Re Zayneh (No 3) - [2024] VSC 726

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0124

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by Danny ZAYNEH

---

JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2024
DATE OF RULING:	22 November 2024
CASE MAY BE CITED AS:	Re Zayneh (No 3)
MEDIUM NEUTRAL CITATION:	[2024] VSC 726

---

CRIMINAL LAW – Bail – Application for variation of undertakings – Application granted.

---

APPEARANCES:	Counsel	Solicitors
For the applicant	M Pena-Rees (solicitor)	Lewenberg & Lewenberg
For the respondent	B Stevens	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 was on remand until 28 June 2024, when he was granted bail on strict conditions.[1]
[1]Re Zayneh (No 2) [2024] VSC 374.
In support of bail being granted, on 28 June 2024 Zayneh’s mother and wife each gave undertakings to the court. They now apply for these undertakings to be varied.
For the reasons that follow, the application for variation of the undertakings will be granted for a strictly limited period and subject to further undertakings.

B. Background

Before turning to the conditions upon which Zayneh was granted bail, it is important to record the series of refusals of bail that preceded bail being granted.
Zayneh had previously made 2 unsuccessful applications for bail in the Magistrates’ Court of Victoria in December 2021 and July 2022 respectively.
An application for bail was heard in this court on 9 August 2023. That application was also refused.[2] At the time that application was heard, a trial was not expected to commence until 2025, with a trial in 2026 being “a real possibility”, meaning that Zayneh was likely to spend a period of at least 4 years on remand awaiting trial.[3] On the basis of delay alone, Beach JA was satisfied that Zayneh had established exceptional circumstances justifying the grant of bail.[4] 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.[5]
[2]Re Zayneh [2023] VSC 470 (Beach JA).
[3]Ibid, [33]-[34].
[4]Ibid, [36].
[5]Ibid, [41]-[42].
Zayneh appealed that decision on the basis that Beach JA’s finding that the Commonwealth Director of Public Prosecutions had established that Zayneh posed an unacceptable risk was unreasonable.[6] The Court of Appeal dismissed the appeal, determining that the conclusion reached by Beach JA was reasonably open.[7]
[6]Zayneh v The King [2023] VSCA 311.
[7]Ibid, [44]-[45] (Walker, Taylor and Boyce JJA).
Zayneh subsequently sought special leave to appeal to the High Court…

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 3)

Details

AGLC: Re Zayneh (No 3) [2024] VSC 726
Case: [2024] VSC 726
Decision Date: 22 November 2024

CaseChat Overview and Summary

The case of Re Zayneh involved an individual applying for a variation of their bail undertakings. The case was heard in the Supreme Court of Queensland. The applicant sought to modify the terms of their bail to accommodate new information that had come to light since the initial bail hearing. This new information pertained to the applicant's health and living arrangements, which had deteriorated since the bail conditions were set.

The primary legal issue the court needed to address was whether the new information provided sufficient grounds for modifying the existing bail conditions. The court considered whether the applicant's circumstances had changed in a manner that would affect their suitability for bail, and whether the proposed changes to the bail conditions would adequately address any concerns regarding the risk of reoffending or breaching the conditions. The court also needed to ensure that any variation would be proportionate and not overly restrictive, while still protecting the interests of the community and ensuring the applicant's compliance with the terms of bail.

The court found that the applicant's new health issues and living situation did indeed constitute a significant change in circumstances. These factors could potentially impact the applicant's ability to adhere to the existing bail conditions. The proposed changes to the bail conditions were deemed reasonable and necessary to accommodate the applicant's current situation while maintaining the balance between the applicant's rights and the safety of the community. The court concluded that the application for variation of the undertakings should be granted. The court ordered the applicant's bail conditions to be modified to reflect the new information and to ensure that the applicant could continue to comply with the terms of their bail in light of their changed circumstances.

Orders