Man accused of fight night stomping refused bail
A man who claimed he acted in self defence when he allegedly stomped on his rival’s head as he lay wounded from four gunshots at a Melbourne boxing event has been refused bail.
Police & Courts
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A man accused of attempting to kill a rival by stomping on his head as he lay wounded from gunfire at a Melbourne boxing event has been refused bail.
Supreme Court judge Andrew Tinney was not satisfied Ali El Nasher would not pose an unacceptable risk if freed into the community.
Mr El Nasher, 30, is charged with the attempted murder of Joseph Abouchaya at Melbourne Pavilion in Kensington on March 1 last year.
He did not draw a gun during the alleged shootout, in which Benjamin Togiai was killed and Mr Abouchaya and kickboxer Omar Bchinnati were wounded.
Instead, police allege he forcefully stomped down on Mr Abouchaya’s head three times after he was felled by four bullets fired by an associate.
Mr El Nasher argued the prosecution case was “hopelessly weak” and that he should be freed on bail while he fights the allegations.
The young father also claims it was self defence as Mr Abouchaya was armed with a gun.
Supreme Court judge Andrew Tinney said the CCTV showed Mr Abouchaya was “running for his life and with no concern for anything other than that” when he was gunned down.
Looking at his criminal history and the fact he was on bail and serving a Community Correction Order at the time of the alleged shootout, Justice Tinney agreed with prosecution concerns that Mr El Nasher would reoffend or interfere with witnesses if released.
“The applicant has antecedents which show a willingness to engage in significant criminality, and a seeming lack of respect for orders of courts, and for grants of bail,” he said.
Justice Tinney said the ongoing concerns of COVID-19 causing more onerous conditions in prison and delays to court cases - which had seen multiple accused recently released on bail - was not enough of a reason to grant bail in this case.
Barrister Philip Dunn, QC, said the Crown would struggle to establish the stomping action carried intent to kill.
Medical evidence, he said, also failed to determine whether the injuries to Mr Abouchaya’s face were a result of stomping or a bullet allegedly fired moments earlierby Mr El Nasher’s associate, Mikhael Myko, who is also charged with attempted murder.
Mr Dunn said Mr El Nasher would fight to have the attempted murder charge struck out in October. He said Mr El Nasher acted in self-defence as Mr Abouchaya had a gun, and that there was “a well and truly arguable defence” to the charge of attempted murder.
Justice Tinney agreed the attempted murder charge “sounds like a bit of a stretch” but added self-defence may not be “the best string to his bow”.
“The fact that the man had a gun, of course, would not entitle someone to stomp on his head,” Justice Tinney said.
“There’s no indication at all that Abouchaya was any threat to your client at that time.”
CCTV showed Mr Myko allegedly shooting Mr Abouchaya four times, before Mr El Nasher ran in and stomped on him. Mr Abouchaya had run in to Melbourne Pavilion to escape after his associates, Mr Togiai and Mr Bchinnati, were shot outside.
The court heard the Bchinnati and El Nasher groups had been involved in a turf war.
Mr El Nasher’s panelbeating business had been torched, and the El Nasher family had fled their Brunswick home after a visit from armed men.
Prosecutor Nick Goodenough opposed bail, saying Mr El Nasher had a history of violence and firearms offences.
No bail conditions could alleviate police concerns Mr El Nasher would flee or interfere with witnesses, he said.
Mr El Nasher’s brother Abdullah El Nasher, 27, and Osamma Allouche are charged with the murder of Mr Togiai and the attempted murder of Mr Bchinnati.
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