IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2022 0039

IN THE MATTER of the Bail Act 1977		
		
and		
		
IN THE MATTER of an application for bail by MOHAMMED RAFIK		

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JUDGE:	Taylor J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 May 2022	
DATE OF JUDGMENT:	30 May 2022	
CASE MAY BE CITED AS:	Re Rafik	
MEDIUM NEUTRAL CITATION:	[2022] VSC 279	

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CRIMINAL LAW – Bail – Applicant charged with manslaughter – Viable case of self-defence – Requirement to show compelling reasons justifying grant of bail – Whether an unacceptable risk of endangering the safety or welfare of any person or committing an offence whilst on bail – Compelling reason demonstrated – Risk not unacceptable – Bail granted subject to strict conditions – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E and 5AAAA.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Ms E Clark	James Dowsley & Associates	
			
For the Respondent	Mr N Hutton	Office of Public Prosecutions	

HER HONOUR:
1	The applicant is charged with manslaughter. He has been in custody since 25 November 2021. 
2	By Notice of intention to make an application for bail filed 2 May 2022, the applicant now applies for bail. 
Summary of Allegations
3	On 20 January 2021 the applicant endeavoured to sell a bike on behalf of a friend, Makara Heng. During the afternoon, he asked another friend, Long Bun, if he wished to purchase the bike. Arrangements were made for the applicant and Bun to meet at the residential unit where both Bun and the deceased (and others) lived, being 2/1 Aenone Avenue, Noble Park.
4	At about 6.30pm the applicant arrived at the address in a Mazda sedan. He drove into the driveway of 1 Aenone Avenue and parked in the carport outside unit 2. Bun’s Honda sedan was already parked on the grass between units 1 and 2. 
5	The deceased was not then at home but there were others inside unit 2, both residents and visitors.
6	At about 7.03pm the deceased arrived home. He parked the BMW sedan he was driving behind the applicant’s Mazda sedan. 
7	Later in the night there was some discussion about the need to move both the BMW sedan and Mazda sedan to allow Bun (and two others) to leave. There was a verbal confrontation between the applicant and deceased as the latter went to enter the BMW sedan. That developed into a physical confrontation in which each threw punches. The applicant and deceased were forcibly separated. 
8	The deceased then entered the garage and picked up a metal car jack handle. He approached the applicant’s Mazda sedan and struck the jack handle to the passenger side several times. The applicant became angry and yelled about the damage to his car. Bun told him to go home. The deceased was persuaded to go inside unit 2. 
9	At about 10.24 pm the applicant reversed the Mazda sedan out of the driveway onto Aenone Avenue. He retrieved a small folding pocket knife from the centre console, extended the six centimetre blade and placed it in his pocket before exiting the vehicle.
10	The deceased came back onto the driveway still holding the jack handle. He was told by Bun to go back inside. The deceased ran out of the driveway onto Aenone Avenue. 
11	An altercation occurred between the applicant and deceased on the street, during which the applicant sustained a laceration to the top of his head and the deceased two stab wounds to his chest. As the deceased walked back towards unit 2 he collapsed. He was conveyed to hospital and pronounced dead at 11.39pm. 
12	At 4.36am on 21 January 2021 the applicant presented himself at the Springvale Police Station. From there he was taken to Monash Hospital, where he receive five staples to his head wound. Upon return to the police station he was interviewed. The applicant said that he had armed himself because of fear for his safety; that the deceased had attacked him with a metal pole; that he believed he would die if he didn’t defend himself and swung the knife in a slashing motion to scare the deceased and end the attack. He was then released.
13	On 25 November 2021 the applicant was charged with manslaughter and remanded in custody. 
Procedural history
14	The applicant elected to stand trial in the Supreme Court pursuant to s 143 of the Criminal Procedure Act 2009 (‘CPA’). On 17 February 2022, the applicant was committed to the Supreme Court under the fast-track procedure for homicide matters. Between 19 and 21 April 2022 examinations conducted pursuant to s 198B of the CPA were heard. Further s 198B examinations are listed for 10 June 2022. 
Applicant’s personal circumstances
15	The applicant is 33 years of age. He was born in Burma and is Rohingya. The applicant moved to Malaysia when he was a child. 
16	In 2013 the applicant, his wife and two children came to Australia by boat as stateless people. He and his wife separated either before or during that time. They resided on Christmas Island for one to two months before spending about a year in Darwin and then coming to Melbourne. In 2019 the applicant’s wife and children moved to Queensland. 
17	The applicant holds a Bridging visa E. His Protection – Safe Haven Enterprise Visa application was made in 2017. It is yet to be finalised. 
18	The applicant has never attended school. He learnt English after arriving in Australia. He has had past employment working on farms, but has not worked for about four years. He has had some financial support from Centrelink, the Red Cross and friends. 
Applicant’s criminal history
19	The applicant had no criminal history at the time of the alleged offence. However he was found to have engaged in the following relevant subsequent offending:
(a)	On 15 April 2021 there was a finding in respect of a charge of possessing methylamphetamine.
(b)	On 24 April 2021 there was a finding of guilt, without conviction, in respect of possessing methylamphetamine, committing an indictable offence whilst on bail and using methylamphetamine. The matters were adjourned to 22 April 2022.
(c)	On 6 August 2021 he was convicted of possessing amphetamine, possessing a drug of dependence, trafficking heroin, trafficking methylamphetamine, dealing with property suspected of being proceeds of crime, committing an indictable offence whilst on bail, contravening a conduct condition of bail and possessing an imitation firearm without exemption or approval. He was also convicted of the charge of possessing methylamphetamine (from 15 April 2021). He was sentenced to a total effective term of six months imprisonment and a 12 month Community Corrections Order (‘CCO’).
20	The original sentence imposed on 6 August 2021 was successfully appealed to the County Court. On 11 October 2021 the applicant was placed on an 18 month CCO with conditions to be under supervision, undergo assessment and treatment for drug abuse and perform 100 hours of unpaid community work. Prior to his arrest on 25 November 2021, the applicant had attended five out of six of his supervised appointments and had been referred to drug and alcohol treatment, which was to have commenced in January 2022. 
21	In addition to these subsequent convictions, there is evidence before the Court that on two occasions, the applicant was found in possession of a knife or knives. Charges relating to a December 2020 incident in which it was alleged that the applicant injured another man using a knife, causing a large and deep laceration to his upper lip, were withdrawn because police could not locate the complainant. On 24 May 2021 the applicant was intercepted by police whilst driving and issued infringement notices with respect to possessing two knives in his vehicle. In each instance, the applicant claimed that the knives were for self-defence.
Legal considerations
22	The applicant is charged with a Schedule 2 offence. Consequently bail must be refused unless the Court is satisfied that he has demonstrated a compelling reason exists to justify the grant of bail. In making this determination, the Court must have regard to the surrounding circumstances, including the matters listed in s 3AAA of the Act.
23	As summarised by the Court of Appeal in Rodgers v The Queen the principles to be applied when considering the compelling reason test are threefold. First, for an applicant for bail to demonstrate a compelling reason, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified. Second, it is not necessary that the demonstrated reason is irresistible or exceptional. Third, a compelling reason is one which is forceful and therefore convincing; a reason that is difficult to resist. 
24	If the Court is satisfied that the applicant has demonstrated the existence of a compelling reason justifying the grant of bail, bail must still be refused if the Court is satisfied by the respondent that the applicant poses an unacceptable risk of any of the s 4E(1) factors and that such a risk cannot be moderated by conditions of bail. Again, in making this determination, the Court must have regard to the surrounding circumstances. 
25	Finally, in interpreting and applying the Act, the Court is required to have regard to the guiding principles set out in s 1B.
Applicant’s contentions
26	The applicant relies upon the combination of a number of factors to demonstrate the existence of a compelling reason that justifies the grant of bail. 
27	First, it is submitted that the prosecution case is ‘not strong’. The applicant does not deny inflicting the fatal stab wound, but argues that there is a realistic prospect that a jury will accept that he acted in self-defence. Relevant matters are said to include evidence of the deceased’s behaviour during the prior altercation – including the deceased arming himself with a jack handle and hitting the applicant’s car, evidence that the deceased remained armed, evidence that the jack handle could have caused the injury to the applicant’s head and evidence that the deceased was still holding the jack handle when he was found. Further, none of the other persons present witnessed the confrontation in which the fatal injury occurred, the applicant handed himself in to police and gave an account of self-defence. To the extent that in that account the applicant stated that he ‘slashed’ at the deceased and the incised wounds are ‘stab’ wounds, it was argued that the evidence of the pathologist at the s 198B CPA hearings in effect rendered that issue of little to no consequence. 
28	Second, it is submitted that the applicant’s experience of custody has been significantly more onerous than it would otherwise be because of the COVID-19 pandemic. 
29	Third, the applicant’s subsequent convictions are very limited. It was submitted that little, if any, weight should be given to allegations that the applicant was found in possession of a knife or knives on other occasions as these matters were never brought before a court. The applicant also argued that the allegation that he had an imitation firearm on 20 June 2021 was never before a court. However, as noted above, the applicant was convicted of and sentenced for this offence on 6 August 2021 (and appealed the sentence on 11 October 2021). 
30	Fourth, the applicant has the offer of stable accommodation in Springvale. The applicant’s solicitor deposed as to a conversation (through an interpreter) with Ms Ali Nisa, the lessee of the proposed bail address. She has four other sub-tenants. Ms Ali has known the applicant for some 20 years and has explained to him the conditions upon which he would be permitted to reside with her. 
31	Fifth, if granted bail, the supports and supervision provided by the CCO imposed in October 2021 would be available to the applicant and would assist in managing relapse prevention. 
32	As to risk of the s 4E(1)(a) factors, while the applicant accepts the existence of some risk, it is argued that the level of risk could be ameliorated to an acceptable level by the imposition of stringent bail conditions. 
33	The applicant argues that while manslaughter is a serious crime, the allegations against him are not a serious example of it having regard to the deceased’s behaviour and lack of premeditation. At the time of the alleged offence, the applicant was not on bail, subject to summons or a CCO. His subsequent convictions are limited. While he has convictions for bail offences, he has never failed to answer bail. He came to Australia as an asylum seeker. He is stateless and his future rests on his outstanding visa application. And, he has no means or documentation to travel outside Australia. 
34	While there is some allegation of unspecified family violence by the applicant against his ex-wife at the time of their arrival in Australia, it is submitted that it is vague and has never been the basis of a charge or finding of guilt against him. 
Respondent’s contentions
35	The respondent contends that none of the factors identified by the applicant, either alone or in combination, amount to a compelling reason that justifies the grant of bail. 
36	With respect to the issue of unacceptable risk, the respondent submitted that no conditions of bail could render the risk of the applicant endangering the safety and welfare of any person, committing an offence whilst on bail or failing to surrender into custody acceptable.
37	In addition to the behaviour of the applicant detailed in relation to his subsequent convictions and occasions on which he was in possession of a knife or knives (and alleged to have once used the knife to injure someone), the respondent pointed to the existence of a Personal Safety Intervention Order made against the applicant with respect to the 20 June 2021 offending. Further, the respondent argues that the conduct of the applicant between February and July 2021 shows a history of non-compliance with court orders. The respondent further relied upon the results of ‘enquiries’ with various government agencies to argue that the circumstances of the applicant’s arrival in Australia, including his relationship with his ex-wife, portend against compliance with bail conditions.
Analysis
38	In my view, the applicant has demonstrated the existence of a compelling reason that justifies the grant of bail.
39	Of particular importance in the combination of factors relied upon is the strength of the prosecution case. Counsel for the respondent, most fairly, conceded that the applicant has a viable case of self-defence. He accepted that the Crown case would not get any stronger as a result of the s 198B CPA examinations as further statements from some of the persons present were not expected to produce eyewitness evidence of the fatal altercation. And the applicant gave an account of the incident to police clearly raising the issue of self-defence.
40	The Crown case is certainly not hopeless. The matter will be resolved by a jury. But Mr Hutton’s descriptor is apt. There is a viable case of self-defence and that, in combination with the other factors advanced by the applicant compels the finding that his continuing detention is not justified. 
41	For the sake of completeness, I also note other factors relevant to this conclusion that were not specifically advanced by the applicant. First, the behaviour of the applicant in custody has been good. He has worked in a kitchen and completed various certificates, namely a Certificate I in written and spoken English and a Certificate II in skills for work and vocational pathways. Second, the applicant reported to Community Correctional Services that he was using heroin and methylamphetamine every second day at the time of the alleged offending. He has been sober in custody and the treatment and rehabilitation options available to him in the community are far greater than those available to him in custody.
42	Turning to the issue of risk, while I am of the view that the applicant presents some risk of endangering the safety and welfare of any person and committing an offence while on bail, I am of the view that the risk can be rendered acceptable by the imposition of appropriate bail conditions. I do not consider the applicant poses any risk of interfering with any witness or failing to surrender into custody. 
43	In this regard I note that the applicant has been in the Australian community for some years. The instant allegations aside, his criminal behaviour is confined in time and seemingly intricately connected with his involvement in the drug milieu. While relapse into drug use is an obvious risk factor, the applicant is currently sober, he will have the ongoing supervision and support under his CCO and his proposed address is different from that at which he resided in 2021 and conditional on his good behaviour. I note that the respondent accepts the proposed bail address as suitable.
44	While it is of concern that the applicant had the habit or custom of carrying a knife ‘for self-defence’, that is likely to have resulted from his involvement in illicit drugs and I propose to make it a specific bail condition that he not be in possession of a knife.  This will serve to underscore the likely consequences for his liberty should he be found to be in such possession. 
45	To the extent that there is some suggestion of family violence, I note that the suggestion is very uncertain and vague, the applicant’s ex-wife resides in Queensland and there is nothing to indicate that either she or anyone else is presently in danger of family violence from the applicant. I also note that the most recent final Family Violence Intervention Order imposed on the applicant, in which his ex-wife and children were listed as protected persons, expired in May 2018.
Conclusion
46	The applicant is admitted to bail on his own undertaking, to attend the Supreme Court of Victoria on 10 June 2022, with the following conditions: 
(a)	Reside at [redacted] (‘the bail address’);
(b)	Notify the informant of any proposed change to the bail address at least 24 hours in advance of such change;
(c)	Not leave the bail address between the hours of 9.00pm and 6.00am (‘the curfew hours’) unless directed to do so by a staff member of Dandenong Community Correctional Services or a member of Victoria Police;
(d)	Present at the front door of the bail address at any time between the curfew hours when requested to do so by a member of Victoria Police;
(e)	Report to the Officer in Charge at Springvale Police Station each Friday between the hours of 7.00am and 8.00pm;
(f)	Contact Dandenong Community Correctional Services within two business days of release from custody;
(g)	Comply with all conditions imposed under Community Corrections Order AP-21-0910;
(h)	Not possess, use or carry a knife outside the bail address without a lawful excuse;
(i)	Not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
(j)	Not contact any witness for the prosecution except the informant;
(k)	Not attend any points of international departure; and
(l)	Not leave the State of Victoria without first obtaining the leave of a court.
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