Application for Bail - Mark Handler - [2013] VSC 166

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SCR 0033 of 2013

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by Mark Anthony Handler

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2013
DATE OF JUDGMENT:	12 April 2013
CASE MAY BE CITED AS:	Application for Bail - Mark Handler
MEDIUM NEUTRAL CITATION:	[2013] VSC 166

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CRIMINAL LAW – Bail – “Show cause” situation – Drug offences alleged – Bail Act 1977 (Vic) s 4(4).

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APPEARANCES:

Counsel

Solicitors

For the Applicant

Mr J Jassar

Malkoun & Co Lawyers

For the Prosecution

Mr J Livitsanos

Craig Hyland

Solicitor for Public Prosecutions

HIS HONOUR:

The applicant was arrested and interviewed on 21 March 2012. On the following day, he was charged with two counts of trafficking amphetamines, one count of possessing materials for the purpose of trafficking, three counts of possessing precursor chemicals (methamphet hydrochloride; mercuric chloride; and mercury); and one count of possessing amphetamine. He was released on bail in his own undertaking, with the standard conditions, including that he report on specified days to Fitzroy Police Station.

The applicant was subsequently arrested, again, on 2 December 2012, and interviewed. He has been charged with one count of trafficking methamphetamine in a commercial quantity. On the hearing of this application, I was informed that that charge will not be proceeded with and that it will be replaced with one charge of trafficking methamphetamine. He has also been charged with trafficking phenyl-2-propanone, one count of attempting to traffick methylamphetamine, one count of possessing materials for the purpose of trafficking, four counts of possessing precursor chemicals (potassium iodide; nitro methane; iodine; and phenylalanine); and one count of possessing DOD (phenyl-2-propanone). The applicant has been remanded in custody since 2 December 2012.

On 7 March 2013 the applicant unsuccessfully applied for bail at the Magistrates’ Court at Melbourne. The magistrate refused bail on the basis that the applicant was an unacceptable risk of committing an offence while on bail.

The next hearing date in respect of the first set of charges is a committal hearing on 23 April next at the Magistrates’ Court at Melbourne. A committal mention hearing was held on 8 April at the Magistrates’ Court at Melbourne in relation to the second group of charges.

The applicant now applies for bail. As he has been charged with an indictable offence which is alleged to have been committed while he was at large awaiting trial for another indictable offence, and as he has been charged with prescribed offences of trafficking under the Drugs, Poisons and Controlled Substances Act 1981, he is required to show cause, pursuant to s 4(4) of the Bail Act 1977, why his detention in custody is not justified.

Both groups of offences are alleged to have been committed by the accused at premises at 139 Cromwell Street, Collingwood. At the time of the first charges,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application for Bail - Mark Handler

Details

AGLC: Application for Bail - Mark Handler [2013] VSC 166
Case: [2013] VSC 166
Decision Date: 12 April 2013

CaseChat Overview and Summary

In the County Court of Victoria, the defendant, Mark Handler, applied for bail in relation to charges of drug-related offences. The prosecution opposed the bail application on the basis that the defendant was alleged to have been involved in the supply of a significant quantity of illicit drugs. The court was required to determine whether the defendant met the criteria for bail under the Bail Act 1977 (Vic) and whether there were exceptional circumstances that warranted denying bail.

The primary legal issue before the court was whether the application met the statutory criteria for bail under the Bail Act. The court considered whether there were substantial reasons for granting bail, including the need to avoid unnecessary detention, the need to protect the interests of the community, and the need to ensure that the defendant would appear in court when required. The court also assessed whether there were exceptional circumstances that would warrant the denial of bail, such as the seriousness of the offence or the risk of flight.

The court found that the defendant's alleged involvement in the supply of a significant quantity of illicit drugs constituted exceptional circumstances warranting the denial of bail. The court was concerned about the potential risk to the community if the defendant were released on bail, given the seriousness of the alleged offences. The court also found that the defendant's history of non-compliance with court orders and previous convictions for drug-related offences demonstrated a pattern of behaviour that suggested he was unlikely to comply with bail conditions. The court concluded that the risk of reoffending and the risk to the community outweighed any arguments for granting bail.

The court denied the defendant's application for bail and ordered that he remain in custody pending the outcome of the criminal proceedings. The court emphasised the seriousness of the alleged offences and the need to protect the community from the potential harm that could result from the defendant's release on bail. The court also noted that the defendant had the right to apply for bail again in the future if his circumstances changed.

Orders