Re Ahmed Hablas
[2010] VSC 429
•17 September 2010
| IN THE SUPREME COURT OF VICTORIA CRIMINAL DIVISION | Not Restricted |
S CR 2010 0149
IN THE MATTER of the BailAct1977 (Vic)
and
IN THE MATTER of an Application for bail by AHMED HABLAS
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2010 | |
DATE OF JUDGMENT: | 17 September 2010 | |
CASE MAY BE CITED AS: | Re Ahmed Hablas | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 429 | |
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CRIMINAL LAW – Bail application – Charge of murder – Whether exceptional circumstances established.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Dixon SC | Tait Lawyers |
| For the Respondent | Mr G Horgan SC | Solicitor for Public Prosecutions |
HER HONOUR:
Mr Hablas has been charged with the murder of Mr Mohammed Haddara on 20 June 2009. He has applied for bail. Because he faces a murder charge, the Bail Act 1977 requires him to demonstrate that there are exceptional circumstances justifying the grant of bail.
Mr Hablas was taken into custody on 28 June 2010 and his next court appearance is on 11 October 2010 for a committal mention. He relies upon a combination of matters, which he says amount to the necessary exceptional circumstances in this case.
Mr Hablas first argues that the prosecution case is weak, because it will be difficult for the Crown to prove that he did not act in self-defence when he shot Mr Haddara.
He then relies upon the circumstances in which he is spending his time in Barwon Prison. He points out that, although he is allowed out of his cell for six or seven hours a day, he has no contact with any other prisoners apart from the one in the next cell and he must speak to that prisoner through a glass partition. These conditions have been imposed by prison authorities for his own protection after he was moved from the Melbourne Remand Centre where he had been threatened by a member of the Haddara family who had, unfortunately, been placed in an adjacent cell.
Mr Hablas submits that there will be a significant delay before his trial, anticipating that there will not be a committal hearing before February or March 2011.
The Director opposes a grant of bail. He argues that Mr Hablas has not established the necessary exceptional circumstances. He says that the Court could not conclude that the prosecution case was a weak one at this stage when the accused man is relying upon a self serving statement to the effect that he was acting in self defence and where various accounts of events have not been tested, even in a contested committal hearing. He says that the application is premature and that even the length of any delay has not been established. He brings no evidence to contradict what senior counsel for Mr Hablas said about his conditions of incarceration.
The Director then argues that, even if the Court thought that there were the necessary exceptional circumstances, bail ought not be granted because there is an unacceptable risk that Mr Hablas might offend or flee.
Exceptional circumstances
The first issue is as to whether Mr Hablas has established exceptional circumstances justifying bail.
I note that good prospects of a verdict less than murder have been found by this Court to amount to exceptional circumstances justifying bail.[1] There is also no doubt that the prospect of delay has alone or in combination with other matters, such as unusually harsh conditions of confinement, been held to establish exceptional circumstances.[2] A combination of circumstances can constitute exceptional circumstances and a decision needs to be made on the facts of each individual case.
[1]Memery [2000] VSC 495; see Re Wells [2008] VSC 29.
[2]See Dale v DPP[2009] VSCA 212.
It would be unwise for me to make detailed observations about the facts and any likely conclusions that a jury might draw from them. Nevertheless, I must consider Mr Hablas’s argument that the prosecution case is so weak that there are exceptional circumstances in this case justifying the grant of bail.
Mr Hablas relies upon an affidavit sworn by his former solicitor Mr Swanwick on 30 August 2010. Mr Swanwick says that he met Mr Hablas on the morning of 21 June 2009, the day after Mr Haddara died. They prepared a written statement describing Mr Hablas’s version of events and took it to police. Senior counsel for the prosecution points out, however, that when Mr Hablas was questioned by police, he confirmed the contents of that statement but otherwise made no comment in response to questions.
In his statement, Mr Hablas claims to have been forced into a car by Mr Haddara and his cousin, Mr Ghazi Haddara, on the evening of 20 June. He claims that Mr Haddara assaulted him, threatened him and stole from him as he drove around Altona. He says that Mr Mahommed Haddara had a gun. The car stopped in Fifth Avenue, Altona. Mr Hablas says he ran out and was followed by Mr Mahommed Haddara who caught him. He turned and saw Mr Haddara’s gun pointed at his face. They wrestled for control of the gun. Mr Hablas says he turned Mr Haddarra, holding him from behind. The gun went off. Mr Hablas found the gun in his hand. Mr Haddara was facing him, about a metre away, when Mr Hablas fired several times at him, believing that he had to stop Mr Haddara from killing him. He pulled the trigger to save himself. He then ran from the scene, throwing the gun over the side of a footbridge over a freeway as he ran. He ended up at a friend’s house and would not disclose the name of his friend for fear of repercussions. There, he destroyed his clothing.
Mr Ghazi Haddara gave police several accounts of events which differed to some extent from each other. He gave a quite different account to that from Mr Hablas.
Mr Haddara also said that his cousin, Mr Mahommed Haddara, told him that he wanted to see Mr Hablas because he and “his mate”, Ali Chaouk, had shot Mark, a friend of Mahommed’s. Mr Ghazi Haddara and Mr Mohammed Haddara picked Mr Hablas up in a car and drove around Altona whilst Mr Mahommed Haddara threatened, assaulted and stole from Mr Hablas. Mr Ghazi Haddara denies seeing any gun in the car and denies ever seeing Mr Haddara with a gun.
Mr Hablas and Mr Ghazi Haddara both said that there was a telephone call from Mr Ali Chaouk whilst the car was being driven around. Mr Hablas says that Mr Haddara was threatening to kill him and repeated those threats to Mr Ali Chaouk. Mr Ghazi Haddara says that there was a telephone conversation with Mr Chaouk which resulted in Mr Chaouk and Mr Mohammed Haddara agreeing to meet near a park, which Mr Ghazi Haddara described as a “footy oval” on Fifth Avenue, Altona, so that they could “go one-on-one”.
Mr Ghazi Haddara says that they saw what appeared to be Mr Chaouk’s car approaching. Mr Mohammed Haddara got out of the car in Fifth Avenue, telling Mr Ghazi Haddara to drive Mr Hablas back to the Haddara house.
Mr Ghazi Haddara says he drove away with Mr Hablas, but that shortly afterwards, Mr Hablas forced him to stop the car and got out. Mr Haddara has given differing accounts as to the direction in which he says Mr Hablas ran after escaping from the car. Twice, he described Mr Hablas as running back in the direction of the oval. Once, he has said that he was moving more away from it.
Mr Ghazi Haddara maintains that he picked up Mr Mohammed Haddara’s brother, Fadi, to assist in what he anticipated would be a fight between Mr Haddara and Mr Chaouk. They returned to the scene to find Mr Haddara lying mortally wounded on the footpath.
Although Mr Hablas appears to have claimed that he shot Mr Haddara whilst facing him, the analysis of gun shot residue indicates that the shots fired at Mr Haddara’s torso were from behind and that the shooter was at least two barrel lengths away from him. It is also reported that at least one shot was fired into his back when he was on the ground.
There are clearly inconsistencies in the evidence, although Mr Hablas’ gold chain and mobile phone were found on the deceased, which is consistent with part of Mr Hablas’ account. The alleged weapon has not been found and DNA and fingerprint testing, which might have added force to Mr Hablas’ version of the gun being produced by Mr Haddara, has not taken place. Mr Hablas has also destroyed his clothing, which might have been tested for gun shot residue to perhaps support his account.
I am not satisfied that the prosecution case is weak, given the inconsistencies between the accounts of events and, in particular, the apparent inconsistency between the forensic evidence that Mr Haddara was shot in the back and Mr Hablas’ account of the circumstances. I recognise that the circumstances might have been fluid, as senior counsel submitted, but find the evidence about shots in the back somewhat at odds with Mr Hablas’s claim that he feared for his life at the time. I also find Mr Hablas’s account of the circumstances of the chase when he had his back to Mr Haddara, followed by his fear of being shot when Mr Haddara was eventually facing him, somewhat implausible.
I am not persuaded that there are good prospects of a verdict less than murder at this point when the evidence has not been tested: in Mr Hablas’s case, even by appropriate questioning by police in an interview.
As far as the circumstances of Mr Hablas’s incarceration are concerned, there is no evidence as to any detrimental effects upon his physical or mental health at this stage. I do not consider the conditions imposed for his own safety to be so onerous as to amount to exceptional circumstances in combination with any possible delay or an assessment of the strength of the prosecution case.
As far as delay is concerned, I agree with senior counsel for the prosecution that more will be known after the committal mention date and that Mr Hablas has not established that there will be relevant undue or significant delay before his trial.
Mr Hablas has not persuaded me that there are exceptional circumstances justifying a grant of bail. The evidence as to him being able to relocate himself away from family and the Haddara family, at a now secret location, does not alter my view. Nor does the availability of a surety of $100,000.
Unacceptable risks
The prosecution also argues that, even if the Court were to consider that Mr Hablas had made out the necessary exceptional circumstances justifying bail, the materials establish an unacceptable risk that he would commit an offence or flee if granted bail. There is no need for me to come to a concluded view in relation to either of those contentions, given my conclusion with regard to exceptional circumstances.
The application will be refused.
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