Re Chkhaidem
[2009] VSC 216
•1 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1420 of 2009
IN THE MATTER of an Application for bail by AHMED CHKHAIDEM
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2009 | |
DATE OF RULING: | 1 April 2009 | |
CASE MAY BE CITED AS: | IMO bail application by Ahmed Chkhaidem | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 216 | |
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Bail application – prior refusal to answer bail – evidence of repeated assaults on ex-wife – second assaults in breach of intervention order and of conditions of bail – actual bodily harm – contempt of obligations imposed by courts – prosecution case not weak – proposed conditions not sufficient to justify bail – probation period of pre-sentence detention not disproportionate to likely ultimate penalty – bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Z Garde-Wilson | Ms Z Garde-Wilson |
| For the Crown | Mr D Hannan | Office of Public Prosecutions |
HIS HONOUR:
The applicant in this matter is a 40‑year old male with no prior convictions for violence. He is currently remanded in custody at the Metropolitan Remand Centre. He has the support of his family with respect both to employment and place of residence if he is released on bail.
He faces two sets of charges arising out of alleged incidents involving his ex‑wife. It is first alleged that on 14 May 2008 he attended at the residence of his ex‑wife and over a period of hours verbally abused and physically assaulted her by pushing, slapping and striking her. It is alleged that she was then forced by him to remain in her room, her hands were bound and her mouth taped with electrical tape, while she was continuously abused.
In consequence the applicant was charged with false imprisonment, make threats to kill, unlawful assault (two charges), assault with a weapon and resist police (two charges).
In turn, he was released on bail on 14 May 2008. On 22 May 2008 he was made subject to a 12‑month intervention order. That order will expire on 25 May 2009.
On 11 February 2009 the applicant failed to appear at the Magistrates' Court in relation to the 2008 matters and a warrant was issued for his arrest.
On 12 February 2009 he attended again at the residence of his ex‑wife and stayed the night. It is alleged that on 13 February he assaulted his ex‑wife by kicking her right hand and punching her several times to the right side of the face. It is further alleged he attempted to choke her and made threats to kill and to damage property.
The alleged victim's evidence is corroborated to some significant degree by evidence of neighbours as to complaints of assault immediately after the alleged incident and by the observations of police who, on attending the house, found her in a foetal position clutching her stomach and head. It is further corroborated by a report from the Royal Melbourne Hospital confirming that she had suffered bruising to the side of the head and an injury to her hand.
As a result of these events the applicant was charged with causing serious injury recklessly, causing injury intentionally, causing injury recklessly, breach of intervention order and failing to answer bail.
On 13 February 2009 the applicant was charged and remanded in custody.
On 17 February 2009, at the Magistrates' Court at Melbourne, the applicant was refused bail on the basis that he had not shown cause why his detention in custody was not justified.
The applicant has made no admissions in relation to any of the charges. Both sets of charges are listed for a contest mention at the Magistrates' Court at Broadmeadows on 20 May 2009.
The police brief of evidence has not yet been finalised. Ms Garde‑Wilson submits, and it was not contested, that the matter is unlikely to come on for hearing until approximately four months after the date at which it is listed for mention.
In response to the prosecution case, Ms Garde‑Wilson drew attention to the lack of evidence that the complaint suffered actual injury as a result of the events forming the basis of the first group of charges. She further submitted the evidence of the informant and the report from the Royal Melbourne Hospital do not confirm serious injury to the complainant as a result of the second incident giving rise to charges.
Further, insofar as the charge of breach of intervention order relates in part to telephone contact with the complainant, she points out that such contact was not entirely prohibited by the intervention order. She submits that this aspect of the case is weak. I accept these submissions.
Evidence was called on behalf of the applicant from two of his sisters. The first deposed to the availability of full‑time work for the applicant in the tyre‑fitting business she runs with her husband. I accept that such work is available, whether or not the job would otherwise have existed if it were not for her relationship with the applicant (a matter pursued in cross-examination).
The second sister, who is recently widowed, gave evidence that the applicant could live with her during the period of his bail and again I accept her evidence. I further accept that because she has children that she has a direct interest in his good behaviour during any period of residence with her.
Ms Garde‑Wilson also tendered a letter from the Magistrates' Court Bail Support Program identifying no further particular needs with respect to the applicant other than that he attend for full assessment in relation to substance abuse and alcohol issues.
She also tendered a certificate of participation from VIVAIDS with respect to a one hour seminar relating to understanding harm reduction.
Ms Garde‑Wilson submits that taken together the circumstances of the case are such that the applicant has shown cause for bail to be granted. She emphasises, among other matters, that the offences, if proven, may not in any event result in the imposition of a penalty equivalent to the probable pre‑hearing detention.
She further submits that any risks associated with the grant of bail can be adequately limited by the imposition of strict conditions particularly with respect to place of work, place of residence and with respect to a curfew.
The critical question confronting the court is whether the applicant has shown cause why bail should be granted. (See the decision of Maxwell P in Re Asmar [2005] VSC 487).
In my view there are a series of significant circumstances which, taken in combination, tell against the applicant:
(1) He has previously failed to answer bail;
(2) There is evidence of repeated assaults upon his ex‑wife;
(3) The first assaults are said to have comprised of a protracted episode and the conduct alleged was not merely some temporary loss of control;
(4) The second assaults occurred in breach of an intervention order and in breach of the conditions of a bail order;
(5) The second assaults appear to have occasioned actual bodily harm, although there may be dispute as to the extent of that harm;
(6) The circumstances with respect to the second assaults seem to me to be sufficiently corroborated to mean that the prosecution case is far from weak;
(7) The second assaults having been carried out (assuming they are proven), in breach of an intervention order and the conditions of bail, demonstrate a continuing violent antipathy towards the applicant's ex‑wife and a total contempt for obligations imposed by the courts;
(8) There is some evidence of amphetamine use by the applicant and this tends to confirm that he is at risk of ongoing violent behaviour. Although I place little weight on this factor considered in isolation;
(9) I accept the informant's opinion that there is a real and unacceptable risk of further violence towards the applicant's ex‑wife and of interference with witnesses, including, most obviously, the complainant, in the event that the applicant is released on bail.
In my view, this is not a case of generalised risk of recidivism, but of a demonstrated propensity towards violence in breach of court orders. Further, that propensity is clearly directed towards a particular person, and that person is, of course, the key witness with respect to the charges that the applicant faces.
I come then to the matter which, nevertheless, might justify the grant of bail, that is the question of ultimate penalty.
Having reflected upon the circumstances of the charges which the applicant faces as a whole, I do not accept that it is probable the likely duration of pre‑sentence detention may exceed the realistic probable penalty for the cumulative offences with which the applicant is charged.
I accept that this is potentially a consideration of great significance, for the reasons elaborated by Bongiorno J in the case of Gray v Director of Public Prosecutions [2008] VSC 4, but I do not accept that a delay of the type which is put forward in the present case enables that principle to be presently invoked.
In so saying, however, if it were to emerge that the applicant would not be dealt with within the framework to which reference has been made today, then that would, in my view, potentially amount to a very material change of circumstances to those which present before me.
It follows that the outcome of the mention hearing may well be of serious significance to the question of whether the applicant should remain in custody until the determination of the charges against him.
The other matter to which I should return is the question whether strict conditions, including conditions as to employment, place of residence and a curfew, would be sufficient to ensure that the grant of bail was justified.
In my view, such conditions would not in themselves justify the grant of bail. In so concluding, I have had particular regard to the applicant's previous failure to answer bail, and the fact that the alleged second group of offences occurred in breach of an intervention order, and in breach of bail conditions.
I have also given particular weight to the fact that, in my view, the material before me demonstrates a strong case that the applicant did inflict physical injury to the complainant at the time of the second group of offences. In so saying, of course, I am not expressing any opinion as to what conclusion the trial court may reach on the whole of the evidence before it, I am simply dealing with the matter as it comes before me, in respect of circumstances relevant to the adequacy of conditions to constrain and ensure that the applicant's behaviour be appropriate if bail were granted.
For the above reasons I am disposed to refuse bail, but I again emphasise that the period of pre‑hearing custody to which the applicant may be subjected is a very sensitive issue in his case.
Accordingly, bail will be refused.
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