Re O'Connell - [2023] VSC 726

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0273

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by Muiris O’Connell

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2023
DATE OF RULING:	28 November 2023
CASE MAY BE CITED AS:	Re O’Connell
MEDIUM NEUTRAL CITATION:	[2023] VSC 726

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CRIMINAL LAW – Bail – Applicant charged with importing commercial quantity of border controlled drugs and related offences – Schedule 2 offence – Requirement to show a compelling reason – Whether unacceptable risk – Bail granted – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4C, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the applicant	S Tovey	Stary Norton Halphen
For the respondent	M Keks	Commonwealth Director of Public Prosecutions

HIS HONOUR:

A. Introduction

On 10 November 2023, an application for bail was filed in this court on behalf of Muiris O’Connell (“O’Connell”). O’Connell is an Irish citizen residing in Australia on a skilled migrant visa.
On 18 July 2023, O’Connell was arrested, charged and remanded at Melbourne Airport for the following drug-related offences:
(1)Importing a commercial quantity of a border controlled drug, namely gamma-butyrolactone (“GBL”), contrary to section 307.1(1) of the schedule (“the Criminal Code”) to the Criminal Code Act 1995 (Cth).
(2)Possession of a drug of dependence, namely 1,4-butanediol, contrary to section 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(3)Importing a border controlled drug, namely ketamine, contrary to section 307.4(1) of the Criminal Code.
(4)Importing a border controlled drug, namely methamphetamine, contrary to section 307.4(1) of the Criminal Code.
On 8 November 2023, O’Connell made an unsuccessful application for bail in the Magistrates’ Court of Victoria. At the committal mention on the same day, O’Connell indicated he would plead guilty to the charges against him. It will be submitted on the plea that none of the drugs in O’Connell’s possession at the time of his arrest were intended for sale.
The prosecution does not accept this characterisation of the conduct, as O’Connell admitted an intention to supply drugs to persons he knew. However, the prosecution does accept that O’Connell was not engaged as a non-user in the business of an ongoing operation of drug importation for profit.
The respondent opposes bail on the basis that O’Connell has failed to demonstrate a compelling reason that justifies bail being granted. Ultimately, the respondent did not contend that O’Connell would be an unacceptable risk if the proposed conditions were imposed. However, it maintained that a compelling reason had not been established.

B. Background

B.1 Alleged offending

O’Connell landed in Melbourne on a flight from Singapore at approximately 9.30am on 18 July 2023. At approximately 10.20am, he arrived at the Melbourne Airport international arrivals hall with 1 black backpack and 1 small blue rectangular bag on wheels. O’Connell later collected 1 yellow “the North Face” branded bag and 1 large blue rectangular bag on wheels from the baggage…

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 O'Connell

Details

AGLC: Re O'Connell [2023] VSC 726
Case: [2023] VSC 726
Decision Date: 28 November 2023

CaseChat Overview and Summary

The case of Re O'Connell involved an applicant who was charged with importing a commercial quantity of border-controlled drugs, along with related offences. The applicant sought bail from the County Court of Victoria. The primary legal issue before the court was whether the applicant should be granted bail, given the serious nature of the charges and the potential risks involved. The court had to consider the balance between the applicant's right to liberty and the community's need to be protected from unacceptable risks.

The court examined the provisions of the Bail Act 1977 (Vic), particularly sections 1B, 3AAA, 4AA, 4D, and 4E, which relate to the principles of bail and the criteria for denying bail. Section 4AA outlines the factors to be considered in determining whether bail should be granted, including the seriousness of the offence, the likelihood of the applicant appearing in court, and the risk of reoffending. The court also considered section 4D, which requires the applicant to show a compelling reason why bail should be granted, and section 4E, which pertains to the risk of offending while on bail. The court found that despite the gravity of the charges, the applicant had demonstrated sufficient grounds for bail, including the absence of a prior criminal record and the likelihood of compliance with bail conditions.

In reaching its decision, the court noted that the applicant had provided compelling evidence of his ties to the community, his employment, and his support network. The court was satisfied that there were adequate conditions that could be imposed to mitigate the risk of reoffending and ensure the applicant's appearance in court. Consequently, the court granted the applicant bail. The decision underscores the importance of assessing each case on its unique circumstances and the need to balance individual rights with community safety.

Orders