El Nasher v DPP
[2020] VSCA 144
•4 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0095
| ALI EL NASHER | Appellant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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| JUDGES: | PRIEST, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 May 2020 |
| DATE OF JUDGMENT: | 4 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 144 |
| JUDGMENT APPEALED FROM: | [2020] VSC 205R (Tinney J) |
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CRIMINAL LAW – Bail – Appeal – Schedule 1 offence – Attempted murder – Schedule 2 offences allegedly committed while appellant was on Community Correction Order and bail for unrelated offending – Intentionally causing serious injury – Intentionally or recklessly causing serious injury in circumstances of gross violence – Whether judge erred in determining no exceptional circumstances – Weakness of prosecution case – Delay and onerous custodial conditions resulting from COVID-19 pandemic – Exceptional circumstances established – Appellant not unacceptable risk – Appeal allowed – Bail granted – Stringent bail conditions imposed – Bail Act 1977, ss 3AAA, 4AA, 4A, 4D, 4E.
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| REPRESENTATION: | Counsel | Solicitors |
For the Appellant | Mr M Gumbleton | Stephen Andrianakis & Associates |
| For the Respondent | Mr N Hutton with Mr N Goodenough | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA
WEINBERG JA:
Introduction
On 1 March 2019, three men were shot at a boxing event at the Melbourne Pavilion on Racecourse Road, Kensington. Benjamin Togiai was killed. Omar Bchinnati and Joseph Abouchaya were seriously injured.
We are told that this incident is alleged by police to be linked to other incidents being investigated by Victoria Police, specifically the Echo Taskforce.
The appellant has been charged with:
1. attempted murder;
2. intentionally causing serious injury in circumstances of gross violence;
3. intentionally causing serious injury;
4. recklessly causing serious injury in circumstances of gross violence;
5. affray;
6. reckless conduct endangering life;
7. common assault; and
8. committing an indictable offence whilst on bail.
The appellant surrendered himself into custody on 23 July 2019. He has been remanded in custody since that date. An application for bail was brought unsuccessfully in the Melbourne Magistrates’ Court on 10 December 2019. A committal hearing was set down for 30 March 2020. The date was vacated as a consequence of the COVID-19 pandemic. Currently, the committal is now listed for 19 October 2020. There is no guarantee that the committal will be able to proceed on that day. Should it go ahead, the appellant will have been in custody for about 15 months by that stage, although it appears that two of these months have been spent serving a sentence for an unrelated offence.
The appellant applied for bail in the Supreme Court on 17 April 2020. The judge refused bail on 23 April 2020.[1] This is an appeal against his Honour’s decision. It is brought on the following grounds:
1.As the bail decision maker, the Judge erred when he determined that exceptional circumstances were not established by the weakness of the prosecution case on Counts 1 to 5, or the alternative verdicts thereto.
2.As the bail decision maker, the Judge erred when he determined that exceptional circumstances were not established by the weakness of the prosecution case in combination with the delay in providing the Appellant with a timely trial and the resulting conditions he would be subjected to were there no grant of bail.
3.As the bail decision maker, the Judge erred when he determined that the Appellant was an unacceptable risk and there were no conditions that could be imposed that would ameliorate the risks on bail to an acceptable level.
[1]Re El Nasher [2020] VSC 205R (‘Reasons’).
We shall return to the judge’s reasons for refusing bail shortly. It is convenient to set out a short summary of the alleged offending.
The alleged offending
On 1 March 2019, an event styled as ‘Big Time Boxing’ came to Kensington. Present among the patrons was the appellant with his brothers, Abdullah and Khaled. Also on their table were Mathew Myko, Mikhael Myko and Osamma Allouche. At a nearby table were seated Togiai, Bchinnati and Abouchaya.
Throughout the evening, it is alleged that the two groups were involved in several verbal altercations. At around 10 pm, both groups were ejected from the stadium. CCTV cameras recorded certain of the events that occurred from outside the front of the Melbourne Pavilion.
Tensions continued to escalate outside the front of the venue. The appellant and Mikhael Myko went back into the stadium. They met with two female friends before going to the foyer, near the front doorway. A large number of fight patrons were present. At this time, it is alleged that Abdullah El Nasher ran from outside towards the front of the building, produced a pistol from the front of his shorts and fired five shots in quick succession. It is alleged that Allouche also fired a shot from a handgun.
Togiai was struck in the chest by one shot. He collapsed and died at the scene. Bchinnati was struck in the left thigh by one shot. He managed to escape the scene on foot.
Some of the patrons outside the front doors attempted to flee to back inside the stadium. We have viewed the CCTV footage from this point onwards. At this stage, the appellant can be seen still in the foyer area with Mikhael Myko. Abouchaya, uninjured at this stage, came from outside and entered the foyer. It is likely that he was holding a handgun pointed to the ground. Mikhael Myko seems to be standing about two metres from the appellant on the CCTV. He appears to have produced a pistol and fired at Abouchaya, who fell to the ground. He then appears to have fired more shots at Abouchaya whilst Abouchaya was prone. Abouchaya sustained bullet wounds to the abdomen, right leg and right cheek.
Up until this stage, although three people were shot by the appellant’s associates, it is not alleged that the appellant was complicit in any of that very serious offending. The appellant’s offending is alleged to have taken place shortly after Abouchaya was shot. The prosecution allege, and the CCTV demonstrates, that the appellant moved quickly towards the still prone Abouchaya. So much is not in dispute. The prosecution alleges that the appellant then stomped forcefully with his right foot on the side of Abouchaya’s head, causing Abouchaya’s head to strike a glass fronted memorabilia display. The prosecution allege that there were two further stomps either to or near Abouchaya’s head.
The defence dispute this unfolding narrative and maintain that Abouchaya was still holding his handgun, that the appellant in fact stomped on Abouchaya’s arm, and that the appellant acted in self-defence. It is clear from the CCTV footage that the appellant stomped very forcefully at least once in the vicinity of Abouchaya’s upper body or head, and then twice more. There was no evidence before the judge as to the existence or extent of any injuries from these actions.
Shortly after the appellant stomped on Abouchaya, Mikhael Myko struck Abouchaya to the head with his handgun. A patron intervened, and the appellant and Mikhael Myko moved away from Abouchaya.
The appellant and Mikhael Myko left the stadium through the front door. It is alleged they met up with Khaled El Nasher and they left in a vehicle driven by Abdullah El Nasher.
Abouchaya sustained bullet wound injuries to the right side of his face, abdomen and right thigh. They are described as severe, and would have resulted in Abouchaya’s death if he had not been treated at the hospital.
The appellant remained at large, probably interstate as we were told, until he surrendered himself to police on 23 July 2019.
The bail hearing in the Supreme Court
At the hearing of the application for bail before the judge, the appellant submitted:
·The strength of the prosecution case was weak on the attempted murder and intentionally causing serious injury charges.
·The remaining offending was relatively minor.
·The delay was unacceptable. As a consequence of the disruption to court calendars from the pandemic, the committal listed for October 2020 may well be vacated. If the matter ultimately is listed in the County Court, the trial may well not get listed until sometime in 2022.
·Prison conditions are currently very onerous.
·He has family support and ties to the jurisdiction.
·A substantial surety is available.
·The combination of these factors satisfied the ‘exceptional circumstances’ test and the respondent had not demonstrated that the appellant was an unacceptable risk, if released on bail with stringent conditions.
The respondent submitted:
·No exceptional circumstances had been demonstrated.
·The prosecution cases on attempted murder and intentionally causing serious injury were reasonable. The appellant’s conduct was a long way removed from self-defence.
·The appellant’s absconsion for five months was important evidence of incriminating conduct in relation to these two serious charges.
·The appellant was on bail and a Community Correction Order (‘CCO’) at the time of the alleged offending.
·Even with the COVID-19 delay, the appellant will not spend more time on remand than any sentence he would receive if found guilty.
·The appellant’s claims that his wife needed his financial and emotional support were hollow given his absconsion at a time when she was pregnant.
·On the question of unacceptable risk, the alleged offending was believed to be a part of a series of retaliatory incidents between two rival gangs. Intelligence revealed that while there was a lull (at the time of the bail hearing), the acrimony was likely to be ongoing. The appellant is a ‘significant suspect in relation to a number of active investigations’, which is relevant to a consideration of the question of risk if bail was granted.
·The appellant had an unimpressive criminal history and history on bail.
·There is some evidence that the appellant may have been in possession of a firearm on the night of the alleged offending.
·Employment with his brother will not lessen the risk of offending while on bail.
·He is a significant flight risk and risk of interfering with witnesses. Investigators believe witnesses to the events of 1 March 2019 have been threatened, or fear retaliation.
The judge’s reasons for refusing bail
The judge reviewed the circumstances of the alleged offending. He noted the appellant’s criminal record, in particular the appellant’s convictions for intentionally causing injury and dangerous driving in the County Court on 5 May 2013. On that occasion, the appellant received a total effective sentence of 14 months. The judge was provided with a copy of the County Court judge’s sentencing reasons, as were we.
In March 2017, the appellant was fined without conviction for being a non-prohibited person in possession of a Category A long arm firearm. In 2018, the appellant was convicted and placed on an 18-month CCO with 250 hours of community work for being a non-prohibited person in possession of a handgun, possession of ammunition, possession of a prohibited weapon, possession of ecstasy, contravention of a condition of bail and committing an indictable offence whilst on bail. His Honour noted that the offences the subject of the application for bail were alleged to have been committed whilst he was subject to that CCO (and on bail). In April 2018, the appellant was dealt with for possessing anabolic steroids, driving whilst suspended and speeding. He was fined and disqualified from driving.
The judge, after setting out the parties’ contentions, considered whether the appellant had discharged the burden of establishing the existence of exceptional circumstances. He considered that the appellant had failed to do so for the following reasons:
(a) The appellant’s criminal history was ‘very significant’[2] in light of the nature and circumstances of the alleged offending. His Honour noted the nature of a ‘terrifying high-speed pursuit’[3] in 2013 of a motor vehicle by the appellant and his brother in separate vehicles, the corralling of the pursued vehicle, the removal of the driver from that vehicle and the subsequent vicious beating of that driver. His Honour rejected the submission by senior counsel for the appellant that the then 22 year old appellant was a very young offender.
[2]Ibid [69]. The appellant’s full criminal record can be summarised as follows: intentionally causing injury and driving in a dangerous manner (2013); non-prohibited person possessing an unregistered Category A long arm firearm (2017); contravention of a condition of bail, committing an indictable offence whilst on bail, possession of ecstasy, non-prohibited person possessing a handgun without a licence, possession of cartridge ammunition without a licence, possession of a prohibited weapon without exemption, driving without a licence, exceeding the speed limit and possession of anabolic steroids (2018); possession of a sch 4 poison, hindering a police officer and contravention of a CCO (2019).
[3]Ibid [70].
(b) His Honour remarked upon the appellant’s prior offences for possession of firearms and that his performance under the CCO was unsatisfactory, from well before he absconded.
(c) The judge expressed concern at the appellant’s performance on prior grants of bail:
Not only does he have convictions for contravening a conduct condition of bail and committing an indictable offence whilst on bail, but he was subject to a CCO for those and other offences at the time of the alleged offending here, and was also on another grant of bail.[4]
[4]Ibid [76].
A little later, his Honour said:
Unfortunately, there are some indications in the antecedents of the appellant that he may not have appropriate respect for orders of courts, or for the importance of bail. This may make it difficult for a court to have confidence that he will abide by a grant of bail, less still one involving the sort of stringent conditions proposed in this case.[5]
[5]Ibid [78].
(d) The judge observed that the appellant’s family and other ties to the jurisdiction were not sufficiently strong as to prevent him from evading apprehension, and ‘laying low’,[6] for several months after 1 March 2019.
[6]Ibid [79].
(e) His Honour considered that delay was an important issue, as was the onerous nature of the appellant’s current incarceration.
(f) On the issue of delay, the judge referred to a passage from Re Tong,[7] in which his Honour stated:
[7][2020] VSC 141 (‘Tong’).
It should not be thought that the current health crisis facing our community will in every case be a matter which will lead to satisfaction in the mind of a judge or magistrate of the existence of exceptional circumstances, less still that it will necessarily lead to a grant of bail. These matters, whilst themselves unheard of in our community in living experience, are simply part of the surrounding circumstances required to be taken into account in a consideration of both steps in the 2 step bail process currently undertaken.[8]
(g) The judge did not accept the appellant’s submission that he may spend more time on remand than he would receive if convicted. At its heart was the contention that ultimately, the appellant would likely be found guilty of offences of only modest seriousness. His Honour stated that this was ‘another submission which [he does] not accept’.[9] Whilst the judge concluded that the prosecution cases on both attempted murder and intentionally causing serious injury in circumstances of gross violence were weak, a statutory alternative of attempting to intentionally causing serious injury in circumstances of gross violence would be ‘by no means weak’.[10]
[8]Ibid [33].
[9]Reasons [84].
[10]Ibid [65].
His Honour stated that having considered all of the appellant’s submissions and the surrounding circumstances, the appellant failed to clear the ‘high hurdle’[11] of demonstrating the existence of exceptional circumstances that would justify a grant of bail in this case.
[11]Ibid [85].
The judge added:
For completeness, I consider that even had I been satisfied of the existence of exceptional circumstances, when I came to consider the second step in the process of bail, I would have been satisfied on the material before me that there would be an unacceptable risk of all of the matters highlighted by the respondent in s 4E of the [Bail Act 1977].[12]
This appeal
[12]Ibid [86].
The appellant’s submissions
In short, the appellant submitted that the judge erred in concluding that exceptional circumstances were not established by one or more of the following factors:
(h) the weakness of the prosecution case on counts 1 to 5, or the alternatives thereto;
(i) the delay in providing the appellant with a timely criminal trial; and
(j) the current custodial conditions during the pandemic period (grounds 1 and 2).
The appellant also contended that the judge erred in determining that the appellant was an unacceptable risk and that there were no conditions that could be imposed which would ameliorate the risks on bail to an acceptable level (ground 3).
The short answer to this latter contention is that his Honour did not determine the question of unacceptable risk against the appellant. He simply indicated that he would have made this determination had he been satisfied by the appellant that exceptional circumstances existed. It follows that if we are satisfied that his Honour’s determination on this ‘exceptional circumstances’ issue is infected with error, we must consider the ‘unacceptable risk’ issue afresh. If we are not so satisfied, there will then be no need to consider the ‘unacceptable risk’ issue.
The respondent’s submissions
On ground 1, the respondent[13] submitted:
·Attempted murder is listed in cl 12 of sch 1 of the Bail Act 1977 (‘Act’) and the ‘exceptional circumstances’ test applies.
·The ‘exceptional circumstances’ test is also engaged because intentionally causing serious injury in circumstances of gross violence, recklessly causing serious injury in circumstances of gross violence and intentionally causing serious injury are sch 2 offences, and because they are alleged to have been committed whilst the appellant was on a CCO and on bail for a sch 2 offence.[14]
·To succeed on this ground, the appellant must demonstrate that the primary judge ‘has mistaken the facts; acted on an erroneous principle of law; has taken into account irrelevant matters or has clearly given insufficient weight to some matter taken into account; or unless the decision is unreasonable or plainly unjust’.[15]
·It was open to the judge to find that the evidence on the attempted murder and other primary charges was weak, however, the judge found that an alternative verdict of attempting to intentionally cause serious injury in circumstances of gross violence would be ‘by no means weak’. This conclusion was open to the judge.
·The CCTV vision does not support the appellant’s contention that he acted in self-defence.
[13]Since the parties agreed that the proper respondent should have been the Director of Public Prosecutions (‘Director’) and not the informant pursuant to s 22(1)(a) of the Public Prosecutions Act 1994, we made an order accordingly substituting the Director as the respondent to the appeal.
[14]See s 4AA(2)(c)(i) and (iv) of the Act.
[15]Robinson v The Queen (2015) 47 VR 226, 253 [86] (‘Robinson’), quoting House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ) (‘House’).
On ground 2, the respondent submitted:
·The judge took into account all relevant matters, and did not consider any irrelevant matters.
·The respondent referred to the submission made by the appellant that the fact of the past and future delay, coupled with an uncertain trial date and onerous prison conditions, are sufficient to establish exceptional circumstances. The respondent argued that that submission should be rejected. Delay is only one of the matters listed in s 3AAA of the Act, and the judge was required to consider all matters listed as ‘surrounding circumstances’ in s 3AAA.
·His Honour considered all matters in an orthodox and proper manner, and it was open to him to determine that exceptional circumstances had not been demonstrated.
For reasons that we have explained in paragraph 27, it is unnecessary to consider ground 3 (unacceptable risk) at this stage.
Analysis
Attempted murder is listed in cl 12 of sch 1 of the Act. As a consequence, the ‘exceptional circumstances’ test applies.[16] Intentionally causing serious injury in circumstances of gross violence, intentionally causing serious injury and recklessly causing serious injury in circumstances of gross violence are listed in sch 2 of the Act. On 1 March 2019, the appellant was on an 18-month CCO. As at that date, he was also on bail. As a consequence, the ‘exceptional circumstances’ test applies to the sch 2 offences set out above.[17] Further, the test applies to the statutory alternatives of attempting to intentionally to cause serious injury in circumstances of gross violence, and attempting to intentionally to cause serious injury.[18]
[16]Section 4AA(1).
[17]See ss 4AA(2)(c)(i) and (iv) of the Act.
[18]Recklessly causing serious injury in circumstances of gross violence cannot be the subject of an attempt.
A bail decision maker must refuse bail for a person accused of a sch 1 offence, or a sch 2 offence in the circumstances set out in s 4AA(2), unless satisfied that exceptional circumstances exist that justify the grant of bail.[19] In this case, it was undisputed before the judge that the appellant bore the burden of demonstrating exceptional circumstances.
[19]See ss 4A(1)–(1A), 4AA(1)–(2).
The central issue before us can thus be stated simply: was it open to the judge to conclude that the appellant had failed to demonstrate exceptional circumstances so as to justify a grant of bail? In Robinson, this Court set out the task that confronts an appellant in an appeal of this nature:
On an appeal such as the present,[20] this Court’s right to intervene is not unfettered. It may only do so if it appears that the primary judge has mistaken the facts; has acted on an erroneous principle of law; has taken into account irrelevant matters or has failed to take into account relevant matters; or has clearly given insufficient weight, or excessive weight, to some matter taken into account; or unless the decision is unreasonable or plainly unjust.[21]
[20]Robinson was an appeal against a trial judge’s refusal to grant bail.
[21]Robinson (2015) 47 VR 226, 253 [86], accepting the test set down in House (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See also DPP v Barbaro (2009) 20 VR 717, 719–720.
The appellant contended that the judge gave insufficient weight to the weakness of the prosecution case as it existed for the more serious charges[22] and gave insufficient weight to the combination of this weakness of the prosecution case, together with the likely delay in bringing the case to trial.
[22]Attempted murder, intentionally causing serious injury in circumstances of gross violence, intentionally causing serious injury and recklessly causing serious injury in circumstances of gross violence.
The weakness of the prosecution case
As we have said, his Honour concluded that the prosecution case, as it is constituted for the charges of attempted murder, intentionally causing serious injury in circumstances of gross violence and intentionally causing serious injury simpliciter was weak. We consider this to be something of an understatement. On the evidence placed before us, the case for attempted murder is non-existent, and the case for the causing serious injury charges contains no evidence of serious injury or injury whatsoever. We have viewed the CCTV footage of the incident and the stills lifted from that footage. We consider, on the evidence currently available, that a jury could not legitimately conclude that the appellant had a specific intention to kill Abouchaya. The appellant’s alleged criminality commenced after Abouchaya had been shot three times, and involved several stomps to Abouchaya’s upper body or perhaps, to his head. The delay between frames on the CCTV means that sequential images are captured rather than seamless, continuous action. It is not clear to us that any of the stomps actually connected with Abouchaya’s head. In the absence of medical evidence as to the nature and extent of any injuries said to have resulted from the appellant’s stomping activities, the prosecution will also not be able to prove that the appellant intentionally caused Abouchaya serious injury. Indeed, the prosecution will be unable to prove that the appellant caused Abouchaya any injury at all. These observations also apply to the charge of recklessly causing serious injury in circumstances of gross violence. Thus far, we agree with his Honour’s conclusions.
His Honour went on to conclude, pursuant to s 239 of the Criminal Procedure Act 2009, that an uncharged alternative verdict of attempting to intentionally cause serious injury in circumstances of gross violence would be available to a jury, as would attempting to intentionally cause serious injury simpliciter. These offences obviously would not require proof of serious injury or, indeed, any injury at all. The judge, without much analysis, commented that the case against the appellant in respect of such an attempt would be ‘by no means weak’. In our view, his Honour erred in reaching that conclusion. We consider that that this type of offending could only be proved if the evidence disclosed an intention evinced by the appellant to stomp violently on Abouchaya’s head. Otherwise, an inference of an intention to cause serious injury would not be available. Counsel for the respondent conceded as much. The evidence of the stomp is confined to the CCTV footage. As we have said, this footage is unclear and provides an unstable foundation for this inference of a specific intention.
Further, it seems clear that the wounded Abouchaya remained armed with a handgun as the appellant commenced to rush towards him. In these circumstances, it seems likely that the prosecution would need to prove that the appellant was not acting in lawful self-defence when he stomped on Abouchaya, or close to Abouchaya’s head, wherever those stomps may have landed.
In the circumstances, we consider that while his Honour correctly identified the weakness of the prosecution case on charges 1, 2 and 3, he significantly overvalued the strength of the two putative ‘attempt’ charges.
Delay and onerous custodial conditions
The committal is listed for 19 October 2020. It remains the prosecution’s aspiration that it proceed on that day. Thereafter, assuming the attempted murder charge falls by the wayside (which, in the absence of further evidence, seems almost certain), the jury trial will take place in the County Court but may not be heard until sometime in 2022. This unusually long period between committal and trial is due to the backlog caused by the COVID-19 pandemic. Associated with the pandemic are the onerous conditions under which remand prisoners are being held. These conditions include no face to face visits, no rehabilitative programs and long hours of lockdown. The judge accepted that delay was an important matter, as were the onerous custodial conditions.[23]
[23]Reasons [81].
By the first legal term of 2022, the appellant will have spent about two and a half years in custody. We understand that he will have been on remand for all but two months of that period.[24] Mr Hutton, who appeared for the respondent, accepted that there may be a delay of two and a half to three years, but submitted that the appellant, if convicted of an ‘attempt’ charge, could reasonably anticipate a sentence in the range of time served or greater. When pressed, he accepted that in these circumstances, the appellant would have served all or most of any sentence before his guilt or otherwise is determined by a jury.
[24]The appellant was sentenced to two months’ imprisonment on 26 August 2019 for breach of the CCO and resentenced for the original offending (being a non-prohibited person possessing a handgun, possession of ammunition, possession of a prohibited weapon, possession of ecstasy, contravening a condition of bail and committing an indictable offence whilst on bail) to an aggregate term of imprisonment of two months.
Conclusion on exceptional circumstances
Given the weaknesses that we have identified in the prosecution case on charges 1 to 4 and the ‘attempt’ alternatives, the very long delay before a trial is likely to take place, and the onerous circumstances of the appellant’s current remand, we have concluded that it was not open to the judge to determine that exceptional circumstances had not been established.
As the primary judge observed in Tong, the current health crisis and its cascading effects on the criminal justice system form part of the surrounding circumstances[25] required to be considered by every bail decision maker conducting the two step test set out in s 4AA and following of the Act.[26] It remains just one of many factors that must be taken into account by a bail decision maker. In this matter, we have concluded that the combination of delay, onerous custodial circumstances and the relative weakness of the prosecution case, when considered with all other relevant surrounding circumstances, compel the conclusion that his Honour should have found the existence of exceptional circumstances that justify a grant of bail. Indeed, it was not reasonably open to him not to so find.
[25]Which are defined in s 3AAA of the Act.
[26]Tong [2020] VSC 141, [33].
We should add that we specifically reject the appellant’s somewhat bold submission that in any case where there is a delay of the order apparent in this case, exceptional circumstances will, without more, be demonstrated. Each case will turn on its own facts and a decision maker will need to balance all of the relevant surrounding circumstances.
Unacceptable risk
Having found that it was not open to the judge to conclude that exceptional circumstances were not demonstrated, we approach the question of ‘unacceptable risk’ afresh. It is unnecessary to consider whether the judge erred in concluding that the appellant would be an unacceptable risk, if released on bail.
The respondent bears the onus of demonstrating ‘unacceptable risk’ pursuant to s 4E(1) of the Act. That subsection reads:
(1)A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that—
(a) there is a risk that the accused would, if released on bail—
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk.
Section 4E(3) provides that the bail decision maker must take into account the surrounding circumstances,[27] and ‘consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk’.
[27]As defined in s 3AAA of the Act.
The respondent contended that the risk presented by the appellant is unacceptable and no conceivable conditions can mitigate that risk to an acceptable degree.
The appellant conceded that, if a grant of bail were unconditional, the risk presented by the appellant is, indeed, unacceptable. He contended, however, that the imposition of strict conditions can make acceptable the otherwise unacceptable.
We are obliged to refuse bail if we are satisfied that there is an unacceptable risk that the appellant would, if released on bail:
(k) endanger the safety or welfare of any person;
(l) commit an offence while on bail;
(m) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(n) fail to surrender into custody in accordance with the conditions of bail.[28]
[28]See s 4E(1)(a)(i)–(iv).
We have set out the appellant’s unimpressive past history in paragraphs 21 and 22 of these reasons. In short, over a period of roughly a decade, the appellant has demonstrated violent propensities of a high order, a preparedness to possess prohibited firearms, an indifference to court orders and a preparedness to evade investigating authorities. Further, there was hearsay evidence led in the application before the judge that the appellant was part of an ongoing dispute between rival gangs, which was the context in which the gunfight occurred at the Kensington boxing event. This evidence was not challenged before the judge, nor before us.
What constitutes an acceptable risk (or conversely, an unacceptable risk) will always be a question of fact and degree. There are 14 variables in s 3AAA (‘surrounding circumstances’) that must be considered, together with subsets within some of those variables; the weight given to those variables and their interaction with each other will vary from case to case. The end result will be a product of an informed, intuitive evaluation, and reasonable minds may well differ on that result.
Whilst we have considered each relevant surrounding circumstance, we have given significant weight to the nature and seriousness of the alleged offending, the strength of the prosecution case and the length of time the appellant is likely to spend in custody if bail is refused. We consider it likely that the appellant will spend up to three years in custody before his trial is completed. We consider it nigh on inevitable (on the current evidence) that, should the prosecution see fit to proceed with them despite their obvious weakness, he would be acquitted of attempted murder and the causing serious injury charges. We consider he has, at the least, a real prospect of acquittal on attempting to intentionally cause serious injury simpliciter or in circumstances of gross violence. If these conclusions are correct, the appellant may well have served all or nearly all of any sentence that may be imposed on the ‘attempt’ alternatives or the minor charges (charges 5 to 8) before his guilt or otherwise on any of those charges is determined. This prospect weighs powerfully in the mix on the question of unacceptable risk. If the case were stronger, or the delay less than anticipated in this case, then other factors pulling in the opposite direction would likely assume more significance in the s 4E exercise.
Conclusion on unacceptable risk
After anxious consideration, we have concluded that the respondent has failed to demonstrate that the appellant presents any of the identified forms of unacceptable risk (as set out in paragraph 49). We have reached this conclusion upon the appellant agreeing to the imposition of a very stringent set of conditions.
Overall conclusion
We propose to grant bail on the appellant’s own undertaking with one surety in the sum of $400,000 and on the following special conditions:
(o) The appellant must appear on 19 October 2020 at a time to be advised before the Melbourne Magistrates’ Court and then surrender himself.
(p) The appellant must reside at a fixed residential address to be advised before the Court.
(q) The appellant must not leave his residence between the hours of 8 pm and 7 am (‘curfew hours’).
(r) If required by a police officer, the appellant must present himself at the front door of his residence at any time between curfew hours.
(s) The appellant must report to the police station (location to be advised before the Court) between the hours of 7 am and 8 pm on Monday and Thursday of each week.
(t) The appellant must not change his residential address without first obtaining the leave of a court.
(u) The appellant must not contact any witnesses for the prosecution (and/or Omar Bchinnati and Joseph Abouchaya), except for the informant.
(v) The appellant must not contact the co-accused, Abdullah El Nasher, Osamma Allouche and Mikhael Myko.
(w) The appellant must surrender passports (if any) to the informant within 24 hours of release, and not apply for any other passport.
(x) The appellant must not attend any points of international departure.
(y) The appellant must not leave the State of Victoria without first obtaining the leave of a court.
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