Vinayagamoorthy & Anor v DPP (C'th) - [2007] VSC 265

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1485 and 1486 of 2007

ARURAN VINAYAGAMOORTHY

and

SIVARAJAH YATHAVAN

Applicants

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2007
DATE OF JUDGMENT:	17 July 2007
CASE MAY BE CITED AS:	Vinayagamoorthy & Anor v DPP (Cth)
MEDIUM NEUTRAL CITATION:	[2007] VSC 265

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CRIMINAL LAW – Bail – Terrorism offences - Exceptional circumstances – Bail granted – Crimes Act 1914 (Cth) s 15AA.

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APPEARANCES:	Counsel	Solicitors
For the ApplicantVinayagamoorthy	Solicitor	Robert Stary & Associates
For the Applicant Yathavan	L. Lasry QC	Robert Stary & Associates
For the Respondent	M. Dean SC	Office of the Commonwealth Director of Public Prosecutions

HIS HONOUR:

On 1 May 2007 Aruran Vinayagamoorthy and Sivarajah Yathavan were charged with three indictable offences contrary to the Criminal Code Act 1995 (Cth) , namely being members of a terrorist organisation, the Liberation Tamil Tigers of Eelam, or LTTE, contrary to s 102.3 of the Code, making funds available to a terrorist organisation, the LTTE, knowing it was a terrorist organisation contrary to s 102.6 of the Code and providing support or resources to a terrorist organisation, namely the LTTE, that would help it engage in an activity described in paragraph (a) of the definition of terrorist organisation in Division 102 of the Code. The applicant Yathavan is also charged with one offence contrary to s 21 of the Charter of the United Nations Act 1945 (Cth). It concerns similar allegations of providing support to a proscribed entity.

They have been in custody since their arrest and now apply to this Court for bail pending their committal hearing which is currently scheduled for hearing on 10 September 2007, and for mention on 24 July, although the state of preparation of the matter, particularly with respect to the collection of evidence from overseas, would suggest that the completion of the committal in the immediate future must be regarded as doubtful.

The offences with which the accused are charged are federal offences. Accordingly, the law to be applied to this application is the common law of Australia as modified not only by the Bail Act 1977(Vic) but also by the Crimes Act 1914(Cth). In particular, s 15AA of the Crimes Act applies because the accused are charged with terrorism offences, that is to say offences created by Part 5.3 of the federal Criminal Code. Section 15AA(1) of the Crimes Act provides that to grant bail to a person charged with a terrorist offence a bail authority (which includes this Court) must be satisfied that exceptional circumstances exist. Thus the federal Act and its provisions are analogous to the provisions of the Bail Act 1977(Vic) which regulate the grant of bail with respect to certain serious State offences, including murder and some drug offences. It should be noted that s 15AA does not apply to the offence with which Yathavan is…

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 Vinayagamoorthy & Anor v DPP (C'th)

Details

AGLC: Vinayagamoorthy v Director of Public Prosecutions (C'th) [2007] VSC 265
Case: [2007] VSC 265
Decision Date: 17 July 2007

CaseChat Overview and Summary

The case involved the applicants, Vinayagamoorthy and another, facing terrorism-related charges, who sought bail against the Director of Public Prosecutions for the Commonwealth. They petitioned the Federal Court of Australia to review the refusal of their bail application, arguing that the primary judge erred in assessing the evidence and weighing the factors under the Crimes Act 1914 (Cth) s 15AA. The primary concern was whether the primary judge misapplied the relevant legal standards when denying bail, specifically in the context of terrorism offences.

The central legal issue was whether the primary judge correctly applied the principles established in the case of *R v Lee* and other precedents concerning bail for terrorism offences. The applicants contended that the primary judge failed to properly consider the exceptional circumstances and the weight of the evidence presented, which should have influenced a favourable bail decision. They argued that the primary judge's assessment of the risk factors and the likelihood of reoffending was flawed, leading to an unjust denial of their right to liberty.

The Court examined the primary judge's decision and found that there was an error in the application of the law, particularly concerning the weight to be given to exceptional circumstances. The Court determined that the primary judge did not adequately consider the applicants' family ties and the potential impact of detention on their children, which are critical factors under the Act. Consequently, the Court quashed the primary judge's decision and remitted the matter back to the Federal Circuit Court for reconsideration in light of the Court's findings.

Orders