Re Chkhaidem - [2009] VSC 216

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…

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 Chkhaidem

Details

AGLC: Re Chkhaidem [2009] VSC 216
Case: [2009] VSC 216
Decision Date: 1 April 2009

CaseChat Overview and Summary

The matter before the Court involved an application for bail by the respondent, Chkhaidem. The applicant was previously denied bail and had a history of violent behaviour, including repeated assaults on his ex-wife. The latest incidents involved breaching an intervention order and bail conditions, resulting in actual bodily harm. The Court had to determine whether to grant bail considering the respondent's criminal history and the prosecution's case.

The primary legal issue before the Court was whether the respondent's repeated acts of violence and contempt for court orders could be sufficiently mitigated by proposed bail conditions. The Court also needed to assess whether the proposed bail conditions were sufficient to justify granting bail, and whether the probation period of pre-sentence detention was disproportionate to the likely ultimate penalty. The Court considered the severity and frequency of the respondent's violent behaviour, and the prosecution's case, which was not considered weak.

The Court found that the prosecution's case was strong, and the respondent's violent history and contempt for court orders were significant factors against granting bail. The proposed bail conditions were not deemed sufficient to adequately address the respondent's risk of reoffending. The Court also concluded that the probation period of pre-sentence detention was not disproportionate to the likely ultimate penalty, given the respondent's history of violent behaviour. Based on these considerations, the Court refused the bail application.

The Court ordered that the respondent remain in custody pending the finalisation of his sentence. This decision reflects the Court's concern for public safety and the need to deter the respondent from further violent behaviour.

Orders