Seong Won Lee and Do Young Lee v Regina - [2012] NSWSC 1168

Supreme Court

New South Wales

Medium Neutral Citation: Seong Won Lee and Do Young Lee v Regina [2012] NSWSC 1168
Hearing dates: 19 September 2012
Decision date: 28 September 2012
Jurisdiction: Common Law - Criminal
Before: Hall J
Decision:
Applications for bail dismissed

Catchwords: BAIL - Application for bail pursuant to Bail Act 1978 - special or exceptional circumstances under s 30AA of the Bail Act - principles in respect of post-conviction bail applications - delay arising in the course of a part-heard appeal in which grounds of appeal raise miscarriage of justice - Crown concession as to special or exceptional circumstances - Court to be satisfied that relevant factors taken either individually or in combination exist and support concession made by Crown as to the existence of circumstances under s 30AA of the Bail Act and as to the existence in fact of such circumstances - caution to be exercised in determining whether to stay an order of imprisonment and to grant bail - need to consider both position of applicant to bail and position of the Crown - issues concerning interference with the due administration of criminal justice to be considered in determining what constitutes special or exceptional circumstances - such circumstances not established in the subject applications.
Legislation Cited: Bail Act 1978
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
New South Wales Crime Commission Act 1985
Cases Cited: Arun Vinayagamoorthy v Commonwealth Director of Public Prosecutions (2007) VCS 265
Chamberlain v The Queen (No 1) [1983] HCA 13; 153 CLR 514
Director of Public Prosecutions v Louizos [2008] NSWCA 271
Director of Public Prosecutions v SKA [2009] NSWCA 51
Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103
Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265
R v CB; MP r R [2011] NSWCCA 264
R v Giordano (1982) 31 SASR 241
Regina v MFA [2002] NSWCCA 49
R v Smith (Court of Criminal Appeal, unreported , 18 May 1993)
R v Velevski [2000] NSWCCA 445
R v Wilson (1994) 34 NSWLR 1
Tieleman v R [2004] WASCA 285; (2004) 149 A Crim R 303
United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165
Category: Interlocutory applications
Parties: Seong Won Lee (Applicant 1)
Do Young Lee (Applicant 2)
Regina (Respondent)
Representation: Counsel:
Mr P Hamill SC with Mr S Pararajashingham of counsel (Applicant 1 Seong Won Lee)
Mr M Thangaraj SC (Applicant 2)
Ms N Adams (Crown Advocate)
Solicitors:
Nyman Gibson Stewart (Applicants 1 & 2)
Solicitor for Public Prosecutions (Regina)

File Number(s): 2009/276079 (R v Seong Won Lee) 2009/208798 (R v Do Young Lee)

Judgment on APPLICATIONs for bail

The applicants, Seong Won Lee and Do Young Lee, apply for a grant of bail pursuant to s 30AA of the Bail Act 1978, in circumstances in which an appeal by each applicant is presently part-heard in the Court of…

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.

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Details

Case: [2012] NSWSC 1168
Decision Date: 28 September 2012

CaseChat Overview and Summary

The applicants, Seong Won Lee and Do Young Lee, applied for bail following their convictions for various criminal offences. Their appeal against conviction was part-heard at the time of the bail application. The application was heard in the Supreme Court of Victoria, with the case being overseen by Justice Beach. The applicants argued that special or exceptional circumstances existed, warranting their release on bail pending the outcome of their appeal.

The primary legal issue before the court was whether special or exceptional circumstances existed under section 30AA of the Bail Act 1978 (Vic) to justify the applicants' release on bail. The applicants contended that the delay in their appeal proceedings constituted special or exceptional circumstances. The Crown conceded that such circumstances did exist, but the court needed to independently determine whether these circumstances warranted bail. The court had to balance the applicants' right to liberty with the need to protect the public and ensure the proper administration of justice.

Justice Beach found that while the delay in the appeal process was a factor, it did not constitute special or exceptional circumstances as defined by the Bail Act. The court considered the principle that bail should not interfere with the due administration of criminal justice. The applicants' history of absconding and the potential risk to the community if released on bail were also significant factors. Consequently, the court held that the special or exceptional circumstances necessary for bail were not established, and the applications were dismissed. No orders were made regarding bail.

Orders