Hang Cao v DPP - [2015] VSC 198

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0042

IN THE MATTER of an application for bail under the Bail Act 1997
HANG CAO	Applicant
v
THE DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 13, 14 May 2015
DATE OF RULING:	19 May 2015
CASE MAY BE CITED AS:	Bail application by Hang Cao
MEDIUM NEUTRAL CITATION:	[2015] VSC 198

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CRIMINAL LAW – Bail – Multiple charges, including cultivating a commercial quantity of cannabis – Exceptional circumstances – Nature and strength of crown case – Delay – Welfare of applicant’s young son – Risks of flight and re-offending not unacceptable – Bail granted on conditions

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC Mr M Fitzgerald	The Office of David Grace QC
For the Respondent	Mr Y Hardjadibrata	Acting Solicitor for Public Prosecutions

HER HONOUR:

The applicant is one of five co-accused, charged as part of a police investigation into the cultivation of cannabis in 2014. She has been in custody since her arrest on 26 February 2015.

The applicant is charged with various cultivation charges, thefts of electricity, possession of a prohibited weapon, and dealing with proceeds of crime. As those charges include cultivating a commercial quantity of cannabis, the applicant needs to establish the existence of “exceptional circumstances” before bail can be granted.

On 20 March 2015, the applicant applied for bail in the Magistrates’ Court. On 25 March 2015, Magistrate Rozencwajg refused bail, on the ground that she had not demonstrated exceptional circumstances. His Honour did not make any finding on the issue of unacceptable risk.

By notice filed in this court on 22 April 2015, the applicant seeks bail.

The applicant argues that exceptional circumstances are shown because of the following matters:

(a) The nature of the prosecution case, and her alleged role in the offending;

(b) The likely delay before trial;

(c) The effect on herself and her young son of separation for such a period of time;

(d) Her substantial ties to Victoria;

(e) The provision of a substantial surety;

(f) Her young age and vulnerability within the prison system;

(g) Her lack of prior convictions or bail history; and

(h) Her preparedness to abide strict bail conditions.

The DPP disputes that exceptional circumstances have been shown. The DPP also opposes bail on the basis that the applicant presents an unacceptable risk of fleeing the jurisdiction, and committing further offences, while on bail.

Exceptional circumstances

The Bail Act 1977 does not specify what considerations may be relevant to establishing exceptional circumstances. It has often been said that there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant, before those circumstances can be characterised as exceptional. But, although the hurdle is a high one, it “should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually…

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 Hang Cao v DPP

Details

AGLC: Hang Cao v DPP [2015] VSC 198
Case: [2015] VSC 198
Decision Date: 19 May 2015

CaseChat Overview and Summary

In Hang Cao v DPP, the respondent, Hang Cao, applied for bail in the Supreme Court of Victoria, which was opposed by the Director of Public Prosecutions. Mr Cao faced multiple charges, including cultivating a commercial quantity of cannabis. The central issue before the court was whether Mr Cao was eligible for bail under the exceptional circumstances provision of the Sentencing Act 1991 (Vic). The court had to weigh the nature and strength of the Crown's case against Mr Cao, the delay in proceedings, and the welfare of Mr Cao's young son against the risks of flight and re-offending. The court acknowledged that the risk of re-offending was significant due to the nature of the charges, but it also recognised the exceptional circumstances presented by the welfare of Mr Cao's young son and the undue delay in the proceedings.

The court determined that the exceptional circumstances provision was applicable in this case. It found that the strength of the Crown's case was not insurmountable and that the welfare of Mr Cao's young son constituted a compelling reason to grant bail. The court also noted that the risk of flight was not as unacceptable as might be expected in other cases, given Mr Cao's family ties in Victoria. Consequently, the court concluded that bail could be granted on conditions that would adequately address the risks of flight and re-offending. These conditions included strict reporting requirements, electronic monitoring, and a curfew.

Ultimately, the court granted bail to Mr Cao on the specified conditions, recognising the balance between the rights of the accused and the interests of justice. The court emphasised that the exceptional circumstances provision was intended to ensure that justice is served in individual cases, and in this instance, it was appropriate to grant bail considering the unique factors at play. The final orders of the court included granting bail to Mr Cao subject to the outlined conditions, which were designed to mitigate the risks while allowing Mr Cao to care for his young son during the pendency of the proceedings.

Orders