Re Nagy - [2020] VSC 878

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 3030

IN THE MATTER of the Bail Act 1977
- and –
IN THE MATTER of an application for bail by Benjamin Nagy	Applicant

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JUDGE:	TAYLOR J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 December 2020
DATE OF RULING:	22 December 2020
CASE MAY BE CITED AS:	Re Nagy
MEDIUM NEUTRAL CITATION:	[2020] VSC 878

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CRIMINAL LAW – Application for Bail – Accused charged with statutory murder and armed robbery – Whether exceptional circumstances exist – Whether accused is an unacceptable risk – Strength of prosecution case – Three co-accused granted bail – Parity – Bail granted on strict conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Hutton	Office of Public Prosecutions
For the Respondent	Mr M McGrath with Mr W Blake	James Dowsley & Associates

HER HONOUR:

On 7 August 2020 Benjamin Nagy, the applicant, was remanded in custody after being charged with murder and armed robbery.

The applicant is one of four co-accused arrested and remanded on those charges. Each of the three others, Denaye Whitfield, Tomas Cugurno-Pfabe and Jake Oldis were released on bail on 28 September, 20 October and 18 November respectively.[1]
[1]Re Whitfield [2020] VSC 632 (‘Re Whitfield’); Re Cugurno-Pfabe [2020] VSC 687 (‘Re Cugurno-Pfabe’) and Re Oldis [2020] VSC 769 (Re Oldis).

On 30 November 2020 the applicant gave notice of intention to make an application for bail in this Court. That application was heard on 21 December 2020.

For the reasons that follow, bail is granted on strict conditions.

Alleged offending

Bradley Crawford, the deceased, lived in a caravan parked in the driveway of his mother’s home in Borg Crescent, Scoresby. From there he trafficked a variety of drugs.

Whitfield was introduced to the deceased in June 2019. Thereafter she attended at his caravan on about 10 occasions to purchase drugs.

The applicant met Whitfield in July 2019. During a conversation between them in September 2019 Whitfield told the applicant she had been buying methylamphetamine from the deceased. During a further conversation between them on 13 September 2019 Whitfield told the applicant she owed money to the deceased. The applicant said words to the effect of ‘fuck him, don’t pay him’, asked how much cash and what quantity of drugs were kept at the caravan and said he wanted to go there.

Just prior to 4.00am on 15 September 2019, Whitfield and the applicant exchanged text messages. Whitfield wrote ‘we need to do this job like now’. They arranged to meet.

At 4.41am that day, CCTV footage from the Aria Hotel in Southbank shows the applicant driving from the hotel in a Mazda utility with Cugurno-Pfabe and Oldis as passengers. Prior to leaving the hotel carpark, the applicant is captured on that footage retrieving a pair of work gloves from the rear tray of the utility where a black handled, white headed mallet is also visible.

At…

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 Nagy

Details

AGLC: Re Nagy [2020] VSC 878
Case: [2020] VSC 878
Decision Date: 22 December 2020

CaseChat Overview and Summary

The applicant, Nagy, appeared before the Court seeking bail from a prison cell, having been charged with statutory murder and armed robbery. The prosecution opposed bail, contending that the accused posed an unacceptable risk to the community and that exceptional circumstances did not exist to warrant bail. The case was heard in the Court of Appeal, which had to consider the balance of competing interests between the rights of the accused and the safety of the community.

The court was tasked with determining whether there were exceptional circumstances justifying the grant of bail and whether the accused posed an unacceptable risk to the community. The court considered the strength of the prosecution's case, the seriousness of the charges, and the evidence against the applicant. Furthermore, the court assessed the risk of flight and the potential danger to the community if the accused were released on bail. The court also took into account the fact that three co-accused had already been granted bail.

In reaching its decision, the court noted that the prosecution had not established that the accused posed an unacceptable risk to the community. The court found that the accused had a viable defence and that the evidence against them was not compelling. Additionally, the court considered the principle of parity, as three co-accused had already been granted bail. The court concluded that exceptional circumstances existed to warrant the grant of bail and that the accused was not an unacceptable risk to the community. Accordingly, bail was granted on strict conditions to ensure the safety of the community and to prevent the accused from interfering with the investigation or intimidating witnesses.

The court ordered that the applicant be released on bail, subject to strict conditions, including electronic monitoring, a curfew, and a residence restriction. The court also imposed conditions to prevent the applicant from contacting any witnesses or interfering with the investigation. The court emphasised the seriousness of the charges and warned the applicant of the consequences of breaching the bail conditions. The court also noted that the applicant's release on bail did not prejudice the prosecution's case and that the accused had the right to a fair trial.

Orders

Orders of the court

See [57]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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