DPP v Tong - [2000] VSC 451

SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

PRACTICE COURT

No. 1475 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 against an order granting bail to Phuong Doan Tong

wherein

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA	Appellant
v
PHUONG DOAN TONG	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 Tong
MEDIUM NEUTRAL CITATION:	[2000] VSC 451

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Appeal, bail, respondent charged with trafficking in commercial quantity of heroin – whether open to 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 D. Gurvich	V.N. Lawyers

HIS HONOUR:

The proceeding before the court is an appeal by the Director of Public Prosecutions for the State of Victoria, pursuant to s. 18A of the Bail Act 1977, against an order of the Magistrates’ Court at Melbourne on 31 August 2000 granting the respondent bail in respect of nine charges of trafficking in heroin.

On 10 August 2000 the respondent and alleged co-offenders were arrested. The respondent was charged with nine counts of trafficking in a drug of dependence, heroin. The eighth charge against the respondent was that at Melbourne between 10 May 2000 and 10 August 2000, not being authorised by or licensed under the Drugs, Poisons and Controlled Substances Act she did traffic in a drug of dependence, namely heroin. The ninth charge laid against the respondent was that at Melbourne between 10 May 2000 and 10 August 2000, not being authorised by or licensed under the Drugs Poisons and Controlled Substances Act, she did traffic in a commercial quantity of a drug of dependence, namely heroin. On 10 August 2000 the respondent was remanded in custody.

In summary the prosecution case against the respondent is as follows:

1.It is alleged that on 10 May 2000 a Covert Operative purchased one ounce of heroin from one Dahdah. Evidence via surveillance and telephone interceptions allegedly identifies the respondent as supplying the heroin to Dahdah.
2.It is alleged that on 23 May 2000 a Covert Operative purchased one ounce of heroin from Dahdah. The evidence via surveillance and telephone interception allegedly identifies the respondent as supplying Dahdah with this heroin.
3.It is alleged that on 27 June 2000 a Covert Operative purchased one ounce of heroin from the respondent.
4.It is alleged that on 4 July 2000 a Covert Operative purchased two ounces of heroin from the respondent.
5.It is alleged that on 12 July 2000 a Covert Operative purchased one ounce of heroin from the respondent.
6.It is alleged that on 7 August 2000 a Covert Operative purchased four ounces of heroin from the respondent.
7.It is alleged that on 9 August 2000 a…

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 Tong

Details

AGLC: Director of Public Prosecutions v Tong [2000] VSC 451
Case: [2000] VSC 451
Decision Date: 1 November 2000

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Tong, the dispute involved the respondent who was charged with trafficking in a commercial quantity of heroin. The matter was heard in the Supreme Court of Victoria, which was tasked with reviewing a decision made by a lower court regarding the respondent's bail application. The primary issue before the court was whether the Magistrate had the authority to find "exceptional circumstances" under section 4(2)(aa) of the Bail Act 1977, and consequently deny bail to the respondent. This section of the Act provides that bail may be refused if it is considered that exceptional circumstances exist which justify the refusal of bail.

The court considered whether the term "exceptional circumstances" could be interpreted broadly or if it required specific criteria to be met. The respondent argued that the Magistrate had not correctly applied the law in denying bail, suggesting that the circumstances of the case did not meet the threshold for being deemed "exceptional". The prosecution contended that the Magistrate had correctly exercised their discretion in finding such circumstances existed. The court examined the legislative intent behind the term "exceptional circumstances" and how it should be applied in practice. It concluded that the term should be interpreted narrowly and that the Magistrate had correctly applied the law in finding that exceptional circumstances did exist, justifying the denial of bail.

Ultimately, the court upheld the decision of the Magistrate, affirming that the term "exceptional circumstances" should not be interpreted in a manner that would undermine the purpose of the Bail Act. The court found that the evidence presented in the case did indeed constitute exceptional circumstances, as the nature of the offence and the quantity of the drug involved warranted a denial of bail. The appeal was dismissed, and the respondent remained in custody pending the outcome of the trial. The court's decision reinforced the importance of interpreting bail legislation strictly and the need for clear guidelines in determining what constitutes "exceptional circumstances".

Orders