This is an application for bail pending the committal proceeding. The applicant, Ismail Muhaidat, is charged with one count of murder.
It is alleged on 2 September 2003 Muhaidat, together with his co-accused, Craig Gallis and Stephen Mikhail, and a co-offender who is currently in Lebanon, Monsia Helal, murdered Robert D’Amico at premises then occupied by D’Amico and one David Walker at 7 Athena Close Tullamarine.
In addition, the applicant is currently in custody awaiting a committal mention and applies for bail in respect of charges of cultivating and trafficking commercial quantities of drugs at premises at Keilor Park and at Glenroy between 27 October 2003 and 12 November 2003.
I note that 12 November 2003 is the date on which Muhaidat and Gallis were arrested and interviewed by the police in relation to the murder charge.
Muhaidat is 23 years of age, having been born in June 1980. After his arrest he and Gallis were remanded in custody for a hearing at the Melbourne Magistrates' Court on 30 November 2003. They were subsequently remanded in custody to appear at the Melbourne Magistrates' Court on 18 February of this year for a committal mention.
In the meantime Mikhail has also been arrested and interviewed, and is remanded in custody to appear in the Melbourne Magistrates' Court on 18 February 2004 for a committal mention. As I have already stated Helal, the other co-offender, is currently in Lebanon and as I understand it extradition proceedings are anticipated in relation to him in relation to the murder case.
Section 4, sub-section 1 of the Bail Act1977 provides that: “A person who is accused of an offence and who is being held in custody in relation to it is entitled to a grant of bail.” The same section describes a number of exceptions to that general rule. Relevant exceptions for this purpose are firstly where there is a charge of murder, that is s.4 sub-s.(2) sub-s.(a), and secondly where there are charges of offences of trafficking or cultivating drugs of dependence in excess of commercial quantities. That exception is prescribed by s.4(2)(AA)(i) of the Act.
The effect of the Bail Act, and in particular s.13, is that in relation to the murder charge the applicant must first establish existence of exceptional circumstances in order as a threshold issue to qualify for a grant of bail. The effect of s.4(2)(AA) of the Bail Act is that he must likewise in relation to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
DPP v Muhaidat [2004] VSC 17
Case
[2004] VSC 17
Decision Date
CaseChat Overview and Summary
Ismail Muhaidat has applied for bail pending the committal proceedings related to charges of murder and drug cultivation and trafficking. Muhaidat is accused of being part of a group that conspired to rob a residence where cannabis was cultivated. During the robbery, a gunshot was fired unintentionally, resulting in the death of one of the occupants. The court was tasked with determining whether exceptional circumstances existed to justify bail under the Bail Act 1977, and if not, whether there was an unacceptable risk of the accused committing certain prohibited acts if released on bail. The judge found that the Crown case against Muhaidat for murder, while not necessarily weak, had a significant possibility that the fatal shot was unintentional, potentially excluding it from the scope of the joint criminal enterprise. This possibility, however, did not constitute exceptional circumstances sufficient to warrant bail. Additionally, the pregnancy of Muhaidat’s de facto partner, while a hardship, did not meet the threshold of exceptional circumstances. Consequently, the judge refused the bail application on the murder charge and found it unnecessary to assess the drug-related charges for exceptional circumstances, as the outcome would not affect the immediate disposition of the murder case.