NGUYEN -v- STOYKOVSIC [2003] WASC 189

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 189
Published:	03/10/2003
Case No:	MCS:36/2003	Heard:	9 SEPTEMBER 2003
Coram:	JOHNSON J	Delivered:	9/09/03
No of pages:	6	Judgment Part:	1 of 1
Result:	Bail refused
Category:	B
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Parties:	HOA VAN NGUYEN VICTOR STOYKOVSIC
Catchwords:	Criminal law Bail Commonwealth offence Application for bail pending trial Whether serious offence Whether exceptional circumstances justify bail
Legislation:	Migration Act (Cth), s 232A
Case References:	Alexopolous v The Queen, unreported; SCt of Vic (Hampel J); 23 February 1998 Commonwealth Director of Public Prosecutions v McLellan [2001] WASC 366 Ilam v Dando [1999] WASCA 129 Pinkstone v The Queen [2000] WASC 321 WCVB v The Queen (1989) 1 WAR 279 R v Clarke II (2001) 118 A Crim R 585

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NGUYEN -v- STOYKOVSIC [2003] WASC 189 CORAM : JOHNSON J HEARD : 9 SEPTEMBER 2003 DELIVERED : 9 SEPTEMBER 2003

PUBLISHED : 3 OCTOBER 2003 FILE NO/S : MCS 36 of 2003 BETWEEN : HOA VAN NGUYEN

Applicant

AND

VICTOR STOYKOVSIC

Respondent

Catchwords:

Criminal law - Bail - Commonwealth offence - Application for bail pending trial - Whether serious offence - Whether exceptional circumstances justify bail

Legislation:

Migration Act (Cth), s 232A

Result:

Bail refused

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Ms C E Brookes

Respondent : Mr D W L Renton

Solicitors:

Applicant : Laurie Levy & Associates

Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Alexopolous v The Queen, unreported; SCt of Vic (Hampel J); 23 February 1998
Commonwealth Director of Public Prosecutions v McLellan [2001] WASC 366
Ilam v Dando [1999] WASCA 129
Pinkstone v The Queen [2000] WASC 321
WCVB v The Queen (1989) 1 WAR 279

Case(s) also cited:

R v Clarke II (2001) 118 A Crim R 585

(Page 3)

1 JOHNSON J: The applicant seeks release on bail pending the hearing of a charge under s 232A of the Migration Act 1958, of organising the bringing to Australia of a group of five or more people. The allegation against the applicant is that he organised the bringing in to Australia by unlawful means 53 people who are said to be his relatives. The applicant was arrested and charged at Port Hedland on 3 July 2003.

2 In support of the application for bail the applicant relies upon affidavits sworn by his solicitor, Caroline Elizabeth Brookes, on 2 and 8 September 2003. In opposing the application, the respondent relies on the affidavit of Gregg Harold Mumme, sworn on 8 September 2003.

3 In dealing with an application for bail, the Court is called upon to balance the interests of the accused and the public interest in the trial proceedings. The Court must weigh up the presumption of innocence of an accused person against the need to ensure that the accused will present at the hearing of the charges and that the integrity of…

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 Nguyen v STOYKOVSIC

Details

AGLC: Nguyen v STOYKOVSIC [2003] WASC 189
Case: [2003] WASC 189
Decision Date

CaseChat Overview and Summary

The case of Nguyen v Stoykovskci [2003] WASC 189 involves the applicant, Hoa Van Nguyen, who is seeking bail pending trial on a charge of organising the unlawful entry of 53 people into Australia, an offence under section 232A of the Migration Act 1958 (Cth). The respondent, Victor Stoykovskci, opposes the application on behalf of the Commonwealth Director of Public Prosecutions. The Supreme Court of Western Australia, presided over by Johnson J, was tasked with determining whether exceptional circumstances existed to justify the granting of bail to the applicant.

The central legal issues revolved around the classification of the offence as extremely serious and the applicant's potential flight risk, alongside concerns regarding the integrity of the trial process. The court had to weigh these considerations against the presumption of innocence and the public interest in ensuring the accused would appear for trial. The applicant argued that he was not a flight risk, had no prior convictions, and had demonstrated an intention to return to Australia. Conversely, the respondent highlighted the mandatory minimum sentence, the strength of the prosecution case, and the applicant's political affiliations as factors suggesting a high flight risk and potential interference with the trial process.

Johnson J found that the offence under section 232A was indeed extremely serious, given its impact on national security and the mandatory minimum sentencing provisions. The court concluded that the applicant had not demonstrated any exceptional circumstances that would warrant the granting of bail. Furthermore, the applicant's history, including his political background and potential for reoffending, compounded the risk of flight and interference with the trial process. Consequently, Johnson J refused the bail application, considering the applicant a flight risk and a potential threat to the trial's integrity.

The final orders of the court were to dismiss the application for bail and remand the applicant in custody pending the trial.

Orders