Re Farah - [2024] VSC 196

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0128

IN THE MATTER of the Bail Act 1977

– and –

IN THE MATTER of an Application for Bail by Abdisamad FARAH

– and –

IN THE MATTER OF an Application for Revocation of Bail by the Director of Public Prosecutions

BETWEEN:

Abdisamad FARAH

and

DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2024
DATE OF JUDGMENT:	27 March 2024
DATE OF REASONS:	23 April 2024
CASE MAY BE CITED AS:	Re Farah
MEDIUM NEUTRAL CITATION:	[2024] VSC 196

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CRIMINAL LAW — Application for bail — Application to revoke bail — Application to vary bail — Heard together — Re Dukic [2018] VSC 664 — Charges of murder and kidnapping — Further offending leading to charges of possessing an imitation firearm, possessing a drug of dependence, committing an indictable offence whilst on bail, contravening a condition of bail, state false name —Bail application denied, bail revocation application granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Accused	J Poole	McNally & Gleeson Lawyers
For the Director of Public Prosecutions	G Hayward	Office of Public Prosecutions

HIS HONOUR:

Introduction

Abdisamad Farah [‘Mr Farah’] is one of eight accused charged by Detective Senior Constable Thomas Stalder with the murder of Khalid Mahat [‘the deceased’] and the kidnapping of Abdulahi Abdi. The matter is next listed for directions hearing in this court on 12 April 2024 before Freeman JR. The trial is listed to commence on 5 August 2024. Mr Farah is currently on bail in this proceeding [‘the informant Stalder matter’]. On 12 February 2024, Mr Farah was remanded on new charges by Constable Jacob Archibald, which was listed in the Heidelberg Magistrates’ court on 18 March 2024 [‘the informant Archibald matter’], and adjourned on this date for further mention.

There are three applications presently before the court:

(a) an application to vary bail filed in the informant Stalder matter by Mr Farah on 9 February 2024 (i.e. prior to Mr Farah’s remand in the informant Archibald matter) [‘the variation application’];

(b) an application to revoke bail filed in the informant Stalder matter by the Director of Public Prosecutions [‘the Director’] on 16 February 2024 [‘the revocation application’]; and

(c) an application for bail filed in the informant Archibald matter by Mr Farah on 7 March 2024 [‘the bail application’].

In Re Dukic,[1] the court considered an application for bail and an application to revoke bail simultaneously, in circumstances where the Director had filed the latter application in light of Mr Dukic’s remand on new charges. The court found that consideration of both applications together was ‘in the public interest to save time and unnecessary expense’.[2] In that case, the court also noted that the arguments of both parties were ‘largely common to both applications before the Court’.[3]
[1][2018] VSC 664.
[2]Ibid…

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 Farah

Details

AGLC: Re Farah [2024] VSC 196
Case: [2024] VSC 196
Decision Date: 27 March 2024

CaseChat Overview and Summary

In the County Court of Victoria, the matter of Re Farah involved an application by the prosecution to revoke the bail of the defendant, who was already out on bail for serious charges including murder and kidnapping. The prosecution also sought to vary the bail conditions due to the defendant's recent offending while on bail, which included charges of possessing an imitation firearm, possessing a drug of dependence, committing an indictable offence while on bail, contravening a condition of bail, and providing a false name to a police officer. The court was required to determine whether the defendant's recent offending warranted the revocation of bail and, if so, whether varying the bail conditions would be appropriate.

The court considered whether the defendant's recent offending demonstrated a failure to comply with the conditions of bail or posed a risk to the community if released on bail. The court examined the seriousness of the new charges, the defendant's history of offending while on bail, and the impact of his actions on the community. The court also weighed the potential risk to the community if the defendant were to be released on bail against the presumption in favour of bail under the Bail Act 1977 (Vic). The court found that the defendant's recent offending, particularly the possession of an imitation firearm and committing an indictable offence while on bail, demonstrated a failure to comply with the conditions of bail and a risk to the community if released on bail.

The court found that the defendant's recent offending warranted the revocation of bail. The court held that the defendant's actions demonstrated a disregard for the conditions of bail and posed a significant risk to the community if released on bail. The court also found that varying the bail conditions would not be sufficient to address the risks posed by the defendant. The court therefore revoked the defendant's bail and ordered that he be remanded in custody.

Orders