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Zayneh v The King

Zayneh v The King

Case [2023] VSCA 311 11 December 2023

Charter of Human Rights and Responsibilities

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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…

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 Zayneh v The King

Details

AGLC: Zayneh v The King [2023] VSCA 311
Case: [2023] VSCA 311
Decision Date: 11 December 2023

CaseChat Overview and Summary

In Zayneh v The King, the appellant sought bail while facing criminal charges. The appellant had been in custody for two years at the time of the bail application, and a further four years was expected before trial, potentially five. The Supreme Court was tasked with reviewing the bail decision made by a lower court judge, who had denied the appellant's application. The central legal issues were whether the appellant had established exceptional circumstances due to the delay in bail proceedings, and if the risk of flight was deemed unacceptable despite proposed restrictive bail conditions. Furthermore, the court had to consider the effect of the Charter of Human Rights and Responsibilities 2006 on the application of the Bail Act 1977.

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