BAIL - Accused charged with trafficking in a large commercial quantity of heroin, knowingly dealing with proceeds of crime and related offences - Delay between arrest and trial likely to exceed three years - Hardship of COVID-19 restrictions in jail - Potential deleterious impact of COVID-19 jail restrictions on relationship between accused and young daughter - Minor prior convictions - Whether exceptional circumstances justifying a grant of bail - Whether accused unacceptable risk - Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A, 4D, 4E - Barbaro v DPP

1 On 15 June 2021, I heard a bail application by Minh Trinh (the applicant) who is charged with trafficking in a large commercial quantity of heroin, knowingly dealing with proceeds of crime and related offences. The applicant has been in custody on these charges since 10 April 2019. On 7 November 2019, he was committed to stand trial (straight hand-up brief). His trial was to commence on 27 January 2021 but in November 2020 was vacated because of the COVID-19 pandemic. He made an unsuccessful application for bail in the County Court (Judge Murphy) on 24 November 2020. There is a s 198B[1] hearing (in relation to the prosecution's DNA expert) listed on 7 July 2021 but the applicant still does not have a trial date. The County Court has listed his case for mention on 17 January 2022 (sic) at which time it is likely that a trial date will be set. There is a real prospect - indeed it seems on the cards - that his trial will not commence until three years or more after his arrest.

2 At the conclusion of the hearing on 15 June 2021, I was satisfied by the applicant that there were exceptional circumstances justifying bail.[2] The prosecution did not satisfy me that he was an unacceptable risk[3] and consequently, I granted bail on strict conditions, including a surety of $50,000. I said I would give detailed written reasons for my decision, which I do now.

3 I gratefully adopt Judge Murphy's succinct summary of the alleged offending:

1. The applicant is charged with a number of drug trafficking and possession of proceeds of crime offences arising out of a police operation targeting a bar/pool room in Richmond where the licensee was the accused's daughter.

2. The prosecution is alleging that over the period 21 January 2019 to 10 April 2019 the accused traffic in heroin, or alternatively possessed heroin. The amount involved is alleged to be a total of 149 g. The prosecution also allege that $38,530 that was found there was proceeds of crime, with the lesser alternatives of recklessly or negligently possessing that amount of money. The charges also involve the police raid on the accused's address at 87 Dight Street Collingwood where $12,885 was found and this is again a possession of proceeds of crime offence.

3. Police also raided a property in Mahon Avenue Altona North, which is the property of Mr Dong, who had been observed at the pool hall, where 2.0244 kg heroin was found giving rise to the charge of trafficking a large commercial quantity of heroin. There was also a raid on a property at Miller Avenue St Albans, the address of the accused's [adult daughter who was the licensee of the Pool Hall], where $148,335 was found and of this arose a charge of possession of the proceeds of crime.

4. The prosecution case is that the accused and three other individuals including Mr Dong were involved in trafficking heroin from that pool hall which was managed by the accused and co-accused Mr Hoang and Ms Vo. Police had installed surveillance devices in the premises over a period of March - April 2019 and had observed drug trafficking involving the accused and other associates including the now accused Dong over that time.

5. The case linking the accused with the drugs and the other sums of money is one of complicity on the basis that he was linked to the persons and property where the heroin and various sums of money were found.

6. The prosecution case involves both direct and circumstantial evidence. The direct evidence includes the surveillance of the pool hall over the period 14th March 2019 to 10 April 2019 showing drug transactions, with many involving the applicant, and the finding of heroin when the property was raided including it being secreted in various places within the property.

7. Another aspect of the prosecution case was the finding of DNA of the accused on black rubber wrapping that enclosed blocks of heroin found at the pool hall.

8. The accused's DNA was also found on black and blue rubber wrapping that enclosed large compressed rocks of heroin found at the Altona North property of Mr Dong.

9. In his record of interview the applicant denied knowing Mr Dong. Mr Dong had been identified in the surveillance at the pool hall, including at one stage in discussion with the applicant. This denial is to be led as post offence conduct.[4]

4 In written submissions, the applicant relied on the following matters to make out exceptional circumstances:

(c) weaknesses in the prosecution case in relation to the most serious charges;

5 In relation to (b) and (e), the applicant highlighted the fact that COVID-19 restrictions in prison have meant that he has not been able to have in-person contact with his four-year-old daughter, who, together with her 17-year-old sibling, is cared for by his wife at their home in Collingwood. There has been video contact once a week or fortnight (30 minutes each time) between the applicant and his young daughter but the applicant submits, not unreasonably, that '[t]his is a poor medium with respect to building and maintaining a relationship with a young child'.[5]

6 In relation to (c), the applicant submitted the prosecution case was weak in relation to the charges of trafficking in a commercial quantity and large commercial quantity of heroin. It was submitted that the presence of DNA matching his DNA in swabs of the drug packages located at Dong's home was not cogent evidence of his complicity at that level of trafficking:

It appears that numerous packages found at the premises belonging to Mr Dong have been swabbed together into compendious DNA evidentiary samples, thereby depriving the conclusion that the Applicant's DNA was ever on more than one of the packages which was part of the compendious sample.[6]

7 In relation to (d), the applicant only has a 2003 matter for social security fraud for which he ultimately received a fine of $1600.[7]

8 In relation to (f) and (g), the applicant's proposal was that he reside with his wife and two young children and that his ex-wife provide a surety of $50,000.

9 The prosecution submitted that the applicant had not discharged his burden of establishing exceptional circumstances. Relying on the Court of Appeal's decision in El Nasher v DPP,[8] the prosecution submitted that exceptional circumstances were not established by a delay of even three years. In relation to delay and COVID-19, the prosecution submitted this:

Some delay due to COVID-19 inevitable. The applicant has a young child and partner. But, the applicant does not submit there are other factors at play which would increase the stress of incarceration beyond that of the average prisoner (e.g. old age or ill-health). The pandemic is one factor to take into account in determining whether or not exceptional circumstances exist and does not, in all cases, give rise to it (Re Diab [2020] VSC 196, [38] (Beach JA)). Evidence is required to prove the effect of the crisis on the individual applicant (Ibid).[9]

10 The prosecution submitted that the prosecution case was a strong one based primarily on audio/visual surveillance material from the Pool Hall in combination with money and drugs found at the applicants home and DNA evidence linking the applicant to the drugs found at Dong's home. If convicted, the applicant would receive a sentence of imprisonment much longer than any period spent in remand.

11 I accept that the prosecution case on the most serious charges is a strong one and, if convicted, the applicant can expect to receive a very long sentence. But the delay from arrest to trial is inordinate, notwithstanding that the County Court is doing its best to grapple with the massive backlog of cases generated by the pandemic. Hopefully Parliament recognises that increased resources for the County Court is a priority.

12 The courts have recognised over the years that inordinate delay between arrest and trial can, of itself, establish exceptional circumstances which justify a grant of bail. Recently, the Court of Appeal in Roberts v R[10] said this at [37] to [39]:

It is hardly surprising that excessive time on remand has been recognised as constituting 'exceptional circumstances justifying bail'. After all, a person on remand is presumed to be innocent and pre-trial incarceration is fundamentally inconsistent with that presumption. As Kellam J explained in Mokbel v Director of Public Prosecutions [No 3]:

[O]ur society will not, and should not, tolerate what is effectively the indefinite detention awaiting trial of persons such as the applicant whilst an investigation such as that currently underway takes place. ... The community will not tolerate the indefinite detention of its citizens with no prospect of charges being tried within a reasonable period.[11]

In R v Cox,[12] Redlich J cited with approval the following passage from Outman v The Queen, in which Hasluck J said:

Those cases suggest that delay should be measured not against the state of the court list in any particular jurisdiction, but having regard to objective criteria based on the concept that a humanitarian society recognising the presumption of innocence will find abhorrent the idea that people are kept in custody for undue time without trial.[13]

His Honour also cited the following statement of Vincent J in Re Andrea Mantase:[14]

Periods of eighteen months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say, in effect, that such periods represent the norm and, therefore, cannot constitute part of the matrix of exceptional circumstances as they ultimately can be reasonably agreed to negate the very justification for detention prior to the determination of guilt. What I mean to convey by this statement is that such detention must be directed to serving the ends of justice and not itself constitute a potential source of injustice.[15]

13 Not so many years ago, no reasonable prosecutor[16] would have submitted that a delay of three years or more between arrest and trial did not establish exceptional circumstances justifying a grant of bail. Instead, a reasonable prosecutor would have conceded that exceptional circumstances were made out and applied himself or herself to the real question of whether the accused constituted an unacceptable risk. That was the approach taken by prosecutors in Barbaro v DPP[17] in 2009 - where a delay of just over two years was anticipated[18] - and, unsurprisingly, there was not the slightest criticism of that approach by the Court of Appeal in that case.

14 And yet in El Nasher v DPP[19] in 2020, the Court of Appeal described as 'bold' the submission by defence counsel that a period of remand of two and half to three years between arrest and trial would of itself establish exceptional circumstances justifying a grant of bail. The Court of Appeal said this at [43]:

We should add that we specifically reject the appellant's somewhat bold submission that in any case where there is a delay of the order apparent in this case, exceptional circumstances will, without more, be demonstrated. Each case will turn on its own facts and a decision maker will need to balance all of the relevant surrounding circumstances.

15 But in Roberts v R in 2021 a differently constituted Court of Appeal said this:[20]

In Beljajev, Kellam J regarded a period of 3 years of pre-trial custody as amounting to 'exceptional circumstances which would, in the absence of other factors, justify the granting of bail based upon the issue of delay'.[21] Doubtless, the same view would be taken today.

16 With respect, it seems to me that in a first world country with a sophisticated criminal justice system it is hardly bold to expect better - much better - than delays of three years or more between arrest and trial, even in a time of pandemic. Applying an objective standard, I regard such inordinate delay between arrest and trial as, self-evidently, exceptional and, save in a rare case,[22] as justifying a grant of bail.

17 Whilst in my view exceptional circumstances justifying bail are made out in this case by inordinate delay alone, the applicant, as indicated above, prudently relied on a combination of circumstances to establish exceptional circumstances. I accept that the combination of circumstances establishes exceptional circumstances justifying bail.

18 The applicant submitted that he is not a flight risk. He is an Australian citizen with strong ties to the jurisdiction. He will live with his wife and two young children. He has two older children who also live here. Strict bail conditions and a substantial surety also mitigate any perceived risk.

19 He is 57 years of age but has no relevant priors, only a social security matter for which he received a fine some 17 years ago. In these circumstances, the risk of reoffending or endangering others through ongoing trafficking cannot be viewed as unacceptable, especially given the inordinate delay between arrest and trial.

20 Although the only matter relied on by the prosecution before Judge Murphy was an unacceptable risk of flight, before me the prosecution submitted that there was an unacceptable risk of flight (due to the strong prosecution case and likely length of any sentence of imprisonment if convicted), of further offending and of endangerment of others should the applicant continue his drug trafficking.

21 The prosecution very fairly conceded that flight was not its main concern 'given the difficulty of leaving Australia due to Covid-19'.[23]

22 I accept the applicant's submissions in relation to unacceptable risk. What is an unacceptable risk must be assessed having regard to the inordinate delay between arrest and trial.

23 The imposition of strict bail conditions (including a substantial surety) plus the difficulty of leaving Australia due to COVID-19 render any risk of flight acceptable. It appears that the restrictions on international travel are likely to be with us for some time.

24 The applicant's age but limited criminal record poses a difficulty for the prosecution in establishing that he is an unacceptable risk of re-offending and endangering others. Recognition of that difficulty possibly explains why the prosecution did not rely on such risks before Judge Murphy.

25 Although Judge Murphy came to a different conclusion regarding exceptional circumstances, I note that, like me, he was not satisfied that the applicant was an unacceptable risk.[24]

26 I granted bail to the applicant on the following conditions:

1. A surety of $50,000.
2. He reside at 87 Dight Street, Collingwood, in Victoria.
3. He report daily to the Collingwood Police Station between the hours of 6.00am and 9.00pm when reporting recommences at police stations, at which time the Informant is to notify him of his obligation to report daily.
4. He not leave his place of residence between 9.00pm and 6.00am and that he present at the front door during curfew hours upon the request of police.
5. He surrender any valid passports within 24 hours and not apply for any others.
6. He not attend points of international departure.
7. He not leave the State of Victoria.
8. He is not to contact, directly or indirectly, any witnesses for the prosecution save for his daughter and the Informant.
9. He is not to contact directly or indirectly, any co-accused, save for his daughter if she becomes a co-accused.
10. He appear before the County Court of Victoria at 9.30am on 7 July 2021.

[1] Criminal Procedure Act 2009 (Vic).

[2] See Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A.

[3] Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A, 4D, 4E.

[4] Re Trinh [2020] VCC 1971.

[5] Accused's written submissions dated 11 June 2021 [10].

[6] Accused's written submissions dated 11 June 2021 [18].

[7] He was convicted of 8 counts of providing false information and 33 counts of fraudulently obtaining a benefit.

[8] El Nasher v Director of Public Prosecutions [2020] VSCA 144.

[9] Prosecution's written submissions dated 9 June 2021 [2(d)].

[10] Roberts v R [2021] VSCA 28.

[11] [2002] VSC 393, [9], [13] ('Mokbel').

[12] [2003] VSC 245.

[13] Outman v The Queen [2000] WASC 303, [28].

[14] Unreported, Supreme Court of Victoria, 21 September 2000.

[16] I mean no criticism of counsel for the prosecution in this case.

[17] (2009) 20 VR 717; [2009] VSCA 26.

[18] DPP (Cth) v Barbaro [2009] VSCA 26; 20 VR 717 [5].

[19] [2020] VSCA 144.

[20] Roberts v R [2021] VSCA 28.

[21] (1998) 101 A Crim R 362, 370.

[22] For an example of such a rare case, see Re MO [2017] VSC 557 where the applicant effectively admitted he was guilty of trafficking in a large commercial quantity of heroin but was disputing his involvement in other alleged instances of trafficking.

[23] Prosecution's written submissions dated 9 June 2021 [9].

[24] Re Trinh [2020] VCC 1971.