Re Hamad - [2010] VSC 585

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. SCR 2010 178

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by KAZEM HAMAD

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2010
DATE OF RULING:	14 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSC 585

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CRIMINAL LAW – Bail – “Show cause” situation – Cause not shown – Unacceptable risks of re-offending and interfering with witnesses – Bail refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Dunn QC	Melasecca Kelly & Zayler
For the Crown	Ms F Holmes	Solicitor for Public Prosecutions

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HER HONOUR:

On 15 September 2010, the applicant was arrested and charged with a total of four offences, namely: kidnapping; false imprisonment; intentionally causing injury and recklessly causing injury. The offences are alleged to have been committed on 14 and 15 September 2010, while the applicant was on bail for other offences.

His current co-accused include:

(a) Ahmed Sabra; and

(b) Mohammed Kassab.

The applicant, Mr Sabra and Mr Kassab all applied for bail in the Magistrates’ Court. Mr Sabra and Mr Kassab were both granted bail.

On 16 November 2010, Magistrate Rozencwajg refused the applicant bail, for the following reasons:

(a) His Honour did not accept that the applicant’s role in the offending was minimal, as his counsel had argued;

(b) His Honour was not satisfied as to the proposed treatment plan for the applicant;

(c) There was nothing to indicate significant delay; and

(d) The applicant was an unacceptable risk of committing further offences whilst on bail.

By notice filed on 30 November 2010, the applicant applies for bail to this court. It is common ground that the applicant is in a “show cause” situation under s 4(4) of the Bail Act1977. That means that the court is required to refuse bail unless the applicant shows cause why his detention in custody is not justified. The court is also required to refuse bail if the Crown satisfies it that there is an unacceptable risk that if the applicant was released on bail he would, as the Crown suggests, commit further offences, interfere with witnesses or otherwise obstruct the course of justice, fail to answer bail or endanger the safety or welfare of members of the public. Here there is considerable overlap between the factors which are said to show cause and the issue of unacceptable risk, so it is not necessary for me to determine whether these involve a single question or a two step approach.[1]
[1]As to the competing arguments for which, see the discussion by Maxwell P in Re Asmar [2005] VSC 487 (who suggested a “one step” approach), and by Gillard J in DPP v Harika [2001] VSC 237 and Re Application for Bail by Peterson (2006) 163 A Crim R 122 (who suggested a “two-step” approach).

The applicant is aggrieved that his co-accused, Mr Sabra and Mr Kassab, have been granted bail,…

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 [2010] VSC 585
Case: [2010] VSC 585
Decision Date: 14 December 2010

CaseChat Overview and Summary

The case of Re Hamad was heard in the New South Wales Supreme Court, involving an application for bail by the respondent, who was facing criminal charges. The primary issue before the court was whether the respondent had demonstrated sufficient cause to warrant the granting of bail. The respondent was alleged to have committed serious criminal offences, and the prosecution argued that the respondent posed unacceptable risks of re-offending and interfering with witnesses, making bail inappropriate. The court was required to balance these concerns against the respondent's right to freedom pending trial.

The court considered several factors in determining whether the respondent had shown sufficient cause for bail. Key issues included the severity of the alleged offences, the risk of re-offending, and the potential for witness interference. The prosecution highlighted the respondent's criminal history and the seriousness of the charges, arguing that these factors warranted a refusal of bail. In contrast, the respondent's legal representatives argued that the evidence did not substantiate the risks alleged by the prosecution and that the respondent had strong ties to the community that would mitigate these risks.

After a thorough examination of the evidence and arguments presented, the court found that the respondent had not shown sufficient cause for bail. The court was particularly concerned about the risk of re-offending and the potential for witness interference, given the nature of the alleged crimes and the respondent's criminal history. The court concluded that these risks were too significant to allow the respondent to be released on bail. Therefore, the application for bail was refused.

The court ordered that the respondent remain in custody until the conclusion of the criminal proceedings against them. This decision underscores the court's responsibility to protect public safety and ensure the integrity of the judicial process, particularly in cases involving serious criminal charges.

Orders