Pak v The Queen - [2009] VSC 458

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1427 of 2008

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by MAKSUT PAK

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 & 10 September 2009
DATE OF RULING:	10 September 2009
CASE MAY BE CITED AS:	Pak v R
MEDIUM NEUTRAL CITATION:	[2009] VSC 458

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CRIMINAL LAW – Application for bail – Conspiracy to traffic a commercial quantity of ecstasy (MDMA) – further application – right to bail – lengthy delay – unacceptable risk – to be balanced by delay – bail granted

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D. Dann	C. Marshall & Associates
For the Respondent	Ms S. Stalianou	Office of Public Prosecutions

HIS HONOUR:

Muksat Pak first made application for bail before me on 25 March 2009. That followed an unsuccessful application he had made to Harper J on 27 November 2008. Without deciding the question of exceptional circumstances, on that occasion his Honour refused bail because the applicant was an unacceptable risk.

At the hearing on 25 March, I was prepared to find the existence of exceptional circumstances and the matter was actually conceded by the Crown. But I also concluded that the applicant was an unacceptable risk of committing further offences whilst on bail.

By application dated 25 August 2009, the applicant makes further application for bail. The application is supported by an affidavit of his solicitor, Cameron Marshall, sworn on 25 August 2009. The application is opposed by the Crown. An affidavit by Mr Rooney submits further material to me and refers to material provided on an earlier occasion.

It is a condition precedent to this application that new facts and circumstances be shown. The matter was not argued before me and I did not raise it. When I refused bail on 18 May 2009, it was anticipated that telephone intercept material would be served by about 15 June 2009, and that is, within four weeks. It is asserted that it was not served until 10 July 2009.

A committal mention listed for 25 June had been adjourned until 29 July 2009 and on 29 July the committal was adjourned from 15 September 2009 until 14 December 2009.

It is asserted that the committal was adjourned for two reasons, firstly because Ms Miriam Mustafa, the co-accused, has not yet been dealt with, and secondly, because of the late service of the telephone intercept material. It is by no means clear to me that the service of the material on 10 July ought, of itself, to have caused an adjournment of the committal. The resolution of the position of the co-accused is however, quite another matter.

I find, in all the circumstances, that the adjournment, taken together with the failure of the position of the co-accused to be determined, constitutes new facts and circumstances sufficient to enliven this application.

The applicant is on bail for…

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 Pak v The Queen

Details

AGLC: Pak v The Queen [2009] VSC 458
Case: [2009] VSC 458
Decision Date: 10 September 2009

CaseChat Overview and Summary

The applicant, Pak, was charged with conspiracy to traffic a commercial quantity of ecstasy (MDMA). He applied for bail following a previous bail application that was denied. The case was heard in the court of appeal. The legal issues before the court were whether the applicant's right to bail should be exercised in light of the lengthy delay in the case and whether the risk of unacceptable consequences to the community should be balanced against the delay in the proceedings. The court examined the factors relevant to the applicant's right to bail, including the seriousness of the offence, the evidence against the applicant, and the risk of flight or interference with witnesses. The court also considered the impact of the delay on the applicant's right to a fair and timely trial. After weighing the relevant factors, the court found that the applicant's right to bail should be exercised, and the unacceptable risk to the community should be balanced against the delay in the proceedings. The court granted bail to the applicant, subject to strict conditions to ensure the safety of the community and the integrity of the trial. The court emphasised that the grant of bail was not a reflection on the merits of the case or the strength of the evidence against the applicant. The court also noted that the delay in the proceedings was not entirely within the control of the applicant or the prosecution, and that the applicant had shown a willingness to cooperate with the authorities and to abide by the conditions of bail. The court ordered that the applicant be released on bail, subject to strict conditions, pending the resolution of the criminal proceedings against him. The court also ordered that the case be listed for further hearing as soon as possible to minimise any further delay.

Orders