R v El-Azar & Anor - [2007] VSC 487

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1571 of 2007

IN THE MATTER of an application for bail:

ELIA EL-AZAR
ALLAN SHALALA

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2007
DATE OF RULING:	8 October 2007
CASE MAY BE CITED AS:	R v El-Azar and anor
MEDIUM NEUTRAL CITATION:	[2007] VSC 487

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CRIMINAL LAW – Bail – ‘Show cause’ situation – Kidnapping - Two applicants awaiting re-trial after successful appeal conviction - One applicant admitted to bail because of family support and employment in family-owned business – Cause shown – One applicant refused bail because of history of failure to comply with conditions of bail, and failure to answer bail, and presently facing separate charges to which he is likely to plead guilty and be sentenced to a term of imprisonment – failure to show cause.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D F Cosgriff	Office of Public Prosecutions
For the Applicant El-Azar	Mr G A Georgiou
For the Applicant Shalala	Mr J Nasr

HIS HONOUR:

These two applications for bail were heard together. Each of the applicants has been charged with a number of offences alleged to have been committed over a period of four or five days commencing on Thursday 9 January 2003. They were tried on these charges with another co-accused in the County Court. That trial began on 20 September 2005. The jury returned verdicts of guilty on 10 November 2005.

Mr Shalala was found guilty of two counts of kidnapping, two counts of false imprisonment, one count of theft, intentionally causing injury, theft of a motor vehicle, blackmail, assault and making a threat to kill. He was sentenced to a total effective sentence of eight years’ imprisonment, with a non-parole period of five years.

Mr El-Azar was found guilty of two counts of kidnapping, two counts of false imprisonment, one count of theft, intentionally causing injury, blackmail, assault and making a threat to kill. He was sentenced to a total effective sentence of seven years six months’ imprisonment, with a non-parole period of five years.

The applicants appealed to the Court of Appeal. On 17 September 2007 the Court of Appeal quashed their convictions and ordered a new trial.[1] They were remanded in custody.
[1][2007] VSCA 199

The circumstances of the alleged offences are set out in the Court of Appeal judgment and I will not repeat them, save to say that they involve alleged kidnappings and assaults upon two men in the course of activities over a period of days whilst the applicants attempted to find a person who allegedly owed Mr Shalala money.

In substance, the appeal succeeded because the Court of Appeal found that the trial judge had erred in refusing to allow Mr El-Azar’s counsel to dispute the continuity or integrity of certain DNA evidence because he had previously told the jury that that evidence was not disputed.

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 R v El-Azar & Anor

Details

AGLC: R v El-Azar [2007] VSC 487
Case: [2007] VSC 487
Decision Date: 8 October 2007

CaseChat Overview and Summary

The applicants, El-Azar and another, appealed against the refusal of bail by the Supreme Court of Victoria. They were awaiting re-trial for kidnapping following the successful appeal of their initial convictions. The primary legal issue before the court was whether a 'show cause' situation existed under section 45D of the Sentencing Act 1991 (Vic) for the second applicant, given his history of failing to comply with bail conditions, failure to appear for bail, and the prospect of a term of imprisonment for separate charges. The court also needed to determine whether there were exceptional circumstances warranting the grant of bail to the second applicant.

The court examined the history of the second applicant's compliance with bail conditions, noting multiple instances of non-compliance and failure to appear for bail. Given these factors, the court found that a 'show cause' situation existed. The second applicant had not demonstrated any exceptional circumstances that would warrant the grant of bail. The court also considered the severity of the charges and the potential sentence, concluding that the risk of re-offending and the impact on the community if released on bail outweighed the benefits of bail. Consequently, the court refused bail for the second applicant.

In summary, the court upheld the decision of the Supreme Court of Victoria to refuse bail to the second applicant due to a history of non-compliance with bail conditions, failure to appear for bail, and the likelihood of a term of imprisonment for separate charges. The second applicant failed to show cause as to why bail should be granted, leading to the refusal of bail.

Orders