IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0066

IN THE MATTER of the Bail Act 1977 		
		
and		
		
IN THE MATTER of an Application for Bail by FADI DIAB		

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JUDGE:	BEACH JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21 April 2020	
DATE OF JUDGMENT:	21 April 2020	
CASE MAY BE CITED AS:	Re Diab	
MEDIUM NEUTRAL CITATION:	[2020] VSC 196	

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CRIMINAL LAW – Bail – Charges of attempted murder, discharging a firearm being reckless as to the safety of a police officer, common assault, being a prohibited person in possession of a general category handgun, theft of a motor vehicle, going equipped to steal, failing to store cartridge ammunition in a prescribed manner, and handling stolen goods – Requirement to show exceptional circumstances – Whether exceptional circumstances made out – Whether an unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail – Exceptional circumstances not made out – Unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4A and 4E.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr P Dunn QC	Marcevski Lawyers	
			
For the Respondent	Ms A Moran	Ms A Hogan, Solicitor for Public Prosecutions	

HIS HONOUR:
1	The applicant is currently facing the following charges:
•	attempted murder (two charges), contrary to s 321M of the Crimes Act 1958;
•	discharging a firearm being reckless as to the safety of a police officer (two charges), contrary to s 31C(1) of the Crimes Act;
•	common assault of a police officer on duty while having a firearm readily available (two charges), contrary to s 320A(2) of the Crimes Act;
•	being a non-prohibited person in possession of a general category handgun, contrary to s 7(1) of the Firearms Act 1996;
•	theft of a motor vehicle (two charges) contrary to s 74 of the Crimes Act;
•	going equipped to steal/cheat, contrary to s 91(1) of the Crimes Act;
•	failing to store cartridge ammunition for a category A or B longarm in the manner required by the provisions of the Firearms Act, contrary to s 121(1A) of that Act;  and
•	handling stolen goods, contrary to s 88 of the Crimes Act.
2	On 24 September 2019, the applicant was arrested and taken into custody.  The following day (25 September), the applicant made an application in the Magistrates’ Court for bail.  Having been accused of a Schedule 1 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — attempted murder — pursuant to s 4A of the Act, the magistrate was required (and this Court is required) to refuse bail ‘unless satisfied that exceptional circumstances exist that justify the grant of bail’.
3	The magistrate refused bail, not being satisfied that the applicant had shown exceptional circumstances.  The applicant now applies for bail in this Court.
The alleged offending
4	The Crown case may be briefly summarised as follows.
5	At 9:00 pm on 11 September 2019, two members of the Australian Federal Police, Sergeant Stacey and Senior Constable Gee, began their shift for that day.  Both were dressed in full Australian federal police uniform, which consists of a ballistic vest that displays full police insignia on the front and rear.  They were allocated an unmarked Australian federal police vehicle — a white Ford Territory wagon, fitted with emergency sirens and lights in the front grill.
6	At about 4:40 am on 12 September, Sergeant Stacey and Senior Constable Gee observed a black Volkswagen Jetta sedan parked on the side of a roadway.  Enquiries revealed that the registration plates being displayed on the vehicle appeared to be cloned.  After attending an unrelated call, the officers again came upon the VW vehicle at a little after 4:50 am.  
7	The VW was still parked on the side of the road.  Its boot was open.  Police observed there was a second vehicle, with its tail lights illuminated, parked to the left of the VW.  The applicant was standing at the rear passenger side of the VW, in the vicinity of the open boot, and another man (one Joshua Eddy) was standing at the driver’s side (also in the vicinity of the open boot).
8	Sergeant Stacey estimates that he parked the police vehicle approximately eight metres away from the VW, before both officers got out of the vehicle ‘and issued the police challenge saying, “police don’t move”’ to the applicant and Eddy.  The second vehicle then moved off and left the area.  
9	The Crown alleges that Sergeant Stacey and Senior Constable Gee started walking towards the applicant and Eddy, closing the distance between them, when the applicant removed a handgun from his pocket and fired three shots directly at Sergeant Stacey.  Sergeant Stacey returned fire, discharging two shots in quick succession and hitting the applicant in his right shoulder and neck area.  The applicant fell to the ground.
10	Sergeant Stacey approached the applicant, demanding to know where the gun was.  The applicant moved his legs, exposing the gun. Sergeant Stacey swept it away with his foot, so as to ensure it was out of reach.  The applicant was then handcuffed and searched, before being conveyed by ambulance to hospital.  Eddy was taken into custody without incident by Senior Constable Gee.
11	The firearm used by the applicant (a stolen .38 calibre Smith & Wesson revolver) was recovered.  It was found to contain six rounds of ammunition comprising:
•	one fired Federal .38 special cartridge;
•	two fired Winchester .38 SPL cartridges;
•	one live Winchester .38 SPL cartridge;
•	one live Sako .38 special cartridge;  and
•	one live Winchester .38 SPL P cartridge.
12	Subsequent enquiries revealed that the VW had been stolen in March 2019 from residential premises in Healesville.  The VW carried false front and rear registration plates.  In its boot, the following items were located:
•	a black balaclava;
•	a black Adidas bag containing a balaclava, two black tracksuit jumpers, two black tracksuit pants and ‘Tool Pro’ gloves;  and
•	a camouflage bag containing four water bottles filled with petrol.  
13	Later that morning, police recovered a grey Audi Q5 sedan parked in Craigieburn.  At the time of its recovery, the Audi was fitted with false registration plates to the front and rear.  The Audi was reported stolen by Hertz on 30 August 2019, when it was not returned on completion of a rental agreement.  A subsequent examination of the Audi revealed a latent fingerprint belonging to the applicant.  The Audi was also found to contain a black backpack containing four pump water bottles containing petrol.
14	Later that day, police executed search warrants of the applicant’s home in Tullamarine.  During the search, police located:
•	11 boxes of shotgun ammunition;
•	ammunition including 22 loose shotgun cartridges, five .223 brass cartridge cases, two rounds of ammunition of unknown calibre and a magazine containing three further rounds of ammunition;  and
•	one metal box containing 900 Buffalo .223 REM 55 GK game King rounds of ammunition.
15	The ammunition was located in a metal cabinet with a lockable door.  The Crown case is that, at the time of the execution of the search warrants, the ammunition storage locker was not locked as required by the relevant provisions of the Firearms Act.
Applicant’s background
16	The applicant is 29 years of age.  He left school during year 8.  From the age of 14 until shortly prior to his arrest on the current charges, he worked in a number of pizza shops.  The applicant is married with four young children and, prior to his arrest, was responsible for financially supporting his wife and children.  He lived with them in Tullamarine.  Following his arrest, his wife and children have moved in with his parents at their home in Airport West.  His Tullamarine property is now rented out so as to cover mortgage repayments (there being a mortgage of almost $600,000 on the Tullamarine property).  
17	In August 2019, the applicant along with his business partner, one Joe Boss, entered into a lease agreement for premises in Essendon where they planned to establish a pizza shop.  Significant moneys were expended by the applicant in the setting up of this proposed business.  Notwithstanding the applicant’s arrest, the business started trading in November 2019.  If bail were to be granted, the applicant would work in the business, managing staff and performing other duties during the evening shift.  
18	The applicant has a limited criminal history arising from four court appearances between May 2009 and August 2011.  His prior offending includes possessing a prohibited weapon without exemption or approval, criminal damage, theft, burglary and importing prohibited items.  For this offending, he was variously dealt with by way of a community based order and a fine.  His current period on remand is his first time in custody.  
19	Following his shooting, the applicant was taken to the Royal Melbourne Hospital, where he remained an inpatient and under guard until his discharge from the hospital, and arrest, on 24 September.  While in hospital, he underwent surgery to remove bullet fragments and had a feeding tube inserted.  The feeding tube remained in place for some weeks following his surgery.
20	On 8 April 2020, the applicant was assessed, via video link, by a consultant psychologist, Mr Ian Mackinnon.  Mr Mackinnon assessed the applicant as suffering from a post-traumatic stress disorder of moderate intensity, the ‘primary antecedent’ of which appeared to have been ‘the life-threatening injuries he sustained when he suffered gunshot wounds at the time he was arrested’.
Applicant’s material and contentions
21	The application for bail is supported by two affidavits sworn by the applicant’s solicitor, Nick Marcevski.  In his affidavits, Mr Marcevski deposes to the various background matters to which I have referred.  He also deposes that a committal hearing fixed for 29 April 2020 was, due to the outbreak of COVID-19, vacated.  A special mention has now been fixed for 20 May 2020.  
22	In his affidavits, Mr Marcevski identifies the following matters, in combination, as ‘demonstrating exceptional circumstances and … that the applicant is not an unacceptable risk as outlined in [the Act]’:  
(1)	Current bail status and bail history.  The applicant was not on bail for any matter at the time of the alleged offences.  He has no previous contravention of bail conditions.  He has no other matters pending.  It is his first time in custody.  He has a limited criminal history, which includes complying in the past with a community based order that was imposed upon him.
(2)	Prosecution case.  The case against the applicant on the attempted murder charges is ‘weak and there is a realistic, if not probable chance of [him] being acquitted on [those charges]’.  When interviewed by police, the applicant told them that ‘he was not aware that they were police members and that he would not shoot at a police officer for no reason’.  He also said that ‘he wasn’t aiming at anyone and was just trying to hit the engine block to disable the car’.  In his first affidavit, Mr Marcevski deposes:
The fired bullets struck the driver’s side door of the police vehicle under waist height and was not aimed higher at any vital organs that would likely result in death.
(3)	Delay and impact of COVID-19.  The committal hearing on 29 April 2020 was vacated as a result of the outbreak of COVID-19.  At this stage, it is unknown when the applicant’s committal hearing will be relisted ‘coupled with a further delay before the applicant is presented for trial at the Supreme Court’.  The conditions of the applicant’s confinement have now become more onerous because of COVID-19.  All visits have been cancelled and the applicant is subject to periodical lockdown to minimise interaction with other prisoners.  
(4)	Personal factors relevant to risk.  The applicant relies upon the background matters to which I have already referred.  Mr Marcevski deposes that, if the applicant is granted bail, it is anticipated that he would be employed as a manager and pizza chef during the afternoon shift between the hours of 2:00 pm and 12:00 am.  I interpolate that a letter written by Mr Boss, however, suggests that the applicant’s shift will run from 3:00 pm until the close of business at 9:30 pm.  In his first affidavit, Mr Marcevski submits that the applicant’s personal circumstances disclose that the applicant has ‘strong ties to the jurisdiction’.
(5)	Stable accommodation.  If the applicant is granted bail, he will reside at his parents’ Airport West property with his wife and children.
(6)	Surety.  A surety of $855,000 is said to be available from the applicant’s parents.  The surety would be ‘raised by way of equity’ in their Airport West home.
(7)	Imposition of conditions.  The following conditions are proposed by the applicant as being relevant to ‘assessing and addressing risks’:
•	the applicant reside at the Airport West premises; 
•	the applicant report to the Moonee Ponds police station;
•	the applicant surrender all valid passports and not apply for any travel documents;
•	the applicant not attend any points of interstate or international departure, not leave Victoria and not leave Australia;
•	the applicant not contact any witnesses for the prosecution;
•	the applicant not associate with any co-accused;  and
•	the applicant only have one mobile phone, and provide the number of that phone to the informant within 24 hours of being released on bail.
23	In oral argument, counsel for the applicant emphasised the delay and uncertainty caused by COVID-19 as constituting, both on its own and in combination with all of the other relevant matters, exceptional circumstances.  The aggressiveness of the virus and major impact it has had on the community (both inside and outside gaol) was given particular emphasis by counsel.  The effects of COVID-19 to the way we live life, and more particularly on the position of the applicant, were said to be truly exceptional.
24	In addition to making submissions about COVID-19, its consequences and hardship caused to the applicant, counsel for the applicant made submissions about the strength of the Crown case, the applicant’s ties to the community and the hardship that his time in custody had caused and was causing his wife.  Counsel submitted that the evidence disclosed that the applicant was ‘well and truly tied to the community’, with no priors for violence or failing to appear.  The attempted murder charges are contestable, requiring a committal.  Moreover, the hardship to the applicant’s wife is well disclosed in the evidence.  
25	In relation to conditions which could be imposed on a grant of bail (leading to the establishment of exceptional circumstances and also making any risk of the kind asserted by the respondent a risk that was not unreasonable) counsel submitted that in addition to those conditions referred to in Mr Marcevski’s affidavits, the following conditions might be imposed:
•	a curfew, requiring the applicant to be in his place of residence or place of work during specified curfew hours;  and
•	the applicant being required to provide the informant with the pin number of his mobile phone, and also that he be required to contact, and send photographs to, the informant on some specified number of occasions each day, so as to ensure that he is complying with his bail conditions.
26	As to the proffered surety of $855,000, counsel for the applicant informed the Court that this represented the entirety of the value of the applicant’s parents’ home in Airport West.  A council rate notice was relied upon to support this assertion.
27	In addition to the surety proffered on behalf of the applicant, counsel informed the Court that the applicant’s parents and the applicant’s wife were all prepared to undertake to the Court to monitor the applicant and to inform the informant immediately upon the applicant breaching any bail condition that might be imposed by the Court.
28	It was submitted that all of the matters referred to by counsel (including the proposed conditions to which I have referred), when considered together, disclosed the existence of exceptional circumstances.  Additionally, it was submitted that all of the circumstances (and specifically, the applicant’s current experience of custody, his fear of the consequences of COVID-19 in custody and the fact that his parents were ‘putting their home on the line’) would give the applicant ‘the greatest incentive’ to comply with bail conditions and to stay out of trouble.  
Respondent’s position and contentions
29	The respondent opposed bail.  In opposing bail, it relied upon an affidavit sworn by Stephanie Prociw-Charalambous, a solicitor employed in the Office of Public Prosecutions with the carriage of the matter on behalf of the respondent.  Ms Prociw-Charalambous exhibited a number of documents to her affidavit, including a sworn statement made by the informant.  
30	In the sworn statement, the informant takes issue with the applicant’s assertion that he was not aware that Sergeant Stacey and Senior Constable Gee were police officers.  After noting that the Crown case is that the applicant knew he was shooting at police, and did this in order to evade arrest, the informant sets out a chronology of events, by reference to the applicant’s answers to questions, which suggests that at the time he fired shots the applicant had already realised that the car in which Sergeant Stacey and Senior Constable Gee arrived at the scene in was a police car.
31	In his sworn statement, the informant says that he opposes bail for the following reasons:
(a)	The applicant must show ‘exceptional circumstances’ why he should be granted bail.
(b)	The applicant is an unacceptable risk to the safety of the community.  
(c)	The applicant advises that he is the provider for his wife and children, however, is out committing serious criminal offences during the night.
(d)	The applicant has the support of his family, but past experiences show that even with this support, he is committing serious criminal offences.
(e)	The applicant has prior convictions relating to possession of weapons including imitation firearms.
(f)	This is a serious escalation of the applicant’s offending when compared to his known history.
32	In her affidavit, Ms Prociw-Charalambous says that the application for bail is opposed on the basis that the applicant has not demonstrated the existence of exceptional circumstances that justify the grant of bail.  Additionally, the application is opposed on the basis that the applicant is an unacceptable risk of ‘endanger[ing] the safety and welfare of any person’.
33	In response to specific matters relied upon by the applicant, the respondent made the following submissions:
(1)	Considered in its proper context, the Crown case should be regarded as strong.  There is ‘a high probability of the applicant’s conviction of a serious indictable offence, for which the applicant will likely serve a substantial period of imprisonment’.  It is not likely that the applicant will spend a greater period on remand than any sentence he will likely be required to serve, given the serious criminal conduct he is alleged to have engaged in.  
(2)	While the respondent concedes that there will be some delay due to COVID-19, that delay is difficult to quantify ‘at this early stage’.  If the factor of delay were to assume greater significance in the future, then the applicant would be at liberty to make a further application for bail.  
(3)	Many of the personal factors the applicant relies upon were in existence at the time of the commission of the alleged offences, and did not deter him, on the Crown case, from engaging in ‘serious and highly dangerous criminal activity’. 
(4)	As to the issue of risk, it is noteworthy that, in June 2009, during the period of an adjourned bond, police attended and executed a search warrant at the proposed bail address, and seized a silver and black imitation handgun and a further black imitation handgun.
Consideration
34	Sections 4A and 4D of the Act require the Court, as step one, to consider the exceptional circumstances test;  and then to move, as step two, to the unacceptable risk test.  At both stages of the analysis, the Court must take into account all the circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act.  Moreover, the Court is required to interpret and apply the Act having regard to the matters set out in s 1B, which include:
(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;
35	The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances.  The prosecutor, however, bears the burden of satisfying the Court as to the existence of a relevant risk and that that risk is an unacceptable risk.  
36	It is well established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him.  In Re Reker,  Beale J, citing Kaye J in DPP v Muhaidat, referred to the question of exceptional circumstances in the following terms:
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.
37	A number of matters relied upon by the applicant are favourable to him so far as his application for bail is concerned.  Specifically, the personal factors to which I have already referred, the availability of stable accommodation, the existence of a substantial surety, the ability of the Court to impose strict conditions and the impact and likely delay caused by the outbreak of COVID-19 are all matters that tell, to varying degrees, in the applicant’s favour.
38	The way in which COVID-19 may be relevant in the establishment of exceptional circumstances has been discussed in a number of recent decisions of this Court.  More generally, the way in which the current health crisis may be relevant in a bail application has also been discussed.  The following propositions have emerged:
(1)	Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence.
(2)	The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases.  The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail.
(3)	The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual.  Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand.  Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
(4)	In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail.
39	One of the matters relied upon by the applicant in this case is the strength (or lack thereof) of the case against him on the charges of attempted murder.  It is not appropriate for me to set out a detailed analysis in these reasons of the strength or otherwise of these charges.  It is sufficient for me to say that, having considered both parties’ submissions, I am not persuaded that the attempted murder charges are so weak that, when combined with all of the other relevant circumstances of the case, exceptional circumstances have been made out.  While I accept that the attempted murder charges are contestable, there are equally circumstances relied upon by the Crown which are well-capable of supporting those charges.
40	More importantly, when one considers the length of time the applicant is likely to spend in custody if bail is refused and the likely sentence to be imposed should the applicant be found guilty of the offences with which he is charged (even assuming he is acquitted on the attempted murder charges), it cannot be concluded that the delays the applicant is likely to experience (as matters stand presently) is likely to lead to him spending more time on remand than the likely sentence that may be imposed.  In that regard, it is to be observed that there are significant maximum terms of imprisonment applicable to a number of charges the applicant is facing.
41	Having taken into account all of the circumstances that are relevant in this case, I am not satisfied that the applicant has shown the existence of exceptional circumstances justifying a grant of bail.  The alleged offending involving the firing of the gun is a serious example of each offence with which the applicant has been charged, and which is based upon that allegation.  Giving appropriate weight to each of the matters relied upon by the applicant, and considering all of those matters in combination, I am unable to conclude that the circumstances established by the applicant are exceptional to the ordinary circumstances which might otherwise entitle him to bail.  While one cannot know at this stage how long the delay in the applicant’s trial will be due to COVID-19, there is no basis for concluding at this stage that that delay (either on its own or coupled with all of the other matters relied upon by the applicant) constitutes exceptional circumstances.
42	The applicant has not established exceptional circumstances.  Accordingly, bail must be refused.  Had it been necessary, I would also have concluded that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of members of the community.
43	While the applicant’s prior criminal history can be described as limited, the circumstances of the offending now alleged against him leads me to conclude that, if released on bail, there is an unacceptable risk (that would not be ameliorated by the imposition of conditions) that the applicant would endanger the safety or welfare of members of the community.  The allegation that the applicant had available to him and ready to use a stolen and fully-loaded handgun is of particular concern.
44	Moreover, while conditions of the kind suggested by counsel for the applicant may incentivise the applicant to stay out of trouble, some of the responses given by the applicant, when being interviewed by police, as to the reasons he fired his gun in the early hours of the day in question, tell against the proposition that appropriate conditions would make the risk of the applicant  endangering the safety or welfare of members of the community, one which was not unacceptable.
Conclusion
45	The applicant’s application for bail will be refused.