Re Abaker - [2018] VSC 714

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0276

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by MUNZAR ABAKER

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2018
DATE OF JUDGMENT:	20 November 2018
CASE MAY BE CITED AS:	Re Abaker
MEDIUM NEUTRAL CITATION:	[2018] VSC 714

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CRIMINAL LAW – Bail – 20 year old applicant with no criminal history – Armed robbery with the use of a loaded handgun, drug trafficking, and dishonesty offences – Requirement to show existence of compelling reason justifying grant of bail – Whether compelling reason shown – Whether unacceptable risk – Level of IQ of the applicant an important matter relied upon – Other evidence called into question the validity of the result indicated by testing – Serious offending – Strong prosecution case – No inordinate delay – Compelling reason not shown – Unacceptable risk of matters contained in s 4E – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4C, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Burt	Greg Thomas Barristers and Solicitors
For the Respondent	Ms S Lenthall	Mr J Cain, Office of Public Prosecutions

HIS HONOUR:

Introduction

The applicant applied for bail on a number of charges he is currently facing. The charges arose from a variety of alleged offending during 2018. The most serious charge faced by the applicant is an armed robbery alleged to have been committed on 17 March 2018. Armed robbery is an offence which appears in Schedule 2 of the Bail Act 1977 (‘the Act’). As a result, bail would need to be refused unless I was satisfied that a compelling reason existed that justified the grant of bail.[1]
[1]Bail Act 1977, s 4C(1A).

Having heard the application for bail, I announced my decision that the application was refused. I stated I would publish my reasons at a later time. These are those reasons.

Procedural history

The applicant was arrested and charged on 2 August 2018. He has been in custody since that time. He made an application for bail in the Magistrates’ Court on 15 October 2018. Bail was refused on the basis the applicant had failed to show the existence of a compelling reason in justification for the grant of bail. He is next due to appear in the Melbourne Magistrates’ Court for a committal mention on 7 December 2018.

The alleged offending
Armed robbery

The serious armed robbery with which the applicant is charged arises from the alleged involvement of the applicant in a syndicate of young people engaged in trafficking in a variety of drugs.

The victim of the armed robbery, Chad Gueco (‘Gueco’), asked a work colleague for a recommendation of someone from whom to purchase cannabis. Gueco was told a person named ‘Munzar’ could assist. The work colleague contacted the applicant via Facebook and in the end, the…

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 Re Abaker

Details

AGLC: Re Abaker [2018] VSC 714
Case: [2018] VSC 714
Decision Date: 20 November 2018

CaseChat Overview and Summary

In the case of Re Abaker, the applicant sought bail in relation to multiple charges including armed robbery, drug trafficking, and dishonesty offences. The matter was heard in the relevant Australian court, which carefully considered the arguments and evidence presented in determining the application. The court was required to decide whether the applicant had demonstrated a compelling reason justifying the grant of bail, as well as whether there was an unacceptable risk of the applicant committing further offences or failing to appear in court.

The court's reasoning centred on the seriousness of the alleged offences, the strength of the prosecution's case, and the absence of any inordinate delay in the applicant's bail application. The court also considered the applicant's level of intelligence, as evidenced by IQ testing, but questioned the validity of the results obtained. The court found that the applicant had not shown a compelling reason for the grant of bail, and that there was an unacceptable risk that they would commit further offences or fail to appear in court if released. As a result, the bail application was refused.

The court's decision was based on the balance of considerations outlined in the Bail Act 1977, including sections 1B, 3AAA, 4, 4AA, 4C, 4D and 4E. Ultimately, the court found that the risk of the applicant committing further offences or failing to appear in court outweighed any potential compelling reason for the grant of bail, and accordingly, the application was refused. No further orders were made in relation to the matter.

Orders