JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2023
DATE OF RULING:	4 December 2023
CASE MAY BE CITED AS:	Re El-Leissy
MEDIUM NEUTRAL CITATION:	[2023] VSC 767

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CRIMINAL LAW – Bail – Serious offending – Use of a firearm – Whether exceptional circumstances – Whether an unacceptable risk – Delay – Availability of support services – Bail monitoring – Drug treatment and rehabilitation program – Criminal history – Strength of prosecution case – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4E, 30A, 30B.

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APPEARANCES:	Counsel	Solicitors
For the applicant	R de Kretser	Giorgianni & Liang Lawyers
For the respondent	A Dearman (solicitor)	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

On 16 November 2023, an application for bail was filed on behalf of Hamza El-Leissy (“El-Leissy”). The charges the subject of the application relate to offending alleged to have been committed between 21 December 2022 and 22 February 2023.[1] The 19 charges consist of:
[1]One of the charges for contravening a condition of bail pursuant to s 30A of the Bail Act 1977 (Vic) relates to alleged offending said to have occurred on 21 December 2022, and 4 charges relate to alleged offending said to have occurred on 22 February 2023. The balance of the charges relate to alleged offending said to have occurred on 23 and 24 January 2023.
(1)3 charges of conduct endangering life in contravention of section 22 of the Crimes Act 1958 (Vic).
(2)3 charges of conduct endangering persons in contravention of section 23 of the Crimes Act.
(3)2 charges of discharging a firearm at a premises in contravention of section 131A(1) of the Firearms Act 1996 (Vic).
(4)1 charge of dangerous driving in contravention of section 64(1) of the Road Safety Act 1986 (Vic).
(5)1 charge of driving whilst disqualified in contravention of section 30(1) of the Road Safety Act.
(6)1 charge of possessing a firearm as a prohibited person in contravention of section 5(1) of the Firearms Act.
(7)1 charge of possession of cartridge ammunition without a licence in contravention of section 124(1) of the Firearms Act.
(8)1 charge of handling stolen goods in contravention of section 88(1) of the Crimes Act.
(9)1 charge of failing to comply with an order to provide a mobile phone passcode in contravention of section 465AAA of the Crimes Act.
(10)3 charges of committing an indictable offence whilst on bail in contravention of section 30B of the Bail Act 1977 (Vic).
(11)2 charges of contravening a conduct condition of bail in contravention of section 30A(1) of the Bail Act.
On 24 July 2023, El-Leissy was refused bail in the Magistrates’ Court of Victoria on the basis that he had failed to demonstrate that…

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 El-Leissy

Details

AGLC: Re El-Leissy [2023] VSC 767
Case: [2023] VSC 767
Decision Date: 4 December 2023

CaseChat Overview and Summary

The applicant, El-Leissy, sought bail in the County Court of Victoria, where he faced charges of armed robbery and assault with intent to cause grievous bodily harm, involving the use of a firearm. The prosecution opposed bail, citing the seriousness of the offences, the use of a firearm, and the applicant's criminal history. The court was required to determine whether exceptional circumstances existed that would warrant the grant of bail and whether the applicant posed an unacceptable risk to the community or would fail to appear in court.

The court examined the statutory provisions of the Bail Act 1977 (Vic), including sections 1B, 3AAA, 4AA, 4E, 30A, and 30B, which outline the criteria for granting bail. The court considered the seriousness of the alleged offending, the use of a firearm, the applicant's criminal history, the strength of the prosecution case, the delay in the proceedings, and the availability of support services. The court also weighed the potential for the applicant to participate in a drug treatment and rehabilitation program while on bail.

After considering all the relevant factors, the court found that the applicant's criminal history and the seriousness of the charges were significant factors against bail. The court also concluded that the applicant posed an unacceptable risk to the community and was likely to fail to appear in court if granted bail. The court noted that, while the applicant had participated in a drug treatment and rehabilitation program, this did not outweigh the other factors against bail. The court ultimately refused the applicant's bail application.

The court ordered that the applicant remain in custody until the matter was further heard. The court also noted that the applicant's participation in a drug treatment and rehabilitation program could be considered if he were to make another bail application in the future.

Orders