Re Neskovski [2019] VSC 447 (3 July 2019)

2 The vehicle involved in the collision was registered to the applicant's father's cleaning business. At approximately 7:10 pm on 22 December, the applicant attended the Geelong police station with his father. An interview was conducted. The applicant was subsequently arrested and charged with dangerous driving causing death and failing to immediately render assistance after a motor vehicle accident.

3 The applicant has been in custody since his arrest. On 12 June 2019, three further charges were filed against him in relation to the collision: failing to stop after a motor vehicle accident, careless driving and culpable driving causing death.

4 On 12 June 2019, the applicant filed an application for bail in this Court. The applicant had previously been refused bail, in the Magistrates' Court, on 24 December 2018 and 27 February 2019.

5 Having been accused of a Schedule 2 offence within the meaning of s 3 of the Bail Act 1977 ('the Act') - that is, dangerous driving causing death (and subsequently, culpable driving causing death)[1] - pursuant to s 4C of the Act, the Court must refuse bail 'unless satisfied that a compelling reason exists that justifies the grant of bail'.

6 The Crown case is that the van that struck the deceased was driven by the applicant. It is not necessary for present purposes to describe the alleged circumstances of the collision in any detail. The case against the applicant is that the evidence relating to the collision is 'consistent with fatigue/drowsiness contributing to the collision'.

7 The Crown case relies upon a compilation of records of the applicant's rostered work hours, the analysis of the usage of his mobile phone, witness statements and CCTV footage, so as to show that at the time of the collision the applicant was very likely to have been affected by fatigue which, in the circumstances, 'would have caused substantial sleepiness related fatigue and impairment with increased risk of micro-sleeps, and collision'.

8 At trial, the Crown proposes to call a registered medical practitioner and sleep specialist in support of the Crown case. The Crown case will be that the applicant was sleep deprived to the extent that an ordinary or reasonable person in his situation would have recognised his 'manner of driving as involving an appreciable risk of serious injury or death to other users of the road'[2].

9 In his written application for bail, the applicant identifies the following combination of factors as showing a compelling reason justifying the grant of bail:

(a) the applicant is currently in custody for the first time;

(b) he is 28 years old with no prior criminal history;

(c) he has immediate gainful employment;

(d) the case against him is not overwhelming, as the CCTV reveals and the [culpable driving charge] is extremely weak;

(e) there is significant delay in this matter through no fault of the applicant;

(f) the sentence he faces, even if convicted, might be substantially served if [he is] refused bail; and

(g) ... there is no unacceptable risk of absconding, offending or otherwise relevantly misbehaving.

10 While bail was refused in the Magistrates' Court both on the basis that a compelling reason had not been shown and that the applicant was an unacceptable risk within the meaning of s 4E of the Act, in this Court the respondent did not contend that the applicant posed any unacceptable risk. The respondent's opposition to the application for bail was limited to there being no compelling reason that justified a grant of bail. Having regard to the applicant's history and all of the relevant circumstances, it was entirely proper for the respondent not to contend that the applicant posed any unacceptable risk.

11 The application for bail is supported by two affidavits affirmed by the applicant's solicitor, Mr Jacob Slucki. In his first affidavit, Mr Slucki deposed to the facts relied upon in the written application as showing a compelling reason. The salient points in Mr Slucki's evidence may be summarised as follows.

(1) There is no allegation that the applicant was under the influence of alcohol or drugs. Nor is there any suggestion that he was driving above the speed limit. It is submitted that, for those reasons, 'this is not an overwhelming case against the applicant' in relation to either culpable driving causing death or dangerous driving causing death.

(2) The applicant has been in custody since 22 December 2018, and a delay of more than six months from the time of remand to a committal mention (recently held) 'is excessive and unacceptable in the circumstances'. The delay is due to a combination of the time required for the provision of expert reports by the prosecution and the caseload of the Geelong Magistrates' Court. The delay is not the fault of the applicant.

(3) The applicant is 28, having been born in Geelong. He has resided in that area since then. He has no prior convictions, and thus no history of non-compliance with bail. He has very strong ties to the community, including employment, family and residence. At the time of his arrest he had been employed by his father's cleaning business for nine years. If bail is granted, he will return to that employment.

(5) A two-day committal hearing has been fixed for 12 December 2019. Should the applicant remain in custody, at the commencement of the committal hearing he will have been in custody for 355 days. That time is excessive and unacceptable.

(6) The applicant would agree to bail conditions this Court deems necessary, including a residence condition, reporting to police, a curfew, surrendering his passport and not attending a point of international departure.

12 In opposition to bail being granted, the respondent relied upon an affidavit sworn by the solicitor with the carriage of the matter for the respondent, Mr Timothy White. As I have already noted, the respondent contends that there is no compelling reason justifying the grant of bail. It does not contend that the applicant poses any unacceptable risk.

13 In response to the applicant's assertion that the case against him is not overwhelming, Mr White deposed that the respondent does not say that the case is overwhelming. It contends that the Crown case on the charges of dangerous driving and failing to stop and render assistance are, however, 'particularly strong'.

14 In relation to the length of time the applicant is likely to spend in custody if bail is refused,[3] Mr White deposed that it is likely that the applicant's trial would be reached in the first half of 2020 - resulting in him serving approximately 18 months on remand while awaiting trial. Mr White, however, observed that on the charge of failing to stop and render assistance after a motor vehicle accident alone, sentences of 4 years' imprisonment have been imposed in what he said were comparable cases.[4]

15 With respect to the applicant's material concerning his personal circumstances, the respondent took no issue with the matters relied upon by the applicant.

16 The applicant is required to establish a compelling reason that justifies the grant of bail. A compelling reason may be established by the combination of a number of circumstances - being circumstances relating to the strength of the prosecution case against the applicant, the personal circumstances of the applicant and all of the matters now referred to in s 3AAA of the Act.[5] As the authorities now show, a compelling reason does not have to be one which is irresistible or exceptional. A compelling reason is one which is forceful and therefore convincing.[6]

17 Section 1B(2) of the Act requires the Act to be applied having regard to the guiding principles set out in s 1B(1). Section 1B(1) identifies the guiding principles as being:

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

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

(c) promoting fairness, transparency and consistency in bail decision-making; and

(d) promoting public understanding of bail practices and procedures.

18 As has been said before, guiding principles (a) and (b) involve two competing considerations: on the one hand, safety to the community; and on the other, the presumption of innocence and the right to liberty.[7]

19 In the resolution of this application, guiding principle (b) has more relevance than guiding principle (a). The respondent does not seek to contend that there is any unacceptable risk of the kind referred to in s 4E of the Act. Thus, maximising community safety does not loom as large an issue as it might in a case where unacceptable risk was a significant issue (for example, because of relevant prior convictions or a negative bail history). Specifically so far as the applicant is concerned, any risk that he might drive whilst fatigued while on bail can be mitigated by a curfew condition requiring him to be at his place of residence in the evening, at night and in the early hours of the morning; alternatively, by a condition prohibiting him from driving while on bail.

20 The applicant has no prior convictions, and thus no negative bail history. The presumption of innocence and the right to liberty are important considerations in this application.[8] It is not appropriate on this application to set out any detailed analysis concerning the strength or otherwise of the Crown case. It is sufficient to say that there are issues between the parties that are capable of being contested.

21 An important issue in this case is the length of time the applicant is likely to spend in custody if bail is refused.[9] The applicant has already spent some six months in custody. The material suggests that a further 12 month period would be likely if bail were to be refused. This is significant in the context of the applicant's previous history and the circumstances of his offending. Different considerations would undoubtedly apply in respect of, for example, allegations of serious violent offending committed by a person with a significant criminal, or negative bail, history. Self-evidently, however, this is not such a case.

22 When one combines all of the circumstances to which I have referred, there is in my view a compelling reason justifying the grant of bail, with a surety and on appropriate conditions. While the respondent did not contend that the release of the applicant would pose any unacceptable risk, the Act requires me to examine that question before bail can be granted.[10] Having examined that issue for myself, I have concluded that the surety and conditions I propose to order, in addition to being relevant on the issue of compelling reason,[11] will also mitigate any risk of the kind referred to in s 4E of the Act so that such risk is not an unacceptable risk.[12]

23 In argument this morning, counsel for the respondent sought to persuade me that if bail were to be granted then one of the conditions which should be imposed is a prohibition on the applicant driving while on bail. In the alternative, counsel submitted that the applicant should be prohibited from driving except for work purposes, or to attend any necessary medical treatment. I propose to make a curfew order in respect of the applicant. In my view, a curfew order is better tailored to the circumstances of this case than an order prohibiting or otherwise restricting his ability to drive.

24 Finally, as I have already observed, one of the matters relied upon by the applicant in this application is the availability of a surety in the sum of $300,000. In my view a surety is necessary. Section 5AAB(3) of the Act requires me to have regard to the means of a proposed surety in determining the amount of the surety. In this case, the surety was offered by the applicant's father. There was no issue on this application about his means to provide the amount offered. The amount of a surety, however, should not be more than is required to satisfy the requirements of the Act.[13] The amount of a surety must be fixed by reference to all of the circumstances of the case. Plainly, there is no tariff for particular offending or particular circumstances. In my view $300,000 would be a manifestly excessive amount in this case. In all of the circumstances of the present matter, I have determined that the amount of the surety should be $75,000.

25 The applicant will be admitted to bail on his own undertaking, with one surety in the amount of $75,000, on the following conditions:

(1) The applicant attend at the trial, at a day, time and place notified to him and his surety by the Director of Public Prosecutions by notice in writing and then surrender himself.

(2) The applicant not depart without the leave of the Court and, as often as leave is given, return at the time appointed by the Court on granting leave and again surrender himself.

(3) The applicant attend the Magistrates' Court of Victoria at Geelong on 12 December 2019 for committal hearing.

(4) The applicant reside at [the address specified in the order made this day]. The applicant is to notify the informant within 24 hours of any proposed change of address.

(5) The applicant report to the Officer in Charge of the Police Station at Geelong (110 Mercer Street, Geelong) or his or her nominee, each Monday and Friday between the hours of 9:00 am and 9:00 pm.

(6) The applicant be within his place of residence between the hours of 10:00 pm and 6:00 am.

(7) The applicant present at the front door of his premises upon request by police during curfew hours.

(8) The applicant surrender any passports which he may hold to the informant within 24 hours of being admitted to bail and not apply for another passport.

(9) The applicant not to attend or approach any point of international departure during the period of bail.

(10) The applicant not to contact directly or indirectly any witness for the prosecution except his father, John Neskovski, or the informant or his nominee.

(11) The applicant provide the informant with his telephone and mobile telephone number(s).

[1] See items 22(f) and (g) of Schedule 2 of the Act.

[2] See King v The Queen [2012] HCA 24; (2012) 245 CLR 588, 608-9 [46].

[3] See s 3AAA(1)(k) of the Act.

[4] See, eg, Sarikaya v The Queen [2015] VSCA 236; Stewart v The Queen [2018] VSCA 55.

[5] Re Alsulayhim [2018] VSC 570.

[6] Re Ceylan [2018] VSC 361; Re Alsulayhim [2018] VSC 570; Re Abaker [2018] VSC 714; Re Gaylor [2019] VSC 46; Re JM [2019] VSC 156.

[7] Re Ceylan [2018] VSC 361 [32].

[8] See ss 1B(1)(b) and (2) of the Act.

[9] See s 3AAA(1)(k) of the Act.

[10] See s 4C(4) of the Act.

[11] The issue of whether an applicant is an unacceptable risk has the capacity to be relevant to the issue of compelling reason in the same way it has the capacity to be relevant to the issue of exceptional circumstances as explained in Re Sipser (2019) VSC [44]-[45]. It follows that bail conditions that mitigate risk (see s 4E(3)(b) of the Act) are similarly relevant to that issue.

[12] See s 4E(3)(b) of the Act.

[13] See s 5AAA(2) of the Act which provides that bail conditions must be no more onerous than is required to reduce the likelihood that an applicant may do one of the things mentioned in s 5AAA(1).