Re Kheir
[2008] VSC 492
•24 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1580 of 2007
IN THE MATTER of an Application for bail by Mahmoud Kheir
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2008 | |
DATE OF RULING: | 24 October 2008 | |
CASE MAY BE CITED AS: | IMO bail application by Mahmoud Kheir | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 492 | |
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Application for bail – charges relating to trafficking drugs of dependence, and possession of firearms and an explosive substance – telephone intercepts – strength of Crown case - probable delay of hearing trial – Community Based Order granted by County Court weeks prior to arrest - bail granted under special conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C. Heliotis QC | Garde Wilson Lawyers |
| For the Prosecution | Mr W. F. Dwyer | Office of Public Prosecutions |
HIS HONOUR:
The applicant, Mahmoud Kheir, seeks bail with respect to two sets of charges: firstly, a traffic offence and an associated charge of attempt to pervert the course of justice, which latter charge was laid in or about February of this year, and secondly, ten charges relating to trafficking drugs of dependence, possession of firearms and an explosive substance, laid on 24 September 2008 by Detective Senior Constable Maslen.
The applicant was previously granted bail in respect of the first set of charges to which I have referred, namely those arising out of the traffic incident on 6 March 2008. Bail was granted on the applicant's own undertaking with a special condition that he reside at X.
Following his arrest with respect to the second group of charges, he sought bail from the Magistrates' Court on 3 October 2008 but that application was refused. In addition, the court revoked the previous grant of bail in respect of the first set of charges. The applicant seeks to show cause that bail should be granted in respect of both sets of charges before me by virtue of a combination of the following matters: delay, alleged weakness of the Crown case, strong ties to the jurisdiction and strong family support, intellectual disability and limited relevant prior convictions.
The relevant background circumstances to the alleged offending which has brought him before this court are as follows. Between May and September 2008 an investigation was conducted into the activities of the applicant, his family and associates, using surveillance and monitored telephone conversations, including approximately 1,000 calls involving the applicant speaking, as I understand it, principally with other members of his family, both in English and Arabic.
As a result of that surveillance the Crown alleges that the applicant and other members of his family and associates were engaged in the distribution of significant quantities of methamphetamine, amphetamine and cannabis in and around the Broadmeadows and Fawkner areas. The centre of those activities is alleged to have been an address at X occupied by the applicant's father, Ali, and brother, Nassar, and at which the Crown alleges the applicant also partially resided.
Following the execution of a series of search warrants on 24 September 2008, the applicant was arrested as he attempted to flee the Frederick Street address. In turn a 3030 rifle, a loaded .357 Magnum handgun and a loaded .25 Browning handgun were located at the premises. In addition, a high powered explosive with a detonator fuse attached was located in a vehicle parked in the driveway. Two other men were present at the premises at the time of the execution of the warrants.
A further search of the house led to the location of a container containing 187 tablets believed to be ecstasy, a container and bags containing a substance believed to be amphetamine, and numerous chemicals believed to be intended for use for the purpose of manufacturing amphetamine. The applicant was subsequently interviewed and made no admissions. He was charged and remanded in custody.
The Crown opposes the application for bail by joining issue with the grounds on which the applicant seeks to show cause and by contending that there is an unacceptable risk that the applicant, if released on bail, would commit further offences. The Crown further contends that if released there is an unacceptable risk that the applicant would interfere with witnesses or endanger the safety and welfare of members of the public.
In my view the applicant has shown cause that bail should be granted by reason of the combined factors of probable delay and the relative strength of the Crown case.
I turn first to the question of delay. The informant's evidence is that a spot analysis has been undertaken confirming that the drugs seized are ecstasy, amphetamine and illicit precursor chemicals used in the manufacture of amphetamine. In addition to the spot analysis, DNA and fingerprint analysis of the packaging of the drugs and chemicals will be completed within four months. A full analysis of the drugs and chemicals could take eight months.
A complete hand-up brief minus the final drug analysis report could be served by late March 2009 and the committal mention date could be set around May 2009. The final drug analysis report could be completed and served on the applicant prior to any contested committal. Nevertheless it seems probable that the committal will not take place for some 13 months and the trial will probably not occur for a period of two years.
I am fortified in accepting the estimates of Mr Heliotis in this regard both because they were not seriously contested by the Crown and by reason of the fact that it is plain the Crown will seek to proceed jointly against a group of accused including most obviously the applicant's family members and this renders the expedition of the applicant's case, in my view, inherently difficult and unlikely. The potentially relevant telephone intercepts will for example increase to some 4000.
I turn then to the strengths of the Crown case. Insofar as the trafficking and possession of drugs is concerned, the case as to trafficking rests in part, as I understand it, on one telephone intercept in which the applicant is implicated in the supply of cutting agents to other members of the family for the purposes of drug trafficking by them.
He is otherwise party to many conversations about drugs, but he is himself a drug user and those conversations do not appear to demonstrate active involvement in trafficking. They are consistent with him being a family member with an intellectual disability living close to his family for this reason, but on the periphery of the family's business conducted by way of trafficking drugs.
This said, the strength of the Crown case with respect to the applicant’s involvement in trafficking will obviously increase dramatically, if forensic investigation links the applicant by way of fingerprint or DNA evidence with either the drugs or drug manufacturing ingredients found at the premises. Likewise it is possible that further investigation of the intercept material will create evidence of further direct involvement by the applicant in drug trafficking activities.
Nevertheless at present there is a dramatic contrast between the bulk of the Crown evidence by way of intercepts and the one telephone conversation to which the informant has referred in evidence before me. Likewise it seems to me that the fact that the applicant ran from the home of his father and brother when the search warrants were executed, in circumstances where that home also contained two other men, one evidently a resident, is a less than overwhelming basis for a case of joint possession of the firearms and drugs within the house, found in the circumstances to which the informant has referred. This is particularly so when a co-accused has in effect confessed up to ownership of the two handguns and the explosives in the car. Conversely of course, once again further forensic investigation may convert the serious suspicions of the informant into a strong case against the applicant. It may well be that fingerprint or DNA evidence will link him directly with the items or some of the items which it is alleged he possessed.
It follows from what I have already said that the reality is that the Crown case against this particular member of the family is not currently a particularly strong case but on the other hand, it may well become one, because viewed in the matrix of the evidence as a whole it will not take much more by way of circumstantial evidence to implicate the applicant in serious extended criminal activity.
In these circumstances I am of the view that the probable delay to which I have already referred favours the grant of bail in circumstances where the applicant can and, in the community interest, should take advantage of the regime of counselling and treatment which was envisaged by a Community Based Order granted by the County Court some two weeks prior to his arrest. That order was granted with respect to a charge of affray.
It was clearly a considered order. It was preceded by a pre-sentence report and it was, in effect, supported by the report of Mr Newton, a psychologist, dated 9 September 2008.
The view taken by the Court was that a Community-Based Order was appropriate which required the applicant to comply with a regime, among other things, of assessment and treatment for drug and alcohol dependency, psychological assessment and treatment and assessment for programs to reduce re-offending, and participation in such programs as he might be directed.
If the applicant is left on remand for two years, or thereabouts, it is plain that this regime, which has been carefully considered, will not be implemented and it seems to me, having regard to the applicant's intellectual disability and his history as a whole, he should be given a last chance in this regard.
In my view the Crown case as to the unacceptable risk of re-offending is inherently bound up with an assessment of the strength of its primary case in relation to the offences charged. I accept that if there were stronger evidence with respect to these offences, then the breach of the conditions of the Community-Based Order and prior bail would strongly support a conclusion that the applicant presents an unacceptable risk of re-offending.
In all the circumstances of the case as I have explained them, however, I am troubled by the strength of the Crown case and I am not so convinced that this factor justifies the refusal of bail. I also do not accept the Crown case that the applicant presents an unacceptable risk of interference with witnesses. As I understand it, the witnesses in the present case are police witnesses only.
If granted bail the applicant will reside with his mother, wife and three children at premises known as X. His father and two brothers are currently in custody and he will not return to the family arrangements in which the alleged offending occurred.
It must be plain to both the applicant and his immediate family that any re-offending whatsoever or failure to comply with the conditions of bail which I propose to impose would lead to the immediate revocation of bail.
I propose to release the applicant on bail but only on a series of conditions. Counsel have formulated conditions and those conditions are:
(1) that the applicant is to reside at X;
(2) the applicant is to remain at his place of residence, X, between the hours of 9pm to 6am;
(3) the applicant report daily to the Officer in Charge of the Police Station at X or his nominee;
(4) the applicant surrender any passport which he may hold to the X Police Station within 24 hours of being released on bail and not apply for another passport;
(5) the applicant not attend any point of international departure during the period of bail;
(6) the applicant attend the Community Corrections Centre at X within two clear working days of his release from custody and thereafter to observe all lawful directions of that office relating to his performance of the Community Based Order of the County Court imposed by His Honour Judge R G Williams dated 10 September 2008;
(7) the applicant attend Mr. Patrick Newton within two working days of his release from custody and thereafter follow all lawful directions of Mr. Patrick Newton or his nominee relating to psychological treatment dealing with anger management and drug and alcohol related issues, and other psychological counselling and assessment as may be requested.
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