Re Bacash - [2020] VSC 365

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0113

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by Karl BACASH

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2020, 2 June 2020 & 16 June 2020
DATE OF JUDGMENT:	19 June 2020
CASE MAY BE CITED AS:	Re Bacash
MEDIUM NEUTRAL CITATION:	[2020] VSC 365

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CRIMINAL LAW – Application for bail – 17 Charges - Serious sexual assaults – Rape – Administration of an intoxicating substance for a sexual purpose – Theft – Receive stolen goods – Deal with property suspected of proceeds of crime – Possess drug of dependence (morphine) – Commit indictable offence (possess drug of dependence) whilst on bail – Serious alleged offending – Three separate rape investigations – Victims not known to one another – Applicant targeting vulnerable, intoxicated females in early hours of the morning in inner-city Melbourne – Applicant must demonstrate a compelling reason exists to justify granting bail - Ill elderly mother – No prior criminal history – Compelling reason satisfied – Unacceptable risk test ss 4E(1) and 4E(2) of Bail Act 1977 satisfied – Bail granted with strict conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W. Toohey	Amad and Amad Lawyers
For the Respondent	Ms J. Piggot	Office of Public Prosecutions

HIS HONOUR:

Introduction

On 11 May 2020, Karl Bacash (‘the applicant’) was arrested and charged with a total of 17 offences primarily arising out of three alleged incidents of sexual offending against three complainants between April 2017 and February 2018, and search warrants executed at the applicant’s home on 22 February 2018, 26 February 2020 and 11 May 2020. The applicant faces charges of sexual assault (six counts),[1] rape (four counts),[2] administrating an intoxicating substance for a sexual purpose (two counts),[3] theft,[4] handling stolen goods,[5] dealing with property suspected of being proceeds of crime,[6] possessing a drug of dependence (morphine),[7] and committing an indictable offence while on bail.[8]
[1]Contrary to s 40 of the Crimes Act 1958 (Vic).
[2]Ibid s 38.
[3]Ibid s 46.
[4]Ibid s 74.
[5]Ibid s 88(1).
[6]Ibid s 195.
[7]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’).
[8]Contrary to s 30B of the Bail Act 1977 (‘Bail Act’).

Relevantly, on 26 February 2020, the applicant was charged by the same Informant in the present matter with two counts of possessing a drug of dependence (cocaine), arising out of the aforementioned search warrants. He was released on police bail the same day to appear at the Heidelberg Magistrate’s Court on 8 July 2020, with conditions including that he obey a curfew between 10.00pm and 6.00am between Thursdays and Sundays. Charges 16 and 17 relate to the alleged possession of morphine located at the applicant’s premises during the execution of a search warrant on 11 May 2020. Hence, at the time of this alleged offending,…

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 Bacash

Details

AGLC: Re Bacash [2020] VSC 365
Case: [2020] VSC 365
Decision Date: 19 June 2020

CaseChat Overview and Summary

The case of Re Bacash involved the applicant, Bacash, who was facing 17 charges including serious sexual assaults, rape, administering an intoxicating substance for sexual purposes, theft, receiving stolen goods, dealing with property suspected of being proceeds of crime, and possession of a drug of dependence (morphine). The charges arose from three separate rape investigations, where the applicant allegedly targeted vulnerable, intoxicated females in the early hours of the morning in inner-city Melbourne. The legal issue before the court was whether Bacash should be granted bail, given the serious nature of the charges against him.

The court considered whether Bacash could demonstrate a compelling reason to justify the granting of bail. The applicant argued that he needed to care for his ill, elderly mother, and he had no prior criminal history. The court found that the applicant had provided a compelling reason to justify bail, as his need to care for his mother was significant. Furthermore, the court determined that the unacceptable risk test under sections 4E(1) and 4E(2) of the Bail Act 1977 was satisfied, given the strict conditions imposed on his bail. The court concluded that Bacash was granted bail with strict conditions to ensure the safety of the community and to prevent any risk of reoffending.

The court set out strict bail conditions to mitigate any risk posed by Bacash. These included residing at a specified address, adhering to a curfew, and complying with electronic monitoring. The court also imposed conditions to ensure that Bacash did not have any contact with the victims or potential victims and that he abstained from the use of any intoxicating substances. The court emphasised the seriousness of the charges and the need for Bacash to demonstrate his commitment to complying with the bail conditions. The strict conditions imposed aimed to balance the rights of the applicant with the need to protect the community and prevent any risk of reoffending.

The final orders of the court included the granting of bail to Bacash with the aforementioned strict conditions. The court emphasised that the bail conditions were necessary to ensure the safety of the community and to prevent any risk of reoffending. The court also ordered that Bacash must comply with all the conditions set out in the bail order and that any breach of the conditions would result in the revocation of bail and the applicant's immediate arrest. The court made it clear that the granting of bail was not an indication of the applicant's guilt or innocence, but rather a decision based on the specific circumstances of the case.

Orders