Ali El Nasher is charged with trying to murder Joseph Abouchaya by stomping on the man's head after he was shot three times at Kensington's Melbourne Pavilion on March 1 last year.

Victoria's Court of Appeal granted El Nasher bail on Thursday after finding the case for the attempted murder charge to be "non-existent".

"A jury could not legitimately conclude that the appellant had a specific intention to kill Abouchaya," three judges found.

They added CCTV footage of the incident was unclear and prosecutors also were unable to back up another charge of intentionally causing serious injury.

"It is not clear to us that any of the stomps actually connected with Abouchaya's head," the ruling said.

Prosecutors had alleged El Nasher stomped forcefully on the man's head two or three times as he lay injured.

A trial is not expected to be held until 2022 because of the legal backlog caused by the COVID-19 pandemic.

By that time, the judges said El Nasher would have spent about two-and-a-half years in custody and served all or most of any sentence he might receive for other lesser charges against him.

He was accused of going on the run after the shooting and turned himself in to police nearly five months later.

He previously applied for bail in Melbourne Magistrates Court, then the Supreme Court, but was knocked back before the Court of Appeal overturned the decision.

El Nasher has agreed to a $400,000 bail surety, has a curfew and must report to police twice a week.

He can't attend international points of departure, cannot leave Victoria without first asking for approval from the court and cannot contact any witnesses or co-accused.

Ben Togiai, 30, died in the shooting and El Nasher's older brother, Abdullah, is charged with his murder alongside Osamma Allouche.

A fourth man, Mikhael Myko, is also charged over the shooting.

El Nasher is due back in court on October 19 to determine whether he will stand trial.

Australian Associated Press