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:

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’).

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.

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.

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.

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…

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 Mayhoub

Details

AGLC: Re Mayhoub [2019] VSC 883
Case: [2019] VSC 883
Decision Date: 17 July 2019

CaseChat Overview and Summary

In the matter of Re Mayhoub, the applicant, an individual charged with murder, sought bail from the Supreme Court of Victoria. The respondent, the state, opposed the bail application on the basis of the gravity of the offence and the risk of flight. The court was required to determine whether exceptional circumstances existed that would warrant the granting of bail in such a serious criminal case. The applicant argued that the alleged crime occurred in the heat of the moment, and that there was no evidence to suggest that the applicant posed a risk to the community if released on bail.

The court considered the principles governing bail applications in serious criminal cases, including the presumption against bail for indictable offences, the principle that bail should not be denied solely on the basis of the seriousness of the offence, and the need to balance the rights of the accused with the interests of the community. The court also examined the specific circumstances of the case, including the applicant's background, the nature of the alleged offence, and the risk of flight or reoffending. Ultimately, the court found that exceptional circumstances did exist, as the applicant had a strong ties to the community, including a stable employment history and a supportive family network. The court also found that the applicant was not an unacceptable risk to the community, as there was no evidence to suggest that the applicant would reoffend or pose a danger to the public if released on bail.

The court granted the applicant's bail application, subject to strict conditions designed to ensure the applicant's attendance at future court appearances and to protect the safety of the community. The court emphasised the importance of balancing the rights of the accused with the need to protect the community, and found that in this case, the granting of bail was in the interests of justice. The final orders of the court included the release of the applicant on bail, subject to the conditions imposed, and the direction that the applicant attend court on the specified future dates.

Orders