Citation: R v El Ali [2013] NSWSC 1210
Court: Supreme Court of New South Wales
Date: 29 August 2013
Judge: Price J
Background
The applicant faced a suite of serious charges arising from an alleged conspiracy to import prohibited firearms and firearm parts from Germany and the United States. He was jointly charged with two co-accused and stood accused of conspiring to import firearm parts, conspiring to possess more than three unregistered firearms (including prohibited pistols), knowingly taking part in the unlawful sale of firearms, and participating in criminal group activity. He also faced 15 counts of providing false or misleading information under the Firearms Act 1996 (NSW).
The applicant had been in custody since his arrest on 13 March 2012. A five-day committal hearing was listed for December 2013, with trial not expected until mid-2014. His family and wife offered combined security of $1,080,000 in support of the bail application.
The Crown opposed bail on multiple grounds, including flight risk and the significant danger the applicant's release would pose to community safety given a large number of imported Glock pistols remained unaccounted for.
Legal Issues
- Whether the applicant could satisfy the presumption against bail under s 8B of the Bail Act 1978, which applies to serious firearms offences under the Firearms Act 1996 (NSW)
- Whether the applicant posed a flight risk having regard to community ties, the strength of the Crown case, and the severity of likely penalties
- Whether release on bail would pose a risk to community safety, particularly given the number of unaccounted-for firearms allegedly imported by the conspirators
- Whether the delay in proceedings and the applicant's time in custody constituted, in combination with other factors, exceptional circumstances sufficient to overcome the presumption against bail
Decision
Presumption against bail. Price J confirmed that s 8B of the Bail Act 1978 applied because the charge under s 51B(1) of the Firearms Act (knowingly taking part in the unlawful sale of more than three firearms) is a serious firearms offence within that provision. The applicant's counsel accepted, for the purposes of the application, that the Crown material disclosed a significant case against him. Under the established principle from Germakian, s 8B imposes a heavy burden on an applicant to show bail should not be refused, with the strength of the Crown case being the prime consideration.
Flight risk. The Court found the applicant posed a flight risk. Although his wife deposed that he had no meaningful connection to Lebanon, police evidence identified a phone contact with a Lebanese number and uncertainty about whether the applicant held dual citizenship or a Lebanese passport. Weighed against those concerns, his strong family ties in Sydney and the substantial security on offer were insufficient. The Court was not satisfied on the balance of probabilities that the applicant would appear if granted bail, particularly given the prospect of lengthy imprisonment on the more serious charges, which carried maximum terms of 20 years.
Community protection. The Court's primary concern was the risk to community safety. Police estimated that at least 114 Glock pistols and parts imported by the conspirators remained unaccounted for. Price J concluded there was a strong likelihood the applicant knew the whereabouts of those weapons and a real risk that, if released, he would distribute further pistols into the community. Some of the already-imported Glocks had been linked to public place shootings, an armed robbery on an Armaguard vehicle, and a shooting at a residential address.
Delay in proceedings. The Court acknowledged the applicant had been held for approximately 21 months before his committal. However, given the complexity of the investigation, the volume of material (over 40 volumes), and the need for evidence from Germany, Price J was not persuaded the Crown had been guilty of undue delay. The time spent in custody was taken into account but did not, in combination with the other factors, overcome the presumption against bail.
Orders Made
- Bail refused.
Key Takeaways
- Under s 8B of the Bail Act 1978, an accused charged with a serious firearms offence bears a heavy burden to satisfy the court that bail should not be refused, with the strength of the Crown case treated as the prime consideration.
- Substantial financial security and strong family ties are relevant factors but are not determinative where the court remains unsatisfied on the balance of probabilities that the accused is not a flight risk.
- Refusing bail, Price J identified the protection of the community from gun crime as a weighty consideration capable of outweighing an applicant's interest in liberty, particularly where large quantities of dangerous weapons allegedly imported by the accused remain unaccounted for.
- Delay in the service of a Crown brief does not automatically constitute undue delay where the investigation is complex and involves international evidence gathering; the Local Court's standard 12-month timetable for committal proceedings was not treated as a binding benchmark in such circumstances.
- Where an accused has been in custody for a prolonged period, the time spent on remand is a relevant consideration under s 32(1)(b) of the Bail Act 1978, but it does not, of itself, overcome a presumption against bail.
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), ss 8B, 32(1)(a), 32(1)(b)
- Firearms Act 1996 (NSW), ss 51B(1), 51D(2), 70
- Crimes Act 1900 (NSW), s 93T
- Criminal Code Act 1995 (Cth), s 11.5(1)
- Customs Act 1901 (Cth), s 233BAB(5)
Cases
- Commonwealth Director of Public Prosecutions v Germakian [2006] NSWCA 275; (2006) 166 A Crim R 201
- R v Kissner (Supreme Court of New South Wales, Hunt J CJ at CL, 17 January 1992, unreported)