Re Mourad
[2021] VSC 497
•16 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0143
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by BILAL MOURAD |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 July 2021 |
DATE OF JUDGMENT: | 16 August 2021 |
CASE MAY BE CITED AS: | Re Mourad |
MEDIUM NEUTRAL CITATION: | [2021] VSC 497 |
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CRIMINAL LAW – Application for bail – Trafficking in a drug of dependence – Compelling reasons made out – No unacceptable risk – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms L. Ristivojevic | Sarah Tricarico Lawyers |
| For the Respondent | Ms R. Champion | Ms A. Hogan, Solicitor of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by Bilal Mourad (‘the applicant’).
On 9 May 2021 the applicant was arrested and remanded in relation to offending alleged to have been committed between March and December of 2020. The applicant has been charged with possessing a substance, equipment and material for trafficking in a drug of dependence, trafficking a drug of dependence (two charges), possessing a drug of dependence (two charges), possessing a tablet press (two charges) and contravening a certain conduct condition of bail.
The applicant was on bail for other outstanding matters at the time of his arrest and remand for the current matters. The current matters are next listed for committal mention before the Melbourne Magistrates’ Court on 2 August 2021.
On 1 July 2021 the matter came before me as an application for bail. I granted the application and indicated that I would provide my written reasons. These are those reasons.
Summary of alleged offending
On 18 December 2020 at around 9.20am, police executed several search warrants, including at 29A York Street in Airport West (‘the premises’). The premises, which presented as a non-operational café, is situated in between two factory units at 27-29 York Street. A number of items were seized from the premises, which in summary included:
·two pill presses, three pill press stamps and various metal components or pieces;
·274.5 pills and 3 grams of loose pink powder (weighing an approximate total of 85.35 grams), believed to be MDMA. Spot drug testing of pink powder located on the pill press tested positive to MDMA;
·22 grams of a white crystal substance. Spot testing of this substance located in a bowl at the premises tested positive to methylamphetamine;
·76 grams of a white powder and 41 grams of a brown sticky substance which are pending forensic analysis;
·a glass Coke bottle, a Boost juice bottle and a pair of latex gloves;
·a pamphlet for an ecstasy testing kit and two 2nd Defence drug testing kits;
·a photocopy of a driver’s licence in the name of Bilal Mourad; and
·a copy of an utility bill for the premises in the name of Bill Mourad.
The prosecution case is put on the basis that the applicant had been exclusively renting the premises between 11 March and 18 December 2020, and therefore had control and possession of the items seized at that location under warrant.
Forensic analysis was undertaken of swabs from the two drink bottles and the pair of latex gloves seized by police, each of which identified DNA belonging to the applicant. Swabs taken from a pill press were not suitable for further forensic analysis due to containing a low amount of DNA.
Analysis of the applicant’s mobile phone, seized on 10 July 2020, revealed photographs of the inside of the premises and searches and images of tablet presses and tablet press stamps.
Arrest
At the time of the raid, the applicant was on remand for the matter where the informant is Hammond. He was arrested on 10 July 2020 in that matter and granted bail on 12 February 2021.
On 8 May 2021, police attended the applicant’s residence, however he was not present at the time. The house was searched with consent of the applicant’s wife, and no items were seized.
On 9 May 2021, the applicant attended the Broadmeadows Police Station and was arrested. He remained silent during his interview.
Other pending matters
The applicant is currently on bail in relation to the matters of Informant Senior Constable Christopher Hammond (‘the Hammond matter’). The applicant was charged on 11 July 2020 with trafficking in a large commercial quantity of a drug of dependence, attempting to traffick in a large commercial quantity of a drug of dependence, trafficking in a commercial quantity of a drug of dependence, attempting to traffick in a commercial quantity of a drug of dependence, trafficking in a drug of dependence (two charges), attempting to traffick in a drug of dependence, possessing a drug of dependence (seven charges), possessing a traffickable quantity of firearms, possessing a firearm as a prohibited person (four charges), possessing a general category handgun that is not registered (four charges), cultivating a narcotic plant (cannabis), dealing with property suspected of being proceeds of crime, possessing cartridge ammunition without a permit, possessing a silencer without a permit (two charges). The applicant has been committed to stand trial in the County Court in relation to the Hammond matter, and was granted bail on 12 February 2021 in the Melbourne Magistrates’ Court.
The applicant’s affidavit in support of the current application states that the Magistrate’s reasoning in granting bail in the Hammond matter was based on a finding of a ‘viable and real defence open as to the legality of the search of the applicant’s vehicle’, and ‘inordinate delay’.
As to the first matter, the applicant says there is an issue with the legality of the interception and search of the applicant’s vehicle which led to the search warrants being executed at his residence. The applicant’s contentions on this point can be summarised as follows. The prosecution case relies on the evidence of an anonymous caller to the Moonee Ponds Police station on 10 July 2020 (the date of the applicant’s arrest in this matter). The caller provided details of an alleged drug transaction, a partial license plate number and a description of a vehicle that would be in attendance. The police acted on this information and arrested the applicant after he was seen at the location nominated by the anonymous caller. The applicant’s vehicle was searched, during which the police located 1.97 kg of substance, 0.28% of which was methylamphetamine (i.e. 6 grams of the mixture was a drug of dependence).
The Chief Commissioner of Victoria Police disclosed an information report to the defence that the applicant was ‘set up’. The applicant will defend the allegations on the basis that he was ‘set up’, and continues to deny knowledge and possession of the substance.
The applicable legislation
Step one – threshold test
The parties accept that the applicant is required to show a compelling reason that justifies the grant of bail, pursuant to s 4AA(3) of the Bail Act 1977 (‘the Act’), as he is accused of a number of Schedule 2 offences in the informant Di Giangregorio matter (here, for example, trafficking in a drug of dependence). There may have been a basis for arguing that the applicant was required to show exceptional circumstances because he has been charged with breach of a conduct condition in relation to the Hammond matter but the informant intends to withdraw that charge. It is sensible and appropriate to apply the compelling reason test.
Bail must be refused unless the court is satisfied by the applicant to the requisite standard that bail is justified (be that standard a compelling reason or exceptional circumstances). In considering whether the threshold test is satisfied, the Court must take into account the surrounding circumstances, including, but not limited to, those in s 3AAA(1) of the Act.
Second step – unacceptable risk
If satisfied of the threshold test, the court must apply the unacceptable risk test. Bail must be refused if satisfied by the prosecutor that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable one.
In applying this test, the Court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
The applicant’s personal circumstances
The applicant is 34 years of age, having been born in June 1987 in Melbourne.
He withdrew from formal education in year 8, and pursued a career in automotive spray painting. The applicant has worked for 14 years in this industry for various employers. Since being granted bail in February 2021, the applicant was employed on a full-time basis at the National Collision Centre in Airport West.
Prior to his arrest, the applicant resided with his wife at their home in Taylors Hill with their 6-year-old daughter. The applicant’s wife works part-time for a jewellery retailer.
The applicant has a prior criminal record. In 2012, the applicant was convicted in the County Court for cultivating a commercial quantity of cannabis and possessing methylamphetamine. He was sentenced to three years’ imprisonment, two of which were wholly suspended. In 2008, the applicant was found guilty of possessing ecstasy and possessing cannabis. The matter was adjourned until April 2009, at which time the matter was dismissed following compliance with an undertaking.
Analysis
As a result of information received, this search warrant was executed five months after the applicant went into custody and there is a further delay of another five months while awaiting the DNA evidence. Had these further offences been known about at the time the applicant was charged with the other offences, it is likely that all the charges would have proceeded together. This case has about it the unusual feature in that for some months the applicant is said to be in the possession of premises when he was in custody.
In considering what is the most serious offending in all of these matters, the most serious offending is the finding of the firearms, the $30,000 in cash, and the discovery of a pill press connected to a place which the applicant rents. At the time of the committal hearing, the most serious charge was the drug trafficking, which is a schedule 1 offence requiring the applicant to demonstrate exceptional circumstances.
I assume her Honour Ms Altman took the view that because it is conceded that there is material from which it could be said this was an attempt to setup the applicant, that that is an allegation that will go to what is in the car, rather than goes to what is subsequently found in the house. If you were a drug dealer and you were going to plant something on someone, 1.97 kilograms of material containing 6 grams of the pure substance would be a very inexpensive way of doing that. I am prepared to take judicial notice that no self-respecting drug dealer would try and sell a substance on the street which had an underlying purity of 0.28 per cent. Without making any particular finding about it, a view could be formed that that aspect of the first part of the case is a bit weak.
The applicant was then granted bail, including on all the firearm charges. The Director had the option of appealing that grant of bail and chose not to do so. That is not surprising because of the overlying ‘suspicion’ about the drugs rather than anything else to do with the case. It seems to me if the applicant had been charged with this offending at the same time, that he would have probably still have been given bail.
The separation of the two cases is no fault of the applicant. It might be that the two cases will be joined, which would cause further delay. I am not saying this is what the Director would decide; that is a matter for the Director. It might be that the matter of the drugs located in the care is dealt with in one way, with some aspects then of what was found at the house to be connected to that case. In relation to the major prosecution of this case connected to the house, being the firearms, money and the pill press, some argument will be have to had about whether you can try the firearm charges and the drug charges together. This case is not free of complication.
I think there is a reasonably strong case that can connect the applicant to the premises. The applicant is now faced, however, with an additional ten months of delay that comes about by this search and the investigation into this search occurring in the way that it did. By the committal date, it is likely that there will be a trial date or decisions will have been made about what is going to be joined or not joined or what is going to be relied on as a matter of evidence and so on. So, I am satisfied that the delays are capable of constituting a compelling reason for the grant of bail. That then leaves the consideration of what might be said about unacceptable risk.
The argument as to why the applicant would be an unacceptable risk is based on his possession of the firearms. From the respondent’s point of view, the difficulty about that submission is that he is on bail for those matters and no application has been made for the revocation of that bail. Although I do not necessarily agree with the applicant’s submissions that the crown case on the matters before the Court is weak, it is still reasonable to assume that there will be a trial and that the delays will be very significant.
Given the applicant is on bail for the firearm matters, it seems to me that there would be something inconsistent about the way that the system operates should a Magistrate have found those matters do not constitute unacceptable circumstances, and yet I were to find that on a separate consideration of it, they do.
The bail on which the applicant is currently has with it significant sureties and that bail would of course remain in force with those sureties during this grant of bail. I note that the two sureties have made themselves available today to be here and they have been here to show their support for the applicant.
In the circumstances, I am not satisfied that it has been shown that the applicant is an unacceptable risk of committing further offences on bail or endangering the safety and welfare of members of the public, particularly in relation to conditions that I may impose to run in conjunction with his present bail.
The applicant will therefore be admitted to bail on his own undertaking and on the following special conditions:
(a) He attend the Melbourne Magistrates’ Court on 2 August 2021 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at an address known to the Court in Victoria, and not change that address without the leave of the Court.
(c) He remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of bail.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(f) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
(g) He comply with all lawful directions of Ms Karly Doyle and attend all appointments as directed by Ms Karly Doyle.
(h) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(i) He not leave the State of Victoria.
(j) He not attend any points of international departure.
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