Re Ahmar-Smith - [2022] VSC 204

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0090

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an application for bail by DARCY AHMAR-SMITH

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2022
DATE OF JUDGMENT:	28 April 2022
CASE MAY BE CITED AS:	Re Ahmar-Smith
MEDIUM NEUTRAL CITATION:	[2022] VSC 204

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CRIMINAL LAW – Application for bail – Exceptional circumstances – Respondent concedes exceptional circumstances exist – Whether applicant an unacceptable risk – Delay in charging applicant – Bail granted with conditions – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4D, 4E and 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Williams	Slade and Parsons
For the Respondent	Mr J Kibel	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Darcy Ahmar-Smith (‘the applicant’) is facing a number of charges in the Magistrates’ Court. The applicant was arrested and charged with unlicensed driving on 6 April 2022. At the same time, he was also charged with other offending that allegedly took place in July 2021. In respect of the July 2021 offending, he is charged with the following: being a prohibited person possessing a firearm; unlicensed person failing to store a firearm in a secure manner; possessing cartridge ammunition without a license; and committing an indictable offence while on bail. He was remanded in custody and an application for bail before a Magistrate was unsuccessful on the basis that the applicant represented an unacceptable risk of committing an offence while on bail.

In respect of the firearms offence that allegedly occurred in July 2021, the informant alleges that police found a homemade firearm behind the driver’s seat and some ammunition in the glove box of a car that had been allegedly driven by the applicant. Police originally believed the car had been stolen by the applicant, but a charge of theft was later withdrawn on the basis that he had purchased the car. It appears that the vendor of the car had also sold it to another person who believed that the applicant had stolen it from him.

The prosecution will allege that traces of the applicant’s DNA have been located on the firearm. In a recorded interview conducted with police on 6 April 2022, the applicant stated that:

(a) the vehicle had been delivered to his residence by another man on 8 July 2021, who he named;

(b) he had seen and touched the firearm and ammunition in the vehicle, and that the firearm belonged to the other person. The applicant made no admission to the ammunition belonging to him; and

(c) he had seen the firearm on a previous occasion, in the other person’s garage in April 2021.

The applicant has some relevant criminal history arising from a single court hearing. On 21 March 2022, the applicant was sentenced in the Heidelberg Magistrates’ Court for dishonesty offences; driving and bail offences; possession of a prohibited weapon, imitation…

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 Ahmar-Smith

Details

AGLC: Re Ahmar-Smith [2022] VSC 204
Case: [2022] VSC 204
Decision Date: 28 April 2022

CaseChat Overview and Summary

The case of Re Ahmar-Smith involved the respondent applying for bail under the Bail Act 1977 (Vic). The applicant, who was being held in custody, sought release pending trial. The court was tasked with determining whether bail should be granted, considering the exceptional circumstances that had led to a significant delay in charging the applicant. The respondent acknowledged the existence of these exceptional circumstances but argued that the applicant posed an unacceptable risk to the community if released on bail.

The primary legal issues before the court were whether the exceptional circumstances were sufficient to warrant bail and whether the applicant's release would pose an unacceptable risk to the community. The court had to weigh the delay in charging against the potential risks of releasing the applicant on bail. Given the respondent's concession regarding the exceptional circumstances, the court focused on whether the applicant was an unacceptable risk and if the delay in charging was a compelling factor in favour of bail.

In reaching its decision, the court examined the provisions of the Bail Act 1977 (Vic) relevant to exceptional circumstances and the risk assessment. It concluded that the exceptional circumstances, coupled with the delay in charging, were significant enough to warrant consideration for bail. The court found that while there was a risk associated with releasing the applicant, it was not insurmountable with appropriate conditions. Consequently, the court granted bail with specified conditions to mitigate the perceived risks.

The final orders of the court were to release the applicant on bail with conditions designed to ensure compliance and to safeguard the community. The court set out specific conditions that the applicant must adhere to while on bail, aiming to balance the rights of the applicant with the need to protect public safety.

Orders