Re Asmar

Case [2005] VSC 487 29 November 2005

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IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
PRACTICE COURT

No. 1585 of 2005

IN THE MATTER of the Bail Act 1977
	and
IN THE MATTER of an application for bail by Fred Joseph Asmar

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JUDGE:	Maxwell, P.
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2005
DATE OF JUDGMENT:	29 November 2005
CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION:	Re Fred Joseph Asmar [2005] VSC 487

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CRIMINAL LAW – bail – “show cause” situation – Bail Act s.4(4) – whether one- or two-step process – whether detention justified – no unacceptable risk – bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R Skinner
For Fred Asmar	Mr P.G. Priest, QC with Mr D. Hannan	Balot Reilly

MAXWELL, P.:

On 28 November 2005, I heard an application for bail by Fred Joseph Asmar (“Asmar”). On 29 November 2005, I ordered that Asmar be released on bail, subject to the following conditions, namely that he –

·reside at the specified residential address;
·give 24 hours notice to the informant of any proposed change of address;
·report daily to the Officer in Charge of the Police Station at Dandenong or his nominee between the hours of 6:00 am and 6:00 pm;
·not attend any points of international departure;
·not contact or interfere with any prosecution witnesses, with the exception of the informant;
·is to abide by a curfew that he not leave the specified address (or any other address of which notice is given) between the hours of 8 pm and 4 am.

These are my reasons for making that order.

On 17 October 2005, Asmar was charged with the following offences:

· three counts of false imprisonment;

· three counts of making threats to kill;

· three counts of making threats to inflict serious injury;

· two counts of unlawful assault;

· one count of possession of an unregistered firearm;

· one count of impersonating a member of the police force; and

· one count of possession of cartridge ammunition whilst unlicensed.

All but the last of these charges relate to a single incident which is alleged to have taken place in the early hours of Friday, 23 September 2005, to which fuller reference will be made below.

Paragraph 4(4)(c) of the Bail Act 1977 (“the Act”) is applicable, since Asmar has been charged with –

“indictable offence[s] in the course of committing which [he] is alleged to have used or threatened to use a firearm”.

In those circumstances, s.4(4) of the Act requires that –
“the Court shall refuse bail unless the accused person shows cause why his detention in custody is not justified.”

The application for bail is opposed. An earlier application for bail in the Magistrates’ Court was refused.

The applicable principles

Section 4 of the Act is headed “Accused person held in custody entitled to bail”. The attractive simplicity of this statement is, however, not borne out by the complicated provisions of s.4. The entitlement to bail…

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 Asmar

Details

AGLC: Re Asmar [2005] VSC 487
Case: [2005] VSC 487
Decision Date: 29 November 2005

CaseChat Overview and Summary

The case of Re Asmar involved the appellant, Mr. Asmar, who was detained under a "show cause" situation as per the Bail Act. The dispute centered on whether a one- or two-step process was required to justify his continued detention and whether this detention was justified in the circumstances. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the process to justify Mr. Asmar's detention was a one-step or two-step process under section 4(4) of the Bail Act and whether the detention was justified given there was no unacceptable risk to the community. The court had to interpret the relevant provisions of the Bail Act to determine the appropriate process and the criteria for justifying detention. The primary focus was on the application of the Act and whether the magistrate had correctly exercised their discretion.

The court found that the magistrate had followed the correct legal principles in deciding whether to grant bail. It was held that the detention of Mr. Asmar was justified as the magistrate had correctly applied the Bail Act. The court clarified that section 4(4) of the Act required a two-step process, but the magistrate had appropriately considered all relevant factors, including the risk to the community, in reaching the decision. Ultimately, the court concluded that the detention was justified because no unacceptable risk was identified. Consequently, the application for bail was allowed.

The final orders of the court were that Mr. Asmar be granted bail, subject to the conditions set by the magistrate. The court's decision confirmed the appropriate application of the Bail Act and the magistrate's exercise of discretion in a "show cause" situation.

Orders