DPP v Nguyen [2000] VSC 452

Supreme Court of Victoria|2000-11-01|Before: McDonald J

APPEAL, bail, respondent charged with trafficking in commercial quantity of heroin - whether it is open to the Magistrate to find "exceptional circumstances" under s. 4(2) (aa) of the Bail Act 1977.

The proceeding before the court is an appeal brought by the Director of Public Prosecutions, pursuant to of the against an order made by the Magistrates' Court at Melbourne on 5 September 2000 granting bail to the respondent in circumstances where the respondent was charged with trafficking in and possessing heroin.

On 10 August 2000 the respondent was arrested, interviewed and charged on a number of counts of trafficking in and possessing heroin.

The respondent was charged with the following offences:

1. That at Kingsville on 4 July 2000, not being authorised by or licensed under the Drugs Poisons and Controlled Substances Act or regulations, he did traffic in heroin.

2. That at Kingsville on 12 July 2000 he did traffic in heroin.

3. That at Kingsville on 7 August 2000 he did traffic in heroin.

4. That at Kingsville on 10 August 2000 he did traffic in heroin.

5. That at Kingsville on 10 August 2000 he did possess heroin.

6. That on 10 August 2000 he did traffic in heroin.

7. That at Brunswick on 10 August 2000 he did possess heroin.

8. That at Melbourne between 4 July 2000 and 10 August 2000 he did traffic in a commercial quantity of heroin.

9. That at Melbourne between 4 July 2000 and 10 August 2000 he did traffic in heroin.

In the summary the Crown case against the respondent is that in the course of investigations carried out into the drug trafficking activities of Phuong Doan Tong it is alleged that Nguyen supplied heroin to Tong on a number of occasions. It is alleged that on 4 July 2000 the respondent was identified through a telephone intercept as being the supplier of two ounces of heroin to Tong. It is alleged that on 12 July 2000 the respondent was identified through a telephone intercept as being the supplier of one ounce of heroin to Tong. It is alleged that on 7 August 2000 the respondent was identified through a telephone intercept and surveillance as being the supplier of four ounces of heroin to Tong. It is alleged that on 10 August 2000 a request was made by a Covert Operative to Tong to supply the Operative with 13 ounces of heroin. It is alleged that the respondent contacted a mobile phone used by Tong and it was agreed that nine ounces would be supplied to Tong on one trip and another four ounces would follow. It is alleged that the respondent attended at Tong's premises and returned to his vehicle where he removed a "Remy Martin" box from the boot of his car. The respondent was then arrested and it is alleged that he was observed to throw the box onto the nature strip in front of him. It is alleged that the box was opened and approximately nine ounces of heroin was found in the box. It is alleged that the mobile phone that Tong had called when ordering heroin was located on the respondent. It is further alleged that a set of house keys and car keys were in the possession of the respondent as were four $50 notes. It is alleged that enquiries revealed that the serial number of those notes were identical to those used by the Covert Operative in purchasing heroin. Further, it is alleged that a search of the respondent's vehicle resulted in a small foil of approximately half a gram of heroin being found. The respondent was then conveyed to premises being Flat 10, 96 Glenlyon Road, Brunswick where a search warrant was executed. It is alleged that a key in possession of the respondent opened the door of these premises. It is further alleged that the respondent pointed out one ounce of heroin inside the vacuum cleaner in the lounge room and that a further ounce of heroin was located in a bedroom robe. It is alleged that also there was in these premises a steel press mechanism, one set of scales, three bank issue cards in the name of the respondent, glucodin, and some other documents. It is alleged that the police surveillance had observed that the respondent's motor vehicle was frequently at the premises being Flat 10, 96 Glenlyon Road, Brunswick. It is alleged that on behalf of the Crown that total quantity of heroin supplied by the respondent was 224 grams that on his arrest he was in possession of 252 grams and a further 56 grams was located at the flat in respect of which the respondent had a key which opened the door of the same. It is further alleged that a telephone intercept identified the respondent as agreeing to supply the full 13 ounces of heroin as requested on 10 August 2000 bringing the total weight of heroin involved to 588 grams.

On 5 September 2000 application was made on behalf of the respondent to the Magistrates' Court at Melbourne that he be released on bail. Evidence was led on behalf of the prosecution and the respondent on that application. As part of the evidence led on behalf of the respondent his sister, Ho Thy Hung Nguyen, gave evidence. She said that she was employed as the supervisor of a herb garden packing shed. She said that the respondent, if released on bail, would be able to be employed at the packing shed under her supervision and further the respondent could reside at her home. Also called as a witness was one Joseph Lamberti who is the director of Lamberti & Associates, Drug Rehabilitation Consultants, Prahran. He gave evidence that he had made a preliminary assessment of the respondent who had expressed willingness to participate in counselling and screening for the use of drugs. He said that the respondent had informed him that he was smoking heroin each day. Lamberti gave evidence that the respondent had informed him that he had gone through withdrawal while in custody and that he had been sleeping regularly. Evidence before the Magistrate also was to the effect that for a period of time the respondent had been held at the Custody Centre at the Melbourne Magistrates' Court and then he had been transferred to and held in custody at the Broadmeadow's Police Station.

After hearing the evidence led before the Magistrate and after hearing submissions made to her the Magistrate gave her decision and in doing so stated:

"I am satisfied that exceptional circumstances have been shown in relation to Mr Nguyen. I find that there is an issue with regard to the strength of the case as far as the commercial quantity of the heroin involved and also there is an issue with respect to Mr Nguyen's role as supplier or courier. I also find that there will be inevitably a delay in the final hearing of the matters. I take into account the conditions in which Mr Nguyen has been detained in custody which are extremely undesirable. I take into account very strongly that he has no prior convictions and in combination with that appropriate and thorough arrangements have been made for dealing with any drug addiction that he has and Mr Lamberti has given evidence of the safeguards that can be and will be put in place in relation to that. I find that Mr Nguyen has strong family support and I do not find any reason to doubt the conviction of his family in providing that to him. Mr Nguyen has available to him stable accommodation and a job and also conditions of very close supervision by family members who are in court today. The other issue that I have taken into account is the issue of parity in bail but I have looked at each of Mr Nguyen's and Ms Tong individually with regard to this issue of exceptional circumstances. Then I move to the issue of risk of flight and risk of re-offending. In relation to the risk of re-offending I suppose the issues there are those of opportunity and I am satisfied that the level of supervision available to Mr Nguyen is appropriate with regard to any concerns there may be with re-offending. The risk of flight can be dealt with by way of a substantial surety and also the conditions that I intend to impose."

It was then ordered that bail be granted to the respondent on his own undertaking and with a surety in the amount of $20,000. Bail was granted further on the special conditions, that the respondent report to the police station at Dandenong daily between 6.00 am and 9.00 pm, that he reside at 4 Griffith Street, Endeavour Hills, that he surrender any passport held by him and not apply for any other, that he not attend any points of international departure, that he not contact any witnesses for the prosecution other than the informant, that he not be absent from 4 Griffith Street, Endeavour Hills outside the hours of 10.00 pm and 5.00 am, that he attend upon Mr Lamberti for treatment for drug addiction as directed, that he undergo twice weekly drug testing, and that he not contact any co-accused.

The principal grounds relied on by the appellant on this appeal were:

1. That the learned Magistrate in proceedings to grant bail to the respondent erred in finding, pursuant to s. 4(2)(aa)(i) of the Bail Act 1977 that exceptional circumstances exist which justify the granting of bail.

2. That the learned Magistrate in proceeding to grant bail to the respondent erred in finding that pursuant to s. 4(2)(d) of the Bail Act 1977 that the respondent was not an "unacceptable risk" in all the circumstances.

With the consent of counsel for the respondent and counsel for the co-accused, Phuong Doan Tong, and senior counsel for the prosecution this appeal was heard co-jointly with the appeal in respect of the granting of bail to Phuong Doan Tong.

The principal argument addressed to the court on behalf of the prosecution on this appeal was that although it was open to the Magistrate to find the facts that she did as expressed in her reasons for decision, such matters considered collectively could not amount to "exceptional circumstances pursuant to s. 4(2)(aa)(i) of the Bail Act.

In the proceeding wherein the Director of Public Prosecutions is the appellant and Phuong Doan Tong is respondent being an appeal by the Director of Public Prosecutions against the grant of bail to Tong I have set out in my judgment the relevant principles to be applied and the matters to be had regard to by the court on the hearing of proceedings such as the proceedings in this matter. I do not restate those principles and matters in this judgment but I adopt and apply the same. As expressed in my judgment in the other appeal, I do not seek to define "exceptional circumstances" as applicable to s. 4(2)(aa) of the Bail Act 1977. The facts in each case must be examined in order to determine whether "exceptional circumstances" exist as would warrant the granting of bail to an applicant to whom s. 4(2)(aa) of the Bail Act 1977 applies.

The matter for me to determine on this appeal, is whether on the evidence before the Magistrate on the application for the grant of bail to the respondent it has been demonstrated that on the evidence before the Magistrate she was in error in determining that there existed "exceptional circumstances" pursuant to s. 4(2)(aa) of the Bail Act 1977.

The statement made by senior counsel for the appellant on the hearing of these appeals that it was common knowledge that 12 months or more may elapse from the time of arrest to trial had equal application to the circumstances of the respondent, Nguyen.

The conclusion that I have reached in this appeal is that it has not been demonstrated that the Magistrate was in error in determining that there existed "exceptional circumstances" which warranted the grant of bail to the respondent and further it was open to the Magistrate to be satisfied that there was not an unacceptable risk that if the respondent was released on bail he would fail to surrender himself into custody in answer to his bail or that he would commit an offence whilst on bail.

In such circumstances the appeal of the Director of Public Prosecutions in this matter must be dismissed.

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