggests a pro-criminal personality that may struggle with addressing his criminogenic needs.
However, [the applicant] has vocalised a desire and intention to engage with CISP, and participate in treatment programs including mental health treatment. He noted general ambivalence around treatment pertaining to AOD[[17]] counselling.
As such, if given the opportunity on this occasion via CISP, the onus will be on [the applicant] to adhere to his commitment for change and demonstrate meaningful participation in treatment and programs.
36 Ms Kennedy's conclusions that the applicant's behaviour has been impacted by unemployment, loneliness and symptoms of autism spectrum disorder are also relevant. I take these matters into account, in particular the diagnosis of autism spectrum disorder.
37 However, there is little to suggest that the applicant has taken sufficient steps to deal with his issues to date. I accept that the applicant has participated in a number of programs, including within the prison setting, and that he has expressed a desire to participate in treatment programs with CISP, including mental health treatment. Against that is his reluctance to address any substance abuse. Although he acknowledged some of the negative effects of his substance use, he informed Ms Kennedy that he 'does not consider he requires drug or alcohol rehabilitation because he has "rules in place" so that his drug use does not impact his employment'.
38 Ultimately, I am not satisfied that the applicant has demonstrated exceptional circumstances that justify the grant of bail, notwithstanding that:
(a) the custodial portion of the applicant's sentence (that is, the six-month term of imprisonment) will have been served prior to his appeal against sentence being heard by the County Court;
(b) the applicant was deemed suitable for CISP; and
(c) the applicant is a 49 year old man who had not previously been held in custody.
39 I am particularly concerned about the nature and seriousness of the offending. It is in the context of a fixation with his previous partner Ms Duffy and, in his words, because he gets stuck and cannot let things go. His pattern of family violence is not restricted to the offending the subject of this bail application. Not only are the outstanding matters of the same nature, but the existence of the intervention and safe custody orders highlight the difficulties he faces in controlling his behaviour. His suggestion that his mother reside with him at Berwick, at least for some of the time, in circumstances where she is unwell and has previously experienced family violence perpetrated by him, provides no comfort.
40 I am also satisfied that the risk of granting bail would be unacceptable. Those risks include the risk of the applicant endangering the safety or welfare of any person and the risk of interfering with a witness. His demonstrated pattern of behaviour towards Ms Duffy and his preparedness to contact her within a very short time after his court appearance and lodgement of an appeal in respect of the outstanding matters is of considerable concern.
41 Other than Ms Duffy, there are four people within the community who are at particular risk, noting the existence of the active intervention and safe contact orders.
42 Further, there are no conditions of bail that may be imposed which would mitigate the risk so that it is not an unacceptable risk. The proposal that the applicant reside at the Berwick address with his mother ignores the fact that there is a safe contact order against him listing his mother as the protected person. This proposal is also made in circumstances where the applicant must have been aware that his mother would have no capacity to control or influence his behaviour and indeed, would not be permanently residing with him.
43 The fact that this address is only 800 metres away from his sister's address is also problematic, although of itself not determinative to the outcome of this bail application. Similarly, the fact that he has no network or support group to assist in moderating his behaviour is problematic, but not determinative.
44 Having regard to all the circumstances of this application, particularly the nature of the offending, the timing of the offending, the applicant's demonstrated inability to control his behaviour and his lack of insight into the role his mother can play in tempering his behaviour, I am satisfied that the prosecution has established that the risk of granting bail would be unacceptable.
[2] Commonwealth Criminal Code Act 1995, s 474.17(1).
[6] See Bail Act 1977, s 4AA(2)(c)(iii); and [11] below.
[7] DPP v Muhaidat [2004] VSC 17, [13] (Kaye J).
[8] Re Application for Bail by Whiteside [1999] VSC 413, [10] (Warren J); Armstrong v R [2013] VSC 111, [31] (Lasry J).
[9] Re Debresay [2015] VSC 756, [56] (Jane Dixon J) (citations omitted).
[10] Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA).
[11] Re Zoudi [2006] VSCA 298; (2006) 14 VR 580, 581 [2].
[12] Ibid, 583 [9]; quoting with emphasis, Kursunlu, Unreported, Court of Appeal, 3 December 2001, [2] (Winneke P, Brooking and Buchanan JJA).
[13] Bail Act 1977, ss 4A(4), 4D(a).
[16] The issue of unacceptable risk is elaborated on below.
(2006) 14 VR 580