Re Al-Dimachki (Bail Application) - [2015] VSC 565

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0139

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by Majed AL-DIMACHKI

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2015
DATE OF JUDGMENT:	13 October 2015
CASE MAY BE CITED AS:	Re Al-Dimachki (Bail Application)
MEDIUM NEUTRAL CITATION:	[2015] VSC 565

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CRIMINAL LAW – Bail – Drug trafficking, possession of a handgun and related charges – Applicant required to ‘show cause’ – Whether detention justified – Whether unacceptable risk – Strict bail conditions proposed – Residential drug treatment condition – Compliance will make risk acceptable – Bail granted on strict conditions – Bail Act 1977 s 4(2)(d)(i), s4(4)(a) and s 4(4)(d).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Austin (Solicitor)	Ms Moricia Vrymoet, Australian Legal practitioner for Victoria Police
For the Accused	Mr J Hannebery	James Dowsley & Associates

HIS HONOUR:

Majed Al-Dimachki, the applicant, was refused bail in the Magistrates’ Court at Dandenong on 9 September 2015. He now seeks bail from this Court.

The applicant is aged 30 years.

In recent years, he has attracted prior convictions for dangerous driving, driving whilst suspended, and possession and use of a drug of dependence (2012); importing a prohibited import and make false Customs entry (2013); and failing to answer bail, speeding, using a mobile telephone in vehicle and failing to produce a license (2014).

On 9 July 2015 the applicant was charged with four charges of trafficking,[1] and four charges of possession,[2] of a drug of dependence (methylamphetamine, 1,4-Butanediol, ecstasy and amphetamine); one charge of negligently dealing with the proceeds of crime;[3] one charge of handling stolen goods;[4] one charge of being a prohibited person in possession of a firearm;[5] one charge of possessing an unregistered general category handgun;[6] one charge of being an unlicensed person failing to store firearms in a secure manner;[7] one charge of possessing ammunition without a license;[8] and one charge of committing an indictable offence whilst on bail[9] (‘the present offences’).
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AC.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 73.
[3]Crimes Act 1958, s 194(4).
[4]Crimes Act 1958, s 88(1).
[5]Firearms Act 1996, s 5(1).
[6]Firearms Act 1996, s 7B(1).
[7]Firearms Act 1996, s 129A.
[8]Firearms Act 1996, s 124(1).
[9]Bail Act 1977, s 30B.

The respondent opposes bail. It is submitted, first, that by virtue of s 4(4)(a) of the Bail Act 1977 (‘the Act’), the applicant is required to show cause why his detention in custody is not justified, in that he has been charged with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence; secondly, that by virtue of s 4(4)(d) of the Act, the applicant is required to show…

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 Al-Dimachki (Bail Application)

Details

AGLC: Re Al-Dimachki (Bail Application) [2015] VSC 565
Case: [2015] VSC 565
Decision Date: 13 October 2015

CaseChat Overview and Summary

In the case of Re Al-Dimachki, the applicant sought bail in relation to charges including drug trafficking and possession of a handgun. The application was heard in the Supreme Court of Victoria. The primary issue before the court was whether the applicant could show sufficient cause to justify his release on bail, given the serious nature of the charges. Additionally, the court had to consider whether the risk of the applicant reoffending or failing to comply with bail conditions was unacceptable.

The court noted the gravity of the charges against the applicant, including drug trafficking and possession of a dangerous weapon. It was emphasised that the applicant was required to demonstrate a compelling reason for bail, given the potential harm to the community if released without stringent conditions. The court considered the risk of reoffending and the likelihood of the applicant failing to comply with bail terms. It was concluded that while the risk was significant, it could be managed through strict bail conditions. Specifically, the court proposed a residential drug treatment condition which, if complied with, would mitigate the risk of reoffending.

In granting bail, the court outlined stringent conditions to ensure public safety. These conditions included the applicant's participation in a residential drug treatment program, regular reporting to a bail justice, and strict limitations on movement. The court found that adherence to these conditions would make the risk of reoffending acceptable. Consequently, the applicant was granted bail subject to these strict conditions. The court's decision was based on the provisions of the Bail Act 1977, particularly sections 4(2)(d)(i), 4(4)(a), and 4(4)(d).

Orders