Obian v DPP - [2016] VSC 607

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0139

IN THE MATTER OF the Bail Act 1977

and

IN THE MATTER OF an application for bail by SAER OBIAN

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2016
DATE OF RULING:	6 October 2016
CASE MAY BE CITED AS:	Application for Bail - Obian
MEDIUM NEUTRAL CITATION:	[2016] VSC 607

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BAIL – Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71 and 71AA - Drug offences in large commercial quantity – Exceptional circumstances – Principles – Strength of prosecution case – Delay – Other considerations.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Dunn QC	Peter Monagle Lawyers
For the Respondent	Mr. M Regan	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by Saer Obian. He is charged as follows:

1. 14 June 2016 Traffick in a drug of dependence – large commercial quantity (Ecstasy) – at Brunswick East

2. 14 June 2016 Traffick in a drug of dependence – large commercial quantity (Methylamphetamine) - at Brunswick East

3. 14 June 2016 Traffick in a drug of dependence – commercial quantity (1,4 - Butanediol) at Brunswick East

4. 14 June 2016 Traffick in a drug of dependence –commercial quantity (1,4 - Butanediol) at West Footscray

5. 14 June 2016 Traffick in a drug of dependence –commercial quantity (1,4 - Butanediol) at Flemington

6. 14 June 2016 Possession of precursor chemicals – at Brunswick East

7. 14 June 2016 Traffick in a drug of dependence (Cannabis) – at Brunswick East

The applicant is alleged to be one of the significant offenders. Most of the nine accused charged have been admitted to bail with substantial sureties and reporting conditions. The applicant and one other have so far not been granted bail. The committal mention for this matter is listed in Magistrates Court for 30 November 2016. The committal hearing itself has been fixed to commence on 18 April 2017.

Section 4(2) of the Bail Act 1977 provides that in the case of a person charged under sections 71, & 71AA, 72 or 72A of the Drugs Poisons and Controlled Substances Act 1981 (“the DPCS Act”) as the applicant is in charges 1-5, a Court shall refuse bail unless it is satisfied that exceptional circumstances exist which justify the grant of bail.

Thus, the applicant is required to establish exceptional circumstances as a consequence of the charges he is alleged to have committed namely, offences under sections 71 and 71AA of the DPCS Act. Establishing exceptional circumstances is a high test but as the authorities establish not so high that it is impossible for an accused person presently in custody to achieve, or virtually ever achieve, bail.[1]
[1]Whiteside VSC 413 (Unreported, Warren J, 1999)

These charges arise following a significant police investigation which resulted in nine people including the applicant being charged with drug offences.

According to the informant’s resume of the evidence, 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 Obian v DPP

Details

AGLC: Obian v DPP [2016] VSC 607
Case: [2016] VSC 607
Decision Date: 6 October 2016

CaseChat Overview and Summary

Obian was before the County Court of Victoria on an application for bail under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Obian was charged with drug offences in a large commercial quantity. The application for bail was opposed by the Director of Public Prosecutions. The primary issue before the court was whether the circumstances of the case were exceptional enough to warrant the granting of bail to Obian. This involved assessing the strength of the prosecution's case, the delay in bringing the case to trial, and any other relevant considerations.

The court considered the nature and seriousness of the charges, the strength of the evidence against Obian, and the potential impact on the community if bail were granted. The court also took into account the length of time that had elapsed since the alleged offences, and whether there were any exceptional circumstances that would justify granting bail. Ultimately, the court found that the prosecution had established a strong case against Obian, and that there were no exceptional circumstances that would warrant the granting of bail. The court was also concerned about the potential risk to the community if Obian were released on bail.

Given the seriousness of the charges and the strength of the prosecution's case, the court refused bail. The court emphasised that the decision was not based on any prejudice against Obian, but rather on the need to balance the rights of the accused with the need to protect the community. The court also noted that the delay in bringing the case to trial was not sufficient to warrant the granting of bail. Any appeal against the decision would need to be based on new evidence or a change in circumstances.

Orders