Human rights charter cited in bail bid
Steve Butcher
February 6, 2008 - 9:33AM
Victoria’s new Charter of Human Rights and Responsibilities has been cited a second time by a criminal court in releasing a defendant on bail after concerns were raised about long delays in finalising his case.
Three weeks ago Justice Bernard Bongiorno of the Supreme Court freed a man charged in November over a serious assault.
Justice Bongiorno criticised the prosecution for not providing information about the likely timing and duration of the man’s trial in Mildura.
He said section 25 of the charter contained a clause that stated a person charged with a crime had a minimum guarantee of being tried without unreasonable delay.
“If the charter in fact guarantees a timely trial, the inability of the Crown to provide that trial as required by the charter must have an effect on the question of bail,” Justice Bongiorno said in his decision.
Short of a permanent stay of proceedings, the “only remedy the court can provide an accused for a failure by the Crown to meet its charter obligations in this regard, or to ensure that it does not breach those obligations so as to prejudice (him), is to release him on bail”.
Melbourne magistrate Peter Reardon yesterday bailed South Australian man Quang Hung Pham after studying the charter and reading Justice Bongiorno’s judgement.
Defence barrister Peter Faris, QC, had urged Mr Reardon to find that a possible two-year delay in finalising Pham’s case was unreasonable under the charter.
Pham, 45, is accused by the Australian Crime Commission of being a principal in a drug group and organising two couriers arrested in December at Melbourne airport to internally import a total of 330 grams of heroin from Vietnam.
Detective Sergeant Anthony Brain said that after his arrest, while driving to South Australia from Melbourne airport following the couriers’ interception on December 1, police found incriminating items at two Adelaide houses linked to Pham.
Prosecutor Andrew Doyle submitted that telephone intercepts linked Pham to the couriers and the importation, the delay was not unreasonable and, if convicted, he faced more than a two-year jail term.
Mr Faris, who argued the delay was unreasonable under the charter, said Pham was not a risk of fleeing Australia if bailed and he denied the charge of importing heroin.
Mr Reardon quoted Justice Bongiorno that “if the charter in fact guarantees a timely trial, the inability of the Crown to provide that trial as required by the Charter must have an effect on the question of bail”.
Mr Reardon, in granting Pham bail, took into account the charter, his age, ties to Australia and the likely delay.
Pham, of Mawson Lakes, South Australia, was released on strict conditions that included a $150,000 surety.
This story was found at: http://www.theage.com.au/articles/2008/02/06/1202233878858.html