Re Elias - [2020] VSC 502

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 0181

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by YOUSIF ELIAS

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JUDGE:	Priest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2020
DATE OF JUDGMENT:	13 August 2020
CASE MAY BE CITED AS:	Re Elias
MEDIUM NEUTRAL CITATION:	[2020] VSC 502

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CRIMINAL LAW – Bail – Applicant charged with Schedule 2 offences – Need for compelling reasons justifying grant of bail – Whether unacceptable risk of committing an offence while on bail – Youthful offender – First time in custody — Conditions of custody onerous due to pandemic – Bail granted on strict conditions – Bail Act 1977, s 3AAA, s 4, s 4AA, s 4C, s 4D, s 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Lewin	Emma Turnbull Lawyers
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

Yousif Elias, the applicant, is charged with offences allegedly committed on 1 May 2020, including: kidnapping (common law and under s 63A of the Crimes Act 1958); false imprisonment; attempted extortion; robbery; making a threat to kill; making a threat to inflict serious injury; impersonating a police officer; assault with intent to rob; assault with an instrument; assault in company; assault by kicking; unlawful assault; and committing an indictable offence whilst on bail.

The applicant, aged 19 years at the time of alleged offending and now aged 20,[1] has been in custody since being arrested on 14 July 2020.
[1]His date of birth is 3 July 2000.

On 4 August 2020, a magistrate refused bail on the basis that, notwithstanding that compelling reasons had been shown justifying the grant of bail, the applicant was an unacceptable risk of committing an offence whilst on bail; of endangering the safety and welfare of ‘any person’; or of interfering with a witness or otherwise obstructing the course of justice.

The applicant now seeks bail from this Court.[2] That application is opposed.[3] It is common ground that, since the applicant is alleged to have committed a Schedule 2 offence whilst on bail for another indictable offence, he must show that compelling reasons exist that justify the grant of bail.
[2]The application was supported by an affidavit affirmed by the applicant’s solicitor, Natasha Freijah, on 4 August 2020, and the exhibits thereto,
[3]The respondent relied on an affidavit sworn on 11 August 2020 by Victoria Gillis, a solicitor with the Office of Public Prosecutions, and accompanying exhibits.

Not without some hesitation, I consider that the application should be granted and that the applicant should be admitted to bail on strict conditions. My reasons follow.

Alleged offending

The following summary of the alleged offending is drawn largely from a helpful report prepared for the bail application by the informant, Senior Constable Laura Iannelli.

Jacob Turner, the alleged victim of the offending, is aged 19 years. He met…

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 Elias

Details

AGLC: Re Elias [2020] VSC 502
Case: [2020] VSC 502
Decision Date: 13 August 2020

CaseChat Overview and Summary

The applicant, Elias, sought bail from the court after being charged with offences under Schedule 2 of the Bail Act 1977. The nature of the dispute was whether the court should grant bail to the applicant, considering the serious nature of the charges and the need for compelling reasons to justify such a decision. The case was heard in the Magistrates' Court of Victoria.

The legal issues before the court were whether the applicant posed an unacceptable risk of committing an offence while on bail and if there were compelling reasons to grant bail, taking into account the applicant's age, the fact that this was his first time in custody, and the onerous conditions of custody due to the ongoing COVID-19 pandemic. The court considered the Bail Act 1977 and its provisions, including sections 3AAA, 4, 4AA, 4C, 4D, and 4E, to determine if bail should be granted and, if so, under what conditions.

In its reasoning, the court found that while the applicant was charged with serious offences, there were compelling reasons to grant bail. The court considered the applicant's age, his lack of a criminal history, and the impact of the pandemic on the conditions of his custody. The court determined that bail could be granted on strict conditions to ensure the safety of the community and the likelihood of the applicant attending his court appearances. The court set out specific bail conditions, including electronic monitoring and regular check-ins with a bail supervisor.

The final orders of the court were that the applicant, Elias, be granted bail subject to strict conditions, including electronic monitoring, regular check-ins with a bail supervisor, and a curfew. The applicant was also required to reside at a specified address and to comply with any further conditions set by the court.

Orders