Re application for bail by Mohammad El Ali
[2021] VSC 713
•29 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0273
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by MOHAMMAD EL ALI | Applicant |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 October 2021 |
DATE OF JUDGMENT: | 29 October 2021 |
CASE MAY BE CITED AS: | Re application for bail by Mohammad El Ali |
MEDIUM NEUTRAL CITATION: | [2021] VSC 713 |
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CRIMINAL LAW – Application for bail – Applicant charged with possessing documents for trafficking in a drug of dependence, negligently dealing with proceeds of crime, possessing a firearm related item despite being subject to a firearm prohibition order and committing an indictable offence whilst on bail – Whether exceptional circumstances established – Unacceptable risk – Strong family support – Delay – Surety available –– Bail granted with conditions – Bail Act 1977 ss 1B, 4A, 4AAA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr I Hill QC with Mr C Farrington | Milides Lawyers |
| For the Respondent | Mr P Murphy | Legal Services Department, Victoria Police |
HIS HONOUR:
Introduction
On 23 September 2021, police executed a search warrant at and seized various items from the Brunswick West home of Mohammad El Ali (‘the applicant’). He was arrested and remanded on charges of possessing a firearm-related item whilst subject to a firearm prohibition order,[1] possessing documents for trafficking in a drug of dependence,[2] negligently dealing with proceeds of crime,[3] dealing with suspected proceeds of crime,[4] and committing an indictable offence whilst on bail[5] (‘Delianis matter’). Those charges are currently in the summary stream in the Magistrates’ Court.
[1]Contrary to s 112B of the Firearms Act 1996.
[2]Contrary to s 71A of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 194(4) of the Crimes Act 1958.
[4]Contrary to s 195 of the Crimes Act 1958.
[5]Contrary to s 30B of the Bail Act 1977.
Also charged as a result of the search was the applicant’s brother, Nabill El Ali (‘Nabill’). He was charged with possessing a drug of dependence (a small number of ecstasy tablets) and dealing with suspected proceeds of crime being a bicycle, and granted bail.
The applicant applied for and was refused bail in the Melbourne Magistrates’ Court on 28 September 2021. This was said to be on the basis that, if granted bail, he posed an unacceptable risk of committing an offence. The matter was listed for mention in the Melbourne Magistrates’ Court on 22 October 2021 and adjourned to a date in November.
On 8 October 2021, the applicant filed an application for bail in this Court.
The alleged offending
I will refer to the circumstances that led to the warrant shortly. However, it is convenient to turn immediately to the material that relates to the current charges.
On 23 September 2021, the following items were found in the applicant’s bedroom:
(a) eight bundles of cash in a custom built cavity at the top of the wardrobe, in addition to further cash in a wardrobe drawer, totalling approximately $70,000;
(b) an undated document detailing how to manufacture (unspecified) drugs of dependence; and
(c) one round of cartridge ammunition in a custom-built cavity at the side of the applicant’s wardrobe.
In Nabill’s bedroom, police located:
(a) five bundles of cash in a custom built cavity at the top of his wardrobe, in addition to further cash in a wardrobe drawer, totalling approximately $50,000.
In other areas of the property, police located:
(a) a stolen bike worth $5,500; and
(b) assorted power tools marked with the names of third persons.
The applicant was arrested and transported to Heidelberg Police Station. He was not interviewed due to complaining of COVID-19 symptoms and was then remanded in custody.
The surrounding circumstances
In opposing the application for bail, the respondent referred to the following matters which were said to explain the context in which the warrant was issued. In April 2020, police commenced an investigation into the activities of various persons, including Abdul Taha and Linda Dowdle, who they believed to be involved in a drug trafficking syndicate facilitating the large-scale storage and trade of stolen goods.
As a part of the investigation, police began monitoring a storage unit in Tullamarine. Mr Taha and Ms Dowdle were observed frequenting the storage unit, where it is believed they stored stolen goods and met with others to sell and trade them.
In June 2020, telephone intercept material revealed that Mr Taha contacted the applicant 77 times.
On 23 September 2020, police executed a search warrant at the storage unit and located various items including alleged stolen goods and drugs of dependence in individual zip-lock bags. Police also located drug manufacturing equipment inside a cardboard box with the applicant’s name and address on it. Forensic testing of some of the zip-lock bags identified a strong match for the applicant’s DNA.
I was informed that Mr Taha and Ms Dowdle have been committed for trial.
Outstanding matters and recent bail history
At the time of the alleged offending, the applicant was on bail for charges of trafficking in not less than a commercial quantity of a drug of dependence;[6] trafficking in a drug of dependence;[7] and three charges of possessing a drug of dependence[8] (‘Hyslop matter’).
[6]Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981.
[7]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
[8]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
In relation to those charges, police allege that the applicant supplied 11 ounces of methylamphetamine to Rossario Latina who then on sold it to a police covert operative. On 28 November 2018, a search warrant was executed at the applicant’s residence and various items were seized, including methylamphetamine in individual zip-lock bags, 13 vials of steroids, and $4,403.70 in cash. He was arrested, charged, and granted bail that day.
On 5 August 2019, the applicant was charged and remanded on further offences (‘Flowers matter’) and, on 24 September 2019, his bail was revoked. These charges resolved on a plea of guilty and the applicant was sentenced to two months’ imprisonment reckoned as time served.
On 8 April 2020, in light of the Flowers matter having resolved, the applicant was again granted bail by a judge in the County Court in the Hyslop matter, subject to a $500,000 surety and conditions of bail including treatment and twice-weekly urine screens. On 19 May 2021, the applicant’s bail was varied with the effect that the treatment and urinalysis conditions were removed. I was told this was done by consent.
The applicant remains on bail in the Hyslop matter, which is listed for trial in the County Court on 11 April 2022.
The applicable legislation
The present application is governed by the Bail Act 1977 (‘the Act’). In interpreting and applying the Act, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Act.[9] Because the applicant is accused of committing a Schedule 2 offence[10] whilst on bail for a Schedule 1 offence,[11] he must satisfy the Court that exceptional circumstances exist that justify the grant of bail, or otherwise bail must be refused.[12] In considering whether the test is met, the Court must have regard to the surrounding circumstances.[13]
[9]Bail Act 1977 s 1B.
[10]Bail Act 1977 sch 2, item 30 (committing an indictable offence whilst on bail).
[11]Bail Act 1977 sch 1, item 6(b) .
[12]Bail Act 1977 ss 4AA(c)(i), 4A(1A) and 4A(2).
[13]Bail Act 1977 s 4A(3).
The phrase ‘exceptional circumstances’ is not defined in the Act. The established principles have previously been summarised by Lasry J as follows:
·The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
·Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
·Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[14]
[14]Re Brown [2019] VSC 751, [65] (Lasry J) (citations omitted).
In the event that the applicant establishes exceptional circumstances justifying the grant of bail, the Court must still refuse bail if satisfied by the respondent that the applicant poses an unacceptable risk of any of the matters set out in s 4E(1)(a) of the Act. The Court must again have regard to the surrounding circumstances in determining unacceptable risk, and consider whether there are any conditions of bail that may mitigate any risk so that it is not unacceptable.[15]
[15]Bail Act 1977 s 4E(3)(a).
The applicant’s personal circumstances
The applicant is 41 years old. He was born and raised in Melbourne, his parents having migrated here from Lebanon some years earlier. He is the eldest in a sib-ship of six and grew up in a stable home environment. His father is a taxi-driver and his mother a homemaker.
After finishing high school, the applicant completed an apprenticeship in carpentry and went on to work in that field. During his early twenties, he was married and had two children from that relationship, now aged 12 and 16. The marriage broke down some years ago, but the applicant maintains an amicable relationship with his former wife and is in frequent contact with his children.
The applicant is said to have a history of poor mental health and substance use. In April 2020, after being granted bail in the Hyslop matter, he commenced counselling and attending Narcotics Anonymous (‘NA’) meetings to address these issues.
At the time of his arrest, the applicant was residing with his family in Brunswick West.
The applicant has an adult criminal history in both Victoria and New South Wales, spanning from 2007 to 2020, and including matters involving offences of dishonesty, violence, family violence, firearm possession and drug trafficking, cultivation, possession, and related offences. He also has a history of bail related offences.
The applicant’s contentions
Mr Hill QC, who appeared with Mr Farrington for the applicant, commenced his oral submissions by focusing on the particular charges with which the current application is concerned. In relation to the drug offence, he noted that police found an undated document which it was alleged set out a recipe for preparing some unidentified drug and that there was no evidence to show how long the document had been there. He noted that the recipe was not accompanied by any of the equipment or ingredients that might be used to manufacture illicit drugs and was, at its highest, a passive offence.
In relation to the single round of ammunition, he noted that again, there was no evidence as to how long it had been in the cavity or how it might have got there. He also submitted that there was currently no forensic evidence linking it to the applicant. No firearm or other weapon was found in the house and therefore no means to use the cartridge as a weapon was identified. Again, Counsel described it as a passive offence.
Finally, in relation to the money that was found, the applicant submitted that there was no direct evidence linking it to criminal activity, that $77,000 was not a very large sum of money, and that the charge is currently listed to be dealt with as a contested summary hearing in the Magistrates’ Court.
In written submissions, it was said that the case against the applicant is largely circumstantial and that there are serious issues to be tried. There was no evidence to support him having placed the seized items in his bedroom cupboards, or him having any knowledge of them. This was emphasised by the context that the applicant was on remand between August 2019 and April 2020, and that other people would have had access to his bedroom during that time. Further, it was noted that other general household items were also stored in the same cupboards, leaving it open that other persons had regular access to them. Noting the secreted nature of the cupboard compartments where the items were seized, it was submitted that the prosecution cannot prove how long the items were there, especially because the areas in question do not appear to have been searched during the execution of previous warrants at the residence. It was conceded that the cash located was a significant sum, but noted that there was no evidence to support that it is proceeds of crime.
In relation to the search, the applicant was said to have requested to remain present during the execution of the search warrant at his residence, and for his lawyer to be notified, but neither of those requests were facilitated. It was further said that none of the applicant’s family members were permitted to be present during the search.
In seeking to establish that there are exceptional circumstances justifying bail the applicant placed great weight on delay. As already noted the charges are in the summary stream. Although the delays in summary hearings are not nearly as long as those associated with jury trials, the applicant noted that the police are seeking forensic evidence in order to link the applicant to the money and cartridge found in the cupboard in his bedroom. There is an expected delay of between 6 and 12 months before these forensic tests will be completed. It follows that the brief of evidence will not be complete before these steps have been taken.
The applicant also pointed to a further complicating factor. As noted, the police allege that they found around $50,000 in the bedroom belonging to the applicant’s brother. His brother has not been charged in relation to that money. Police are awaiting forensic analysis to see if the applicant has handled that money. If evidence shows a connection to the applicant, police have indicated that the applicant may be charged with dealing with the additional $50,000 and that this may mean the charges would be dealt with in the County Court.[16] Were that to occur the delay before trial would be significantly longer.
[16]Criminal Procedure Act 2009 s 28(1)(b)(i). I note s 194(4) has a maximum penalty of 5 years’ imprisonment and is a level 6 offence and that s 195 has a maximum penalty of 2 years’ imprisonment and is a level 7 offence. Pursuant to s 28(1)(b)(i) of the Criminal Procedure Act 2009, a level 6 offence can be heard and determined summarily. Whilst other proceeds of crime offences, for example ss 194(1) and (2), can be heard summarily only if the value of the proceeds of crime alleged to have been dealt with does not in the judgment of the court exceed $100,000, sections 194(4) and 195, of which the applicant has been charged, do not have the same limit as a number of offences listed in Schedule 2.
The applicant submitted that he was on remand for a substantial period of time and therefore has accrued Renzella time that would be relevant to any sentence imposed on these charges should he be convicted.[17] In that event, and having regard to the charges themselves, he submitted that there is a chance that his time on remand might be greater than any sentence imposed.
[17]R v Renzella [1997] 2 VR 88.
In addition to these matters, the applicant relied on the following:
(a) his strong family ties including with his children. His former partner described their children as having a loving relationship with him, and while she and the applicant have been separated for some time, she said that she remains connected to and a part of his family;
(b) the availability of immediate employment with his brother, Khaled, who is a Project Manager. In a letter dated 18 October 2021, Khaled confirmed employment through his business, KSA Building Pty Ltd, which has been running for approximately five years. It was proposed that the applicant would work three full days per week as a labourer, with the flexibility to work more days if desired and subject to the applicant’s studies;
(c) the applicant is currently enrolled in a 12-month intensive alcohol and other drugs intensive course through Odyssey House;
(d) the need to support his sister who suffers from an autoimmune disease;
(e) a lack of psychological and medical treatment available in custody, whereas in the community the applicant would have access to an active mental health plan through his general practitioner, who prescribes him with various medications for his (unspecified) mental health condition; and
(f) his willingness to continue treatment with a psychologist and attend NA meetings.
Surety
The applicant’s parents are willing to offer a $200,000 surety, or any greater amount sought by the Court, by way of equity in their Coburg North property which is valued at $770,000 and owned outright. It is noted that the applicant’s mother is a surety in his bail in the Hyslop matter, although with equity in a separate property.
In an affidavit affirmed on 18 October 2021, the applicant’s father, Sleiman El Ali, deposed that he was aware of the obligations attached to being a surety and the potential consequences to the surety if the applicant were to breach bail. He deposed further that if he were to become aware of the applicant breaching any condition of bail, he would notify the informant of this.
It was submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail mirroring those in place under the applicant’s extant bail grant, including as to residence, curfew, daily reporting, surrender of passport, and restrictions on leaving the State or country.
The respondent’s contentions
The application for bail is opposed. First, on the basis that the applicant has not demonstrated the existence of exceptional circumstances that justify the grant of bail. Second, on the basis that the applicant poses an unacceptable risk of committing an offence whilst on bail or failing to answer bail.
On the issue of delay, the respondent submitted that the applicant’s trial on the Hyslop matter is listed for hearing in April 2022 and that the period of delay should be measured between the present date and the day of his trial. It also submitted that the issue of bail can be addressed by the County Court at the time of the trial, and that if he is convicted he would plainly face a custodial term that would render the present bail application irrelevant.
The respondent submitted that the charges against the applicant are serious, which is reflected in the maximum sentences of up to 10 years’ imprisonment for some of the more serious charges, and that the prosecution case is a strong one.
It was submitted that the applicant has a poor criminal record. In relation to his family support, the respondent noted that the alleged offending took place in the house where the applicant proposed to reside if granted bail and that the house had been the subject of police searches under warrant in 2018 and 2021.
It said that there was no evidence of a lack of medical treatment available to the applicant in custody.
On the question of unacceptable risk, the respondent submitted that the applicant was on bail for serious charges and subject to stringent conditions at the time of the offending the subject of the present application for bail. Further, his criminal history records a prior disposition for committing an indictable offence whilst on bail. The applicant’s criminal history includes two offences of failing to answer bail.
Analysis and conclusion
In Re Sam,[18] Beach JA said:
The Bail Act does not define what are exceptional circumstances. It is trite that, in order to be exceptional, the circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail, notwithstanding the very serious nature of the charge against her. Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[19]
[18][2017] VSC 91.
[19]Re Sam [2017] VSC 91, [22] (citations omitted); See also, Re CT [2018] VSC 559.
I am satisfied that the applicant has established exceptional circumstances. That is so for the following reasons.
First, the charges are to be dealt with summarily. Although the delays associated with contested summary hearings are not nearly of the same order as those seen in relation to trials, the combination of delayed forensic analysis that the police seek to undertake and general delays caused by the pandemic mean that there is a real risk the brief of evidence will not be finalised in much under a year, with the hearing more than a year away. In the event that the applicant is convicted, and taking into account his poor criminal record, the charges might result in a term of imprisonment. It is difficult to gauge at this remote point in time what sort of sentence might ensue. However, once Renzella time is factored in, I am satisfied that there is a real chance that a substantial period, if not the entire period, of any term of imprisonment would be served on remand. In considering delay, I do not accept the respondent’s submission that the relevant delay is only until April 2022 when the applicant’s trial of the earlier charges will be heard. The present bail application relates to different charges to be dealt with in the Magistrates’ Court. Further, he is entitled to the presumption of innocence and I cannot proceed on the basis that he will or may be convicted. It is appropriate to take into account the existence of the other charges, but they remain distinct.
Second, the applicant has to show exceptional circumstances because he was on bail at the time of the alleged offences. A couple of points can be made about that. First, the charges for which he was granted bail on two occasions are clearly more serious than the present charges. In saying that, I have not placed any weight on the background circumstances concerning Mr Taha and Ms Dowdle. Around 18 months have passed since the arrest of those two individuals who have gone through a committal and are awaiting trial. The applicant has not been charged with that offending nor is there any clear link between that offending or those persons and the present charges that the applicant faces. Second, although the possession charges are continuing offences and relate to the time of the charge, this is not one of the usual cases where the offending on bail is clear and discrete and strongly evidences an ongoing risk of offending. I do not regard the material as pointing to any marked degree a risk of further offending on bail.
In finding exceptional circumstances I have placed some weight on the personal factors relied on by the applicant. On their own they provide little support for a finding of exceptional circumstances but they are part of the overall circumstances that have led me to be satisfied that exceptional circumstances justifying bail exist.
I am not satisfied that the grant of bail poses an unacceptable risk. I take into account the fact that the applicant has been on bail for more serious offences and that the risk has been adequately managed by the imposition of strict conditions. As already observed, I do not regard the present charges as materially altering the risk.
There will be a grant of bail. I shall impose conditions and a surety. I am satisfied that with these things in place there is no unacceptable risk should the applicant be granted bail.
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