Re Nguyen - [2022] VSC 836

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0223

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by Chi Thanh NGUYEN

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2022
DATE OF JUDGMENT:	8 September 2022
DATE OF PUBLISHED REASONS:	28 June 2023
CASE MAY BE CITED AS:	Re Nguyen
MEDIUM NEUTRAL CITATION:	[2022] VSC 836

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CRIMINAL LAW – Application for bail – Charges of murder and trafficking a commercial quantity of a drug of dependence – Strength of the prosecution case – Delay – Onerous custodial conditions due to COVID-19 pandemic – Exception circumstances established – Surety – Unacceptable risk mitigated by the imposition of bail conditions – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4D.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Tim Marsh	Angus Cameron Lawyers
For the Respondent	Ms Lauren Gurry	Office of Public Prosecution

HIS HONOUR:

Introduction

By an application dated 26 August 2022, Chi Thanh Nguyen seeks bail (‘the applicant’). The applicant has been in custody since 18 July 2022, and he is currently on remand for charges of murder, trafficking a commercial quantity of a drug of dependence, being methylamphetamine, and possessing a drug of dependence, being cannabis.

The applicant has not previously applied for bail. Because he is charged with murder, only this court or a court committing the matter for trial can grant bail, and the parties agree that the applicant is required to demonstrate exceptional circumstances that would justify the grant of bail.

There are two co-accused in the matter, Yu Ying Juan (‘Juan’) and Tong Diem Vuong (‘Vuong’), who are both charged with murder and are currently in custody on remand. Juan is the applicant’s partner and Vuong is Juan’s ex-partner.

The next listing for this matter at the committal stage is at the Melbourne Magistrates’ Court on 2 November 2022.

The alleged offending
Background

The applicant is charged with the murder of Hai Dai Lam, a 49-year-old man from St Albans (‘the deceased’).

At the time of the alleged offending, the applicant was living at 9 Palm Street, Thomastown (‘the Thomastown address’) with his partner and the co-accused, Juan.

On 29 June 2022, the deceased man attended the Thomastown address to facilitate a drug transaction between Juan and an associate named John Booth (‘Booth’).

The following day, three men wearing balaclavas committed an aggravated burglary on the Thomastown address while Juan was present, assaulting her and stealing approximately $250,000 worth of drugs and an unknown quantity of cash. This incident is described generally in the material as ‘the drug rip’.

Nick Peng (‘Peng’) was living with the applicant and Juan at the Thomastown address until 1 July 2022 and referred to Juan as his ‘god mum’, although he had only known her since early 2022.

The applicant, Juan, Vuong and Booth originally suspected that Peng was involved in the…

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 Nguyen

Details

AGLC: Re Nguyen [2022] VSC 836
Case: [2022] VSC 836
Decision Date: 8 September 2022

CaseChat Overview and Summary

The case of Re Nguyen involved an application for bail made by the defendant, who faced serious charges including murder and trafficking a commercial quantity of a drug of dependence. The matter was heard in the County Court of Victoria. The prosecution opposed the bail application on the basis of the seriousness of the charges and the potential for interference with witnesses. The defence argued that the defendant should be granted bail due to the exceptional circumstances posed by the COVID-19 pandemic, which had resulted in severe custodial conditions, and the strength of the prosecution's case was not compelling enough to warrant continued detention.

The court had to determine whether the defendant met the criteria for bail under the Bail Act 1977 (Vic), considering the seriousness of the offences, the strength of the prosecution case, and the risk of interference with witnesses. Additionally, the court had to weigh the impact of the COVID-19 pandemic on the defendant's custodial conditions and the overall public interest in the defendant being granted bail. The court also had to assess the risk the defendant posed to the community and whether this risk could be mitigated by imposing certain bail conditions.

The court found that, while the charges were serious, the prosecution had not established a case strong enough to prevent the granting of bail. The exceptional circumstances caused by the COVID-19 pandemic were considered, and the court found that the defendant's risk of infection was high, warranting bail. The court accepted the surety offered and determined that the risk to the community could be mitigated by imposing strict bail conditions, including electronic monitoring, a curfew, and strict reporting requirements. Consequently, the court granted bail with conditions under the Bail Act 1977 (Vic).

The final orders of the court included the defendant being released on bail subject to a number of conditions. These included electronic monitoring, a curfew, strict reporting requirements, and a prohibition on contacting certain individuals. The court emphasised that any breach of these conditions would result in the immediate recall of the defendant's bail. The defendant was also required to surrender any travel documents and refrain from leaving the state of Victoria without the permission of the court.

Orders