Re Rahman [2021] VSC 402 (5 July 2021)

3 The Applicant has been charged with murder, said to have occurred on 18 July 2020. He is said to have been in company of two co-accused, Adam Tiba and Abdullah Hammoud, both of whom have been charged with murder and who are presently in custody. It should not be assumed that any decision made by me in this case should have any influence whatsoever in any subsequent applications the co-accused may choose to make, and I decide this case totally related to its own facts and the personal circumstances of the Applicant.

4 The procedural history, details of the investigation and prosecution case, the applicable law, and the matters personal to the Applicant, including his criminal history and outstanding matters, are summarised in my published reasons from the Applicant's previous application for bail.[2] They are not repeated here.

5 In summary, on 18 July 2020, Adrian Pacione ('the deceased') was visiting friends at a residential premises in Lalor when three intruders arrived and attempted to gain entry into the residence. They were unsuccessful in their endeavour and subsequently fired shots through the front window of the residence. The deceased, who was watching television in a back room, was fatally struck by one of the shots.

6 The Applicant was arrested on, and has been in custody since, 21 October 2020. He was charged on that date with common law murder and, in the alternative, statutory murder under s 3A of the Crimes Act 1958.

7 There are three co-accused: Adam Tiba, Abdullah Hammoud and Ammair Fahal. At the time of the Applicant's previous application for bail, Mr Fahal had not been charged with any offences. However, his alleged involvement in the offending was described in my previous reasons in the context of his communications with the Applicant. On 12 January 2021, Mr Fahal was charged on summons with aggravated burglary, failing to provide information under warrant and committing an indictable offence whilst on bail.

8 On 22 March 2021, the Applicant and co-accused were committed to trial in the Supreme Court, having each elected to proceed by way of the court's 'fast track' procedure.

Further application for bail: new facts or circumstances

9 The question arose as to whether, since this is the second application for bail, it was necessary for the Applicant to show fresh facts and circumstances pursuant to s 18 of the Bail Act 1977 ('the Act').

10 Section 18(1) of the Act permits an accused who has been refused bail to make a further application for bail. If it is reasonably practicable to do so, any such application is to be heard by a court constituted by the same judge who heard the previous application for bail.

11 That entitlement however, is not absolute. Section 18AA(1)(a) of the Act provides that the Court must not hear an application under s 18 unless the Applicant satisfies the Court that new facts or circumstances have arisen since the last refusal or revocation of bail. Section 18AA(2) provides that nothing within that section derogates from the right of a person in custody to apply to the Supreme Court for bail.

12 Without deciding the matter I may proceed on basis that the respondent accepts that such circumstances exist. Further, the fact that almost six months have elapsed since the hearing of the previous application, the serving of the hand-up brief, together with the act of admission into a tertiary course would be sufficient to establish new facts and circumstances if they are required.

13 A number of matters were raised in support of the grant of bail, and in the first instance, to satisfy the test of exceptional circumstances, which is a test applicable for the offence of murder.[3] That is, the Applicant must demonstrate exceptional circumstances to justify the granting of bail having regard to the surrounding circumstances. It is trite to say that although it is the highest test for the granting of bail, it is not an impossible one.

14 The matters pressed on the Applicant's behalf were, first of all, his youth. He is now 19 years of age. He was 18 years at the time of his remand. Because he was not a child, as the law understands the expression, he has been held in adult custody. It is submitted he is therefore subject to the potential of corruption in an adult prison, based on a general knowledge and understanding of those matters.

15 Now that the hand-up brief has been served, the Applicant persists with a submission that the prosecution case against him, as an individual for murder, either at common law or by a statutory murder, is not a strong one. As I pointed out in my earlier reasons, there are a number of pieces of evidence from which the Applicant's general involvement in the enterprise might be shown. In particular, a number of telephone intercepts. In issue is what can be shown about the Applicant's presence and knowledge of the use of a firearm; his intention; his knowledge of whether the firearm would be discharged; and in general, the other features that would show his complicity in the crime of murder.

16 I conclude, and Mr Pickering of counsel, who appeared on behalf of the respondent, accepted that it was so, it seems certain that this matter will go to trial. That raises the next issue that was put, and that is the question of delay. The matter is next listed for a directions hearing in front of Judicial Registrar Freeman, on 9 June 2021. And I assume that on that occasion the witnesses who will be the subject of s 198B of the Criminal Procedure Act will be identified, and a date fixed for those examinations.

17 Applying my knowledge of what is happening in the Supreme Court, my best estimate of a date for trial in this case would be not until second term next year, and because there are three people charged with the murder, and a fourth accused who is charged with some involvement in the underlying crime, it may well be that it would be a date later than that. I find, therefore, that there is delay in the case to be taken into account as part of the totality of matters to be considered in relation to the establishment of exceptional circumstances. It is conceded on behalf of the applicant that delay of itself would not amount to exceptional circumstances, but that it is part of the considerations that I have to make.

18 The Applicant has been on remand for seven months and has therefore had the experience of what it is like to be in custody. There is material which has been provided on the application which demonstrates that he has not been using drugs during that period.

19 His time on remand has been more difficult because of the restrictions that have existed because of the COVID-19 pandemic, and it is not unreasonable to assume that his time in custody would have had at least some deterrent effect on him and his behaviour if he is released on bail.

20 Following on from what happened in November of last year, the Applicant completed his VCE exams and passed. His results were perhaps not up to the expectation he would have had, in part because of the somewhat stressful circumstances in which he had to sit for those exams, but he has gained acceptance into an Associate Degree in Business at RMIT University. That course is due to commence on 19 July 2021.

21 It was submitted on behalf of the respondent that it may be that he could complete that course whilst in custody without attending personally, or through the education program present through Corrections Victoria, to complete some other degree. But it is nonetheless a consideration to be properly taken into account.

22 One of the major and important factors in this application is the support of the Applicant's family. It is support that he had in November, but it was not sufficient, given the proximity of the time to the commission of the alleged murder to win the day for exceptional circumstances. The Applicant has a 17 year old sister who is completing VCE. Notwithstanding that fact, he is still welcome in the family home. The Applicant's mother gave evidence before me on the earlier occasion, and I was impressed with the support that she is prepared to give her son, and continues to be prepared to give. She provided the Court with an undertaking that she would report any breach of bail conditions to the informant, or to the police generally. The Applicant also has the support of his father.

23 The other matter urged on behalf of the Applicant is the availability of surety. The Applicant's parents are willing to provide a surety in the full amount of the equity they have in their home, of $620,000. The amount of the surety is significant, and I am prepared to infer that it represents the life savings of the Applicant's family. I am told that the parents understand, and I will make it clear to the Applicant, that any breach of bail condition puts the surety at peril.

24 It was also put that the Applicant can have support whilst in the community. First of all, support from Youth Justice Alliance Banksia Gardens Community Services, there being an intake assessment at 3.00pm on 26 May 2021. I am not sure what support that service will give the Applicant, but it is as well that he goes through that process and it be established what might be done.

25 It has also been arranged that he have engagements for a Youth Support and Advocacy Service connected to Youth Justice and to be involved in the Muslim Youth, Adult and Families program. That assessment to be on 10.00am on 27 May. The main feature of that program is that it would assist him in dealing with any drug related issues which he still has. It will be foolish to assume he has none. But he has remained abstinence for the time that he has been in custody, and that program might well be of assistance to him in working out what his future strategies might be. Incidentally, it may also help the family in knowing what strategies they ought to employ in assisting the Applicant.

26 The existence of these supports is not something which of itself would make the difference. But, taking the matters into account, particularly the matters of delay, his youth, very powerful family support and the available surety, as part of the surrounding circumstances, I am satisfied that exceptional circumstances have been made out.

27 The respondent's opposition to bail is maintained on the basis that, first, the Applicant has not demonstrated exceptional circumstances that justify the grant of bail, and, second, that he is an unacceptable risk of committing an indictable offence whilst on bail or interfering with a witness or otherwise obstructing the course of justice and endangering the welfare of members of the public.

28 For the reasons that I have expressed, I am satisfied that exceptional circumstances are made out. Since I am required to take the surrounding circumstances into account in considering the possibility of risk, and given the two co-accused remain in custody, I am satisfied that the Applicant does not represent an unacceptable risk. The Applicant should understand, however, that it will be necessary to have no association with the persons in the group who he was with at the time it is alleged that these offences were committed. Such risks that do exist, I am satisfied can be ameliorated by the imposition of appropriate conditions.

29 The Applicant will be released on bail on the following conditions:

(a) He attend the Supreme Court of Victoria in Melbourne on 16 June 2021 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.

(b) He reside at an address known to the Court, and not change that address without the leave of the Court.

(c) He remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of bail except for in the company of Nusret Rahman or Lutfar Rahman.

(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.

(e) He report Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Broadmeadows or his or her nominee, between the hours of 7.00am and 8.00pm when advised by the informant that in-person reporting has recommenced.

(f) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.

(g) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.

(h) He comply with all lawful directions of the Broadmeadows Community Youth Justice Alliance (Banksia Gardens Community Services) and attend all appointments as arranged by that organisation.

(i) He not contact, directly or indirectly, the co-accused, being Abdullah Hammoud, Adam Tiba and Ahmir Fahal for the duration of the bail period.

(j) He not contact, directly or indirectly, any witness for the prosecution, except the informant.

(k) He not leave the State of Victoria.

(l) He surrender any passport he may have to the informant within 24 hours and apply for no other.

(m) He not attend any points of international departure.

[1] Re application for bail by Rahman [2020] VSC 748.

[2] Re application for bail by Rahman [2020] VSC 748.

[3] Section 4AA of the Bail Act 1977.