Re Mohamed - [2019] VSC 83

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2019 0008

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by Joseph MOHAMED

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 20 February 2019
DATE OF JUDGMENT:	20 February 2019
CASE MAY BE CITED AS:	Re Mohamed
MEDIUM NEUTRAL CITATION:	[2019] VSC 83

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CRIMINAL LAW – Bail application – Applicant required to show compelling reason – Charge of armed robbery – Youth – No criminal history – Family support – Employment – Study – Delay – Bail granted with conditions – Applicant allowed to return to Western Australia – Bail Act 1977.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R. Lawrence	Stary Norton Halphen
For the Respondent	Ms G. Coghlan	Office of Public Prosecutions

HIS HONOUR:

Introduction

On 2 January 2019, Joseph Mohamed (‘the applicant’) was arrested and charged with armed robbery in relation to events alleged to have occurred the previous evening.

The applicant has been in custody since the day of his arrest. He has no outstanding matters and was not subject to any court orders at the time of the alleged offending. On 4 January 2019, the applicant was refused bail at the Melbourne Magistrates’ Court. This matter is next listed for committal mention on 28 March 2019 at the Melbourne Magistrates’ Court.

There is one co-accused, Mustafa Mohamed (‘the co-accused’), who was arrested and charged on 1 January 2019 with offences of armed robbery and making a threat to kill. He was granted bail at the Melbourne Magistrates’ Court on 4 January 2019. While the co-accused has no criminal history in Victoria, I note that following the grant of bail, it was found that he has two prior matters from Western Australia relating to the possession of cannabis and common assault, both of which resulted in fines.

The alleged offending

On 1 January 2019, the complainant placed an advertisement on Facebook Marketplace, seeking to sell a new Apple iPhone XS. The complainant was contacted by a Facebook user named ‘Reece Afowji’, and they reached an agreement for sale of the iPhone for $1,800. The Facebook user informed the complainant that her boyfriend would attend the complainant’s residence in Hoppers Crossing to pick up the iPhone.

At approximately 8.40pm that evening, the complainant exited his residence to meet the purchaser of the iPhone in his driveway. He was then approached by two men, allegedly being the applicant and the co-accused.

The prosecution case is that the co-accused began conversing with the complainant and inspecting the iPhone, while the applicant was talking on his mobile phone. The complainant became uncomfortable and retrieved his iPhone from the co‑accused. It is alleged the applicant then unsuccessfully attempted to grab the iPhone. The co-accused allegedly produced a knife and held it towards the complainant’s throat, stating, ‘give me the phone or I’ll kill you’. The complainant surrendered the iPhone.

Following the…

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 Mohamed

Details

AGLC: Re Mohamed [2019] VSC 83
Case: [2019] VSC 83
Decision Date: 20 February 2019

CaseChat Overview and Summary

The case of Re Mohamed involved an application for bail by the applicant, who faced a charge of armed robbery. The case was heard by the Supreme Court of Western Australia. The primary issue before the court was whether the applicant had demonstrated a compelling reason to be granted bail, considering the seriousness of the charge, his youth, lack of criminal history, and the support available to him in Western Australia.

The court considered the applicant's age and lack of prior criminal involvement as significant factors in his favour. Additionally, the applicant's ties to family, employment, and study opportunities in Western Australia were highlighted as strong indicators of his likelihood to comply with any bail conditions and to appear for trial. The delay in the proceedings was also noted, with the court acknowledging the potential impact on the applicant's circumstances. The court ultimately found that these factors, combined, constituted a compelling reason for the grant of bail.

In granting bail, the court imposed several conditions to ensure the applicant's compliance and to protect the community. These conditions included a requirement for the applicant to return to Western Australia and to report regularly to a bail supervisor. The court also set specific guidelines regarding the applicant's travel and curfew. The decision was grounded in the balance between the seriousness of the charge and the applicant's personal circumstances, which collectively supported the grant of bail.

Orders