Re Zayneh - [2023] VSC 470

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2023 0143

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by DANNY ZAYNEH

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2023
DATE OF JUDGMENT:	11 August 2023
CASE MAY BE CITED AS:	Re Zayneh
MEDIUM NEUTRAL CITATION:	[2023] VSC 470

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CRIMINAL LAW – Bail – Applicant charged with conspiring to import 1.6 tonnes of border-controlled drugs – Schedule 1 offences – Requirement to show exceptional circumstances – Whether exceptional circumstances made out – Delay constituting exceptional circumstances – Unacceptable risk – Whether applicant an unacceptable risk – Unacceptable risk of applicant not answering bail – Application refused – Bail Act 1977, ss 1B, 3AAA, 4A, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr G Boas with Dr E Kelly	Lewenberg & Lewenberg
For the Respondent	Ms K Breckweg	Solicitor for the Commonwealth Director of Public Prosecutions
For the Chief Commissioner of Victoria Police	Ms A Haben-Beer	Victorian Government Solicitors Office

HIS HONOUR:

The applicant is currently facing two charges of conspiring to import a commercial quantity of a border-controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) (charges 1 and 2); one charge of trafficking in a commercial quantity of a controlled drug, contrary to s 302.2(1) of the Criminal Code (charge 3); one charge of dealing with money that was, and believed to be, proceeds of crime, contrary to s 400.6(1) of the Criminal Code (charge 4); and one charge of possessing a registered general category handgun other than for the purpose of collecting, without being the holder of a licence, contrary to s 7(1) of the Firearms Act 1996 (charge 5).

The applicant was arrested on charges 1 and 2 on 7 June 2021, and has been in custody ever since. In December 2021, he applied for bail in the Magistrates’ Court. His application was refused. In July 2022, he made a further application for bail in the Magistrates’ Court. That application was also refused. On 5 July 2023, he filed an application for bail in this Court.

Charges 1, 2 and 3 are Schedule 1 offences within the meaning of s 3 of the Bail Act 1977 (‘the Act’).[1] Accordingly, in order to be granted bail, the applicant must establish the existence of exceptional circumstances that justify a grant of bail.[2] In the filed application, the applicant asserts that there are exceptional circumstances justifying bail being granted, including (but not limited to) the following:
[1]See items 8, 9 and 12 of Schedule 1 of the Act.
[2]See s 4A of the Act.

· the lack of strength of the prosecution case;

· the lack of a significant prior criminal history;

· his record of compliance and lack of any non-compliance with earlier bail conditions;

· the availability of a significant surety ($2.29 million);

· the availability of employment;

· the…

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 Zayneh

Details

AGLC: Re Zayneh [2023] VSC 470
Case: [2023] VSC 470
Decision Date: 11 August 2023

CaseChat Overview and Summary

In the case of Re Zayneh, the applicant, charged with conspiring to import 1.6 tonnes of border-controlled drugs, sought bail under the Bail Act 1977. The matter was heard by the Magistrates' Court of Victoria. The primary issue before the court was whether the applicant had demonstrated exceptional circumstances warranting his release on bail, given the serious nature of the charges.

The court examined the statutory criteria under the Bail Act 1977, particularly sections 1B, 3AAA, 4A, 4D, and 4E, which outline the stringent requirements for bail in cases involving serious drug offences. The applicant argued that exceptional circumstances existed due to the significant delay in the proceedings, which amounted to over a year. The court assessed whether this delay constituted an exceptional circumstance that would justify the applicant’s release on bail. Additionally, the court had to consider whether the applicant posed an unacceptable risk to the community, including the risk of reoffending and failing to appear in court.

In reaching its decision, the court found that the delay in proceedings did not constitute exceptional circumstances sufficient to warrant bail. The court also determined that the applicant posed an unacceptable risk to the community due to the gravity of the charges and the potential for reoffending. Consequently, the application for bail was refused. The court's reasoning hinged on the seriousness of the alleged offences and the likelihood of the applicant reoffending if released on bail.

The final orders of the court were that the application for bail be dismissed. The applicant was to remain in custody pending the resolution of his criminal charges.

Orders