Re Molla - [2023] VSC 729

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0227

IN THE MATTER of s 18A the Bail Act 1977

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IN THE MATTER of an appeal by the Commonwealth Director of Public Prosecutions for Victoria against the grant of an application to vary the conditions of bail for AVDI MOLLA

BETWEEN:

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
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AVDI MOLLA	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2023
DATE OF JUDGMENT:	6 December 2023
DATE OF REASONS:	6 December 2023
CASE MAY BE CITED AS:	Re Molla
MEDIUM NEUTRAL CITATION:	[2023] VSC 729

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CRIMINAL LAW — Bail — Director’s appeal against grant of application to vary conditions of bail — Respondent charged with serious drug offences — Respondent granted bail by Magistrates’ Court — Conditions of bail varied by County Court to permit temporary travel overseas — Whether the Judge should have dismissed the application to vary the original conditions of bail — Whether the Judge erred in failing to find the variation carried an unacceptable risk of the respondent failing to surrender into custody — Appeal allowed — Bail Act 1977 (Vic), s 1B, 5AAA, 18A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Andrew Sprague	Commonwealth Director of Public Prosecutions
For the Respondent	Amara Hughes	Vassis & Co

HIS HONOUR:

Introduction

Avdi Molla [‘the respondent’] is charged on indictment with the following Commonwealth offences:

(a) dealing with money or property worth $100,000 or more, which is proceeds of indictable crime, contrary to section 400.4(1) of Schedule 1 of the Criminal CodeAct 1995 (Cth) [‘the Code’];

(b) cultivating a controlled plant for a commercial purpose, contrary to section 303.6(1) of the Code; and

(c) cultivating a marketable quantity of a controlled plant, contrary to section 303.5(1) of the Code.

In short, on 2 August 2022, search warrants were executed at two residential properties in suburban Melbourne, in Burwood East and Keysborough, where sophisticated cannabis cultivation setups were discovered. It is alleged that the respondent exercised control and/or direction over the cultivation of cannabis at these properties by multiple co‑accused persons.

It is further alleged that the respondent was involved in cannabis cultivation activities at numerous other properties in suburban Melbourne, including further properties in Keysborough, Altona and other locations, from 2020 onwards. During a search on 7 June 2023 at the respondent’s home, $271,000 in cash was located by police, which is alleged to be proceeds of crime.

Procedural history

The respondent was granted bail unopposed in the Magistrates’ Court of Victoria on 18 August 2022. The grant of bail was subject to a surety in the amount of $20,000 and certain conditions, namely that he:

(a) report to Mordialloc Police Station three times a week between 6:00am and 9:00pm;

(b) reside at an address in Aspendale Gardens;

(c) notify the informant within 24 hours of any proposed change of address;

(d) surrender any valid passports or other travel documents within…

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 Molla

Details

AGLC: Re Molla [2023] VSC 729
Case: [2023] VSC 729
Decision Date: 6 December 2023

CaseChat Overview and Summary

The case of Re Molla involves an appeal by the Director against the decision of a County Court Judge to vary the conditions of bail for the respondent, who had been charged with serious drug offences. The original grant of bail was made by the Magistrates’ Court, and the County Court Judge later varied the conditions to permit temporary travel overseas. The Director argued that the variation was inappropriate, as it carried an unacceptable risk of the respondent failing to surrender into custody.

The legal issues before the court were whether the County Court Judge should have dismissed the application to vary the original conditions of bail and whether the Judge erred in failing to find that the variation carried an unacceptable risk of the respondent failing to surrender into custody. The court examined the relevant statutory provisions, including sections 1B, 5AAA, and 18A of the Bail Act 1977 (Vic), and considered the nature of the charges, the respondent's history, and the risk of non-attendance.

The court found that the County Court Judge erred in varying the bail conditions to permit temporary travel overseas. The court held that the variation carried an unacceptable risk of the respondent failing to surrender into custody and that the Judge should have dismissed the application to vary the original conditions of bail. The court concluded that the Director's appeal should be allowed, and the original bail conditions should be reinstated.

The final orders of the court were that the appeal be allowed, and the bail conditions be restored to their original terms. The respondent was required to surrender into custody immediately, and the County Court's decision to vary the bail conditions was set aside. The court emphasised the importance of ensuring that the conditions of bail are appropriate to the nature of the charges and the risk of non-attendance.

Orders