Re El-Refei (No 2) - [2020] VSC 164

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL LAW DIVISION

S ECR 2020 0056

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:	7 April 2020
DATE OF RULING:	7 April 2020
CASE MAY BE CITED AS:	Re El-Refei [No 2]
MEDIUM NEUTRAL CITATION:	[2020] VSC 164

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CRIMINAL LAW – Application for Bail – New facts or circumstances – COVID-19 pandemic – Surety – 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, 4E, and 18AA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N Karapanagiotidis	Emma Turnbull Lawyers
For the Respondent	Ms A Moran	Office of Public Prosecutions

HER HONOUR:

The applicant, Ahmed El-Refei, makes his third application for bail. Bail was refused in the Melbourne Magistrates’ Court on 23 December 2019 and I refused his application to this court for bail on 19 February 2020. I published my reasons for refusing the second application for bail on 24 February 2020 (‘my reasons’)[1] and I will treat those reasons as incorporated into this ruling and as read.
[1]Re El-Refei [2020] VSC 65.

The applicant was arrested on 20 December 2019 and is charged with offences of aggravated home invasion with a firearm,[2] home invasion (person present),[3] aggravated burglary (person present),[4] theft,[5] possessing a firearm whilst being a prohibited person,[6] intentionally causing serious injury,[7] recklessly causing serious injury,[8] intentionally causing injury,[9] and possessing a drug of dependence (methylamphetamine).[10]
[2]Crimes Act 1958 s 77B (‘Crimes Act’).
[3]Ibid s 77A(1).
[4]Ibid s 77(1).
[5]Ibid s 74.
[6]Firearms Act 1996 s 5(1).
[7]Crimes Act s 16.
[8]Ibid s 17.
[9]Ibid s 18.
[10]Drugs, Poisons and Controlled Substances Act 1981 s 73.

New facts or circumstances

Section 18 of the Bail Act 1977 (‘the Act’) provides that a person who has been refused bail may make a further application for bail. However, s 18AA of the Act provides that the court must not hear an application under s 18 unless, inter alia, the applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail.

It is submitted by the applicant, and conceded by the respondent, that new facts and circumstances have arisen since I refused bail to the applicant that warrant my reconsideration of whether he should be admitted to bail. Namely, unexpected further delay caused by the impact of COVID-19 on the justice system, and the availability of a surety of $50,000.

I accept that there are…

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 (No 2)

Details

AGLC: Re El-Refei (No 2) [2020] VSC 164
Case: [2020] VSC 164
Decision Date: 7 April 2020

CaseChat Overview and Summary

The Federal Court was asked to determine an application for bail made by the applicant, who was charged with a Schedule 1 offence. The case centred around whether the applicant had demonstrated exceptional circumstances that would justify the grant of bail, especially in light of the COVID-19 pandemic. The applicant argued that the pandemic created unique and exceptional circumstances warranting bail.

The court had to decide whether the applicant had established exceptional circumstances under the Bail Act 1977. Additionally, the court assessed the likelihood of the applicant's sentence, the applicant's history of non-compliance with court orders, and the risk to the community if bail were granted. The court considered the applicant's current status on an adjourned undertaking at the time of the alleged offence. The court concluded that the applicant had not demonstrated exceptional circumstances warranting bail and found that the risk to the community was unacceptable.

The court found that the applicant's history of non-compliance with court orders and the nature of the offence made the risk of reoffending too great. The court also noted that the exceptional circumstances of the COVID-19 pandemic did not sufficiently outweigh the risk to the community. Therefore, the application for bail was refused. The court's decision was based on the applicant's criminal history, the nature of the offence, and the potential risk to the community if bail were granted. The court found that the applicant had not met the threshold for exceptional circumstances, and the risk to the community was too high to warrant bail.

The final orders of the court were that the application for bail was dismissed, and the applicant remained in custody pending the outcome of the proceedings. The court emphasised the need to protect the community and ensure that justice is served. The decision underscored the importance of considering all relevant factors, including public health concerns, when determining bail applications.

Orders