Re Trinh - [2021] VSC 356

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2021 0131

IN THE MATTER of an Application for bail by Minh TRINH

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2021
DATE OF JUDGMENT:	15 June 2021
DATE OF REASONS	18 June 2021
CASE MAY BE CITED AS:	Re Trinh
MEDIUM NEUTRAL CITATION:	[2021] VSC 356

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BAIL – Accused charged with trafficking in a large commercial quantity of heroin, knowingly dealing with proceeds of crime and related offences – Delay between arrest and trial likely to exceed three years – Hardship of COVID-19 restrictions in jail – Potential deleterious impact of COVID-19 jail restrictions on relationship between accused and young daughter – Minor prior convictions – Whether exceptional circumstances justifying a grant of bail – Whether accused unacceptable risk – Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A, 4D, 4E – Barbaro v DPP (2009) 20 VR 717; [2009] VSCA 26 - El Nasher v DPP [2020] VSCA 144 – Roberts v R [2021] VSCA 28.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C Duckett	Director of Public Prosecutions
For the Accused	Mr M Thomas	Kaczmarek Grigor Lawyers

HIS HONOUR:

On 15 June 2021, I heard a bail application by Minh Trinh (the applicant) who is charged with trafficking in a large commercial quantity of heroin, knowingly dealing with proceeds of crime and related offences. The applicant has been in custody on these charges since 10 April 2019. On 7 November 2019, he was committed to stand trial (straight hand-up brief). His trial was to commence on 27 January 2021 but in November 2020 was vacated because of the COVID-19 pandemic. He made an unsuccessful application for bail in the County Court (Judge Murphy) on 24 November 2020. There is a s 198B[1] hearing (in relation to the prosecution’s DNA expert) listed on 7 July 2021 but the applicant still does not have a trial date. The County Court has listed his case for mention on 17 January 2022 (sic) at which time it is likely that a trial date will be set. There is a real prospect – indeed it seems on the cards – that his trial will not commence until three years or more after his arrest.
[1]Criminal Procedure Act 2009 (Vic).

At the conclusion of the hearing on 15 June 2021, I was satisfied by the applicant that there were exceptional circumstances justifying bail.[2] The prosecution did not satisfy me that he was an unacceptable risk[3] and consequently, I granted bail on strict conditions, including a surety of $50,000. I said I would give detailed written reasons for my decision, which I do now.
[2]See Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A.
[3]Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A, 4D, 4E.

CIRCUMSTANCES OF ALLEGED OFFENDING

I gratefully adopt Judge Murphy’s succinct summary of the alleged offending:

1. The applicant is charged with a number of drug trafficking and possession…

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 Trinh

Details

AGLC: Re Trinh [2021] VSC 356
Case: [2021] VSC 356
Decision Date: 15 June 2021

CaseChat Overview and Summary

The matter involved a decision by the Court regarding the bail application of a person named Trinh, who was charged with trafficking in a large commercial quantity of heroin, knowingly dealing with proceeds of crime, and related offences. The court had to determine whether exceptional circumstances existed that would justify granting bail given the potential lengthy delay between the arrest and the trial, which was expected to exceed three years. The court also considered the impact of COVID-19 restrictions in the jail on the accused, as well as the potential negative impact on the relationship between the accused and his young daughter. Trinh had minor prior convictions and the court was required to decide if he posed an unacceptable risk to the community.

The legal issues before the court included the interpretation and application of sections 3AAA, 4AA, 4A, 4D, and 4E of the Bail Act 1977 (Vic), as well as relevant case law such as Barbaro v DPP, El Nasher v DPP, and Roberts v R. The court examined the principles established in these cases to determine if Trinh's circumstances were exceptional enough to warrant bail. The court weighed the delay in the trial, the conditions of detention due to COVID-19, and the potential impact on the accused's personal life against the seriousness of the charges and the risk he posed to the community.

The court found that the exceptional circumstances did indeed warrant a grant of bail. The length of the delay, coupled with the unique challenges posed by COVID-19 restrictions, created significant hardship for the accused and his family. The court concluded that these factors outweighed the severity of the charges and the risk to the community, determining that Trinh was not an unacceptable risk if granted bail under specific conditions.

The court made an order granting bail to Trinh, subject to certain conditions aimed at ensuring his attendance at trial and minimising any risk to the community. The specific terms of the bail conditions were outlined in the judgment.

Orders

Orders of the court

See [26]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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