R v Draca - [2015] NSWSC 1150

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Draca [2015] NSWSC 1150
Hearing dates: 13 August 2015
Date of orders: 17 August 2015
Decision date: 17 August 2015
Jurisdiction: Common Law - Criminal
Before: RS Hulme AJ
Decision:
Bail granted

Catchwords: Bail application – show cause – unacceptable risk
Legislation Cited: Bail Act
Cases Cited: M v R [2015] NSWSC 138
DPP (NSW) v Tikomaimaleya [2015] NSWCA 83
Category: Principal judgment
Parties: Regina
Zoran Draca
Representation:
Counsel:
R Buttini Solicitor (Crown)
D McCallum (A)
Solicitors:
Director of Public Prosecutions
Justine Hall Lawyer

File Number(s): 2015/194297
Publication restriction: No

Judgment

Pursuant to application that appears to have been lodged on 19 June 2015 the above named Zoran Draca has applied for bail.
On 17 June last he was arrested and charged with:

(i) Between 28 January 2015 and 15 April 2015, cultivating a large commercial quantity of cannabis viz: 293 plants.
(ii) Between 9 and 15 April 2015 supplying a large commercial quantity of cannabis, viz: 284 kilograms

During February to April 2015 the police had had under observation premises at Lot 115 Jerrara Road, Narrawa. On 15 April, the police executed a search warrant at those premises locating 293 cannabis plants in a garage, approximately 54 kilograms of cannabis head in 7 large bags in a shed and approximately 230 kilograms of cannabis leaf and stems in a large dug out hole at the rear of the property. Other indicia of growing of cannabis were also found.
From the police summary of evidence which was presented on the application for bail, it appears that the police had intercepted a number of phone calls between the applicant and a co-accused, such phone calls including instructions to the applicant as to what pumps to buy and referring to problems occasioned by the water system. The summary also recorded that the applicant had been observed attending at the premises on two occasions and in circumstances which tend to indicate that he was, at least, knowingly concerned in what was occurring at the premises.
Other evidence put before me on the application indicates that the applicant is some 40 years of age, that he and his wife migrated to Australia in 1996, has two school age children, that the family has lived at their present (rented) address for some 4 years and that the applicant has no significant criminal record. Some but not all members of the applicant’s extended family live in the Wollongong area as he does although the applicant’s mother and sister still live in Croatia.
Other evidence indicates that the applicant has other community ties, that for the last 13 or 14 years, he has been self employed as a builder, that at the time of his arrest he had 6 full time employees and was engaged on 4 building project. Since his arrest, his wife and a friend have kept the business running. According to his affidavit, in the course of doing so, the friend has…

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 R v Draca

Details

AGLC: R v Draca [2015] NSWSC 1150
Case: [2015] NSWSC 1150
Decision Date: 17 August 2015

CaseChat Overview and Summary

The case of R v Draca involved the respondent, Draca, applying for bail in the Supreme Court of Victoria. The application was opposed by the prosecution, who argued that Draca presented an unacceptable risk to the community if released on bail. The nature of the dispute was centred around the determination of whether Draca's release on bail would pose an unacceptable risk to the community, thereby justifying continued detention.

The legal issues before the court encompassed the assessment of risk in bail applications and the threshold for determining whether a risk to the community is 'unacceptable'. The court was required to weigh the interests of justice, including the presumption of innocence and the right to liberty, against the potential risk to the community if the accused were released on bail. The court had to consider the evidence presented by both parties, including the nature of the offence, the circumstances of the case, and the risk factors associated with Draca’s release.

In delivering its judgment, the court held that the prosecution had demonstrated an unacceptable risk to the community if Draca were released on bail. The court found that the risk factors, including the seriousness of the charges and the potential for reoffending, were sufficiently compelling to outweigh the respondent's right to liberty. The court detailed the specific risks presented by Draca's release, which included the potential for further offending and the impact on the community. As a result, the application for bail was dismissed.

The final orders of the court were that Draca's bail application be dismissed and that he remain in custody until further order.

Orders