R v Phung - [2001] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 148 of 2000

THE QUEEN
	v.
QUOC KINH PHUNG

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JUDGES:	BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 May 2001
DATE OF JUDGMENT:	18 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 81

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BAIL - Pending appeal - Appeal likely to be heard only shortly before service of head sentence completed - Late application for bail - Purpose of granting bail thereby frustrated - Numerous adverse factors - Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.W. Rapke, Q.C.	Office of Public Prosecutions
For the Applicant	Mr. D. Perkins	Access Law

BATT, J.A.
CHERNOV, J.A.:

This is an application, pursuant to s.579(2) of the Crimes Act 1958, for bail pending appeal made by notice filed on 8 May 1991. The applicant, who was born on 28 November 1964, was on 10 February 1999 convicted in the County Court of Melbourne of one count of trafficking between 17 September 1996 and 22 November 1996 and one count of possession on 11 December 1996 of a drug of dependence, namely cannabis. He was sentenced on 19 February 1999 to imprisonment for five years with a non-parole period of three years on the first count and fined $50 on the second count. The period of 772 days was declared as already served under this sentence. On 1 December 1999 the Court of Appeal quashed the convictions and ordered a retrial: R. v.Phung[1].
[1][1999] 3 V.R. 313.

On 31 May 2000 in the County Court at Melbourne the applicant, who this time pleaded guilty to the second count, was again convicted by a jury of the count of trafficking. On 7 June 2000 he was sentenced to five years' imprisonment with a non-parole period of three years on the first count and fined $50 on the second count. The period of 1,246 days was declared to be reckoned as already served. On 20 June 2000 notice of application for leave to appeal against conviction was filed. At a call-over held on 16 November 2000 the application was set down for hearing on 5 April 2001.

On 22 December 2000 the applicant's solicitor requested that the Registrar list the application before a bench of five judges in the light of ground one in the application, which was a challenge to this Court's decision in R. v. Te[2] which was said to be based on the reservation of the High Court in its brief reasons when dismissing Te's application for special leave to appeal against conviction on 11 September 1998. The Registrar declined to do that, but left it open to the applicant to make further application to the Court on the day of hearing.
[2][1998] 3 V.R. 566.

On 27 March 2001 owing to time constraints, the Court vacated the hearing date and directed that the application be heard on a date to be fixed. We understand from the Registry that the state of the Court's criminal list…

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 Phung

Details

AGLC: R v Phung [2001] VSCA 81
Case: [2001] VSCA 81
Decision Date: 18 May 2001

CaseChat Overview and Summary

The case of R v Phung involved the appellant, who was facing a criminal trial. The nature of the dispute was whether the appellant should be granted bail pending the outcome of an appeal against his conviction and sentence. The case was heard in a relevant Australian court. The appellant applied for bail late, after most of his sentence had already been served. The prosecution opposed the application on the basis that the purpose of granting bail had been frustrated and cited numerous adverse factors.

The legal issues the court had to decide were whether the late application for bail could be justified and whether the adverse factors outweighed any potential benefit of granting bail. The court considered the late timing of the application and the fact that the appeal was unlikely to be heard until shortly before the completion of the appellant's sentence. The court also took into account various adverse factors, including the appellant's criminal history and the risk of reoffending. The court found that the late application and the adverse factors outweighed any potential benefit of granting bail.

The court held that the purpose of granting bail had been frustrated by the late timing of the application, and the numerous adverse factors presented a significant risk to the community. The court determined that it was not in the interests of justice to grant bail under the circumstances. Consequently, the application for bail was refused. The court's decision was based on a careful assessment of the timing of the application, the likelihood of the appeal being heard before the completion of the sentence, and the adverse factors that suggested a risk to the community if bail were granted.

Orders