Re El-Refei - [2020] VSC 65

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0012

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by AHMED EL-REFEI

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JUDGE:	INCERTI J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2020
DATE OF RULING:	24 February 2020
CASE MAY BE CITED AS:	Re El-Refei
MEDIUM NEUTRAL CITATION:	[2020] VSC 65

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CRIMINAL LAW – Application for Bail – Applicant charged with Schedule 1 offence – Requirement to show exceptional circumstances exist that justify grant of bail – Whether exceptional circumstances shown – Likely sentence – History of non-compliance with court orders – Applicant on adjourned undertaking at the time of alleged offending – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4A, 4AA, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Lewin	Emma Turnbull Lawyers
For the Respondent	Mr A Albert	Office of Public Prosecutions

HER HONOUR:

During the early evening of 6 October 2019, an altercation occurred in the vicinity of a residential premises in Hallam. That altercation led to the non-fatal shooting of the victim.

On 20 December 2019, the applicant was charged with offences of aggravated home invasion with a firearm,[1] home invasion (person present),[2] aggravated burglary (person present),[3] theft,[4] possessing a firearm whilst being a prohibited person,[5] intentionally causing serious injury,[6] recklessly causing serious injury,[7] intentionally causing injury,[8] and possessing of a drug of dependence (methylamphetamine).[9] At the time of the alleged offending, the applicant was subject to an adjourned undertaking in relation to an offence of theft of a motor vehicle.
[1]Crimes Act 1958 s 77B (‘Crimes Act’).
[2]Ibid s 77A(1).
[3]Ibid s 77(1).
[4]Ibid s 74.
[5]Firearms Act 1996 s 5(1).
[6]Crimes Act s 16.
[7]Ibid s 17.
[8]Ibid s 18.
[9]Drugs, Poisons and Controlled Substances Act 1981 s 73.

Between 12 December 2019 and 15 January 2020, each of the co-accused were arrested and charged with various offences in respect of this matter. All co-accused were remanded in custody. The matter is next listed for a committal case conference in the Melbourne Magistrates’ Court on 30 March 2020.

On 21 January 2020, the applicant filed an application for bail in this Court. The applicant previously applied for and was refused bail in the Melbourne Magistrates’ Court on 23 December 2019.

Because the applicant is charged with a Schedule 1 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) – that is, aggravated home invasion[10] – pursuant to s 4A of the Act, I must refuse bail ‘unless satisfied that exceptional circumstances exist that justify the grant of bail’.
[10]Bail Act1977 sch 1, item 4 (‘Bail Act’).

The Crown case

At approximately 6.20pm on 6 October 2019, police responded to a ‘000’ call relating to a shooting at the victim’s premises in Hallam…

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-Refei

Details

AGLC: Re El-Refei [2020] VSC 65
Case: [2020] VSC 65
Decision Date: 24 February 2020

CaseChat Overview and Summary

The applicant, Mr El-Refei, sought bail following his charge with a Schedule 1 offence under the relevant criminal legislation. The case was heard in the Magistrates Court of Victoria. The primary issue before the court was whether exceptional circumstances existed that would justify the grant of bail to the applicant, given the serious nature of the offence charged. The court was also required to consider the likelihood of the applicant reoffending if released on bail, his history of non-compliance with court orders, and his status as being on an adjourned undertaking at the time of the alleged offending.

The court found that the applicant had not demonstrated exceptional circumstances that would warrant the grant of bail. Additionally, the court considered that the applicant posed an unacceptable risk of reoffending if released on bail. The applicant's history of non-compliance with court orders and his status on an adjourned undertaking further supported the conclusion that bail should not be granted. The court found that the seriousness of the offence, coupled with the risk of reoffending, outweighed any arguments in favour of bail. Consequently, the application for bail was refused under the relevant sections of the Bail Act 1977.

In light of the findings, the court held that the applicant should remain in custody until the conclusion of his criminal proceedings. The court emphasised the importance of ensuring public safety and the need to uphold the integrity of the judicial process. The applicant's rights to a fair trial and the presumption of innocence were acknowledged, but these were considered secondary to the overarching need to protect the community.

Orders