Re Mirukaj - [2022] VSC 82

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0378

IN THE MATTER of the Bail Act 1977 (Vic)

IN THE MATTER of an Application for Bail by ERGYS MIRUKAJ

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2022
DATE OF JUDGMENT:	14 February 2022
CASE MAY BE CITED AS:	Re Mirukaj
MEDIUM NEUTRAL CITATION:	[2022] VSC 82

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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 — Parity of bail — 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	Mr P Dunn QC	Marcevski Lawyers
For the Respondent	Mr A Albert	Office of Public Prosecutions

HIS HONOUR:

Introduction

By application filed 20 December 2021, Ergys Mirukaj (‘the applicant’) seeks bail in this Court in relation to the following 18 charges brought by Detective Senior Constable Mona El-Helwani:

(a)cultivating a narcotic plant in not less than a commercial quantity (two charges);
(b)cultivating a narcotic plant;
(c)trafficking a drug of dependence in not less than a commercial quantity (two charges);
(d)possessing a drug of dependence (four charges);
(e)trafficking a drug of dependence (four charges);
(f)attempting to traffick a drug of dependence in not less than a large commercial quantity;
(g)attempting to possess a drug of dependence;
(h)dealing with proceeds of crime;
(i)failing to provide information or assistance in relation to a data storage device; and
(j)theft.

There are no grounds specified in the application.

The applicant was arrested on 7 September 2021 and has been on remand since that time. He was refused bail in Melbourne Magistrates’ Court on 28 September 2021 on the basis that he failed to show exceptional circumstances that justified the grant of bail.

The matter is next listed for a committal hearing on 1 June 2022 in the Melbourne Magistrates’ Court.

The application

The application is supported by the following affidavits:

(a)Nick Marcevski, solicitor, dated 17 December 2021, to which are attached two exhibits.
(b)Nick Marcevski, solicitor, dated 31 January 2022 to which further exhibits are attached.
(c)Rebeka Hanson, dated 14 December 2021, and
(d)Gianni Lupezinni, self-employed farmer, dated 6 December 2021.

The applicant supplemented the above with an 11-page written submission, oral submissions on the hearing of the application, and a chronology of events.

In response to the application, the respondent filed an affidavit sworn by Rafael Tudehope, legal practitioner employed by the Office of Public Prosecutions, dated 17 January 2022, also attaching a series of exhibits, including a 9–page bail report prepared and authored by Detective Senior Constable Mona El-Helwani, also dated 17 January 2022.

The respondent also relies on oral submissions made in the course of the application.

The parties agreed that the exceptional circumstances test applies to this application, and accordingly it proceeded on that basis. Oral evidence was…

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 Mirukaj

Details

AGLC: Re Mirukaj [2022] VSC 82
Case: [2022] VSC 82
Decision Date: 14 February 2022

CaseChat Overview and Summary

The applicant, Mirukaj, applied to the County Court of Victoria for bail in relation to charges of trafficking in a commercial quantity of a drug of dependence. The court was required to consider whether the applicant met the threshold for bail under the Bail Act 1977 (Vic) and whether exceptional circumstances existed to warrant a departure from the usual principles of bail. The significant delay in the proceedings due to the COVID-19 pandemic was also considered as part of the application.

The court considered several legal issues, including whether the applicant had established exceptional circumstances justifying a departure from the usual principles of bail, and whether the risk posed by the applicant could be managed through bail conditions. The court noted that the delay in the proceedings due to the pandemic constituted an exceptional circumstance, and that the risk posed by the applicant could be managed through appropriate bail conditions.

In granting the applicant bail, the court found that the exceptional circumstances of the pandemic warranted a departure from the usual principles of bail. The court was satisfied that the risk posed by the applicant could be managed through bail conditions, which included strict limitations on the applicant's movements and communication, as well as regular reporting to the police. The court also noted that the delay in the proceedings had caused significant hardship to the applicant, who had been in custody for an extended period of time.

The court granted the applicant bail with conditions, including restrictions on the applicant's movements and communication, and regular reporting to the police. The court emphasised the importance of ensuring that the risk posed by the applicant was managed through appropriate bail conditions, and that the delay in the proceedings was taken into account in determining the terms of bail.

Orders