Re application for bail by Mohammad El Ali - [2021] VSC 713

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…

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 Re application for bail by Mohammad El Ali

Details

AGLC: Re application for bail by Mohammad El Ali [2021] VSC 713
Case: [2021] VSC 713
Decision Date: 29 October 2021

CaseChat Overview and Summary

Mohammad El Ali applied for bail in the Court of Appeal of the Supreme Court of Victoria, where he was 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 while on bail. The primary legal issues the court had to address were whether exceptional circumstances were established, whether the applicant posed an unacceptable risk to the community, and whether there were other relevant considerations under the Bail Act 1977.

The court considered the nature and seriousness of the charges against the applicant, the potential penalty, and the risk of reoffending. It also assessed the applicant's history of compliance with bail conditions, the strength of his family ties, the availability of a surety, and the delay in the application. The court held that while the charges were serious, the applicant had demonstrated a willingness to comply with bail conditions and had strong family support. The court found that the risk of reoffending was not unacceptably high and that the applicant could be adequately supervised. The court granted bail with conditions, including electronic monitoring and regular check-ins with a supervising officer.

The court concluded that the exceptional circumstances test was satisfied, and the applicant's rights to liberty were not outweighed by the need to protect the community. The applicant was granted bail with conditions, including electronic monitoring and regular check-ins with a supervising officer. The court emphasised the importance of compliance with the conditions and warned that any breach could result in the revocation of bail and the applicant's imprisonment.

Orders