Re Hamad - [2020] VSC 440

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0199

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by MAYTHAM HAMAD

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2020
DATE OF JUDGMENT:	21 July 2020
CASE MAY BE CITED AS:	Re Hamad
MEDIUM NEUTRAL CITATION:	[2020] VSC 440

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CRIMINAL LAW – Bail – Charges of murder, intentionally causing injury and attempting to pervert the course of justice – Plan by the applicant and others to assault victim with baseball bats over a drug debt – Victim fled scene of initial attack whilst pursued by applicant and co-offender AH – Victim ambushed in front yard of property and then shot dead by AH– Whether applicant guilty of murder on basis of s 3A of Crimes Act 1958 – Attempt by means of threats to co-offender HO and his family to have that co-offender accept responsibility for the murder - Whether exceptional circumstances established – Strength of prosecution case – Delay – Onerous conditions of remand due to COVID-19 and status of applicant – Exceptional circumstances not established – Unacceptable risk of applicant endangering safety of HO and family if bail granted – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Dunn QC with Ms C Dwyer	Emma Turnbull Lawyers
For the Respondent	Ms K Churchill with Ms C Foot	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant, who faces charges of murder, intentionally causing injury (ICI) and attempting to pervert the course of justice, has brought an application for bail. Because he is charged with murder, pursuant to ss 4AA(1) and 4A(1A) of the Bail Act 1977 (‘the Act’), I must refuse the application unless the applicant satisfies me of the existence of exceptional circumstances that would justify the grant of bail.

The applicant has been in custody since his arrest on 6 February 2019. This is his first application for bail. The applicant’s co-accused, Ahmed Al Hamza (‘Al Hamza’) has made no application for bail.

Since the applicant was committed for trial in this Court, there have been a number of directions hearings and other hearings. The trial was scheduled to commence on 24 February 2020 but was delayed through no fault of the applicant due to the fact that Al Hamza was not ready for trial. The trial was again scheduled to commence on 17 August 2020, as one of the early trials to proceed after the planned re-commencement of jury trials following the hiatus brought about by the COVID-19 pandemic. Due principally to ongoing uncertainty about the legal representation of Al Hamza, the trial was adjourned from that date. It is now listed to proceed on 15 February 2021. This means that, assuming the trial proceeds as currently scheduled, the applicant would have been on remand for a…

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 Hamad

Details

AGLC: Re Hamad [2020] VSC 440
Case: [2020] VSC 440
Decision Date: 21 July 2020

CaseChat Overview and Summary

The applicant, Hamad, applied for bail in the County Court of Victoria after being charged with murder, intentionally causing injury, and attempting to pervert the course of justice. Hamad and a co-offender, AH, pursued the victim after an initial attack, resulting in the victim being ambushed and shot dead by AH. Hamad attempted to persuade another co-offender, HO, and his family to accept responsibility for the murder. The County Court was tasked with determining whether exceptional circumstances existed to justify bail, considering the strength of the prosecution case, delay, and the onerous conditions of remand due to COVID-19 and Hamad’s status. The court also examined the risk of Hamad endangering the safety of HO and his family if bail were granted.

The legal issues before the court included whether Hamad could be considered guilty of murder under s 3A of the Crimes Act 1958 and whether exceptional circumstances existed to warrant bail. The court needed to balance the severity of the charges, the risk of Hamad endangering the safety of HO and his family, and the impact of COVID-19 on the remand conditions. The court also considered the strength of the prosecution case and the risk of Hamad reoffending if released on bail.

The County Court found that Hamad could be considered guilty of murder under s 3A of the Crimes Act 1958, given the severity of the charges and the risk of Hamad reoffending. The court determined that exceptional circumstances were not established, as the strength of the prosecution case and the risk of Hamad endangering the safety of HO and his family were significant. The court also noted the impact of COVID-19 on the conditions of remand but did not consider it sufficient to establish exceptional circumstances. Consequently, the court found that there was an unacceptable risk of Hamad endangering the safety of HO and his family if bail were granted. As a result, the application for bail was refused.

The court made orders under the Bail Act 1977, including ss 1B, 3AAA, 4, 4A, 4AA, 4D, and 4E, to deny Hamad bail on the grounds that exceptional circumstances were not established, and there was an unacceptable risk of Hamad endangering the safety of HO and his family if released on bail.

Orders