For the Respondent Miss E. King QC with Mr H.G. Wilcox David Tonkin & Associates

This is an appeal by the Commonwealth Director of Public Prosecutions ("the appellant") pursuant to s.18A of the Bail Act 1977 ("the Act") against an order made by Her Worship Ms Cotterell on 4 July 1997 at the Melbourne Magistrates' Court, whereby she granted bail to Stephen Zade Abbott ("the respondent") on conditions.

The appellant, the Director of Public Prosecutions for the Commonwealth, Mr Brian Martin, Q.C., is exercising the right to appeal against the order of the magistrate pursuant to s.18A of the Act.

The respondent was born on 13 September 1976 and is aged 21 years. He is a resident of New South Wales. As a child he was convicted of a number of offences in the Children's' Court in that State from the early age of 13 years. During the period from 26 November 1992 to 12 January 1993 the respondent was convicted of a number of offences including robbery whilst armed, robbery in company and escape lawful custody. He was sentenced to terms of imprisonment and was released on parole on 21 December 1996, subject to supervision conditions one of which provided that he was not to travel outside the boundaries of the State of New South Wales without the express approval of the Officer in Charge of the department to which the supervisor is attached.

On 3 June 1997, the respondent was arrested by the Australian Federal Police and charged with one charge of possession of heroin contrary to s.233B(1)(ca) of the Customs Act 1901. On 6 June 1997 he was charged with a further offence of attempting to possess heroin contrary to s.233B(1)(ca) of the Customs Act 1901.

On 29 May 1997, a heroin drug courier was intercepted at the Melbourne Airport. A decision was made by the Federal Police to continue with the delivery of the heroin. Accordingly, the amount of heroin, which in total was 420.9

grams, was divided into two samples, namely, one of 23.6 grams and the balance of 397.3 grams. The delivery was the 23.6 grams sample and the balance was retained by the Federal Police. On 3 June 1997, at 11.07 a.m., the respondent, accompanied by three young persons entered a room at the Terrace Pacific Inn Hotel in Spencer Street, Melbourne. An amount of $3,000 was paid to the courier of the heroin who handed it over and the four accused were arrested by members of the police upon departing the hotel room.

The heroin was analysed and found to contain pure heroin to the extent of 64.5% so that the respondent is charged with obtaining possession of a net quantity of 15.22 grams of pure heroin and is further charged with attempting to obtain possession of 256.25 grams of pure heroin.

The quantity of heroin involved is of some importance when consideration is given to s.4(2)(aa)(ii) and (iii) of the Act.

On 19 June 1997, the respondent made application for bail before Her Worship Ms Cotterell at the Melbourne Magistrates' Court. He was represented by Mr H. Wilcox of counsel. Evidence was given by the informant. Evidence was given by a Mr Tran Long of 15 Doullie Avenue, Bass Hill in the State of New South Wales who stated that he had known the respondent for eight years and he was prepared to provide accommodation for him as well as supervise him. It appeared Mr Long was a friend. The learned magistrate refused bail, finding that the respondent had failed to show exceptional circumstances as required by the Act.

On 4 July 1997, the respondent made another application to the learned magistrate. Again he was represented by Mr H. Wilcox of counsel. On this occasion the learned magistrate held that there were new facts or circumstances which had arisen since the last application and accordingly she had jurisdiction to hear the further application, as required by s.18(4) of the Act. The court heard evidence from the respondent's uncle, Zaphyr Karamologlou, to the effect that the respondent had resided with him at 17 Bennison Road, Hinchenbrook in the State of New South Wales for some months prior to the date of the alleged offences and if granted bail the respondent could live there. Further, Mr Karamologlou gave evidence he was prepared to be a surety for the respondent in the sum of $25,000 which was the extent of the equity in his property at Hinchenbrook. He also gave evidence that he was living in a defacto relationship with the respondent's aunt, Deanne Abbott, who is a member of the New South Wales Police Force. The informant did not call any evidence because the magistrate indicated that the evidence given on 19 June was still fresh in her mind. The magistrate then indicated she would grant the respondent bail with conditions.

(a) One surety in the amount of $25,000.

(b) The respondent to report to the police station at Fairfield in the State of New South Wales, twice daily, once before 11.00 a.m. and again after 7.00 p.m.

(c) The respondent to reside at 17 Bennison Road, Hinchenbrook in the State of New South Wales.

(d) The respondent to surrender any passport held and not apply for any other.

(e) The respondent not permitted to attend any points of international departure.

(f) The respondent not to contact any witnesses for the prosecution other than the informant.

(g) The respondent prohibited from contacting any co-accused.

The appeal came on for hearing before me on 8 August 1997. Miss E. King, Q.C., who appeared with Mr H. Wilcox for the respondent, took an objection to the validity of the appeal before the court. She submitted that the appeal had not been validly instituted and accordingly there was no appeal before the court. Mr N. Robinson for the appellant submitted that the appeal was validly before the court. I considered the matter and ultimately ruled against the objection.

Section 18A of the Act is silent as to the nature of the appeal under that section. Section 18A(1) gives a statutory right of appeal to the Director of Public Prosecutions. There is nothing in the Act or any regulations which bear on the question of the nature of the appeal. Where legislation establishes a right of appeal without stating the nature of the appeal, it is sometimes a difficult question to determine the nature of the appeal. See discussion by the Federal Court in Duralla Pty Ltd v. Plant [1984] FCA 146; (1984) 2 F.C.R. 342 at 349 et seq, 357 et seq and 366-7. Since the appeal is a right which arises from the Statute, it will determine the nature, scope and effect of the appeal.

Fortunately, I do not have to go into this difficult question because the Full Court in Boris Beljajev and Anor, v. Director of Public Prosecutions and Anor., unreported, delivered 8 August 1991 discussed the question. The observations made in the joint judgment of Young, C.J., Crockett and Ashley, JJ. at pp.25 et seq are obiter. However, I have been informed that their Honours' reasons have been followed and there was no suggestion I should not follow the same course.

Their Honours held that the appeal was from an exercise of a discretion and the well-known principles relating to such appeals were applicable. At p.29 their Honours said -

"It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.

In other words the Director is not in our opinion, confined to relying upon an error of law as the ground of appeal but may succeed if he shows that on any ground, whether of fact or law, discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made."

However, their Honours went on to say that there were two matters of importance in relation to bail which must be taken into account in considering the principles set out above. The two matters were one, bail is not a final order and secondly, the granting of bail is essentially a matter of practice and procedure. Their Honours then went on to say this at p.30 -

"These two considerations both independently and in combination operate to impose on any appellate court the severe restraint upon interference with the order appealed from."

I take that to mean there is a strong presumption in favour of the correctness of the decision below and it should be affirmed unless it is clearly shown to be wrong. See Australian Coal and Shale Employees' Federation v. Commonwealth (1953) C.L.R. 621 at 627.

Section 4(4)(cb) of the Act provides that where a person is charged with an offence under section, inter alia, 233B(1) of the Customs Act as amended in relation to a commercial or trafficable quantity of narcotic goods, a court shall refuse bail unless the person shows cause why his detention in custody is not justified. The sub-section goes on to provide that where the court grants bail - "(i) if constituted by a judge or a magistrate, shall include in the order a statement of reasons for making the order." The respondent is charged with being in possession of a quantity of heroin, it is accepted that it is a trafficable quantity of narcotic goods and accordingly s.4(4)(cb) applies. With respect to the charge of attempting to possession heroin, being an amount in excess of 30.0 grams, it is also accepted it was a trafficable quantity and prima facie s.4(4)(cb) applies. I interpolate to observe that because the trafficable quantity exceeded 30 grams s.4(2)(aa)(ii) and (iii) apply so that the respondent as applicant for bail had to satisfy the court with respect to that charge that exceptional circumstances existed which justified the grant of bail. I will deal hereafter with the question whether both sub-sections could apply.

I should also say that as a result of a recent amendment to the Act, s.4(2)(a)(a)(iii)(iv) and (v) have been repealed. It therefore follows that from 1 September if the quantity of the drug is a commercial or trafficable one an applicant for bail must prove exceptional circumstances irrespective of the quantity see Sentencing and Other Acts (Amendment)(Act 1997 S.48(a)(i) and (ii). It follows that in respect to both offences, if s.4(4)(cb) applied to both, since the magistrate granted bail she was obliged to include in the order a statement of reasons for making the order. A certified extract was annexed to the affidavit of Bill Polychronolopous sworn 30 July 1997. There is nothing in the document which explains why the magistrate granted bail. It follows that there has been a breach by the magistrate of the obligations set out in s.4(4)(cb) of the Act and accordingly, the order is of no effect and should be quashed. I refer to the decision of Beach, J. in D.P.P. v. Sehevella, (unreported, 12.1.1997) where his Honour at p.7 referring to s.4(4) said -

"The Act makes it mandatory for a judge or magistrate sifting in Court or chambers to include in such an order a statement of his reasons for making the order. The magistrate clearly has not done so in the present case and, in my view, the order he made on 23 November is therefore a nullity."

I agree with his Honour's view of s.4(4).

The learned magistrate appears to have made one order granting bail in respect of both charges. I do not know from the material whether she determined each application separately as required by s.4(2)(aa)(ii) and (iii) and s.4(4)(cb)(i) or (ii) of the Act. Counsel informed me that the obligation to give reasons under s.4(4)(cb) only applied to the possession charge and not to the attempt to possess heroin because s.4(4)(cb) did not apply to the attempting to possess heroin charge because of the phrase - "subject to sub-section 2(aa)" in that sub-section. In support of that proposition I was referred to the decision of Hampel, J. in Director of Public Prosecutions v, Spiridon [1989] VicRp 31; (1989) V.R. 352.

At p.357 his Honour, after setting out parts of s.4 of the Act went on to say this -

"In the context of the present case, it is clear that sub-section (2) requires a person charged with offences of trafficking and possession of heroin which involve an amount of a drug greater than 30 grams to show exceptional circumstances which justify release on bail. These provisions deal with the most serious offences and understandably require the applicant to discharge a most stringent onus. If bail is granted, then curiously and I think by oversight, no requirement is imposed on a magistrate or a judge to state reasons. It is only in sub-section (4) which deals with drug offences involving lesser quantities that such a requirement exists where bail is granted. Under that sub-section a person charged with an offence under sub-section (4)(ca) involving less than 30 grams of heroin must discharge the onus of showing that his detention in custody is not justified. Sub-section (4)(ca) is expressed to 'subject to sub-section (2)(aa)'. The sub-sections deal with two different situations. One, under sub-section (2)(aa) where the amount of the drug is over the prescribed minimum quantity. The other under subsection (4)(ca) where the drug is not over the prescribed quantity."

His Honour was dealing with a charge under s.4(4)(ca) but his comments are apposite to a charge under s.4(4)(cb).

I respectfully disagree with his Honour's reasoning. Both s.4(2)(aa)(ii) and (iii) and s.4(4)(cb) apply to the charge of attempting to possess heroin. Section 4(2)(aa) applies because the quantity of heroin exceeds 30 grams. I interpolate to note that as a result of the recent amendment to the Act, the application of s.4(2)(aa) does not depend upon a particular quantity. Now the quantity is irrelevant.

However, the operation of s.4(4)(cb) is made subject to the operation of sub-s.(2)(aa). It is clear that in the present circumstances an applicant for bail has to establish exceptional circumstances. If he did that, it would follow that he has satisfied the requirements of s.4(4)(cb). The legislature has imposed a more stringent test under s.4(2)(aa). If the applicant fails to establish exceptional circumstances then he does not obtain bail.

But the phrase "subject to sub-s.(2)(aa)" does not prelude the operation of s.4(4)(cb), It still applies and if the applicant establishes exceptional circumstances it would follow that he has established that his detention in custody is not justified, but the judicial officer is still bound to comply with the obligation set out at the end of s.4(4)(cb). In other words the operation of s.4(4)(cb) is subject to the operation of sub-s.(2)(aa) but does not preclude the former's operation. It follows that the judicial officer shall include in the order granting bail a statement of reasons for making the order.

This construction avoids the absurd result that if the applicant establishes the requirements of s.4(2)(aa) i.e. exceptional circumstances, the judicial officer does not have to state the reasons but has to do so if he shows his detention is not justified.

It follows that both offences had to be considered under s.4(4)(cb) and one of the requirements is that if bail is granted the Magistrate shall include in the order a statement of reasons for making the order. The Magistrate has failed to do so and accordingly the order is of no effect. On that ground alone the order should be quashed. It follows that the respondent is not bailed.

However, at the hearing neither party challenged the ruling of Hampel, J. and both counsel proceeded on the assumption that it was only in relation to the possession charge that the reasons had to be recorded. It was therefore accepted that the court would quash the order insofar as it granted bail on that charge. It was in that context I raised with counsel the power that the Court had under s.1 8A(6) of the Act to consider the application for bail as if the application had been made before the Court. Miss King Q.C. opposed that approach on the ground that it would be unfair to her client because not all the materials that were before the Magistrate were set out adequately in the affidavits before this Court. Mr. Robinson on behalf of the appellant did not press me to make an order in respect of the charge of possession of heroin and accordingly the only order I will make is that the order granting bail by the Magistrate on 4 July 1997 in respect of that charge is quashed.

Miss King Q.C. indicated that the respondent would apply to a Magistrate for bail in respect of the charge. Because of the recent amendment he would now have to show exceptional circumstances.

As both parties proceeded on the basis that the Magistrate was not required to state her reasons for making the order in respect of this charge in the order I now proceed to consider the appeal against the granting of bail. The respondent as the applicant had to establish exceptional circumstances justifying the grant of bail.

The only evidence before me of the reasons why the Magistrate granted bail is set out in paragraph 12 of the affidavit of Bill Polychronolopous sworn 23 July 1997. It reads -

"12. "The court indicated that Mr Kararnologlou's preparedness to put up his entire equity in his property as surety, constituted exceptional circumstances which had to be made out by the respondent in accordance with s.4(2)(aa) of the Bail Act 1977."

Whether or not the Magistrate gave other reasons I am not in a position to say. No argument was put to me that as a matter of law she should have given more detailed reasons and that her failure to do so was an error of law which vitiated the order granting bail.

In my opinion the reason given by the learned magistrate is not an exceptional circumstance. The provision of a surety is a condition imposed to ensure the accused will answer his bail. It is not a relevant to the issue of "exceptional circumstances". Because I am uncertain whether I have all the reasons why the learned magistrate granted bail, I propose to consider whether the decision is so unreasonable or plainly unjust that it can be inferred her discretion miscarried.

I wish to re-iterate that it is the obligation of counsel at any hearing where the proceeding is not recorded to take a note of reasons given for a decision and in appropriate circumstances to request the judicial officer to expand or explain any reasons which are given. It is unsatisfactory that the court is left in a position where it is uncertain as to whether reasons were given or what they were.

Any person accused of an offence is entitled to bail. That is the general rule laid down by s.4(1) of the Act. However, that right to bail is abrogated in certain circumstances. One of those circumstances is where a person was charged with an offence inter alia under s.233B(1) of the Customs Act as amended and in force for the time being "in relation to a trafficable quantity of narcotic goods within the meaning of that Act and the offence is alleged to involve 30.0 grams or more of heroin." In those circumstances bail shall be refused -

"Unless the court is satisfied that exceptional circumstances exist which justify the grant of bail."

The quantity requirement has been repealed. It is well established that an applicant for bail has the burden of proving the "exceptional circumstances" and it is a heavy burden.

However, that is not the end of the inquiry. The Court shall refuse bail if it is satisfied that there is an unacceptable risk if the applicant is released on bail that he would commit one or more of the prohibited acts set out in s.4(2)(d) - for example, failure to answer his bail, commit an offence while on bail or interfere with a witness. The factors that must be weighed up in considering the question of an unacceptable risk, are set out in s.4(3) of the Act. It is noted that the Court must consider all relevant matters and that the list of specified risks set out in that subsection, is not exhaustive.

Mr. Robinson says that taking into account the strength of the Crown's case, the participation by the respondent in a serious offence, the respondent's prior convictions and bad character, in particular his violent disposition, the fact that this alleged offence occurred whilst he was on parole, that he had left the State of New South Wales in breach of his parole conditions, and considering what could be said in his favour, there were no grounds for holding that the respondent had satisfied the onus which rested upon him of establishing exceptional circumstances. Further he submitted that there were unacceptable risks that he would fail to surrender himself to answer bail, he may commit other offences whilst on bail and may interfere with witnesses. Accordingly he submitted that the respondent had not satisfied the matters set out in s.4(2)(d) of the Act. He said that in all the circumstances the decision was so manifestly wrong the learned Magistrate must have misdirected herself and accordingly her discretion had miscarried.

Miss King Q.C. submitted that it was on the appellant to show that the discretion had miscarried. Accordingly she submitted it was not necessary for her client to show there were sufficient facts which could amount to exceptional circumstances. However, I pointed out to her that for the purposes of argument it was necessary for her to identify what factors there were, which could justify a conclusion that there were exceptional circumstances in order to test the appellant's argument.

Miss King Q.C. referred to what Vincent, J. said in Re the Matter of Application for Bail by John Denis Maloney, an unreported judgment delivered 31 October 1990. His Honour pointed out that it was not possible to identify as a matter of general definition what situations were covered by exceptional circumstances. His Honour went on to say this -

"A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified."

Miss King Q.C. emphasised that although one may catalogue facts which should be taken into account to determine whether there are exceptional circumstances nevertheless in the final analysis the Court must consider the total factors in deciding the issue.

I do not doubt for one moment that in the end a Court must consider the totality of factors put forward and consider the question whether in all the circumstances they are exceptional. However, I am of the opinion for the purposes of argument it is necessary to identify the factors which are put forward as constituting exceptional circumstances consider each of them and then answer the final question, namely, do they amount to exceptional circumstances? This is an important exercise so that the court can determine whether an alleged matter is relevant to the issue of exceptional circumstances.

As I pointed out to Miss King, Q.C., in the light of the Magistrate's reasons and bearing in mind the matters which were raised before her, the conclusion was that she had misdirected herself and her discretion had miscarried accordingly.

Miss King Q.C. identified the following factors which she said in total constituted exceptional circumstances and which justified the making of the order by the Magistrate. They were -

(i) two out of the three co-accused had been granted bail and there should be parity of bail between co-accused;

(ii) that the respondent was a young person aged 20;

(iii) that he was able to reside in the home of his aunty and the surety, the aunty was a member of the police force in New South Wales and that the conditions under which bail had been granted were such that there was no real question of him failing to attend to answer bail;

(iv) what was offered by the surety was his only asset and that shows the faith the surety had in the respondent and him answering his bail;

(v) that in all the circumstances the offence was not at the end of the most serious in relation to attempting possession of heroin.

Miss King Q.C. also pointed out that the prior convictions of the respondent save for the robberies related to offences committed when he was very young. I do accept that. However, the convictions for robbery were serious especially as violence was used on at least one occasion.

On the question of parity the affidavit evidence established that two out of the other three co-accused had been granted bail and no appeal was made against the orders. Judy Pauline Hui, was granted bail some time after 3 June 1997 and her bail application was not opposed. The other co-accused Huy Bao Huynh was granted bail on 17 June 1997. His application was opposed but bail was granted.

There is no evidence as to the fate of the other co-accused.

In support of this proposition that parity of bail is a relevant factor to take into account in determining exceptional circumstances, Miss King Q.C. referred the Court to a decision of Coldrey, J. in the Matter of Donald Stuart Browne-Kerr, an unreported decision delivered on 10 August 1993. In that case His Honour was dealing with an application for bail by an applicant who was charged with trafficking and conspiracy to traffic, in cannabis. He had to show cause under s.4(4) of the Act. His Honour at p.3 said this -

"What troubles me in this case is the fact that the co-accused Malcolm Browne-Kerr, who on the material before me is in a situation virtually indistinguishable from the applicant, has been granted bail in these matters. Whilst parity is not a concept which must inevitably transpose into a bail context, there is, in my view, a prima facie requirement that like cases are not treated unequally." [My emphasis].

His Honour made the comments in a context of considering the unacceptable risk factors as required by s.4(2)(d) of the Act.

But at p.4 he took the requirement into account as a fact relevant to the show cause issue under s.4(4). He said -

"Ultimately, the factors of parity, the applicant's current family situation and the probable ancillary effect of that on his conduct, together with and to a lesser extent, the apprehended delay in the resolution of these matters, cause me to conclude, but I must say not without some hesitation, that sufficient cause has been shown to justify the grant of bail upon stringent conditions."

Given that there are different issues to consider depending on whether s.4(2)(d) or s.4(4) is being considered what his Honour said related to the exercise under s.4(4).

The question is whether the "parity factor" is relevant to a bail application?

I have assumed that the alleged parity factor is similar to the principle applied in sentencing. The rationale for the principle and its application were discussed by the High Court in Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606.

At p.623 Dawson, J. with whom Wilson, J. agreed said -

"There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for. But justice should be even handed. It has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done." [My emphasis]

After referring to the English approach his Honour had this to say at p.623 -

"The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of a Court of Appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice."

In applying the parity factor the first step for the court to take is to consider whether there are such similarities between the two offenders that the same sentence is called for. Gibbs, C.J. in the above case at p.609 said this -

"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." [My emphasis]

Recently the High Court considered the principle in Postiglione v. The Queen [1997] HCA 26; (1997) 71 A.L.J.R. 875. The Court re-affirmed the principle stated in Lowe v. The Queen ibid.

"The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."

"However, the parity principle as identified and expounded in Lowe v. The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a 'justifiable sense of grievance."'

The rationale for the principle is based on equal justice so that as between co-offenders there should not be a marked disparity which gives rise to a "justifiable sense of grievance." But as the High Court has emphasised the principle only applies if "like can be treated alike". There must be such a degree of similarity between the co-offenders that they should be treated equally.

The same sense of grievance leading to the appearance of injustice could result from the different treatment of co-accused on applications for bail. To that extent I am prepared to hold that the principle it relevant to the questions of exceptional circumstances as required by s.4(2)(a) and (aa), the question of the applicant showing cause why his detention in custody is not justified under s.4(4) and also in relation to the enquiry concerning unacceptable risk factors required by s.4(2)(d) of the Act. However, in my view it would indeed be rare for the principle to have any relevant weight in bail applications because the circumstances invariably at all levels of determination are peculiar to the particular applicant.

In my opinion the principle can apply but it must be established that things are equal as between the co-offenders. The principle was stated in these terms by the South Australian Court of Criminal Appeal in R. v. Tiddy (1969) S.A.S.R. 575 at 577 -

"Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made."

Quoted with approval by McHugh, J. in Postiglione v. The Queen ibid at p.882.

Adapting that for a bail application the principle can be stated - where other things are equal applicants for bail should receive the same decision; where other things are not equal the bail applications may be dealt with differently.

In my opinion a manifestly wrong decision to grant bail could not be used as a basis for the application of the parity principle in another bail application.

I now turn to the evidence concerning the co-accused. The respondent's solicitor, David Tonkin, in an affidavit sworn 28 July 1997, deposed -

"I am informed and verily believe the co-accused July Pauline Hui was granted bail some time after 3 June 1997 and that her bail application was not opposed by the Crown. I am also informed and verily believe that she is charged with similar offences. The co-accused Huy Bao Huynh was granted bail in a Magistrates' Court at Melbourne on 17 June 1997. His application was opposed by the Crown. His charges are similar to those of the respondent. Further prior convictions of Huy Bao Huynh are similar to the prior convictions of the respondent with the exception that the respondent has no drug related convictions."

A copy of the prior conviction record of Huy Bao Huynh was exhibited. He is aged 21 years and at the age of 14 commenced his career in crime and for the following seven years has been in and out of court. The nature of his offences are stealing, receiving, illegal use of a motor vehicle, assault, and robbery in company, all before he turned the age of 17 years. Since reaching adulthood, he has been charged and sentenced for supplying and possession of drugs and was sentenced to a period of imprisonment. He was charged on 2 March 1997 with malicious wounding and assault occasioning bodily harm.

Mr Polychronopoulos swore in an affidavit of 30 July 1997 the reasons why the said Huy Huynh was granted bail. It appears that his paternal grandmother who had raised him was undergoing heart surgery and there was a risk she may die. Evidence was also given that the accused might take his own life if deprived of the last opportunity to see his grandmother.

I have no other information relating to the two co-accused who have been bailed and I do not know the fate of the third co-accused. Given those circumstances I do not see how the parity factor could apply here. There are three other co-accused. Two have been granted bail. Details in relation to one have been given but not the other. The reasons why the bail application of Ms Hui were not opposed were not given. The court does not know the facts concerning the third co-accused who has not been bailed. The similarities between the respondent and Huy Bao Huynh relate to their age and their prior criminal history and their apparent involvement in the present case. However, the respondent was involved in this offence whilst on parole and in breach of an obligation to remain in the state of New South Wales.

Finally, I am by no means satisfied that the decision to grant bail to Huy Bao Huynh was appropriate in the circumstances. All told it is my opinion that the parity factor does not apply here.

In my opinion the question of the likelihood of the applicant surrendering himself in answer to his bail, the imposition of strict conditions in circumstances where it is probable he will be closely supervised and will answer his bail are facts which are not relevant to the question of exceptional circumstances. See Zoeller v. Federal Republic of Germany [1989] HCA 67; (1989) 64 A.L.J.R. 137. They are matters to be taken into account when the Court considers the question of whether there are unacceptable risk factors under s.4(2)(d). In my opinion the fact that a surety is prepared to put up his life savings is also not an exceptional circumstance.

The Legislature has made the courts approach in drug offences to bail quite clear. A person accused of a serious drug offence under the Customs Act is not entitled to bail unless it is established that there are exceptional circumstances which exist justifying the grant of the bail. The Legislature in its wisdom has imposed a very heavy test. It is not for the Court to question that wisdom. It may be in cases such as the present that the heavy stringent test or onus placed upon an applicant for bail is not appropriate. However, that is not a matter for me.

Further the recent amendment to the Bail Act reinforces the resolve of the Legislature to combat drug crimes and underlines the heavy burden that rests on applicants for bail. I agree that the alleged offence is not at the serious end of the spectrum and that is a factor to be weighed up. I do not accept that his age of 20 years at the time of the application is a matter of any real weight when considering exceptional circumstances. In considering all relevant factors in total, they do not constitute exceptional circumstances.

I am satisfied the learned magistrate erred in failing to record the reasons for granting bail in respect to both charges. I accept that the appellant must prove error. I am also satisfied that he has established error in relation to the reasons given by the Magistrate. But proceeding on the basis that she did give other reasons, taking into account all the facts as set out in the affidavit material and exhibits no reasonable Magistrate in my view could have, applying the strict test under the Act, come to the view that there were exceptional circumstances entitling the respondent to bail.

In my opinion the appellant has established error, and accordingly the order granting bail should be quashed.

(i) Appeal allowed against the order made by Magistrate Cotterell in the Melbourne Magistrates' Court on 4 July 1997 granting bail to Stephen Zade Abbott in respect of two alleged offences with which he was charged under the Customs Act 1901.

(ii) That the said order is quashed.

(iii) The bail is revoked.

(iv) The respondent Stephen Zade Abbott is committed to prison to await his trial.