JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2024
DATE OF RULING:	8 March 2024
CASE MAY BE CITED AS:	Re Naaman
MEDIUM NEUTRAL CITATION:	[2024] VSC 118

---

CRIMINAL LAW – Bail – Charges of trafficking and possessing drugs of dependence – Commercial quantity – Schedule 1 offence – Requirement to show exceptional circumstances – Nature and seriousness of the alleged offending – Strength of prosecution case – Special vulnerability – Family support and stable accommodation – Criminal history – Absence of any history of failure to comply with bail conditions – Impact of delay on the applicant – Surety – Exceptional circumstances not established – Applicant an unacceptable risk – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E.

---

APPEARANCES:	Counsel	Solicitors
For the applicant	T Antos	Allied Lawyers
For the respondent	J Malobabic (solicitor)	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

On 16 February 2024, an application for bail was filed on behalf of Baha Naaman (“Naaman”).
Naaman was arrested and remanded into custody on 25 November 2023 in relation to offending alleged to have occurred on the same date. The charges against him are:
(1)Trafficking a drug of dependence, namely methylamphetamine, in a quantity not less than the commercial quantity applicable to that drug, contrary to section 71AA of the Drugs, Poisons and Controlled Substances Act1981 (Vic).
(2)Trafficking a drug of dependence, namely methylamphetamine, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act.
(3)Possessing a drug of dependence, namely methylamphetamine, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(4)Trafficking a drug of dependence, namely cannabis, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act.
(5)Possessing a drug of dependence, namely cannabis, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(6)Possessing cartridge ammunition without a licence, contrary to section 124(1) of the Firearms Act 1996 (Vic).
(7)Dealing with property suspected to be the proceeds of crime, contrary to section 195 of the Crimes Act 1958 (Vic).
Naaman previously made an application for bail in the Mildura Magistrates’ Court. The application was refused on 21 December 2023 on the grounds that Naaman was unable to demonstrate the existence of exceptional circumstances to justify the grant of bail, and that even if he had established exceptional circumstances, he would present an unacceptable risk of the kind referred to in section 4E of the Bail Act 1977 (Vic) if he were to be released on bail.
The matter was adjourned to a committal mention on 28 February 2024. The committal hearing is scheduled to be held on 23 April 2024 at the Mildura Magistrates’ Court.
In support of Naaman’s application for…

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 Naaman

Details

AGLC: Re Naaman [2024] VSC 118
Case: [2024] VSC 118
Decision Date: 8 March 2024

CaseChat Overview and Summary

The applicant, Naaman, sought bail in the Magistrates’ Court of Victoria in relation to charges of trafficking and possessing drugs of dependence in commercial quantities. These charges involved substances listed in Schedule 1 of the relevant legislation, which necessitated a demonstration of exceptional circumstances for bail to be granted. The prosecution opposed the application, arguing that the alleged offending was of a serious nature, that the applicant had a substantial criminal history, and that there was a significant risk of reoffending and flight if released on bail.

The court considered several factors, including the nature and seriousness of the alleged offending, the strength of the prosecution case, and the applicant's criminal history. The court also weighed the applicant's arguments regarding their special vulnerability, family support, and stable accommodation. The applicant argued that they had a clean history of complying with bail conditions and that the delay in resolving the matter was impacting them negatively. The court acknowledged these arguments but found that they did not establish the exceptional circumstances required for bail. The court was particularly concerned about the risk of reoffending given the significant quantities of drugs involved and the applicant's criminal history.

After careful consideration of all the factors, the court concluded that the applicant was an unacceptable risk to the community and to any potential victims if released on bail. The court determined that exceptional circumstances had not been demonstrated, and the application for bail was refused. The court emphasised the seriousness of the alleged offending and the strength of the prosecution case as key factors in its decision. The applicant's criminal history and the absence of any history of failure to comply with bail conditions were also significant in the court's assessment.

The court made no orders regarding sureties and confirmed that the applicant must remain in custody until the matter is resolved. The applicant has the right to appeal the decision to the County Court of Victoria within seven days of the decision.

Orders