Re Hu - [2020] VSC 285

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0101

IN THE MATTER of the Bail Act 1977

- and -

IN THE MATTER of an application for bail by XI HU

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JUDGE:	INCERTI J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2020
DATE OF JUDGMENT:	21 May 2020
CASE MAY BE CITED AS:	Re Hu
MEDIUM NEUTRAL CITATION:	[2020] VSC 285

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CRIMINAL LAW – Application for Bail – Applicant charged with causing an unauthorised impairment of an electronic communication – Charged with committing an indictable offence whilst on bail - Requirement to show compelling reasons – Whether compelling reasons shown – COVID-19 pandemic – Delay in proceedings due to pandemic – No criminal history – First time in custody – Length of time in custody likely longer than sentence – Whether unacceptable risk present - No unacceptable risk – Bail granted with special conditions – Applicant must notify informant of phone numbers, SIM cards and internet enabled devices – Applicant must undergo mental health assessment – Bail Act 1977, ss1B(1), 3AAA, 4A(3), 4D(1)(b) and 4E – Crimes Act 1958, s 247D and 465AA(9).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms B Franjic	Gallant Law
For the Respondent	Ms K Churchill	Office of Public Prosecutions

HER HONOUR:

Introduction

This is an application for bail by Xi ‘Andrew’ Hu (‘the applicant’). He is charged with causing an unauthorised impairment of an electronic communication[1] and committing an indictable offence whilst on bail,[2] arising from events that are alleged to have occurred in November 2019 (‘the Ali matter’) involving distributed denial of service (‘DDoS’) attacks on the Chadstone Shopping Centre website. He was charged and remanded on 21 November 2019.
[1]Crimes Act 1958 s 247D (‘Crimes Act’). A person is guilty of an offence against this section if they cause any unauthorised impairment of electronic communication to or from a computer, know that the impairment is unauthorised and intend to impair electronic communication to or from the computer or is reckless as to any such impairment.
[2]Bail Act 1977 (Vic) s 30B (‘Bail Act’).

At the time of the alleged offending, the applicant was on bail in respect of three charges of causing an unauthorised impairment of an electronic communication and failing to comply with an order to provide assistance in respect of a computer or data storage device (‘the Owen matter’).[3] He was arrested and charged with these offences on 29 October 2019 and released on police bail the same day.[4] He was subsequently charged by the same informant with two additional counts of unauthorised impairment of an electronic communication on 8 May 2020. Bail has not been revoked in the Owen matter.
[3]Crimes Act s 465AA(9).
[4]Affidavit of Lauren Cassimatis in support of an application for bail, affirmed 4 May 2020, Exhibit LC-2, Exhibit LC-4 (‘Affidavit in Support’); Affidavit of Nadia Maree Deltondo in response to an application for bail, sworn on…

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 Hu

Details

AGLC: Re Hu [2020] VSC 285
Case: [2020] VSC 285
Decision Date: 21 May 2020

CaseChat Overview and Summary

The case of Re Hu involved an application for bail for the applicant, Hu, who was charged with causing an unauthorised impairment of an electronic communication, and with committing an indictable offence while on bail. The matter was heard in the County Court of Victoria. The applicant faced charges under the Crimes Act 1958, specifically sections 247D and 465AA(9).

The legal issues before the court were whether compelling reasons existed for the applicant to be granted bail, given that he was charged with committing an indictable offence while on bail for another offence. The court had to determine whether the applicant had demonstrated compelling reasons for bail, considering the delay in proceedings due to the COVID-19 pandemic, the applicant's lack of a criminal history, the fact that this was his first time in custody, and the likelihood that the time spent in custody would exceed any potential sentence. Additionally, the court needed to assess whether there was an unacceptable risk present if the applicant were granted bail.

The court found that compelling reasons did exist for the applicant to be granted bail. The delay in proceedings due to the pandemic was a significant factor, as was the applicant's lack of a criminal history and his first-time incarceration. The court concluded that there was no unacceptable risk present, given the special conditions imposed. Consequently, the application for bail was granted with special conditions, including that the applicant must notify an informant of any phone numbers, SIM cards, and internet-enabled devices, and must undergo a mental health assessment.

The court also ordered that the applicant's bail be subject to strict conditions to ensure compliance and to mitigate any potential risks. These conditions included electronic monitoring, regular check-ins with bail supervisors, and restrictions on the applicant's movements and communications. The court emphasised the importance of these measures in ensuring the safety of the community and the proper administration of justice.

Orders