Elmoubayed v Director of Public Prosecutions (NSW)

[2025] NSWSC 220

Supreme Court

New South Wales

Medium Neutral Citation:

Elmoubayed v Director of Public Prosecutions (NSW) [2025] NSWSC 220

Hearing dates:

3 March 2025

Date of orders:

19 March 2025

Decision date:

19 March 2025

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Bail granted

Catchwords:

CRIMINAL LAW – release application – applicant required to show cause – commercial drug supply – kidnapping – proceeds of crime – applicant allegedly high ranking member of criminal organisation – Alameddine organised crime network – difficulty of assessing strength of prosecution case – drug runs – fifty thousand person customer base – Versace run – Tommy run – Sam the Lobster man run – distinctly fishy – where alleged victims of detain offences uncooperative – possible gaps in prosecution case – whether evidence establishes applicant user of particular encrypted messaging handle – ENTERPRISE – whether indispensable link in chain of reasoning requiring proof beyond reasonable doubt – very long delay to trial date – three years – applicant’s wife struggling with three infant children – applicant’s sister extremely disabled – stringent bail conditions – large surety – cause shown on balance – risks mitigated by conditions of bail

Legislation Cited:

Bail Act 2013 (NSW), ss 16A, 16B, 16B(1)(a), 16B(1)(f), 16B(1)(h), 17, 17(2)(a), 17(2)(b), 17(2)(c), 18, 19, 28B

Bail Regulations 2014 (NSW)

Crimes Act 1900 (NSW), ss 86, 86(1)(b), 86(3), 93T(1), 93T(4A), 193C(1)

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal Procedure Act 1986 (NSW), ss 66, 67

Drug Misuse and Trafficking Act 1985 (NSW), s 25

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 76AO(1)(a)

Cases Cited:

Ali v Director of Public Prosecutions (NSW) [2017] NSWCCA 155

Director of Public Prosecutions (Cth) v Saadieh [2021] NSWCCA 232; (2021) 291 A Crim R 191

Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325

Director of Public Prosecutions (NSW) v Hourigan [2017] NSWCCA 170

Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227

JM v R [2015] NSWSC 978

Lee v R (Cth) [2024] NSWCCA 202

Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314

Nikollaj v R [2025] NSWCCA 31

R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365

R v Merritt [1999] NSWCCA 29

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Ali Elmoubayed (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
A Djemal SC (Applicant)

Solicitors:
Krayem & Co Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2025/00047846

Publication restriction:

1. Pursuant to ss 7-8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”), there is a suppression order over MFI 3.
2. The order is made on the ground in s 8(1)(e) of the Act, namely that the order is otherwise necessary in the public interest and that public interest significantly outweighs the public interest in open justice.
3. Pursuant to s 12 of the Act, the order will exist until further order.
4. Pursuant to s 11 of the Act, the order applies throughout the Commonwealth of Australia.

JUDGMENT

1. Ali Elmoubayed makes a release application pursuant to the provisions of the Bail Act 2013 (NSW). The matter is not without complexity and was listed as a special fixture and heard on 3 March 2025. A number of witnesses were required for cross-examination on the bail application. The application is opposed by the Director of Public Prosecutions. She was represented by Mr Chua on the application while Mr Djemal SC appeared for Mr Elmoubayed.

2. The applicant is charged currently with something like 40 offences, each of which is alleged to have arisen out of his involvement in a group referred to in the prosecution material as the “Alameddine Organised Crime Network”. The offences are contained in two separate court attendance notices identified as H96330540 (originally comprising 47 charges upon which Mr Elmoubayed was arrested on 27 March 2024) and H434093894 (4 charges laid on 23 September 2024 while the applicant was in the remand centre at Parklea gaol). I will refer to these court attendance notices as H #540 and H #894 respectively. The charges allege the following:

• 33 offences of supplying a prohibited drug under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). These include one count alleging the supply of a commercial quantity and five counts alleging the supply of a large commercial quantity. Three of the simple supply charges were charged in H #894.

• One offence of taking and detaining a person with intent to obtain advantage under s 86(1)(b) of the Crimes Act 1900 (NSW). This offence was allegedly committed sometime between March and December 2021.

• Three offences of dealing with property suspected of being the proceeds of crime under s 193C(1) of the Crimes Act.

• One offence of knowingly directing activities of a criminal group under s 93T(4A) of the Crimes Act.

• One offence of specially aggravated detaining a person for advantage under s 86(3) of the Crimes Act.

• One offence of failing to comply with a digital evidence access order under s 76AO(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

• One offence of participating in a criminal group that contributes to criminal activity under s 93T(1) of the Crimes Act. This is the fourth offence charged in H #894.

3. Most of the offences were allegedly committed between March 2023 and February 2024, although, as noted above, the first allegation of detaining for advantage allegedly occurred in 2021. The applicant was arrested on 27 March 2024 in relation to the offences charged in H #540 and has remained in custody since that date.

4. The allegations against the applicant, considered as a whole, are extremely serious. There are two allegations involving serious violence and a raft of accusations suggesting the applicant was involved in organised criminal activity at a relatively high level.

The applicant must show cause why his detention is not justified

5. Pursuant to ss 16A and 16B of the Bail Act, the applicant is required to show cause why his detention is not justified. Depending on the charge in question there are three reasons for this, the first two of which are related. First, some of the offences – alleging the supply of a large commercial quantity of drugs – are punishable by life imprisonment: s 16B(1)(a). Secondly, some of the offences involve the alleged supply of commercial quantities of drugs: s 16B(1)(f). Finally, Mr Elmoubayed was on bail in January 2024 when he is alleged to have committed the (specially aggravated) detain for advantage charge: s 16B(1)(h).

6. The onus falls on the applicant to show cause, on the balance of probabilities, why his detention is not justified. If the applicant does not show cause, bail must be refused in accordance with the command in s 16A of the Bail Act. In Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314, the Court of Criminal Appeal, in an often-cited passage, summarised some of the principles that apply to a release application when the alleged offender is required to show cause why their continued detention is not justified:

“[51] First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].

[52] Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act.

[53] Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9].

[54] Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63].

[55] Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act.

[56] Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions.”

The difficulties of assessing the strength of the prosecution case in a bail application

7. The strength of the prosecution case is a relevant consideration when an applicant for bail is required to show cause. However, it is not determinative of that issue: Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [44] (“DPP v Mawad”). It is also relevant to the consideration of risk under ss 17-19 of the Bail Act. Such an assessment can be difficult because a judge hearing a bail application has limited information upon which to make the assessment of the strength of the case. In DPP v Mawad, Beech-Jones J, as his Honour then was, said:

“[19] Bail applications are not suitable forums to conduct mini trials. Nevertheless, an assessment of the strength of the Crown case is important to an assessment of prospective risk which is at the heart of the process of determining whether or not to grant bail.”

8. Garling J in JM v R [2015] NSWSC 978 made similar observations at [41]-[42]:

“The introduction of the two-step process in the present Act, together with the legislative acknowledgement that the show cause test does not require special or exceptional circumstances to be shown, except in a limited range of cases identified in s 22 of the Act, and the clear acceptance by the Court of Appeal in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [24], that factors relevant to the unacceptable risk test (which are common to all bail applications), may also be relevant to the show cause test, in combination, suggests that these authorities are distinguishable from the approach which is now to be taken. The end result is that, even where a show cause requirement exists, an assessment that the Crown case is strong is not necessarily determinative of whether continued detention is justified.

Fourthly, when a court is called upon to assess the strength of the Crown case for the purpose of a bail application, it can only do so to a very limited extent. That is because the Court is not generally provided with the full brief of evidence, often it is not yet available; the Court does not hear prosecution witnesses orally and is not in any position to make an assessment of the credibility of a witness except by a comparison of the content of the written statement with other facts and material made available. The assessment of the strength of the Crown case is also made at a particular point in time, usually quite distant from the final hearing, by which time the material available to a prosecution may be very different. Witnesses whose statements are taken by police do not always give evidence at a trial; if they do, they do not always give evidence which accords with their statements; a different picture may emerge during cross-examination; a jury, or the presiding judge or magistrate, may take an adverse view of the demeanour or credibility of a witness for reasons which do not appear in the words of a written statement. A court making a bail decision needs to be, and ordinarily is, conscious of these matters, which are necessarily unknown when assessing the strength of the Crown case.”

9. As will be seen, the identification of the applicant in the present case as the person using the social media or electronic messaging “handle” of “ENTERPRISE” (and variations thereof) is important to the proof of the prosecution case in relation to many of the charges and the information tendered on the application is somewhat limited in relation to that issue.

Matters relevant to whether the applicant has shown cause why his detention is not justified

10. Mr Djemal submitted that there is a compelling combination of factors which, taken together, discharge the onus on the applicant to show why his detention is not justified. Those factors include the applicant’s family circumstances, the length of time the applicant is likely to spend in custody if bail is refused, his strong family and community support including the availability of a very large surety to secure his attendance at court, and the stringent bail conditions proposed. Mr Djemal also submitted that the case against the applicant was not a particularly strong one, and there was some focus during the bail hearing on the parties’ respective submissions on that issue. As I have already observed, where an applicant is required to “show cause”, the strength of the prosecution case is an important, but not determinative, factor: DPP v Mawad at [44].

Delay

11. Mr Djemal submitted that there will be a substantial delay before the applicant’s case is dealt with to finality. Mr Chua accepted the delay would be substantial. There was some variation between the submissions as to when the applicant’s trial will actually proceed and whether it may occur in the second half of 2026 or as late as 2027.

12. Mr Elmoubayed was taken into custody on 27 March 2024 and has been incarcerated since that time. The four matters charged in H #894 are listed for defended hearing in the Parramatta Local Court on 1 May 2025. More significant to the issue of delay are the offences charged in H #540 which are expected ultimately to proceed on indictment in the District Court. Despite the passing of one year, those charges are still before the Parramatta Local Court although a charge certificate has been filed pursuant to the requirements of ss 66-67 of the Criminal Procedure Act 1986 (NSW). They are next listed on 7 May 2025 for what was described as a “s 82/84 hearing”. I understand this hearing to relate to a particular charge, sequence 31, being the allegation of “specially aggravated detain for advantage”. The prosecution seeks to examine the alleged victim of that offence to see what (if anything) they may say if the matter proceeds to trial. As I understand it, to this point the witness has not co-operated with police investigators.

13. Mr Djemal submitted that the applicant has already been in custody for 12 months and, based on the complexities of the case and the number of alleged co-offenders, he is not likely to receive a trial date within the next 18 months. He submits the trial may not be listed until early 2027. This would mean that the applicant would be in custody, presumed to be innocent, for around three years. While Mr Chua was more optimistic about a trial date, postulating that the trial may occur in the latter part of 2026, even on his estimate the delay is likely to exceed two years. In a case handed down last week, the Court of Criminal Appeal endorsed the words of Sperling J in R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365 at [9], where his Honour observed:

“[t]he prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights.”

14. See Nikollaj v R [2025] NSWCCA 31 at [3] (Dhanji J) and [16] (Yehia J with whom Price AJA agreed). Nikollajv R was described as “an extreme case” where the prospective delay exceeded 4½ years but the principle has some resonance in Mr Elmoubayed’s case. While “significant delay” does not usually overcome the show cause requirement, [1] especially where the prosecution case is strong, it has been considered to be a significant factor in a number of bail decisions made in the Court of Criminal Appeal: see, for example, Ali v Director of Public Prosecutions (NSW) [2017] NSWCCA 155 at [35], Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325 at [63]-[66] and Lee v R (Cth) [2024] NSWCCA 202 at [11], [20], [54]-[55] and [75].

    1. Director of Public Prosecutions (NSW) v Hourigan [2017] NSWCCA 170 at [11].

15. I will follow those authorities in the Court of Criminal Appeal. They establish that delay, even as extensive as in this case, will not ordinarily satisfy the show cause requirement by itself, but that such a delay when combined with other features of the case may play a significant role in overcoming that legal impediment to bail.

Personal and family matters

16. The applicant has three children between the ages of three and seven, and an older sister (Zamzam) who has brain damage which leaves her with major disabilities and a limited life expectancy. I generally accept the evidence that Mr Elmoubayed regularly cared for and supported Zamzam before being arrested and taken into custody. Mr Djemal submitted that the applicant’s absence from the family creates significant difficulties in terms of care arrangements for the children and for Zamzam. This submission was supported by the evidence of his wife and brother, and a variety of medical reports tendered on the application. The young children have a close bond with their father and his absence is impacting on their emotional and psychological wellbeing.

17. The applicant’s wife, Marissa Psomas, provided an affidavit dated 4 February 2025 and gave evidence of the difficulties she is experiencing caring for the children on her own and the impact of Mr Elmoubayed’s absence on the children. Ms Psomas said that the family relies on Mr Elmoubayed to care for the children and provide financial support. Ms Psomas said she is struggling to care for their children in her husband’s absence. She has noticed negative changes in the moods and emotions of two of the boys and they have distanced themselves from friends and loved ones. The children also suffer from medical conditions and require consistent monitoring, care and medical appointments. One child was diagnosed with febrile convulsions, has developed a speech delay, and struggles with reading and literacy. One of the children has been referred to the school psychologist for support with mental health issues. Another child has enlarged tonsils and adenoids which has resulted in breathing issues. The children’s involvement in extra-curricular activities has been curtailed due to logistical difficulties arising from the applicant’s absence.

18. Ms Psomas was cross-examined on the bail application. I accepted her evidence as honest and reliable.

19. The applicant’s brother, Ahmad Elmoubayed (“Ahmad”), provided an affidavit dated 3 February 2025 and gave evidence outlining Zamzam’s medical condition and the extent of her disabilities and needs. Zamzam suffered brain damage as a child and has a severe intellectual disability, epilepsy and osteoporosis. She is “non-verbal” and communicates through “eyesight”, gestures and body language. Medical reports were annexed to Ahmad’s affidavit, including a report by Dr Christopher Canaris, a psychiatrist. Ahmad says that Dr Canaris provided an opinion that Zamzam’s condition has progressively worsened, and attributes this to her brain damage and intellectual disabilities. Objection was taken to part of Ahmad’s affidavit where he purported to summarise the opinions of doctors as to Zamzam’s life expectancy. The relevant paragraphs were admitted provisionally but later excluded. [2] Ahmad gave evidence (without objection) that doctors said her life expectancy was “39, 38, 40, all depends, but she is deteriorating”. Zamzam is currently 36 years old. Ahmad gave evidence that “[s]he is starting to get worse, she is crouching, she’s not responding, they have stopped giving her the medication that stops her from the seizures”. [3]

    2. Ex 1 p 48 [11]-[12] and Tcpt (3/3/25) pp 26-27, 83.

    3. Tcpt (3/3/25) pp 54-55.

16. The applicant’s parents also have some medical issues. His father has diabetes, severe depression, and suffers from a heart condition that requires a pacemaker and regular medical appointments. His mother has been diagnosed with depression, a gastro-intestinal condition, and had ovarian cancer in 2014, although that condition has been in remission since approximately 2019.

17. Ahmad explained the role the applicant might play in caring for his children, his sister and his parents if bail is granted. He also identified his other siblings – there are four aged between 25 and 34 – but said they had limited ability to assist with the care of the applicant’s children because they each have their own commitments and children of their own.

18. As I said in argument, I found one aspect of Ahmad’s evidence unconvincing. That was where he immediately, if not pre-emptively, refuted Mr Chua’s suggestion that he may be able to assist the applicant’s wife to facilitate transport to a forthcoming medical appointment. [4] Given the closeness of the family, I am inclined to think that the family can provide some support to Ms Psomas and the children, as well as Zamzam. While some aspects of Ahmad’s evidence may have been exaggerated, I generally accept his evidence, noting that much of what he had to say is supported by medical or other evidence.

    4. Tcpt (3/3/25) pp 48-49 (Ms Psomas’ evidence), 56 (Ahmad Elmoubayed’s precipitous denial that he could assist) and 78 (where Mr Djemal conceded Ahmad’s response on the issue was “quite a quick response and it seemed a little bit too emphatic.”).

19. I accept Mr Chua’s submission that there was an inconsistency (between the wife and the brother) as to whether Ms Psomas had asked other family members to help with that appointment, but I find that inconsistency of little moment in the overall context of the evidence.

20. The applicant’s family circumstances are quite compelling. His disabled sister would benefit from his presence and his wife is struggling to cope with three children under ten. The children are showing signs of distress caused by their father’s absence and this is impacting on their education and interpersonal relationships. Taken with the delay, these are weighty matters.

The applicant’s mental health

25. A report by a consultant psychologist Tim Watson-Munro was tendered and Mr Watson-Munro was cross-examined by Mr Chua. Mr Watson-Munro is of the opinion that the applicant is exhibiting symptoms of a depressive disorder and is a “psychologically troubled man”. It seems these symptoms arise from his current predicament, his conditions of incarceration and his inability to exercise, have regular contact with his family, and obtain appropriate treatment. Mr Watson-Munro recommends that he obtain therapy in the community.

The applicant’s legitimate business concerns

26. Compounding the difficulties concerning the care of the children is that Ms Psomas is attempting to run and maintain the applicant’s transport business. This involves scheduling and organising one truck and allocating drivers to undertake any jobs that come in. The impact of this issue is two-fold. First, the applicant’s absence is having an economic impact on his family. Secondly, the need to attempt to run the business is placing additional stress on the applicant’s wife as she attempts to raise three young children alone.

27. I have taken this matter into account but I do not consider it to be a matter of great significance.

The availability of substantial surety

28. The applicant’s brother Ahmad can offer surety in the sum of around $1,100,000 secured by a second mortgage over his [REDACTED] home.

29. Jalal Alameddine swore an affidavit in which he offered to put up $400,000 secured by a mortgage over his home.

30. Ayman Ibrahim swore an affidavit in which he offered to put up $2.5 million again secured by mortgages over various pieces of real property. Mr Ibrahim has known the applicant for around 15 years and finds him to be generous, kind-hearted and family oriented. Clearly, he has significant faith in the applicant not to abscond if he is granted bail.

31. In total, there are three acceptable persons prepared to forfeit around $4,000,000 if the applicant does not attend court.

32. This is a matter more relevant to the bail concern surrounding the applicant’s attendance at court, but it can play a small part in the combination of circumstances upon which Mr Elmoubayed relies in attempting to show cause under s 16A. However, applicants for bail should not assume that the availability of a large surety will overcome the requirement to show cause, especially in a case like this one where there is evidence (or allegations) of the applicant possessing or dealing in very large sums of cash money which are said to be the proceeds of crime. In this case, the allegations of dealing with the proceeds of crime concern amounts of many hundreds of thousands of dollars. The evidence will include photographs of one of the applicant’s children clutching Australian currency said to amount to around $120,000.

Stringent bail conditions

33. Along with the sureties to which I have just referred, the applicant also proposes extremely stringent bail conditions. The proposal amounts to house arrest, with well-defined exceptions, enforced by electronic monitoring and enforcement conditions. It is proposed that the applicant will reside at his family home with his wife and children.

Strength of the prosecution case

34. It is necessary to turn to an assessment of the prosecution case within the limits to which I referred in [7]-[9] above. The advocates for both sides provided realistic concessions about this and I was assisted by their balanced and well-reasoned submissions.

Sequences 1-4 charged by Court Attendance Notice H434093894 (H #894)

35. In terms of the matters to be dealt with summarily under H #894 I accept the Prosecutor’s submission that the case against the applicant is strong.

36. The case is to be proved by recorded telephone calls in which the applicant communicated with an associate (Asaad Alahmad) who was in custody at Cessnock at the time (that is, in May and July 2023). The evidence (as far as I understand it) was uncovered in the course of investigating the other offences. The evidence as to the arrangements made by the applicant to engage in drug supply were all captured by the Correctional Centre’s Offender Telephone System (OTS) which records all non-legally privileged conversations over that system. The identity of the applicant in using his associate’s OTS account is established through one of the conversations where he reads aloud a text message that identified himself as “Ali”. The form of the evidence relies on recordings from the OTS system and WhatsApp communications extracted after police had seized Robert Kenney’s phone.

37. The first and fourth counts each involve the supply of 3.2 grams of buprenorphine and the second count involves 3.5 grams of methylamphetamine. The third charge is an allegation that this activity amounted to participation in a criminal group.

38. The allegations in H #894 do not attract the show cause provisions and it could not be said that a full-time custodial sentence is inevitable, even if the applicant is found guilty at the summary hearing.

Offences under Court Attendance Notice H96330540 (H #540) as refined by the Charge Certificate

39. It is open to reach quite different conclusions as to the strength of the prosecution case in relation to various sequences charged in H #540. I have considered closely the prosecution case statement, the relevant parts of the letter by Detective Nicholas Mackie and the evidence of Detective Sergeant Bradley Goodhart who was called on the hearing of the bail application. [5]

    5. Tcpt (3/3/25) pp 5-26.

40. It is not practical to reproduce the dense prosecution case statement in the course of this judgment.

41. Mr Chua submits globally that the case is “reasonably strong” and I accept that submission in relation to some of the charges. In some instances, I think the case is strong, without the qualification of “reasonably”. In others, as I foreshadowed, the strength of the case turns on the identification of the applicant as the person using the handle ENTERPRISE. In yet other cases, there appear to be patent problems with the prosecution case. I will explain that overview of conclusions by reference to the various charges, starting with the two unrelated kidnapping allegations, before turning finally to the drug and proceeds of crime offences and the ENTERPRISE handle issue.

Take and detain a person with intent to obtain advantage (H #540 sequence 1)

42. The prosecution submits that the case is “reasonably strong”. It relies on a video seized from a mobile ‘phone which depicts a male being detained by a person with a highly aggressive dog and forced to remove his clothing. The victim refers to the person detaining him as “Ali” (the applicant’s first name). The video appears to have been filmed at [REDACTED] which was the family home of the applicant at the time of the offence. The video was posted on Snapchat by the user “AE”. A mobile ‘phone later seized from the applicant had Snapchat installed with the username as “AE”.

43. Mr Djemal submitted that to satisfy the elements of an offence under s 86 of the Crimes Act (take and detain for advantage), there must be evidence of the removal and detention of the victim. In the present case it appears there is no evidence available from the alleged victim and, accordingly, no evidence as to how the victim ended up at the applicant’s house. While the video (as described) is chilling, its capacity by itself to prove the essential elements of the certified charge may be questionable.

44. On the information before this Court, I would describe the prosecution case as potentially deficient. Because of the graphic nature of the video and the inferences to be drawn from its apparent location, I would not call it weak. However, I am not satisfied that it is properly described as strong.

45. Two further observations should be made about this charge. First, the prosecution bail chronology and submissions (the first page in Ex A), suggests that the “s 82/84 hearing” listed on 7 May 2025 relates to this matter. However, at the hearing, Mr Chua acknowledged that the witness the prosecution intends to call at that hearing is the alleged victim of the specially aggravated kidnapping offence charged in sequence 31 (that is, [REDACTED]). [6] Secondly, there may be a question whether sequence 1 could fairly be tried with the other offences in H #540. That will ultimately be a question for the Director (or Prosecutors who formulate the indictment) and the trial Judge, but the connection between the offences, and the apparent temporal disconnection of this offence from the others, suggests that an application to sever this count may have merit.

Specially aggravated detain for advantage (H #540 sequence 31)

6. Tcpt (3/3/25) pp 73-74.

46. Again, Mr Chua submitted the prosecution case in relation to sequence 31 is “reasonably strong”. The facts and evidence set out in the prosecution case statement support that submission. [7]

    7. Ex A pp 97-101.

47. There is evidence of communications between the applicant and two alleged co-offenders late on 18 January 2024 suggesting they planned to lure [REDACTED] to an address in [REDACTED] by means of some kind of ruse. At that time Mr Elmoubayed was wearing an ankle monitor pursuant to bail conditions in relation to an unrelated charge of affray. [8] The tracking device on the monitor showed he travelled from his home to the address in [REDACTED]. CCTV cameras showed the men arriving shortly before midnight and [REDACTED] arriving on foot at 12:08am on 19 January 2024.

    8. This offence was subsequently withdrawn and the applicant pleaded guilty to an assault on different facts to those included in the prosecution bail bundle (Ex A pp 194-199).

48. The prosecution case statement says: “the Crown case is that [REDACTED] was detained and repeatedly assaulted by multiple men whilst he was in the garage.” The surveillance evidence shows Mr Elmoubayed and others leaving in the applicant’s Hilux at 12:10am and [REDACTED]’s “limp body” being removed by two other men at 12:13am and put in a car at 12:15am. The applicant and others arrived back at his home at 12:27am and there are “lawful” recordings of the men laughing about the incident and describing their involvement. The conversations are set out at [109]-[116] of the prosecution case statement (Ex A p 101). There is also evidence of [REDACTED]’s attendance at Auburn hospital and his injuries which included facial bruises and a bone fracture. There is also evidence that blood located in the garage of the [REDACTED] address has the same DNA profile as [REDACTED].

49. While the foregoing suggests a very strong case that the applicant was complicit in this very serious offence (which, if proved, was committed while the applicant was on bail), the problem for the prosecution is that [REDACTED] has said he “did not wish to cooperate with police”. The prosecution intends to call him to give evidence in the Local Court to ascertain what he might say about the incident. For that reason, there may be a triable issue in relation to this offence despite the powerful circumstantial case proving the applicant’s involvement and the victim’s injuries.

The drug and proceeds of crime offences charged in H #540

50. The prosecution seeks to prove the multiplicity of drug supply offences and proceeds of crime offences by reference to surveillance evidence, telephone intercepts, and telecommunications evidence. The prosecution relies substantially on messages from the encrypted messaging platform known as “Threema” which were discovered after a mobile phone was seized from Abdulrazzak Khalil, a man said to be an associate of the Alameddine Organised Crime Network.

51. The prosecution case statement sets out in some detail the messaging and surveillance upon which the drug supply allegations are based. This includes the details of the communications and pictures sent to and from members of the drug supply syndicate. The evidence strongly supports the contention that those involved in the messaging were involved in the sophisticated supply of very large quantities of drugs.

52. There is strong evidence of the use of “dead drops” to intermediate suppliers and a network of runners engaged in “dial-a-dealer” operations by which end users would contact mobile telephone services and arrange for the delivery of cocaine and methylamphetamine. Each drug run had a unique name such as “Tommy run”, “Dior run”, “Versace run”, “Gingerbread man run”, and the distinctly fishy “Sam the Lobster man” run to name a few. There were at least ten such “runs” each being supplied and organised by the Alameddine group. The scale of the operation is substantial with the organisation said to have a customer base in the order of 50,000 people across New South Wales. The potential for massive and illicit profits is impressive.

53. Mr Chua submitted the case on the drug supply offences is reasonably strong although he acknowledges that the critical issue is the attribution to the applicant of the messaging handle ENTERPRISE, or “ENTERPRISE 3.0” or other variations of the same. Mr Djemal concedes that – if that fact (ie attribution) is established – the prosecution case is properly categorised as “very strong”. However, he submits the prosecution case on the attribution issue is not strong at all.

54. On the material before me, the case that the applicant was dealing at a high level in the supply of at least commercial (and probably large commercial) quantities of cocaine and methylamphetamine would be bordering on overwhelming if it is able to be established that he is the person communicating as ENTERPRISE (or the other variations). The messaging includes clear references to quantities, prices and arrangements for delivery at specific times and places. Pictures of the drugs, including blocks of cocaine sitting on scales, and in various forms of readiness and packaging are sent over the encrypted service. There is also frank discussion about the quality of the product and strategies to avoid detection, for example by masking the smell of the drugs with oil to throw sniffer dogs (literally) off the scent.

55. The inference that ENTERPRISE was operating at a managerial level of the organisation is strong.

56. However, when it comes to the attribution question, it is difficult to make an assessment at this distance. Mr Chua referred to a 95-page attribution document that was “too voluminous to orally expound upon” and this material was not in evidence. However, Detective Sergeant Goodhart gave evidence on the subject. After confirming that the document was not to be tendered and inviting both parties to take objection if they thought it appropriate, [9] the following evidence was provided:

    9. Tcpt (3/3/25) pp 7-8.

“HIS HONOUR

Q. If you don’t feel you can adequately answer that on the hop please tell me. But otherwise if you are able to summarise what it is that leads investigators to make the assertion that this applicant is Enterprise in these communications I would be greatly assisted by that?

A. Yes, your Honour.

Q. Go for your life.

A. Throughout the course of the investigations there are actually four Threema handles; the first being Enterprise, the second being Enterprise 2.0, then Enterprise 3.0, and we come to the final Threema handle being ‘Ampol’ like the petrol station. And that was right towards the end of the investigation. So early in the investigation when we still had the handle Enterprise being used, on one instance Enterprise sends a picture to a device used by a co accused.

That device was seized from that co accused. That device was accessed by police and the image was seen in that device as being sent from Enterprise to that co accused. The image was a hand holding a small amount of cannabis. A fingerprint expert was able to review that photo and confirm that the fingerprints of the hand holding the cannabis that was sent from Enterprise to the co accused were the fingerprints of the accused.

On a further occasion, a co accused asked for a contact phone number from a third party, from a friend, to be shared with them. That image sorry, the contact was a photo of a phone taken. That photo was taken on a device and sent to a co accused. The contact name was a person called George Jamal(?). The personal phone of the accused was accessed some months later upon his arrest and within that phone was the same contact, the same spelling and the same phone number, taken of a phone that appeared to be identical to that of the accused. And that is a further way we can link the accused to those Threema handles.

HIS HONOUR

Q. When you say identical looking phone, is there some feature of it?

A. It’s the same make and model phone but it has the same contact name and the same phone number in the device.

Throughout the course of the investigation, like I said, we have a number of mobile phones being used to mass distribute cocaine. The customer list totals around 50,000 people in Sydney buying cocaine. Some of those customers were given the option of paying for their drugs through Pay ID. And the transactions were then made from the customer electronically into an ING bank account.

That ING bank account, and I am of the belief it was a fraudulently controlled bank account, it was not a bank account used by the nominated person. The name was Joseph Bolay, B-O-L-A-Y. And when one reviews the transactions made through the Joseph Bolay bank account, you see a transaction that is made where there is a payment made and in the payment description it says ‘rent for [REDACTED]’. At that time the accused was residing at [REDACTED].

The total attribution document the Crown refers to, some 90 odd pages, is multiple instances of that. On 4 January 2024 a police surveillance operation was conducted, targeting the accused at his home address. I became aware that a person with the surname Semu, S-E-M-U, had arrived at that location, stayed for a short time and then left again.

In a subsequent vehicle stop upon that person by police a mobile phone was found in his possession and in that mobile phone was a Threema conversation. That conversation was between Semu and Enterprise but it was Semu trying to reach Enterprise and Enterprise replying by saying ‘I’m not Enterprise anymore, I’m now Ampol’. The conversation continues once they have clarified the change in name. But it is clear that that conversation was in relation to the meeting or the visit that Semu had just had at Elmoubayed’s home address. And then finally when I go back to 25 February

HIS HONOUR: Sorry, I am trying to catch up, thank you.

Q. So back to the --

A. 25 February 2023. On that particular date what I will refer to as one of the most important devices was seized during the investigation, from a co accused Mahdy Zaineddine. Within that device was, I believe, approximately 18,000 images, complete chat histories between the owner or user of that device who we believe is Zaineddine using the handle ‘Shimano’ and conversations with Enterprise.

And one of the most important images out of that device was a screen shot of a run phone, a drug supply phone that they shared with each other. It was a screen shot of the Amaysim orange logo with a mobile phone number clearly depicted. Between the two of them they were struggling to get the phone to work properly.

And Shimano asked Enterprise for permission to change from an Amaysim SIM card to a Vodafone SIM card. Enterprise gives his blessings for that to happen. Further enquiries in relation to that particular phone number, the first phone number, revealed that it was a cocaine run nicknamed ‘Tommie’, the ‘Tommie run’.

Through enquiries with Vodafone, we established what is effectively the new Tommie phone number they had changed to from the Amaysim phone. The Tommie phone was then lawfully intercepted and between Zaineddine and two other co accused it become clearly evident that those three were in control of the daily operations of that particular device. It is a further way of attributing the accused to that handle in terms of his status within the pecking order of that defined group of individuals. A number of instances such as those.

HIS HONOUR

Q. Can I go back. I have enumerated these incidences as five and the third one in my note concerns the automatic payments for drugs. And I didn’t understand as you gave that evidence how that was part of the attributions of the handle to the applicant. I see how it is relevant to the general nature and size of the drug operation. But what I am not seeing immediately from what you said is how that ties into attributing the Enterprise or Ampol handles to this applicant?

A. So at the time there was no one else involved in this investigation living at [REDACTED].

Q. I get that it might be incriminating evidence, circumstantial in its nature, to tie the applicant who lives at [REDACTED] with rental payments which are actually drug payments to an account ‘[REDACTED]’ or something. But I am not seeing how it ties in with Enterprise.

A. I probably should clarify. It was an actual rental payment for rent. So it wasn’t a payment I don’t believe it was a payment disguised as being a rent payment, I believe it was actually a rent payment made from the Joseph Bolay account to pay for the accused’s rent.

Q. Okay, I understand that better but that still doesn’t enlighten me as to how that has any bearing on whether he was the person using the Enterprise handle?

A. Again it is through the association of the co accused with the multiple drug runs and the payments being made into the Bolay account, it is the co accused whose voices appear cross the TI calls and the sort of plethora of payments being made into this bank account.

And on one occasion a payment is made from that particular account to pay effectively for the accused’s rent from that fraudulent bank account that is being used to receive payments for the cocaine runs. That then links back into the Threema conversations and the large amounts of cocaine that we are seeing throughout the Threema conversations.

Q. I will try one more time. I understand how that impacts on the strength of the case against the applicant. I don’t understand how it feeds into the question I asked which is, how you attribute these handles to this accused. If it doesn’t, that’s okay. But what I was directing my mind to, and inviting the parties to assist me on, is how strong is the prosecution case in relation to this applicant being Enterprise or Enterprise 2.0, Enterprise 3.0 or Ampol because it seems, on my reading of the material, once that is established, the case against him is a very strong one on any number of these counts and that is what I was asking about. Thank you for your assistance.”

57. The evidence to be relied on to establish that Mr Elmoubayed is ENTERPRISE seems to comprise of five essential components:

1. ENTERPRISE sent a picture of a hand holding a small amount of cannabis to a device used by a co-accused, which was seized from the co-accused. The device was accessed by police and the image was seen in that device as being sent from ENTERPRISE. A fingerprint expert reviewed that photo and provided an opinion that the fingerprints of the hand holding the cannabis matched the fingerprints of the applicant.

2. A co-accused asked a friend for contact details to be shared with them. The contact was sent to the co-accused in the form of a photo of a device displaying the contact information, including the name George Jamal. The personal telephone of the applicant was accessed upon his arrest. It contained the same contact with the same spelling and phone number. The ‘phone depicted in the original photo appeared to be of the same make and model to that of the applicant.

3. Customers had the option of paying for their drugs through PayID into an ING bank account. Police suspected this account was being operated fraudulently because it was not used by the nominated account holder (“Joseph Bolay”). There are several transactions where payments made from the account were described as “Rent for [REDACTED]”. The applicant was residing at [REDACTED] at the relevant time and the prosecution will invite the jury to infer that the drug money that went into the bank account was used to pay the applicant’s rent.

4. On 4 January 2024, a police surveillance operation was conducted targeting the applicant at his home address. A person with the surname Semu arrived at that location, stayed for a short period of time and then left. Semu was subsequently stopped by police and a mobile phone was found in his possession that contained a Threema conversation between Semu and ENTERPRISE. Semu was trying to reach ENTERPRISE and ENTERPRISE replied by saying “I’m not Enterprise anymore, I’m now Ampol”. The conversation continued once the change of name (handle) was clarified. Detective Sergeant Goodhart said it was clear that the messages related to the meeting (or visit) that Semu had just had at Mr Elmoubayed’s home address.

5. A device seized during the investigation from a co-accused contained chat histories between the user of that device, believed to be Zaineddine using the handle “Shimano”, and ENTERPRISE. There was a conversation relating to trying to get a ‘phone to work properly. Further enquiries suggested it related to the telephone associated with the dial-a-dealer service known as “Tommie run”. Shimano asked ENTERPRISE for permission to change from an Amaysim SIM to a Vodafone SIM. ENTERPRISE authorised that change. Police made enquiries with Vodafone which established the new “Tommie” ‘phone number which was intercepted. It became evident that Zaineddine and two other co-accused were in control of the daily operations of that device. Detective Sergeant Goodhart stated this attributes the applicant to ENTERPRISE in terms of his status within the hierarchy of that defined group of individuals.

58. Mr Djemal submitted that this aspect of the prosecution case was “highly circumstantial” and reliant on inferences being drawn on questionable inferences. He submitted that the fingerprint evidence is not strong because the fingerprint analyst did not have an actual fingerprint to examine through a microscope. Further, the applicant was under “intense surveillance, both electronic and physical” during 2023 and the early part of 2024. During that time, the closest the applicant was put to one of the addresses referred to as a drug house is that a car that could be linked to him, but was not in his name, was seen in the vicinity. The applicant was never seen to enter or leave such a house. As I understand that last submission, Mr Djemal was inviting a contrast with the situation, often encountered in large drug investigations, where the user of a particular telephone or encrypted device can be established with some certainty. This often involves the subject messages showing a suspect to be in a particular location and the police surveillance confirming the suspect to be in that location. Mr Djemal submitted that there is no intersection of the applicant being at any of the places that ENTERPRISE says he is in the messaging despite the fact he was under constant surveillance. The conversations on Threema suggest that ENTERPRISE is frequently going to particular premises and packaging the drugs. However, there is no evidence of the applicant going to those premises despite being under intense surveillance for around 13 months. The applicant was not found to be in possession of a Threema telephone or device despite searches of his home and other locations with which he is associated.

59. In effect, Mr Djemal submitted that the identification of his client as ENTERPRISE and/or AMPOL was essential to the prosecution’s circumstantial case. As such, it is properly categorised as a critical intermediate fact constituting an “indispensable link in a chain of reasoning towards an inference of guilt”: Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 at 579 and 585. In some cases, such a fact must be established beyond reasonable doubt: see, for example, R v Merritt [1999] NSWCCA 29. This is to be contrasted with most circumstantial cases where the individual facts upon which the inference of guilt is to be drawn need not be established to any particular standard.

60. The foregoing analysis demonstrates the difficulty in a judge sitting in a bail application reaching a conclusion as to the strength of the prosecution case. There will be substantially more evidence, possibly going both ways, on this issue when the matter goes to trial. It will be subject to much closer analysis and scrutiny by the parties. It is impossible to predict with any certainty whether the trial Judge will ultimately be persuaded to direct the jury in accordance with the cases of Shepherd v The Queen and R v Merritt.

61. Within those limitations, my assessment is that there is a serious and triable issue in relation to the identity of the user of the ENTERPRISE handle. As to that issue, I did not find the five matters identified by the detective to be particularly persuasive although some were more than others. The fingerprint evidence, if it survives scrutiny, is reasonably strong evidence of attribution. The other matters may strengthen the circumstantial case more generally but do not provide cogent proof identifying the applicant as ENTERPRISE. For example, there will no doubt be more evidence at the trial about the “rent for [REDACTED]” payments and, if it is established that the payments out of the account paid the applicant’s rent, that is circumstantial evidence of his involvement, but it does not directly (if at all) establish that he is ENTERPRISE.

62. There is other evidence that connects the applicant with those involved in the syndicate and with premises used by the syndicate. There is also a strong suspicion surrounding his apparent unexplained wealth, although Mr Djemal’s cross-examination of Detective Goodhart, and Ms Psomas’ evidence, raise questions about the strength of this aspect of the case.

63. I would assess the case against the applicant on the individual drug offences as moderately strong but not overwhelming. It could not be said that conviction is inevitable based on the material tendered on the bail application. There may be some issues around the quantities in some instances but, if the applicant is identified as ENTERPRISE, given the scale of the operation and the details of the communications, the case for commercial or large commercial supply is very strong.

64. In relation to the offences involving allegations of dealing with the proceeds of crime, some have the same potential issue (that is attribution) as the drug offences. It is alleged, in sequence 10, that the applicant directed Mahdy Zaineddine to collect $180,500 cash and deliver it to an address. Zaineddine sent the applicant (or ENTERPRISE) a photograph of the cash in large bundles contained in a shopping bag. In relation to sequence 34, police located two videos and three photographs of the applicant’s son holding over $100,000 in cash in their family home at [REDACTED]. The case on that sequence can be described as very strong in the absence of any evidence explaining how the applicant’s child would be in possession of such a large sum of cash money.

Other matters

65. In considering whether the applicant has shown cause, I have also considered several other matters including, without being exhaustive, the following:

1. There seems to be reasonably strong information and intelligence that the applicant was associated with members of the Alameddine crime gang or members of that family. For example, Detective Mackie’s letter included a photograph of the applicant at the beach with Rafat Alameddine who is thought to be on the run and currently in Lebanon avoiding execution of a warrant for organising a double murder.

2. Mr Elmoubayed has a criminal history including a previous conviction for drug offences in 2018 for which he received an 18-month sentence to be served by way of an intensive correction order (ICO). He also received a community corrections order for an offence of affray committed in 2021. His criminal record is not otherwise a bad one although there is some evidence of breaching orders in the past.

3. The offences as formulated are extremely serious and upon conviction would result in a very long full-time custodial sentence.

Conclusion on show cause

66. The likelihood of a delay approaching (or exceeding) three years in bringing the matter to trial is a significant and important issue especially when set against the impact of the applicant’s incarceration on his family and the fact that there is, at least, a triable issue in relation to his guilt.

67. Considering all of the evidence, I am satisfied on balance that the applicant has shown cause why his detention is not justified.

Assessment of bail concerns and the unacceptable risk test

68. However, as the decision of the Court of Criminal Appeal in DPP v Mawad demonstrates, that is not the end of the matter. It is necessary to consider the bail concerns that arise under s 17 and determine whether those concerns rise to the level of “unacceptable risks” for the purposes of s 19. That determination is to be made by reference to the exhaustive list of factors identified in s 18.

69. No grant of bail is risk free and Mr Chua correctly identified three bail concerns pursuant to s 17. The prosecution submitted that there is an unacceptable risk that (i) the applicant will fail to appear, (ii) will commit serious offences and thereby (iii) endanger the safety of the community.

Fail to appear: Bail Act, s 17(2)(a)

70. I accept that the applicant may be motivated to flee because of the likely length of the sentence he would receive upon conviction. That concern is exacerbated by the intelligence that he is a senior member of the Alameddine gang which may have the resources to assist him to take flight. Further, when Mr Elmoubayed was arrested a police custody officer says that they overheard him suggest to his wife that she take herself and the children to Dubai. Further, there is information that the applicant had access to a mobile telephone while in custody and that he made contact with numbers having the prefix for calls to Slovenia and Lebanon. As I have noted, Rafat Alameddine is currently thought to be in Lebanon and there is a suggestion that other members of the criminal syndicate may have fled to that country.

71. Against that, the evidence establishes that the applicant has strong and extended family ties to Australia. This includes his wife and three young children and his infirm and disabled sister. Ms Psomas’ evidence, which was not challenged, was that the last time her husband went to Lebanon was in 2019.

72. Mr Djemal submitted that the risk of flight can be ameliorated by the imposition of conditions including the requirement of a substantial surety, daily or even twice daily reporting, and a home detention order strengthened by electronic monitoring. Further, there is some evidence of divisions within the Alameddine syndicate and the applicant has been placed in some form of protection as a result. There is a list of something like 70 people in relation to whom the applicant would not be permitted to contact if bail was granted on the stringent conditions proposed.

73. The risk of flight cannot be eliminated but the imposition of a highly onerous set of bail conditions mitigates this bail concern to a large degree.

The commission of serious offences and danger to the community and individuals: Bail Act, s 17(2)(b) and (c)

74. The bail concerns in sub-paragraphs (b) and (c) are related. Any danger to the victims, individuals or the community would arise if the applicant committed offences. The large-scale distribution of drugs and violent kidnapping offences of the kind alleged in sequences 1 and 31 of H #540 certainly involve endangering the community. The nature and multiplicity of the present allegations along with the intelligence that the applicant is involved in a notorious criminal syndicate at a relatively high level means that these concerns are real and potent.

75. Further, the applicant has a criminal history including past drug dealing and one apparently relatively minor offence of violence. As to the offence of violence, it was charged as an affray and resulted in a community corrections order. The facts that were contained in the bundle on the bail application were not the facts to which the applicant pleaded guilty and Mr Chua did not press that part of the bundle.

76. Perhaps of more concern than the criminal record itself is the applicant’s patchy record of complying with court orders. This is reflected in a number of driving offences when his licence was cancelled or suspended, more than one breach of bail in 2021 and “call-ups” while on community based orders. He breached the ICO for the drug supply offence in 2021 by committing several minor offences and failing to comply with the community service work component of the ICO. After a warning was provided, the ICO was later revoked. At least the offence of specially aggravated detain was allegedly committed when the applicant was on strict conditional bail which included daily reporting, a curfew, electronic monitoring and a $900,000 surety. Mr Chua stressed that the last-mentioned breach of bail occurred when he was required to reside with his wife and that she provided an acknowledgement that she would supervise her husband to ensure he complied with his bail conditions. The applicant continued to offend, whilst subject to bail, and despite the assurances by his wife. He has also been disciplined in custody for possessing buprenorphine strips.

77. Mr Djemal submitted that at the time of the alleged detain offence, there was no inclusion zone in terms of the electronic monitoring. The current proposal would be far more stringent and the proposal relating to electronic monitoring would involve an inclusion zone to keep him in the area of his house, while any exceptions would be “triaged”. Further, he submits that the applicant has been in custody for one year, under strict conditions of segregation since December 2024 because of concerns for his safety based on a suggestion he has fallen out with some members of the Alameddine crime syndicate. Mr Djemal submitted that the applicant is now aware of the importance of strict compliance and the consequences of failing to comply, noting that this is the first time he has spent any significant period of time in custody.

74. I have considered all of the matters which arise under s 18 but will not outline that consideration here other than to note what I have already made reference to:

• The applicant’s criminal history, breaches of conditional liberty and family and community ties.

• The nature and seriousness of the offences.

• The strength of the prosecution case.

• The inevitability of a long gaol sentence if the applicant is convicted of some or all of the offences charged against him.

• The history of non-compliance with court orders including the 2021 call-up of the community corrections order, a successful detention application in 2021, the call-up in 2024 and the revocation of the ICO.

• The issues surrounding the applicant’s criminal associations as alleged by police and evidenced in their letter and the prosecution case statement. The prosecution submitted that the applicant’s criminal associations included links to organised crime and an organisation that operates nationally and internationally. This was not disputed forcefully by Mr Djemal, but he pointed to the evidence suggesting fractures in the relationship the applicant had with any criminal associates.

• The very long period the applicant will remain in custody if bail is refused.

• His legitimate need to be at liberty for the lawful purpose of assisting with the care of his sister and children.

• The kinds of bail conditions proposed to address the bail concerns and risks.

79. I would also, without attempting tediously to tick the boxes of the s 18 criteria, note in passing:

• The size of the brief and the nature of the evidence is such that it would be difficult to prepare this case and instruct his lawyers while in custody.

• The applicant has no special vulnerability but nor is he an advocate of terrorism or known to associate with terrorists.

• I am not aware of any attitude or conduct directed towards the victims of the two kidnapping offences or otherwise.

80. Towards the conclusion of the hearing, the applicant’s legal representatives offered to provide an updated set of draft conditions and did so shortly after the hearing. They represented some further tightening of the conditions and some specificity in relation to the proposed secured amount offered by Ahmad, Mr Alameddine and Mr Ibrahim, and the arrangements to apply to the electronic monitoring.

81. I should also mention that Laura Windsor, the operations manager of Allied Universal Electronic Monitoring, gave further evidence and was cross-examined during the bail hearing. She was asked about a particular recent incident when a person on bail removed their ankle monitor and sought to flee. She said that the system has been changed to some extent, so as to require notification of any breach to a limitless number of police officers as requested by the investigators. However, the fact remains that there may be some delay in notifications and a person on bail can always choose to remove their electronic tracking device.

82. In short, it must be acknowledged that electronic monitoring cannot guarantee a person’s compliance with bail conditions. Even so, it provides some additional protection against breaches of bail and other forms of conditional liberty. If that were not the case, Corrective Services would not use the devices in monitoring parole conditions and the terms attached to supervision orders made under the Crimes (High Risk Offenders) Act 2006 (NSW), and the legislature would not have mandated the use of such devices in enforcing bail conditions for certain offences: Bail Act, s 28B.

83. The remarks of Beech-Jones CJ at CL (as his Honour then was) in Director of Public Prosecutions (Cth) v Saadieh [2021] NSWCCA 232; (2021) 291 A Crim R 191 at [8]-[9] are pertinent.

The bail concerns can be mitigated by conditions and there is no unacceptable risk in the release of the applicant on bail

84. While each application must be considered on its own facts, and no authority of this Court or the Court of Criminal Appeal can dictate the outcome of a particular application, I have considered the circumstances in the recent case of Nikollaj v R. I have done so to consider the conditions that Price AJA, Dhanji and Yehia JJ considered to be capable of mitigating risk in that case where the bail concerns relating to international flight and re-offending were patent. That was an “extreme case” from perspectives other than the length of the delay until trial.

85. The decision is not easy, but I have concluded the conditions proposed by the applicant, somewhat modified, will mitigate the risks of releasing the applicant to such an extent that there is no unacceptable risk for the purpose of the application of s 19 of the Bail Act.

86. I have little doubt he will be under close police scrutiny and that fact, along with the strict conditions of bail to which he will be subject, reduce the risk of Mr Elmoubayed taking flight, committing criminal offences or endangering the community.

87. The conditions are set out below but include, in terms of mitigating the risk of the applicant taking flight:

• A home detention condition which is subject to very limited exceptions. In addition to the exceptions provided for by the applicant’s lawyers, I have included an exception to allow him to visit his sister provided the officer in charge is notified in advance and the visit is not more than 5km from the applicant’s home. Any legal conference or medical appointment must be notified to the officer in charge three days in advance.

• A condition requiring the applicant to report to local police each day. The applicant proposed twice daily reporting, but I have concluded that once daily is sufficient and will also ensure that the applicant is, for the most part, required to be at his home address.

• Electronic monitoring. I have replaced the conditions proposed by the applicant with a similar form to that used by the Court of Criminal Appeal in the case of Nikollaj v R. This is a pre-release condition and the device must be attached to the applicant before he is released. Ms Reid’s affidavit at paragraph 13(a) indicates that the company can liaise with the gaol to facilitate this.

• A very large security requirement. Three acceptable people are to deposit security in the total amount of $4,000,000 and agree to forfeit the individual sums promised if the applicant fails to attend court. There are some minor changes to the condition proposed by the applicant to clarify precisely what is required.

• Enforcement conditions to allow the police to confirm compliance with the home detention condition. Given the electronic monitoring and daily reporting, I have restricted the enforcement condition to a maximum of twice weekly check-ups to protect the privacy of the family.

88. In terms of the risk of re-offending and consequent dangers to the community and individuals within it, the conditions include:

• A general condition that the applicant be of good behaviour.

• The electronic monitoring condition to ensure compliance with the house arrest condition which essentially prevents the applicant from travelling more than 5km from his home except for very limited purposes.

• Substantial restrictions on the applicant’s use of technology and encrypted devices along with a requirement that the applicant facilitates access to his devices to allow police to check his communications. Given the facts of the case, I thought it prudent to include Threema as a prohibited encrypted application although the condition is cast in wide and general terms.

• Conditions preventing the applicant from having contact with witnesses, any co-accused and named associates. There is a lengthy list of people with whom the applicant may not have contact.

Orders

89. The release application is allowed and bail is granted on the following conditions:

Good behaviour, accommodation and reporting conditions

1. The applicant is to be of good behaviour.

2. The applicant is to appear at Parramatta Local Court on 1 May 2025 and 7 May 2025, and thereafter as directed.

3. The applicant is to live at [REDACTED] and nowhere else.

4. The applicant is to report to the Officer in Charge at [REDACTED] Police Station daily between the hours of 9 am and 11 am.

Home detention, written notification of movements and electronic monitoring

5. The applicant is to comply with a home detention condition whereby he is not to leave the premises at which he is required to live except in the following alternative circumstance(s):

1. For the purposes of reporting to the police, OR

2. To attend court, OR

3. To attend pre-arranged conferences with his legal representatives, but only where the time, date and location of such conference has been notified in writing to Detective Nicholas Mackie, Detective Sergeant Bradley Goodhart or to a police officer delegated by them to receive such a notification more than three days in advance of the conference, OR

4. To attend pre-arranged medical or psychological appointments for himself or his children, but only where the time, date and location of such an appointment has been notified in writing to Detective Nicholas Mackie, Detective Sergeant Bradley Goodhart or to a police officer delegated by them to receive such a notification more than three days in advance of the appointment, OR

5. To visit his sister Zamzam but only when (a) he is in the company of his wife Marissa Psomas and (b) the location of the visit is less than 5 kilometres from the applicant’s home address and (c) the time, date and location of such a visit has been notified in writing to Detective Nicholas Mackie, Detective Sergeant Bradley Goodhart or to a police officer delegated by them to receive such a notification more than three days in advance of the visit, OR

6. To obtain emergency medical treatment for himself, his wife or one of his children.

6. The applicant is to comply with the following electronic monitoring condition and bear the costs of compliance with the condition:

1. Prior to his release, the applicant is to have fitted and is to maintain in place thereafter a 24-hour electronic monitoring device provided by Allied Universal Electronic Monitoring Australia (Allied). The applicant is to comply with all requirements to ensure that the device continues to operate properly as an electronic monitoring device with Allied. (This is a pre-release condition).

2. The electronic monitoring system is to be programmed with an inclusion zone encompassing [REDACTED].

3. The applicant is not to remove the electronic monitoring device except by arrangement with Allied and only after the bail condition no longer applies.

4. The applicant is to provide Allied with any telephone numbers or electronic email addresses nominated by the New South Wales Director of Public Prosecutions or the Officer in Charge (OIC) of the police investigation, which is to be used if it is discovered that the applicant has breached any bail conditions.

5. Within 24 hours of his release, the applicant is to provide the OIC with evidence of compliance with this condition

7. The applicant may only travel away from the Correctional Centre from which the applicant is to be released on bail when in the company of Marissa Psomas. (This is a pre-release condition).

Drug and alcohol abstention and mental health plan condition

8. The applicant is not to drink alcohol or enter any premises in which alcohol is sold.

9. The applicant is not to take any illegal or prescription drugs other than a drug prescribed for the applicant by a medical practitioner.

10. Within two weeks of his release, the applicant is to attend upon his medical practitioner and comply with any mental health treatment plan prescribed by the medical practitioner.

Witness protection and non-association conditions

11. The applicant is not to approach or communicate with, or attempt to make contact with, any person he knows to be a co-accused or any person he knows to be a prosecution witness except for a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative.

12. Without restricting the general non-association condition, the applicant is not, by any means whatsoever, to approach, contact or associate with any one or more of the following named individuals: [REDACTED].

Travel and passport conditions

13. The applicant is not to go within 500 metres of any point of international departure from the Commonwealth of Australia.

14. The applicant is not to apply for any new passport or travel document.

Conditions restricting access to technology

15. The applicant is not to use or be in possession of more than one mobile telephone service and SIM card, and is to provide the password or PIN code, service and IMEI numbers of that telephone to the OIC within 48 hours of taking or resuming possession of any such service.

16. The applicant is not to use or possess any encrypted device or any means of communicating via encrypted applications, including but not limited to Threema, WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, Zoom, Discord, WeChat, or Telegram.

17. The applicant is not to use or be in possession of any mobile telephone which is a SMART telephone or is otherwise an internet capable mobile device.

18. The applicant is to provide access to any internet capable device in the applicant’s possession to the OIC on demand and provide any password or PIN code for the device to that person to facilitate access to it.

Security requirements

19. Three or more acceptable persons are to deposit security in the total sum of $4,000,000.00 and agree to forfeit the relevant individual sums if the applicant fails to appear at court in accordance with his bail undertaking. (This is a pre-release condition).

Character acknowledgments

20. An acceptable person is to provide a character acknowledgment which complies with the Bail Act 2013 (NSW), and the Bail Regulations 2014 (NSW). This is a pre-release condition.

Enforcement conditions

21. On the application of the Prosecutor and pursuant to s 30 of the Bail Act, the following enforcement conditions apply:

1. The applicant is to present himself at the front door of the address where the applicant will reside at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the home detention condition.

2. Such a direction may not be given more than two times in any seven day period and must only be given bearing in mind the rights of other occupants to peace and privacy.

22. The applicant is to undertake any non-invasive testing required of the applicant at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the drug and alcohol abstention condition.

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Endnotes

Decision last updated: 20 March 2025