Re Naughten - [2018] VSC 806

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2018 0248

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by Melinda NAUGHTEN

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2018
DATE OF JUDGMENT:	2 November 2018
CASE MAY BE CITED AS:	Re Naughten
MEDIUM NEUTRAL CITATION:	[2018] VSC 806

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CRIMINAL LAW – Application for bail – Exceptional circumstances – Charges of trafficking in a large commercial quantity of a drug of dependence, possessing drug of dependence, being a prohibited person in possession of a firearm, possessing an unregistered general category firearm, possessing materials for the manufacture of a drug of dependence, unlicensed person storing a firearm in an insecure manner, unlicensed person storing ammunition in an insecure manner, dealing with property suspected of being proceeds of crime, trafficking in a drug of dependence, possession of a prohibited weapon, storing unauthorised explosives, dishonestly receiving stolen goods, possession of body armour without exemption – Delay – Strength of prosecution case – Surety – Offer of employment –
Live with parents – CISP – Bail granted – Bail Act 1977.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Maidment QC	Sarah Pratt & Associates
For the Respondent	Ms N Burnett	Office of Public Prosecutions

HIS HONOUR:

Introduction

On 22 August 2018, Melinda Naughten (‘the applicant’) was arrested and charged with trafficking in a large commercial quantity of a drug of dependence (methylamphetamine); four counts of possessing a drug of dependence (methylamphetamine, cocaine, and ecstasy); being a prohibited person in possession of a firearm; possessing an unregistered general category firearm; possessing materials for the manufacture of a drug of dependence (methylamphetamine); unlicensed person storing a firearm in an insecure manner; unlicensed person storing ammunition in an insecure manner; three counts of dealing with property suspected of being proceeds of crime ($102, 450, a birth certificate and passport, and three firearm holsters); trafficking in a drug of dependence (cocaine); possession of a prohibited weapon (taser); storing unauthorised explosives (fireworks); dishonestly receiving stolen goods (ballistic vest); and possession of body armour without exemption.

The applicant was charged with these offences after Victoria Police executed a search warrant at a residential address in Cranbourne North, on 22 August 2018.

The applicant has been in custody since her arrest. She has no outstanding matters, and was not subject to any court orders at the time of the alleged offending. On 6 September 2018, the applicant was refused bail at the Melbourne Magistrates’ Court. Presently, the charges are listed for a committal mention on 15 November 2018 at the Melbourne Magistrates’ Court.

There are two co-accused in this matter, brothers Sasa Dukic and Dejan Dukic. Dejan Dukic was charged with possessing a drug of dependence (methylamphetamine), using a drug of dependence (methylamphetamine), and committing an indictable offence whilst on bail, on the same day as the applicant. He has also applied for a grant of bail in this…

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 Naughten

Details

AGLC: Re Naughten [2018] VSC 806
Case: [2018] VSC 806
Decision Date: 2 November 2018

CaseChat Overview and Summary

The case of Re Naughten involved the applicant, Naughten, applying for bail in the context of a series of serious criminal charges. These included trafficking in a large commercial quantity of a drug of dependence, possessing a drug of dependence, being a prohibited person in possession of a firearm, possessing an unregistered general category firearm, possessing materials for the manufacture of a drug of dependence, unlicensed person storing a firearm in an insecure manner, unlicensed person storing ammunition in an insecure manner, dealing with property suspected of being proceeds of crime, trafficking in a drug of dependence, possession of a prohibited weapon, storing unauthorised explosives, dishonestly receiving stolen goods, and possession of body armour without exemption. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the exceptional circumstances provisions of the Bail Act 1977 applied and if bail could be granted. This hinged on assessing the strength of the prosecution case against Naughten, the risk of flight, the risk to the community, and the availability of suitable sureties. The court also considered the delay in bringing the charges and Naughten’s offer of employment, as well as his intention to live with his parents and participate in a Community Intervention and Support Program (CISP).

The court found that while the charges were serious, there were mitigating factors that warranted bail. The exceptional circumstances test was met, primarily due to the significant delay in the prosecution and Naughten’s offer of employment, which provided a degree of stability. Additionally, Naughten’s intention to reside with his parents and participate in a CISP was seen as a measure to support his rehabilitation and reduce the risk to the community. The court concluded that the risk of Naughten failing to appear was low, given the strength of the surety and his personal circumstances. Consequently, the court granted bail with conditions.

The court ordered that Naughten be released on bail subject to conditions, including residence with his parents, adherence to a strict curfew, regular check-ins with a bail supervision officer, and participation in the CISP. Naughten was also required to refrain from possessing firearms or ammunition and to report any changes in his employment status or living arrangements. These orders aimed to balance the need for community protection with Naughten’s right to liberty pending the resolution of the charges.

Orders