Re Powell [2025] VSC 412 (7 July 2025)

1 The applicant applied for bail on charges he faces contained on two indictments filed in the County Court. The first indictment contains charges of aggravated burglary and assault with intent to commit a sexual offence ('the trial indictment'). The second indictment contains two charges of persistent contravention of a family violence intervention order ('FVIO') ('the plea indictment'). The complainant in respect of the trial indictment charges and affected family member ('AFM') in respect of the plea indictment charges is a female and the former partner of the applicant, whom I will call 'CM' or 'the complainant'.

2 The charges of aggravated burglary and assault with intent to commit a sexual offences are both offences contained within Schedule 2 to the Bail Act 1977 ('the Act'). At the time of the alleged commission of these offences, the applicant was subject to a community correction order ('CCO') for a range of offences including persistent contravention of a FVIO. For that reason, the applicant was in the position of having to establish the existence of exceptional circumstances before bail could be granted.[1]

3 Having heard the application, I was not satisfied of the existence of exceptional circumstances that justified the grant of bail. I therefore refused bail. I was also of the view that, had exceptional circumstances been established, the prosecution had clearly discharged the onus of establishing that the applicant posed an unacceptable risk of one or more of the types of risks identified as arising in this application. I indicated at the time that I would publish reasons for my decision at a future time. These are my reasons.

4 The applicant has been in custody since his arrest on 18 March 2023. It was unclear on the material whether any application for bail was made around that time. On 31 August 2023, the applicant was committed for trial in the County Court. The first trial of the charges on the trial indictment commenced on 21 January 2025, before Judge Dalziel. The jury was discharged on 23 January 2025. A second trial commenced on 28 January 2025 and the jury was discharged on 29 January 2025. My understanding is that one jury was discharged because it was decided that an interpreter was required for CM's evidence, and the other was discharged because of the inadvertent admission into evidence of an item of evidence which was not intended to be led.

5 On 31 January 2025, the evidence of CM was pre-recorded, for the purpose of being played in the next trial. Judge Dalziel presided over both trials, and the pre-recording of evidence.

6 On 28 February 2025, Judge Dalziel heard a bail application by the applicant. Mr Hooper, who is trial counsel, made that application. Bail was refused by her Honour on the basis that exceptional circumstances had not been established.

7 The trial is now listed for 7 October 2025. Should the applicant remain in custody until that time, he will have been on remand for 934 days.

8 The applicant and CM moved to Melbourne as a couple in 2019. They have a daughter who was born in August 2020. In April 2021, the applicant received a non-conviction fine for contravening a FVIO and aggravated assault of a female, the offending having occurred on 16 March 2020. On 13 April 2022, a final full FVIO was made against the applicant, with CM as the AFM. The circumstances which led to the imposition of that order, and whether it was contested by the applicant, were not information before the court. The applicant has also been the respondent in various FVIOs where the complainant is the AFM, since 2019.

9 On 25 January 2023, the applicant was dealt with in the Melbourne Magistrates' Court on charges including persistent contravention of a FVIO, contravening a conduct condition of bail, committing an indictable offence whilst on bail, unlawful assault (x2), and child stealing. The charge of child stealing arose from the applicant's removal of his daughter from the care of staff of the Department of Families, Fairness and Housing during a supervised visit he had with her. The child was later found by police with the applicant at a hotel in Spencer Street, Docklands.

10 At the hearing on 25 January 2023, the applicant received an aggregate 114 days' imprisonment, reflecting the time he had spent in custody, and was made subject to a 12 month CCO, with a condition that he perform 100 hours of unpaid community work.

11 The day following his release, 26 January 2023, the applicant breached the CCO and the FVIO that remained in place, by contacting CM twice by telephone. This was the first particularised instance of his contravening the FVIO contained in the first charge on the plea indictment. On each of the ensuing days of January, February and March 2023, up until his arrest on the trial indictment charges on 18 March 2023, the applicant repeatedly contacted CM, in contravention of the FVIO. The bulk of the contraventions were by contacting CM by telephone, which he did on more than 4,900 separate occasions during the period of the charges. In addition, there were a number of occasions on which the applicant attended at or in the vicinity of CM's home address, contrary to the FVIO.

12 In October 2022, CM and her daughter moved into an apartment. The applicant never lived at that address and CM never told him the address.

13 CCTV from outside the apartment captured the applicant loitering outside the premises on 13 March 2023 at 3.25 am, 17 March 2023 (17 occasions between 6.13pm and 11.33pm) and 18 March 2023 (7 occasions between 1.09am and 1.11pm).

14 On 15 March 2023, the applicant sent a text message to CM asking her to meet him at a hotel in South Melbourne. He requested some money for a room. CM met him for the purpose of collecting her daughter, who was with him. She paid for the applicant's room and left with her daughter.

15 At 7.40pm on 16 March 2023, CM left her apartment to go out with her daughter. She filmed the applicant at her front door. The applicant professed his love for CM.

16 At 2.19pm on 18 March 2023, the applicant attended at CM's address, where CM again filmed him. The applicant got on his knees and begged for her forgiveness and to be given a second chance. CM asked him to leave and called 000 to report the applicant's attendance. The applicant ran away. Police attended at 4.08pm. They advised CM to call 000 if the applicant returned. Once the police left, the applicant started sending text messages declaring his love for CM, begging for her forgiveness, and asking her to trust in God.

17 Shortly after 5.47pm on 18 March 2023, following earlier messages, and having been told by CM to leave her alone, the applicant sent a series of text messages asking for another opportunity, and asking CM to 'trust God'. CM replied, 'No'.

18 Between 6.18 and 6.20pm, the applicant continued to message CM, saying that he had changed, that if she let him inside, she would feel this, that he was her one true love and she his, that there was no other woman for him, and that God helped him last night.

19 At 6.47pm, CM was upstairs with her child when she heard a noise. She looked out of her bedroom window and saw the applicant attempting to enter her apartment through the glass panel next to the front door. She heard banging. She filmed the applicant.

20 At 7.40pm, CM walked downstairs and found the applicant inside her apartment. She asked him what he was doing and he replied, 'I'm Alpha'. He was laughing as he removed his shoes. CM asked why he was doing this and he gestured for her to be quite by placing his fingers to his mouth. CM ran upstairs to check on her daughter, who was asleep. She had decided to collect her daughter and leave.

21 About five minutes later, the applicant walked upstairs and removed his clothing. He had an erect penis. He asked CM to, 'touch my dick, it's wet'. CM told him that his daughter was sleeping. He asked her repeatedly to touch his penis. She said no. The applicant then reached out and grabbed her left wrist and pulled her hand towards him, and said, 'let's go to the bathroom and just do it quick'. He became angry as she continued to rebuff his advances.

22 The applicant then had a shower, and remained naked after the shower, continuing to ask CM for sex, which she repeatedly declined before saying, 'later', to try to keep the applicant calm. CM texted her neighbour to inform him that her ex had broken in and asking him to call the police. The neighbour did so.

23 At 8.10pm, CM took her daughter downstairs. The applicant stayed upstairs and went into the bedroom. CM took the opportunity to run, with her daughter, out of the front door of the apartment. On the way out, she noticed that the applicant had placed a large sheet which was usually on the couch, over the front door and glass window of the property. CM ran to her neighbour's place and remained there until the arrival of the police.

24 In the ensuing minutes, the applicant sent a large number of text messages to CM asking her to come home, professing his love for her, saying that he looked everywhere to find her, saying that they needed to meet so that he could prove to her that he was the Alpha, and stating that if she thought she had another man who was the Alpha, then to show that man to him.

25 Police attended inside CM's apartment shortly after 8.50pm and called out to the applicant. He came downstairs wearing a t-shirt and shorts. He was arrested. Police observed the sheet covering the window and the fly wire screen which had been removed.

26 The applicant was interviewed by police and admitted having entered CM's home by removing the fly wire screen and coming in the window. He claimed that after he walked into the apartment, he went upstairs and spoke with CM. When asked how many times CM would have to say no to him before he agreed to leave, he said it depended on how he felt at the time and how she said it. If he felt there was a chance, he would keep pursuing her. He said that he had a shower when at the apartment, and walked around naked afterwards. When it was put to him that he had grabbed CM's wrist and pulled her towards him, the applicant admitted holding her wrist, but denied he grabbed her, as opposed to holding her underneath her hand. He admitted that he was suggesting sex to her. He denied asking her to touch his penis, but did ask her to 'come here' and asked her if she wanted a massage. He admitted he had no permission to enter her home, but said that once he was inside, she let him stay. When asked if it was his intention at the time of entering the house to have some intimacy with CM, he said, 'Well, always, you know. Like, that's a massive part of a relationship...I do it with the one person in the world I love'.

27 Police located condoms in the applicant's backpack.

28 Little material was before the Court as to the personal circumstances of the applicant. He is aged 30, and was 28 at the time of the alleged offending. At the time of the events, he was experiencing 'housing instability'.[2] In the first affidavit in support, it was indicated that the mother and sister of the applicant would fly down from Queensland where they live to support the applicant, and that they would arrange ongoing accommodation for him if released on bail. These family members did attend Court, and I was informed of several accommodation addresses which had apparently been arranged for the applicant, two of them in Melbourne CBD hotels and the other in a share house in Dingley. The sister of the applicant had undertaken to privately pay for the accommodation expenses of the applicant if he was released on bail, up to the date of his trial, and beyond if required. I was informed that the applicant had the support of the ReStart Program, a support service aimed at short sentence and remand prisoners, which would support the applicant in the community should he be released on bail. The applicant also provided evidence of a number of educational and other programs he had completed since being in custody.

29 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.

30 It is the intention of the legislature that the Act be applied and interpreted having regard to the matters set out above.[3]

31 Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of committing a Schedule 2 offence while on a CCO for another Schedule 2 Offence, as is the case here. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist which justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[4] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[5] including, but not limited to, those prescribed in s 3AAA(1) of the Act.

32 If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D of the Act.[6] The respondent bears the onus of satisfying the Court that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk. In my assessment of the question of unacceptable risk, I am again required to consider the surrounding circumstances,[7] including, but not limited to, those prescribed in s 3AAA(1), and to consider whether there are any conditions of bail that may be imposed to mitigate the risk, so that the risk is not an unacceptable one. [8]

33 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[9] 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.[10]

34 It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[11]

35 Mr Hooper, for the applicant, relied upon a combination of matters set out in his written and oral submissions in support of the proof of the existence of exceptional circumstances, and in resisting the prosecution contention as to unacceptable risk. The matters were:

a) Weaknesses in the prosecution case. It was submitted that in light of the evidence of the complainant given at the trial and in the pre-recorded evidence, the prosecution faces real hurdles. The case depends on the credit of the witness, and some of her answers were inconsistent with her police statements and contained 'inherent implausibilities'[12] which would pose an obstacle to her evidence being accepted by a jury. The supposedly problematic evidence concerned the timing of the entry of the applicant into the apartment, how long he spent downstairs, the amount of time between the entry and the alleged assault, whether he took a shower or not, whether the assault occurred before or after the shower, and the sequence of events before the complainant went downstairs. In his oral submissions, Mr Hooper also submitted that irrespective of the credit of the complainant, there were difficulties with the prosecution case. It was submitted that an intention to carry out a sexual assault at the point of entry would be inconsistent with the way events transpired inside the apartment, including the long delay between entry and the alleged assault upon the complainant. It was submitted that the acts of the applicant post-entry 'necessarily inform the assessment of his intention on entry'.[13] In respect of the alleged assault itself, Mr Hooper, who acknowledged that the applicant's entry into the property was as a trespasser, indicated that the defence position was that the applicant's intention was not to have sexual intercourse with the complainant in circumstances where he did not reasonably believe that she was consenting. His intention was to persuade her to have sex with him. In light of the suggested inconsistencies and difficulties in the prosecution case, the written submissions asserted that the Crown case should be regarded as weak. In oral submissions, Mr Hooper indicated that he was not submitting that the case was doomed to fail, but rather, that there were triable issues.

b) Delay. It was submitted that in light of the period of time which the applicant would have spent on remand by the time of the trial would be about 2½ years, there was a real concern that the remand period would exceed any sentence imposed. A delay of the magnitude expected in this case is capable itself of being regarded as establishing exceptional circumstances. Even were I not of the view that the applicant's period on remand would likely exceed any sentence imposed, delay was still an important consideration. Mr Hooper submitted that although the charges on the plea indictment would attract a term of imprisonment, that would be measured in months, rather than constituted by a head sentence and non-parole period. The conduct was generally non-threatening, with no violence involved. Any sentence imposed for the trial indictment charges would be likely to be served concurrently with the sentence on the plea indictment charges. All told, it would be open for a judge to impose a sentence on all of the offending which may be less than the period spent on remand.

c) The availability of supports for the applicant. Mr Hooper relied on the family support available to the applicant, and the accommodation to be provided with the financial assistance of his sister. In a letter exhibited to the applicant's supplementary affidavit in support, the sister of the applicant indicated not only her willingness to assist by funding the accommodation of the applicant, but also her preparedness to support him in his search for employment and assist him in seeking mental health support. Mr Hooper also relied upon the support to be offered by the Restart program. He noted the real steps taken by the applicant in custody towards rehabilitation, including his completion of a number of educational and other courses.

36 In respect of the question of risk, Mr Hooper acknowledged that there would be a risk that, if released on bail, the applicant would again, as he did in the past within one day of release, approach the complainant, whether to try to get her to change her evidence for some other reason. He indicated that this was a concern expressed by Judge Dalziel during the previous bail application. In dealing with the question of risk, however, Mr Hooper submitted that the applicant is a different man from the person he was at the time of the alleged offending. He has, as indicated above, taken real steps towards rehabilitation, and, in this long period of custody, easily the longest in his life, he has had ample time to 'percolate and appreciate the significance of his actions and no doubt, appreciates the risk to him of further remand and charges, were he to contact the complainant again.'[14] Mr Hooper submitted that there would be limited incentive for the applicant to approach CM and seek to pressure her to change her evidence because it has already been given and recorded. As for the risk of his contacting her because she remains, as he thought of her in the past, his 'one true love', Mr Hooper again pointed to the lesson the applicant has learned from his current period of remand.

37 Mr Hooper proposed a number of conditions of bail, including a condition that the applicant possess only one mobile phone and produce the phone to the informant upon request, as being sufficient to render any risk associated with the applicant acceptable.

38 Ms Caruso, who appeared for the respondent, relied upon the contents of the affidavit in response and her oral submissions in contending that exceptional circumstances had not been established and that in any event, the applicant posed an unacceptable risk.

39 In dealing with the question of the likely sentence the applicant would receive relative to the time on remand, and the question of the seriousness of the alleged offences, Ms Caruso took me through part of the chronology of the offending contained on the plea indictment. This offending was 'extraordinary and repeated',[15] she submitted, and would itself result in a significant sentence. The trial indictment charges, bearing in mind the family violence connection, the existence of a FVIO and a CCO at the time, and other matters, were also serious examples of serious offences. In light of his criminal history and other circumstances, these charges, if proved, would result in a significant term of imprisonment which would likely exceed time on remand, she submitted.

40 In respect of the strength of the case on the trial indictment charges, Ms Caruso noted the finding of Judge Dalziel that the case was of reasonable strength, and submitted that the case is relatively strong, with the account of the complainant supported by objective evidence of time-stamped videos, messages sent by the applicant, CM's messages to her neighbour for help, admissions made by the applicant to the police, and the finding of the sheet over the window of the apartment.

41 In respect of delay, Ms Caruso submitted that in the circumstances, whilst significant, the delay would not be exceptional.

42 On the question of risk, Ms Caruso submitted that the criminal history of the applicant was highly relevant, containing as it did, contraventions of FVIOs and contraventions of conditions of bail, as well as the fact of the applicant being on a CCO at the time of the alleged offending. The serious risk was demonstrated by the matters contained in the plea indictment, showing that the applicant breached the FVIO and CCO on the very day after he was released from custody.

43 The attitude of the complainant to a grant of bail - namely, that she was frightened - was also relied upon.

44 Ultimately, Ms Caruso submitted that the primary risk which the applicant posed was that he would endanger the safety and welfare of the complainant or her daughter. While she conceded that the fact of the complainant's evidence having been pre-recorded might reduce the risk that the applicant would seek to pressure her to change her evidence, she submitted that that fact does not 'ameliorate the risk to a zero level'.[16] Necessarily, though this was not specifically addressed by Ms Caruso, were the applicant to endanger the safety or welfare of the applicant, that would clearly also pose a risk of interfering with a witness or otherwise obstructing the course of justice, ahead of the applicant's trial. Ms Caruso also submitted that the applicant poses 'some risk of failing to appear on bail, given he has zero support really in Victoria'. [17]

45 Ms Caruso further submitted that the bail supports on offer for the applicant were not adequate to reduce the risk he posed. Indeed, no conditions could do that.

46 In a sense, this was an unusual application for bail, because the matter had proceeded a long way down the path towards final resolution. The applicant had already been in custody for a long period of time, two juries had been empanelled and then discharged, and the evidence of the complainant had been pre-recorded in anticipation of the trial commencing on 7 October 2025. The experienced County Court judge who had presided over the trials and the pre-recording, Judge Dalziel, heard an application for bail based, as I understood it, on the same or similar grounds and material as the application before me, and had refused bail.

47 Judge Dalziel had heard the evidence of CM, would have been familiar with the depositions, and was in a very good position to form an assessment of the strength of the prosecution case when the asserted lack of strength was relied upon as a central part of the bail application before her. Her decision to refuse bail was a significant event, in light of her status as the trial judge and her detailed knowledge of the case. It would be no small thing for a judge in my position to grant bail in a case in which the trial judge had earlier refused it, particularly where no significant change in grounds or evidence was advanced, since the refusal. I realise that the decision on the bail application before me is mine to make, but I did think it was appropriate to have regard to the earlier bail decision by Judge Dalziel, an experienced criminal judge.

48 Having made those observations, I make it clear that quite apart from the decision Judge Dalziel made on that bail application, a consideration of the circumstances of this case would have led me clearly to the view that bail should be refused.

49 The offending alleged against the applicant in the trial indictment, and admitted by the applicant in the plea indictment, is serious. Aggravated burglary and assault with intent to commit a sexual offence are serious crimes with maximum penalties of 25 years and 15 years respectively. And the charges on the plea indictment are also serious, reflected by the maximum penalty of 5 years, or level 6 fine, or both. The trial indictment offences allegedly occurred in a family violence context, in the home of the complainant, in close proximity to the young child of CM and the applicant, and in breach of both a FVIO and a CCO. Although not outwardly violent in his actions, the applicant allegedly behaved in a persistent and concerning fashion, reflected in CM's messages for help sent to her neighbour, and her fleeing her home as soon as she was able. As for the plea indictment charges, they comprise a vast number of separate contraventions by the applicant of the conditions of the FVIO which bound him.

50 As for the strength of the prosecution case on the trial indictment charges, having considered the submissions of Mr Hooper, and having regard to the evidence of CM which was provided in the materials, I did not accept that the case had the weaknesses submitted by Mr Hooper. I accepted the prosecution contention that the case was of reasonable strength. And of course, the applicant accepted his guilt of the plea indictment charges.

51 The applicant's criminal history was significant, showing a number of findings of guilt for contravening FVIOs, or persistently doing so, and other significant offences including unlawful assault (x2), aggravated assault of a female, committing an indictable offence whilst on bail, and contravening a conduct condition of bail. CM was a victim of a number of these crimes.

52 The matters touched on in s 3AAA(1)(d) and (e) were of great significance in the application. The short criminal history shows that in the past, the applicant has not always abided by the requirements of bail. Furthermore, the applicant was subject to a CCO at the time of the trial indictment events. In full knowledge of the fact that he was subject not only to a CCO, which had been accompanied by a sentence of imprisonment which he had concluded only months before, and to the FVIO which remained in place, the applicant, on his own admission, attended at the home of CM in clear breach of the law.

53 The overall impression I had of the applicant, as revealed by his proven and admitted behaviour, was that he had absolutely no regard for the orders of courts, or the institution or conditions of bail, and that he had little regard for the autonomy and expressed wishes of his former partner.

54 A FVIO remained in place at the time of the bail application, which was one of the matters required to be taken into account pursuant to s 3AAA(1)(f)(i), and I was required to consider the risk of further family violence pursuant to s 5AAAA of the Act.

55 As noted earlier, little was known to the Court about the personal circumstances of the applicant. He had some family support, which is always important, but the accommodation options on offer were not encouraging, and no material was provided to the Court about the applicant's psychological or psychiatric position, about which there would be some concerns in light of the proven conduct and statements of the applicant.

56 In respect of the relationship between the length of time the applicant would spend in custody should bail be refused, and the sentence likely to be imposed should he be found guilty, I was satisfied that upon being found guilty following a trial of the trial indictment matters, and being sentenced for those charges and the charges on the plea indictment, the applicant, on the current material of which I am aware, would be likely to receive a term of imprisonment which would exceed any time spent on remand.

57 Having considered all of the surrounding circumstances of this case, I was far from satisfied that exceptional circumstances had been made out. That would have led to the refusal of the application. For completeness, I can indicate, as I did at the time of pronouncing my decision, that I would have been satisfied in any event that there would be an unacceptable risk that, if released on bail, the applicant would endanger the safety and welfare of the complainant or her child, or interfere with a witness or otherwise obstruct the course of justice. Any risk of fleeing the jurisdiction likely could have been moderated to an acceptable level by imposition of strict conditions, but it was unnecessary for me to consider that matter in detail on this determination.

58 For the reasons I have stated, the application for bail was refused.

[1] Bail Act 1977 s 4AA(2)(c)(iv) and 4A(1A) ('the Act').

[2] Affidavit in support, 5 June 2025, [14].

[9] [2004] VSC 17.

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

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

[12] Defence's Bail Submissions, 1 July 2025 [8].