Re Application for Bail by DK - [2021] VSC 596

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0233

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by DARREN K	Applicant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2021
DATE OF JUDGMENT:	17 September 2021
CASE MAY BE CITED AS:	Re Application for Bail by DK
MEDIUM NEUTRAL CITATION:	[2021] VSC 596

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CRIMINAL LAW – Bail – Applicant charged with trafficking cocaine and other offences –Compelling reason exists justifying a grant of bail – No unacceptable risk – Only matter in dispute is amount of surety – Bail granted – Bail Act 1977, ss 1B, 3AAA, 4AA, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Farrington	Sarah Pratt and Associates
For the Respondent	Ms R Harper	Office of Public Prosecutions

HER HONOUR:

Introduction

The applicant (‘Darren K’) is 35 years old and has been on remand since 27 August 2021. That day, Darren K was arrested and charged by the Informant, Constable Guy Mottershead, with the following charges (‘the Mottershead charges’):

(a) Charge 1: Traffick a drug of dependence, namely cocaine, contrary to s 71AC of the Drugs Poisons and Controlled Substances Act (‘DPCS Act’) on 27 August 2021;

(b) Charge 2: Possess a drug of dependence, namely cocaine, contrary to s 73 of the DPCS Act on 27 August 2021;

(c) Charge 3: Traffick a drug of dependence, namely methylamphetamine, contrary to s 71AC of the DPCS Act on 27 August 2021;

(d) Charge 4: Possess a drug of dependence, namely methylamphetamine, contrary to s 73 of the DPCS Act on 27 August 2021;

(e) Charge 5: Possess a drug of dependence, namely Sildenafil (Viagra),[1] contrary to s 73 of the DPCS Act on 27 August 2021;
[1]It appears to the Court that Sildenafil is a Schedule 4 Poison within the meaning of ‘poison or controlled substance’ at s 4 of the DPCS Act (being that is listed in schedule 4 of the Commonwealth Poison Standard), rather than a drug of dependence. Sildenafil does not appear in Schedule 11 of the DPCS Act.

(f) Charge 6: Negligently deal with proceeds of crime, namely $500,000, contrary to s 194(4) of the Crimes Act 1958 (‘Crimes Act’) on 27 August 2021;

(g) Charge 7: Deal with suspected proceeds of crime, namely $500,000, contrary to s 195 of the Crimes Act on 27 August 2021;

(h) Charge 8: Possess a drug of dependence, namely Ecstasy, contrary to s 73 of the DPCS Act on 27 August 2021; and

(i) Charge 9: Possess cartridge ammunition whilst not holding a license, contrary to s 124(1) of the Firearms Act 1996.

This is Darren K’s first time in custody. He has no prior convictions nor any prior bail history. He has no other outstanding matters and there are no co-accused.

He was refused bail in the Melbourne Magistrates’ Court on 28 August 2021 on the basis he had failed to…

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 DK

Details

AGLC: Re Application for Bail by DK [2021] VSC 596
Case: [2021] VSC 596
Decision Date: 17 September 2021

CaseChat Overview and Summary

The applicant, DK, applied for bail before the court, facing charges related to trafficking cocaine and other criminal activities. The prosecution objected to the grant of bail, citing the seriousness of the charges and potential risk to the community. The matter was heard in the relevant court, which had to decide on the balance between the applicant's right to liberty and the need to protect the community from harm.

The primary legal issue before the court was whether a compelling reason existed to grant bail, considering the gravity of the charges against the applicant. The court had to assess if there was an unacceptable risk of reoffending, flight, or interference with witnesses. It was also necessary to determine if the applicant could be adequately supervised and if there were any mitigating factors that could justify bail. The court applied the provisions of the Bail Act 1977, focusing on sections 1B, 3AAA, 4AA, and 4E, which outline the criteria for granting bail.

After careful consideration, the court found that a compelling reason existed to grant bail. The applicant had a strong community connection and a history of law-abiding behaviour, which reduced the risk of reoffending. The court concluded that there was no unacceptable risk to the community or witnesses, and that the applicant could be adequately supervised through strict bail conditions. The only matter in dispute was the amount of surety required. Ultimately, the court granted bail, setting a suitable surety amount and imposing strict bail conditions to ensure the applicant's compliance.

The court's final orders included granting bail to the applicant, DK, subject to strict bail conditions, and setting a specific surety amount. The applicant was required to adhere to these conditions until the conclusion of the proceedings.

Orders