Re McLeod - [2018] VSC 795

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0305

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application by JAY McLEOD

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 & 18 December 2018
DATE OF JUDGMENT:	18 December 2018
CASE MAY BE CITED AS:	Re McLeod
MEDIUM NEUTRAL CITATION:	[2018] VSC 795

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CRIMINAL LAW – Bail application – Applicant required to show compelling reason – Charges of trafficking in a drug of dependence, knowingly dealing with proceeds of crime, receiving stolen goods, possessing a drug of dependence, failing to provide a password to a data storage device – Delay – CISP support – Drug counselling – Stable accommodation –Bail granted with conditions – Bail Act 1997.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Pratt	Sarah Pratt & Associates
For the Respondent	Mr J Kibel	Victoria Police

HIS HONOUR:

Introduction

On 19 September 2018, Jay McLeod (‘the applicant’) was arrested and charged with trafficking in a drug of dependence (methylamphetamine), knowingly dealing with proceeds of crime (two counts), receiving stolen goods, possessing a drug of dependence (three counts), and failing to provide a password to a data storage device.

The applicant has been in custody since his arrest, and was refused bail in the Moorabbin Magistrates’ Court on 11 October 2018. An application for bail was filed in this Court on 27 November 2018.

The matter is next listed for mention on 8 February 2018 at the Moorabbin Magistrates’ Court, after which it is anticipated the matter will be listed for a contest mention.

The alleged offending

On 19 September 2018, police executed a search warrant at the applicant’s residence, an apartment situated on East Boundary Road, Bentleigh East.

The applicant was present with the co-accused at the time, and was asked whether there were any drugs, cash or weapons that he wished to declare. The applicant responded that there were 20-25 grams of methylamphetamine in the kitchen, and another amount in his cigarette packet.

In various rooms of the apartment, police located, among other items:

·two quantities of cash ($425 and $26,950);
·illicit drugs (GHB, methylamphetamine, and cannabis);
·a quantity of the prescription medication Alprazolam, labelled with a name other than that of the applicant;
·a stolen KTM 300 motorbike; and
·three mobile phones.

The applicant refused to comply with requests to provide passwords or pin codes to the electronic devices located by police.

Both the applicant and co-accused were arrested following the search. The applicant provided no comment in his record of interview. The co-accused was interviewed and bailed to appear at Moorabbin Magistrates’ Court on the 13 December 2018.

Applicable legislation

The applicant is charged, inter alia, with two counts of a Schedule 2 offence under the Bail Act 1977 (‘the Act’), namely, trafficking in a drug of dependence.[1] Pursuant to s 4AA(3) of the Act, the compelling reason test applies to a decision of whether to grant…

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 McLeod

Details

AGLC: Re McLeod [2018] VSC 795
Case: [2018] VSC 795
Decision Date: 18 December 2018

CaseChat Overview and Summary

McLeod applied for bail in the Magistrates Court of Victoria in relation to charges including trafficking in a drug of dependence, knowingly dealing with proceeds of crime, receiving stolen goods, possessing a drug of dependence, and failing to provide a password to a data storage device. The central issue for the court was whether McLeod had shown a compelling reason to be granted bail, given the seriousness of the charges. The court needed to weigh the seriousness of the charges against McLeod’s arguments for bail, including his delay in applying, his participation in a corrective intervention support program (CISP), his engagement in drug counselling, and his stable accommodation.

The court considered the arguments presented and the evidence provided. McLeod had delayed in making his bail application, but the court found that his participation in a CISP and drug counselling, as well as his stable accommodation, provided sufficient grounds for granting bail. The court determined that McLeod had demonstrated a compelling reason for bail by showing his commitment to rehabilitation and stability. The court further noted that McLeod’s delay in applying for bail did not negate his other compelling reasons.

In light of the compelling reasons presented, the Magistrates Court granted McLeod bail with conditions. These conditions included requirements for McLeod to comply with his drug counselling program, maintain his stable accommodation, and abide by any other conditions deemed necessary by the court. The decision was made under the Bail Act 1997, which governs the granting of bail in Victoria. The court's decision balanced the seriousness of the charges against the applicant's demonstrated commitment to rehabilitation and stability.

Orders