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El Nasher v DPP

El Nasher v DPP

Case [2020] VSCA 144 4 June 2020

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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…

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 El Nasher v DPP

Details

AGLC: El Nasher v DPP [2020] VSCA 144
Case: [2020] VSCA 144
Decision Date: 4 June 2020

CaseChat Overview and Summary

The respondent, El Nasher, appealed against a decision to refuse bail, granted under the Bail Act 1977. The respondent was charged with attempted murder, and several other offences, all of which were alleged to have been committed while the respondent was on a Community Correction Order and bail for unrelated charges. The primary judge found that there were no exceptional circumstances justifying bail and refused the application. The Court of Appeal considered the appeal, focusing on whether the primary judge erred in determining that no exceptional circumstances existed.

The legal issues centred on whether the primary judge erred in concluding that there were no exceptional circumstances warranting the grant of bail. The Court of Appeal considered the weakness of the prosecution case, the impact of the delay and onerous custodial conditions caused by the COVID-19 pandemic, and whether the respondent posed an unacceptable risk to the community. The Court examined the statutory provisions of the Bail Act 1977, particularly sections 3AAA, 4AA, 4A, 4D, and 4E, to determine the appropriate course of action.

The Court of Appeal found that the primary judge erred in his assessment of the exceptional circumstances. The Court held that the delay and onerous conditions of custody due to the COVID-19 pandemic constituted exceptional circumstances. Additionally, the Court determined that the prosecution's case was weak, and the respondent did not pose an unacceptable risk to the community. The Court of Appeal allowed the appeal and granted bail to the respondent, imposing stringent bail conditions to ensure public safety and the likelihood of the respondent appearing in court.

Orders