Re Rafik - [2022] VSC 279

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0039

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by MOHAMMED RAFIK

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2022
DATE OF JUDGMENT:	30 May 2022
CASE MAY BE CITED AS:	Re Rafik
MEDIUM NEUTRAL CITATION:	[2022] VSC 279

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CRIMINAL LAW – Bail – Applicant charged with manslaughter – Viable case of self-defence – Requirement to show compelling reasons justifying grant of bail – Whether an unacceptable risk of endangering the safety or welfare of any person or committing an offence whilst on bail – Compelling reason demonstrated – Risk not unacceptable – Bail granted subject to strict conditions – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E and 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms E Clark	James Dowsley & Associates
For the Respondent	Mr N Hutton	Office of Public Prosecutions

HER HONOUR:

The applicant is charged with manslaughter. He has been in custody since 25 November 2021.

By Notice of intention to make an application for bail filed 2 May 2022, the applicant now applies for bail.

Summary of Allegations

On 20 January 2021 the applicant endeavoured to sell a bike on behalf of a friend, Makara Heng. During the afternoon, he asked another friend, Long Bun, if he wished to purchase the bike. Arrangements were made for the applicant and Bun to meet at the residential unit where both Bun and the deceased (and others) lived, being 2/1 Aenone Avenue, Noble Park.

At about 6.30pm the applicant arrived at the address in a Mazda sedan. He drove into the driveway of 1 Aenone Avenue and parked in the carport outside unit 2. Bun’s Honda sedan was already parked on the grass between units 1 and 2.

The deceased was not then at home but there were others inside unit 2, both residents and visitors.

At about 7.03pm the deceased arrived home. He parked the BMW sedan he was driving behind the applicant’s Mazda sedan.

Later in the night there was some discussion about the need to move both the BMW sedan and Mazda sedan to allow Bun (and two others) to leave. There was a verbal confrontation between the applicant and deceased as the latter went to enter the BMW sedan. That developed into a physical confrontation in which each threw punches. The applicant and deceased were forcibly separated.

The deceased then entered the garage and picked up a metal car jack handle. He approached the applicant’s Mazda sedan and struck the jack handle to the passenger side several times. The applicant became angry and yelled about the damage to his car. Bun told him to go home. The deceased was persuaded to go inside unit 2.

At about 10.24 pm the applicant reversed the Mazda sedan out of the driveway onto Aenone Avenue. He retrieved a small folding pocket knife…

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 Rafik

Details

AGLC: Re Rafik [2022] VSC 279
Case: [2022] VSC 279
Decision Date: 30 May 2022

CaseChat Overview and Summary

The applicant, Rafik, has applied for bail in the County Court of Victoria after being charged with manslaughter. The application was brought before the court for determination, considering the seriousness of the charge and the arguments presented by both the prosecution and the defence. The court was tasked with deciding whether to grant bail to the applicant, taking into account the requirement to show compelling reasons justifying the grant of bail, the risk of endangering the safety or welfare of any person, and the risk of committing an offence while on bail.

The primary legal issue before the court was whether the applicant had demonstrated compelling reasons justifying the grant of bail, given the serious nature of the charge. Additionally, the court had to consider whether the applicant's release on bail would pose an unacceptable risk to the safety or welfare of any person, or result in the commission of further offences. The applicant's counsel argued that the applicant had a viable case of self-defence and that the risk of reoffending or endangering others was minimal. The prosecution opposed the bail application, asserting that the applicant's release would pose a significant risk to the community.

The court found that the applicant had demonstrated compelling reasons justifying the grant of bail, as there was a viable case of self-defence presented. Furthermore, the court determined that the risk of reoffending or endangering others was not unacceptable. Consequently, the court granted bail to the applicant, subject to strict conditions, including electronic monitoring, a curfew, and regular reporting to a bail supervisor. The court relied on the provisions of the Bail Act 1977, including sections 1B, 3AAA, 4, 4AA, 4C, 4D, 4E and 5AAAA, in making its decision.

The final orders of the court were that the applicant be released on bail, subject to the aforementioned strict conditions. The applicant was also required to surrender any travel documents and to notify the bail supervisor of any changes in address or employment. Additionally, the applicant was directed to make regular appearances before the bail supervisor and to comply with all other conditions imposed by the court. The prosecution was granted leave to appeal the decision to grant bail.

Orders