R v El-Azar & Anor [2007] VSC 487

2 Mr Shalala was found guilty of two counts of kidnapping, two counts of false imprisonment, one count of theft, intentionally causing injury, theft of a motor vehicle, blackmail, assault and making a threat to kill. He was sentenced to a total effective sentence of eight years' imprisonment, with a non-parole period of five years.

3 Mr El-Azar was found guilty of two counts of kidnapping, two counts of false imprisonment, one count of theft, intentionally causing injury, blackmail, assault and making a threat to kill. He was sentenced to a total effective sentence of seven years six months' imprisonment, with a non-parole period of five years.

4 The applicants appealed to the Court of Appeal. On 17 September 2007 the Court of Appeal quashed their convictions and ordered a new trial.[1] They were remanded in custody.

5 The circumstances of the alleged offences are set out in the Court of Appeal judgment and I will not repeat them, save to say that they involve alleged kidnappings and assaults upon two men in the course of activities over a period of days whilst the applicants attempted to find a person who allegedly owed Mr Shalala money.

6 In substance, the appeal succeeded because the Court of Appeal found that the trial judge had erred in refusing to allow Mr El-Azar's counsel to dispute the continuity or integrity of certain DNA evidence because he had previously told the jury that that evidence was not disputed.

7 For present purposes it is unnecessary to canvass the issues which will be the subject of the retrial in any detail. Having read and considered the Court of Appeal judgment, I proceed on the basis that there is a real prospect of conviction on the retrial and that in those circumstances there is a real prospect that the applicants will be sentenced to terms of imprisonment of the kind previously imposed.

8 Before me it was accepted by all parties that these applications are to be determined under s.4(4) of the Bail Act 1977 ("the Act").

9 Under s.4(1) of the Act there is an entitlement to bail where an accused is awaiting trial, but that entitlement is subject to a number of subsequent qualifying provisions. Where an accused is awaiting trial on certain designated offences, under s.4(4) of the Act the court shall refuse bail unless the accused shows cause why his detention in custody is not justified. Under s.4(2)(d), the court shall refuse bail if satisfied there is an unacceptable risk that the accused person if released on bail would fail to surrender himself into custody in answer to his bail, would commit an offence whilst on bail, would endanger the safety or welfare of members of the public, or would interfere with witnesses or otherwise obstruct the course of justice.

10 Section 4(4) of the Act applies to these applications. The issue of whether, in a case where s.4(4) applies, there is a need to give separate consideration to s.4(2)(d) if the accused does show cause has been the subject of differing judicial views, most notably Gillard J in DPP v Harika[2] and Maxwell P in Re Asmar ("Asmar").[3] It seems to me to be most unlikely that in any case a different outcome would be arrived at depending upon whether one adopted the view of Maxwell P that the relevant inquiry is confined to s.4(4), or whether one adopted the view of Gillard J that there is also a need to consider s.4(2)(d). The idea that an accused might succeed in establishing that his detention is not justified but that the Crown could then establish an unacceptable risk under s.4(2)(d) seems to me to be far-fetched.

11 To the extent it is necessary to adopt one or other of the respective approaches to the interaction between s.4(4) and s.4(2)(d), I think the correct approach is that of Maxwell P. Under this approach, determination of whether the accused has shown cause under s.4(4) is the only relevant inquiry. However, as indicated, I cannot conceive of a situation where the result would be affected by adopting the other approach whereby, cause having been shown, it is then necessary to address s.4(2)(d).

12 The issue then in relation to each application, initially at least, is whether the applicant has shown cause why his detention in custody is not justified. As was pointed out by Maxwell P in Asmar, this will inevitably involve consideration of the risks referred to in s.4(2)(d).

13 Mr Shalala's application was supported by an affidavit sworn by his solicitor, Mr Nasr, on 18 September 2007. That affidavit gives little detail of relevant matters. In submissions, Mr Nasr, who appeared on behalf of the applicant, outlined the relevant circumstances. Mr Cosgriff of counsel, who appeared for the Crown, accepted for present purposes that the facts were as outlined or that the Crown did not wish to contest them.

14 Mr Shalala is 29 years of age. He was born and raised in Australia. His parents are from Lebanon originally. He has no significant prior convictions and has no matters other than those upon which he is to be retried pending against him. He has lived all his life in the Granville area of Sydney. His family home is at 8 Gordon Avenue, Granville. The house is owned by his parents and other family members also live there. He has a fiancée in Sydney. Prior to being taken into custody upon the verdicts on 10 November 2005, the applicant was in partnership with his brother in a waterproofing business in New South Wales.

15 The applicant was bailed in January 2003 in relation to the matters upon which he is to be retried. He was initially bailed on conditions which included a substantial surety and daily reporting conditions. Those conditions were subsequently ameliorated. Eventually his bail conditions required a surety of $50,000, a deposit of money of $7000, and reporting three times a week.

16 Mr Shalala has been in custody since 10 November 2005. He is presently being held in a management unit at Port Phillip Prison. His detention in Victoria makes it difficult for his family to visit him as they all live in New South Wales.

17 Mr Shalala funded his own defence. It was submitted that one reason he needs bail is so that he can return to work in New South Wales and save money for his retrial.

18 As matters presently stand, it is expected that the retrial will not be heard until approximately October next year.

19 An affidavit in opposition to bail has been sworn by a solicitor in the Office of Public Prosecutions. That affidavit exhibits a memorandum from a police officer concerned in the matter. The only concern expressed in relation to Mr Shalala's bail is the risk of flight. Reference is made to his connection with Lebanon and to the fact that if convicted on his retrial and if he is sentenced to a similar term of imprisonment he would have approximately six years yet to serve.

20 In my view, Mr Shalala has shown cause why his detention is not justified and should be granted bail.

21 It is true he is facing very serious charges but he has no relevant prior convictions and comes from an apparently stable background. There is nothing in his prior history to suggest that he will not answer his bail. It is relevant that he has now been convicted and sentenced to a substantial period of imprisonment and I do take into account that this might motivate him not to answer his bail. In the circumstances here, I do not consider that that consideration means he has failed to show cause given the other factors.

22 It will, of course, be necessary to impose appropriate conditions. In my view, he should return to daily reporting. I was told that he had already surrendered his passport and that it is held at the County Court. I was told that of the deposit of $7000 required under the terms of his previous bail, $5000 had been returned to him. His solicitor requested that the deposit not be increased beyond the $2000 still held as he would need all his financial resources to fund his retrial. I am prepared to accede to that.

23 Accordingly, subject to further submissions and settling the terms of the order, I propose to order that the applicant, Allan Shalala, be admitted to bail on his own undertaking with a deposit of $2000 held at the Parramatta Court and with a surety of $50,000 upon the following conditions:

1. That he report to the police station at Granville every day between the hours of 6 a.m. and 9 p.m.
2. That he not communicate in any way with prosecution witnesses directly or indirectly.
3. That he reside at 8 Gordon Avenue, Granville, New South Wales.
4. That he not attend Victoria other than to attend for court or for conferences with counsel in relation to his retrial.
5. That he surrender any passport that he holds and any other valid travel document and that he not apply for any other passport or other travel document.
6. That he not attend any point of international departure.
7. That he not communicate with his co-accused, Elia El-Azar.

24 Mr El-Azar's application was supported by an affidavit affirmed by his solicitor. As was the case with Mr Shalala, there is little relevant material in that affidavit. An affidavit in opposition was sworn by a solicitor at the Office of Public Prosecutions. That affidavit produced a report by the informant in relation to Mr El-Azar, a summary of offences concerning other charges Mr El-Azar is presently facing, and a copy of Mr El-Azar's criminal history. In the course of the hearing oral evidence was given by a relative of Mr El-Azar and some further documents were tendered. A list of matters concerning the applicant which were dealt with at the Melbourne Magistrates' Court on 14 September 2005 was tendered, as were three documents which concern Mr El-Azar's attitude and activities whilst in custody.

25 The following relevant matters emerge from that material.

26 Mr El-Azar was born on 19 February 1976. The offences for which he is now awaiting retrial allegedly occurred between 9 January 2003 and 13 January 2003. He was arrested in relation to them on 16 January 2003 and was bailed on 21 January 2003. Under the terms of that bail there was to be a $50,000 surety and conditions were imposed requiring him to report to a police station three times a week, to reside at 56 Rose Avenue, Lower Templestowe, to surrender his passport, not to associate with his co-accused, Allan Shalala, not to attend any international departure points, and not to contact prosecution witnesses.

27 Prior to 2003, Mr El-Azar had had a number of court appearances commencing in November 1996 when he was 20 years of age and he was dealt with without conviction on charges of theft of a motor car and going equipped to steal or cheat. Between 1997 and 2003, he was convicted of a number of driving and other offences, most notably repeated offences of driving unlicensed and driving whilst disqualified. During that period on one occasion, 23 July 1999, he failed to appear and a warrant was issued. On three occasions he has appeared at court for breaches of suspended sentence orders and on one occasion for failing to comply with an intensive corrections order.

28 As indicated, the bail conditions imposed on him in January 2003 required him to report three times a week. He commenced a pattern of failing to report almost immediately. He failed to report on 24 January 2003. During the period between 24 January 2003 and 13 October 2003, he failed to report 11 times. On 15 October 2003, there was a committal mention and his reporting conditions were altered. The police station to which he was to report was changed from Preston to Heidelberg. Again, a pattern of failing to report commenced almost immediately. He failed to report on 17 October 2003. Between 17 October 2003 and 8 September 2004, he failed to report on seven occasions. I note at this point that on 9 September 2004, he was intercepted by police in circumstances which eventually led to him being charged with a number of dishonesty offences in relation to which he is to appear before the County Court on 18 October 2007.

29 I return to the chronology. On 23 December 2003, the applicant committed three drug offences and yet a further offence of driving while suspended, which offences were eventually dealt with at the Melbourne Magistrates' Court on 14 September 2005. Between 23 December 2003 and March 2005, he committed a further 14 offences of driving while suspended as well as numerous other driving offences. He was dealt with for all these matters at the Melbourne Magistrates' Court on 14 September 2005 as well.

30 On 28 June 2004, Mr El-Azar commenced committing the extensive series of dishonesty offences, to which I have already briefly referred, and in relation to which he is to appear before the County Court on 18 October 2007. I was told in the course of this application by the applicant's counsel that the applicant has indicated in court that he will plead guilty to these charges on 18 October. These offences involved the use of fake documents and credit cards and false names. They involve successful deceptions totalling in excess of $330,000 and attempted deceptions totalling in excess of $670,000.

31 The applicant's counsel accepted that it is highly likely that a term of imprisonment will be imposed upon him on 18 October. The series of dishonesty offences to which I have referred, with one exception, were revealed after the applicant was intercepted by police on 9 September 2004 whilst driving a vehicle with false number plates. The applicant committed a further dishonesty offence in relation to which he is also to appear at the County Court on 18 October 2007 after his apprehension on 9 September 2004.

32 According to the report of charges dealt with in the Magistrates' Court at Melbourne on 14 September 2005, on 16 May 2005 the applicant committed an offence of failing to answer bail.

33 On 2 August 2005, the applicant committed an offence of possessing a controlled weapon without an excuse. This was also one of the matters dealt with at the Melbourne Magistrates' Court on 14 September 2005. The applicant was also charged with other offences alleged to have been committed on 2 August 2005, some of which were subsequently withdrawn.

34 The applicant has been in custody since 3 August 2005.

35 On 14 September 2005, the applicant appeared at the Melbourne Magistrates' Court on 47 charges, three of which were struck out or withdrawn. I have already referred to some of these charges. There were many charges of driving while suspended, many other driving offences, some drug offences and the offence of possession of a controlled weapon. The applicant was sentenced to an aggregate term of imprisonment of 133 days, and time held in custody of 43 days was reckoned as already served.

36 In the course of the hearing before me I was told that the applicant completed the sentence imposed on him at the Melbourne Magistrates' Court on 12 December 2005 so that he was on remand in relation to the offences allegedly committed in January 2003 from that point onwards.

37 On this application, oral evidence was called from a relative of the applicant, Mr Matthew Seoud. The applicant's father and Mr Seoud's father are first cousins. Mr Seoud has known the applicant since childhood. Mr Seoud himself is 32 years of age. He is married with three children. He owns a restaurant in the city. He is a devout Christian. He became aware that the applicant was imprisoned and has been in contact with him. He has visited him in prison. His evidence was that he has noticed a dramatic change in the applicant during his time in prison. He said that the applicant has become a Christian. He said that the applicant, if he were released, would be able to obtain employment with him.

38 The documentary material tendered on behalf of the applicant concerning the applicant's activities in gaol broadly confirms Mr Seoud's evidence as to the applicant's attitude and approach in gaol.

39 I was informed by the applicant's counsel that, like Mr Shalala, he is presently being held in a management unit at Port Phillip Prison.

40 The applicant's counsel submitted that bail should be granted because of the delay which would be experienced before the retrial, because of the fact that the offences are now quite old, because of the strong ties which the applicant has in Melbourne, and because of the family support that he has. It was acknowledged that the applicant has a criminal history but reliance was placed upon the fact that he has little in the way of prior convictions for offences of violence. It was indicated that the applicant would submit to stringent bail conditions. Particular reliance was placed upon the applicant's change in attitude whilst in custody.

41 Counsel for the Crown opposed the granting of bail. He submitted that the application had to be judged in the light of the fact that a sentence of imprisonment was very likely to be imposed on the applicant on 18 October 2007. It was submitted that that sentence would take precedent over the remand and that these circumstances effectively rendered irrelevant the considerations of delay and the prospects of employment. It was submitted that, given the applicant's history, there was a significant risk of further offences whilst on bail, and, given the matters now pending against the applicant, there was a significant risk of flight.

42 In my view, the applicant has failed to show cause why his detention is not justified.

43 It is important that the applicant faces charges which will be heard on 18 October 2007 in relation to which he has already indicated an intention to plead guilty, and it seems to me to be likely that that will result in a term of imprisonment.

44 It is also important that the applicant has a very bad history of offending whilst on bail and a history of not complying with his bail conditions. The applicant's counsel submitted, in effect, that I could disregard that history, or that concern as to it should be reduced, because the applicant had always been re-bailed in the past. He also relied on the observations of Maxwell P in Asmar as to the notorious difficulty of predicting future behaviour in this bail context.

45 I do not think that the repeated re-bailing of the applicant detracts from the relevance of his history. All predictions as to the future are uncertain but when assessing risk the recent past is often the best guide.

46 I do not overlook the evidence of the applicant's change of attitude whilst in custody. I hope the apparent transformation is real and will result in a long term change but it seems to me that the applicant's past, particularly his recent past, is fatal to this application, particularly in the context of the charges to which he proposes to plead guilty on 18 October.

47 My conclusion is that in the circumstances here there is an unacceptable risk that he will commit offences whilst on bail, as he so often has in the past.

48 Further, given the charges which the applicant now faces and given his prior history of failing to comply with bail conditions, particularly reporting conditions, in my view, there is an unacceptable risk of releasing him for what will probably only be a very short period pending his appearance on 18 October 2007. The unacceptable risk is that he would fail to surrender himself in answer to his bail.

Consideration of s.4(2)(d)

49 I have found that Mr Shalala has shown cause within the meaning of s.4(4) why his detention in custody is not justified and I have found that Mr El-Azar has failed to show cause why his detention in custody is not justified. If it is necessary to give separate consideration to s.4(2)(d), for the reasons already given I am not satisfied that there is an unacceptable risk that the specified circumstances will arise in relation to Mr Shalala but I am satisfied that there is an unacceptable risk in relation to Mr El-Azar that he will commit offences whilst on bail and that he will fail to surrender himself into custody in answer to his bail.

50 I will make an order for bail on Mr Shalala's application on the terms referred to and Mr El-Azar's application is dismissed.

[1] [2007] VSCA 199

[2] [2001] VSC 237.

[3] [2005] VSC 487.