Re Application for bail by Deng - [2020] VSC 686

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0121

IN THE MATTER OF the Bail Act 1977

and

IN THE MATTER OF an Application for Bail by Emmanuel DENG

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2020
DATE OF ORDERS:	17 July 2020
DATE OF REASONS:	16 October 2020
CASE MAY BE CITED AS:	Re Application for bail by Deng
MEDIUM NEUTRAL CITATION:	[2020] VSC 686

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CRIMINAL LAW – Application for Bail – Whether exceptional circumstances exist – Applicant not an unacceptable risk – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Tovey	Galbally Parker Lawyers
For the Accused	Ms C Parkes	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

On 17 July 2020 I granted Emmanuel Deng’s (‘the applicant’) application for bail and said that I would publish my reasons. These are those reasons.

The application was first made returnable on 2 June 2020. The former solicitors for the applicant advised the Court that following instructions from the applicant’s half-brother, Mr Biel Gatluak, it was their intention to adjourn the application. They advised that Mr Gatluak was soon to relocate to Bairnsdale for work. The applicant’s solicitor requested an adjournment to confirm a new proposed bail address and organise youth support services. The matter was administratively adjourned to 26 June 2020. On 18 June 2020 the applicant’s new solicitors advised the court that a further adjournment was required to resolve some outstanding issues regarding the proposed accommodation for the applicant. The matter was further adjourned and proceeded on 17 July 2020.

The applicant is charged with affray, armed robbery, two counts of intentionally causing injury, theft of a motor vehicle, violent disorder and robbery (‘primary matter’). He is also being charged with contravening a Community Corrections Order (‘CCO’), having been on that order at the time of this offending (‘Dromart matter’).

Procedural History

All charges in the primary matter arise from events alleged to have occurred on 28 December 2019. The applicant was arrested and remanded on 8 January 2020, and charged the following day. He has been in custody since that date.

At the time of the alleged offending, he was subject to an 18-month CCO imposed in the Dandenong Magistrates’ Court on 8 November 2019 following conviction for violence, dishonesty and bail offences. As a result of the present allegations, he was charged on summons with contravening the CCO on 31 January 2020. On 21 May 2020, he was also remanded in relation to that matter.

The applicant has been refused bail on two occasions in the Melbourne Magistrates’ Court, namely 9 January 2020 and 7 April 2020. His first application was made in-person, however, he was legally represented at the further application. On both occasions, bail was refused on the basis that the applicant had failed to establish exceptional circumstances justifying his release on bail and, further, it was found that he was an unacceptable risk of the…

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 Re Application for bail by Deng

Details

AGLC: Re Application for bail by Deng [2020] VSC 686
Case: [2020] VSC 686
Decision Date: 16 October 2020

CaseChat Overview and Summary

Deng applied for bail in the Federal Circuit Court, contesting the refusal of bail by a magistrate. The matter involved allegations of serious criminal activity, including drug trafficking. The central legal issues revolved around whether exceptional circumstances existed that warranted bail despite the seriousness of the charges and whether the applicant posed an unacceptable risk to the community.

The court examined the nature and seriousness of the alleged offences, the applicant's criminal history, and the risk of reoffending. It also considered the applicant's ties to the community, including family and employment, as well as the potential impact of continued detention on the applicant and their family. The court found that, while the charges were serious, the applicant did not pose an unacceptable risk to the community, and exceptional circumstances did exist due to the significant personal and familial ties in Australia.

Ultimately, the court granted bail, recognising the applicant's strong ties to the community and the absence of an unacceptable risk. The decision emphasised the importance of considering the individual circumstances of each applicant, including their personal connections and the potential consequences of continued detention. The court also highlighted the need to balance the rights of the accused with the need to protect the community.

Orders