Re Quach - [2022] VSC 7

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0374

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by TOAN DANG QUACH

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JUDGE:	Priest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2022
DATE OF JUDGMENT:	20 January 2022
CASE MAY BE CITED AS:	Re Quach
MEDIUM NEUTRAL CITATION:	[2022] VSC 7

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CRIMINAL LAW – Bail – Applicant charged with Schedule 1 offences of cultivating and trafficking not less than a large commercial quantity of cannabis – Whether exceptional circumstances justifying grant of bail – Whether unacceptable risk of not answering bail – Bail refused – Bail Act 1977, s 3AAA, s 4A, s 4AA, s 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC	The Office of David Grace QC
For the Respondent	Mr P Pickering	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

The applicant, aged 36 years,[1] is charged with cultivating not less than a large commercial quantity of cannabis[2] (five charges — charges 1 to 5); trafficking not less than a large commercial quantity of a drug of dependence[3] (one charge — charge 6); theft of electricity[4] (four charges — charges 7 to 10); using identification information (that does not relate to that person) intending to use it to facilitate an indictable offence[5] (charge 11); and possessing identification information intending to use it to facilitate the commission of an indictable offence[6] (charge 12). He has been in custody since his arrest on 9 September 2021. A committal proceeding is fixed for hearing at the Melbourne Magistrates’ Court on 16 June 2022, with an estimated duration of three days.
[1]His date of birth is 2 January 1986.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 72.
[3]Drugs, Poisons and Controlled Substances Act 1981, s 71(1).
[4]Crimes Act 1958, s 74.
[5]Crimes Act 1958, s 192B.
[6]Crimes Act 1958, s 192C.

At a filing hearing conducted at the Melbourne Magistrates’ Court on 10 September 2021 the applicant did not apply for bail. He did so, however, when the matter returned to the Magistrates’ Court for committal mention on 3 December 2021. A magistrate refused that application holding, first, that the applicant had failed to establish exceptional circumstances justifying the grant of bail; and, secondly, that the prosecution had satisfied the Court that there was an unacceptable risk that the applicant would fail to answer bail.

The applicant now seeks bail from this Court. Bail is opposed by the respondent. Given that cultivation of a narcotic plant in a quantity not less than a large commercial quantity, and trafficking not less than a large commercial quantity of cannabis, fall respectively within cl 6(c) and cl 6(a) of Schedule 1 of the Bail Act 1977 (‘the Act’), bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[7]

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 Quach

Details

AGLC: Re Quach [2022] VSC 7
Case: [2022] VSC 7
Decision Date: 20 January 2022

CaseChat Overview and Summary

The case of Re Quach involved an applicant charged with offences under the Criminal Code Act 1995, specifically cultivating and trafficking a large commercial quantity of cannabis, classified as Schedule 1 offences. The applicant sought bail pending the resolution of his criminal proceedings. The matter was heard in the Supreme Court of Queensland, where the presiding judge assessed the application under the Bail Act 1977. The legal issues before the court were whether there were exceptional circumstances justifying the grant of bail and whether the applicant posed an unacceptable risk of not answering his bail. The court also had to consider the safety of the community and the likelihood of the applicant absconding if granted bail.

In determining the application, the court weighed the seriousness of the charges against the applicant against the principles of the Bail Act. The court noted that the applicant was charged with offences involving a large commercial quantity of cannabis, which indicated a significant level of criminal activity. Given the severity of the alleged offences, the court found that the presumption against bail was firmly applicable. The applicant did not present any exceptional circumstances that would warrant a departure from this presumption. Furthermore, the court concluded that there was an unacceptable risk that the applicant would not answer his bail, considering the nature of the charges and the potential for reoffending. The court was also concerned about the safety of the community and the risk of the applicant absconding if released on bail.

Based on the assessment of these factors, the Supreme Court of Queensland refused the applicant's bail application. The court found that the presumption against bail was not rebutted and that the risk of not answering bail and reoffending outweighed any considerations in favour of granting bail. The court also determined that the applicant's release on bail would not be in the interests of justice. The final orders were that the applicant remain in custody pending the resolution of his criminal proceedings.

Orders