Re Chau

Case [2024] VSC 387 26 June 2024

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0154
S ECR 2024 0125

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by Dara CHAU

---

JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2024
DATE OF RULING:	26 June 2024
CASE MAY BE CITED AS:	Re Chau
MEDIUM NEUTRAL CITATION:	[2024] VSC 387

---

CRIMINAL LAW – Application for bail – Charge of murder – Schedule 1 offence – Requirement to show exceptional circumstances – Other charges of affray, possessing a firearm as a prohibited person and accessing child abuse material – Nature and seriousness of alleged offending – Strength of prosecution case – Delay – Availability of family support, stable accommodation and employment – Bail guarantee – Criminal history – Exceptional circumstances not established – Applicant otherwise an unacceptable risk – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAA.

---

APPEARANCES:	Counsel	Solicitors
For the applicant	J Desmond	Giorgianni & Liang Lawyers
For the respondent	N Hutton	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

On 2 December 2022, the applicant, Dara Chau (“Chau”), was arrested and charged with the following offences:
(1)Murder, contrary to common law, on 11 July 2022.
(2)Committing an affray by using unlawful violence, contrary to section 195H(1) of the Crimes Act 1958 (Vic), on 11 July 2022.
(3)Possessing a firearm as a prohibited person, contrary to section 5(1) of the Firearms Act 1996 (Vic), on 22 July 2022.
(4)Accessing child abuse material, contrary to section 51H(1) of the Crimes Act, on 4 November 2022.[1]
[1]Initially, this charge was laid pursuant to s 474.19(1)(a)(i) of the schedule to the Criminal Code Act 1995 (Cth), however it was later substituted with a charge under the Crimes Act.
Chau has been on remand since his arrest, and has applied for bail in this court for the first time.[2]
[2]Bail Act 1977 (Vic), s 13(2).
In support of his application, Chau relied on a number of factors to establish the existence of exceptional circumstances justifying the grant of bail. These included issues with the prosecution case, the length of time likely to be spent on remand if bail were refused, the availability of stable accommodation and employment and the offer of a bail guarantee.
The application for bail was opposed by the prosecution on the basis that exceptional circumstances had not been established, and in any event, Chau would present an unacceptable risk if he were to be released on bail.
For the reasons to follow, Chau’s application is refused.

B. Background

B.1 Alleged offending

The following account of Chau’s alleged offending is based on the prosecution case and comprises allegations only.

B.1.1 Murder and affray

On 13 April 2022, Diana Mossawi (“Mossawi”) allegedly borrowed $2,000 from Christina Subu (“Subu”). A dispute subsequently arose between Mossawi and Subu about whether or not the money had been repaid. It…

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 Chau

Details

AGLC: Re Chau [2024] VSC 387
Case: [2024] VSC 387
Decision Date: 26 June 2024

CaseChat Overview and Summary

The case of Re Chau involved an application for bail by the defendant, who was charged with murder, affray, possessing a firearm as a prohibited person, and accessing child abuse material. The matter was heard in the Supreme Court of Victoria. The defendant faced serious charges, including a Schedule 1 offence, which necessitated a demonstration of exceptional circumstances for bail to be granted. The prosecution argued that the defendant was an unacceptable risk to the community and that the nature and seriousness of the alleged offences outweighed any potential for granting bail.

The court was required to weigh the presumption in favour of bail against the statutory requirements for Schedule 1 offences. It had to consider the strength of the prosecution case, the nature and seriousness of the alleged offending, any delay in bringing the defendant to trial, and the availability of family support, stable accommodation, and employment. Additionally, the court needed to assess whether the defendant could provide an appropriate bail guarantee and consider the defendant's criminal history. Ultimately, the court needed to determine whether exceptional circumstances existed that would justify granting bail.

The court found that the defendant had not established exceptional circumstances warranting bail. It held that the serious nature of the charges, coupled with the strength of the prosecution case, the lack of delay, and the defendant's criminal history, supported a conclusion that the defendant posed an unacceptable risk to the community. The court also noted that the defendant could not provide an appropriate bail guarantee, and there was no evidence of family support, stable accommodation, or employment to mitigate the risk. Consequently, the court refused bail, emphasising that the defendant's rights to a fair trial and the safety of the community were paramount.

The final orders of the court were that the defendant, Chau, remain in custody until further order. The court's decision was grounded in the statutory requirements under the Bail Act 1977 (Vic) and the need to balance the presumption in favour of bail with the protection of the community and the rights of the accused.

Orders