R v Ong - [2024] NSWSC 235

Supreme Court

New South Wales

Medium Neutral Citation: R v Ong [2024] NSWSC 235
Hearing dates: 08 March 2024
Date of orders: 13 March 2024
Decision date: 13 March 2024
Jurisdiction: Common Law
Before: Harrison CJ at CL
Decision:
Bail granted

Catchwords:
CRIME – bail – show cause – strength of the prosecution case for serious drug charges – first time offending – delay until trial – medical evidence demonstrating a more onerous experience in custody – cause shown
CRIME – bail – bail concerns – where Crown raises all bail concerns in s 17(2) Bail Act 2013 (NSW) – where bail conditions can adequately ameliorate bail concerns – bail granted

Legislation Cited:
Bail Act 2013 (NSW), s 17
Criminal Code 1995 (Cth), ss s 11.1(1) & 307.5(1)
Drug Misuse and Trafficking Act 1985 (NSW), s 10

Category: Principal judgment
Parties: Jimmy Ong (Applicant)
Crown (Respondent)
Representation:
Counsel:
E Ozen SC (Applicant)
Solicitors:
Krayem & Co Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2024/48296
Publication restriction: Nil

JUDGMENT

HIS HONOUR: Jimmy Ong applies for bail. He is charged that between 6 January 2024 and 31 January 2024 he possessed a prohibited drug, namely methamphetamine contrary to s 10 of the Drug Misuse and Trafficking Act 1985 and further that he attempted to possess a commercial quantity of an unlawfully imported border controlled drug contrary to s 11.1(1) and s 307.5(1) of the Criminal Code 1995. Mr Ong was arrested on 31 January 2024 and has remained in custody bail refused since then.
Mr Ong is 24 years of age. He has no criminal history, either of convictions or arrest, and has never previously been held in custody. By reason of the fact that one of his alleged offences carries a maximum penalty of life imprisonment, Mr Ong is required to show cause why his continued detention is not justified.
In support of the show cause requirement, Mr Ong points to his young age, his prior good character, as evidenced by the complete lack of any recorded interaction with police or Corrective Services and having regard to the fact that his trial has little or no prospect of coming on for hearing in the District Court before the second half of 2025. Mr Ozen of Senior Counsel, who appears for Mr Ong, also contends that the medical evidence suggesting that Mr Ong suffers from PTSD and depression means that his time in custody is likely to be more onerous than might otherwise be the case.
These factors must necessarily be balanced against the apparent strength of the Crown case. In short compass, Mr Ong was present at his home address when a coffee grinder, previously intercepted by police and found to contain 91kg of the drug, was being opened using an angle grinder in the presence of Mr Ong and his co-accused. The drugs had been removed by the police before this occurred and 286 blocks of an inert substance substituted for them. A listening device…

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 Ong

Details

AGLC: R v Ong [2024] NSWSC 235
Case: [2024] NSWSC 235
Decision Date: 13 March 2024

CaseChat Overview and Summary

In the case of R v Ong, the defendant was before the court on charges of serious drug offences. The primary issue was whether the defendant was entitled to bail, considering the strength of the prosecution's case, the defendant's history of offending, and the potential impact of a delay in the trial on the defendant. The court was required to weigh these factors against the risk of the defendant failing to appear at trial or interfering with the investigation or prosecution. The defendant, who had no prior criminal history, argued for bail on the basis that the prosecution's case was not compelling, and that any delay until trial would significantly impact his mental health and employment, as evidenced by medical reports.

The court considered the arguments presented by both parties, focusing particularly on the nature and seriousness of the charges, the defendant's background, and the medical evidence provided. It was noted that the defendant had a stable employment history and was unlikely to abscond if released on bail. The Crown argued that the seriousness of the charges warranted a presumption against bail, but the defendant's legal representation countered that the evidence did not justify such a presumption. The court also examined the defendant's history of offending, which was minimal, and the potential for a delay to impact his mental health, as evidenced by the medical reports.

Upon thorough consideration, the court found that the prosecution's case, while serious, did not necessarily preclude the possibility of bail. The defendant's lack of a criminal history and the potential adverse effects of a delay in custody on his mental health were significant factors in favour of granting bail. The court determined that appropriate bail conditions could adequately address the Crown's concerns, including any risk of the defendant interfering with the investigation or prosecution. Therefore, the court granted bail, subject to specific conditions designed to mitigate the risk to the community and ensure the defendant's appearance at trial.

Orders