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Trinh v R

Trinh v R

Case [2016] NSWCCA 110 10 June 2016

Bail

Failure to Appear

Strength of Crown Case

Delay Before Trial

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Trinh v R [2016] NSWCCA 110
Hearing dates: 8 April 2016
Decision date: 10 June 2016
Before: Basten JA at [1]
McCallum J at [40]
Davies J at [41]
Decision:
Bail refused.

Catchwords: CRIMINAL LAW – procedure – bail – applicant charged with 158 offences involving fraud – bail refused by judge of Supreme Court – further application to Court of Criminal Appeal – nature of application – assessment of bail concerns – failure to appear – commit further serious offences – strength of Crown case – delay before trial – need for liberty to prepare case - whether bail proposal met bail concerns – unacceptable risks – bail refused
Legislation Cited: Bail Act 1978 (NSW), ss 14, 62
Bail Act 2013 (NSW), ss 5, 17, 18, 19, 44, 56, 59, 61, 64, 65, 67, 71, 72, 73, 74, 75; Pt 6, Divs 1, 2, 3, 4; Sch 3, cl 11
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 91
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19, 20
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW) s 9
Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190
Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
Norbis v Norbis (1986) 161 CLR 513
R v Kugor [2015] NSWCCA 14
Shalala v R [2012] NSWSC 351
Ward v Williams (1955) 92 CLR 496
Category: Principal judgment
Parties: Dinh Anh Khoa Trinh (Applicant)
Crown (Respondent)
Representation:
Counsel:
R Rodger (Applicant)
N Adams (Respondent)
Solicitors:
Hanna Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/257305

Judgment

BASTEN JA: On 23 December 2015 the applicant, Mr Trinh, filed a “release application”, seeking release on bail, following his arrest on 22 July 2015 and charging with numerous serious indictable offences involving computer fraud. On 29 July 2015 he was before the Burwood Local Court and applied for release on bail. The application was refused.
On a date which is not apparent from the material before this Court, a release application was lodged with the Supreme Court. The application was heard by Schmidt J on 6 November 2015 and was refused, the judgment being delivered on 9 November 2015. On 23 December 2015 the applicant lodged the release application presently before this Court.
The application for release on bail must be dealt with pursuant to the Bail Act 2013 (NSW). Any general law power to grant bail was abolished by its predecessor, the Bail Act 1978 (NSW), s 14 and s 62. The repeal of that Act did not revive any general power to grant bail. [1]
1. Bail Act, Sch 3, cl 11.
Bail having been sought and refused by the Local Court and by…

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 Trinh v R

Details

AGLC: Trinh v R [2016] NSWCCA 110
Case: [2016] NSWCCA 110
Decision Date: 10 June 2016

CaseChat Overview and Summary

The applicant, Trinh, was charged with 158 offences involving fraud. After being denied bail by a judge of the Supreme Court, Trinh applied to the Court of Criminal Appeal. The appeal focused on the assessment of bail concerns, including the risk of the applicant failing to appear, committing further serious offences, the strength of the Crown's case, and the delay before the trial. The Court of Criminal Appeal was required to determine whether the bail proposal adequately addressed these concerns and whether it was appropriate to grant bail.

The Court of Criminal Appeal examined the risk of the applicant failing to appear at trial and committing further offences. It noted the severity and quantity of the charges, the substantial delay before the trial, and the lack of a specific bail proposal. The court concluded that there were significant risks associated with granting bail, including the potential for the applicant to fail to appear, commit further offences, and interfere with witnesses. The strength of the Crown's case, supported by substantial evidence, further underscored the need to prevent any potential interference. The Court of Criminal Appeal held that the risks outweighed any need for the applicant's liberty to prepare a defence.

The Court of Criminal Appeal found that the applicant's bail proposal did not adequately address the identified risks. It determined that the unacceptable risks associated with granting bail warranted a refusal. The Court of Criminal Appeal refused the application, upholding the earlier decision of the Supreme Court judge to deny bail. The Court of Criminal Appeal emphasised the need to balance the applicant's right to liberty with the public interest in ensuring justice is served and the safety of potential witnesses.

Orders