Re Kamvissis - [2021] VSC 620

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0239

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an Application for Bail by GEORGE KAMVISSIS

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2021
DATE OF JUDGMENT:	23 September 2021
CASE MAY BE CITED AS:	Re Kamvissis
MEDIUM NEUTRAL CITATION:	[2021] VSC 620

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BAIL APPLICATION — Two counts of trafficking in a large commercial quantity of a drug of dependence — Whether exceptional circumstances — Whether unacceptable risk of flight and further offending — Re Trinh [2021] VSC 356 — Bail Act 1977 (Vic) ss 4AA, 4A, 4D, 4E; Drugs Poisons and Controlled Substances Act 1981 (Vic) s 71.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms L Ristivojevic	Sarah Tricarico Lawyers
For the Respondent	Mr P Pickering	Office of Public Prosecutions

HIS HONOUR:

INTRODUCTION

George Kamvissis, the applicant for bail, is charged with two counts of trafficking in a large commercial quantity of drugs, namely cocaine and methylamphetamine.

He must show exceptional circumstances justifying a grant of bail.[1] If he does so, he is entitled to bail unless the respondent shows the applicant is an unacceptable risk of flight or further offending, as alleged.[2]
[1]Bail Act 1977 (Vic) ss 4AA, 4A.
[2]See Bail Act 1977 (Vic) ss 4D, 4E.

The alleged offending occurred between January and June 2021. Much of the evidence against the applicant, and multiple co-accused, consists of messages sent by them on an application called ANØM which they thought to be secure. In fact it was an application that had been created by the AFP and the FBI for the purpose of intercepting such messages. Furthermore, each time messages were sent on the ANØM application, it generated GPS data, enabling the police to identify the location of the person sending the message. Such data enabled investigators to pinpoint the applicant’s home in Niddrie as the location where many relevant messages originated.

The applicant relied on a combination of factors to establish exceptional circumstances. These were:

·the strength of the respondent’s case which the applicant described as “not an overwhelming one”;
·admissibility issues arising from the respondent’s novel reliance on the evidence obtained through the ANØM application;
·inordinate delay between arrest and trial;
·ties to jurisdiction;
·stable family and family support;
·employment;
·criminal history and change of circumstances since prior offending;
·a significant surety of approximately $1.4 million (to be provided by the applicant’s parents).

Delay

In my view the most significant of these circumstances is the likely delay from arrest till trial.

The applicant was arrested on 7 June 2021. Multiple co-accused were also arrested around that time.

At the remand/filing hearing, service of the hand-up brief was ordered to occur by 20 July 2021 and the matter was listed for a committal mention on 31 August 2021.

On 20 July 2021, the Office of Public Prosecutions made an application to extend the date for service of the…

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 Kamvissis

Details

AGLC: Re Kamvissis [2021] VSC 620
Case: [2021] VSC 620
Decision Date: 23 September 2021

CaseChat Overview and Summary

The parties involved in this case were the applicant, who had been charged with two counts of trafficking in a large commercial quantity of a drug of dependence, and the respondent, who was the state of Victoria. The nature of the dispute was whether the applicant should be granted bail pending the resolution of his criminal proceedings. The case was heard in the Supreme Court of Victoria.

The legal issues the court was required to decide included whether the applicant's bail application should be denied due to exceptional circumstances and whether the applicant posed an unacceptable risk of flight and further offending. The court considered the relevant provisions of the Bail Act 1977 (Vic), including sections 4AA, 4A, 4D, and 4E, as well as section 71 of the Drugs Poisons and Controlled Substances Act 1981 (Vic). The court also referred to the decision in Re Trinh [2021] VSC 356, which was a similar case involving drug trafficking charges.

In reaching its decision, the court considered the applicant's criminal history, the nature and circumstances of the alleged offences, and the risk factors associated with the applicant's potential flight and further offending. The court found that the applicant's criminal history, which included previous drug-related offences, was a significant factor in determining whether he posed an unacceptable risk of flight and further offending. The court also considered the seriousness of the alleged offences, which involved trafficking in a large commercial quantity of a drug of dependence. The court found that the applicant's potential flight risk was high due to his lack of ties to the community and his previous history of absconding. The court further found that the applicant's potential for further offending was high due to his extensive criminal history and his involvement in drug-related activities.

The court ultimately decided that the applicant's bail application should be denied due to exceptional circumstances and the unacceptable risk of flight and further offending. The court made orders denying the applicant's bail application and remanding him in custody pending the resolution of his criminal proceedings.

Orders