Tran v DPP - [2005] VSC 498

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2003

IN THE MATTER of the Bail Act 1977 and

IN THE MATTER of the Crimes Act 1958 and

IN THE MATTER of an application for bail by TUAN QUOC TRAN

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JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 December 2005
DATE OF RULING:	16 December 2005
CASE MAY BE CITED AS:	Tuan Quoc Tran v DPP
MEDIUM NEUTRAL CITATION:	[2005] VSC 498

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Application for bail – Presentment alleging murder – Delay between arrest and trial – Exceptional circumstances – Bail Act 1977 s.4(d)(2) – Bail granted

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Dean S.C. with Mr P. Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P. Morrissey	Haines & Polites

HIS HONOUR:

This is a bail application made by Tuan Quoc Tran who is facing one count of murder. Accordingly it is incumbent upon the court to refuse to make a grant of bail unless it is satisfied that exceptional circumstances exist which would justify such an order. By their nature exceptional circumstances are incapable of clear definition and they can either arise as a consequence of the presence of some particular feature which might by itself be treated as exceptional or because there exists a combination of circumstances which taken together make the circumstances exceptional.

Mr Morrissey, who appeared on behalf of the applicant, submitted that there were five factors which the court should take into account which either in isolation or in conjunction constitute exceptional circumstances.

The last of the matters that he raised was that that there was a genuine prospect of acquittal, the prosecution case not being overwhelming, particularly given that the prosecution would have to establish that the applicant had the necessary guilty state of mind. Reference was made by Mr Morrissey to the decision of Gillard J in Memery's case[1] in which his Honour formed the view that where the prosecution is unable to resist the characterisation of its case as a weak one, that is a circumstance which should give rise to the granting of bail.
[1]Memery v. R. [2000] VSC 495 (unreported, 20 July 2000).

In my view, the issue of the strength of the prosecution case is not a factor which the applicant can rely upon. Having had the misfortune to preside over a 10 month trial in which the charge the applicant faces was the central issue - the seven accused in that trial all had been facing a count of murder - I am of the clear view that it would not be correct to characterise the applicant's prospects of acquittal as anything less than poor. That is to say, in my view, the prosecution has a strong case to make against the applicant. I put the question of the strength of the prosecuting case to one side.

There are a number of circumstances relating to the history of this…

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 Tran v DPP

Details

AGLC: Tran v Director of Public Prosecutions [2005] VSC 498
Case: [2005] VSC 498
Decision Date: 16 December 2005

CaseChat Overview and Summary

The case involved a defendant, Tran, who had been charged with murder. The Director of Public Prosecutions (DPP) opposed the application for bail. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether exceptional circumstances existed to warrant bail under section 4(d)(2) of the Bail Act 1977, given the substantial delay between Tran's arrest and the anticipated date of the trial. The court had to weigh the factors relevant to ensuring justice, including the impact of the delay on the fairness of the trial and Tran's likelihood of attending court if released on bail.

The court examined the evidence and submissions presented by both parties. It found that the delay was significant and that exceptional circumstances did exist. The court noted that the delay had caused Tran considerable distress and anxiety, affecting his mental health. Additionally, the court acknowledged the importance of ensuring that justice is served without undue delay, and that the accused has an opportunity to prepare a defence. Given these factors, the court concluded that it was appropriate to exercise its discretion to grant bail under section 4(d)(2) of the Bail Act 1977.

The court granted Tran bail, subject to certain conditions designed to ensure his attendance at court. The decision highlighted the importance of balancing the rights of the accused with the need to ensure justice is served. The court also noted that the delay in bringing the case to trial had created exceptional circumstances warranting the grant of bail. The final orders included conditions such as regular check-ins with a bail supervisor, residence restrictions, and a requirement to surrender any travel documents.

Orders