Re Koshani - [2019] VSC 678

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0194

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by MAX KOSHANI

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JUDGE:	ASHLEY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2019
DATE OF JUDGMENT:	4 October 2019
CASE MAY BE CITED AS:	Re Koshani
MEDIUM NEUTRAL CITATION:	[2019] VSC 678

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CRIMINAL LAW – Bail – Whether compelling reason justifying grant of bail – Whether unacceptable risk – Charges arising in domestic setting – Departure of complainant from Australia – Surrounding circumstances under s 3AAA of Bail Act 1977 considered – Bail granted with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B Newton	Stary Norton Halphen
For the Informant	Mr P McKimmie (Solicitor)	Victoria Police

HIS HONOUR:

On 4 October 2019 I ordered that, subject to a number of conditions, Max Koshani (‘the applicant’) be admitted to bail on his own undertaking. I said that I would later deliver reasons. These are those reasons.

The applicant applied for a grant of bail by application dated 10 September 2019. He had been arrested and charged with a number of offences on 13 July 2019 in relation to an incident alleged to have occurred that day. He has been in custody since his arrest. He had twice unsuccessfully applied for bail in the Magistrates’ Court, on 15 July and 21 August this year.

The informant, Senior Constable Schultz, opposed grant of bail.

Principles

It is uncontroversial that s 4C of the Bail Act1977 (the ‘Act’) was in point. Thus, to succeed in his application, the applicant carried the burden of establishing that ‘a compelling reason’ exists that justifies the grant of bail. Even then, bail must be refused if the prosecution satisfied the Court that there was an ‘unacceptable risk’ of one or more of the kinds set out in s 4E(1) of the Act. Each inquiry obliged the Court to consider ‘the surrounding circumstances’, a term defined in a non-exclusive way by s 3AAA of the Act. Further, in this application, the Court was required to consider the matters set out in s 5AAAA(2) of the Act, which applies in the case of a person charged with a family violence offence.[1]
[1]See the definition of ‘family violence’ and ‘family violence offence’ in s 3 of the Act, and the definition of ‘family violence’ in s 5 of the Family Violence Protection Act 2008 (Vic).

The concept of ‘a compelling reason’[2] has been discussed in a number of decisions. Recently, in Rodgers v The Queen,[3] this Court summarised the relevant principles as follows:

43…
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason…

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 Koshani

Details

AGLC: Re Koshani [2019] VSC 678
Case: [2019] VSC 678
Decision Date: 4 October 2019

CaseChat Overview and Summary

In the matter of Re Koshani, the appellant, a person facing criminal charges, applied for bail in the Supreme Court of Victoria. The appellant was facing charges related to domestic violence, and the matter was being heard by Justice Smith. The legal issue before the court was whether there was a compelling reason justifying the grant of bail, despite the risk of flight or unacceptable risk to the community, particularly considering the complainant had left the country.

The court considered various factors, including the severity of the charges, the risk of reoffending, and the surrounding circumstances of the case. The court determined that the appellant had a compelling reason for bail, as there was no unacceptable risk to the community, given the complainant's departure from Australia and the other circumstances. The court also took into account the appellant's ties to the community and his previous good conduct. Justice Smith held that the appellant's right to liberty was not to be lightly disregarded and that the interests of justice required the grant of bail with conditions.

The court ultimately decided to grant bail to the appellant, subject to specific conditions, including a curfew, reporting requirements, and a no-contact order with the complainant. The court's decision was based on a thorough analysis of the evidence and the surrounding circumstances, and it demonstrated a balanced approach to the competing interests of the appellant and the community. The final orders of the court reflect the conditions imposed on the appellant's bail and the importance of ensuring the safety of all parties involved in the case.

Orders