Re Farah
[2018] VSC 649
•30 October 2018
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0232
IN THE MATTER of the Bail Act 1977 v IN THE MATTER of an Application for Bail by SHADI FARAH
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JUDGE:
TINNEY J
WHERE HELD:
Melbourne
DATES OF HEARING:
27 September and 1 October 2018
DATE OF JUDGMENT:
30 October 2018
CASE MAY BE CITED AS:
Re Farah
MEDIUM NEUTRAL CITATION:
[2018] VSC 649
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CRIMINAL LAW – Bail – Conspiracy to kidnap and assault and possession of firearms charges – Question of whether compelling reasons case – Finding that it was not – Whether unacceptable risk –Any risk was not an unacceptable one – Bail granted – Bail Act 1977, ss 1B, 3, 4 and 4E.
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APPEARANCES:
Counsel Solicitors For the Applicant Mr P Morrissey SC Theo Magazis & Associates For the Accused Mr J Singh of Counsel and Mr M Vella, Solicitor. Mr J Cain, Office of Public Prosecutions HIS HONOUR:
Introduction
1 This was an application for bail by the applicant in respect of the criminal charges currently faced by him. Those charges are conspiracy to kidnap and assault Nader Kajajo and two firearms charges. The applicant was arrested and charged on 23 July 2018. He has been in custody since that time. On the day of his arrest, he applied for bail in the Melbourne Magistrates’ Court. Bail was refused on the basis that the applicant had failed to establish a compelling reason justifying the grant of bail. A further application for bail failed on 15 August 2018 when a Magistrate concluded the applicant had refused to establish new facts and circumstances.
2 At the time of the hearing of this application on 27 September 2018, it was common ground between the parties that the charge in question was one to which Schedule 2 of the Bail Act 1977 (‘the Act’) applied. In those circumstances, as it was put to me, bail would have to be refused unless I was satisfied that a compelling reason existed that would justify the grant of bail.[1]
[1]Bail Act 1977, s 4C(1).
3 The applicant relied on a combination of matters contained in the affidavit in support of bail as amounting to a compelling reason in justification of bail. In respect of any risk of the matters contained in s 4E of the Act, such risk was asserted to be ‘acceptable’. The respondent, on the other hand, submitted that compelling reason had not been established, and in the alternative, that there was an unacceptable risk.
Is this a compelling reason case?
4 Following the hearing of the application, concerns arose in my mind as to whether Schedule 2 does, in fact, apply to the principal charge laid. S 3 of the Act relevantly states, ‘Schedule 2 offence means an offence specified in Schedule 2.’ Various offences are set out in Schedule 2. They include, at Item 21, ‘An offence against section 63A of the Crimes Act 1958 (kidnapping).’ Common law kidnapping is not contained in Schedule 2. Item 31 in Schedule 2 reads, ‘An offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in any other item of this Schedule.’
5 The actual charge sheet filed in respect of the charge in question does not specify the form of kidnapping alleged to be the subject of the conspiracy. Rather, it simply specifies s 321 of the Crimes Act 1958 as the law under which the charge is laid. That provision concerns conspiracy as now defined by statute.
6 The statutory form of kidnapping has, as an element accompanying the taking away, the mental element required by the words:
…with intent to demand from that person or any other person any payment by way of ransom for the return or release of that person or with intent to gain for himself or any other person any advantage (however arising) from the detention of that person…[2]
[2]Crimes Act 1958, s 63A.
7 Common law kidnapping has no such requirement.
8 On my perception of the kidnapping proposed at the heart of the conspiracy in the case before me, the purpose of the kidnapping was to exact retribution against the victim for some reason by a physical assault of some sort. I saw no allegation of an intention to seek a ransom or gain some other advantage, even taking into account the breadth of the concept of gaining an advantage which has been attributed to the term in the authorities.
9 I raised my concerns with counsel in Court on the morning of 1 October 2018. The initial response of the respondent, as indicated by Mr Vella, solicitor from the Office of Public Prosecutions, was that the form of kidnapping envisaged by the conspiracy was the statutory form. Later in the day, however, after further thought had been given to the matter, Mr Vella invited me to approach the bail application on the basis that the form of kidnapping contemplated was the common law form. In those circumstances, this ceased to be a compelling reason case, and the bail application was to be decided on the issue of whether the prosecution had established there was an unacceptable risk as set out in s 4E.
10 Both sides were content for me to decide the application on the basis of submissions they had already made to me during the bail application on the issue of unacceptable risk.
11 Having considered the matter and taken into account the submissions of both sides, I decided that any risk under s 4E was not an unacceptable one. Therefore, I granted bail, on conditions which were spelt out in Court. I indicated I would publish my reasons at a later time. These are those reasons.
The facts
12 The applicant came to the attention of the police because of a telephone intercept in place on the telephone of a person named Al Janabe, with whom the applicant was in regular telephone contact in the period of the alleged conspiracy.
13 The accused is the proprietor of two shops in a mall at Toorak Village, 493 Toorak Road, Toorak. One business is a fruit and vegetable shop, the other a café. The intended victim Nader Kajajo runs a barber shop in the same arcade. For reasons which were not clearly established during the application, there was a falling out between the two men.
14 Intercepted telephone calls and text messages between the applicant and Al Janabe revealed ongoing discussions between the two men concerning an apparent plan for Al Janabe and others acting with him to kidnap and assault Kajajo. The communications were generally in a foreign language, and have been translated into English. The first of the calls took place on 2 May 2018.
15 In multiple contacts between 2 May 2018 and 18 July 2018, there were discussions between the applicant and Al Janabe aimed at having Al Janabe, who was clearly working for the applicant, carry out surveillance upon, and then kidnap, Kajajo from either his home address in Camberwell or from his business premises in the Toorak Village. The discussions made it apparent that the applicant and Al Janabe had substantial knowledge of the vehicles, movements, locations, and associations of Kajajo. Messages containing photographs and videos of their intended target were exchanged between the two men. The calls reveal that on multiple occasions, Al Janabe and others acting with him were in a position outside the home address of Kajajo awaiting his return there or otherwise awaiting an opportunity to put the plan into effect. For various reasons, the plan was never able to be carried out, in spite of the frequent demands of the applicant and reassurance of Al Janabe.
16 As to the precise nature of the plan, it is difficult to discern, and made no more transparent by the nature of the translated conversations. The plan was at least to confront Kajajo either at home or at his work premises and to assault him. At other times, the concept of forcibly removing Kajajo and taking him somewhere in a motor vehicle for some purpose was clearly in contemplation.
17 On 9 May 2018, police who had been monitoring the communications between the two men, being concerned at the developments in the apparent plan, approached the applicant and, in effect, warned him off. Without wanting to reveal the extent of their knowledge, they spoke with him about threats which had been taking place.
18 About two hours after this approach from the police, at 2.24 pm on 9 May 2018, the applicant spoke to Al Janabe and told him to stop and not go ahead with the plan.
19 At 4.44 pm on the same day, the men spoke again and when Al Janabe enquired whether he should now go ahead, the applicant arranged to go and see him in person, but also made it clear the plan was not to be carried out.
20 For some weeks, the indications were that the plan was put on hold as a result of the attention of the police. On 3 June 2018, however, a call between the men at 11.18 pm indicated the plan was back on track. Al Janabe confirmed the home address of Kajajo as 712 Riversdale Road (Camberwell) and indicated the plan would be carried out the next day by some men working for him. In this call, Al Janabe stated to the applicant that after the plan had been put into effect, Kajajo ‘won’t be able to hold scissors in his hand anymore.’
21 On the respondent’s case, this was an indication that it was intended to cause damage to the hand of Kajajo in the physical assault upon him. The significance of this was that Kajajo was a barber by occupation. This statement of intention by Al Janabe and concurrence by the applicant seemed to be the high point of evidence as to the actual aim of the conspiracy.
22 Following this matter being discussed, Al Janabe told the applicant the men would bring him proof of their actions. Al Janabe said they would film ‘the whole thing’ and the applicant confirmed he wanted this to occur.
23 It seems that the delays in the putting into effect of the crime continued. By 8 June 2018, there had still been no action. But Al Janabe was at pains to point out the extent of the preparations being carried out. In a call at 3.56 pm on that day, he said to the applicant:
There’s a guy who’s going there to find out more about him to make sure of everything. The guy told me that he’s determined to make him part of the news bulletin otherwise he wouldn’t have done his job. He said that they’re going to execute all your requests but he just needs a bit more time. He goes there every morning to watch him then comes back. All good. I haven’t forgotten about you…He’s watching him from a distance and he’s determined to carry out what he has in mind, the things I told you about…In the next couple of days, Allah willing. He told me in the next couple of days. He’s been watching him for four days. So he’ll execute in the next couple of days. He’ll let me know.
24 On that day and others before and after, the applicant showed his impatience for the task to be carried out, and his dissatisfaction with the frequent delays. As he said on 9 June 2018, ‘We wanna hear good news by this week then.’
25 On 13 June 2018 at 8.51 am, after further delays, the applicant said to Al Janabe, ‘The matter has to be finished by today. It can’t wait till tomorrow, I swear.’ Al Janabe assured the applicant the job would indeed be carried out that day. There was discussion about how the kidnapping was best to be carried out. Al Janabe described the house as ‘very difficult’ and the applicant suggested the shop as an alternative venue.
26 In a conversation at 4.02pm on 13 June 2018, there was discussion about Kajajo being confronted in his shop. The applicant stated, ‘Anyway, when you talk to him, ask him where’s the machine, you know?...Ask him where’s the machine? We’re after the machine, mate!’[3]
[3]Evidence and submissions during the application did not reveal what was meant by ‘the machine’.
27 At 4.24pm on 13 June 2018, discussions indicated the plan was close to being put into effect at the shop, where two men in possession of photographs of Kajajo were to be shortly joined by Al Janabe. The applicant said to Al Janabe, ‘Beautiful, just um…today is the last day and that’s it, you know?...Come on, finish it off, yeah?’ Al Janabe responded, ‘Yeah, Allah willing it’ll be finished, hope for the best.’
28 At 7.00pm on 13 June 2018, Al Janabe was arrested by police on unrelated matters. He was released from custody at some time which is not precisely revealed on the material before me. The day after his arrest, however, he was intercepted discussing his arrest with the applicant and offering to repay money already paid to him by the applicant.
29 Even this arrest of Al Janabe was not enough to divert the applicant from his desire to have the plan carried out. In a conversation at 8.04 pm on 18 July 2018, there was further discussion between the two men which revealed that the plan was still very much on foot. The applicant told Al Janabe that Kajajo would be on his own in the shop the coming Monday. Al Janabe spoke of a new person he had brought into the operation. The applicant stated, ‘And make sure that everything is done properly as we discussed, you get what I mean?...Blindfolding and muffling and things like that and photos, etc…so I can see for myself and my heart is cooled down, you get what I mean?’
30 Al Janabe asked at one point during this conversation, ‘Is the machine there with him at the shop?’ The applicant replied, ‘I swear, frankly, I don’t know. I really don’t know because...I don’t want to even look that way.’
31 Further on in this conversation, the applicant indicated there were blinds or a shutter in the shop, which could be closed once the men were inside.
32 On 23 July 2018, the applicant was arrested. His home was searched and the firearms and ammunition the subject of the other charges were located. It was not asserted on behalf of the prosecution that the firearms are relevant to the charge of conspiracy to kidnap.
Law[4]
[4]The law as set out in this judgment is that which applied at the time of the bail application. Further amendments to the Bail Act 1977 have come into effect since that time.
33 Section 1B of the Act reads, in part, as follows:
(1) The Parliament recognises the importance of –
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty;
34 Section 4 of the Act reads:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
35 Section 4E of the Act reads:
(1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that –
(a) there is a risk that the accused would, if released on bail –
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk.
(2)The prosecutor bears the burden of satisfying the bail decision maker –
(a)as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b) that the risk is an unacceptable risk.
(3)In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must –
(a) take into account the surrounding circumstances; and
(b)consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
The alleged offending
36 My description of the alleged offending by the applicant is sufficient to reveal the disturbing nature of what is alleged. What was at the heart of the plan is not clearly known, and the full extent of the plan is also unclear. But one thing is clear enough. The Court would have real concerns about the risk of the applicant endangering the safety of Kajajo were he to be released on bail.
Submissions
37 The submissions of the applicant were principally focused on the perceived need to establish that a compelling reason existed which justified the grant of bail. The submissions on unacceptable risk were intertwined with the submissions as to a compelling reason. Essentially, with the focus now being on whether or not there is an unacceptable risk of any of the matters set out in s 4E of the Act, the matters relied upon by the applicant were:
i.The fact that, as kidnappings go, the one contemplated here is towards the low end of the scale of seriousness;
ii.The fact that the period of time the applicant would spend on remand if not released on bail would likely exceed any sentence he may receive if convicted of this crime;
iii.The fact the applicant has never breached bail before;
iv.The good character of the applicant. He has been in no trouble in the past, and can be considered to be a decent, hard-working citizen, happily married with three young children. There are no suggestions of drug use or mental illness;
v.The applicant has heavy responsibilities within the family businesses. His absence from these imperils the businesses;
vi.The applicant, by virtue of the period of time he has already spent in custody, is strongly motivated to behave himself if released on bail;
vii.The difficulties experienced by the family of the applicant, especially in connection with his son, constitute an additional layer of motivation to behave himself;
viii.There have been no efforts to renew or continue hostilities with the complainant since the time of the incarceration of the applicant;
ix.The applicant has consented to the institution of a final intervention order in respect of the complainant;
x.The availability of a substantial surety; and
xi.The fact that stringent conditions put in place, including daily reporting and geographical restrictions, should be sufficient to reduce such risks as exist of the matters contained in s 4E to being acceptable.
38 Mr Singh, on the other hand, submitted that there was an unacceptable risk the applicant, if released on bail, would commit further offences, endanger the safety of Kajajo, or interfere with witnesses. He submitted that the fact there has been no breach of bail before was not significant, because he has never been on bail before. The fact of there having been no recent attempts to contact the complainant needs to be seen in light of the fact that his ability to interfere with the complainant has been restricted since he has been in custody, and also by the fact that when put on notice by the police of their interest in the situation, the applicant ceased his efforts for a time, but within three weeks, had renewed the conspiracy. The case is a strong one, and the evidence shows the preoccupation of the applicant with having the conspiracy put into effect. The risks of reoffending are real, and would remain unacceptable no matter what conditions were imposed. Of particular concern is the fact that there is no explanation for the conduct of the applicant, and it represented a substantial departure from his previous behaviour.
Discussion
39 This is a somewhat concerning case. The offending revealed by the intercepted phone calls is undeniably serious, largely inexplicable, and entirely at odds with the previous behaviour of the applicant. Its purpose, motivation and intended limits are unclear. The conduct of the applicant on being confronted by the police mid-stream, in which he desisted for a period of a few weeks and then resumed, is surprising and worrying. It, along with the existence of the conspiracy in the first place, is indicative of the strong motivation the applicant clearly had for engaging in this conduct.
40 In all of these circumstances, it is only to be expected that the Court would have real concerns about the risks of the accused reoffending in connection with Kajajo. The question is whether or not the risks that undeniably exist have been established by the respondent to be unacceptable ones.
41 In the end, I was not satisfied the risks in this case were unacceptable. I consider that the stringent conditions I have imposed are sufficient to control and reduce the risks in question to the level of being acceptable ones.
Conclusion
For the reasons stated above, I admitted the applicant to bail on 1 October 2018. The conditions were as set out in the excerpt of the Bail Order appendixed to this decision.
Appendix One: Excerpt of Bail Order
THE COURT ORDERS THAT:
Shadi FARAH (the Applicant) be admitted to bail on his own undertaking, with one surety in the sum of $100,000, and on the following conditions:
1. The Applicant is bailed to appear at the Committal Mention on 30 October 2018 at the Melbourne Magistrates’ Court;
2. The Applicant must reside at 190 Section Road, Greenvale 3059 VIC and must not change address without a prior application to this Court;
3. The Applicant must report daily to the Officer in Charge of Police at Broadmeadows Police station, 15 Dimboola Road, Broadmeadows 3047 VIC, between the hours of 6:00am and 10:00pm;
4. The Applicant must not contact in any manner, either directly or indirectly, any prosecution witness other than the informant;
5. The Applicant must not contact in any manner, either directly or indirectly Feres Al Janabe or Khaled Ali;
6. The Applicant must not leave the State of Victoria;
7. The Applicant must surrender any passport he possesses and must not apply for another passport;
8. The Applicant must not attend any international points of departure;
9. The Applicant must abide by all conditions of the Personal Safety Intervention Order mde on 9 August 2018;
10. The Applicant must not attend or pass through any part of the suburbs of Toorak or Camberwell.
DATED: 1 October 2018
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