Re Application for Bail by Moshey Youkhana - [2017] VSC 406

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2017 0108

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for Bail by MOSHEY YOUKHANA

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JUDGE:	Weinberg AP
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2017
DATE OF JUDGMENT:	13 July 2017
CASE MAY BE CITED AS:	Re Application for Bail by Moshey Youkhana
MEDIUM NEUTRAL CITATION:	[2017] VSC 406

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CRIMINAL LAW – Application for bail – Attempting to import commercial quantity of cocaine and other offences – Applicant in ‘show cause situation’, having been charged with indictable offence while on bail – Whether ‘unacceptable risk’ of failing to answer bail and of committing further offences while on bail and of endangering safety and welfare of members of public – Applicant said to be ‘key organiser’ of drug syndicate – Failure of applicant to discharge onus of demonstrating not ‘unacceptable risk’ – Bail refused – Bail Act 1977 ss 4(2)(d) and 4(4)(a) – Criminal Code Act 1995 (Cth) ss 11.1 and 307.1.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Maidment SC	Sarah Tricarico Lawyers Pty Ltd
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

HIS HONOUR:

The applicant, Moshey Youkhana, now aged 47, was arrested and charged on 18 January 2017 with having, between 28 September 2016 and 8 December 2016, attempted to import a commercial quantity of cocaine, contrary to ss 11.1 and 307.1 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’).

In March 2017, following the execution of various search warrants, a number of further charges were laid:

Charge

Act

2

Possessing proceeds of crime (less than $100,000),

Criminal Code s 400.9(1A)

3

Possessing a controlled drug

Criminal Code s 308.1(1)

4

Possessing a drug of dependence

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

5

Possessing a drug of dependence

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

6

Possessing a drug of dependence

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

7

Possessing a drug of dependence

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

8

Possessing a drug of dependence

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

The applicant now seeks bail. He is required to ‘show cause’, pursuant to s 4(4)(a) of the Bail Act 1977, as to why his detention in custody is not justified. That is because he allegedly committed these offences while he was at large, awaiting trial for another indictable offence or offences. It is common ground that that means that the onus rests upon him both to show cause, and to satisfy the Court that he is not an unacceptable risk of failing to surrender himself into custody in answer to his custody, of committing an offence whilst on bail, and endangering the safety or welfare of members of the public.[1]
[1]See s 4(2)(d) of the Bail Act. Note it is not suggested that the applicant is an unacceptable risk of interfering…

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.

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Details

Case: [2017] VSC 406
Decision Date: 13 July 2017

CaseChat Overview and Summary

The case involves an application for bail by Moshey Youkhana, who is charged with attempting to import a commercial quantity of cocaine and other offences. The application was heard in the relevant court, where the primary issue was whether Youkhana posed an unacceptable risk of failing to answer bail, committing further offences while on bail, or endangering the safety and welfare of members of the public. The court considered the seriousness of the charges against Youkhana, including his alleged role as a key organiser of a drug syndicate, and whether he had discharged the onus of demonstrating that he was not an unacceptable risk.

The court found that Youkhana had failed to discharge the onus of proving that he did not present an unacceptable risk. The seriousness of the charges, his alleged central role in the drug syndicate, and the potential for further offending while on bail were all factors that contributed to the court's decision. The court also considered the risk to the safety and welfare of the public, which was heightened given Youkhana's prior charges while on bail. Consequently, the court concluded that Youkhana was in a'show cause situation' under the Bail Act 1977, and denied his application for bail.

The court's reasoning was based on the statutory provisions of the Bail Act 1977 and the Criminal Code Act 1995 (Cth), which provide the legal framework for assessing bail applications in cases involving serious offences. The court determined that the risk factors outlined in the legislation were present in Youkhana's case, and that these factors outweighed any potential arguments in favour of granting bail. As a result, the court refused Youkhana's application for bail. The court's decision was grounded in the need to protect the community and ensure that individuals charged with serious offences are held accountable for their actions.

Orders