| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCR 2023 0150 | |
| DANNY ZAYNEH | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER, TAYLOR and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 November 2023 |
| DATE OF JUDGMENT: | 11 December 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 311 |
| JUDGMENT APPEALED FROM: | [2023] VSC 470 (Justice Beach) |
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CRIMINAL LAW – Appeal – Bail application refused – Two year delay at time of bail application – Likely four year delay before trial, possible five year delay before trial –Exceptional circumstances established by delay – Bail judge held unacceptable risk of flight – Restrictive bail conditions not removing unacceptable flight risk – Right to be brought to trial without unreasonable delay – Effect of Charter of Human Rights and Responsibilities 2006 on application of Bail Act – Conclusions of bail judge reasonably open – Appeal dismissed.
Bail Act 1977, ss 1B, 3, 3AAA, 4, 4A, 4AA, 4D, 4E, 5; Supreme Court Act 1986, ss 17, 17A; Charter of Human Rights and Responsibilities 2006, ss 7, 21, 25, 32.
Re Diab (2020) 282 A Crim R 462, Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, Fernandez v Director of Public Prosecutions (2002) 5 VR 374 followed.
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| Counsel | |||
| Appellant: | Mr D A Dann KC | ||
| Respondent: | Mr C J Winneke KC with Ms K Breckweg | ||
| Chief Commissioner of Victoria Police | Ms A Haban-Beer | ||
| Solicitors | |||
| Appellant: | Lewenberg & Lewenberg | ||
| Respondent: | Solicitor for the Commonwealth Director of Public Prosecutions | ||
| Chief Commissioner of Victoria Police | Victorian Government Solicitors Office | ||
WALKER JA
TAYLOR JA
BOYCE JA:
The appellant is currently facing five serious criminal charges involving importation and trafficking of significant quantities of drugs, dealing with proceeds of crime and possessing a handgun without a licence.[1] He was arrested on 7 June 2021, and has been in custody ever since. Three of the charges are Schedule 1 offences within the meaning of s 3 of the Bail Act 1977 (the ‘Act’).[2] Thus, by reason of s 4A of the Act, he must be refused bail unless he establishes the existence of exceptional circumstances that justify a grant of bail. If he succeeds in establishing exceptional circumstances then, by reason of s 4E of the Act, he must be refused bail if the respondent establishes that he poses an unacceptable risk of, relevantly for present purposes, failing to answer bail. If the respondent fails to discharge that burden, the appellant is entitled to bail pursuant to s 4 of the Act.
[1]The charges are as follows: two charges of conspiring to import a commercial quantity of a border-controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) (charges 1 and 2); one charge of trafficking in a commercial quantity of a controlled drug, contrary to s 302.2(1) of the Criminal Code (charge 3); one charge of dealing with money that was, and believed to be, proceeds of crime, contrary to s 400.6(1) of the Criminal Code (charge 4); and one charge…
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- AGLC
- Zayneh v The King [2023] VSCA 311
- Case
- [2023] VSCA 311
- Decision Date
CaseChat Overview and Summary
The court examined the findings of the bail judge and determined that the conclusions reached were reasonably open on the evidence presented. The judge had found that the appellant's lengthy detention and the additional delay before trial constituted exceptional circumstances. However, the judge also found that the proposed bail conditions could not adequately mitigate the risk of flight, which was deemed unacceptable. The court held that the appellant's right to be brought to trial without unreasonable delay, as guaranteed by the Charter of Human Rights and Responsibilities 2006, did not override the need to ensure the safety of the community and the integrity of the judicial process. The Supreme Court upheld the lower court's decision, dismissing the appeal.
The reasoning of the Supreme Court was grounded in the principles of balancing the rights of the accused against the safety of the community, as well as the need to avoid unreasonable delays in the administration of justice. The court concluded that the bail judge's findings were consistent with the applicable statutory provisions and case law. The proposed bail conditions were considered insufficient to address the unacceptable flight risk, and thus the denial of bail was justified. The court found no error in the bail judge's application of the Bail Act 1977, taking into account the Charter of Human Rights and Responsibilities 2006. The appeal was dismissed, and the appellant remained in custody.
Orders
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