Re Pham - [2023] VSC 440

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0150

IN THE MATTER of an application for bail
Between:
QUYEN XUAN PHAM	Applicant
-and-
DETECTIVE SENIOR CONSTABLE JOEL HEHIR	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2023
DATE OF ORDERS & REASONS:	27 July 2023
CASE MAY BE CITED AS:	Re Pham
MEDIUM NEUTRAL CITATION:	[2023] VSC 440

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CRIMINAL LAW — Application for bail — Applicant charged with cannabis cultivation, trafficking and possession (simpliciter), and theft of electricity — Applicant arrested at residential premises in which 57 immature cannabis plants growing hydroponically in bedroom with electrical bypass — Whether compelling reason justifying bail — Whether, if bailed, unacceptable risk of failing to answer bail — Applicant, Vietnamese national, recently arrived in Australia on visitor visa — Stable address — Employment — Daughter studying in Melbourne — No prior convictions — Surety of $7,000 — Delay — Period to be spent in custody before hearing likely to exceed any custodial sentence imposed, if convicted — Weaknesses in prosecution case — Triable issue that search unlawful and resulting evidence should be excluded — Compelling reasons established — Unacceptable risk not established — Bail granted with surety and other conditions — Bail Act 1977 (Vic), ss 4, 4AA, 4C, 4D & 4E; Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 81; Evidence Act 2008 (Vic), s 138.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms M Sturges	JLe Lawyers
For the Respondent	Mr P McKimmie	Victoria Police, Legal Practice Group

HIS HONOUR:

Overview

Quyen Xuan Pham applies for bail. He is charged with cultivating, trafficking and possessing cannabis, and theft of electricity. Mr Pham was arrested at a residential premises in St Albans in which 57 cannabis plants were found growing hydroponically in a bedroom, with an unauthorised electrical bypass.

The principal issues on this application are: first, whether Mr Pham has established a compelling reason justifying bail; and, second, whether the prosecution has shown an unacceptable risk that, if granted bail, he would fail to appear.

For reasons that follow, I am satisfied that Mr Pham has established a compelling reason justifying bail, and I am not satisfied that there is an unacceptable risk that he would fail to answer bail. Accordingly, I shall grant the application and release him with a surety of $7,000, and with other conditions.

Summary of alleged offending and arrest

The evidence supporting the charges is set out in a police summary, a precis of which follows.

At about 9:15 a.m. on 12 June 2023, police attended residential premises at 43 Denton Avenue in St Albans to make inquiries about a male in relation to unrelated alleged offending.

Cuong Van Nguyen, aged 32, answered the door. It is alleged that he gave consent to police to enter the premises to search for the male. (There is a dispute about whether that consent could have been given, and the potential consequences of…

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 Pham

Details

AGLC: Re Pham [2023] VSC 440
Case: [2023] VSC 440
Decision Date: 27 July 2023

CaseChat Overview and Summary

The applicant, Pham, a Vietnamese national recently arrived in Australia on a visitor visa, applied for bail in the County Court of Victoria. Pham is charged with cultivating cannabis, trafficking in it, possessing it, and stealing electricity. His arrest occurred at a residential property where 57 immature cannabis plants were found, hydroponically grown with an electrical bypass in the bedroom. The court was tasked with determining whether there were compelling reasons to grant bail and whether there was an unacceptable risk that Pham might fail to answer his bail if granted.

The legal issues before the court were whether Pham had established compelling reasons justifying bail and whether there was an unacceptable risk of him failing to answer his bail if it was granted. Pham argued that he had compelling reasons to be released, including his stable address, employment, and the presence of his daughter studying in Melbourne. He also contended that there was a delay in his case, which would result in him spending more time in custody before his hearing than he would if convicted. Pham further argued that there were weaknesses in the prosecution's case and a triable issue that the search was unlawful, leading to the exclusion of evidence. The prosecution argued that Pham posed an unacceptable risk to the community if released on bail.

The court found that Pham had established compelling reasons to be granted bail, including his stable living situation, employment, and the fact that he was supporting his daughter's education in Melbourne. The court also noted that Pham had no prior convictions and would likely spend more time in custody before his hearing than he would if convicted. While acknowledging the seriousness of the charges, the court found that Pham had demonstrated an unacceptable risk of failing to answer his bail was not established. Therefore, the court granted bail with the conditions of a $7,000 surety and other specified conditions.

The court's final orders were that Pham be released on bail with the conditions of a $7,000 surety and other specified conditions, including regular reporting to police, no contact with co-accused, and a curfew. Pham was also required to surrender his passport and refrain from leaving Australia without the court's permission. The court scheduled the next hearing for a later date to allow Pham's legal team to prepare for the trial.

Orders