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Supreme Court of Victoria |
Last Updated: 21 September 2017
AT MELBOURNE
CRIMINAL DIVISION
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW – Bail – Extortion with threat to injure, stalking, harass witness, use of a carriage service to harass and attempt to pervert the course of justice – Applicant in ‘show cause’ position – Whether unacceptable risk of failing to answer bail or interfering with witnesses – Bail refused.
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APPEARANCES:
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Counsel
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Solicitors
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For the Accused
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Ms J Condon SC
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Leanne Warren & Associates
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For the Crown
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Mr J D Singh
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Mr J Cain, Solicitor for Public Prosecutions
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1 On 24 August 2017, the applicant was arrested and charged with extortion with threat to injure, stalking, harassing a witness, using a carriage service to menace (charges 1 to 4) and attempting to pervert the course of justice (charge 5). The informant for these offences is Detective Senior Constable Amber-Lee Ackroyd.
2 On 13 September 2017, further two charges of committing an indictable offence whilst on bail and one charge of contravening a bail condition were filed against him.
The alleged offending
3 The events that gave rise to charges 1 through 4 allegedly occurred between 18 and 23 August 2017. It is alleged that the applicant and a co-accused, Liam Spiteri, attempted to recover a debt in the order of $100,000 from an associate, Ahmed El Samad. In trying to recover the debt, Spiteri allegedly made threats of violence against El Samad and his family. Spiteri has been charged in relation to this alleged offending. Following Spiteri’s arrest on 22 August 2017, the applicant allegedly sent text messages to El Samad, asking him to withdraw his statement and suggesting that ‘some one [sic] else will be coming tonight’.
4 It is neither necessary nor desirable to set out the details of the Crown case in this judgment. In brief, the Crown’s case against the applicant includes, inter alia, statements made by El Samad and his family, a series of text messages from the applicant to El Samad (stating that he was aware Spiteri had been arrested, that he did not wish to go to gaol himself and that El Samad should tell the police that the applicant never threatened him) as well as telephone records between the applicant and Spiteri around the time of the alleged offending.
5 The charge of attempting to pervert the course of justice arises out of events alleged to have occurred on 10 March 2017. This is a distinct episode of alleged offending which relates solely to the allegation that the applicant engaged an associate, Brendan Abela, to offer a $20,000 inducement to have a witnesses’ statement withdrawn. The $20,000 was offered to Brian Lewis, who is the father of the witness, Kerrern Hanns. Kerrern Hanns is the mother of the victim, Aaron Hanns, who was allegedly blackmailed and threatened by the applicant’s brother, Osama El Sayed, over an outstanding drug debt.
6 The prosecution contends that Abela was acting at the behest of the applicant. The evidence it seeks to rely on includes: statements from Kerrern Hanns and Brian Lewis (although neither statement implicates the applicant); six phone calls between the applicant and Abela around the time that the approach was made; an ARUNTA call between the applicant and his brother Osama on 9 March 2017 in which, in response to a question about his current court case and charges of blackmail, the applicant stated that ‘Brendan [i.e. Abela] is taking care of it’; another ARUNTA call on 10 March 2017 regarding Abela; and further ARUNTA calls between the applicant, Osama and Anthony Mekhael between 9 and 10 March 2017, which have not yet been transcribed and translated from Arabic to English.
7 At the time of the alleged offending in March, the applicant was on bail in respect of two other sets of offences, which were allegedly committed in July and September 2016. These involved charges of affray, assault and drug related matters. Although the prosecution has indicated to me in Court that these charges will be withdrawn, they were on foot at the time of the alleged offending in March, and so remain relevant for the purposes of considering this bail application.
8 Additionally, at the time of the alleged offending in March 2017, the applicant was the subject of a Community Corrections Order (‘CCO’) of one year’s duration, which commenced on 5 August 2016.
9 The applicant initially applied for bail at the Melbourne Magistrates’ Court on 24 August 2017. Bail was refused on the basis that the applicant failed to show cause and was an unacceptable risk of committing further offences on bail, endangering the safety and welfare of members of the public and interfering with witnesses or perverting the course of justice.
The current state of the proceeding
10 The applicant is due to have a committal mention in the Melbourne Magistrates’ Court on 11 October 2017. The brief of evidence has not been completed, with transcripts of ARUNTA calls and some further statements still outstanding. The applicant points out that it might reasonably be anticipated that the trial of his proceeding will not be listed in the County Court before the end of 2019; however, this is contested by the Crown.
11 On 30 August 2017 the applicant filed an application for bail in this Court. This is the hearing of that application.
12 Pursuant to ss 4(4)(a), 4(4)(b)(ii) and 4(4)(c) of the Bail Act 1977 (‘the Act’) the applicant is required to show cause why his detention in custody is not justified. This is primarily because the applicant has been charged with an indictable offence which was allegedly committed while he was at large awaiting trial for another indictable offence.
Applicant’s contentions
13 The applicant seeks an order granting his release on bail on conditions that he reside at a particular address, report daily to a police station, not contact any witnesses for the prosecution, possess one mobile phone and provide the number to the informant, not leave the State of Victoria, not attend the area where the complainant lives or works, and curfew.
14 In support of his application, the applicant submits that the following factors in combination establish and show cause why his continued detention in custody is not justified and address any unacceptable risks alleged by the prosecution:
(a) The prosecution case against the applicant in respect of both incidents is ‘not strong’;
(b) In particular, there is no direct or indirect evidence that could establish complicity between the applicant and Spiteri as to the existence of an agreement, namely to the effect that Spiteri engage in the acts that he has been charged with;
(c) The alleged victim, El Samad, has made prior inconsistent statements which may damage his credibility in front of a jury. His most recent statement to police retracted a number of assertions that previously implicated the applicant in the existence of an agreement;
(d) There is no evidence as to any agreement between the applicant and Abela to attend upon Mr Lewis and induce him to have the witnesses’ statement withdrawn;
(e) The state of evidence with respect to the attempt to pervert the course of justice charge is precarious and is unlikely to sustain a conviction;
(f) There is likely to be significant delay in that a committal hearing may not occur until 15 November 2017. The potential delay is likely to be even longer if the charges are severed and there is a need for two trials rather than one. The applicant submits that the likely delay is more along the lines of 18 rather than 12 months;
(g) Although the applicant has a criminal history, it is relatively minor, and this is his first time in custody. His prior convictions—escaping lawful custody in 2010 and failing to appear in 2000—both occurred years ago;
(h) The applicant has ties to the jurisdiction and family support. His parents, siblings and partner all reside in Victoria. He also owns property in Victoria;
(i) The applicant has an offer of gainful employment from Anthony Menniti, Director of Menniti Builders;
(j) The applicant’s partner, Kristina Kuzmanovska, has offered a surety of $100,000. The applicant’s long-term friend, Chris Chrisopoulidis, has offered a further surety of $150,000. This makes the total surety $250,000;
(k) The applicant can reside at his mother’s house as an alternative place of residence so as to alleviate the prosecution’s concerns regarding police’s inability to attend upon the proposed address due to security of the building;
(l) The fact that there are a range of conditions that this Court can attach to any grant of bail to reduce the risk posed by the applicant to an acceptable level.
The Crown’s contentions
15 In the Crown’s affidavit in opposition, it was stated that bail was opposed on the basis that the applicant posed an unacceptable risk of failure to surrender himself into custody and to answer bail, interfering with witnesses or otherwise obstructing the course of justice, endangering the safety and welfare of the public and committing further offences whilst on bail.
16 In response to the applicant’s contention of delay, the Crown submits that even if the matter were to be severed into two trials, it is reasonable to anticipate a trial date in less than 12 months from committal.
17 As to the applicant’s prior history, the Crown submits that although the applicant hasn’t been in custody before, his criminal history shows a flagrant and persistent disregard of the law over many years. He has a prior conviction for escaping from lawful custody and one prior finding of guilt for failure to answer bail in relation to two charges. He was on bail at the time of the alleged offending in March 2017 and was the subject of CCO which he did not comply with.
18 The Crown refers to an email of Nicholas Evangelou, case manager at Werribee Community Correctional Services, dated 4 September 2017, which stated that the applicant’s attendance at Sunshine Community Correctional Services throughout the duration of his order was ‘sporadic citing work and forgetfulness as the main reasons for his absences. In relation to this condition of his order, [the applicant] accrued a total of six unacceptable absences’. Mr Evangelou further reported that the applicant’s compliance under his drug and alcohol condition was ‘unsatisfactory’ and that he had ‘failed to attend six appointments with the Australian Community Support Organisation’.
19 In response to the applicant’s contention that the prosecution case is weak, the Crown submits that the circumstantial evidence is sufficient to support a strong prima facie case. In particular, with respect to charges 1 to 4, the Crown relies upon the text messages sent from the applicant to El Samad the day after Spiteri was arrested. The Crown submits that these messages constitute direct evidence that could satisfy a jury. With respect to charge 5, the Crown relies on the six phone calls between the applicant and Abela, and the abovementioned ARUNTA calls.
20 Further, the Crown refers to three recent and comparable decisions of this Court, Re Sam Abdulrahim,[1] Re Constantinos Kremmos[2] and Re Moshey Youkhana,[3] in support of its contention that cause has not been shown in this case.
Analysis
21 As I have said, under s 4(4) of the Act, the applicant is required to show cause why his detention in custody is not justified. The Act does not define the term ‘show cause’ nor describe the correct approach to be taken on an application for bail.
22 Some guidance, however, is offered by the reasons for judgment of Maxwell P in Re Fred Joseph Asmar.[4] After referring to reasons of Gillard J in Director of Public Prosecutions v Harika,[5] Maxwell P held that s 4(4) only requires the Court to consider one question, namely ‘whether the applicant has satisfied the court that his/her detention in custody is not justified’.[6]
That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step ...This does not mean that the “unacceptable risk” issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.[7]
24 In answer to the applicant’s contention that the Crown case is ‘not a strong one’, it is sufficient to say that it is not appropriate for me to analyse each piece of evidence to determine its likely importance to a jury, or express any firm or concluded view about the strength or otherwise of the Crown case. I have not had the benefit of seeing the witnesses being cross-examined in relation to the evidence that might be regarded as critical in a trial.
25 The material filed on this application discloses that there is a body of circumstantial evidence (even putting aside El Samad’s original witness statement) that will in all likelihood be found admissible at any trial. For the purposes of this application, I am persuaded that the applicant may have a reasonable prospect of being acquitted. However, I am unable to accept the applicant’s submission that the Crown case is weak. This is not an open and shut case.
26 Although this is the applicant’s first time in custody, he has a significant criminal history of offences of violence, dishonesty, firearm, driving and drug offences. He has failed to attend appointments in accordance with his 2016 CCO, and has allegedly committed further offences whilst on bail for other offences allegedly committed in 2016. While the prosecution has indicated that those earlier offences will be withdrawn, they were on foot at the time of the alleged offending in March 2017, and so remain relevant for the purposes of this bail application. I accept the applicant’s submission that his previous conviction for escaping from lawful custody was not a particularly grave example of that offence and that his previous failure to answer bail was committed some 17 years ago.
27 I accept that there may be some delay, particularly if the matter is to proceed as two separate trials. However, the delay relied upon by the applicant, even if considered together with the strength or otherwise of the prosecution case and other relevant matters in support of the application, does not show why the applicant’s continued detention in custody is not justified. This is particularly so given the allegations that the applicant has directly or indirectly threatened witnesses and so interfered in the administration of justice in this State.
28 Notwithstanding counsel for the applicant’s forceful submissions, I am not persuaded that the conditions sought would make the risk posed by the applicant acceptable.
29 In any event, the applicant has not shown cause why his continued detention in custody is not justified. As such, his application for bail must be refused.
[6] Ibid [11].
[7] Ibid [11]–[12].
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2017/563.html