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

---

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

---

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.

---

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:

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.

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).

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.

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)

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…

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 Karam v The Queen

Details

AGLC: Karam v The Queen [2013] VSC 370
Case: [2013] VSC 370
Decision Date: 17 July 2013

CaseChat Overview and Summary

The appeal in Karam v The Queen involved the applicant, Mr Karam, who was appealing against a decision of the County Court of Victoria to deny him bail. The primary matter before the Court of Appeal was whether the County Court had correctly exercised its discretion in denying bail to Mr Karam, who was facing charges related to trafficking a commercial quantity of MDMA. The Court of Appeal needed to determine whether the County Court had overlooked or failed to take into account relevant considerations in exercising its discretion under the Bail Act 1977 (Vic).

The central issue before the Court of Appeal was whether the County Court had applied the correct legal principles in deciding to deny bail. Specifically, the Court of Appeal had to consider whether the County Court had correctly assessed the risk factors and exceptional circumstances, as required by section 4(2)(aa)(i) and 4(4)(a) of the Bail Act 1977 (Vic). The Court of Appeal needed to determine whether the County Court had erred in its assessment of the risk involved and whether Mr Karam had shown exceptional circumstances warranting the grant of bail.

The Court of Appeal held that the County Court had not erred in denying bail to Mr Karam. The Court found that the County Court had appropriately considered the relevant factors under the Bail Act 1977 (Vic) and had correctly assessed the risk involved. The Court of Appeal emphasised that the burden of showing exceptional circumstances lay with Mr Karam, and he had not discharged that burden. Furthermore, the Court found that the risk involved was not so unacceptable as to warrant the grant of bail. Consequently, the Court of Appeal upheld the decision of the County Court to deny bail.

In light of the Court of Appeal's decision, the orders made by the Court were that the appeal be dismissed, and the decision of the County Court denying bail to Mr Karam be affirmed. The Court of Appeal did not order any further consideration of the bail application by the County Court.

Orders