DPP v Nguyen - [2000] VSC 452

SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

PRACTICE COURT

No. 1508 of 2000

IN THE MATTER OF s. 18A of the Bail Act 1977

and

IN THE MATTER OF an appeal by the Director of Public Prosecutions for the State of Victoria on behalf of Her Majesty the Queen against an order granting bail to Hung Tanh Nguyen wherein

THE DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v.
HUNG TANH NGUYEN	Respondent

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2000
DATE OF JUDGMENT:	1 November 2000
CASE MAY BE CITED AS:	Director of Public Prosecutions v Nguyen
MEDIUM NEUTRAL CITATION:	[2000] VSC 452

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Appeal, bail, respondent charged with trafficking in commercial quantity of heroin – whether it is open to the Magistrate to find “exceptional circumstances” under s. 4(2) (aa) of the Bail Act 1977.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Dickson QC	Director of Public Prosecutions
For the Defendant	Mr P. Morrisey	Simon English

HIS HONOUR:

The proceeding before the court is an appeal brought by the Director of Public Prosecutions, pursuant to s. 18A of the Bail Act 1977 against an order made by the Magistrates’ Court at Melbourne on 5 September 2000 granting bail to the respondent in circumstances where the respondent was charged with trafficking in and possessing heroin.

On 10 August 2000 the respondent was arrested, interviewed and charged on a number of counts of trafficking in and possessing heroin.

The respondent was charged with the following offences:

1.That at Kingsville on 4 July 2000, not being authorised by or licensed under the Drugs Poisons and Controlled Substances Act or regulations, he did traffic in heroin.
2.That at Kingsville on 12 July 2000 he did traffic in heroin.
3.That at Kingsville on 7 August 2000 he did traffic in heroin.
4.That at Kingsville on 10 August 2000 he did traffic in heroin.
5.That at Kingsville on 10 August 2000 he did possess heroin.
6.That on 10 August 2000 he did traffic in heroin.
7.That at Brunswick on 10 August 2000 he did possess heroin.
8.That at Melbourne between 4 July 2000 and 10 August 2000 he did traffic in a commercial quantity of heroin.
9.That at Melbourne between 4 July 2000 and 10 August 2000 he did traffic in heroin.

In the summary the Crown case against the respondent is that in the course of investigations carried out into the drug trafficking activities of Phuong Doan Tong it is alleged that Nguyen supplied heroin to Tong on a number of occasions. It is alleged that on 4 July 2000 the respondent was identified through a telephone intercept as being the supplier of two ounces of heroin to Tong. It is alleged that on 12 July 2000 the respondent was identified through a telephone intercept as being the supplier of one ounce of heroin to Tong. It is alleged that on 7 August 2000 the respondent was identified through a telephone intercept and surveillance as being the…

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 DPP v Nguyen

Details

AGLC: Director of Public Prosecutions v Nguyen [2000] VSC 452
Case: [2000] VSC 452
Decision Date: 1 November 2000

CaseChat Overview and Summary

The case before the court involved the Director of Public Prosecutions (DPP) appealing a decision by a Magistrate to grant bail to a respondent named Nguyen, who was charged with trafficking in a commercial quantity of heroin. The appeal was focused on whether the Magistrate was correct in finding "exceptional circumstances" under section 4(2)(aa) of the Bail Act 1977, which would justify bail despite the serious nature of the offence.

The central legal issue before the court was whether the Magistrate had the authority to find exceptional circumstances that would permit bail for Nguyen. This required the court to consider the specific provisions of the Bail Act and the appropriate circumstances under which bail could be granted in cases of serious drug trafficking. The court was tasked with interpreting the statutory language and determining if the Magistrate's decision aligned with the legislative intent and relevant case law.

The court found that the Magistrate's decision to grant bail was not supported by the evidence and did not align with the legal principles governing bail in such serious cases. The court held that the concept of "exceptional circumstances" must be narrowly interpreted, and that Nguyen's case did not meet the threshold for such a finding. As a result, the appeal was upheld, and the bail granted to Nguyen was quashed. The court's decision underscored the importance of strict adherence to the statutory criteria when considering bail for individuals charged with serious drug trafficking offences.

Orders