| 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…
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