R v Nezif
[2005] VSC 17
•21 January 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
PRACTICE COURT
No. 1400 of 2005
| IN THE MATTER of the Bail Act 1977 |
| And |
| IN THE MATTER of an application for Bail by BARIS NEZIF |
---
JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 JANUARY 2005 | |
DATE OF JUDGMENT: | 21 JANUARY 2005 | |
CASE MAY BE CITED AS: | RE NEZIF | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 17 | |
---
Criminal Law – Application for Bail – Applicant to show cause – Bail Act 1977, s.4.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen SC | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr A.D. Trood | Griffin Law Firm |
HIS HONOUR:
This is an application for bail by Baris Nezif, who has been in custody since the night of 15 December 2004. He has been charged with five offences. The short description of the offences are aggravated burglary, intentionally causing injury to his wife, unlawful assault on his wife, unlawful assault on his brother-in-law and criminal damage to the wall of the house owned by his wife and himself.
Very briefly, the charges arose out of a disagreement between the applicant and his wife, not long after they resumed co-habitation following a short separation. The disagreement apparently commenced prior to the wife leaving to go to a kindergarten graduation ceremony for their daughter and continued after the applicant arrived at the kindergarten. When the wife returned to their home, the argument resumed and it would appear that bottles and other items were broken and walls punched by the applicant. As a result of the applicant's conduct the wife sent a text message to her sister asking her to call the police.
When the police arrived they eventually managed to calm the applicant down. He was told that his wife was leaving with the younger daughter, (their older daughter was staying with the wife's mother) and the police instructed the applicant that he was not to leave the house or attempt to see his wife that night. Notwithstanding that he agreed that he would stay at home, some 20 minutes later the applicant arrived at the mother-in-law's house. He entered the house despite being told by a police officer that he was not to enter and, according to the police evidence, approached his wife and forcefully pulled her hair on two occasions. He was then put in a bear hug by his brother-in-law. They fell to the ground and wrestled with each other. It is alleged that the applicant then punched and kicked his brother-in-law. The applicant, as I understand it, is a former world champion kick boxer, so that he is potentially a very dangerous person in terms of the ability to use his fists and feet.
I should have indicated that the incident at the mother-in-law's place was brought to a conclusion when the police officers present used capsicum spray to subdue the applicant. He then went outside and after some discussion was handcuffed and treated for the effects of the spray and then taken to the police station. The applicant's wife, mother-in-law and brother-in-law also went to the police station and made statements, basically along the lines of the evidence of the police officers.
Because of the charge of aggravated burglary, the applicant has to show cause as to why he should be granted bail (s.4(4)(c) of the Bail Act 1977). This case has some unusual aspects in that the applicant's application for bail is now supported by an affidavit by his wife, who asks that the applicant be granted bail, and by an affidavit by his mother-in-law. There is of course a real possibility that the wife's change of attitude has been brought about by pressure by the applicant.
The Crown opposes the granting of bail on the grounds that there is an unacceptable risk that the applicant, if released on bail, would endanger the safety or welfare of members of the public, or would commit further offences whilst on bail (s.4(2)(d) of the Bail Act 1977). Ms Pullen SC, who appeared for the Crown, agreed that that concern was limited to the members of the family and that otherwise there was no concern about the applicant's behaviour towards more remote members of the public.
It has troubled me that there is a possible risk that the applicant, whatever his intentions may be now, if he becomes upset or distressed may resort to violence against his wife. As I have said, it is complicated by the fact that the wife is supportive of the application and has sworn in her affidavit that she is not in fear of the applicant.
I want to make it quite clear to the applicant that if there is any repetition of the incident of 15 December 2004 and the police are involved, that his remaining at liberty pending the hearing of these charges is likely to be immediately retracted, and any possibility of bail on that occasion then would be very remote. It would also be a most serious incident if there was any repetition in those circumstances.
However, the situation is that the family is by and large dependent on the applicant's income to meet a very substantial mortgage on their home. The employment that the applicant had prior to the incident is said to be still available, in that the employer is willing to continue the employment. However, as Ms Pullen said, there may be some problem there because of the situation that the applicant works as a security guard and his ability to continue that work may be affected by these charges. Nevertheless, the current position is that the employer is happy to have the applicant back.
The application has also been supported by a programme put forward by Mr Robert Allen, a bail support worker, as part of the bail support programme that operates out of the Melbourne Magistrates' Court. Part of the suggested programme is Mr Nezif is to reside with his grandmother at an address in Coolaroo. As Mr Trood of counsel, who appeared for the applicant, said, this would enable the applicant and his wife to put some space between them as they tried to work out their matrimonial difficulties. It was also suggested that there should be some curfew in place, seven days a week, which I think is an appropriate condition, although the timing may have to be adjusted to fit in with the hours of work that the applicant may be able to partake in.
Most importantly, the programme that Mr Allen put forward would enable the applicant, next Tuesday, to undergo an assessment for the development of an anger management plan with the Creative Living Centre. This course would continue probably at weekly intervals for the duration of the period before the trial. It was also said that Mr Allen, himself, would supervise the bail and that there would, at some stage, be put in place some relationship, or marriage guidance counselling.
The other aspect that I feel should be dealt with is that a condition should be imposed restricting the applicant's access to the home in which the wife is living, so that, again, contact between the applicant and his wife and the two daughters will really be up to the wife. As Mr Trood said, she could visit him with the children at the grandmother's home, or such a visit could take place at the mother-in-law's home, or any other agreed place. But if the wife does not want to have contact with the applicant then she will have the benefit of an order, or condition, restraining him from coming to the house in which she lives.
I think I should say that, notwithstanding Ms Pullen's very emphatic submissions concerning the nature of the aggravated burglary, I do consider that this is an unusual case, and that that in some way is supportive of the applicant being able to show cause as to why bail should be granted.
With the conditions I have discussed, together with the bail support programme to be put in place, I am satisfied that there is not an unacceptable risk that the applicant if released on bail would commit an offence whilst on bail or would endanger the safety or welfare of members of the public. In all the circumstances, I consider that the applicant has shown cause why his detention in custody is not justified, and I am therefore prepared to grant bail.
---
0
0
0