Re El-Refei [2020] VSC 65 (24 February 2020)

1 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.

2 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.

3 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.

4 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.

5 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'.

6 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 ('the Hallam residence'). Police attended and found the premises to have been extensively ransacked. There were no persons present and blood was observed on one of the couch cushions and behind the front door. A subsequent search identified an unspecified quantity of drugs of dependence and various items of stolen property. No relevant forensic or ballistic evidence was obtained from the scene.

7 At approximately 6.45pm, the victim presented at the Casey Hospital with a single gunshot wound to the lower abdomen. He was accompanied by his girlfriend, and stated that his injuries were the result of an encounter with two unknown males on the street. He was transported to the Alfred Hospital to undergo laparotomy surgery due to serious abdominal damage.

8 Several witness statements were obtained from neighbours at the scene, each noting that they heard three to four gunshots and observed multiple people coming and going from the Hallam residence on the evening of the alleged offending. However, no witnesses attested to observing the shooting itself. The victim's girlfriend provided an initial statement on 6 October 2019, indicating that she was present at the Hallam residence but stating that she did not see or hear anything relevant until the victim came to her bedroom door to say that he had been shot.

9 On 24 October 2019, the victim provided a revised unsigned statement to police. He stated that, on the evening of the shooting, he had been at the Hallam residence with his girlfriend and another male, George, when the applicant (Ahmed El-Refei), Jafar Ahmed, Mahmoud Saba and two unknown females entered through the unlocked front door. The victim, the applicant, and the two other male co-accused were known to each other.

10 In summary, the victim said that he was taken to his bedroom and assaulted by the applicant and Mr Ahmed, who made monetary demands on behalf of an associate, Dusko Jovic. It is the victim's evidence that Mr Ahmed then contacted Mr Jovic via video call, and that Mr Jovic demanded $10,000 from the victim. The victim responded that he did not have the money, and in his statement indicated that $2,500 was thereafter taken from the victim's girlfriend together with various electronic devices from the Hallam residence.

11 It followed, according to the victim's statement, that the males left the victim's bedroom and attempted to take George outside and force him into their vehicle. It is the victim's evidence that he attempted to intervene but was shot in the stomach by a a co-accused, Mr Ahmed, who he observed to be holding a black handgun.[11] George was released and the five co-accused left in a silver BMW sedan.

12 At approximately 6.08 pm, a six minute voicemail was left on the victim's mobile phone which featured the victim stating that he needed 'two weeks to pay',[12] with subsequent sounds of gunshots and yelling and a car driving fast in the background. This is thought to be the result of an inadvertent 'pocket dial' from Mr Ahmed's mobile phone.

13 On 24 December 2019, the victim's girlfriend provided a supplementary statement indicating that she had observed a female entering the Hallam residence on 6 October 2019, followed by others. She stated that a male came to her bedroom door and instructed her to stay in her room. After he left, she heard shots outside the Hallam residence and heard the victim yelling, 'they got me'.[13]

14 Police reviewed CCTV from a neighbouring address, which depicted a BMW sedan driving away at speed from the Hallam residence at approximately 6.16pm on 6 October 2019. Investigators identified that, two hours prior, a vehicle of the same description had been intercepted by police in Brunswick and that the occupants of that vehicle were confirmed at the time as being the applicant and co-accused Mr Saba, Ms Smith and Ms Harris.

15 In addition, investigators obtained Eastlink camera footage which depicts the relevant vehicle travelling in the direction of the Hallam address at approximately 5.00 pm on the day of the shooting. This footage also shows five people in the car, with the front passenger resembling co-accused Mr Ahmed. Further, communications between the applicant's mobile phone and cell towers on the evening of the shooting are said to be consistent with the applicant travelling to the Hallam residence and being in the Hallam area at the time of the shooting.

16 On 21 November 2019, telephone intercept warrants were granted in respect of the applicant, Mr Ahmed and Mr Jovic. Over the following weeks, investigators monitored the activity of the telephone intercepts which included, inter alia, a text message from an unknown person on 12 December 2020 to the applicant advising him not to come home because, 'cops just grabbed Ash - Questioning her for the shooting'.[14]

17 On 20 December 2019, the applicant was arrested while exiting his car at a hotel on Sydney Road. A search of his vehicle located approximately 10 grams of a substance alleged to be methamphetamine. He was conveyed to the City West Police Station where he provided a no comment interview. A search of the applicant's mobile phone revealed an open link to a media release about the shooting, articles associated with the shooting and a record of the applicant travelling to the Hallam residence in October 2019.

18 The applicant has a significant criminal history spanning between 2014 and 2019, which includes driving, drug and weapons related offences. Of particular relevance to the present application is that the applicant was convicted of being a prohibited person possessing a firearm in 2017. In addition, his criminal record displays a pattern of breaching court orders, including failing to answer bail in 2015, committing an indictable offence while on bail in 2015, and contravening a community correction order in 2018 (two counts) and 2019. It is further noted that the applicant was on an adjourned undertaking at the time of the present alleged offending.

19 Section 4AA(1) of the Act sets out that the 'exceptional circumstances test' applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence. As indicated, the applicant is accused of a Schedule 1 offence, namely - aggravated home invasion. Accordingly, the applicant bears the onus of satisfying the Court that exceptional circumstances exist that justify the grant of bail.[15] I must refuse bail unless so satisfied,[16] having regard to the guiding principles in s 1B and taking into account relevant surrounding circumstances, including those required under s 3AAA of the Act.[17]

20 In discussing the meaning of exceptional circumstances in the recent matter of Re Brown[18] Lasry J noted:

the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be 'exceptional', it has been accepted that:

• The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.[19]
• Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.[20]
• Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[21]

21 As Vincent J said in Re Moloney:[22]

A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimate is ultimately of significance is that, viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.[23]

22 If satisfied that exceptional circumstances exist, the 'unacceptable risk test' must be applied.[24] In determining unacceptable risk, 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.[25] The prosecutor bears the onus of satisfying the Court that a risk under s 4E(1)(a) exists, and further that the risk is an unacceptable risk.[26]

23 In support of the application for bail, a combination of background facts and circumstances are relied upon to constitute exceptional circumstances within the meaning of the Act. Those matters may be summarised as follows:

(a) The weakness of the Crown case, in that the co-accused who referred to the applicant in their interviews with police would not be competent or compellable witnesses. The defence submitted that the only potentially admissible evidence is the statement of Mahmoud Saba, in which Mr Saba says that he was the person who fired the gun. Further, it is submitted that there would be no evidence as to the applicant's role in, or knowledge of, the events that transpired during the course of the alleged offending.

(b) The availability of treatment with Amanda Brown of Lamberti and Associates to address the applicant's issues with illicit drug use. Ms Brown appeared before me and gave evidence to the effect that the applicant, if granted bail, would receive treatment in the form of weekly appointments for one hour at a time, a requirement to attend Narcotics Anonymous, and a referral to a psychologist, Mr Benjo.

(c) This is the applicant's first time in custody.

(d) The availability of stable accommodation at Ms El-Refei's (his wife's) home, combined with her willingness to report any breaches of bail conditions.

(e) The delay in the proceedings, noting that the applicant could spend up to two years on remand if bail is not granted earlier.

(f) The offer of employment from the applicant's cousin at Osman's Fruit & Veggies.

(g) The delay of more than two months between the alleged offending and the applicant's arrest. It is submitted that there is no evidence of the applicant engaging in any criminal behaviour - including contacting witnesses - during that intervening period.

24 The application for bail is opposed by the respondent. It is submitted that the applicant has failed to demonstrate the existence of exceptional circumstances that justify the grant of bail, and, in any event, that the applicant poses an unacceptable risk of endangering the safety and welfare of any person, committing an offence while on bail and interfering with witnesses.

25 In support of this, the respondent relies on the gravity of the alleged offending, which involved the use of a firearm and occurred during daylight hours with a level of premeditation and planning, where there was a real risk of violence occurring. It is noted that the firearm has not yet been recovered.

26 In addition, the respondent relies on the applicant's history of breaching court orders, his previous conviction of committing an indicatable offence while on bail in 2015, and the fact that he was on an adjourned undertaking at the time of the alleged offending, as indicative of his inability to comply with court orders. Further, it is noted that recorded telephone intercept material is suggestive of the applicant regularly possessing and trafficking in small amounts of illicit drugs during the period between the alleged offending and his arrest.

27 Further, the respondent notes that the victim has expressed fears of reprisal for cooperating with police in this matter. The victim has indicated to police that he has been approached by persons both known and unknown to him who have attempted to dissuade him from assisting police. The respondent notes that the applicant's call records at 2.30 am on 18 November 2019 place him in the vicinity of the victim's former residence, and it is submitted that the applicant was most likely attempting to locate the victim at this time. The respondent also submitted that if he were to be released on bail, he could be contacted by associates who appear willing to interfere with witnesses.

28 Finally, the respondent expresses significant concerns regarding an intercepted telephone conversation between Mr Jovic and an unknown person, in which Mr Jovic states in reference to witnesses that he would, 'fuck them up [and] fuck their family'.

29 In response to the applicant's submissions, the respondent submitted the following:

(a) The proposed accommodation with the applicant's wife and four children is not appropriate accommodation given that the reconciliation between Mr and Ms El-Refei only occurred once Mr El-Refei was on remand, prior to which they had not lived together for 12 years. The respondent also expresses concern generally that the applicant's presence at this address is likely to expose both his children and wife to criminal associates, given his willingness to have those associates attend at the home previously. Further, the respondent believes it is unlikely that the applicant's wife would be able to stop him from leaving the house or breaching other bail conditions. The respondent submitted that Ms El-Refei may not be confident to inform the police if the applicant were to breach any bail conditions.

(b) It is conceded that the Crown case against the applicant is largely circumstantial, subject to any further evidence that will be set out at the committal hearing. However, the respondent submitted the following matters in combination go to the strength of the case:

(i) the applicant's presence at the scene;

(ii) phone records consistent with the applicant travelling on the Eastlink towards Hallam at relevant times;

(iii) google searches of the victim's address and the media release relating to the alleged offending;

(iv) the contents of the co-accused's records of interview; and

(v) the voicemail recording around the time of the alleged offending which includes voices calling out 'Ahmed'.

(c) The respondent conceded that there may be a period of 18 months between the date of arrest and trial.

(d) The respondent submitted that, despite Mr-El-Refei's apparent insight into his illicit drug use, as reported in the Department of Justice and Community Safety report dated 28 May 2019, Mr El-Refei has continued to use drugs and has continued to engage in criminal activity. Mr El-Refei has had the opportunity to undergo drug treatment in the past, however that treatment has been largely unsuccessful. It is submitted that Mr El-Refei's future prospects of successful treatment for illicit drug use are guarded at best.

(e) The respondent submitted that I should give little weight to the offer of employment from Mr El-Rifei's cousin, as Mr El-Refei has worked infrequently since 2012 and has virtually no employment record since that time.

For the foregoing reasons, the application for bail is opposed by the respondent. It is submitted that no conditions of bail could ameliorate the risks posed by the applicant to an acceptable level.

30 In this case, a consideration of the matters required to be taken into account when looking at the surrounding circumstances of the case reveals the substantial hurdles facing the applicant in establishing exceptional circumstances.[27]

31 The applicant is charged with very serious offending, which involves violence and the use of firearms. The alleged offending involved a number of people, including the applicant, entering into a private dwelling, within a drug milieu. One of those people was armed with a firearm, and the victim was shot in the stomach.

32 The applicant submitted that in circumstances where the police brief has been served, the prosecution's case against the applicant is weak and there is a significant prospect that the applicant will be acquitted.

33 It is submitted, at this stage, the victim's unsigned statement is inadmissible and there is no evidence as to what happened and no eyewitnesses to the shooting. The only potential admissible evidence is of the co-accused, Mahmoud Saba. Mr Saba denies that he went to the victim's property to hurt anyone or steal anything, but only to recover a debt owed to another person. Mr Saba says that the victim had a gun, and shot at them as they were leaving the premises and getting into the car. Mr Saba says that he fired a couple of shots at the victim as he thought that the victim was going to kill him, and he shot the victim in self-defence.

34 I accept, that at this stage, it cannot be said that the case against the applicant is a strong case. However, the evidence is that alleged offending occurred within a drug milieu, in that money was being recovered in relation to a drug debt owing. A group of people attended the victim's residence and there was a ruse, whereby two females unknown to the victim were used to gain entry to the house. A co-accused had a gun. It was a situation where there was a real risk of violence occurring and in fact, a person was shot. There is a concession that the applicant was present at the premises at the time of the alleged offending. Given the state of the evidence, I am cautious about evaluating the strength or weakness of the prosecution's case on necessarily inadequate materials.

35 The respondent concedes that there are gaps at this stage in the prosecution's case, and that the case against the applicant is circumstantial. The ultimate strength of the prosecution's case remains to be seen. In addition to the concession that the applicant was one of the persons who attended the address where the alleged home invasion occurred, there is also the phone records consistent with the applicant travelling on the East Link towards Hallam at the relevant times; google searches of the victim's address and the media release relating to the alleged offending; the contents of the co-accused's record of interview; and the voicemail recording around the time of the alleged offending which includes voices calling out 'Ahmed'.

36 I am not prepared to conclude that the prosecution's case is a weak one. It is not my role at this stage to analyse the evidence and make findings. I can only have some preliminary views. The issues to be determined, such as whether the applicant assaulted the victim, the applicant's intention for going to the property, and who had possession of the firearm and fired it, are issues for the committal hearing and subsequent trial.

37 The applicant is 46 years old and his criminal history commenced in 2014. The applicant has a poor history of non-compliance with bail and community correction orders. He was on an adjourned undertaking at the time of the current alleged offending.

38 The applicant has four children. The applicant is married but has been separated from his partner since 2008 or 2009. The applicant has been visited by his partner while he has been in custody. The couple say that they have reunited and, if granted bail, the applicant will reside at the matrimonial home with his partner and four children. While I consider Ms El-Refei to be a credible witness, she understandably could not say what difference it would make for the applicant to be living with his family again after 12 years.

39 She was unaware of the extent of his prior offending, or the extent and history of his drug taking. Ms El-Refei said she would contact the police if she knew the applicant was breaching any bail conditions. Given it is approximately 12 years since they lived together as a couple, and their reconciliation has occurred while the applicant is in custody, I am guarded about whether this arrangement will decrease the risk of the applicant either reoffending or using drugs. Having a stable residence is not out of the ordinary. In the circumstances of the applicant, I cannot attach any real confidence to what, if any benefit, living with his family will have for him.

40 There is a real concern, given the evidence, that there would be a significant possibility that the applicant's partner and children would be exposed to the applicant's associates, who are submitted to have extensive criminal histories, if the applicant resides at the proposed address. There is evidence by the informant that in March and April 2019, the police had interactions with the applicant. In particular, on one occasion in March 2019, this included the police arresting one of the applicant's associates at the premises where he would reside if bailed. This evidence demonstrates a willingness by the applicant to have such associates at his family home.

41 The applicant's prior convictions are significant, in particular, his convictions for being a prohibited person in possession of firearms, in conjunction with theft, drug and weapons-related offences. The applicant was the subject of a firearm prohibition order served on 4 April 2019. The applicant also has one prior conviction for failing to answer bail, one conviction for committing an indictable offence while on bail, and three convictions for contravening a community correction order. The applicant cannot point to a record of complying with all bail conditions in the past.

42 The respondent has raised a concern about the high likelihood of interference by the applicant with witnesses. However, at this stage, the evidence linking the applicant to these allegation is not strong. At best, at this stage, there is evidence of the applicant's call records on 18 November 2019 at approximately 2.30am that demonstrate that the applicant was in the area close to where the victim was residing at the time of the incident. It is submitted that the most likely explanation for this is that the applicant was attempting to locate the victim. At this stage, it is difficult to say even on the balance of probabilities what can be inferred from this evidence. What can be said, is that the applicant has associated with the people who it is alleged may interfere with witnesses, and that once released, they can contact the applicant. The issue of the risk of interfering with witnesses is not a factor I give much weight to in this application.

43 Perhaps more significantly for the purposes of this application, there is the real risk that the applicant will continue to commit further offences if bailed. During the monitoring of the applicant's phone, investigators have identified drug trafficking, although not in large amounts. However, it demonstrates that the applicant was regularly possessing and dealing drugs of dependence. The applicant was also found with what is alleged to be methamphetamine in his car upon his arrest. This evidence, coupled with the applicant's criminal history and past breaches of bail conditions, and that he was on an adjourned undertaking at the time of the alleged offending, is not an encouraging history.

44 The applicant relies on the report and viva voce evidence of Amanda Brown, a drug and alcohol counsellor from Lamberti Associates. The report is dated 7 February 2020. In summary, Ms Brown has met with the applicant on two occasions while he was on remand. The applicant told Ms Brown he has been using methamphetamine daily from age 35. The applicant has agreed to commit to a minimum 12 month treatment in an outpatient setting. While commendable that the applicant says he now recognises the need for drug rehabilitation treatment, the availability of ongoing treatment for the applicant's drug problem is nothing out of the ordinary.

45 The applicant may have ceased to take illicit substances in prison, but it must be borne in mind that he has at least a 10 year long history of methamphetamine use.

46 What is troubling is that the applicant has had the opportunity to engage in drug treatment in the past. The Department of Justice and Community Safety report dated 28 May 2019, described the applicant as having engaged well and showed insight into his illicit drug use and the adverse effects it was having on his life. This is consistent with Ms Brown's evidence. However, he failed to attend supervision on five occasions, he did not attend his drug and alcohol treatment on eight occasions, and the absences were deemed unacceptable. Further, he failed to attend drug testing on four occasions, and of the four occasions where he did submit to drug testing, two were positive for amphetamine/methylamphetamine.

47 In relation to the delay, I accept that there may be a delay of 18-24 months in the applicant's matter being determined. However, it is accepted by the applicant that he will face a significant term of custody if convicted.

48 In conclusion, taking into account the surrounding circumstances of this case, I am not satisfied the applicant has shown that exceptional circumstances exist which would justify the grant of bail.

49 In my view, the matters relied on by the applicant, including delay, availability of outpatient rehabilitation treatment, stable accommodation, this being his first time in custody, and the asserted weaknesses in the prosecution's case, do not, either in combination or individually, amount to exceptional circumstances. That is particularly so when considering the surrounding circumstances. The applicant has been charged with very serious offences, including aggravated home invasion. This is further compounded by the applicant's criminal history, his poor performance on bail and while on community correction orders, and the fact that he was on an adjourned undertaking at the time of the alleged offending. Each of those considerations militates against a conclusion that the circumstances relating to this applicant are exceptional within the meaning of the Act.

50 Furthermore, for completeness, I note that even had I considered exceptional circumstances to have been shown, I would have been satisfied that there would be an unacceptable risk of the applicant endangering the safety of members of the public and committing further offences if released on bail.

[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.

[10] Bail Act 1977 sch 1, item 4 ('Bail Act').

[11] Affidavit of Chloe Maree Badcock in opposition to application, affirmed 29 January 2020, Exhibit CB-1 [33].

[15] Bail Act s 4A(2).

[16] Ibid s 4A(1A).

[17] Ibid s 4A(3).

[18] [2019] VSC 751 [65]-[66].

[19] Re Sam [2017] VSC 91 [22].

[20] Armstrong v R [2013] VSC 111, citing Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990); see also Re Whiteside [1999] VSC 413.

[22] Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990).

[24] Bail Act s 4D(1)(a).

[25] Ibid s 4E(3).

[26] Ibid s 4E(2).

[27] Bail Act ss 3AAA, 4A(3).