R v Chaouk
[2010] VSC 315
•15 July 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. SCR 2010 0098
| ALI CHAOUK |
| v |
| 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detention, should he be convicted, as he was on parole at the time of the alleged offending and his parole has been revoked.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 no real impact upon the question of bail. I take it as just a test, as stated.
As to the issue of delay, there is a directions hearing in respect of this matter listed in the County Court. It is listed for 3 August 2010. It is expected that the trial date will be set for approximately 12 months later, some time in August, September 2011. Thus, it may well be two years before the trial of the applicant occurs.
There are, potentially, other persons who may be charged, in particular, the major perpetrator of the alleged violence. There has not, as yet, been a recommendation for his prosecution, lodged with the superiors of the informant in this matter. Whilst that is a matter of some concern to me if a further person, or persons, are charged, then there is the potential for the matters to be joined with the trial date, that the applicant receives at his directions hearing in the County Court. If this is not able to be accommodated, then different considerations may arise. It would need to be dealt with, if this eventuality actually occurs.
A time of two years is a very long time to be held in custody on a matter in which there is a presumption of innocence and that causes me grave concern, but I am of the view that, despite that time, the applicant is of such an unacceptable risk, with a combination of flight, committing further offences, endangering witnesses, as well as endangering the safety or welfare of members of the public, that his detention in custody is currently justified.
On the night of the alleged offences, threats were alleged to have been made, not only to the victim, but about the safety and welfare of his sister. It appears that the victim resides overseas, but his sister resides in Victoria.
These offences were alleged to be carried out, with other persons, and in the presence of members of an international outlaw motorcycle gang, the Hells Angels. Although the applicant is not a member of that organisation, he has the status, as I understand it, of being a "hang‑around". Even though he has that status, he clearly has sufficient status to have the phone numbers and contact details of persons considered to hold, either formerly or currently, significant positions within the Victorian chapter of that organisation. There is no doubt that they are recognised by law enforcement groups as being a robust criminal organisation, with strong overseas networks. This is relevant both to the issue of flight, and the issue of interference with witnesses.
The applicant has strong family ties, in that he has a wife and an 11 month‑old son, three brothers, a mother and father, who all reside in the Brooklyn area. They are, I accept, a close and united family. They are prepared to support each other and also to take the blame for the others' actions, an example of which will be seen subsequently.
It was argued that such strong ties would ensure that he did not flee the jurisdiction and would assist him to remain trouble free.
In relation to that, his child was clearly quite young when these offences were alleged to be committed, yet it would appear undisputed that he was at the Hells Angels clubhouse in Thomastown in the very early hours of the morning, where his mobile phone was noted at around 5 a.m. It would also appear that the applicant had earlier been to a gentlemen's club in King Street in the city at 3.40 a.m., when the victim allegedly arrived there. This was a Sunday night, Monday morning. He was at that stage, I was informed, working as a water carrier, not working as a crowd controller.
None of that behaviour is consistent with being either a concerned new father and partner; or consistent with a person who is on parole, because my understanding is that he would not be expected to be associated with persons from outlaw motorcycle clubs.
There is no doubt, that his family ties are important to him and his family, but equally, so must be the family concerns about him being incarcerated for any lengthy period of time. It is clear, from listening to the telephone recordings from the prison, that there is real concern about time spent in custody by any member of the family.
He has two prior convictions for failing to appear in respect of bail, one in 2000 and one in 2004, and he was fined on both occasions. I have no reason to doubt the submission, put forward by Mr Richter, that on one of those occasions it was a mistake and he handed himself in the next today. They are of some relevance, but do not carry a great deal of weight. The same applies to failures to abide by court directed programs.
Of real concern is that, on 1 July 2010, police raided what I would refer to as the family home, that is the home where his mother, father and young brother regularly lived, his wife was then living, and another brother, Walid, was present. During that raid, the police located a number of items, including two loaded firearms, a shotgun and a handgun, as well as 36 blank Australian passports. It was submitted by counsel that they were not usable, because they are not the new electronic passports and, therefore, are not of any real use, and that they could have been there a long time, having been stolen in 1996.
The passports are not incapable of use, as the non‑electronic passport still has quite a few years left before it becomes obsolete. I made that observation in court, and explained then, and I will repeat it now. I travel on a non‑electronic passport which has at least three years before expiry.
There were calls recorded from the prison, on 1 July, from the applicant to different family and friends, wherein he discussed this issue of the arrest of his father and his two brothers, Walid and Omar. I have listened to those calls, and within them he has indicated no surprise about the presence of firearms, merely asking which guns had been found; and in relation to the passports, he volunteered that they were his guns, and his passports and that he knew where they were hidden, and the serial numbers of passports.
While I do not necessarily accept that they were his passports or his guns, what I have is very little doubt that he was aware of those items and that those items would have been available to him, if he requested them.
In relation to the guns and passports, Matwali has come forward and made a full statement about the items being his. The youngest brother, Omar, also made admissions about the items being his.
The phone calls from the prison demonstrate a knowledge of law and a contempt for the truth by the applicant, saying "Someone has to wear these items”, or they may all get charged. What he says is, "I know how to work the system".
It is clear that, at the least, the male members of the family are prepared to do anything to assist each other, to prevent any member spending time in prison.
Equally, in those phone calls, there is a call in which the applicant and the recipient discuss the Haddara family, a family with whom the Chaouk family could be described as being at war. There have been shots fired on both sides of that war. The contempt in which the Haddara family is held is evident in that call. There is, in my view, a genuine concern that, not only may members of the Haddara family be at risk, but the general public may well be caught up in this ongoing dispute. It is clear that the animosity towards the Haddara family is still strongly in existence.
In relation to the conditions in which you are being held, if he has not been charged by the police, it would appear that he should be able to seek a change in his conditions. That has not occurred and I am unaware whether he has sought a change in his conditions, but let me say, if he remains in those conditions, it is highly likely that someone will grant him bail.
The conditions of bail, put forward by counsel as being appropriate, involve you living at either your family's home or the home of an uncle in Footscray. Your youngest brother, Omar, has been bailed on the firearms offences and bailed to reside with your uncle. The police had no objection to his residence at your uncle's home. In my view, it would be inappropriate for you to reside at the same premises as Omar. In light of what he is charged with in relation to the guns and in light of the material found at your family home, that family home would be entirely unsuitable.
Your father is prepared to put up a surety in the form of the unencumbered portion of a property that he owns in Brooklyn, being $450,000, and you are prepared to abide by a curfew.
You have an offer of employment, working as a general kitchen hand in a coffee lounge at Southbank. The hours would be Monday to Friday from 6 a.m. to 4 p.m.
I am of the view that even these conditions cannot alleviate the risks that I find you present. You and your family clearly have had access to significant items associated with flight, the possession of 36 blank Australian passports. These are items not easily obtained by anyone without significant criminal connections. If that type of material has been obtained once, it is possible that the connections to obtain similar material remain open and available. That, combined with the two loaded firearms found at the premises and your connection with the Hells Angels members, both on that night and subsequently, the threats made to the victim, and to and about the victim's sister. I do not believe that ordering you to avoid international points of departure, hand in your passport, or abide by a curfew, would be sufficient in any way. It would be almost insulting to say you should hand in a passport, when there are potentially another 36 in the cupboard, or hidden somewhere in the home. Reporting on a daily basis would not prevent you from fleeing, or representing a danger to the witnesses, or the community at large.
In my view, you have not shown cause why your detention in custody is not justified at this time and I reject the application.
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