Re Nicholls

Case [2020] VSC 189


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL LAW DIVISION

S ECR 2020 0061

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by DAVID LOUIS NICHOLLS

---

JUDGE:

INCERTI J

WHERE HELD:

Melbourne

DATE OF HEARING:

15 April 2020

DATE OF JUDGMENT:

21 April 2020

CASE MAY BE CITED AS:

Re Nicholls

MEDIUM NEUTRAL CITATION:

[2020] VSC 189

---

CRIMINAL LAW – Application for Bail – Applicant charged with Schedule 1 offences – Requirement to show exceptional circumstances – Whether exceptional circumstances shown – COVID-19 pandemic – Applicant suffers from chronic asthma – Special vulnerability – Whether delay in criminal process due to COVID-19 is exceptional circumstances by itself – Limited recent criminal history – Residential rehabilitation – Significant surety – Exceptional circumstances shown – No unacceptable risk – Bail granted for period of residential rehabilitation – Judicial monitoring to review bail after residential rehabilitation – Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.

---

APPEARANCES:

Counsel Solicitors
For the Applicant Mr M McGrath Garde-Wilson Lawyers
For the Respondent Mr J Dickie Office of Public Prosecutions

HER HONOUR:

  1. David Nicholls (‘the applicant’), has been in custody since 26 February 2020. On that day, following the execution of search warrants at his home and business premises, the applicant was arrested and charged with multiple indictable charges, including trafficking in a large quantity of a drug of dependence (with respect to three drugs), unlawfully possessing two firearms, dealing with proceeds of crime and refusing to comply with directions to provide information and/or assistance to allow police to access devices seized at his premises.[1]

    [1]Unsworn affidavit of Monique Schwartz in opposition to an application for bail, dated 9 April 2020 [4].

  1. On 7 April 2020, the applicant filed an application for bail in this Court. He has previously been refused bail in the Magistrates’ Court on 31 March 2020. On that occasion, bail was refused on the basis that the applicant failed to show exceptional circumstances and was found to be an unacceptable risk of committing an offence while on bail and endangering the safety or welfare of any person.

  1. It is common ground that I must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail. That is because the applicant is accused of committing numerous Schedule 1 offences under the Bail Act 1977 (‘the Act’), including trafficking in not less than a large commercial quantity of a drug of dependence.[2]

    [2]Bail Act 1977 sch 1, item 6(a) (‘Bail Act’).

  1. In addition to two affidavits filed in support of the application,[3] and two affidavits filed in opposition,[4] the applicant, Senior Constable Lauren Plumbee, and Mr Paul McDonnell (senior counsellor at Refocus Alcohol and Drug Rehabilitation) gave viva voce evidence.

    [3]Affidavit of Zarah Garde-Wilson in support of an application for bail, affirmed 7 April 2020; Second affidavit of Zarah Garde-Wilson in support of an application for…

Continue reading Re Nicholls

Sign in free to access the full text

Details
AGLC
Re Nicholls [2020] VSC 189
Case
[2020] VSC 189
Decision Date

CaseChat Overview and Summary

David Louis Nicholls applied for bail in the Melbourne Magistrates’ Court, charged with Schedule 1 offences. The court had to determine whether exceptional circumstances were present, considering the COVID-19 pandemic, Nicholls' chronic asthma, and his recent criminal history. The applicant argued that the pandemic caused significant delays in the criminal process, which, combined with his health condition and limited criminal history, constituted exceptional circumstances. The court needed to weigh these factors against the risk of him failing to appear in court.

The court found that the delay in the criminal process due to the COVID-19 pandemic constituted exceptional circumstances. Additionally, Nicholls' chronic asthma made him more vulnerable to the virus, further justifying the need for bail. The applicant also had a limited criminal history and had agreed to participate in a residential rehabilitation program, which was supported by significant surety. The court concluded that there was no unacceptable risk of Nicholls failing to appear or reoffending, and granted bail subject to strict conditions. These conditions included attending a residential rehabilitation program, abstaining from drugs, surrendering his passport, and refraining from contacting prosecution witnesses.

The court ordered that Nicholls be admitted to bail on his own undertaking with one surety in the amount of $1,500,000, subject to several special conditions. These included attending a residential rehabilitation program for twelve weeks, complying with all treatment and directions from the rehabilitation program, and abstaining from drug use. Nicholls was also required to surrender his passport, refrain from contacting prosecution witnesses, and not leave the state of Victoria. The court scheduled a judicial monitoring hearing to review his compliance with the bail conditions.

The court's final orders detailed the specific conditions under which Nicholls was to be granted bail. These included attending a specified rehabilitation program, complying with all lawful directions from the program, and abstaining from drug use. Nicholls was also required to surrender his passport, refrain from contacting prosecution witnesses, and not leave the state of Victoria. The court scheduled a hearing to review his compliance with the bail conditions.

Orders

Orders of the court

Accordingly, I will order that DAVID LOUIS NICHOLLS be admitted to bail on his own undertaking with one surety in the amount of $1,500,000 (one million, five hundred thousand dollars), and on the following special conditions:

(a) He attend the Melbourne Magistrates’ Court on 21 May 2020 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.

(b) On being admitted to bail, he immediately attend at the Refocus Alcohol & Drug Rehabilitation Programs (‘Refocus Programs’), 15 Waterloo Crescent, St Kilda in Victoria and admit himself into the Residential Rehabilitation Program for twelve weeks, from 21 April 2020 to 20 July 2020, and not change that address without the leave of the Court. The applicant is to be accompanied and transported to Refocus Programs at 15 Waterloo Crescent, St Kilda by a solicitor from Garde-Wilson lawyers or a staff member of Refocus Programs. In the course of transporting the applicant to Refocus Programs, the applicant is permitted to stop only at 17 John Street, Kew in Victoria to collect the applicant’s medication (Ventolin and Breo Ellipta) and personal belongings.

(c) He remain at those premises for the duration of bail except in the company of a staff member from Refocus Programs.

(d) He comply with all lawful directions of Refocus Programs, including:

(iv) Undertaking all treatment as directed by Refocus Programs;

(v) Attending all appointments as directed by Refocus Programs; and

(vi) Providing any sample required by Refocus Programs for alcohol and other drug testing.

(e) He abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.

(f) He not contact, directly or indirectly, any witness for the prosecution, except the informant.

(g) He not leave the State of Victoria.

(h) He surrender any passport and any other travel documents he may have to the informant by 27 April 2020 of being released on bail, and not apply for another passport or any other travel documents.

(i) He not attend any points of international departure.

(j) He not possess or use a mobile phone or landline phone except under the direct supervision of a staff member of Refocus Programs until 20 July 2020, and provide the number of any landline and/or mobile phone to be used by him to the informant.

(k) He reappear before this Court for judicial monitoring to review his compliance with this order at 9:30am on Monday 6 July 2020, and any further dates this Court appoints during the course of this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.