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[2024] VSC 391
General information, not legal advice.
Supreme Court of Victoria
2024-06-28
Elliott J
Original judgment source is linked above.
(1) Reside at [address] ("the Residence").
(2) Not change his place of residence without leave of the court.
(3) Report to the officer in charge of the Moorabbin Police Station, or her or his nominee, every Monday and Friday between the hours of 9.00am and 7.00pm.
(4) Not leave the Residence between the hours of 8.00pm and 8.00am each day ("the Curfew Hours"), except in the case of a medical emergency in respect to himself or his mother.
(5) Present at the front door of the Residence during the Curfew Hours upon the reasonable request of the informant, Senior Constable [name], or his nominee, being an authorised member of Victoria Police.
(6) Not leave the Residence between the hours of 8.00am and 8.00pm each day, unless in the company of his mother.
(7) Not possess any firearm as defined in the Firearms Act 1996 (Vic).
(8) Not consume alcohol.
(9) Not use or possess any drug of dependence as defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
(10) Not possess or use more than 1 mobile telephone.
(11) Provide the informant or his nominee with the telephone number, international mobile equipment identity ("IMEI") number, subscriber identification module ("SIM") card number and any password or passcode of the mobile telephone he possesses or uses, within 24 hours of first having access to that mobile telephone, and notify the informant or his nominee of any change of password or passcode of that mobile telephone within 24 hours of that change.
(12) Produce the mobile telephone he possesses or uses for inspection upon the reasonable request of the informant or his nominee.
(13) Provide any password or passcode for the mobile telephone he possesses or uses upon the reasonable request of the informant or his nominee.
(14) Not possess or use any computer, tablet or other electronic device that has any applications installed that allow for encrypted communications.
(15) Not leave the State of Victoria.
(16) Not attend any port, airport or international point of departure.
(17) Surrender any current passport or any interstate or international travel documents in his possession or control to the informant or his nominee within 24 hours of the date of these orders.
(18) Not apply for any passport or any interstate or international travel documents or cause, whether directly or indirectly, any other person to do so on his behalf.
(19) Not have any contact with, or seek to contact, any witnesses for the prosecution, whether directly or indirectly, other than the informant.
(20) Not have any contact with, or seek to contact, any co-accused, whether directly or indirectly.
(21) Attend upon and comply with all lawful directions of the BailSafe Health Group, including in relation to not entering the following geographical areas:
(a) The Noble Park area, being the geographical area within the boundaries of Chandler Road, Cheltenham Road, Springvale Road and Heatherton Road in Noble Park, Melbourne, Victoria; and
(b) The Dandenong area, being the geographical area within the boundaries of Cheltenham Road, Princes Highway and Railway Parade in Dandenong, Melbourne, Victoria.
(22) Attend upon and comply with all lawful directions of Moorabbin Community Corrections Services.
(23) Attend upon his general practitioner at [address] at 10.00am on 1 July 2024 for the purpose of obtaining a mental health plan.
(24) Submit to supervised drug screenings twice per week at [nominated pathologist] every Tuesday and Friday.
(25) Provide the results of each drug screening conducted pursuant to paragraph 1(24) of these orders to the informant by email at [email address] within 24 hours of receiving the results.
(26) Attend the Magistrates' Court of Victoria at Melbourne at 10.00am on 29 July 2024 and there surrender himself and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.
[1] That is, personal identification number.
[4] As defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[5] Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
[7] Ibid, sch 2, item 23. These are the charges in relation to false imprisonment, extortion, intentionally causing injury and recklessly causing injury (see par 1(2)-(5) above). The prosecution noted during the hearing that although kidnapping contrary to s 63A of the Crimes Act is a Schedule 2 offence (Bail Act, sch 2, item 21), Ninua is charged with kidnapping contrary to common law (see par 1(1) above), which offence is not listed under Schedule 2.
[8] [2018] VSC 361, [45]-[48] (Beach JA). It is worth mentioning that when Beach JA considered the meaning of "compelling reason" in this context, it was in determining whether there was "compelling reason why [an applicant's] detention in custody is not justified" under a previous version of the Bail Act. The test now outlined in s 4C(1A) of the Bail Act instead requires the court to refuse bail unless satisfied that "a compelling reason exists that justifies the grant of bail". However, in Re Alsulayhim [2018] VSC 570, Beach JA stated that "[w]hile the statutory language is slightly different, the expression 'compelling reason' remains" and as such held that there was "no reason to depart from the analysis or holding in [Re Ceylan] concerning the proper construction of the expression 'compelling reason'" (at [28]).
[9] See, for example, Re JB [2020] VSC 184, [24] (Kaye JA); Re JM [2019] VSC 156, [56]-[58] (Champion J); Re Alsulayhim [2018] VSC 570, [27]-[28].
[10] [2019] VSCA 214, [43] (Beach, Kaye and Ashley JJA). These principles have been cited in a number of subsequent decisions by this court. See, for example, Re CR [2024] VSC 197, [65] (Fox J); Re Wills [2024] VSC 168, [27] (Kaye JA); Re Mangion [2024] VSC 23, [37] (Champion J).
[11] Re AC [2022] VSC 370, [72] (Champion J).
[13] Ibid, s 4E(3)(b).
[15] Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).
[18] Ibid, s 5AAA(1).
[19] Ibid, s 5AAA(2).
[20] Ibid, s 3AAA(1)(aa) and (k).
[23] Ibid, s 3AAA(1)(b).
[24] Ibid, s 3AAA(1)(c).
[25] Ibid, s 3AAA(1)(d).
[26] Ibid, s 3AAA(1)(e)(v).
[27] Ibid, s 3AAA(1)(g) and (h)(iii).
[28] Ibid, s 3AAA(1)(g).
[30] Ibid, s 3AAA(1)(i).
[31] That is, global positioning system.
[34] Issues in relation to the admissibility of this evidence were not raised on this application.
[37] Criminal Procedure Act 2009 (Vic), s 170(2). See also Kannan v The King [2023] VSCA 58, [26] (Priest, Niall and Macaulay JJA); R v Ferguson [2009] VSCA 198; (2009) 24 VR 531, 587 [310] (Maxwell P, Buchanan and Weinberg JJA); Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 88.7-89.4 (Toohey J, with whom Mason CJ and McHugh J relevantly agreed); R v Demirok [1976] VicRp 19; [1976] VR 244, 251.9-252.6 (Young CJ, Lush and Crockett JJ).
[38] FT v The King [2024] VSCA 90, [79] (Beach, McLeish and Niall JJA).