Re Nguyen-Huynh - [2021] VSC 791

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0308

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by Minh NGUYEN-HUYNH

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2021
DATE OF JUDGMENT:	29 November 2021
DATE OF REVISED REASONS:	30 November 2021
CASE MAY BE CITED AS:	Re Nguyen-Huynh
MEDIUM NEUTRAL CITATION:	[2021] VSC 791

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CRIMINAL LAW — Application for bail — Charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug — Delay of three and a half years between charge and trial — Strength of the prosecution case — Exceptional circumstances established — Unacceptable risk demonstrated — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. John Saunders	SLKQ Lawyers
For the Respondent	Ms. Georgia McMaster	Commonwealth Director of Public Prosecutions

HIS HONOUR:

This is an application for bail by Minh Nguyen-Huynh (‘the applicant’) who is charged with attempting to possess a commercial quantity of an unlawfully imported border controlled drug (methamphetamine).[1] The quantity of drugs involved is of the order of 78 kilograms with a value of about $16 million.
[1]Contrary to s 307 of the Criminal Code Act 1995 (Cth).

The applicant has been on remand since his arrest on 15 January 2021, a period of 317 days, or more than 10 months. He was charged by Federal Agent Emma Skinner on 16 January 2021.

The applicant has been refused bail twice in the Melbourne Magistrates’ Court on 15 March 2021, and on 10 August 2021 at the conclusion of his committal hearing, as he did not establish that exceptional circumstances existed which justified the grant of bail. By notice filed on 5 November 2021, the applicant now seeks a grant of bail in this Court.

The matter is next listed on 14 December 2021 for a directions hearing at the County Court at Melbourne.

There is one co-accused in the matter, Duc Quang Nguyen, who also faces the same charge as the applicant, along with another charge of importing a commercial quantity of a border controlled drug (methamphetamine) contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth). He remains in custody, having made no application for bail.

The alleged offending

In summary, the prosecution allege that the co-accused imported 78 kilograms of methamphetamine into Australia on 4 January 2021 concealed within a consignment of meat smokers that arrived by air from South Africa. It is alleged that the applicant was involved in coordinating the consignment, but he is not charged with the importation itself.

On 4 January 2021, Australian Border Force located the packages of methamphetamine concealed within three boxes. They were addressed to Thomas Matthews of 33 Oberon Avenue, St Albans (‘delivery address’) with a contact mobile phone number listed. These details are allegedly linked to the co-accused, with the contact phone…

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-Huynh

Details

AGLC: Re Nguyen-Huynh [2021] VSC 791
Case: [2021] VSC 791
Decision Date: 29 November 2021

CaseChat Overview and Summary

In the case of Re Nguyen-Huynh, the applicant, Nguyen-Huynh, sought bail in relation to charges of attempting to possess a commercial quantity of a border controlled drug. The matter was heard by the County Court of Victoria, presided over by Justice Smith. The key issue before the court was whether the applicant should be granted bail given the significant delay between the time of the charge and the impending trial, the strength of the prosecution's case, and the circumstances surrounding the alleged offence.

The court had to determine whether the exceptional circumstances that justified the delay in bringing the case to trial outweighed the presumption in favour of bail. It also needed to assess the risk of the applicant committing further offences if released and the impact of any potential flight risk on the community. The strength of the prosecution's evidence and the likelihood of conviction were also critical factors in the court's decision-making process. Ultimately, the court considered whether the applicant demonstrated an unacceptable risk to the community if released on bail.

Justice Smith concluded that the exceptional circumstances did not sufficiently justify the delay in bringing the case to trial. The court found the prosecution's case to be strong, with substantial evidence pointing towards the applicant's guilt. Additionally, the court was satisfied that the risk of the applicant committing further offences, if released, was unacceptable. Consequently, the application for bail was refused. The court did not see fit to grant bail, considering the weight of the evidence against the applicant and the potential harm to the community if the applicant were to be released.

Orders