Director of Public Prosecutions v Al Qassim (Ruling)
[2025] VCC 1475
•10 October 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-25-00899
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| YASIR AL QASSIM | Respondent |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 10 October 2025 | |
DATE OF RULING: | 10 October 2025 | |
CASE MAY BE CITED AS: | DPP v Al Qassim (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1475 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Application for revocation of bail - application for variation of bail
Legislation Cited: Bail Act 1977 (Vic)
Cases Cited:Re Hammoud (Application for bail revocation) [2022] VSC 613; Re Gloury-Hyde (No 2) [2018] VSC 520; Re Ceylan [2018] VSC 361; DPP v Abbott (1997) 97 A Crim R 19
Ruling: Application for revocation denied – application to vary granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Botros | Office of Public Prosecutions |
| For the Respondent | Mr A Chernok | Slaveski & Associates |
HIS HONOUR:
Background historical matters
1Yasir Al Qassim is one of five accused charged with an attempted home invasion and criminal damage by fire (arson), among other charges, said to have occurred on 23 and 28 December 2023. Most relevantly on 23 December 2023 the accused is alleged to have gone with Mr Eser to a home at Major Road, Fawkner and fired bullets through the front door and attempted to kick the door in. On 28 December 2023 the accused is alleged to have gone with Mr Eser to the same residence and attempted to set fire to it by use of a gas bottle and fuel.
2Mr Al Qassim is currently on bail and was granted bail by his Honour Magistrate Fluxman on 6 March 2025 immediately after he was committed to stand trial. The trial is listed to commence in this Court on 20 April 2026.
3One of Mr Al Qassim’s bail conditions stipulates that he be fitted with an electronic monitoring bracelet to be supplied by Allied Universal Electronic Monitoring Australia (“Allied Universal”). He was also bound by reporting obligations to report three times per week and a curfew condition requiring him to be at home from 10.00pm to 6.00am.
The current applications
The revocation application
4The first application before the Court is an application to revoke Mr Al Qassim’s bail filed by the Director of Public Prosecutions on 12 September 2025. The application was filed on the basis that Allied Universal was due to cease provision of electronic monitoring in Victoria on 10 October 2025.[1] It was the Crown’s position that without the electronic monitoring the accused would pose an unacceptable risk. Shortly after that time the Crown, through the informant, received information from Allied Universal that the electronic monitoring revealed potential breaches of the curfew condition. Subsequently, the Crown sought documentation and a witness statement from Allied Universal – particularly a Ms Laura Windsor. Due to her unavailability, the matter was adjourned from 25 September to 8 October 2025. On the afternoon of 7 October 2025, the Crown served a witness statement of Ms Windsor and some accompanying data. The material served also included video footage obtained by the informant which is said to reveal breaches of the curfew condition.
[1]Section 5AAA(8) of the Bail Act 1977 stipulates that only prescribed entities may provide electronic monitoring. This section takes effect from 10 October 2025. Allied Universal is not a prescribed entity.
5Given the very late service of Ms Windsor’s evidence, I ruled that her evidence could not be relied on by the Crown as it unfairly prejudiced the defence. However, I ruled the video footage obtained by the informant, though late served, could be relied on as it was of short compass. Further, the Crown was permitted to submit that the video evidence provides evidence of non-compliance with the curfew condition but that it could not be submitted that there was corroborating evidence from the electronic monitoring. I adopted this course, given the impending cessation of Allied Universal’s provision of electronic monitoring on Friday 10 October 2025 and the need to consider the Crown’s application lodged on 12 September 2025 by this date, to provide certainty to the parties.
6I record that if the Crown was unsuccessful in its application to revoke bail it is free to relodge the application to revoke bail and seek to rely on Ms Windsor’s statement and evidence from Allied Universal.
The application to vary bail conditions
7The second application before the Court is Mr Al Qassim’s application to vary the terms of his bail. Specifically to (i) remove the electronic monitoring condition given the closure of Allied Universal and to require daily reporting (rather than on alternative week days), and (ii) to allow Mr Al Qassim to drive.
The legal tests to be applied
8In order for Mr Al Qassim to have been granted bail, his Honour Magistrate Fluxman was first required to be satisfied by s4C of the Bail Act 1977 (Vic) (“the Act”) that there were compelling reasons to grant bail and, with the imposition of certain conditions, that he did not pose an unacceptable risk (ss4D and 4E of the Act).
9I am bound by the Act to consider this revocation application in accordance with s18AE. That requires the Court to determine if Mr Al Qassim has:
a)committed an offence since bail was granted; or
b)is likely to commit an offence whilst on bail; or
c)has breached a condition of bail; or
d)is likely to breach a condition of bail or the bail undertaking.
10The principles to be applied in such applications were set out by the Supreme Court:
“As noted, s18AF does not elaborate on the requirements or considerations when considering a revocation application. The discretion, as noted by Priest JA, must be exercised by reference to the guiding principles in s1B of the Act but there is no apparent requirement for a judge considering a revocation application to return to the exceptional circumstances or unacceptable risk considerations which would have applied at the time of the original application, and consider those afresh.”[2]
[2]Re Hammoud (Application for bail revocation) [2022] VSC 613 at [62] citing Re Gloury-Hyde (No 2)[2018] VSC 520 at [13]
11The requirements imposed by the Act as to the second application to vary are set out in s18AD:
“On an application under section 18AC, the bail decision maker must take into account the surrounding circumstances and may-
a)vary the amount of bail or condition of bailiff it appears to the bail decision maker that it is reasonable to do so having regard to those circumstances; or
b)in any other case, dismiss the application.”
12The term “surrounding circumstances" is defined in the Act in s3AAA. I do not need to set out the terms of that section, other than to note it is highly detailed.
13The cessation of the operation of Allied Universal in Victoria, means the competing applications in this case arise in unique circumstances. An example makes this clear. A revocation application does not usually require an investigation into the strength of the prosecution case, which is conducted as part of the assessment of whether a compelling reason exists in accordance with the two steps. This can be seen from the extract from Re Hammoud above. Rather the Court is still required to consider the guiding principles in s1B of the Act, which the parties accepted required a consideration of risk of re-offending.
14However, in this case, absent the revocation application, both parties would have been forced to apply to vary the condition of the bail – because of the cessation of the electronic monitoring provided by Allied Universal. Any such application requires the Court to consider the “surrounding circumstances” which is defined to include a consideration of s3AAA(1)(b) “the strength of the prosecution case”. In this case, the Magistrate who heard the Committal and ruled there was sufficient evidence to commit the accused for trial on indictment was uniquely placed to make an assessment of this criteria. Without considering all the evidence again, this Court is at a substantial disadvantage in forming any opinion as to this criteria.
15To resolve how the Court might navigate this situation, I sought submissions from the parties. In helpful discussions with Counsel, the parties agreed that the primary consideration for the Court to assess was whether the accused represented a risk in contravention of the Act such that he was required to be remanded if the electronic monitoring condition was removed. The Crown submitted that this arose because of the guiding principles in s1B. Defence submitted that this arose because s18AD required the court to consider whether it was reasonable to vary bail by reference to the surrounding circumstances, which necessarily focused on the risk posed by an assessment of all those factors. Defence submitted that there must be some modification of the factors set out in s3AAA because of the way the application had come about, so that factors as to the strength of the prosecution case had to be given less weight. In this case I have considered each of the matters I am bound to consider in s3AAA.
16As such, I am required to consider whether the accused poses a risk if he was not subject to 24-hour electronic monitoring and whether that risk is incompatible with the Act, specifically the Guiding principles set out in s1B(1AA). I accept the Crown submission that this is not synonymous with the “unacceptable risk” test posed in s4D and 4E.
17Unacceptable risk is defined in s4E of the Act and draws in a consideration of the matters set out in the definition of “surrounding circumstances”.
18Overall, and in this particular case, I must consider the likelihood of any risk and the seriousness of harm if the risk occurs. I must also weigh up whether holding the accused on remand is warranted, given both the likelihood of the risk and the seriousness of potential harm.[3] I do so having regard to those matters set out in s3AAA.
[3] Re Ceylan [2018] VSC 361
19Having considered the matter, I do not consider that the accused poses a risk which offends the principles of the Act and specifically set out in s1B, if the electronic monitoring condition is removed. This is for the following reasons.
20I accept that the offending is objectively very serious. It is also repeated serious behaviour at a domestic home where elderly and the very young were. It is in a suburban street. Both incidents in December 2023 are serious examples of the offences. In addition it represents an escalation in the offending conducted by the accused from that which he committed in July 2022.
21I accept that the prosecution has evidence sufficient to satisfy the committing court that the matter should proceed to trial by indictment. The limited evidence from Detective Brain indicates the Crown case is a strong one.
22I accept that the accused has a relevant criminal history. This is particularly in relation to offending in 2022 for which he pleaded guilty in June 2023, and served some 304 days. This was offending involving a firearm and arson. Both these matters featured in the alleged offending in December 2023.
23I accept that there has been substantial compliance with bail conditions since they were imposed on 6 March 2025. Relevantly, that is reporting obligations three times per week and curfew obligations from 10.00pm to 6.00am. The Crown submitted that there had been non-compliance with these two conditions.
24First, that there was video footage on five nights in July 2025 showing the accused leaving his premises during curfew hours. Second, that he had missed six occasions of reporting and had no adequate excuse.
Breach of curfew considered
25Dealing with these matters, I accept that the video footage shows that the accused left his home address in curfew hours and that this constitutes a breach of the curfew condition. I am satisfied of this on the balance of probabilities to a level of comfortable satisfaction as I consider that I can make this finding without relying on inexact proofs. This is because the video footage identifies a male leaving the home at Tall Sedge Street, Epping. This is the home address of the accused and his parents. The evidence of Detective Brain was that only the accused and his parents live at that address. Next, the male entering and leaving the premises has a band around his left ankle – which is in the same position as the electronic monitor on the evidence of the informant. Next, there is a flashing at the site of the band on the left ankle, which the informant identified as the signal flash of an electronic monitor which was that of the monitor fitted to the accused. Fourth, the fact that the person leaves and returns to the premises at very late hours suggests that he is resident there. In combination, these matters satisfy me that it is the accused seen in the videos and that this establishes a breach of the curfew condition on those five dates in July 2025. What must be said, however, is that after leaving his premises the accused moves about 60 metres from his home and sits in a car which is parked there. He is not seen to leave in the car or do anything particular. It is behaviour which does not indicate any criminal activity is occurring or impending.
26The Crown suggests that this was done as the accused knew the limits of the electronic monitor and so deliberately breached curfew but tried to conceal it by staying within the safe limit that the monitor would detect his non compliance. I reject that submission as there is no evidence to support this submission.
27So, while I accept the breaches of curfew on five occasions, I find they are not of great significance given that the accused remains very close to his home (only 60 metres away) and does nothing more than sit and talk to others. I note that otherwise there has been very substantial compliance with this curfew condition. That is, over some 217 nights and the non-compliance represents 2.3 per cent of these.
Failure to report
28As to the issue of failure to report, I accept that the accused has failed to report on six occasions. The informant accepted that at least the first 3 non compliances were of minimal importance. In context, he has reported as required on 93 occasions from 6 March 2025 to date. Mathematically, that is a 6.5 per cent non-compliance.
29Of course, the assessment of a percentage of non-compliance by itself is of limited value and all the surrounding circumstances and matters must be brought to bear in the assessment of risk. Although setting this out does support my finding that the level of non-compliance is small and far outweighed by the compliance.
30The curfew breaches and the failure to report were said by the Crown to be only secondary reasons to revoke bail, The primary reason being the loss of the electronic monitoring. It was submitted that this one factor had caused the very significant compliance. I reject that submission because the compliance with the reporting obligations, driving condition and counselling conditions for example were not dependent on the electronic monitoring and he has demonstrated substantial compliance.
31As to other factors, the accused remains bailed to his home with his parents and otherwise has family support. This is a factor which supports a grant of bail because it suggests stability.
32The informant otherwise confirmed that the reason it was sought that bail be revoked was the chance of re-offending. He did not suggest there was any issue such as the accused fleeing the jurisdiction or tampering with witnesses. The informant, however, did locate this offending in the context of broader organised crime violence and suggested that there was specific risk of re-offending at night, as had previously occurred in December 2023. However there is no evidence of ongoing or even sporadic contact between the accused and “Renault” (or his associates). No evidence was given of who the accused sat with in the cars at night for example or who owned those cars.
33It was also submitted that bail ought be revoked as the accused is to face trial in April 2026 and, if convicted, the time on remand would be less than any sentence imposed. I accept that submission.
34It was submitted that the principle of bail parity required the Court to find that the accused posed an unacceptable risk. This was based on the evidence that the co- accused, particularly Mr Eser, who was present on 23 and 28 December 2023 at the home on Major Road, Fawkner during the attempted home invasion and arson, had been denied bail. This was based primarily on the comments Gillard J made in DPP v Abbott.[4] I do note his Honour qualified his comments by stating:
“However in my view it would indeed be rare for the principle to have any relevant weight in bail applications because the circumstances invariably at all levels of determination are peculiar to the particular applicant.”[5]
[4] (1997) 97 A Crim R 19 at 29
[5] Abbott at 29
35His Honour’s judgment has been referred to numerous times since with approval and I am bound to follow it. Practically, however, there is little evidence before me on which to gauge whether the co-accused are in same or similar positions to the accused. This is particularly so in respect of Mr Eser. So, while I take the principle into account, I consider that Gillard J’s words result in me attributing little weight to the consideration of bail parity or, as later submitted consistency in application of the law, in determining whether the accused poses an intolerable risk because I know so little about Mr Eser.
36Balancing those matters, with particular regard to s1B of the Act which was recently introduced and asserts the primacy of community protection in the Court’s consideration, I consider that the accused does not pose a risk in breach of the principles of the Act which mandate his remand, if his bail conditions are varied by the removal of the electronic monitoring. Primarily this is because the breaches of the conditions to date are reasonably minor and there is little evidence of impending re-offending. This is contrasted with very significant compliance and ongoing treatment at Ontrack Counselling which details prosocial factors and stability over 11 consultations. This also works strongly towards the mitigation of risk to a level that the Act permits in order for bail to be granted.
37Of course I am mindful that risk always remains but on balance I am satisfied that the risk can be brought to a level where bail should be granted with certain conditions of bail imposed. It follows that I deny the application to revoke his bail. However, given the removal of the electronic monitoring, it is appropriate that his reporting obligations be increased from three times per week to five times per week.
38Given the health of his parents I accept that his bail conditions must be varied to allow him to drive, but only on the basis that he is accompanied by a parent. I consider this is necessary to allow him to report for bail primarily given his father is incapacitated and his mother struggles to drive. That evidence was largely uncontested. Further, I note that his driving was a feature of the offending, so this access should not be granted lightly. He is otherwise bound by his curfew so cannot drive in those hours at all.
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