R v Chaouk - [2010] VSC 315

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SCR 2010 0098

ALI CHAOUK

THE QUEEN

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF RULING:	15 July 2010
CASE MAY BE CITED AS:	R v Chaouk
MEDIUM NEUTRAL CITATION:	[2010] VSC 315

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Bail application - Show cause - Unacceptable risk - Bail application rejected.

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APPEARANCES:	Counsel	Solicitors
For Applicant	Mr Robert Richter QC	M W Law
For the Crown	Mr C Beale	Office of Public Prosecutions

HER HONOUR:

This is an application for bail by Ali Chaouk. I am going to provide brief reasons.

Pursuant to s.4(4)(c) of the Bail Act, Mr Chaouk must show cause why his continued detention in custody is not justified.

The applicant has been committed for trial to the County Court on numerous charges, including armed robbery and intentionally causing serious injury arising from allegations of offences that occurred on 27 September 2009. The applicant was arrested on 28 September 2009 and has been on remand from that time.

Two applications for bail have been refused. The first application was refused by her Honour Judge Popovic on 2 December 2009. The second application was heard at the conclusion of the contested committal proceeding, before her Honour Judge Goldsbrough on 20 May 2009.

The basis for the application, as I understand it, is really twofold. One, the delay before the applicant's trial can be heard will be approximately two years, if not more. Secondly, even if he is an unacceptable risk or there are major concerns in relation to those matters, it is submitted that those concerns can be alleviated by the imposition of appropriate conditions.

There also appears to be concern that the time in custody that the applicant is serving, is time that will not be regarded as pre-sentence detention, should he be convicted, as he was on parole at the time of the alleged offending and his parole has been revoked. He is currently serving the unexpired portion of his parole, approximately one year and seven months. That is not a matter that I can take into account in determining whether or not bail is appropriate. It is a matter for Corrections and the Parole Board. I do not revoke parole; that is a matter for them.

Mr Richter further submitted that the case was not a particularly strong case. I decline to consider that matter, as Mr Chaouk has been committed to stand his trial after a contested committal which means, of course, that a magistrate has found that there is a reasonable prospect of conviction, in respect of the offences for which he has been committed.

The depositions were not exhibited by any party thus, it would not have been appropriate for me to form any particular view of the strength of the Crown case. I take its strength as being described in the contested committal, which means it is neither a strong case, nor a weak case and, accordingly, that has…

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 R v Chaouk

Details

AGLC: R v Chaouk [2010] VSC 315
Case: [2010] VSC 315
Decision Date: 15 July 2010

CaseChat Overview and Summary

In the case of R v Chaouk, the defendant was before the court on an application to refuse bail. The dispute arose from the defendant's alleged involvement in a serious criminal activity, necessitating a consideration of whether the defendant posed an unacceptable risk to the community or witnesses if released on bail. The matter was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the defendant posed an unacceptable risk to the community or witnesses, and if so, whether this risk was sufficient to warrant a refusal of bail. The court needed to weigh the seriousness of the alleged offences against the defendant's right to liberty and the potential for ensuring their appearance at trial if granted bail.

The court, after considering the evidence and submissions, found that the defendant indeed posed an unacceptable risk to the community and witnesses. The evidence presented highlighted the potential for reoffending and the seriousness of the alleged crimes, which included organised criminal activity. Given these factors, the court concluded that the risk was too significant to allow bail. Consequently, the application to refuse bail was upheld, and the defendant remained in custody.

The final orders of the court were that the defendant's application to refuse bail was granted, and the defendant was to remain in custody pending the outcome of the trial.

Orders