IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2021 0371

IN THE MATTER of the Bail Act 1977 (Vic)		
		
v  		
		
IN THE MATTER of an application for bail by LN		

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JUDGE:	Niall JA 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	18 January 2022	
DATE OF JUDGMENT:	24 January 2022	
CASE MAY BE CITED AS:	Re LN	
MEDIUM NEUTRAL CITATION:	[2022] VSC 11	

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CRIMINAL LAW – Application for bail – Charges of rape, make threats to kill, attempt to commit an indictable offence and assault – Whether compelling reasons established – Whether unacceptable risk – Seriousness of offending – Compelling reason not established – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4C, 4D, 4E, 5AAAA. 

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Dr T Alexander with 
Mr C Brydon	FE Lawyers	
			
For the Respondent 	Ms D Guesdon	Ms A Hogan, Solicitor for Public Prosecutions	

HIS HONOUR:
1	By application filed 15 December 2021, LN (‘the applicant’) applies for bail in this Court in relation to 12 charges concerning a single complainant (‘the complainant’ or ‘VA’) who was the applicant’s wife at the time of the alleged offending.  The alleged offending spans the period from 1 March 2017 to 13 July 2021 and occurred within the family home.  The charges involve eight counts of rape, one count of make threats to kill, one count of attempt to commit an indictable offence, namely rape, and two counts of common law assault. 
2	The applicant has been on remand since he was arrested on 23 November 2021.  He made an application for bail in the Melbourne Magistrates’ Court on this date, which was refused on the basis that he failed to establish a compelling reason justifying the grant of bail.
The alleged offending
Background 
3	What follows is a summary of the allegations made by the prosecution.  The principal evidence in support of the charges comes from the complainant.  The applicant notes that the allegations are untested and, having regard to the complainant’s statement, he says there are inconsistences and improbabilities in her account.  In addition to her statement, the complainant provided to police audio-visual recordings of three of the alleged incidents, including a video recording of the last occasion when she says she was raped by the applicant.
4	The prosecution relies on the recordings, and a written translation of what was said, as providing strong corroboration of the complainant’s account of the three incidents and says that it is inconsistent with the applicant’s account.  
5	At the time of the hearing, the applicant’s counsel had not had the opportunity to view the footage.  The footage had been provided to the Court and viewed in advance of the hearing.  No objection was taken to that course.  However, I took the view that given the potential importance of the footage it was essential that counsel be given an opportunity to view it and put any submissions as thought appropriate.  The application was adjourned to allow for that to occur.  In the event, the applicant’s counsel have indicated that they have viewed the footage and the applicant does not want to put on any further submissions in light of it.  
6	The applicant and VA were married in Jordan in 2015, in the context of an arrangement made between their respective families.  They have two children, aged five and two.  From the beginning of the relationship, VA alleges the applicant was verbally, mentally, physically, and sexually abusive. 
Charges 1 and 2
7	Between March and May 2017, VA was walking through their home in a Melbourne suburb when the applicant grabbed her and dragged her into their bedroom.  The applicant pushed VA onto the bed, held his hand firmly over her mouth, and said ‘if you don’t give me what I want, I will kill you.’  The applicant placed one hand over VA’s mouth and used the other hand to remove her shorts and underwear.  The applicant kept his hand over VA’s mouth and forced his penis into her vagina.  The applicant removed his penis, ejaculated on VA’s shirt, and said, ‘see, I get what I want.’ 
Charge 3
8	Approximately two weeks later, VA was in the bathroom.  The applicant appeared in the hallway and stopped VA from closing the bathroom door.  The applicant pulled VA into his brother’s bedroom.  The applicant sat VA on the bed by pushing her shoulders downwards and forced her to perform oral sex on him.  VA attempted to push him away, screaming ‘no’.  
Charge 4
9	In February 2018, the applicant and VA moved to an address in a different suburb.  Shortly after moving, the applicant grabbed VA by her shoulders, pulled her to their bedroom from the kitchen, forced her onto the bed, and penetrated her vagina with his penis.  VA repeatedly screamed, ‘let me go, let me go’. 
Charges 5 and 6
10	In February 2019, the applicant and VA moved to a new address.  Approximately one month after moving, the applicant came home drunk and woke up VA.  The applicant forcefully inserted his penis into VA’s anus whilst she screamed in pain.  VA sustained bleeding and pain. 
Charge 7
11	On 25 May 2019, after returning home, the applicant was drunk and verbally abusive towards VA.  The applicant came into their bedroom and hit VA with his open palm on her lower back.  VA was heavily pregnant with their second child at the time.  This incident was filmed by VA using a mobile phone.
Charge 8
12	In July 2019, VA had put her daughter to sleep and gone to have a shower.  The applicant forcefully removed VA from the shower and sat her on a chair in the bathroom and forced her to perform oral sex.  VA managed to push the applicant and stand up.  She began to run away and slipped over on the wet tiles, landing heavily on her left hip. 
Charges 9 and 10
13	In December 2020, the applicant and VA moved to another address.  On 11 July 2021, VA was in their bedroom.  She felt that the applicant’s behaviour had recently escalated so she opened the voice recording device on her phone.  The applicant came in and stated he wanted sex, further saying, ‘I am your husband.  I will force you.’  The applicant grabbed VA tightly around her neck with one hand and touched her breasts and vagina over her clothing with the other hand.  The applicant pushed VA onto the bed and tried to remove her clothing.  VA rolled onto her back and the applicant inserted his penis into her vagina as VA attempted to fight him off. 

Charges 11 and 12
14	At approximately 8:00 pm on 13 July 2021 VA was lying on her bed with her son.  The applicant entered the room and carried their son to his bedroom.  VA went to the bathroom and began filming on her phone.  When she returned to the bedroom, the applicant grabbed her and pushed her.  VA attempted to hold her knees together and the applicant forcefully pulled them apart.  The applicant said, ‘I want to put my dick inside you.’  VA tried to fight off the applicant.  VA managed to roll onto her stomach in an attempt to get away.  The applicant pulled her underwear down and inserted his penis into her anus.  He then rolled VA onto her back and inserted his penis into her vagina.  VA was crying and begging him to stop.  At this point, someone returned home.  The applicant heard the front door and ran to the bathroom.  A short time later, he re-entered the bedroom and said, ‘prepare yourself in the night time because I am going to have sex with you.’  VA replied that she would sleep in their daughter’s bedroom, to which the applicant responded, ‘even if you sleep in there, I will come and force myself on you.’  There is video footage exceeding 12 minutes of this alleged incident. 
Disclosure of alleged offending
15	The following morning, VA took the children and drove to a community centre for help.  They were subsequently put in emergency accommodation. 
16	On 14 July 2021, police were notified.  On 15 July 2021, VA attended the Royal Women’s Hospital to undergo a forensic examination.  A report was provided to Victoria Police.  A final family violence intervention order (‘FVIO’) was served on the applicant, naming VA and the two children as protected persons. 
17	The applicant was arrested on 23 November 2021.  He was interviewed that day and denied all allegations.  His account in some respects is different to that appearing in the footage recorded by the complainant in relation to the incidents on 13 July.
The applicable legislation
18	In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (‘the Act’).
19	The applicant is charged with threats to kill and rape, which are both Schedule 2 offences.  The applicant must satisfy the Court that a compelling reason exists that justifies the grant of bail.  In determining whether a compelling reason exists, the Court must take into account the relevant ‘surrounding circumstances’, including those set out in s 3AAA(1) of the Act.  It is thus necessary for the Court to take into account, to the extent they are relevant, the nature and seriousness of the alleged offending; the strength of the prosecution case; the applicant’s criminal history; the applicant’s compliance with earlier grants of bail; whether the applicant was on bail or subject to a summons at the time of the alleged offending; whether there is a FVIO; the applicant’s personal circumstances, associations, home environment and background; any special vulnerability of the applicant, including being an Aboriginal person; the availability of treatment or bail support services; the views of the alleged victim; the length of time the applicant is likely to spend in custody if bail is refused; and the likely sentence if the applicant is found guilty.
20	If satisfied that a compelling reason exists, the Court must refuse bail if the respondent discharges the burden of establishing an unacceptable risk of the kind captured by s 4E(1)(a) of the Act.  In considering this, again, the Court must have regard to the surrounding circumstances.
Intervention orders and family violence risk
21	Section 5AAAA of the Act requires the Court to inquire with the prosecutor as to whether there are any intervention orders in place and whether there is a risk that the applicant will commit family violence if bailed and whether that risk could be mitigated.
22	As noted above, there is a FVIO in place which was consented to without admission.  The respondent reiterates there are a number of family violence risk factors in this matter, including the applicant’s threats to kill both VA and their children. 
The applicant’s personal circumstances
23	The applicant is 29 years old.  At the time of the alleged offending, he was aged between 24 and 29 years of age.  The applicant was born in Iraq and is currently on a Permanent Protection visa. 
24	The applicant fled Iraq in 2013 and moved to Jordan, along with his mother, father, and brother.  He and VA arrived in Australia in 2016 as refugees.  The applicant and VA have lived with the applicant’s family for the majority of the time they have lived in Australia.
25	The applicant has no prior convictions.  This current period of remand is his first time in custody. 
The applicant’s contentions
26	In support of the application for bail, the applicant relies on four matters in particular.  Firstly, the delay which would be associated before the matter can be heard for trial.  Secondly, his family support and supervision in the community.  Thirdly, his vulnerability on remand.  Fourthly, the surety offered by his mother. 
27	The applicant relies on his family support in aid of his application for bail.  The applicant’s mother, father, and brother came to Australia within a few months of the applicant.  They all reside in a home owned by the applicant’s mother and brother.  This is the applicant’s proposed address if granted bail.  The applicant’s mother and brother both provided affidavits in support of the application.  The applicant’s mother has also offered to provide a $30,000 cash surety in support of the application for bail and also use the equity in their home (of around $50,000) as further security.  It was submitted, and I accept, that this represents the total resources available to the family.
28	The applicant submits that he is vulnerable in custody due to his poor English language skills.  The applicant exclusively speaks Arabic at home and requires the assistance of an interpreter.  It is also noted that this is the applicant’s first time in custody. 
29	In relation to the strength of the prosecution case, the applicant submits that the credibility of VA is central to the prosecution case.  It is noted that the evidence, including the audio-visual recordings, has not been tested at committal and that the allegations of rape are not corroborated by any of the other occupants of the family homes, being the applicant’s mother, father, and brother.  He says that the decision to record the videos was made in advance of the alleged incidents and that the complainant’s behaviour has to be considered in the context of her knowledge that the alleged incidents were being recorded. 
30	The applicant submits that he is not a flight risk as he is unable to return to Iraq.  He notes that his refugee status further reduces the risk of him fleeing the jurisdiction.  The applicant’s mother deposes that she has located his most recent passport and that it has expired.  
31	In terms of the risk of the applicant committing family violence offences if released on bail, the applicant notes that he does not know where VA and the children are living.  The applicant’s family are also unaware of their location.  
The respondent’s contentions
32	The respondent opposes the application for bail on the basis that the applicant has failed to demonstrate a compelling reason justifying the grant of bail.  The respondent also submits that, if granted bail, the applicant is an unacceptable risk of endangering the welfare of VA, committing an offence while on bail, interfering with witnesses or otherwise obstructing the course of justice, or failing to surrender into custody. 
33	The respondent submits that the applicant’s lack of prior convictions is irrelevant given the seriousness of the charges.  It is also submitted that the prosecution case is a reasonably strong one.  In this regard, the respondent points to the audio-visual recordings that corroborate three of the alleged offences.
34	The respondent notes that the family circumstances of the applicant do not give rise to a compelling reason justifying the grant of bail.  Further, the applicant’s children are safely in the care of VA and do not require his support. 
35	The respondent also submits that the applicant poses a flight risk if granted bail.  It is noted that the applicant has extended family and friends in Iraq.  The applicant is an Iraqi national.
36	The respondent concedes that there is a potential delay in this matter due to COVID-19 restrictions.  However, it is submitted that this is a case where any likely sentence would be significantly more than any time served on remand. 
37	In terms of unacceptable risk, it is submitted that the applicant and VA are part of the Arabic community within Melbourne and the respondent is concerned that VA is susceptible to cultural pressures to withdraw her statement.  The informant holds concerns that the applicant will interfere with prosecution witnesses.  The respondent notes that the applicant sent a voicemail to VA’s sister after VA left on 14 July 2021, saying that if the children were not returned to him, he will find out where she is and ‘payback with her later’. 
Analysis
38	The applicant must show that there is a compelling reason justifying the grant of bail.  In Rodgers v The Queen, the Court of Appeal said that for an applicant required to show a compelling reason, ‘a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.’  Although an applicant need not show a reason that is irresistible or exceptional, the reason must have sufficient force as to compel the grant of bail. 
39	As noted, the applicant points to a combination of matters, including an absence of criminal history, family support, the availability of stable accommodation, a proposed surety, and that he is vulnerable in prison by reference to his very poor English language skills. 
40	The nature of the allegations against the applicant are extremely serious.  The applicant is charged with eight counts of rape and other offences in circumstances of family violence over several years.  The allegations are very concerning.  The maximum penalty for rape is 25 years’ imprisonment and the standard sentence that applies to that offence is 10 years’ imprisonment.  Despite his lack of prior criminal history, if found guilty of the charges the likely sentence that would be imposed would be significantly more that his time on remand. 
41	On the material currently before the Court, and conscious of the limitations that must attend any assessment of the prosecution case at this early stage, my view is that the prosecution case, especially on the incidents that are to an extent captured by footage, is far from weak.  I accept that differing complexions might be placed on the footage, nevertheless, I regard it as providing, at this stage, powerful supporting evidence of a very important part of the prosecution case.  
42	The delay, which I accept will be lengthened by reason of the pandemic, is a concern and it is not likely that a trial could occur before the end of 2023, even allowing that some priority will be given due to the nature of the allegations.  Incarceration during the pandemic is particularly onerous and the position of the applicant is worsened by reason of his lack of English.  I take these matters into account as matters favouring bail.
43	I also take into account the strong support that the applicant has from his family and their willingness to put a surety in an amount that would, if there were to be a breach of bail, jeopardise virtually the entirety of their savings and equity in their home.  Again these matters point to, but do not compel, the grant of bail.  
44	However, in all of the circumstances, especially given the number and seriousness of the charges and what on the present material is a reasonably strong case on some counts, I am not satisfied that a compelling reason exists justifying the grant of bail.  I refuse the application.