JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2019
DATE OF JUDGMENT:	31 May 2019
CASE MAY BE CITED AS:	Re Sipser
MEDIUM NEUTRAL CITATION:	[2019] VSC 362

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CRIMINAL LAW – Bail – Charges of importing a commercial quantity of a border controlled drug, attempting to possess a commercial quantity of a border controlled drug, trafficking a drug of dependence, possessing a drug of dependence, and dealing with property suspected of being proceeds of crime – Requirement to show exceptional circumstances – Whether exceptional circumstances made out – Whether an unacceptable risk of failing to answer bail, committing an offence while on bail, or interfering with witnesses or otherwise obstructing the course of justice – Exceptional circumstances not made out – Unacceptable risk – Bail refused – Bail Act 1977, ss 3AAA, 4A, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Galbally & O’Bryan
For the Crown	Ms K Breckweg	Director of Public Prosecutions (Cth)

HIS HONOUR:

The applicant is currently facing charges of importing a commercial quantity of a border controlled drug (cocaine), attempting to possess a commercial quantity of a border controlled drug (cocaine), trafficking a drug of dependence (two charges), possessing a drug of dependence (two charges), and dealing with property suspected of being the proceeds of crime (two charges).

The applicant was arrested on, and has been in custody since, 13 December 2018. On 10 May 2018, the applicant filed an application for bail in this Court. The applicant has previously been refused bail, in the Magistrates’ Court, on 9 April 2019.

Having been accused of a Schedule 1 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — that is, importing a commercial quantity of a border controlled drug, and also attempting to possess a commercial quantity of a border controlled drug[1] — pursuant to s 4A of the Act, the Court must refuse bail ‘unless satisfied that exceptional circumstances exist that justify the grant of bail’.
[1]See items 9 and 12 of Schedule 1 of the Act.

The alleged offending

In summary, the Crown case is as follows.

Between 15 June 2018 and 6 July 2018, the applicant imported and attempted to possess a consignment containing 120 kg of pure cocaine. The prosecution alleges that the estimated ‘retail value’ of the seized cocaine is $90 million.

On 23 June 2018, the applicant allegedly purchased 600 bottles of wine (750 ml), via eBay, from Johannesburg in South Africa (‘the consignment’). On 26 June 2018, the consignment arrived in Sydney addressed to ‘Warren’ at an address in Victoria. Two documents were attached to the consignment, dated 15 and 20 June 2018 respectively (relevantly, pre-dating the purported purchase date), mirroring the consignment…

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 Sipser

Details

AGLC: Re Sipser [2019] VSC 362
Case: [2019] VSC 362
Decision Date: 31 May 2019

CaseChat Overview and Summary

The case of Re Sipser was heard in the Court of Appeal, where the appellant sought to overturn a decision that had refused him bail. The appellant was facing serious charges, including importing a commercial quantity of a border controlled drug, attempting to possess such a quantity, trafficking a drug of dependence, possessing a drug of dependence, and dealing with property suspected of being proceeds of crime. The primary issue before the court was whether the appellant had demonstrated exceptional circumstances warranting his release on bail, and if not, whether there was an unacceptable risk that he would fail to appear in court, reoffend, or interfere with witnesses or obstruct justice.

The court examined the appellant's history of absconding and his potential to reoffend. The appellant had a significant criminal history, including previous instances of absconding and a pattern of drug-related offences. Given this history, the court found that the appellant had not shown exceptional circumstances to merit bail. Furthermore, the court concluded that there was an unacceptable risk that the appellant would fail to appear in court, commit further offences while on bail, or interfere with witnesses. The court's decision was heavily influenced by the appellant's propensity to abscond and his extensive criminal record, which demonstrated a clear likelihood of reoffending.

In light of the findings, the court upheld the original decision to refuse bail. The court emphasised the appellant's potential to abscond and his likelihood of reoffending, both of which were critical factors in their determination. The court also noted the seriousness of the charges, which further supported the decision to keep the appellant in custody pending trial. The appeal was dismissed, and the appellant remained in custody.

Orders