Elmoubayed v Director of Public Prosecutions (NSW)

1. [1]

   Ali Elmoubayed makes a release application pursuant to the provisions of the Bail Act 2013 (NSW). The matter is not without complexity and was listed as a special fixture and heard on 3 March 2025. A number of witnesses were required for cross-examination on the bail application. The application is opposed by the Director of Public Prosecutions. She was represented by Mr Chua on the application while Mr Djemal SC appeared for Mr Elmoubayed.

2. [2]

   The applicant is charged currently with something like 40 offences, each of which is alleged to have arisen out of his involvement in a group referred to in the prosecution material as the “Alameddine Organised Crime Network”. The offences are contained in two separate court attendance notices identified as H96330540 (originally comprising 47 charges upon which Mr Elmoubayed was arrested on 27 March 2024) and H434093894 (4 charges laid on 23 September 2024 while the applicant was in the remand centre at Parklea gaol). I will refer to these court attendance notices as H #540 and H #894 respectively. The charges allege the following:

3. [3]

   Most of the offences were allegedly committed between March 2023 and February 2024, although, as noted above, the first allegation of detaining for advantage allegedly occurred in 2021. The applicant was arrested on 27 March 2024 in relation to the offences charged in H #540 and has remained in custody since that date.

4. [4]

   The allegations against the applicant, considered as a whole, are extremely serious. There are two allegations involving serious violence and a raft of accusations suggesting the applicant was involved in organised criminal activity at a relatively high level.

The applicant must show cause why his detention is not justified

1. [5]

   Pursuant to ss 16A and 16B of the Bail Act, the applicant is required to show cause why his detention is not justified. Depending on the charge in question there are three reasons for this, the first two of which are related. First, some of the offences – alleging the supply of a large commercial quantity of drugs – are punishable by life imprisonment: s 16B(1)(a). Secondly, some of the offences involve the alleged supply of commercial quantities of drugs: s 16B(1)(f). Finally, Mr Elmoubayed was on bail in January 2024 when he is alleged to have committed the (specially aggravated) detain for advantage charge: s 16B(1)(h).

2. [6]

   The onus falls on the applicant to show cause, on the balance of probabilities, why his detention is not justified. If the applicant does not show cause, bail must be refused in accordance with the command in s 16A of the Bail Act. In Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314, the Court of Criminal Appeal, in an often-cited passage, summarised some of the principles that apply to a release application when the alleged offender is required to show cause why their continued detention is not justified:

The difficulties of assessing the strength of the prosecution case in a bail application

1. [7]

   The strength of the prosecution case is a relevant consideration when an applicant for bail is required to show cause. However, it is not determinative of that issue: Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [44] (“DPP v Mawad”). It is also relevant to the consideration of risk under ss 17-19 of the Bail Act. Such an assessment can be difficult because a judge hearing a bail application has limited information upon which to make the assessment of the strength of the case. In DPP v Mawad, Beech-Jones J, as his Honour then was, said:

2. [8]

   Garling J in JM v R [2015] NSWSC 978 made similar observations at [41]-[42]:

3. [9]

   As will be seen, the identification of the applicant in the present case as the person using the social media or electronic messaging “handle” of “ENTERPRISE” (and variations thereof) is important to the proof of the prosecution case in relation to many of the charges and the information tendered on the application is somewhat limited in relation to that issue.

Matters relevant to whether the applicant has shown cause why his detention is not justified

1. [10]

   Mr Djemal submitted that there is a compelling combination of factors which, taken together, discharge the onus on the applicant to show why his detention is not justified. Those factors include the applicant’s family circumstances, the length of time the applicant is likely to spend in custody if bail is refused, his strong family and community support including the availability of a very large surety to secure his attendance at court, and the stringent bail conditions proposed. Mr Djemal also submitted that the case against the applicant was not a particularly strong one, and there was some focus during the bail hearing on the parties’ respective submissions on that issue. As I have already observed, where an applicant is required to “show cause”, the strength of the prosecution case is an important, but not determinative, factor: DPP v Mawad at [44].

2. [11]

   Mr Djemal submitted that there will be a substantial delay before the applicant’s case is dealt with to finality. Mr Chua accepted the delay would be substantial. There was some variation between the submissions as to when the applicant’s trial will actually proceed and whether it may occur in the second half of 2026 or as late as 2027.

3. [12]

   Mr Elmoubayed was taken into custody on 27 March 2024 and has been incarcerated since that time. The four matters charged in H #894 are listed for defended hearing in the Parramatta Local Court on 1 May 2025. More significant to the issue of delay are the offences charged in H #540 which are expected ultimately to proceed on indictment in the District Court. Despite the passing of one year, those charges are still before the Parramatta Local Court although a charge certificate has been filed pursuant to the requirements of ss 66-67 of the Criminal Procedure Act 1986 (NSW). They are next listed on 7 May 2025 for what was described as a “s 82/84 hearing”. I understand this hearing to relate to a particular charge, sequence 31, being the allegation of “specially aggravated detain for advantage”. The prosecution seeks to examine the alleged victim of that offence to see what (if anything) they may say if the matter proceeds to trial. As I understand it, to this point the witness has not co-operated with police investigators.

4. [13]

   Mr Djemal submitted that the applicant has already been in custody for 12 months and, based on the complexities of the case and the number of alleged co-offenders, he is not likely to receive a trial date within the next 18 months. He submits the trial may not be listed until early 2027. This would mean that the applicant would be in custody, presumed to be innocent, for around three years. While Mr Chua was more optimistic about a trial date, postulating that the trial may occur in the latter part of 2026, even on his estimate the delay is likely to exceed two years. In a case handed down last week, the Court of Criminal Appeal endorsed the words of Sperling J in R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365 at [9], where his Honour observed:

5. [14]

   See Nikollaj v R [2025] NSWCCA 31 at [3] (Dhanji J) and [16] (Yehia J with whom Price AJA agreed). Nikollaj v R was described as “an extreme case” where the prospective delay exceeded 4½ years but the principle has some resonance in Mr Elmoubayed’s case. While “significant delay” does not usually overcome the show cause requirement, [1] especially where the prosecution case is strong, it has been considered to be a significant factor in a number of bail decisions made in the Court of Criminal Appeal: see, for example, Ali v Director of Public Prosecutions (NSW) [2017] NSWCCA 155 at [35], Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325 at [63]-[66] and Lee v R (Cth) [2024] NSWCCA 202 at [11], [20], [54]-[55] and [75].

6. [15]

   I will follow those authorities in the Court of Criminal Appeal. They establish that delay, even as extensive as in this case, will not ordinarily satisfy the show cause requirement by itself, but that such a delay when combined with other features of the case may play a significant role in overcoming that legal impediment to bail.

7. [16]

   The applicant has three children between the ages of three and seven, and an older sister (Zamzam) who has brain damage which leaves her with major disabilities and a limited life expectancy. I generally accept the evidence that Mr Elmoubayed regularly cared for and supported Zamzam before being arrested and taken into custody. Mr Djemal submitted that the applicant’s absence from the family creates significant difficulties in terms of care arrangements for the children and for Zamzam. This submission was supported by the evidence of his wife and brother, and a variety of medical reports tendered on the application. The young children have a close bond with their father and his absence is impacting on their emotional and psychological wellbeing.

8. [17]

   The applicant’s wife, Marissa Psomas, provided an affidavit dated 4 February 2025 and gave evidence of the difficulties she is experiencing caring for the children on her own and the impact of Mr Elmoubayed’s absence on the children. Ms Psomas said that the family relies on Mr Elmoubayed to care for the children and provide financial support. Ms Psomas said she is struggling to care for their children in her husband’s absence. She has noticed negative changes in the moods and emotions of two of the boys and they have distanced themselves from friends and loved ones. The children also suffer from medical conditions and require consistent monitoring, care and medical appointments. One child was diagnosed with febrile convulsions, has developed a speech delay, and struggles with reading and literacy. One of the children has been referred to the school psychologist for support with mental health issues. Another child has enlarged tonsils and adenoids which has resulted in breathing issues. The children’s involvement in extra-curricular activities has been curtailed due to logistical difficulties arising from the applicant’s absence.

9. [18]

   Ms Psomas was cross-examined on the bail application. I accepted her evidence as honest and reliable.

10. [19]

    The applicant’s brother, Ahmad Elmoubayed (“Ahmad”), provided an affidavit dated 3 February 2025 and gave evidence outlining Zamzam’s medical condition and the extent of her disabilities and needs. Zamzam suffered brain damage as a child and has a severe intellectual disability, epilepsy and osteoporosis. She is “non-verbal” and communicates through “eyesight”, gestures and body language. Medical reports were annexed to Ahmad’s affidavit, including a report by Dr Christopher Canaris, a psychiatrist. Ahmad says that Dr Canaris provided an opinion that Zamzam’s condition has progressively worsened, and attributes this to her brain damage and intellectual disabilities. Objection was taken to part of Ahmad’s affidavit where he purported to summarise the opinions of doctors as to Zamzam’s life expectancy. The relevant paragraphs were admitted provisionally but later excluded. [2] Ahmad gave evidence (without objection) that doctors said her life expectancy was “39, 38, 40, all depends, but she is deteriorating”. Zamzam is currently 36 years old. Ahmad gave evidence that “[s]he is starting to get worse, she is crouching, she’s not responding, they have stopped giving her the medication that stops her from the seizures”. [3]

11. [20]

    The applicant’s parents also have some medical issues. His father has diabetes, severe depression, and suffers from a heart condition that requires a pacemaker and regular medical appointments. His mother has been diagnosed with depression, a gastro-intestinal condition, and had ovarian cancer in 2014, although that condition has been in remission since approximately 2019.

12. [21]

    Ahmad explained the role the applicant might play in caring for his children, his sister and his parents if bail is granted. He also identified his other siblings – there are four aged between 25 and 34 – but said they had limited ability to assist with the care of the applicant’s children because they each have their own commitments and children of their own.

13. [22]

    As I said in argument, I found one aspect of Ahmad’s evidence unconvincing. That was where he immediately, if not pre-emptively, refuted Mr Chua’s suggestion that he may be able to assist the applicant’s wife to facilitate transport to a forthcoming medical appointment. [4] Given the closeness of the family, I am inclined to think that the family can provide some support to Ms Psomas and the children, as well as Zamzam. While some aspects of Ahmad’s evidence may have been exaggerated, I generally accept his evidence, noting that much of what he had to say is supported by medical or other evidence.

14. [23]

    I accept Mr Chua’s submission that there was an inconsistency (between the wife and the brother) as to whether Ms Psomas had asked other family members to help with that appointment, but I find that inconsistency of little moment in the overall context of the evidence.

15. [24]

    The applicant’s family circumstances are quite compelling. His disabled sister would benefit from his presence and his wife is struggling to cope with three children under ten. The children are showing signs of distress caused by their father’s absence and this is impacting on their education and interpersonal relationships. Taken with the delay, these are weighty matters.

16. [25]

    A report by a consultant psychologist Tim Watson-Munro was tendered and Mr Watson-Munro was cross-examined by Mr Chua. Mr Watson-Munro is of the opinion that the applicant is exhibiting symptoms of a depressive disorder and is a “psychologically troubled man”. It seems these symptoms arise from his current predicament, his conditions of incarceration and his inability to exercise, have regular contact with his family, and obtain appropriate treatment. Mr Watson-Munro recommends that he obtain therapy in the community.

17. [26]

    Compounding the difficulties concerning the care of the children is that Ms Psomas is attempting to run and maintain the applicant’s transport business. This involves scheduling and organising one truck and allocating drivers to undertake any jobs that come in. The impact of this issue is two-fold. First, the applicant’s absence is having an economic impact on his family. Secondly, the need to attempt to run the business is placing additional stress on the applicant’s wife as she attempts to raise three young children alone.

18. [27]

    I have taken this matter into account but I do not consider it to be a matter of great significance.

19. [28]

    The applicant’s brother Ahmad can offer surety in the sum of around $1,100,000 secured by a second mortgage over his [REDACTED] home.

20. [29]

    Jalal Alameddine swore an affidavit in which he offered to put up $400,000 secured by a mortgage over his home.

21. [30]

    Ayman Ibrahim swore an affidavit in which he offered to put up $2.5 million again secured by mortgages over various pieces of real property. Mr Ibrahim has known the applicant for around 15 years and finds him to be generous, kind-hearted and family oriented. Clearly, he has significant faith in the applicant not to abscond if he is granted bail.

22. [31]

    In total, there are three acceptable persons prepared to forfeit around $4,000,000 if the applicant does not attend court.

23. [32]

    This is a matter more relevant to the bail concern surrounding the applicant’s attendance at court, but it can play a small part in the combination of circumstances upon which Mr Elmoubayed relies in attempting to show cause under s 16A. However, applicants for bail should not assume that the availability of a large surety will overcome the requirement to show cause, especially in a case like this one where there is evidence (or allegations) of the applicant possessing or dealing in very large sums of cash money which are said to be the proceeds of crime. In this case, the allegations of dealing with the proceeds of crime concern amounts of many hundreds of thousands of dollars. The evidence will include photographs of one of the applicant’s children clutching Australian currency said to amount to around $120,000.

24. [33]

    Along with the sureties to which I have just referred, the applicant also proposes extremely stringent bail conditions. The proposal amounts to house arrest, with well-defined exceptions, enforced by electronic monitoring and enforcement conditions. It is proposed that the applicant will reside at his family home with his wife and children.

Strength of the prosecution case

1. [34]

   It is necessary to turn to an assessment of the prosecution case within the limits to which I referred in [7]-[9] above. The advocates for both sides provided realistic concessions about this and I was assisted by their balanced and well-reasoned submissions.

2. [35]

   In terms of the matters to be dealt with summarily under H #894 I accept the Prosecutor’s submission that the case against the applicant is strong.

3. [36]

   The case is to be proved by recorded telephone calls in which the applicant communicated with an associate (Asaad Alahmad) who was in custody at Cessnock at the time (that is, in May and July 2023). The evidence (as far as I understand it) was uncovered in the course of investigating the other offences. The evidence as to the arrangements made by the applicant to engage in drug supply were all captured by the Correctional Centre’s Offender Telephone System (OTS) which records all non-legally privileged conversations over that system. The identity of the applicant in using his associate’s OTS account is established through one of the conversations where he reads aloud a text message that identified himself as “Ali”. The form of the evidence relies on recordings from the OTS system and WhatsApp communications extracted after police had seized Robert Kenney’s phone.

4. [37]

   The first and fourth counts each involve the supply of 3.2 grams of buprenorphine and the second count involves 3.5 grams of methylamphetamine. The third charge is an allegation that this activity amounted to participation in a criminal group.

5. [38]

   The allegations in H #894 do not attract the show cause provisions and it could not be said that a full-time custodial sentence is inevitable, even if the applicant is found guilty at the summary hearing.

6. [39]

   It is open to reach quite different conclusions as to the strength of the prosecution case in relation to various sequences charged in H #540. I have considered closely the prosecution case statement, the relevant parts of the letter by Detective Nicholas Mackie and the evidence of Detective Sergeant Bradley Goodhart who was called on the hearing of the bail application. [5]

7. [40]

   It is not practical to reproduce the dense prosecution case statement in the course of this judgment.

8. [41]

   Mr Chua submits globally that the case is “reasonably strong” and I accept that submission in relation to some of the charges. In some instances, I think the case is strong, without the qualification of “reasonably”. In others, as I foreshadowed, the strength of the case turns on the identification of the applicant as the person using the handle ENTERPRISE. In yet other cases, there appear to be patent problems with the prosecution case. I will explain that overview of conclusions by reference to the various charges, starting with the two unrelated kidnapping allegations, before turning finally to the drug and proceeds of crime offences and the ENTERPRISE handle issue.

9. [42]

   The prosecution submits that the case is “reasonably strong”. It relies on a video seized from a mobile ‘phone which depicts a male being detained by a person with a highly aggressive dog and forced to remove his clothing. The victim refers to the person detaining him as “Ali” (the applicant’s first name). The video appears to have been filmed at [REDACTED] which was the family home of the applicant at the time of the offence. The video was posted on Snapchat by the user “AE”. A mobile ‘phone later seized from the applicant had Snapchat installed with the username as “AE”.

10. [43]

    Mr Djemal submitted that to satisfy the elements of an offence under s 86 of the Crimes Act (take and detain for advantage), there must be evidence of the removal and detention of the victim. In the present case it appears there is no evidence available from the alleged victim and, accordingly, no evidence as to how the victim ended up at the applicant’s house. While the video (as described) is chilling, its capacity by itself to prove the essential elements of the certified charge may be questionable.

11. [44]

    On the information before this Court, I would describe the prosecution case as potentially deficient. Because of the graphic nature of the video and the inferences to be drawn from its apparent location, I would not call it weak. However, I am not satisfied that it is properly described as strong.

12. [45]

    Two further observations should be made about this charge. First, the prosecution bail chronology and submissions (the first page in Ex A), suggests that the “s 82/84 hearing” listed on 7 May 2025 relates to this matter. However, at the hearing, Mr Chua acknowledged that the witness the prosecution intends to call at that hearing is the alleged victim of the specially aggravated kidnapping offence charged in sequence 31 (that is, [REDACTED]). [6] Secondly, there may be a question whether sequence 1 could fairly be tried with the other offences in H #540. That will ultimately be a question for the Director (or Prosecutors who formulate the indictment) and the trial Judge, but the connection between the offences, and the apparent temporal disconnection of this offence from the others, suggests that an application to sever this count may have merit.

13. [46]

    Again, Mr Chua submitted the prosecution case in relation to sequence 31 is “reasonably strong”. The facts and evidence set out in the prosecution case statement support that submission. [7]

14. [47]

    There is evidence of communications between the applicant and two alleged co-offenders late on 18 January 2024 suggesting they planned to lure [REDACTED] to an address in [REDACTED] by means of some kind of ruse. At that time Mr Elmoubayed was wearing an ankle monitor pursuant to bail conditions in relation to an unrelated charge of affray. [8] The tracking device on the monitor showed he travelled from his home to the address in [REDACTED]. CCTV cameras showed the men arriving shortly before midnight and [REDACTED] arriving on foot at 12:08am on 19 January 2024.

15. [48]

    The prosecution case statement says: “the Crown case is that [REDACTED] was detained and repeatedly assaulted by multiple men whilst he was in the garage.” The surveillance evidence shows Mr Elmoubayed and others leaving in the applicant’s Hilux at 12:10am and [REDACTED]’s “limp body” being removed by two other men at 12:13am and put in a car at 12:15am. The applicant and others arrived back at his home at 12:27am and there are “lawful” recordings of the men laughing about the incident and describing their involvement. The conversations are set out at [109]-[116] of the prosecution case statement (Ex A p 101). There is also evidence of [REDACTED]’s attendance at Auburn hospital and his injuries which included facial bruises and a bone fracture. There is also evidence that blood located in the garage of the [REDACTED] address has the same DNA profile as [REDACTED].

16. [49]

    While the foregoing suggests a very strong case that the applicant was complicit in this very serious offence (which, if proved, was committed while the applicant was on bail), the problem for the prosecution is that [REDACTED] has said he “did not wish to cooperate with police”. The prosecution intends to call him to give evidence in the Local Court to ascertain what he might say about the incident. For that reason, there may be a triable issue in relation to this offence despite the powerful circumstantial case proving the applicant’s involvement and the victim’s injuries.

17. [50]

    The prosecution seeks to prove the multiplicity of drug supply offences and proceeds of crime offences by reference to surveillance evidence, telephone intercepts, and telecommunications evidence. The prosecution relies substantially on messages from the encrypted messaging platform known as “Threema” which were discovered after a mobile phone was seized from Abdulrazzak Khalil, a man said to be an associate of the Alameddine Organised Crime Network.

18. [51]

    The prosecution case statement sets out in some detail the messaging and surveillance upon which the drug supply allegations are based. This includes the details of the communications and pictures sent to and from members of the drug supply syndicate. The evidence strongly supports the contention that those involved in the messaging were involved in the sophisticated supply of very large quantities of drugs.

19. [52]

    There is strong evidence of the use of “dead drops” to intermediate suppliers and a network of runners engaged in “dial-a-dealer” operations by which end users would contact mobile telephone services and arrange for the delivery of cocaine and methylamphetamine. Each drug run had a unique name such as “Tommy run”, “Dior run”, “Versace run”, “Gingerbread man run”, and the distinctly fishy “Sam the Lobster man” run to name a few. There were at least ten such “runs” each being supplied and organised by the Alameddine group. The scale of the operation is substantial with the organisation said to have a customer base in the order of 50,000 people across New South Wales. The potential for massive and illicit profits is impressive.

20. [53]

    Mr Chua submitted the case on the drug supply offences is reasonably strong although he acknowledges that the critical issue is the attribution to the applicant of the messaging handle ENTERPRISE, or “ENTERPRISE 3.0” or other variations of the same. Mr Djemal concedes that – if that fact (ie attribution) is established – the prosecution case is properly categorised as “very strong”. However, he submits the prosecution case on the attribution issue is not strong at all.

21. [54]

    On the material before me, the case that the applicant was dealing at a high level in the supply of at least commercial (and probably large commercial) quantities of cocaine and methylamphetamine would be bordering on overwhelming if it is able to be established that he is the person communicating as ENTERPRISE (or the other variations). The messaging includes clear references to quantities, prices and arrangements for delivery at specific times and places. Pictures of the drugs, including blocks of cocaine sitting on scales, and in various forms of readiness and packaging are sent over the encrypted service. There is also frank discussion about the quality of the product and strategies to avoid detection, for example by masking the smell of the drugs with oil to throw sniffer dogs (literally) off the scent.

22. [55]

    The inference that ENTERPRISE was operating at a managerial level of the organisation is strong.

23. [56]

    However, when it comes to the attribution question, it is difficult to make an assessment at this distance. Mr Chua referred to a 95-page attribution document that was “too voluminous to orally expound upon” and this material was not in evidence. However, Detective Sergeant Goodhart gave evidence on the subject. After confirming that the document was not to be tendered and inviting both parties to take objection if they thought it appropriate, [9] the following evidence was provided:

24. [57]

    The evidence to be relied on to establish that Mr Elmoubayed is ENTERPRISE seems to comprise of five essential components:

25. [58]

    Mr Djemal submitted that this aspect of the prosecution case was “highly circumstantial” and reliant on inferences being drawn on questionable inferences. He submitted that the fingerprint evidence is not strong because the fingerprint analyst did not have an actual fingerprint to examine through a microscope. Further, the applicant was under “intense surveillance, both electronic and physical” during 2023 and the early part of 2024. During that time, the closest the applicant was put to one of the addresses referred to as a drug house is that a car that could be linked to him, but was not in his name, was seen in the vicinity. The applicant was never seen to enter or leave such a house. As I understand that last submission, Mr Djemal was inviting a contrast with the situation, often encountered in large drug investigations, where the user of a particular telephone or encrypted device can be established with some certainty. This often involves the subject messages showing a suspect to be in a particular location and the police surveillance confirming the suspect to be in that location. Mr Djemal submitted that there is no intersection of the applicant being at any of the places that ENTERPRISE says he is in the messaging despite the fact he was under constant surveillance. The conversations on Threema suggest that ENTERPRISE is frequently going to particular premises and packaging the drugs. However, there is no evidence of the applicant going to those premises despite being under intense surveillance for around 13 months. The applicant was not found to be in possession of a Threema telephone or device despite searches of his home and other locations with which he is associated.

26. [59]

    In effect, Mr Djemal submitted that the identification of his client as ENTERPRISE and/or AMPOL was essential to the prosecution’s circumstantial case. As such, it is properly categorised as a critical intermediate fact constituting an “indispensable link in a chain of reasoning towards an inference of guilt”: Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 at 579 and 585. In some cases, such a fact must be established beyond reasonable doubt: see, for example, R v Merritt [1999] NSWCCA 29. This is to be contrasted with most circumstantial cases where the individual facts upon which the inference of guilt is to be drawn need not be established to any particular standard.

27. [60]

    The foregoing analysis demonstrates the difficulty in a judge sitting in a bail application reaching a conclusion as to the strength of the prosecution case. There will be substantially more evidence, possibly going both ways, on this issue when the matter goes to trial. It will be subject to much closer analysis and scrutiny by the parties. It is impossible to predict with any certainty whether the trial Judge will ultimately be persuaded to direct the jury in accordance with the cases of Shepherd v The Queen and R v Merritt.

28. [61]

    Within those limitations, my assessment is that there is a serious and triable issue in relation to the identity of the user of the ENTERPRISE handle. As to that issue, I did not find the five matters identified by the detective to be particularly persuasive although some were more than others. The fingerprint evidence, if it survives scrutiny, is reasonably strong evidence of attribution. The other matters may strengthen the circumstantial case more generally but do not provide cogent proof identifying the applicant as ENTERPRISE. For example, there will no doubt be more evidence at the trial about the “rent for [REDACTED]” payments and, if it is established that the payments out of the account paid the applicant’s rent, that is circumstantial evidence of his involvement, but it does not directly (if at all) establish that he is ENTERPRISE.

29. [62]

    There is other evidence that connects the applicant with those involved in the syndicate and with premises used by the syndicate. There is also a strong suspicion surrounding his apparent unexplained wealth, although Mr Djemal’s cross-examination of Detective Goodhart, and Ms Psomas’ evidence, raise questions about the strength of this aspect of the case.

30. [63]

    I would assess the case against the applicant on the individual drug offences as moderately strong but not overwhelming. It could not be said that conviction is inevitable based on the material tendered on the bail application. There may be some issues around the quantities in some instances but, if the applicant is identified as ENTERPRISE, given the scale of the operation and the details of the communications, the case for commercial or large commercial supply is very strong.

31. [64]

    In relation to the offences involving allegations of dealing with the proceeds of crime, some have the same potential issue (that is attribution) as the drug offences. It is alleged, in sequence 10, that the applicant directed Mahdy Zaineddine to collect $180,500 cash and deliver it to an address. Zaineddine sent the applicant (or ENTERPRISE) a photograph of the cash in large bundles contained in a shopping bag. In relation to sequence 34, police located two videos and three photographs of the applicant’s son holding over $100,000 in cash in their family home at [REDACTED]. The case on that sequence can be described as very strong in the absence of any evidence explaining how the applicant’s child would be in possession of such a large sum of cash money.

Other matters

1. [65]

   In considering whether the applicant has shown cause, I have also considered several other matters including, without being exhaustive, the following:

   1. (1)

      There seems to be reasonably strong information and intelligence that the applicant was associated with members of the Alameddine crime gang or members of that family. For example, Detective Mackie’s letter included a photograph of the applicant at the beach with Rafat Alameddine who is thought to be on the run and currently in Lebanon avoiding execution of a warrant for organising a double murder.

   2. (2)

      Mr Elmoubayed has a criminal history including a previous conviction for drug offences in 2018 for which he received an 18-month sentence to be served by way of an intensive correction order (ICO). He also received a community corrections order for an offence of affray committed in 2021. His criminal record is not otherwise a bad one although there is some evidence of breaching orders in the past.

   3. (3)

      The offences as formulated are extremely serious and upon conviction would result in a very long full-time custodial sentence.

Conclusion on show cause

1. [66]

   The likelihood of a delay approaching (or exceeding) three years in bringing the matter to trial is a significant and important issue especially when set against the impact of the applicant’s incarceration on his family and the fact that there is, at least, a triable issue in relation to his guilt.

2. [67]

   Considering all of the evidence, I am satisfied on balance that the applicant has shown cause why his detention is not justified.

Assessment of bail concerns and the unacceptable risk test

1. [68]

   However, as the decision of the Court of Criminal Appeal in DPP v Mawad demonstrates, that is not the end of the matter. It is necessary to consider the bail concerns that arise under s 17 and determine whether those concerns rise to the level of “unacceptable risks” for the purposes of s 19. That determination is to be made by reference to the exhaustive list of factors identified in s 18.

2. [69]

   No grant of bail is risk free and Mr Chua correctly identified three bail concerns pursuant to s 17. The prosecution submitted that there is an unacceptable risk that (i) the applicant will fail to appear, (ii) will commit serious offences and thereby (iii) endanger the safety of the community.

3. [70]

   I accept that the applicant may be motivated to flee because of the likely length of the sentence he would receive upon conviction. That concern is exacerbated by the intelligence that he is a senior member of the Alameddine gang which may have the resources to assist him to take flight. Further, when Mr Elmoubayed was arrested a police custody officer says that they overheard him suggest to his wife that she take herself and the children to Dubai. Further, there is information that the applicant had access to a mobile telephone while in custody and that he made contact with numbers having the prefix for calls to Slovenia and Lebanon. As I have noted, Rafat Alameddine is currently thought to be in Lebanon and there is a suggestion that other members of the criminal syndicate may have fled to that country.

4. [71]

   Against that, the evidence establishes that the applicant has strong and extended family ties to Australia. This includes his wife and three young children and his infirm and disabled sister. Ms Psomas’ evidence, which was not challenged, was that the last time her husband went to Lebanon was in 2019.

5. [72]

   Mr Djemal submitted that the risk of flight can be ameliorated by the imposition of conditions including the requirement of a substantial surety, daily or even twice daily reporting, and a home detention order strengthened by electronic monitoring. Further, there is some evidence of divisions within the Alameddine syndicate and the applicant has been placed in some form of protection as a result. There is a list of something like 70 people in relation to whom the applicant would not be permitted to contact if bail was granted on the stringent conditions proposed.

6. [73]

   The risk of flight cannot be eliminated but the imposition of a highly onerous set of bail conditions mitigates this bail concern to a large degree.

7. [74]

   The bail concerns in sub-paragraphs (b) and (c) are related. Any danger to the victims, individuals or the community would arise if the applicant committed offences. The large-scale distribution of drugs and violent kidnapping offences of the kind alleged in sequences 1 and 31 of H #540 certainly involve endangering the community. The nature and multiplicity of the present allegations along with the intelligence that the applicant is involved in a notorious criminal syndicate at a relatively high level means that these concerns are real and potent.

8. [75]

   Further, the applicant has a criminal history including past drug dealing and one apparently relatively minor offence of violence. As to the offence of violence, it was charged as an affray and resulted in a community corrections order. The facts that were contained in the bundle on the bail application were not the facts to which the applicant pleaded guilty and Mr Chua did not press that part of the bundle.

9. [76]

   Perhaps of more concern than the criminal record itself is the applicant’s patchy record of complying with court orders. This is reflected in a number of driving offences when his licence was cancelled or suspended, more than one breach of bail in 2021 and “call-ups” while on community based orders. He breached the ICO for the drug supply offence in 2021 by committing several minor offences and failing to comply with the community service work component of the ICO. After a warning was provided, the ICO was later revoked. At least the offence of specially aggravated detain was allegedly committed when the applicant was on strict conditional bail which included daily reporting, a curfew, electronic monitoring and a $900,000 surety. Mr Chua stressed that the last-mentioned breach of bail occurred when he was required to reside with his wife and that she provided an acknowledgement that she would supervise her husband to ensure he complied with his bail conditions. The applicant continued to offend, whilst subject to bail, and despite the assurances by his wife. He has also been disciplined in custody for possessing buprenorphine strips.

10. [77]

    Mr Djemal submitted that at the time of the alleged detain offence, there was no inclusion zone in terms of the electronic monitoring. The current proposal would be far more stringent and the proposal relating to electronic monitoring would involve an inclusion zone to keep him in the area of his house, while any exceptions would be “triaged”. Further, he submits that the applicant has been in custody for one year, under strict conditions of segregation since December 2024 because of concerns for his safety based on a suggestion he has fallen out with some members of the Alameddine crime syndicate. Mr Djemal submitted that the applicant is now aware of the importance of strict compliance and the consequences of failing to comply, noting that this is the first time he has spent any significant period of time in custody.

11. [78]

    I have considered all of the matters which arise under s 18 but will not outline that consideration here other than to note what I have already made reference to:

12. [79]

    I would also, without attempting tediously to tick the boxes of the s 18 criteria, note in passing:

13. [80]

    Towards the conclusion of the hearing, the applicant’s legal representatives offered to provide an updated set of draft conditions and did so shortly after the hearing. They represented some further tightening of the conditions and some specificity in relation to the proposed secured amount offered by Ahmad, Mr Alameddine and Mr Ibrahim, and the arrangements to apply to the electronic monitoring.

14. [81]

    I should also mention that Laura Windsor, the operations manager of Allied Universal Electronic Monitoring, gave further evidence and was cross-examined during the bail hearing. She was asked about a particular recent incident when a person on bail removed their ankle monitor and sought to flee. She said that the system has been changed to some extent, so as to require notification of any breach to a limitless number of police officers as requested by the investigators. However, the fact remains that there may be some delay in notifications and a person on bail can always choose to remove their electronic tracking device.

15. [82]

    In short, it must be acknowledged that electronic monitoring cannot guarantee a person’s compliance with bail conditions. Even so, it provides some additional protection against breaches of bail and other forms of conditional liberty. If that were not the case, Corrective Services would not use the devices in monitoring parole conditions and the terms attached to supervision orders made under the Crimes (High Risk Offenders) Act 2006 (NSW), and the legislature would not have mandated the use of such devices in enforcing bail conditions for certain offences: Bail Act, s 28B.

16. [83]

    The remarks of Beech-Jones CJ at CL (as his Honour then was) in Director of Public Prosecutions (Cth) v Saadieh [2021] NSWCCA 232; (2021) 291 A Crim R 191 at [8]-[9] are pertinent.

The bail concerns can be mitigated by conditions and there is no unacceptable risk in the release of the applicant on bail

1. [84]

   While each application must be considered on its own facts, and no authority of this Court or the Court of Criminal Appeal can dictate the outcome of a particular application, I have considered the circumstances in the recent case of Nikollaj v R. I have done so to consider the conditions that Price AJA, Dhanji and Yehia JJ considered to be capable of mitigating risk in that case where the bail concerns relating to international flight and re-offending were patent. That was an “extreme case” from perspectives other than the length of the delay until trial.

2. [85]

   The decision is not easy, but I have concluded the conditions proposed by the applicant, somewhat modified, will mitigate the risks of releasing the applicant to such an extent that there is no unacceptable risk for the purpose of the application of s 19 of the Bail Act.

3. [86]

   I have little doubt he will be under close police scrutiny and that fact, along with the strict conditions of bail to which he will be subject, reduce the risk of Mr Elmoubayed taking flight, committing criminal offences or endangering the community.

4. [87]

   The conditions are set out below but include, in terms of mitigating the risk of the applicant taking flight:

5. [88]

   In terms of the risk of re-offending and consequent dangers to the community and individuals within it, the conditions include:

Orders

1. [89]

   The release application is allowed and bail is granted on the following conditions:

   1. (1)

      The applicant is to be of good behaviour.

   2. (2)

      The applicant is to appear at Parramatta Local Court on 1 May 2025 and 7 May 2025, and thereafter as directed.

   3. (3)

      The applicant is to live at [REDACTED] and nowhere else.

   4. (4)

      The applicant is to report to the Officer in Charge at [REDACTED] Police Station daily between the hours of 9 am and 11 am.

   5. (5)

      The applicant is to comply with a home detention condition whereby he is not to leave the premises at which he is required to live except in the following alternative circumstance(s):

   6. (6)

      The applicant is to comply with the following electronic monitoring condition and bear the costs of compliance with the condition:

   7. (7)

      The applicant may only travel away from the Correctional Centre from which the applicant is to be released on bail when in the company of Marissa Psomas. (This is a pre-release condition).

   8. (8)

      The applicant is not to drink alcohol or enter any premises in which alcohol is sold.

   9. (9)

      The applicant is not to take any illegal or prescription drugs other than a drug prescribed for the applicant by a medical practitioner.

   10. (10)

       Within two weeks of his release, the applicant is to attend upon his medical practitioner and comply with any mental health treatment plan prescribed by the medical practitioner.

   11. (11)

       The applicant is not to approach or communicate with, or attempt to make contact with, any person he knows to be a co-accused or any person he knows to be a prosecution witness except for a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative.

   12. (12)

       Without restricting the general non-association condition, the applicant is not, by any means whatsoever, to approach, contact or associate with any one or more of the following named individuals: [REDACTED].

   13. (13)

       The applicant is not to go within 500 metres of any point of international departure from the Commonwealth of Australia.

   14. (14)

       The applicant is not to apply for any new passport or travel document.

   15. (15)

       The applicant is not to use or be in possession of more than one mobile telephone service and SIM card, and is to provide the password or PIN code, service and IMEI numbers of that telephone to the OIC within 48 hours of taking or resuming possession of any such service.

   16. (16)

       The applicant is not to use or possess any encrypted device or any means of communicating via encrypted applications, including but not limited to Threema, WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, Zoom, Discord, WeChat, or Telegram.

   17. (17)

       The applicant is not to use or be in possession of any mobile telephone which is a SMART telephone or is otherwise an internet capable mobile device.

   18. (18)

       The applicant is to provide access to any internet capable device in the applicant’s possession to the OIC on demand and provide any password or PIN code for the device to that person to facilitate access to it.

   19. (19)

       Three or more acceptable persons are to deposit security in the total sum of $4,000,000.00 and agree to forfeit the relevant individual sums if the applicant fails to appear at court in accordance with his bail undertaking. (This is a pre-release condition).

   20. (20)

       An acceptable person is to provide a character acknowledgment which complies with the Bail Act 2013 (NSW), and the Bail Regulations 2014 (NSW). This is a pre-release condition.

   21. (21)

       On the application of the Prosecutor and pursuant to s 30 of the Bail Act, the following enforcement conditions apply:

   22. (22)

       The applicant is to undertake any non-invasive testing required of the applicant at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the drug and alcohol abstention condition.