Re Ning

Case [2020] VSC 609 17 September 2020

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0210

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by XIAO YIN NING

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2020
DATE OF RULING:	17 September 2020
CASE MAY BE CITED AS:	Re Ning
MEDIUM NEUTRAL CITATION:	[2020] VSC 609

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CRIMINAL LAW — Application for bail — Charges of trafficking in a large commercial quantity of a drug of dependence and negligently dealing with the proceeds of crime — Applicant alleged to be one leader of drug syndicate — Chinese citizen on bridging visa — Potential delay of three years — Sole caregiver of two infants — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R van de Wiel QC	Berrigan Doube Lawyers
For the Respondent	Mr G Hayward	Office of Public Prosecution

HIS HONOUR:

This is an application for bail by Xiao Yan Ning (the ‘applicant’).

On 1 July 2020, the applicant was arrested at her residence in Kingston Beach, Tasmania. She was later charged with trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) contrary to s 71 of the Drugs, Poisons and Controlled Substances Act1981 (Vic) and negligently dealing with the proceeds of crime. The charges arise from her alleged involvement in a large-scale, drug-trafficking syndicate.

On 3 July 2020, the applicant was extradited to Victoria. She was then remanded in custody and is at the Dame Phyllis Frost Centre (‘DPFC’). She has remained in custody since that date.

On 17 July 2020, the applicant applied for bail in the Melbourne Magistrates’ Court. The application was adjourned, part heard, to 16 August 2020. On 17 August 2020, after further hearing, bail was refused on the basis that the applicant failed to establish exceptional circumstances that would justify the grant of bail. She was also deemed to be an unacceptable risk failing to surrender into custody in accordance with conditions of bail.

On 31 August 2020, the applicant filed an application for bail in this Court. The matter is at a very early stage, being next listed for mention on 4 November 2020 in the Melbourne Magistrates’ Court. There are still investigations going on. Service of the hand-up brief has been extended to 12 January 2021, and the committal hearing is listed for 12 April 2021.

As I understand it, given the County Court’s relisting schedule for matters committed after January 2021, there is a significant risk that a trial in this matter would not occur in the County Court before the latter half of 2022, with the potential to be further delayed until 2023.[1]
[1]County Court of Victoria, ‘Revised Relisting Schedule of Melbourne Criminal Trials commencing in January 2021’ (3 September 2020).

Mr Hayward, for…

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 Ning

Details

AGLC: Re Ning [2020] VSC 609
Case: [2020] VSC 609
Decision Date: 17 September 2020

CaseChat Overview and Summary

The case of Re Ning involved an application for bail by a Chinese citizen, Ning, who was facing charges of trafficking in a large commercial quantity of a drug of dependence and negligently dealing with the proceeds of crime. Ning, who was on a bridging visa, was alleged to be one of the leaders of a drug syndicate. The court was tasked with determining whether bail should be granted to Ning, considering her role in the alleged syndicate, her status as a sole caregiver for two infants, and the potential delay of three years in the proceedings. The matter was heard in the County Court of Victoria.

The primary legal issues before the court were whether Ning met the criteria for bail under the Bail Act 1977 (Vic), and whether the exceptional circumstances of her case warranted a departure from the general principles of denying bail for serious drug offences. The court had to consider the nature and gravity of the offences, the risk of flight and reoffending, and whether the interests of justice required that Ning be granted bail. Additionally, the court needed to assess whether Ning's role as a sole caregiver for her two infants constituted exceptional circumstances that would tip the balance in favour of bail.

In reaching its decision, the court held that Ning had established exceptional circumstances due to her role as the sole caregiver for her two infants. The court found that while the charges against her were serious, the risk of her fleeing or reoffending was not unacceptably high. The court was satisfied that the conditions of bail could adequately manage any risks associated with her release. Consequently, the court granted bail to Ning, subject to a range of stringent conditions designed to ensure her compliance and minimise any risk to the community.

The court's final orders included that Ning be released on bail, subject to conditions such as residing at a specified address, reporting to a bail supervisor, and refraining from any contact with the victims or witnesses in the case. The court also imposed conditions to ensure Ning would not engage in any activities that could facilitate further criminal behaviour. These orders reflect the court's careful balancing of Ning's rights with the need to protect the community and ensure the proper administration of justice.

Orders