Re El-Refei [No 2] [2020] VSC 164 (7 April 2020)

1 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.

2 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]

3 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.

4 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.

5 I accept that there are new facts and circumstances to justify a further consideration of bail.

6 The applicant is charged with 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.[11] I must refuse bail unless so satisfied,[12] 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.[13]

7 If satisfied that exceptional circumstances exist, the 'unacceptable risk test' must be applied.[14] 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.[15] 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.[16]

8 The applicant relied on the affidavit of Adrian Lewin, affirmed 31 March 2020, as well as the two affidavits of Natasha Freijah before me at the previous bail application.

9 In support of the application for bail, the applicant relied upon a combination of background facts and circumstances to constitute exceptional circumstances. Those circumstances include those summarised at paragraph [23] of my reasons, as well as the further delay occasioned by COVID-19. The applicant submitted that a contested committal hearing would occur not less than three months beyond the usual time frame, and potentially far longer. Further, the applicant submitted it is extremely unlikely the County Court will hear this matter before the end of 2021 and possibly into 2022.

10 The applicant tendered a letter from Amanda Brown of Lamberti and Associates. In her letter Ms Brown advised that the applicant, if granted bail, would receive treatment in the form of weekly hour-long appointments, either by FaceTime or by telephone call. In addition, the applicant would be required to undertake twice weekly supervised urine drug screens, which would require the applicant to attend the Millswyn clinic or his local pathology lab.

11 The applicant advised that a surety in the sum of $50,000 is now offered by a friend of the applicant, Joanne Abboud, who is willing to provide her premises in Wollert as surety. The applicant acknowledged that Ms Abboud has a criminal history, but submitted that her criminal history does not dilute the relevance or efficacy of a surety in ameliorating any unacceptable risk.

12 While the applicant did not seek to have the Court revisit earlier findings, it was submitted that the additional delay impacts on the totality of the surrounding circumstances.

13 The application for bail is opposed by the respondent. The respondent relied on the affidavit of Mark Walsh, affirmed 3 April 2020, as well as the affidavit of Chloe Badcock before me at the previous bail application.

14 The respondent submitted that the applicant has again failed to demonstrate the existence of exceptional circumstances that justify the grant of bail and, in any event, the applicant continues to pose an unacceptable risk of endangering the safety and welfare of any person and committing an offence while on bail.

15 The respondent submitted that the extent of the delay caused by COVID-19 is a matter of speculation. The respondent submitted that the delay caused to the committal proceeding is likely to be a matter of months, rather than years. It was submitted that any estimation of the delay caused by COVID-19 is speculation at this stage and the extent of the delay may become clearer as the matter progresses.

16 With regard to unacceptable risk, the respondent submitted that the new facts and circumstances do not ameliorate the unacceptable risk posed by the applicant.

17 The applicant has now served 108 days in prison. The evidence before the court is that a committal case conference occurred on 30 March 2020. An application was made to have the matter listed for a contested committal hearing. However, due to the impact of COVID-19 on the justice system, the Magistrates' Court was unable to have the matter further listed for a committal hearing. The matter is listed for a special mention on 22 April 2020. The applicant submits that because this will be a contested matter, it is likely that the final determination will be towards the end of 2021, or possibly into 2022. The Crown submits that, at this stage, estimating the actual delay caused by COVID-19 is speculation.

18 At the applicant's previous bail application, prior to the impact of COVID-19 on the justice system, I considered that there may be a delay of 18 to 24 months in the applicant's matter being determined. On that occasion, it was accepted by the parties and the Court that a delay of 18 to 24 months was not unusual in a matter such as this. I also found that the applicant would face a significant term of custody if convicted.[17]

19 I accept that there is likely to be further delay to the progression of this matter due to the impact of COVID-19 on the justice system. While it is not possible to precisely calculate the length of the delay, I accept that it will be significant.

20 There is no doubt that the normal operations of all levels of Victoria's courts have been substantially delayed and interfered with as a consequence of the public health emergency of COVID-19. Trials and committals have been postponed indefinitely. The delay in the applicant's case reaching conclusion is realistically now two years or more. COVID-19 has caused uncertainty in relation to many aspects of life; specifically for the applicant, the increased delay in having his case determined.

21 I accept that the current crisis poses a risk of court dates being postponed and anticipated periods of remand being extended. However, having considered all the surrounding circumstances in this case, which are set out in detail in my reasons, I am not satisfied that the additional delay brings this matter into exceptional circumstances.

22 In Brown v The Queen,[18] the first appellate decision in Victoria to consider the implications of COVID-19, the Court of Appeal said:

In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.[19]

23 It should not be thought that the current health crisis facing our community will in every case be a matter which will lead to a conclusion of the existence of exceptional circumstances, less still that it will necessarily lead to a grant of bail. As Tinney J said in Re Tong in relation to COVID-19:[20]

These matters, whilst themselves unheard of in our community in living experience, are simply part of the surrounding circumstances required to be taken into account in a consideration of both steps in the 2 step bail process currently undertaken.[21]

24 I accept that the COVID-19 pandemic needs to be considered in relation to all of the surrounding circumstances relied upon in this case.

25 It was submitted that the weakness of the prosecution's case becomes a stronger factor given the significant delay. I do not accept this submission. The strength or weakness of the prosecution's case does not have any greater significance by reason of COVID-19 and the delays occasioned by it.

26 For completeness, the availability of a surety does not alter my conclusion in relation to exceptional circumstances.

27 In my view, the new matters relied upon by the applicant, namely the additional delays caused by COVID-19 and the surety, along with the matters the applicant relied upon at the previous bail application, including 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.

28 Despite the new evidence relied upon, 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 application are exceptional within the meaning of the Act.

29 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] Re El-Refei [2020] VSC 65.

[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.

[11] Bail Act ss 4AA(1), 4A(2).

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

[13] Ibid s 4A(3).

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

[15] Ibid s 4E(3).

[16] Ibid s 4E(2).

[17] Re El-Refei [2020] VSC 65, [47].

[18] [2020] VSCA 60.

[20] [2020] VSC 141.