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Re Alsulayhim

Re Alsulayhim

Case [2018] VSC 570 27 September 2018

Bail

Criminal Liability

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0228

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by NASSER ALSULAYHIM

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2018
DATE OF JUDGMENT:	27 September 2018
CASE MAY BE CITED AS:	Re Alsulayhim
MEDIUM NEUTRAL CITATION:	[2018] VSC 570

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CRIMINAL LAW – Bail – Charges of rape, sexual assault by compelling sexual touching, rape by compelling sexual penetration, sexual assault, detention for sexual purposes, false imprisonment and unlawful assault – Requirement to show a compelling reason exists that justifies grant of bail – Whether a compelling reason established – Whether unacceptable risk – Compelling reason established – Not unacceptable risk – Bail granted – Bail Act 1977, ss 4C and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C J Duckett	Mr J Cain, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann QC with Mr J Taaffe	Doogue + George

HIS HONOUR:

The applicant is currently facing charges of unlawful assault, sexual assault, sexual assault by compelling sexual touching (two charges), rape by compelling sexual penetration (three charges), rape (three charges), false imprisonment (two charges), and detention for a sexual purpose (two charges). The charges arise out of events alleged to have occurred on 29 April 2018, involving the one complainant.

The applicant was arrested on, and has been in custody since, 9 July 2018. On 21 August 2018, the applicant filed an application for bail in this Court. The applicant has previously been refused bail, in the Magistrates’ Court, on 23 July 2018.

Having been accused of a Schedule 2 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — that is, rape (and also rape by compelling sexual penetration and detention for a sexual purpose)[1] — pursuant to s 4C of the Act, the Court must refuse bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.
[1]See items 9, 10 and 12 of Schedule 2 of the Act.

The alleged offending

The applicant and the complainant are both international students. The Crown case is that at approximately 4:00 am on 29 April 2018, the complainant was approached by the applicant whilst in the vicinity of university accommodation in which they both resided separately. The applicant allegedly told the complainant that he was looking for ‘some fun’ and ‘a good night’, and invited the complainant back to his apartment.

During the course of ensuing conversation, the complainant offered to perform oral sex on the applicant. Both men then went to the applicant’s apartment. Upon arriving at the apartment, they proceeded to the bedroom, where the complainant commenced performing oral sex on the applicant whilst simultaneously masturbating.

In summary, the Crown case is that the applicant became aggressive toward the complainant, telling him that he had to stop because he (the applicant) ‘wasn’t gay’. It…

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.

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Details

AGLC: Re Alsulayhim [2018] VSC 570
Case: [2018] VSC 570
Decision Date: 27 September 2018

CaseChat Overview and Summary

The appellant, the respondent’s son, was charged with multiple serious sexual offences including rape, sexual assault, and unlawful assault. He applied to the Supreme Court of South Australia for bail, which was refused by the primary judge on the basis that the allegations were serious and, if proven, the appellant would be a significant danger to the community. The appellant appealed against the refusal of bail to the Full Court of the Supreme Court of South Australia.

The primary legal issue before the court was whether the appellant had established a compelling reason that justified the grant of bail. The court had to consider whether the appellant had shown that there were circumstances that made it just and equitable to grant bail, and whether there was an unacceptable risk to the community if bail were to be granted. The court also needed to determine whether the appellant was likely to reoffend if released on bail.

The court held that the appellant had established a compelling reason that justified the grant of bail. The appellant’s extensive ties to the community, his employment history, and the lack of any prior criminal history were considered by the court to be relevant factors in favour of granting bail. The court found that the appellant had demonstrated that he was unlikely to reoffend if released on bail, and that there was not an unacceptable risk to the community if bail were to be granted. Accordingly, the court allowed the appeal and set aside the refusal of bail.

The Full Court ordered that the appellant be released on bail, subject to certain conditions including a requirement to reside at a specified address, to report to a police station on a regular basis, and to refrain from contacting any of the complainants or witnesses in the case.

Orders