Karam v The Queen

[2013] VSC 370

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0105

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by NABIL KARAM

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JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2013
DATE OF JUDGMENT:	17 July 2013
CASE MAY BE CITED AS:	Karam v R
MEDIUM NEUTRAL CITATION:	[2013] VSC 370

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CRIMINAL LAW – Bail – Trafficking commercial quantity of MDMA – Applicant in ‘show cause’ situation – Burden on applicant to show exceptional circumstances –Risk involved not  unacceptable – Bail granted – Bail Act1977 (Vic) ss 4(2)(aa)(i) and 4(4)(a) considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G. Georgiou SC	Valos Black & Associates
For the Respondent	Mr A. Grant	Office of Public Prosecutions

HIS HONOUR:

1. On 13 June 2013 Nabil Karam was charged with one count of trafficking in a drug of dependence, namely MDMA, or ecstasy, in not less than a large commercial quantity.  The maximum penalty for this offence is life imprisonment.  It is, accordingly, among the most serious offences in the criminal calendar. Karam was refused bail by a magistrate at the Melbourne Magistrates’ Court on 14 June and remanded in custody.  He now applies for bail to this Court.

1. In fact, Karam was already on bail at the time of his arrest, having been charged on 19 March 2013 with possession of an unregistered handgun; a loaded .22 calibre pistol, found by police in the map holder of his motor vehicle when it was intercepted.  Karam’s explanation for having that weapon was that it was for his protection.  He was also charged, at that time, with possession of cartridges for that weapon without being appropriately licensed.  Both of these offences are indictable offences, proscribed by s 7B(1) and s 129A of the Firearms Act 1996 (Vic).

1. The Bail Act1977 (Vic) (hereafter referred to as ‘the Act’) provides generally for the granting of bail to persons charged with criminal offences but qualifies the right to bail in certain circumstances, two of which circumstances apply in this case, namely ss 4(2)(aa)(i) and 4(4)(a); the first because of the crime with which he is charged and the second because it is alleged he committed that crime whilst on bail in relation to an indictable offence.

1. Section 4(2)(aa)(i) of the Act operates to require an applicant in Karam’s position to prove that there are exceptional circumstances which justify a grant of bail. Section 4(4) requires the court to refuse bail unless the accused shows cause why his detention in custody is not justified. If it grants bail, it must include in the order for bail a statement of reasons as to why the applicant’s continued detention is not justified.[1]

   [1]Bail Act 1977 (Vic) s 4(4)(d)(i)

1. In a well-argued submission, Mr Georgiou SC of counsel for Karam, relied upon a number of discrete matters which, he submitted, together constituted exceptional circumstances justifying bail in this case. He referred to the anticipated delay between Karam’s arrest and his trial, that he is the principal carer for a 17-year-old daughter, that he is engaged in a mortgage broking business and an investment project, both of which will be adversely affected, perhaps to destruction, if he is incarcerated. He is said to have strong ties in the Melbourne community, and is said to be a low risk of re-offending, taking flight or interfering with witnesses, and he is able to provide a substantial surety and has established stable accommodation, work and family whilst on bail.

1. Mr Georgiou elaborated on each of these topics by reference to the affidavit of his instructing solicitor, filed in support of the application.  There was effective agreement between the parties that Mr Karam’s trial would probably not occur before the end of 2014 and may even not occur until 2015 – some 18 months or more hence.

1. Mr Karam is the principal carer for his 17-year-old daughter who resides with him and his current partner.  Should he not be bailed, this daughter, who is in Year 11 at Camberwell High School, would have to be cared for by Mr Karam’s sister, a sole parent in ill-health herself with two chronically ill young children. His daughter would also have to face the rigours of year 12 without the support of her father.

1. Mr Karam is a licensed mortgage broker.  Should he not be free to conduct this business it will almost certainly be detrimentally affected, perhaps to the point of failure; not only to his detriment, but to the detriment of his family.  Other business interests concerned with an investment project will also be adversely affected, perhaps significantly so.

1. Counsel argued that Mr Karam had strong ties in this community, an issue relevant to whether he might be a flight risk, if bailed.  He relied upon concessions made by the police informant in evidence to the effect that he did not consider Karam to be an unacceptable flight risk and that he did not consider that there was an unacceptable risk of Karam offending further if bailed.

1. The police officer’s evidence was that the applicant associated in one way or another with other persons of extremely doubtful probity and that the Crown case against him on this charge was not a weak one.

1. The Crown did not put any affirmative case against this application. It merely reiterated its position that the applicant had not demonstrated exceptional circumstances so as to justify a grant of bail.

1. Neither the prosecutor nor Mr Georgiou specifically addressed the question raised by Karam having been on bail when he was alleged to have committed this offence, but Mr Georgiou submitted that the same factors which demonstrated exceptional circumstances in this case would also establish that his continued incarceration was not, in these circumstances, justified.

1. There are many decisions of single judges and some of the Court of Appeal on the question of exceptional circumstances and the ‘show cause’ provisions of the Act.  Each turns, essentially, on its own facts and there was no argument here between the parties that exceptional circumstances can be demonstrated by a combination of individual circumstances, any one of which on its own would not be exceptional; see cases such as R v Cozzi,[2] R v Wells,[3] and R v Scott[4] as to exceptional circumstances.  On the issue of showing cause see R v Patterson.[5]

   [2][2005] VSC 195.

   [3][2008] VSC 29.

   [4][2011] VSC 674.

   [5][2006] VSC 268.

1. Here, the principal matters going to the question of exceptional circumstances are the predicted delay in this case getting to trial, the welfare of the applicant’s 17-year-old daughter and the effects on his capacity to run his business and, thus, provide for his family.

1. I am satisfied that, taken together, these matters constitute exceptional circumstances justifying a grant of bail. When one adds to these matters the concessions made by the police informant as to the risks involved in granting bail being not unacceptable in this case, I consider that the provisions of both ss 4(2)(aa)(i) and 4(4)(a) of the Act have been satisfied. There will be a grant of bail.

1. The grant of bail will be conditional. The applicant must provide a surety or sureties to a total sum of $500,000.  He must live in stable accommodation at an address provided to the police informant.  He must not change his address without giving 48 hours notice and must report to an appropriate police station on Monday, Wednesday and Friday of each week, between 06:00 and 24:00. He must not attend places of international departure and must surrender any passport held by him. He must also provide an up-to-date mobile telephone contact number and provide, within 48 hours, details of any change to that number. The order this Court will make are as follows:

The said NABIL KARAM be admitted to bail on his own undertaking with surety or sureties in the amount of $500,000 on the following conditions:

1.   The said NABIL KARAM reside at [withheld] and not change address without giving the informant 48 hours notice.

2.   The said NABIL KARAM report each Monday, Wednesday and Friday to the Officer in Charge of the Police Station at [withheld] or his nominee between the hours of 6.00am and 12.00am.

3.   The said NABIL KARAM surrender any passports which he may hold to the Informant within 48 hours of being admitted to bail and not apply for another passport.

4.   The said NABIL KARAM not attend any point of international departure during the period of bail.

5.   The said NABIL KARAM provide an up-to-date mobile phone contact number and provide details of any change to that number to the informant within 48 hours.

AND, in compliance with section 4(4)(i) of the Bail Act 1977(Vic) annexes its reasons for granting bail to this order.