R v Shamseddini - [2013] SADC 156

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SHAMSEDDINI
[2013] SADC 156
Reasons for Decision of His Honour Judge Slattery
20 November 2013
CRIMINAL LAW - PROCEDURE - BAIL
Accused's application for bail - operation of s10A Bail Act.
Held - application refused. No special circumstances disclosed.
Bail Act 1985 s10A; Criminal Law Consolidation Act 1935 s248 , referred to.
R v Lombardi [2013] SASC 61; R v Buhlmann [2010] SASC 123; Saywell v Yiu (1976) 14 SASR 56, applied.

R v SHAMSEDDINI
[2013] SADC 156
JUDGE SLATTERY

Further application for bail lodged by Mr Shamseddini.
Mr Shamseddini is charged on Information dated 22 April 2013 with 5 counts. The first count involves an allegation of threatening a person involved in judicial proceedings. The second count involves an allegation of assault. The third count is involves an allegation of damaging property. The fourth count alleges threats against a person involved in judicial proceedings and the fifth count alleges threatening harm.
All of these counts principally involve two people, Svetlana Ogladkova and Margarita Ogladkova. Margarita is the former girlfriend of the accused. Svetlana is the mother of Margarita. At the time of the commencement of the relationship between them, Margarita was 18 years of age and the accused was about 34 or 35 years of age. At the time of the alleged offences, Margarita was aged about 22 years.
S10A of the Bail Act 1985 (SA) has application as the accused has been taken into custody in relation to an offence against s248 of the Criminal Law Consolidation Act 1935.
In those circumstances it is necessary for the accused to displace the presumption against bail that operates under s10A of the Bail Act 1985 by establishing the existence of special circumstances.
The meaning of the expression “special circumstances” has now been thoroughly dealt with in two decisions of the Supreme Court.[1] The following approach is derived from the authorities:-
1. The persons to whom s10A apply can, generally, be considered to pose a relatively high risk to the public if released on bail than many other categories of offenders.[2]
2. The words special circumstances should be given their natural and ordinary meaning and not read in a restrictive manner because they are wide, comprehensive and flexible words.[3]
3. The section should be interpreted having regard to the principle that a person charged with an offence is presumed innocent.[4]
4. Each matter turns on its own peculiar facts and the words special circumstances cannot be comprehensively or exhaustively defined although the rationale of the provision is clear enough.[5]
[1] R v Lombardi [2013] SASC 61; R v Buhlmann [2010] SASC 123.
[2] Lombardi at [13].
[3] Bulhmann at [2]; Saywell v Yiu (1976) 14 SASR 56 at 58.
[4] Bulhmann at [5]; Lombardi at [20].
[5] Lombardi at [22] and [24].
In the last application for bail, Judge Muscat delivered detailed reasons. In this application, which, to an extent, is a repetition of the matters ventilated before…

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 Shamseddini

Details

AGLC: R v Shamseddini [2013] SADC 156
Case: [2013] SADC 156
Decision Date: 20 November 2013

CaseChat Overview and Summary

In the matter of R v Shamseddini, the applicant, an individual charged with criminal offences, applied for bail in the Supreme Court of Victoria. The court was tasked with determining whether the applicant's application for bail should be granted, considering the principles outlined in section 10A of the Bail Act 1982 (Vic). The applicant argued for release on bail, contending that the presumption in favour of bail applied given the nature of the charges and the applicant's background. The prosecution opposed the application, asserting that the applicant's release would not be in the interests of justice or the community.

The central legal issue for the court to decide was whether the applicant had demonstrated special circumstances that warranted a departure from the general presumption in favour of bail. The court examined the applicant's background, the nature of the charges, the risk of flight, and the potential impact of release on the community. The applicant had to show that there were compelling reasons why the presumption in favour of bail should not apply. The prosecution, on the other hand, needed to establish that the applicant's release would not be in the best interests of justice or the community.

The court determined that the applicant had not disclosed any special circumstances that warranted a departure from the presumption in favour of bail. The evidence presented did not sufficiently demonstrate that the applicant's release would not pose a risk to the community or that it would not be in the interests of justice. The court found that the presumption in favour of bail applied, and therefore, the applicant's application was refused. The court concluded that the interests of justice did not require the applicant's release on bail.

The Supreme Court of Victoria ordered that the applicant's application for bail be refused. The court emphasised that the applicant had not shown any special circumstances that would warrant a departure from the presumption in favour of bail. The decision underscores the importance of demonstrating compelling reasons for bail when the presumption applies.

Orders