Application for Bail - Mark Handler [2013] VSC 166 (12 April 2013)

2 The applicant was subsequently arrested, again, on 2 December 2012, and interviewed. He has been charged with one count of trafficking methamphetamine in a commercial quantity. On the hearing of this application, I was informed that that charge will not be proceeded with and that it will be replaced with one charge of trafficking methamphetamine. He has also been charged with trafficking phenyl-2-propanone, one count of attempting to traffick methylamphetamine, one count of possessing materials for the purpose of trafficking, four counts of possessing precursor chemicals (potassium iodide; nitro methane; iodine; and phenylalanine); and one count of possessing DOD (phenyl-2-propanone). The applicant has been remanded in custody since 2 December 2012.

3 On 7 March 2013 the applicant unsuccessfully applied for bail at the Magistrates' Court at Melbourne. The magistrate refused bail on the basis that the applicant was an unacceptable risk of committing an offence while on bail.

4 The next hearing date in respect of the first set of charges is a committal hearing on 23 April next at the Magistrates' Court at Melbourne. A committal mention hearing was held on 8 April at the Magistrates' Court at Melbourne in relation to the second group of charges.

5 The applicant now applies for bail. As he has been charged with an indictable offence which is alleged to have been committed while he was at large awaiting trial for another indictable offence, and as he has been charged with prescribed offences of trafficking under the Drugs, Poisons and Controlled Substances Act 1981, he is required to show cause, pursuant to s 4(4) of the Bail Act 1977, why his detention in custody is not justified.

6 Both groups of offences are alleged to have been committed by the accused at premises at 139 Cromwell Street, Collingwood. At the time of the first charges, those premises were leased by the applicant, who was a qualified industrial chemist. The premises are a warehouse. When police entered the premises on 21 March 2012, they located a laboratory containing numerous items of equipment used in the manufacture of drugs of dependence, including glassware, reaction vessels and burners. The police also located within the laboratory various precursor chemicals used in the manufacture of drugs of dependence, including the precursor chemicals which are the subject of the first group of charges. In addition the police located a quantity of a white powder substance on a bench top.

7 The applicant was arrested, and interviewed at Fitzroy Police Station. He admitted ownership and possession of the contents of the warehouse, where he was residing at that time. He stated that the white powder substance was amphetamine, and he was also aware that a number of the chemicals, which had been located by the police, were classified as precursor chemicals. He admitted to manufacturing amphetamine at the laboratory, stating that he manufactured amphetamine for his own use. He said that other people also consumed what he had produced, but only on a social level. He said that he primarily used the premises for the purposes of distilling cheap alcohol. In the course of the interview, the applicant gave a very lengthy, detailed and informative description of the various methods by which he produced amphetamine. In parts, the interview reads more like a chemistry lecture, than a formal interview between police and an accused.

8 In the course of the interview the applicant denied that he had trafficked amphetamine.

9 As I stated, the second group of charges also concern offences allegedly committed by the applicant at the Cromwell Street premises. On 2 December, investigators observed the applicant bolting the front door of the premises, and entering the rear of them via the roller door. Four hours later, he was observed opening the rear roller door exiting the premises. The police approached the applicant and executed a search warrant at the premises.

10 During that search, investigators located scientific glassware, other scientific equipment, a large number of unknown liquids, chemicals and materials consistent with the manufacture of amphetamine type substances.

11 The applicant was arrested and removed from the factory. He told investigators that there was a quantity of potassium iodide within the factory. An initial safety assessment was conducted at the premises, which revealed that the atmosphere was extremely toxic. As a result steps were taken, with specialised equipment, to vent the factory.

12 The applicant was then conveyed to St Kilda Road Police Complex, where he was interviewed. He admitted possessing the items within the factory. However, he repeatedly denied any suggestion that the materials and substances were used by him in connection with the manufacture of drugs of dependence. He stated that he used the premises initially to set up a distillery. He claimed that the potassium iodide, which was at the premises, had been found by him in a dump near a railway line. He said that his lease of the premises had been terminated by the lessor, but that he had permitted in by another person who had access to the premises, in order to be able to collect his possessions.

13 Forensic examination of the items which were located at the scene, on 2 December, revealed the four precursor chemicals which are the subject of the charges. The forensic scientists advised that the items located at the premises were consistent with the applicant being in the process of converting phenylalanine to phenyl acetic acid to P2P then ultimately to methylamphetamine. That method of manufacturing methylamphetamine was apparently described by markings on a whiteboard that was located inside the premises.

14 On the hearing of the application, Detective Senior Constable Finnerty, who was the corroborator in relation to the second group of charges, gave evidence, basically confirming the matters which I have already set out above in relation to those charges. He stated that he understood that the P2P method of manufacturing methamphetamine is quite complex, and that the forensic chemist that confirmed that the markings on the whiteboard were consistent with a description of that process. He said there is also evidence of methamphetamine being produced through an alternative process, using pseudoephedrine.

15 Detective Senior Constable Finnerty stated that when he entered the premises there was a very strong chemical smell, which was highly toxic. A chemist attended and conducted a site safety survey using air monitors, which triggered the alarm for a number of different hazards. One of the police members who attended felt quite ill. Detective Senior Constable Finnerty stated that he sat next to the applicant in the police car, and found that the odour emitted from his clothing was very strong. The premises at Cromwell Street were situated in a mixed residential commercial area. They were next to a business which wholesaled baby products, and they were located approximately 100 metres from a high school.

16 In cross-examination, Mr Finnerty was unable to say whether all of the precursor chemicals and glassware items at the premises had been removed after the first raid in March 2012. He agreed that the amount of P2P chemical, found on the premises in the second raid, was small. He did not believe that it was derived from scrapings taken from glassware which had previously been at the premises, but he was unable to exclude that possibility. He agreed that no pseudoephedrine was actually found on the premises. He agreed that other chemicals, in addition to P2P, would be needed for the manufacture of methamphetamine using the P2P method. He did not know whether there were sufficient materials on the premises to enable that process to be completed.

17 Mr Finnerty agreed that the main item that was seized from the premises was the potassium iodide. He also agreed that before the police entered the premises, the applicant had told them that there was a quantity of that chemical on the premises. He stated that he understood that there are a number of potential innocent uses of the chemical, other than for the manufacture of drugs.

18 In cross-examination, Detective Senior Constable Finnerty further agreed that when police entered the premises on 2 December, the applicant was not wearing any protective clothing. He was unable to say that police observed any chemical process actually being undertaken at that time, and he confirmed that if that had been the case, it would have been described in the witness statements of those police witnesses. (I interpolate that the statements do not contain a description of such a process being undertaken at that time). Detective Senior Constable Finnerty stated that the police did not rely on any evidence of telephone interceptions, listening device material, or surveillance. Nor would the prosecution be relying on any evidence relating to the financial position of the applicant, and the prosecution would not be relying on any telephone records evidence. Mr Finnerty confirmed that the prosecution did not have any statement of a witness alleging that the applicant had trafficked drugs.

19 The applicant intends to defend the charges. As I stated, he is a qualified industrial chemist. He graduated with a Bachelor of Applied Chemistry with Honours in 1997, and completed a Doctorate of Philosophy in Applied Chemistry in 2002. In respect of the first group of charges, the applicant's defence is based, it would seem, on two main propositions. First, he admitted manufacturing amphetamine in liquid form in small quantities for his own use. Over the last seven years he has had psychological problems, which are the subject of a report of a psychologist, to which I shall shortly refer. The applicant says that he manufactured amphetamine to assist him to cope with his emotional problems. Secondly, the applicant states he was involved, at the premises, in distilling alcohol and carrying out other general chemical reactions including the design of a liquid metal for decorative use inside beverage bottles. As I have stated, he denies trafficking amphetamine. He says that he had had the precursor chemicals in his possession for a number of years, and that he was in fact a collector of chemicals.

20 In response to the second group of charges, the applicant denies manufacturing methylamphetamine at the premises, and he denies attempting to traffick methylamphetamine, and trafficking phenyl-2-proponone. He states that the markings on the whiteboard were not a recipe for the production of methylamphetamine, but, rather, were a list of matters which he had to deal with in order to move some of his items back to his flat. He says that a number of the precursor chemicals, which were found in his possession on 2 December, were the same precursor chemicals which had been found in his possession on 21 March.

21 The applicant is 40 years of age. He has no previous convictions. He has been in a relationship with [name redacted] for ten years, and they do not have any children. As I previously stated, the applicant has a Doctorate of Philosophy in Applied Chemistry, and he has previously been employed by a number of large corporations.

22 In 2002 the applicant opened a bar, and he was distilling vodka at that time. In late 2005 he left his sister in charge of the bar, and went on a two month holiday with his partner. However, he claims that during his absence his sister effectively stole the business from him. That circumstance precipitated a decline by the applicant into depression, alcohol use and the use of amphetamines.

23 The applicant sought to redeem himself by setting up a vodka distillery business. He found an investor, and with the proceeds of the monies provided by that investor, he rented the factory in Collingwood, and purchased equipment for the business. However, soon after the commencement of the business the investor was incarcerated for a period of 18 months in relation to a hit and run incident. As a result, the applicant lost the source of funding for his business. In order to salvage the business, he altered his business plan, and began distilling the ethanol from non-premium red wine in order to make vodka, which he sold to reception centres for a cheap price. During that time the applicant became further depressed, and in 2010 he consulted a psychiatrist, who prescribed him Efexor, which he had been taking since that time.

24 The applicant was assessed by a psychologist, Mr Dominic Greco, at the Metropolitan Remand Centre on 3 February 2013. Mr Greco took a detailed history from the applicant. He conducted a psychometric assessment, which revealed no current significant psychopathologies. Mr Greco considered that the applicant's clinical profile indicated that he is currently psychologically stable. He expressed the view that the applicant is unlikely to re-offend. The applicant's personal drug use appears to be under control, as well as his psychological state.

25 During his period in custody, the applicant has completed some 12 courses, including gaining a certificate in methy-argon welding. He initially worked in the kitchen, but since completing that certificate, he has been working in the metal shop.

26 In support of his application for bail, the applicant has tendered material which demonstrates that he has been offered a full time job with Darkon, which is a company that produces custom and decorative lights. The chief executive officer of that company, Mr Dean Phillips, is aware of the circumstances of the applicant, and is able to provide him with employment operating a CNC machine.

27 As I stated, the applicant is required to show cause, pursuant to s 4(4) of the Bail Act, why his detention in custody is not justified. The principles, relevant to an application of this kind, were considered by Maxwell P in Re Fred Joseph Asmar.[1] In that case, his Honour concluded that the correct approach is that s 4(4) requires the court only to consider one question, namely, whether the applicant has shown cause why his detention is not justified. His Honour further stated that a court could not be satisfied, to that effect, unless the court were satisfied that there was no unacceptable risk on any of the grounds described in s 4(2)(d), namely, an unacceptable risk that the applicant, if released on bail, would: fail to answer his bail; commit an offence while on bail; endanger the safety or welfare of members of the public; or interfere with witnesses or otherwise obstruct the course of justice.

28 The informant, in respect to the second group of charges, opposes the grant of bail on the basis there is an unacceptable risk that the applicant will continue to be involved in the manufacture of amphetamine type substances, and that there is also an unacceptable risk that the applicant might endanger the safety or welfare of members of the public, by conducting a laboratory which is a hazard to members of the public who are in the vicinity.

29 In support of the application, counsel for the applicant, Mr Jassar, submitted that, on the facts presented, the applicant had established that there is not an unacceptable risk that he would re-offend if granted bail. He pointed out that the applicant had made full admissions, as to manufacturing amphetamine, in respect of the first group of offences. He pointed to the candour with which the applicant made the admissions to the police who were interviewing him. On the other hand, the applicant denied that he was in any way involved in the trafficking of that substance, or any other illicit substance. He submitted that the evidence of the psychologist supported the proposition that the applicant had manufactured the amphetamines for his own use, in order to alleviate his symptoms of depression.

30 Mr Jassar further submitted that the case against the applicant in respect of the second group of offences was not strong, and would be vigorously defended. The charge of trafficking of a commercial quantity will be downgraded to one of trafficking simpliciter. The quantity of P2P found at the premises was small, and the prosecution could not exclude the possibility that the chemical had been derived from scrapings from glassware or other items which had been left on the premises after the first police raid in March 2012, or which had been returned by police to the premises. He submitted that there was no evidence whether the amount of P2P chemical found on the premises, in the second raid, was sufficient for the manufacture of methamphetamine as alleged by the prosecution. Mr Jassar pointed out that there was no evidence that the police, who conducted the second search, made any observations that a manufacturing process was being undertaken on that date. On the contrary, when the police executed the search warrant, the applicant was not wearing protective clothing.

31 Mr Jassar further submitted that the potassium iodide found at the premises, while being a prescribed precursor chemical, also has a number of innocent uses, including for medical and industrial purposes. He pointed to the concession by Detective Senior Constable Finnerty that the police would not be relying on any telephone intercepts, surveillance device intercepts, financial evidence, or telephone records, to support the allegation that the applicant had been involved in trafficking methamphetamine or any other illicit substances. Thus, Mr Jassar submitted that the second group of charges would be vigorously defended by the applicant, and, for present purposes, he submitted that there is a substantial basis upon which to conclude that the applicant had not been involved in the manufacture of illicit substances at the Cromwell Street premises at the time at which the second group of offences are alleged to have been committed.

32 Mr Jassar pointed out that the lessor of those premises has, in any event, re-entered them, and the applicant thus does not have access to them in order to conduct any activity at those premises. Further all of the applicant's equipment has now been seized by the police. Thus the applicant, if released, will not be in a position to set up another laboratory. Rather, if the applicant were released, he would reside with his partner, and he would be able to commence employment with Darkon. He also submitted that, on the other hand, if the applicant were not released, there might be a delay of up to two years before his case came on for trial.

33 In response, Mr Livitsanos, who appeared for the prosecution, submitted that the applicant had failed to show cause why his detention in custody is not justified. In particular, Mr Livitsanos pointed out that the offences alleged, in respect of the second group of charges, are the same type of offences as those which form the basis of the first group of charges. In addition, the applicant has a great depth of expertise in applied chemistry, and he knows how to set up a further enterprise manufacturing amphetamines and other illicit substances. He pointed out that the quantity of potassium iodide found at the premises (15 kilograms) was well in excess of the amount of 25 grams of that substance prescribed by Schedule 1 of the Drugs, Poisons and Controlled Substances (Precursor Chemicals) Regulations 2007 that the amount of iodine found at the premises (274 grams) was also well in excess of the prescribed maximum permitted amount of that substance of 25 grams.

34 Mr Livitsanos submitted that the second group of charges relate to serious offending. They were committed in circumstances which raise real concerns for public welfare and safety. Thus, he submitted that the risk of the applicant re-offending was unacceptable. Mr Livitsanos submitted that the possible delay before trial - up to two years from the present date - is not inordinate and does not justify the grant of bail to the applicant.

35 The question which I must determine, whether the applicant has shown cause why his detention in custody is not justified, is not clear cut. The matters relied on by Mr Livitsanos are of significant weight, and do militate against the grant of bail. In particular, as Mr Livitsanos pointed out, the second group of charges allege the same type of offending as the offending involved in the first group of charges. In addition, there is a basis for concern that if the applicant were to re-offend, he might do so in a manner which could pose some degree of risk for the welfare of others.

36 On the other hand, the matters relied on on behalf of the prosecution are based on the proposition that the applicant did re-offend as alleged in the second group of charges. At this preliminary stage, it is not possible for me to express anything other than a most tentative and limited view as to the likely outcome of those charges. Indeed, it is undesirable that I do so, unless it is necessary to the outcome of the application. It is sufficient to say that I have read the transcript of the applicant's record of interview in relation to both groups of charges, and in particular in relation to the second group of charges. Some of the explanations given by the applicant, in the second interview, are more convincing than others. However, that observation, of itself, is somewhat limited, because I have not had the opportunity to listen to the recording of the interview, which might shed a different light on some of the explanations given by the applicant in the course of it.

37 With those qualifications, nevertheless, in my view the applicant does have a prospect of succeeding in relation to the second group of charges which could fairly be described as not unreasonable. That characterisation is relevant to an evaluation of the risk of the applicant re-offending, should he be released on bail. In addition, and importantly, the applicant no longer has access to the premises, at which it is alleged the offending took place, on both occasions. Nor does he have access to the equipment which was at the premises at the time of the second raid on 2 December 2012. Importantly, the applicant has available to him the offer of full time employment with Darkon. I observe that Mr Phillips was present in court during the whole of the application to support the applicant. The fact that the applicant will have full time employment available to him is relevant, because both groups of offences are alleged to have taken place in a setting in which the applicant was self-employed, operating his own factory manufacturing chemical products. It is also relevant that the applicant does not have any previous convictions, and he has not been in trouble with the police before his arrest in relation to the first group of offences. If the applicant were released on bail, he would reside with his partner at premises at Fitzroy, and he would submit to a condition that he remain at those premises, and be subject to a curfew, so that he would not leave the premises between 8.00 pm and 6.00 am, other than in the immediate company of his partner.

38 The committal proceedings in respect of the second group of charges will not take place until October 2013. It is anticipated that if the applicant is committed for trial in respect of those charges, the trial would not take place in the County Court for a further period of twelve months to eighteen months. Thus, if the applicant were not released on bail, there would be a delay, from this date, until his trial, of eighteen months to two years. That delay is relevant for two reasons. First, it is a substantial period of time for a person, awaiting trial, to remain in custody. Secondly, and more importantly, the applicant would well understand that if he were to re-offend, he would face a lengthy term in custody, even before his charges came on for trial. The applicant has now been in custody for a period of more than fifteen weeks. I observe, in his favour, that he has conducted himself well in custody, and has taken the opportunity to undertake a number of courses.

39 As I stated earlier, the question as to whether the applicant has shown cause why his detention in custody is not justified, and, in particular, the question as to whether he has demonstrated that he will not be an unacceptable risk of re-offending and endangering the public, is not one which admits of an easy answer. However, having given the matter careful consideration, based on the matters to which I have referred, I am satisfied that there is no unacceptable risk that, if released on bail, the applicant may commit an offence, and that he may thereby endanger the safety or welfare of members of the public. Accordingly I am satisfied that the applicant's detention in custody is not justified on that ground.

40 I am therefore prepared to grant the applicant bail, subject to the conditions specified in the affidavit in support of his application, namely:

(1) That the applicant report to Fitzroy Police Station each Monday, Wednesday and Friday between 9.00 am and 7.00 pm.

(2) That the applicant reside at the nominated address at any other address approved, in writing, by the informant or his nominee.

(3) That the applicant remain at the nominated address between the hours of 8.00 pm and 6.00 am each day, except when he is in the immediate company of his partner [name redacted].

(4) That the applicant immediately surrender any passports held by him to the informant and not apply for any travel documents.

(5) That the applicant not attend any points of interstate or international departure.

(6) That the applicant not communicate with any prosecution witnesses, other than the informant or his nominee.

[1] [2005] VSC 487.