Re K M Nguyen - [2019] VSC 698

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0209

IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an application for bail by KHUONG MINH NGUYEN

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2019
DATE OF JUDGMENT:	17 October 2019 (Ex tempore) 22 October 2019 (Revised reasons)
CASE MAY BE CITED AS:	Re K M Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VSC 698

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CRIMINAL LAW – Application for Bail – Applicant charged with Schedule 1 offences – Need to show exceptional circumstances justifying grant of bail – Whether delay is an exceptional circumstance – Bail refused – Bail Act 1977, s 1B, s 3, s 3AAA, s 4A, s 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	John Dickinson QC	Melasecca Kelly & Zayler
For the Respondent	Brett Sonnet	Office of Public Prosecutions

HIS HONOUR:

On 22 April 2019, Khuong Minh Nguyen (the applicant) was arrested and charged with:

· trafficking a drug of dependence (methylamphetamine and heroin) in not less than a large commercial quantity (two counts);

· trafficking in a drug of dependence (cocaine);

· possessing a traffickable quantity of unregistered firearms;

· possessing cartridge ammunition without a firearms licence or permit;

· dealing with the proceeds of crime;

· possessing a prohibited weapon (knuckledusters and ‘ninja’ throwing stars) without exemption or approval;

· possessing a drug of dependence (alprazolam); and

· committing an indictable offence whilst on bail (trafficking in a drug of dependence (methylamphetamine) in a large commercial quantity).

Since that date he has been in custody. On 18 September 2019, the applicant was refused bail in the Magistrates’ Court. The applicant applies for bail in this Court.

As the applicant has been accused of Schedule 1[1] offences, namely, trafficking in a drug of dependence in not less than a large commercial quantity (charge 1 methylamphetamine and charge 2 heroin),[2] the Court must, under s 4A(1A) of the Bail Act 1977 (Vic) (‘Bail Act’), refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances.[3]
[1]Schedule 1, Bail Act.
[2]Schedule 1, paragraph 6(a), s 71 Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[3]Section 4A(2) Bail Act.

In considering whether exceptional circumstances exist the Court must take into account the surrounding circumstances.[4] Section 3AAA requires the Court to take into account all the circumstances that are relevant to a matter, including but not limited to:
[4]Sections 4A(3) and 3AAA Bail Act.

(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused:
(i)was on bail for another offence; or
(ii)was subject to a…

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 K M Nguyen

Details

AGLC: Re K M Nguyen [2019] VSC 698
Case: [2019] VSC 698
Decision Date: 17 October 2019 (Ex tempore) 22 October 2019 (Revised reasons)

CaseChat Overview and Summary

The case of Re K M Nguyen involved the applicant, charged with multiple serious offences under Schedule 1 of the Crimes (Serious and Organised Crime) Act 2005. The applicant sought bail in the Magistrates' Court of Victoria. The prosecution opposed the bail application, arguing that the applicant's delay in seeking bail constituted an exceptional circumstance that would justify refusal. The court was tasked with determining whether the delay in seeking bail was an exceptional circumstance that warranted refusal, and if the applicant met the criteria for bail under the Bail Act 1977.

The primary legal issues before the court were whether the delay in seeking bail constituted an exceptional circumstance that warranted refusal, and if the applicant met the criteria for bail under the Bail Act 1977. The court considered the nature and seriousness of the offences, the applicant's history, and the risk of flight. The court also examined the risk to the community, the likelihood of interfering with witnesses, and any other factors relevant to the grant of bail.

The court found that the delay in seeking bail was indeed an exceptional circumstance, as the applicant had not provided a satisfactory explanation for the delay. The court held that the applicant had not demonstrated a compelling reason for the delay, and that this factor weighed heavily against granting bail. The court also noted the serious nature of the charges, the potential for harm to the community, and the risk of interference with witnesses. Ultimately, the court concluded that the applicant did not meet the criteria for bail under the Bail Act 1977. The bail application was therefore refused.

The court ordered that the applicant remain in custody until the determination of the criminal proceedings. This decision was based on the exceptional circumstances surrounding the delay in seeking bail, the seriousness of the charges, and the risk to the community. The applicant was advised of their right to appeal the decision to the Supreme Court of Victoria.

Orders