Re an application for bail by Fadi Afram - [2018] VSC 708

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

Not Restricted

CRIMINAL DIVISION

S CR 2018 0268

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by FADI AFRAM

---

JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2018
DATE OF JUDGMENT:	19 November 2018
CASE MAY BE CITED AS:	Re Afram
MEDIUM NEUTRAL CITATION:	[2018] VSC 708

---

CRIMINAL LAW – Bail – Aggravated home invasion and armed robbery – Use of handgun - Requirement to show exceptional circumstances exist that justify the grant of bail – Combination of circumstances relied on, including availability of residential treatment for drug addiction of applicant – Previous breach of conditions of bail in this matter – Serious prior conviction for being a prohibited in possession of firearms – Exceptional circumstances not shown – Unacceptable risk in any event – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4AA, 4A and 4E.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Furstenberg	Furstenberg Law
For the Respondent	Mr S Devlin	Mr J Cain, Office of Public Prosecutions

HIS HONOUR:

Introduction

The applicant applies for bail in respect of charges he faces for offending alleged to have occurred on 21 March 2017 (‘the 2017 charges’). The charges arise from a violent home invasion which occurred in Bundoora. One of the charges is of aggravated home invasion, an offence which is contained within Schedule 1 of the Bail Act 1977 (‘the Act’). As a result, it is common ground between the parties that bail must be refused unless I am satisfied that exceptional circumstances exist that justify the grant of bail.[1]
[1]Bail Act 1977, s 4A(1A).

Procedural history

The applicant was arrested in respect of the current offences on 4 July 2017. He was charged and remanded in custody. On 11 October 2017, he made an unsuccessful application for bail in the Magistrates’ Court. At a committal hearing on 11 January 2018, the applicant was committed for trial in the County Court on 11 charges. He made a further application for bail following the committal for trial. Bail was granted on stringent conditions, including a condition that he not use drugs of dependence. At an Initial Directions Hearing held in the County Court, the trial was set down for commencement on 20 August 2018.

On Wednesday 2 May 2018, the applicant was found in an unconscious state in a motor vehicle in the Melbourne CBD having overdosed on drugs. An ambulance and police were called, and the applicant was taken to St Vincent’s Hospital. He was subsequently charged with trafficking multiple drugs, committing an indictable offence on bail, contravening bail conditions, and other offences (‘the 2018 charges’).

On 11 May 2018, the Office of Public Prosecutions made an application to the County Court for the revocation of the applicant’s bail on the 2017 charges. Judge Hannan revoked bail on those matters.

On 16 May 2018, bail was granted to the applicant…

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.

Keep reading for free

Create a free CaseChat account to read Re an application for bail by Fadi Afram and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSC 708
Decision Date: 19 November 2018

CaseChat Overview and Summary

In the matter of an application for bail by Fadi Afram, the applicant was facing charges of aggravated home invasion and armed robbery. The case was heard in the Supreme Court of New South Wales. The applicant had been accused of committing these crimes while armed with a handgun, which raised significant concerns about the safety of the community and potential witnesses. The court was tasked with determining whether exceptional circumstances existed that would justify the grant of bail, considering the nature and seriousness of the charges, the risk of flight, and the risk of offending while on bail.

The legal issues before the court involved assessing whether the applicant could demonstrate exceptional circumstances under the Bail Act 1977 that would warrant the grant of bail. The court had to consider the applicant’s history, including his previous breach of bail conditions in this matter, as well as his serious prior conviction for being a prohibited person in possession of firearms. The applicant argued that his availability for residential treatment for drug addiction constituted an exceptional circumstance. However, the court also had to weigh the risk posed by the applicant to the community and any witnesses, given the violent nature of the alleged crimes.

The court concluded that the combination of the applicant’s criminal history, the seriousness of the current charges, and the risk he posed to the community and potential witnesses meant that exceptional circumstances had not been shown. The applicant’s prior breach of bail conditions and his history with firearms were particularly significant factors. The court found that the risk of the applicant reoffending while on bail was too great to justify granting bail. Therefore, the application for bail was refused. The court’s decision was based on a careful consideration of the statutory provisions of the Bail Act 1977, including sections 1B, 3AAA, 4AA, 4A, and 4E, which guide the assessment of bail applications in cases involving serious criminal charges.

Orders