Re Ngo - [2024] VSC 474

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0136

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an Application for Bail by Hang Thi NGO

BETWEEN:

Hang Thi NGO	Applicant
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DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2024
DATE OF RULING:	21 June 2024
DATE OF REVISED REASONS:	12 August 2024
CASE MAY BE CITED AS:	Re Ngo
MEDIUM NEUTRAL CITATION:	[2024] VSC 474

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CRIMINAL LAW — Application for bail — Single charge of cultivating a narcotic plant in not less than a large commercial quantity — Heavily pregnant applicant experiencing health complications — Married to co‑accused — Surety — Strength of prosecution case — Delay — No criminal record — First time in custody — Non‑English speaking background — Exceptional circumstances satisfied — Unacceptable risk not found — Bail granted with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Andrew Dickenson	Giorgianni & Liang Lawyers
For the Respondent	Matt Fisher	Office of Public Prosecutions

HIS HONOUR:

Introduction

By application dated 12 June 2024, Hang Thi Ngo [‘the applicant’] applies for a grant of bail from this court.

The applicant is 29 years old. She is 33 weeks pregnant and in custody for the first time. She is a Vietnamese national on a student visa in Australia and she does not speak English. She applies for bail in respect of one charge of cultivating a narcotic plant, namely cannabis, in a large commercial quantity, contrary to section 72 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

The applicant was arrested, charged and remanded in custody for the alleged offending on 29 November 2023. She was refused bail at the Bendigo Magistrates’ Court on 12 February 2024 on the basis that she did not meet the exceptional circumstances test to justify a grant of bail. Her matter is next listed for a two‑day committal hearing in the Bendigo Magistrates’ Court, commencing on 14 November 2024, alongside four co‑accused namely, Hua Van Duong, Duc Ahn Nguyen, Van Phuc Tu and the applicant’s husband, Song Ngoc Duong. They face the same charges as the applicant and are remanded in custody. Duc Ahn Nguyen and Song Ngoc Duong hold student visas, and Hua Van Duong and Van Phuc Tu hold temporary bridging visas.

The application is supported by affidavit material from both the applicant and the prosecution. The parties did not file nor seek to rely on any written submissions.

The alleged offending

As to a brief description of the alleged offending, in August 2023, Victoria Police commenced an investigation into cannabis cultivation and production, and associated operations in Melbourne and rural Victoria after receiving an information report from the Australian Federal Police.

On 29 November 2023, Victoria Police executed search warrants at properties in Dunluce, Kamarooka and Deer Park:

(a) Co‑accused Hua Van Duong and Duc Anh Nguyen were arrested at the Dunluce…

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 Ngo

Details

AGLC: Re Ngo [2024] VSC 474
Case: [2024] VSC 474
Decision Date: 21 June 2024

CaseChat Overview and Summary

In the case of Re Ngo, the applicant sought bail from the Supreme Court of Victoria on a charge of cultivating a narcotic plant in a large commercial quantity. Ngo, who was heavily pregnant and experiencing health complications, was married to a co-accused and had a surety. The central legal issues for the court to decide were whether Ngo satisfied the criteria for bail, including the exceptional circumstances test and the unacceptable risk test. The court also considered the strength of the prosecution case, the delay in the proceedings, Ngo's lack of a criminal record, and her being in custody for the first time. Furthermore, the court took into account Ngo's non-English speaking background.

The court held that Ngo met the exceptional circumstances criteria due to her pregnancy and health complications. The risk of flight and interfering with witnesses was deemed acceptable as Ngo had a strong incentive to attend court due to her pregnancy, and the surety provided additional assurance. The court also noted the delay in the proceedings, Ngo's clean criminal record, and her first-time incarceration as factors in favour of bail. The strength of the prosecution case was not deemed to be a decisive factor against granting bail. Finally, Ngo's non-English speaking background was considered, but it was determined not to outweigh the other factors in favour of bail.

As a result, the court granted Ngo bail with conditions. The conditions included her remaining with the surety, reporting to a designated address, and complying with any other conditions the court deemed necessary. The court's decision balanced the exceptional circumstances present in Ngo's case with the need to ensure that she would appear in court and not pose an unacceptable risk to the community.

Orders