Re Jiang - [2021] VSC 148

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0041

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by LAI JIANG

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2021
DATE OF JUDGMENT:	29 March 2021
DATE OF REVISED REASONS:	13 April 2021
CASE MAY BE CITED AS:	Re Jiang
MEDIUM NEUTRAL CITATION:	[2021] VSC 148

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CRIMINAL LAW — Application for bail — Charges of trafficking in a commercial quantity of a drug of dependence and negligently dealing with the proceeds of crime — Potential delay of three years – Availability of residential rehabilitation — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) s 1B, s 3AAA, s 4AA, s 4A, s 4D, s 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr John Saunders	SLKQ Lawyers
For the Respondent	Mr Matt Fisher	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by Lai Jiang (‘the applicant’). He faces drug trafficking and related charges in two separate matters, both of which are the subject of this application:

(a) Where the informant is Senior Constable Troy Reynolds for alleged offending on 22 January 2019 (‘the Reynolds charges’):

(i) trafficking in a commercial quantity of a drug of dependence (methylamphetamine);[1]
[1]Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

(ii) trafficking in a drug of dependence (heroin);[2]
[2]Ibid s 71AC.

(iii) possessing a drug of dependence (two charges) (alprazolam and cannabis);[3]
[3]Ibid s 73(1).

(iv) dealing with property suspected of being the proceeds of crime;[4] and
[4]Contrary to s 195 of the Crimes Act 1958 (Vic).

(v) possessing a Schedule 4 poison (pregabalin).[5]
[5]Contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

(b) Where the informant is Constable Benjamin Owen for alleged offending on 16 April 2020 (‘the Owen charges’):

(i) trafficking in a drug of dependence (three charges) (methylamphetamine, heroin and gamma hydroxybutyrate (‘GHB’));[6]
[6]Ibid s 71AC.

(ii) possessing a drug of dependence (four charges) (methylamphetamine, heroin, GHB and cannabis);[7]
[7]Ibid s 71(1).

(iii) dealing with property suspected of being the proceeds of crime;[8]
[8]Contrary to s 195 of the Crimes Act 1958 (Vic).

(iv) storing an unauthorised explosive;[9] and

(v) committing an indictable offence whilst on bail.[10]

[9]Contrary to s 54(5) of the Dangerous Goods Act 1985 (Vic).

[10]Contrary to s 30B of the Bail Act 1977 (Vic).

In support of the application, affidavits in support of bail sworn by the applicant’s solicitor and by the applicant’s mother, Chun Ping Zhang, for the purpose of offering a surety, were filed.

The respondents oppose the application. Ashleigh Dale Hodge, on behalf of the Director of Public Prosecutions, has filed an affidavit in response to the application.

Procedural history

The applicant was arrested and remanded in custody for the Reynolds charges on 22 January 2019.

On 8 August…

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 Jiang

Details

AGLC: Re Jiang [2021] VSC 148
Case: [2021] VSC 148
Decision Date: 29 March 2021

CaseChat Overview and Summary

The case of Re Jiang involved the applicant, Mr. Jiang, who applied for bail on charges of trafficking in a commercial quantity of a drug of dependence and negligently dealing with the proceeds of crime. The matter was heard in the County Court of Victoria. The primary issue before the court was whether Mr. Jiang should be granted bail, considering the severity of the charges and the potential delay in the proceedings.

The court considered several legal principles in its decision. It examined whether exceptional circumstances existed under section 1B of the Bail Act 1977 (Vic), which would justify bail despite the seriousness of the charges. The court also assessed whether Mr. Jiang would be an unacceptable risk to the community if granted bail, under section 4A of the Act. Additionally, it looked into the availability of residential rehabilitation as a mitigating factor, as per section 4AA. The court also considered the applicant's likelihood of appearing in court if released on bail under section 3AAA and the need to prevent oppressive pre-trial detention under section 4E.

After evaluating the evidence and arguments presented, the court determined that exceptional circumstances were established. It found that the potential delay in the proceedings, coupled with the availability of residential rehabilitation, warranted granting bail. The court concluded that an unacceptable risk to the community was not demonstrated, and thus, bail was granted subject to specific conditions. These conditions aimed to ensure Mr. Jiang's compliance with the terms of his bail and his appearance in court as required.

Orders