JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2024
DATE OF RULING:	28 June 2024
CASE MAY BE CITED AS:	Re Zayneh (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 374

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CRIMINAL LAW – Bail – Applicant charged with conspiracy to import 1.6 tonnes of border-controlled drugs and other offences – Schedule 1 offences – Applicant previously refused bail – New facts or circumstances – Likely 5 year delay before trial, possible 6 year delay before trial – Requirement to show exceptional circumstances – Exceptional circumstances established by delay alone – Whether applicant an unacceptable risk – Risk of applicant failing to answer to bail – Risk rendered acceptable by delay – Bail granted – Stringent conditions – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5, 5AAA, 18, 18AA, 18AH.

HUMAN RIGHTS – Right to be brought to trial without unreasonable delay – Bail – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7, 21, 25, 32.

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APPEARANCES:	Counsel	Solicitors
For the applicant	E Kelly	Lewenberg & Lewenberg
For the respondent	B Stevens with B Kerlin	Commonwealth Director of Public Prosecutions

HIS HONOUR:

A. Introduction

The applicant, Danny Zayneh (“Zayneh”), has been charged with serious criminal offences involving conspiring to import and trafficking of commercial quantities of drugs, dealing with proceeds of crime and possessing a handgun without a licence. He was arrested on 7 June 2021 and has been on remand since that date.
Zayneh has previously made 2 unsuccessful applications for bail in the Magistrates’ Court of Victoria in December 2021 and July 2022 respectively.
On 5 July 2023, Zayneh filed a notice of intention to make an application for bail in this court, which application was heard on 9 August 2023 (“the August 2023 Application”). That application was also refused.[1] At the time the August 2023 Application was heard, a trial was not expected to commence until 2025, with a trial in 2026 “a real possibility”, meaning that Zayneh was likely to spend a period of at least 4 years on remand awaiting trial.[2] On the basis of delay alone, Beach JA was satisfied that Zayneh had established exceptional circumstances justifying the grant of bail.[3] However, Beach JA considered there was an unacceptable risk that, if released on bail, Zayneh would fail to surrender into custody in accordance with the conditions of bail, and that the delay, though significant, was not yet of such a magnitude as to render that risk acceptable.[4]
[1]Re Zayneh [2023] VSC 470.
[2]Ibid, [33]-[34].
[3]Ibid, [36].
[4]Ibid, [41]-[42].
Zayneh appealed that decision on the basis that Beach JA’s finding that the Commonwealth Director of Public Prosecutions (“the Director”) had established that Zayneh posed an unacceptable risk was unreasonable.[5] Though recording serious…

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 (No 2)

Details

AGLC: Re Zayneh (No 2) [2024] VSC 374
Case: [2024] VSC 374
Decision Date: 28 June 2024

CaseChat Overview and Summary

In the matter of Re Zayneh, the applicant, who was charged with conspiracy to import 1.6 tonnes of border-controlled drugs and other related offences, sought bail from the County Court of Victoria. The applicant had previously been denied bail, but now, with the likely delay of five years before the trial and a possible six-year delay, sought to have his bail application reconsidered. The court was required to determine whether there were exceptional circumstances to warrant a grant of bail and whether the applicant posed an unacceptable risk to the community if released on bail.

The court considered the significant delay in the trial and the impact it had on the applicant's right to a trial without unreasonable delay, as enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court held that the delay alone constituted exceptional circumstances, warranting a reconsideration of the bail application. Furthermore, the court found that the risk of the applicant failing to answer to bail was rendered acceptable due to the length of the delay, and thus granted bail. However, the court imposed stringent bail conditions to mitigate any potential risk to the community.

The court granted the applicant bail subject to a number of stringent conditions, including electronic monitoring and a curfew. The court found that the delay in the trial and the applicant's compliance with the conditions were sufficient to mitigate any risk to the community. The court also noted that the applicant's right to a trial without unreasonable delay was an important consideration in its decision to grant bail.

The court's final orders were that the applicant be granted bail subject to the conditions outlined in the judgment. The court emphasised the importance of the applicant's compliance with the conditions and the need to protect the community from any potential risk posed by the applicant. The court also noted that the delay in the trial was a significant factor in its decision to grant bail, and that the applicant's right to a trial without unreasonable delay was an important consideration.

Orders