Hammoud v DPP - [2006] VSC 516

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1596 of 2006

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for bail by SHOUE HAMMOUD

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 December 2006
DATE OF JUDGMENT:	15 December 2006
CASE MAY BE CITED AS:	Hammoud v DPP
MEDIUM NEUTRAL CITATION:	[2006] VSC 516	Revised 20 August 2007

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CRIMINAL LAW – Application for bail – Rebuttable presumption against bail being granted to a person charged with a terrorism offence – Bail refused - Crimes Act 1914 s 15AA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R. Maidment S.C.	DPP (Commonwealth)
For the Respondent	Mr R. Backwell	Victoria Legal Aid

HIS HONOUR:

Shoue Hammoud has been committed for trial and is on remand awaiting that trial. He seeks bail pending his trial. Although Mr Hammoud was committed on three charges under the Criminal Code Act 1995 (Cth), he has now been indicted on only two counts, one of being a member of a terrorist organisation contrary to s 102.3(1) of the Code and one of intentionally making funds available to a terrorist organisation contrary to s 102.6(1) of the Code. He has been in custody since 31 March 2006, almost nine months. Section 15AA of the Crimes Act 1914 (Cth) enacts a rebuttable presumption against bail being granted to a person charged with a terrorism offence.

Each of the offences upon which Hammoud is indicted is a terrorism offence. The presumption is rebutted only if exceptional circumstances exist to justify bail. Thus, the onus is upon the applicant to satisfy the court affirmatively that such circumstances exist. The word "exceptional" has received judicial attention in many cases, including cases involving a reverse onus with respect to bail; see, for example, United Mexican States v. Cabal[1] where the case concerned bail pending extradition; and DPP (Cth) v. Tang & Ors[2], a case in this Court concerning bail pending trial. There are many others.
[1](2001) 183 ALR 645.
[2](1995) 83 A Crim R 593, 596.

What must be shown is that there is some situation which is out of the ordinary in some respect which the detainee can point to as justifying the adjective "exceptional".

Here the applicant has put an argument which relies upon a combination of factors as constituting exceptional circumstances. He says that he would have, if he were released on bail, appropriate living conditions in that he would reside with his wife and children in a house partly owned by his father. He says that his wife has recently had a baby and he has a two-year-old son, so that he has at least legal care and guardianship of two young children. He says he has a supportive family. He says that they are strong and close. I accept the evidence of the applicant's father that he would support the applicant to the best of his ability…

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.

Continue reading Hammoud v DPP

Details

AGLC: Hammoud v DPP [2006] VSC 516
Case: [2006] VSC 516
Decision Date: 15 December 2006

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Hammoud versus the Director of Public Prosecutions was heard. The applicant, Mr Hammoud, had been charged with various terrorism-related offences and was seeking bail. The central dispute was whether the rebuttable presumption against granting bail to someone charged with terrorism offences, as outlined in section 15AA of the Crimes Act 1914, should be applied, and whether the presumption could be rebutted.

The legal issues before the court were whether the presumption set out in section 15AA applied to the applicant's case and, if so, whether the conditions for rebutting the presumption were met. The court examined the nature of the charges, the potential danger to the community if bail were granted, and the interests of justice in considering whether the presumption should apply and whether it could be rebutted.

The court determined that the rebuttable presumption under section 15AA did apply to Mr Hammoud's case given the serious nature of the terrorism-related charges. The court concluded that the evidence presented did not sufficiently rebut the presumption, leading to the decision that bail should be refused. The court found that the potential danger to the community and the gravity of the charges outweighed any arguments for granting bail.

The court made orders that Mr Hammoud's application for bail was refused, and he was to remain in custody pending the resolution of his criminal matters.

Orders