JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2015
DATE OF JUDGMENT:	29 May 2015
CASE MAY BE CITED AS:	Re Guirguis
MEDIUM NEUTRAL CITATION:	[2015] VSC 242

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CRIMINAL LAW – Bail – Whether the applicant represent unacceptable risk – Whether the applicant showed cause why detention not justified – Bail Act 1977, ss 4(2)(d), 4(3) and 4(4)(b) – Bail granted subject to conditions.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G M Hughan	Office of Public Prosecutions
For the Accused	Mr I M Hayden	Ellinghaus & Lindner

HIS HONOUR:

Introduction

Carl Guirguis, the applicant, was refused bail in the Magistrates’ Court at Melbourne on 14 April 2015. He now seeks bail from this Court.

The applicant is charged with one charge of digital-vaginal rape[1] (charge 1); making threats to kill[2] (charge 2); false imprisonment[3] (charge 3); stalking[4] (charge 4); indecent assault[5] (charge 5); recklessly cause injury[6] (charge 7); and unlawful assault[7] (charge 9). Each charge relates to the female victim, embracing a period between 1 December 2014 and 1 March 2015.
[1]Crimes Act 1958, s 38(1).
[2]Crimes Act 1958, s 20.
[3]Common law.
[4]Crimes Act 1958, s 21A(1).
[5]Crimes Act 1958, s 39(1).
[6]Crimes Act 1958, s 18.
[7]Summary Offences Act 1966, s 23.

The respondent submitted that bail should be denied. It was asserted both that there was an acceptable risk that the applicant would commit an offence on bail or interfere with witnesses, and that the applicant was, by virtue of s 4(4)(b) of the Bail Act 1977 (‘the Act’), required to show cause why his detention in custody was not justified.

For the reasons that follow, I would grant bail to the applicant upon conditions that I will later set out.

Summary of the alleged offending

It is necessary to say something about the case that the applicant faces.

According to the summary of the prosecution case attached to the Brief of Evidence, the applicant and the complainant have known each other for about 20 years. They had lost contact for a number of years when the complainant moved from the Melton area, and only reconnected in September 2013.

In October 2014, the complainant was having trouble with her car. She knew that the applicant was a qualified mechanic and sought his ongoing assistance. The applicant introduced the complainant to methylamphetamine (‘ice’), and, as time passed, their use of ice increased.

In her statements to police, the complainant alleges that she accepted an invitation to the applicant’s 2014 Christmas breakup. By the time they arrived, however, the party was over. Later, the applicant took the complainant back to the workshop at Palmerston Street, Melton, ostensibly to collect some car parts.

Once…

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 Guirguis

Details

AGLC: Re Guirguis [2015] VSC 242
Case: [2015] VSC 242
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case of Re Guirguis was heard in the Supreme Court of Victoria, where the applicant, Guirguis, sought bail pending the determination of criminal charges against him. The central dispute was whether Guirguis posed an unacceptable risk to the community that would preclude him from being granted bail. Additionally, the court had to consider whether Guirguis had demonstrated sufficient cause to justify his continued detention.

The legal issues before the court involved the interpretation and application of sections 4(2)(d), 4(3), and 4(4)(b) of the Bail Act 1977. Specifically, the court needed to assess whether Guirguis represented an unacceptable risk to the community, which would warrant denying bail under section 4(2)(d). Furthermore, the court had to evaluate whether Guirguis had shown cause why his detention was not justified, as stipulated in sections 4(3) and 4(4)(b) of the Act. The applicant argued that his detention was not warranted given his personal circumstances and the nature of the alleged offences.

The court examined the evidence presented and concluded that while there were concerns regarding the risk Guirguis posed, these could be sufficiently mitigated through appropriate bail conditions. The court found that Guirguis had demonstrated cause to justify his release on bail, and that his detention was not necessary to ensure his appearance in court or to prevent interference with witnesses. Consequently, the court granted bail to Guirguis, subject to a series of conditions designed to manage the identified risks. The specific conditions included a curfew, electronic monitoring, and restrictions on his movements and communications.

Orders