| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S ECR 2020 0040
| IN THE MATTER OF the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER OF an application for bail by ADAM McCANN |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2020 | |
DATE OF RULING: | 25 March 2020 | |
CASE MAY BE CITED AS: | Re McCann | |
MEDIUM NEUTRAL CITATION: | [2020] VSC 138 | First revision: 26 March 2020 |
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CRIMINAL LAW — Application for bail — Charges of trafficking in a commercial quantity of a drug of dependence — Significant delay caused by pandemic — Exceptional circumstances established — Risk not unacceptable with conditions — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Randazzo SC | Giorgianni & Liang Lawyers |
| For the Respondent | Mr A Albert | Victoria Police |
HIS HONOUR:
This is an application for bail by Adam McCann (the ‘applicant’).
This is the second application of this kind that has come before me since the outbreak of COVID-19. In the previous application, Re Broes [2020] VSC 128 (‘Broes’), I made some observations about the effect of the current COVID-19 pandemic on applications for bail. I propose to go through that process again to some degree.
On 29 January 2019, Detective Senior Constable Perruchio charged the applicant with:
·trafficking a drug of dependence;
·trafficking in methylamphetamine (two counts);
·trafficking in 3,4-methylenedioxy-methamphetamine (‘MDMA’) (two counts);
·trafficking in a commercial quantity of methamphetamine (two counts);
·possessing 3,4-Methylenedioxyamphetamine (‘MDA’);
·possessing psilocin and/or psilocybin; and
·possessing a firearm as a prohibited person.
As the applicant is accused of committing Schedule 1 offences under the Bail Act 1977 (Vic) (‘the Act’), namely, trafficking in a commercial quantity of a drug of dependence, it is common ground between the parties that bail must be refused unless the Court is satisfied that exceptional circumstances exist that justify the grant of bail.
Procedural history
The applicant has been on remand since his arrest on 29 January 2018, which means, as at the hearing of this application, he has been in custody for 787 days.
The applicant was originally due to stand trial in April 2019, but the matter was adjourned for a plea as a resolution had apparently been reached. It was later confirmed in May 2019 that the matter would again proceed to trial. That trial was listed in the County Court of Victoria on 4 May 2020. However, due to the present state of emergency caused by COVID-19, all trials are suspended indefinitely, and the already unacceptable delay in this case will increase dramatically.
The applicant has applied for bail twice previously from the County Court and been refused — first on 4 December 2018 and again on 25 February 2020. The first application was refused as the applicant had failed to show exceptional circumstances. By the time of his second application, it was accepted that exceptional circumstances existed, primarily…
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- AGLC
- Re McCann [2020] VSC 138
- Case
- [2020] VSC 138
- Decision Date
CaseChat Overview and Summary
The court considered the application under the Bail Act 1977 (Vic), particularly sections 1B, 3AAA, 3B, 4AA, 4A, 4D, and 4E. It assessed the risk of flight, the risk of reoffending, and the impact of release on the community. The applicant's history of non-compliance with previous bail conditions and the potential for reoffending were weighed against the exceptional circumstances created by the pandemic. The court concluded that, while there were significant risks, these could be mitigated through stringent bail conditions.
The court granted bail on the applicant's own undertaking and one surety in the amount of $300,000, subject to several conditions designed to ensure compliance and reduce the risk of reoffending. These conditions included residence restrictions, reporting obligations, and limitations on the applicant's ability to possess or use drugs and to contact certain individuals. The applicant was also required to surrender any travel documents and refrain from leaving the state of Victoria. The court ordered the applicant to appear in Melbourne County Court on 21 April 2020 and thereafter as directed by the Court.
Orders
Orders of the court
I propose that the applicant be released on bail on his own undertaking with one surety in the amount of $300,000, and with the following conditions:
1. The applicant is to reside at [redacted], Narre Warren, in the State of Victoria (‘place of residence’);
2. The applicant is not to be absent from his place of residence unless in the immediate presence of his mother, Ms Mona McCann, and only when:
a) attending scheduled medical, psychological or psychiatric appointments;
b) attending a scheduled appearance at the County or Supreme Court,
c) attending at the Narre Warren police station for the purposes of reporting;
d) attending at Centrelink;
a) attending at a healthcare facility to obtain emergency medical treatment; or
e) traveling directly to, or returning directly from, any of those locations.
3. The applicant is to present himself at the front door of his place of residence upon the reasonable request of a member of Victoria Police;
4. The applicant is to report to the officer in charge, or their nominee, at the Narre Warren Police Station every Monday, Wednesday and Friday between the hours of 6 am and 9 pm, subject to a government-imposed lock down, in which case a member of Victoria Police will attend the applicant’s place of residence to effect the reporting conditions;
5. The applicant is to attend for testing, treatment and counselling as directed by and follow the lawful directions of:
a) Amanda Brown of Lamberti Associates, or her nominee; and
b) Dr Luis Riebl, or his nominee.
6. The applicant is to provide a copy of all drug screening tests to the informant with 48 hours of receipt;
7. The applicant is not to possess or use a drug of dependence within the meaning of Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
8. The applicant is not to possess or use more than one mobile phone.
9. The applicant is to:
a) provide the informant with:
i. the phone number, IEMI number and any password or PIN of that phone within 24 hours of first having access to that phone; and
ii. any change of password or PIN of the phone within 24 hours of that change.
b) produce the phone for inspection upon the request of any member of Victoria Police; and
c) provide any password or PIN for the phone upon request of any member of Victoria Police.
10. The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant;
11. The applicant is not to contact or associate with, either directly or indirectly, the co-accused, Tayla Moore; and
12. The applicant is to surrender any passports or other travel documents to the informant within 24 hours of release and not apply for others; and
13. The applicant is not to leave the state of Victoria;
14. The applicant is not to attend any points of international departure;
15. The applicant is to provide a copy of these bail conditions to his mother, Amanda Brown and Dr Luis Riebl within six hours of his release; and
16. The applicant is to appear at Melbourne County Court on 21 April 2020, and thereafter as directed by that Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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