IN THE MATTER of an Application for Bail by FADI DIAB
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JUDGE:
BEACH JA
WHERE HELD:
Melbourne
DATE OF HEARING:
21 April 2020
DATE OF JUDGMENT:
21 April 2020
CASE MAY BE CITED AS:
Re Diab
MEDIUM NEUTRAL CITATION:
[2020] VSC 196
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CRIMINAL LAW – Bail – Charges of attempted murder, discharging a firearm being reckless as to the safety of a police officer, common assault, being a prohibited person in possession of a general category handgun, theft of a motor vehicle, going equipped to steal, failing to store cartridge ammunition in a prescribed manner, and handling stolen goods – Requirement to show exceptional circumstances – Whether exceptional circumstances made out – Whether an unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail – Exceptional circumstances not made out – Unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4A and 4E.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr P Dunn QC
Marcevski Lawyers
For the Respondent
Ms A Moran
Ms A Hogan, Solicitor for Public Prosecutions
HIS HONOUR:
The applicant is currently facing the following charges:
·attempted murder (two charges), contrary to s 321M of the Crimes Act 1958;
·discharging a firearm being reckless as to the safety of a police officer (two charges), contrary to s 31C(1) of the Crimes Act;
·common assault of a police officer on duty while having a firearm readily available (two charges), contrary to s 320A(2) of the Crimes Act;
·being a non-prohibited person in possession of a general category handgun, contrary to s 7(1) of the Firearms Act 1996;
·theft of a motor vehicle (two charges) contrary to s 74 of the Crimes Act;
·going equipped to steal/cheat, contrary to s 91(1) of the Crimes Act;
·failing to store cartridge ammunition for a category A or B longarm in the manner required by the provisions of the Firearms Act, contrary to s 121(1A) of that Act; and
·handling stolen goods, contrary to s 88 of the Crimes Act.
On 24 September 2019, the applicant was arrested and taken into custody. The following day (25 September), the applicant made an application in the Magistrates’ Court for bail. Having been accused of a Schedule 1 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — attempted murder — pursuant to s 4A of the Act, the magistrate was required (and this Court is required) to refuse bail ‘unless satisfied that exceptional circumstances exist that justify the grant of bail’.
The magistrate refused bail, not being satisfied that the applicant had shown exceptional circumstances. The applicant now applies for bail in this Court.
The alleged offending
The Crown case may be briefly summarised as follows.
At 9:00 pm on 11 September…
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.
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Details
AGLC
Re Diab [2020] VSC 196
Case
[2020] VSC 196
Decision Date
CaseChat Overview and Summary
The case of Re Diab before the Court involved the defendant, Diab, who faced multiple charges including attempted murder, discharging a firearm recklessly towards a police officer, common assault, possession of a handgun as a prohibited person, theft of a motor vehicle, going equipped to steal, failing to store cartridge ammunition properly, and handling stolen goods. The defendant applied for bail, which the Magistrate refused. Diab appealed that decision to the Supreme Court.
The legal issues the Court was required to determine centred on whether the exceptional circumstances necessary for bail were demonstrated by Diab. The Court also needed to assess whether there was an unacceptable risk of Diab endangering the safety or welfare of any person, or committing an offence while on bail. The Court was tasked with interpreting the Bail Act 1977, specifically sections 1B, 3AAA, 4A, and 4E, in light of the charges and the evidence presented.
The Court held that Diab had not shown exceptional circumstances warranting bail. The severity of the charges, particularly the attempted murder and the reckless discharge of a firearm, indicated a high risk to public safety. The Court found that there was a significant risk that Diab could commit further offences if released on bail. This risk outweighed any arguments for leniency based on the exceptional circumstances criterion. Consequently, the appeal was dismissed, and Diab remained in custody.