Re Moody - [2023] VSC 662

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0209

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by Liam Moody

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATES OF HEARING:	13, 20 October 2023 (before Champion J) 10 November 2023 (before Elliott J)
DATE OF RULING:	16 November 2023
CASE MAY BE CITED AS:	Re Moody
MEDIUM NEUTRAL CITATION:	[2023] VSC 662

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CRIMINAL LAW – Bail – Applicant charged with importing and possessing border controlled drugs and related charges – Quantities far in excess of “commercial quantity” – Schedule 1 offences – Requirement to show exceptional circumstances – No exceptional circumstances – Applicant an unacceptable risk of not answering bail – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4A, 4D, 4E.

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APPEARANCES:

Counsel

Solicitors

For the applicant

L Ristivojevic

Sarah Tricarico Lawyers

For the respondent

S Ginsbourg

(13, 20 October 2023)

A Sprague

(10,16 November 2023)

Commonwealth Director of Public Prosecutions

HIS HONOUR:

A. Introduction

On 13 September 2023, an application for bail was filed on behalf of Liam Moody (“Moody”). The application originally came before Champion J on 13 October 2023. On that occasion, evidence was adduced from a number of witnesses, and submissions were made in support by Moody’s counsel and in opposition by counsel for the Commonwealth Director of Public Prosecutions. During the course of these submissions, Champion J observed that there was a lack of evidence before him as to the treatment Moody was receiving from Justice Health.[1] As a result, Moody applied for and was granted an adjournment. A subpoena was issued to Justice Health to produce Moody’s up-to-date medical records to demonstrate the extent of any treatment he was receiving as a remanded prisoner.
[1]Justice Health is a unit of the Department of Justice and Community Safety. It is responsible for the delivery of health services for prisoners in Victoria. On 21 August 2023, Moody's solicitors wrote to Justice Health and Corrections Victoria requesting urgent medical treatment and intervention on Moody’s behalf. A series of emails were subsequently exchanged, but no relevant medical evidence was available at this juncture.
The hearing of the application resumed on 20 October 2023. Further submissions were made in reference to Moody’s medical file produced by Justice Health.[2] At the conclusion of the hearing, Champion J indicated he would deliver his decision and reasons the following week.
[2]It is unnecessary to refer to these in any detail in light of the more up-to-date records provided shortly before the hearing on 10 November 2023.
For reasons that it is unnecessary to go into, his Honour subsequently decided it was inappropriate for him to determine the matter. Accordingly, the further hearing was adjourned to 10 November 2023. On that occasion, further evidence was adduced concerning Moody’s health and treatment, and further submissions were made.
Accordingly, the parties agreed this application for bail should be determined based on the evidence…

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 Moody

Details

AGLC: Re Moody [2023] VSC 662
Case: [2023] VSC 662
Decision Date: 16 November 2023

CaseChat Overview and Summary

In the matter of Re Moody, the applicant, charged with importing and possessing border controlled drugs and related offences, sought bail. The quantities involved were far in excess of what would be considered a commercial quantity, making the charges particularly serious. The court had to determine whether the applicant should be granted bail under the Bail Act 1977 (Vic).

The central legal issues for the court to decide were whether the applicant had demonstrated exceptional circumstances as per section 1B of the Bail Act and whether the applicant posed an unacceptable risk to the community if released on bail as per section 3AAA. The court also needed to consider whether the applicant would answer bail if released, as required by sections 4A and 4E of the Bail Act. Given the nature and scale of the alleged offences, the court was required to weigh heavily the risk to the community against the applicant’s right to liberty.

The court found that the applicant had not presented any exceptional circumstances warranting bail. Additionally, the court determined that the applicant represented an unacceptable risk of not answering bail due to the serious nature of the charges. The court concluded that the applicant would likely reoffend if granted bail, as indicated by the significant quantities of drugs involved. Consequently, the court exercised its discretion under section 4D of the Bail Act and refused bail.

The final orders of the court were that the applicant, Moody, remain in custody pending the outcome of the criminal proceedings against them. The court’s decision emphasised the gravity of the charges and the need to protect the community from potential harm.

Orders