Re Mayhoub

[2019] VSC 883

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0135

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by            SAMIR MAYHOUB

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2019
DATE OF JUDGMENT:	17 July 2019
DATE OF REASONS:	20 August 2021
CASE MAY BE CITED AS:	Re Mayhoub
MEDIUM NEUTRAL CITATION:	[2019] VSC 883

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CRIMINAL LAW – Application for bail – Murder – Exceptional circumstances found – Applicant not unacceptable risk.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Thomas	Lewenberg & Lewenberg Solicitors
For the Accused	Mr D Brown	Mr J Cain, Solicitor for Public Prosecutions

HIS HONOUR:

1. The applicant was arrested on 23 May 2019 and charged with the murder of Bunyamin Oksuz on 22 May 2019.  By notice dated 19 June 2019 the applicant makes application for bail.  He has been charged with murder and therefore must show that exceptional circumstances exist that justify the grant of bail.[1]

   [1]See ss 4AA(1) and 4A(1)(a) of the Bail Act (1977) (‘the Act’).

1. The factual allegations may be stated briefly and they are informed by my own viewing and assessment of the CCTV footage, a compilation tape of which has been provided.

1. Shortly before 9.00am on 22 May 2019, the deceased and his friend Kenyan Kaya went to [redacted], where the applicant with his wife and three children lived.  The purpose of the visit was to collect money that the deceased claimed he was owed, for work that he had done at those premises.  The dispute over the alleged debt was long running.

1. The applicant apparently regarded the work as unsatisfactory and had paid some amounts, but had either refused or failed to pay the balance.  On the night in question, the deceased and Mr Kaya were prepared to use at least intimidation to help enforce the debt.  There is CCTV footage from the house of many of the relevant circumstances.  It can be seen that the two men forced their way into the house and having been in the house for about thirty seconds, come outside again with the deceased being pushed out by the applicant’s wife.

1. Kaya who had been the first to emerge from the house, moved down the stairs of the porch as if to leave.  The applicant’s wife continued to verbally confront the deceased and tried to get him to leave.  The deceased came to the front door and his wife tried to push him back inside.  Mrs Mayhoub then goes to speak to Kaya who was at the foot of the front porch steps.  As she was doing so, the applicant came out onto the porch.  He was armed with what appears to be a carving knife held facing backwards and that knife is otherwise been described as a camping knife or a kitchen knife.  In relation to the most recent affidavit filed, it is a knife, the total length of which is around about 27 centimetres.

1. The applicant speaks to the deceased and points out the CCTV camera or cameras.  Mrs Mayhoub returns to a spot near her husband.  The deceased is not behaving violently at that stage, but appears to be pleading with the Mayhoubs.  Mrs Mayhoub continued to argue with the deceased.  The applicant turns the knife to face forwards and approaches the deceased and the discussion or argument between the deceased and the applicant and Mrs Mayhoub continues.

1. The deceased appears to turn away and is pushed by the applicant and the deceased turned around quickly to face the applicant, who appears at that stage to threaten him with the knife.  Mrs Mayhoub grabs the right arm of the applicant, as the deceased moved backwards down the steps and is kicked by the applicant with his left leg, near his hip.

1. He grabs the applicant’s foot or leg and as the applicant pulls his leg back, the deceased who is holding his leg, is pulled back towards the applicant, who places his left hand behind the deceased and pulls him towards himself.  How that action is to be characterised is a matter for future analysis by others.

1. Throughout, the whole of that episode Mrs Mayhoub appears to be trying to restrain the applicant by grabbing his right arm.  It appears that at about that time, the deceased must have been stabbed.  The deceased and Mrs Mayhoub restrained the applicant and got him back inside the house.  The deceased left only to collapse shortly after leaving the premises and later died as a result of a single stab wound to the right lung, in which the pulmonary artery was severed and led to such significant blood loss to cause death.

1. The scheme of the Act is now such that the bail decision–maker is obliged to first consider the question of exceptional circumstances and, if satisfied that such circumstances exist, then to consider the question of unacceptable risk.  In this case, it is not submitted that the applicant is an unacceptable risk.

1. In support of the application, the applicant relied upon a number of matters including his good character, his good work and employment record, the availability of continued employment, his stable home background, delay and weakness of the Crown case.  In considering the existence of exceptional circumstances, I am obliged to have regard to the surrounding circumstances as defined in s 3AAA of the Act.[2]

   [2]See also s 4A(3).

1. In this case the following surrounding circumstances are relevant:

(a)   the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b)  the strength of the prosecution case;

(c)   the accused’s criminal history; and

(d)  the accused’s personal circumstances, associations, home environment and background.

1. It is almost trite to say that a combination of circumstances may amount to exceptional circumstances.[3]  That is not to say that the exceptional circumstances test is not a high one but it must be borne in mind that it is not an impossible one.[4]

   [3]See DPP v Cozzi (2005) 12 VR 211, [22]–[25] (Coldrey J).

   [4]See, for instance, Re Ceylan [2018] VSC 362; Re Sipser [2019] VSC 362 and Re Martyn Moore [2019] VSC 344.

1. The second supplementary affidavit in support of the applicant contains a purported analysis of the CCTV footage.  It follows, from what I have said, that is not my analysis of the material.  It is submitted on behalf of the applicant that there are two aspects of the case that bear consideration.  First, whether a case for murder can be described as a strong or reasonably strong one, and whether or not the issue of self-defence is open.

1. It was urged on me, and this forms part of the affidavit material, that it is argued that there is a strong possibility of complete acquittal, and I must say as I have outlined in argument I would not go so far as that.  It does seem to me, however, that the case for murder, when the material is looked at and analysed in some detail, is not a strong case.  Murder could only be made out, it seems to me, or it is likely that it can only be made out, if a jury were satisfied beyond reasonable doubt that the reason that the applicant placed his left hand behind the shoulder or back of the deceased was for the purpose of pulling him in so to stab him.  I think that will be a very difficult proposition for the prosecution.

1. In those circumstances, in relation to the crime of murder, I do not regard this as a strong case.  Indeed, if I was forced to find an adjective to describe it I think I would describe it as a weak case for murder.  That is not to say that the conduct is not capable of being characterised as very serious conduct, and of course the question of manslaughter will plainly be open.

1. I am not convinced that the argument that since the mechanics of the stabbing cannot be established that that will significantly diminish the manslaughter case.  It is after all the applicant who introduces the knife into the case.  In the circumstances therefore I am satisfied that exceptional circumstances have been made out and I will grant bail.

1. A surety is available.  It was urged on me that I should not in all the circumstances take that up, but I think given the seriousness of the offending that I should do so.  I have decided that in relation to the case there should be a reporting condition.

1. Mr Mayhoub will be admitted to bail on his own undertaking under the following conditions:

1.He attend the Melbourne Magistrates’ Court on 15 August 2019 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.

2.He reside at [redacted] in Victoria, and not change that address without the leave of the Court.

3.He report Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Broadmeadows, or his or her nominee, between the hours of 7.30am and 7.30pm.

4.He not contact, directly or indirectly, any witness for the prosecution, except the informant.

5.He not leave the State of Victoria

6.He not attend any points of international departure.

7.He surrender any passport he may have to the informant within 48 hours or if he had no passport, not apply for any passport.