Re Hadarra - [2008] VSC 298

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1723 of 2008

IN THE MATTER OF an Application for Bail

WALEED HADARRA	Applicant
THE QUEEN	Respondent

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2008
DATE OF JUDGMENT:	14 August 2008
CASE MAY BE CITED AS:	Re Hadarra
MEDIUM NEUTRAL CITATION:	[2008] VSC 298

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CRIMINAL LAW – Application for bail – Kidnapping and other charges – Offences allegedly committed whilst on bail – Prior refusal – New facts and circumstances – Loss of opportunity for parole on sentence currently being served.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Shirrefs SC	Solicitor for Public Prosecutions
For the Respondent	Mr R Skinner	Markotich Lawyers

HIS HONOUR:

The applicant was charged on 15 May 2007 with offences arising out of events which occurred on and between 25 January 2007 and 29 January 2007. In substance, what is alleged against the applicant is that he together with two co‑offenders, Jerome Berryman and Dalibor Dobrosavljevic, kidnapped one John Kripintiris and extorted money and other property from him and his parents, Stan Kripintiris and Antonia Kripintiris. It is also alleged that during that period the three offenders carried out a burglary on the home of an ex‑girlfriend of John Kripintiris. The applicant faces a variety of charges arising out of these events including kidnapping both under the Crimes Act and at common law, intentionally threatening serious injury, extortion, obtaining property by deception, unlawful possession of a firearm, burglary, causing criminal damage, as well as other offences. At times, I will refer to these charges as the 2007 matters.

According to an affidavit sworn by the informant, the applicant applied for bail to a magistrate in May 2007 and again in June 2007 and was refused. On 20 July 2007 he applied for bail in this Court. The application was heard by Bongiorno J and it was refused. Bongiorno J published reasons[1] to which I will return.
[1][2007] VSC 274.

A committal hearing was held in April this year and the accused was committed for trial on 11 April 2008. An application for bail was made to the committing magistrate on 17 April 2008 which was refused. The same magistrate granted bail to the co‑accused Berryman on 1 July 2008. This circumstance was relied upon in the affidavit in support of the application sworn by the applicant’s solicitor but his counsel on the hearing before me conceded that the circumstances of the applicant and of Mr Berryman were quite different.

A case conference in relation to the pending trial in the County Court was held on 18 June 2008. The trial was fixed for hearing on 27 July 2009. A further case conference is scheduled for 18 August 2008. There is the possibility of an issue arising as to severance, which may result in further delay.

The applicant is not on remand. He is at present serving a term of imprisonment imposed upon him…

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 Hadarra

Details

AGLC: Re Hadarra [2008] VSC 298
Case: [2008] VSC 298
Decision Date: 14 August 2008

CaseChat Overview and Summary

In the matter of Hadarra, the respondent applied for bail while currently serving a sentence for a series of offences. He sought to be released on bail pending the outcome of new charges, including kidnapping and other serious offences, which were alleged to have been committed while he was already on bail. The court had previously refused bail due to the seriousness of the original charges. This application arose from new facts and circumstances, specifically the respondent's loss of the opportunity for parole on his current sentence.

The primary legal issue for the court was whether the new facts and circumstances warranted a reconsideration of the earlier refusal of bail. The respondent argued that his loss of parole eligibility constituted a significant change in his circumstances that should be taken into account. The prosecution opposed the application, citing the gravity of the new charges and the risk of reoffending if released. The court had to balance the respondent's right to liberty against the need to protect the community and ensure the respondent's appearance in court.

The court found that the new charges were indeed serious and raised a substantial risk of reoffending. However, the loss of parole eligibility on the current sentence was a significant factor. The court acknowledged that this change in circumstances could impact the respondent's motivation to comply with bail conditions. Ultimately, the court concluded that the seriousness of the new charges and the risk of reoffending outweighed the new circumstances. The application for bail was therefore dismissed.

No further orders were made by the court beyond the dismissal of the bail application. The respondent remains in custody pending the resolution of the new charges.

Orders