DPP v Muhaidat [2004] VSC 17

Supreme Court of Victoria|2004-01-20|Before: KAYE J.

This is an application for bail pending the committal proceeding. The applicant, Ismail Muhaidat, is charged with one count of murder.

It is alleged on 2 September 2003 Muhaidat, together with his co-accused, Craig Gallis and Stephen Mikhail, and a co-offender who is currently in Lebanon, Monsia Helal, murdered Robert D'Amico at premises then occupied by D'Amico and one David Walker at 7 Athena Close Tullamarine.

In addition, the applicant is currently in custody awaiting a committal mention and applies for bail in respect of charges of cultivating and trafficking commercial quantities of drugs at premises at Keilor Park and at Glenroy between 27 October 2003 and 12 November 2003.

I note that 12 November 2003 is the date on which Muhaidat and Gallis were arrested and interviewed by the police in relation to the murder charge.

Muhaidat is 23 years of age, having been born in June 1980. After his arrest he and Gallis were remanded in custody for a hearing at the Melbourne Magistrates' Court on 30 November 2003. They were subsequently remanded in custody to appear at the Melbourne Magistrates' Court on 18 February of this year for a committal mention.

In the meantime Mikhail has also been arrested and interviewed, and is remanded in custody to appear in the Melbourne Magistrates' Court on 18 February 2004 for a committal mention. As I have already stated Helal, the other co-offender, is currently in Lebanon and as I understand it extradition proceedings are anticipated in relation to him in relation to the murder case.

Section 4, sub-section 1 of the Bail Act 1977 provides that: "A person who is accused of an offence and who is being held in custody in relation to it is entitled to a grant of bail." The same section describes a number of exceptions to that general rule. Relevant exceptions for this purpose are firstly where there is a charge of murder, that is s.4 sub-s.(2) sub-s.(a), and secondly where there are charges of offences of trafficking or cultivating drugs of dependence in excess of commercial quantities. That exception is prescribed by s.4(2)(AA)(i) of the Act.

The effect of the Bail Act, and in particular s.13, is that in relation to the murder charge the applicant must first establish existence of exceptional circumstances in order as a threshold issue to qualify for a grant of bail. The effect of s.4(2)(AA) of the Bail Act is that he must likewise in relation to the drug charges establish the existence of exceptional circumstances.

If those exceptional circumstances are made out, that is not the end of the inquiry. The question is then whether in any event the applicant is entitled to a grant of bail at this stage. The court is required to refuse bail if it is satisfied there is an unacceptable risk that the accused, if released on bail, will commit any of the acts which are prohibited by sub-s.4(2)(D) of the Act.

The Crown, in this case, relies on an unacceptable risk that the applicant would fail to surrender, would commit an offence or would interfere with witnesses if he was released on bail.

The first inquiry in this case is whether exceptional circumstances are made out in relation to the murder case. In argument I canvassed the proposition to counsel whether, if I was not so satisfied, it would be profitable to inquire into whether exceptional circumstances were made out on the drug case.

I formed the conclusion, which is shared by counsel for the applicant and respondent, that if I am not satisfied there are exceptional circumstances on the murder case which would entitle, or may entitle the applicant to bail, it would in fact be unprofitable, and indeed unfair to Muhaidat, to enter into the second area of inquiry, namely, whether exceptional circumstances exist in the drug case, lest to do so might in fact prejudice him should he ultimately be in a position where he would wish to apply for bail in relation to the drug matters.

The question of what are exceptional circumstances have been canvassed before. Effectively the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.

Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters. The law which binds me and the applicant means that in order to, as a threshold matter, be entitled to consideration for bail at this stage he has to show exceptional circumstances, as I have endeavoured to explain.

In an affidavit in support of the application the applicant's solicitor, Mr Furstenberg, and his counsel Mr Mongomery in extensive and careful submissions, have adverted to a number of matters. But the key one seems to me in relation to the murder charge, to be the proposition that the Crown case is inherently weak and thus that the accused man has a good prospect of acquittal.

It is well established that at this stage in considering the question of bail, I should say as little as possible on the ultimate prospects of the Crown case. There are a number of very good reasons for that. Firstly, and of course most importantly, if the applicant is committed to trial then it is essentially the province of the jury to pass on the issue of guilt or otherwise. For a judge at this stage to do so, in any terms other than what is strictly necessary, would be both unjust and would also, in my view, prejudice the due administration of justice.

Secondly, where an applicant faces a joint trial there is always the prospect that the case against him might either weaken or strengthen at the trial, depending quite often on the attitude of the co-accused. The co-accused, for various reasons, can either seek to implicate an applicant or indeed on rare occasions support the applicant for reasons of their own.

Now, given that injunction it is necessary for me to briefly refer to the circumstances of the fatal shooting in September of last year. It appears that before his death the deceased, D'Amico, and Walker, with whom he was residing, cultivated a crop of cannabis at the premises at Athena Close Tullamarine.

That circumstance became known to two young females who associated with the deceased and Walker. One of them told Gallis, a co-accused, of the existence of the cannabis crop. Gallis determined to try to steal those items. Accordingly he, Mikhail, the applicant and Helal hatched a plot to do a run-through of the home which, as I understand it is to either burgle or rob the home.

For that purpose Gallis armed himself with a .38 calibre hand-gun. The applicant, Muhaidat, took some timber with him, which apparently resembled a baseball bat. Helal took an (indistinct). The men met, as I understand it, separately in a side street near the deceased's home.

Mikhail and Gallis forced the front door. Mikhail and Helal then entered the first bedroom which contained Walker and they tied him up and demanded from him the location of money and drugs. In the meantime it would seem that Gallis, and the applicant entered the lounge-room and confronted the deceased. Indeed, as I understand the record of interview of the applicant, he may have gone in first.

Gallis forced the deceased onto the ground and the applicant assisted Gallis, before Gallis then told Muhaidat to go and search the remainder of the house. Shortly afterwards, as Gallis was attempting to bind the deceased's wrists with black electrical tape the firearm discharged. Muhaidat, who was making his way to the back of the house, says he heard a bang. The deceased was shot in the back. The bullet passed through his lungs and lodged in the floor.

After hearing the firearm discharge, Mikhail ran out of Walker's bedroom, confronted Gallis and asked him what he had done. When it was ascertained that the deceased had been shot, all four offenders promptly decamped.

It is not necessary for me to detail the investigations. Apparently, as I understand it, DNA investigations referred the police to Gallis and telephone intercepts led them to then identify Mikhail and the applicant.

On 12 November 2003, as I have stated, the applicant and Gallis were arrested and interviewed. In his interview the applicant in passages in the record of interview which have been canvassed fairly extensively in argument, admitted that he knew Gallis had a gun when they were entering the premises. Prior to that at most he suspected that there was a gun there because of joking between them. But he seems to have admitted that he knew the gun was in Gallis' possession when they entered the premises.

He stated that when he confronted the deceased in the lounge-room, Gallis then came in and he had the gun in his hand, and at some stage he pointed it between the back of the deceased's legs. He says in his interview that Mr Gallis said to him: "I've got him, Ish -" meaning the applicant: "- it's all right." So the applicant then went to the back of the house and when he did so he heard a bang and everyone started running.

Now that, in rather threadbare summary, is a brief description of the events. As I stated, I adhere to the cautions expressed in a number of the authorities, that I should not say much about the prospects of success or otherwise, not only the applicant but particularly the co-accused.

What does seem clear on the materials, in the Crown brief, is that the four offenders were embarked on a joint enterprise when they went to the premises. It seems that the joint enterprise involved at least the use of threats of violence brandishing weapons. As they entered the premises, and before the fatal shot was fired, Muhaidat knew that the co-offender, Gallis, had a gun.

It if was accepted that the discharge of the firearm was unintentional and at the moment I agree with Mr Montgomery, there does not seem to be any evidence to the contrary. It would seem that the charge of murder which would lie against the accused would be brought under s.3A of the Crimes Act.

I must say, and I take particular care in saying this, that it cannot be said for the purposes of looking at the matter from Muhaidat's point of view that the Crown case against Gallis is weak. It seems to me it is a prima facie view expressed purely for the purposes of assessing Muhaidat's bail that a case of murder under s.3A may be made out against Gallis. Whether it is a good or a bad case I cannot go beyond that and I take care not to.

The real thrust of what Mr Montgomery says is well ultimately the fatal shot was unintentional. Being unintentional it must lie outside any common concert to which Muhaidat was a party and therefore Muhaidat has good prospects of an acquittal.

This is a difficult issue for a judge determining issues of trial. Ultimately what Mr Montgomery puts as an issue of law which may, if Muhaidat is committed for trial, have to be decided upon proper debate then. I therefore refrain from expressing any views on that other than the view purely for the purposes of bail application and no more, that I do not think that the argument proffered by Mr Trapnell in relation to that issue is weak.

In other words it seems to me there is at least force in the argument that where an accused is a party to an act of robbery involving the use of a firearm, involving threats of violence and the firearm unintentionally goes off in the hands of the co-accused, it is not a weak proposition to say that that lies within and not outside the concert.

I emphasise that is a preliminary view, it is not a prejudgment should Muhaidat be committed for trial and it is an issue which I would think would very much be at large ultimately. But that in itself is important to determine whether there are exceptional circumstances because having reached that conclusion I do not conclude, at this stage, that the Crown case is weak.

That leaves two other matters either conjointly or separately, of potentially qualifying as exceptional circumstances. The first is a position of the applicant's de facto, Ms Deluce, she was pregnant and due to give birth to her first child in something like three weeks time. No doubt that circumstance will bear hard on both Ms Deluce and Muhaidat should I refuse an application for bail.

However, regrettably it is a circumstance which is of the character or type which can affect a number of applicants for bail. It is not, in my view, alone or indeed in combination at this stage with questions of potential and not actual delay, an exceptional circumstance. That is not to say that the court is unsympathetic to the accused people, their families and in particular their children where, as a result of matters which are not of their making, delays occur which mean that they might not be brought for trial for some time.

I am looking at the matter purely as a matter of potential and not actual delay. But it seems to me that that factor, combined with simple with potential not actual delay at this stage does not qualify as exceptional circumstances. That matter may or may not alter given the ultimate disposition of these matters, and there are complexities attaching to the fact that they are drug charges which Muhaidat now faces.

At this stage, and it is all I can judge it at, at this moment, I am unable to bring myself to the conclusion within the meaning of the Bail Act that exceptional circumstances are made (indistinct). In those circumstances I come to the conclusion that on the charge of murder Muhaidat has not made out exceptional circumstances and therefore would not be entitled to bail.

I note without passing on them that the Crown also raise questions of unacceptable risk should I have come to the contrary conclusion that there were exceptional circumstances. I note but make no finding in relation to those issues relating to unacceptable risk of flight or not attending at trial, in relation to interference with witnesses and in relation to offending. The only comment I do make is on the issue as it currently stands I do not see an unacceptable risk on interfering with witnesses, that remark is made purely on the materials before me.

Having come to that conclusion, the reasons which I have already expressed which have been discussed with counsel, it is unnecessary and in my view undesirable that I determine whether exceptional circumstances are made out on the drug matters. If I came to that conclusion it would not affect the immediate disposition of Muhaidat.

If I came to a contrary conclusion then that may very well jeopardise Muhaidat should he ultimately be in a position where he could realistically make an application for bail on those matters. So, as a matter of fairness I decline to do so.

On the charge of murder I accordingly refuse the application for bail. Thank you, gentlemen.

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