Re Nhat L - [2021] VSC 446

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0184

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an Application for Bail by NHAT L	Applicant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2021
DATE OF RULING:	29 July 2021
CASE MAY BE CITED AS:	Re Nhat L
MEDIUM NEUTRAL CITATION:	[2021] VSC 446

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CRIMINAL LAW – Bail – Applicant charged with attempting to possess a commercial quantity of methamphetamine and other Commonwealth offences charges including drug trafficking – Two of three co-accused already bailed – Parity – Delay – Exceptional circumstances not established – Unacceptable risk – Bail Act 1977 – s 1B, 5AAA, 4A, 4E(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Dickinson QC	Balot Reilly Criminal Lawyers
For the Respondent	Ms R Champion	Commonwealth Director of Public Prosecutions

HER HONOUR:

Introduction

Nhat L (‘the applicant’) seeks bail for the following charges where Constable Nicholas Wall is the informant (‘Wall Charges’):

(a) Between 7 November 2020 and 20 November 2020 attempting to possess a commercial quantity of border controlled drugs, namely methamphetamine, contrary to ss 11.1(1)[1] and 307.5(1) of the Criminal Code Act 1995 (Cth)(‘Criminal Code’) between 7 November 2020 and 29 November 2020;
[1]Regarding attempts.

(b) On 20 November 2020 trafficking in a commercial quantity of a controlled drug, namely methamphetamine, contrary to s 302.2(1) of the Criminal Code;

(c) On 20 November 2020 trafficking in a marketable quantity of a controlled drug, namely heroin, contrary to s 302.3(1) of the Criminal Code;

(d) On 20 November 2020, dealing with proceeds of crime where the value of the money or property was less than $100,000 contrary to s 400.9(1A) of the Criminal Code; and

(e) Committing an indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977 (Vic)(‘the Act’).

The applicant has been on remand on the above charges since 20 November 2020. On 20 May 2021, the applicant was refused bail in the Melbourne Magistrates’ Court because he failed to show exceptional circumstances. The Wall charges are next listed for further Committal Mention on 26 August 2021 at the Melbourne Magistrates’ Court. The last two committal mentions were adjourned due to the brief of evidence being incomplete.[2] At the hearing, the respondent confirmed the brief of evidence was now complete and that it would be served the following day.
[2]Previous committal mentions were held on 20 May 2021 and 7 July 2021, Affidavit in Support of Bail of George Balot signed 16 July 2021 (‘Affidavit in Support’) [22], [23].

At the time of committing the offences the subject of charges 1- 4, the applicant was on bail for a single charge of driving whilst disqualified. That charge dates back to 2018, but could not be served on the applicant at that time due to an incorrect address being provided. An arrest warrant was issued, and subsequently executed on 17 April 2020. 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 Nhat L

Details

AGLC: Re Nhat L [2021] VSC 446
Case: [2021] VSC 446
Decision Date: 29 July 2021

CaseChat Overview and Summary

The applicant, Nhat L, sought bail in relation to charges of attempting to possess a commercial quantity of methamphetamine and other Commonwealth offences, including drug trafficking. Two of the three co-accused had already been granted bail. The case was heard in a relevant Australian court. The legal issues before the court were primarily concerned with whether the applicant should be granted bail, considering the nature of the charges, the precedent set by the bail of the co-accused, and the risk to the community if bail were granted.

The court examined the statutory provisions under the Bail Act 1977, particularly sections 1B, 5AAA, 4A, and 4E(1). It considered the principle of parity, which required a consistency in bail decisions for co-accused facing similar charges. The court also assessed the delay in processing the bail application and whether exceptional circumstances warranted a departure from the norm. Ultimately, the court concluded that while parity and delay were factors, the significant nature of the charges and the risk posed to the community if bail were granted outweighed these considerations. The applicant's history and the potential for reoffending further supported the decision to refuse bail.

Given the risk to the community and the severity of the charges, the court found that the applicant did not meet the criteria for bail. It was determined that an unacceptable risk would be posed to the community if the applicant were to be released. Consequently, the application for bail was refused. The court’s decision was based on a comprehensive evaluation of the statutory criteria and the specific circumstances of the case, ensuring a balanced approach to the applicant's rights and community safety.

Orders