IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2021 0247

IN THE MATTER of the Bail Act 1977		
		
and		
		
IN THE MATTER of an application for bail by OSCAR NEWMAN	Applicant	

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JUDGE:	Niall JA 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	6 October 2021	
DATE OF JUDGMENT:	8 October 2021	
CASE MAY BE CITED AS:	Re application for bail by Newman	
MEDIUM NEUTRAL CITATION:	[2021] VSC 656	

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CRIMINAL LAW – Application for bail – Applicant, aged 26, charged with assist offender, possession of cannabis and possession of amphetamine – Assist offender in context of murder – No criminal history – Strong family support – Delay – Surety available – Unacceptable risk not demonstrated – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4C, 4E. 

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr G Melick AO SC with 
Ms H Whalley	Michael J Gleeson & Associates	
			
For the Respondent	Mr M Rochford QC with 
Ms S Holmes	Office of Public Prosecutions	

HIS HONOUR:
1	Oscar Newman (‘the applicant’) has been charged with assisting Toby Loughnane (‘Mr Loughnane’ or ‘the co-accused’) with the murder of Maryam Hamka, possession of cannabis, and possession of amphetamine.  He applies for bail.
2	Following his arrest, the applicant was remanded in custody and, on 1 September 2021, a magistrate refused bail.  Relevantly, for present purposes and having regard to the nature of the offences, the applicant is entitled to bail unless the prosecutor satisfies the court that there is an unacceptable risk of the applicant interfering with a witness or otherwise obstructing the course of justice.  
3	The matter is next listed for committal hearing in the Melbourne Magistrates’ Court on 3 December 2021, alongside the co-accused’s committal. 
The alleged offending
4	The applicant and Mr Loughnane are friends.  The applicant has a relatively long standing chronic gambling addiction.  Mr Loughnane has previously lent the applicant money or provided security for a loan to pay the applicant’s gambling debts.  The prosecution allege that between March 2020 and July 2021, the applicant accrued approximately $900,000 in gambling debts.  Mr Loughnane secured a number of loans from Get Smart Loan Company, which were paid directly to the applicant to assist with his gambling debts. 
5	The prosecution allege that Mr Loughnane and Ms Hamka were in an intimate relationship.  It is alleged that late on the night of 10 April 2021, Ms Hamka was at the home address of Mr Loughnane at an address in Brighton.  They allege that very early on the morning of 11 April 2021, Mr Loughnane murdered Ms Hamka at that address.
6	Phone records show that at around 11 am on 11 April, there was a telephone call between the applicant and Mr Loughnane.  The applicant drove to the Brighton address where CCTV shows him arriving at 1.15 pm, and leaving about 5 minutes later.  
7	On the following day, 12 April, Mr Loughnane purchased cleaning products at a Coles store in Brighton.  CCTV shows the applicant attended the Brighton premises on three separate occasions on 12 April.  On 12 April, the applicant loaned Mr Loughnane his red Mazda 3.  
8	The following morning on 13 April, Mr Loughnane is captured on CCTV leaving the apartment complex in the applicant’s Mazda 3 vehicle at 5.20 am and returning 1 hour and 40 minutes later.  The prosecution allege that it was at this time that Mr Loughnane removed Ms Hamka’s body from the premises and disposed of her body.  Mr Loughnane was seen again at 8.02 am, leaving the property carrying Ms Hamka’s bag with distinctive pink handles. 
9	The CCTV footage shows that, on 15 April at 11.30 pm, the applicant arrived at Mr Loughnane’s apartment complex with a pressure cleaner that he had purchased earlier that night on Gumtree and a five litre container of petrol.  The applicant had asked his friend, Heidi Lecluse, to collect the pressure cleaner from the seller.  While collecting it, Ms Lecluse told the seller that she was ‘helping out a friend’ who was in a ‘bad place’ or ‘bad way’.  The applicant remained at Mr Loughnane’s apartment that night until 8.41 am the following morning. 
10	On 16 April 2021, Mr Loughnane was arrested at his apartment.  Arresting officers observed an overwhelming scent of cleaning products and wet carpet with remnants of soap.
11	The deceased’s remains and bag have not been found. 
12	Forensic examination of the applicant’s Mazda 3 identified the deceased’s blood on the rear seat and in the rear foot well, and her blood and DNA on the rear door trim. 
13	Both the deceased’s and the applicant’s DNA were found in a sample taken from the carpet in the entrance to the master bedroom in Mr Loughnane’s apartment.
14	The applicant initially provided a statement to police on 8 May 2021 admitting to visiting Mr Loughnane’s apartment on 15 April and stating that the last time he drove his Mazda 3 was sometime on or prior to 11 April.  On 6 July 2021, the applicant provided police with a video of the deceased taken by Mr Loughnane on 10 April. 
15	On 1 September, the applicant was arrested and charged, and was found to be in possession of cannabis and amphetamine.  He made a no comment record of interview.
The applicable legislation 
16	The parties agree that the applicant is entitled to bail unless the prosecution satisfies the court that the applicant is an unacceptable risk, having regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (the ‘Act’). 
17	If the prosecutor satisfies the court that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act, and that such a risk is an unacceptable one, bail must be refused. 
18	In applying the test, the court must take into account the relevant ‘surrounding circumstances’, including but not limited to, those prescribed by s 3AAA(1) of the Act.  The court must also consider whether there are any conditions of bail that may be imposed to mitigate any risk to an acceptable level.   
The applicant’s personal circumstances
19	The applicant is 26 years old and does not have a partner or children.  Prior to his arrest, he had worked as a contractor for a swimming pool maintenance company for the past three years, typically working five days per week between the hours of 9 am and 5 pm.  I note the applicant is no longer employed and there is no evidence of any other employment opportunities.  
20	The applicant has a history of mental health issues stemming from a serious gambling addiction which he was diagnosed with whilst in high school.  He also has a history of using cocaine, ecstasy, cannabis, heroin and OxyContin.  He has received psychiatric treatment from forensic psychiatrist Dr Adam Deacon between 15 September 2017 and 18 December 2020.  
21	The applicant has no criminal history.
The respondent’s contentions
22	The respondent opposes the application on the basis that the applicant poses an unacceptable risk of interfering with witnesses or obstructing the course of justice, committing an offence whilst on bail, and failing to surrender into custody. 
23	The respondent submits that, although the proceedings are in the preliminary stages, the case against the applicant is strong and this is an extremely serious example of the charge as the primary offence is murder.
24	The respondent submits that the applicant lied in his initial statement to police on 8 May 2021 by denying being at the offence location;  driving the Mazda 3 at specified times; and claiming that he was working, despite being clearly captured on CCTV doing the contrary.  The respondent further submits that these lies amount to an implied admission.
25	The respondent submits the applicant has demonstrated a risk of interfering with witnesses or obstructing the course of justice through his conduct in the days following the alleged murder, including rendering assistance to Mr Loughnane;  attempting to conceal the offending by cleaning the crime scene; purchasing the pressure cleaner; lending his vehicle; and lying to police in a sworn statement.  The respondent submits that this risk is exacerbated as the deceased’s body remains missing and police believe that the applicant has knowledge of where it was disposed.  If the applicant is at large, the prosecution say there is a real risk he will attempt to further conceal or interfere with evidence, which would also amount to further offending.
26	The informant holds concerns that the applicant’s gambling addiction will contribute to his incentive to flee the jurisdiction and increase the risk of failure to appear in court as directed.
27	The respondent submits that, whilst the applicant has engaged with Dr Deacon, there is no evidence that he has engaged in an outpatient gambling program and there is no proposed plan to address the gambling behaviours which appear to be the underlying motive in his offending. 
28	Further, it is submitted that treatment for the applicant’s mental health concerns is available to him in custody.
29	The respondent submits that any estimation in relation to delay is speculative and, due to the seriousness of the conduct, it is unlikely that any time the applicant spends on remand will not exceed any custodial sentence imposed.
30	The respondent disagrees with the applicant’s submission that he ‘voluntarily’ made a statement to police, as he declined to answer questions in a formal interview.
The applicant’s contentions  
31	The applicant relies on the following matters, in combination, in order to demonstrate the risks alleged by the prosecution are not unacceptable. 
32	The applicant is supported by his mother, Hyeonjoo Newman.  If released on bail, it is proposed that the applicant will reside with Ms Newman in her two bedroom apartment in Melbourne City.  Ms Newman is retired and, given the current pandemic restrictions, can supervise the applicant and ensure compliance with bail conditions. 
33	Ms Newman proposes to offer a $50,000 cash surety.
34	It is proposed that the applicant continue to engage with Dr Deacon if he is released on bail.  On 1 October 2021, the applicant was assessed by Dr Deacon by telephone whilst in custody.  In his report, Dr Deacon states that he diagnosed the applicant with persistent relapsing-remitting gambling disorder whilst he was in year 11 at high school, and that the applicant has experienced secondary issues including episodes of major depression, anxiety, anorexia, sleep difficulties and mood complications.  The applicant has been prescribed antidepressant medication and treated with cognitive behaviour therapy.  At times he was responsive, experiencing periods of abstinence from gambling, however, he had a tendency to relapse. 
35	Prior to his assessment in custody, the applicant last saw Dr Deacon on 18 December 2020 at which time he reported a ten-day abstinence from heroin and a single instance of gambling in the preceding two weeks.  He had responded well to the recommencement of the anti-depressant and was considering engaging in an outpatient gambling program, however he did not follow that up and ceased taking his medication in January or February 2021.
36	Dr Deacon says that the applicant’s mental health has deteriorated whilst in custody and it is likely to continue to decline.  The applicant reported feeling depressed, stressed, anxious and suicidal, sleeping poorly and not receiving psychological support or medication despite his requests.  Although the applicant has a history of gambling and drug misuse, according to Dr Deacon the applicant ‘presented as a morally sound young man’ and has not demonstrated other indicators of criminal behaviour.  He concludes that he does not consider the applicant a risk of further offending, however, this risk was ‘partly mitigated’ by his consistent employment history. 
37	The applicant relies on the potential delay he may face due to the current listing timeframes associated with the COVID-19 pandemic.  The respondent conceded that the applicant was unlikely to have his matter listed for trial prior to 2023, and that it may be later than this.  
38	The applicant also submits that if he remains in custody, he will be subject to onerous custodial conditions due to COVID-19.  He notes that, since being remanded, he has spent at least 33 days of his time in total isolation, and been confined to his cell for 24 hours a day. 
39	In response to the respondent’s submission that the applicant lied in his initial statement to police on 8 May 2021, the applicant submits that he often worked in two hour blocks and that he may have been at work for the rest of the day.  He submits that it is unreasonable that he is expected to recall his every movement on 8 May.  
40	In addition to the above, the applicant proposes that strict conditions of bail will moderate any risk he presents.  Proposed conditions include not to leave Victoria or attend any point of international departure, surrender any passport, and not to contact any witnesses or the co-accused. 
Analysis and conclusion
41	The critical issue is whether the applicant presents an unacceptable risk in the event he is granted bail.  The three principal risks relied on by the respondent are:  interference with evidence by disposing of or otherwise taking steps to further conceal the body of Ms Hamka which has not been found; interfering with witnesses; and failing to answer bail.
42	In my view, the respondent has failed to establish that there is an unacceptable risk.
43	On the evidence disclosed on the present application, the contention that the applicant knows the location of the body of Ms Hamka does not have a firm factual foundation.  I note that the hand up brief is yet to be served and I was told that forensic investigations are ongoing.  However, there is no evidence that the applicant was in the car at the time Mr Loughnane is thought to have removed the body from his premises.  Given the prosecution’s case that the applicant was heavily involved in the clean-up of the premises after the murder, was present on a number of occasions between the time at which the murder is said to have occurred and the removal of the body, and lent the primary offender his car, it is possible on the prosecution case that the applicant knows where the body is, but on the present state of the material, I would not necessarily regard the inference as strong or compelling.
44	Even if it be assumed that the applicant does know where the body is, there is no sound basis to infer that he would be likely to go to the location to remove or interfere with evidence given that the police have so far been unable to locate the body.  In the circumstances, the contention is somewhat speculative.
45	In assessing the risk, I have taken into account the very serious nature of the charge and that the applicant may have a motive to interfere with evidence.  However, in the circumstances I do not regard that risk as unacceptable.
46	Similarly, I do not regard the risk that the applicant would interfere with the single witness identified by the prosecution as unacceptable.  That witness is not central to the prosecution case.  I am not persuaded that there is a real risk the applicant would take the very grave step of seeking to interfere with a witness.  
47	Although the charge is a very serious one, the applicant does not have any prior convictions.  The prosecution fairly point out that the applicant has a gambling addiction, some history of drug use, and the offence with which he has been charged is centrally concerned with the administration of justice.  I take those matters into account.
48	I also take into account that there are likely to be significant delays with this matter proceeding to trial.  Whilst it is not possible to predict ongoing COVID-19 restrictions, I am satisfied that if the applicant remains in custody, it is likely he will continue to be subject to very onerous restrictions.
49	Although it cannot be said there is no risk, the risk posed can be ameliorated by the imposition of conditions.  With suitable conditions, I am persuaded that if granted bail, there would not be an unacceptable risk that the applicant would commit an offence while on bail, interfere with witnesses, otherwise obstruct the course of justice, or fail to surrender himself.  Accordingly, I will grant bail subject to conditions.  Those conditions will include that the applicant is to live with his mother, be subject to a curfew, and a condition that requires him to resume and continue treatment with Dr Deacon.  I am also persuaded that the applicant should be limited to a single mobile phone that he must make available for inspection if requested to do so by the informant.
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