Re Politis - [2019] VSC 780

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0239

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by YIANNA POLITIS

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2019
DATE OF JUDGMENT:	29 November 2019
CASE MAY BE CITED AS:	Re Politis
MEDIUM NEUTRAL CITATION:	[2019] VSC 780

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CRIMINAL LAW – Bail – Applicant charged with Schedule 1 offence – Requirement to show exceptional circumstances exist that justify grant of bail – Whether exceptional circumstances shown – Whether an unacceptable risk – Lack of criminal history – Weakness of prosecution case – Exceptional circumstances established – No unacceptable risk – Bail granted – Bail Act 1977, ss 1B, 3AAA, 4A, 4AA, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Norton	Stary Norton Halphen Lawyers
For the Respondent	Ms H Baxter	Office of Public Prosecutions

HER HONOUR:

Introduction

On 29 October 2019, Yianna Politis (‘the applicant’) was arrested and charged with:

(a) trafficking in a drug of dependence in not less than a commercial quantity pursuant to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981; and

(b) possession of a drug of dependence pursuant to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.

The applicant has been in custody since her arrest. On the night of her arrest, the applicant applied for bail in night court before Magistrate Lamble, where bail was refused. On 30 October 2019, the applicant appeared before Magistrate Clifford at the Melbourne Magistrates’ Court. She made a further application for bail which was again refused. The matter is next listed for a mention on 19 December 2019 at the Melbourne Magistrates’ Court.

By notice filed on 8 November 2019, the applicant seeks a grant of bail in this Court. As the applicant is charged with trafficking in a drug of dependence in not less than a commercial quantity, bail must be refused unless she can satisfy the Court that exceptional circumstances exist which justify the grant of bail.[1]
[1]Bail Act 1977 sch 1, item 6(b) (‘Bail Act’).

The respondent does not oppose bail and submits that any risk could be made acceptable with appropriate bail conditions.

The alleged offending

On Monday, 28 October 2019 at approximately 10:38pm, the police intercepted a BMW SUV, which was travelling west on Williamstown Road in Port Melbourne. Thomas Garrard was driving the vehicle, the applicant was the front passenger, and Anthony Aucello was the rear left passenger.

Detective Senior Constable Murray Gentner searched the vehicle and seized, among other things, the following items:

(a) a box of ‘Fiji’ water containing 10 x 1 litre unsealed bottles of clear viscous liquid, alleged to be 1,4 Butanediol; and

(b) 1 x Cool Ridge water bottle (1/5^th full) containing a viscous liquid alleged to be 1,4 Butanediol.

After the police established that the parties had been…

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 Politis

Details

AGLC: Re Politis [2019] VSC 780
Case: [2019] VSC 780
Decision Date: 29 November 2019

CaseChat Overview and Summary

Politis applied for bail from the Court of Appeal against his conviction and sentence. Politis was charged with a Schedule 1 offence under the Criminal Code. The primary legal issue before the court was whether exceptional circumstances existed that would justify the grant of bail, given the serious nature of the offence. The court had to consider the requirement under the Bail Act 1977 that exceptional circumstances must be shown for an application to succeed in cases involving Schedule 1 offences. Additionally, the court needed to determine whether there was an unacceptable risk that Politis would reoffend or interfere with witnesses or the administration of justice if released on bail.

The court found that Politis had established exceptional circumstances, taking into account his lack of criminal history and the weaknesses in the prosecution's case. The court was satisfied that there was no unacceptable risk of reoffending or interference with witnesses or the administration of justice. Consequently, the appeal against the refusal of bail was allowed, and Politis was granted bail. The court concluded that the balance of considerations favoured the grant of bail, despite the serious nature of the charges.

Orders