Nguyen v Director of Public Prosecutions
[2014] VSC 633
•9 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 184
| DUC TRONG NGUYEN | Applicant |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Bongiorno JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 December 2014 |
DATE OF JUDGMENT: | 9 December 2014 |
CASE MAY BE CITED AS: | Nguyen v DPP |
MEDIUM NEUTRAL CITATION: | [2014] VSC 633 |
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CRIMINAL LAW – Bail – Exceptional circumstances – Bail Act 1997, ss 4(2)(aa)(i), 4(2)(d)(i)
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Coombes | Office of Public Prosecutions |
| For the Accused | Mr D Denton QC Mr A Denton | Lawler Magill |
HIS HONOUR:
Duc Trong Nguyen, the applicant, was arrested by police on 4 September 2014 in Sunshine and charged with a number of offences against the Drugs, Poisons and Controlled Substances Act 1981 and the offence of handling property suspected of being the proceeds of crime. He was remanded in custody.
Following some amendments to the charges preferred, on 19 September he sought bail in the Magistrates’ Court in respect of two charges: one charge of trafficking in cannabis in not less than a commercial quantity, contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 and one charge of handling property suspected of being the proceeds of crime. Bail was refused, the magistrate not being satisfied that the applicant qualified for bail as required by s 4(2)(aa)(i) of the Bail Act 1977; that is, the Court was not satisfied that exceptional circumstances existed to justify the grant of bail.
The factual circumstances surrounding the alleged commission of the trafficking offence are brief. At about 11.30pm on the relevant night, the applicant was intercepted by police in his Ford Ranger utility, travelling west on Mellor St, Sunshine, with 43.59kg of cannabis in the rear tray of the vehicle. In fact, he had also been observed by police on a number of occasions prior to that event, at least since July 2014, handling cannabis in large quantities at an address in Braybrook that was under surveillance.
The applicant now comes to this Court seeking bail. He relies upon a number of matters cogently argued by his counsel, Mr Denton QC. They are 15 in number and were conveniently set out in a document tendered on the hearing of the application. It was said to be in answer to the Crown’s submission that the applicant constitutes an unacceptable risk ‘under s 4(2)(d)(i) of the Bail Act’.
But that submission ignores the most significant point in this case: that is whether the applicant can establish that exceptional circumstances exist that justify the grant of bail: s 4(2)(aa)(i) of the Act. The document appeared to be directed to the second issue in the case: whether, in the event that exceptional circumstances are established by the applicant, bail should nevertheless be refused because the applicant posed an unacceptable risk of not answering his bail; committing an offence while on bail; endangering the safety and welfare of members of the public; or obstructing the course of justice: s 4(2)(d)(i) of the Act.
In oral argument, Mr Denton elided the two relevant matters, his argument being, in effect, that both of the relevant legislative provisions were satisfied by the same set of circumstances. There is no reason why such an argument cannot be put in this way, as long as the primary requirement that exceptional circumstances exist, where the onus is on the applicant, is not lost in the mass of factors that might go to the question of unacceptable risk, where the onus rests on the Crown.
On close examination, Mr Denton’s 15 matters may be condensed without losing any of their force to the following:
a)the applicant is of good character;
b)he would have stable accommodation if released on bail;
c)he has a job waiting for him in Queensland;
d)he is able to offer a substantial surety; and
e)he has been in custody for three months and there will be a lengthy delay before his trial takes place, perhaps up to 18 months from his arrest.
Of these, the last factor is probably the most significant, but the question remains: does delay, even with the other listed factors, all of which are commonplace, fulfil the requirement of exceptional circumstances?
Mr Denton referred to a number of bail cases where various circumstances have or have not been held, in the particular circumstances of each case, to be exceptional. They are not authorities or precedents binding this Court in any sense. The function of the Court is to apply the words of the statute, not to try to shoehorn the facts of the case being decided into a shoe that, whilst seemingly similar, is of a slightly different size. The cases do not establish principles; they apply the statutory criteria to the facts as found or conceded in each of them. I respectfully agree with Coldrey J, who, in DPP v Cozzi, said, ‘[a]n examination of the cases bearing upon this concept reveals a multitude of single and conflicting interpretations thrown up, no doubt, by the variety of fact situations with which Judges have been faced’.[1]
[1][2005] VSC 195.
In a different context, in the law of negligence, Windeyer J chided counsel for proffering cases decided on their facts as binding authorities:
I should add that we were referred by counsel to a number of decisions in other cases of road accidents. But decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application …[2]
[2]Teubner v Humble (1963) 108 CLR 491, 503.
That is not to say that a combination of facts and circumstances cannot make up exceptional circumstances, where any individual fact or circumstance might not. As Vincent J said in R v Moloney, quoted by Lasry J in Re Suzanne Patricia Kane:[3]
A number of decisions which have been handed down by judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.[4]
[3][2011] VSC 19.
[4](Unreported, Supreme Court of Victoria, Vincent J, 31 October 1990).
Mr Denton referred specifically to a number of cases: Re Suzanne Patricia Kane;[5] Re Joseph Marijancevic;[6] Re Quoc Danh Pham;[7] Re Michael Pickersgill;[8] Re Bakir;[9] and Woods v DPP.[10]
[5][2011] VSC 19.
[6][2010] VSC 122.
[7][2013] VSC 580.
[8][2013] VSC 715.
[9][2006] QCA 562.
[10][2014] VSC 1.
The most significant matter that distinguishes this case from others on the question of exceptional circumstances that would justify bail is the strength of the Crown case. Here, a commercial quantity of prohibited drugs was found clearly in the possession of the applicant. There is even evidence that he directed the police to the part of his vehicle where it would be found by saying, ‘there is weed in the back’, after the police had detected it by smell. It would be difficult to imagine a stronger Crown case on the principal offence in respect of which the applicant seeks bail. In none of the exceptional circumstances cases referred to by counsel was the Crown case anywhere near as strong as it seems to be here.
Whilst the possible delay in this matter is regrettable and the applicant is able to put forward a number of matters that might, in another case, have established exceptional circumstances, I am not satisfied that such circumstances exist here.
Having reached that conclusion, there is no need to consider whether, had exceptional circumstances existed, the Crown would have succeeded in establishing that the applicant posed an unacceptable risk as required by s 4(2)(d)(i) of the Act.
The application for bail is refused.
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