IN THE MATTER of the Bail Act 1977 v IN THE MATTER of an Application for Bail by NHAT L

(a) Between 7 November 2020 and 20 November 2020 attempting to possess a commercial quantity of border controlled drugs, namely methamphetamine, contrary to ss 11.1(1)[1] and 307.5(1) of the Criminal Code Act 1995 (Cth)('Criminal Code') between 7 November 2020 and 29 November 2020;

(b) On 20 November 2020 trafficking in a commercial quantity of a controlled drug, namely methamphetamine, contrary to s 302.2(1) of the Criminal Code;

(c) On 20 November 2020 trafficking in a marketable quantity of a controlled drug, namely heroin, contrary to s 302.3(1) of the Criminal Code;

(d) On 20 November 2020, dealing with proceeds of crime where the value of the money or property was less than $100,000 contrary to s 400.9(1A) of the Criminal Code; and

(e) Committing an indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977 (Vic)('the Act').

2 The applicant has been on remand on the above charges since 20 November 2020. On 20 May 2021, the applicant was refused bail in the Melbourne Magistrates' Court because he failed to show exceptional circumstances. The Wall charges are next listed for further Committal Mention on 26 August 2021 at the Melbourne Magistrates' Court. The last two committal mentions were adjourned due to the brief of evidence being incomplete.[2] At the hearing, the respondent confirmed the brief of evidence was now complete and that it would be served the following day.

3 At the time of committing the offences the subject of charges 1- 4, the applicant was on bail for a single charge of driving whilst disqualified. That charge dates back to 2018, but could not be served on the applicant at that time due to an incorrect address being provided. An arrest warrant was issued, and subsequently executed on 17 April 2020. The applicant was released on bail, and was, as such, on bail when the current offending was allegedly committed.

4 The applicant has three co-accused. Their details are as follows:

(a) The applicant's wife, Helen N, was arrested at the same time as the applicant. Helen N is now charged with the same offences as the applicant, save that she has not been charged with breaching bail. Helen N was granted bail on 11 February 2021. At the time of applying for bail, Helen N had not yet been charged with attempting to possess a commercial quantity of methamphetamine that relates to the Parkville consignment, discussed further below. The prosecution did not oppose bail for her at that time. In granting bail, the Court took note of Helen N's caring responsibilities for her and the applicant's infant daughter,[3] her ties to the jurisdiction, family support, the availability of a stable residence, her lack of relevant prior convictions, the conditions in custody and the strength of the prosecution case. Helen N was bailed on her own undertaking, with static residence and curfew conditions. She is allowed to have contact with the applicant but is otherwise prohibited from contacting the other co-accused men.[4]

(b) Tung N was arrested on 20 November 2020. He is charged with importing a commercial quantity of methamphetamine[5] and attempting to possess a commercial quantity of methamphetamine.[6] He was bailed on 5 February 2021 by the Melbourne Magistrates' Court on his own undertaking and with a surety of $200,000. He has a static residence condition and is prohibited from contacting any of his co-accused. The Magistrate took account of Tung N's ties to the jurisdiction, his lack of relevant prior convictions, and delay.[7]

(c) Duc N is charged with attempting to possess a commercial quantity of methamphetamine,[8] trafficking heroin and MDMA,[9] and dealing with suspected proceeds of crime.[10] Duc N is on remand and has not applied for bail.

6 The informant, and Trung P, the proposed surety, gave evidence at the hearing. The applicant was assisted by an interpreter in the Vietnamese language. A written offer of employment by Van N was also provided to the Court.[11]

7 The applicant is alleged to have been aware of the importation of methamphetamine in mustard bottles in November 2020 that was to be delivered to a Parkville convenience store owned and managed by Tung N.

8 On 8 September and 22 October 2020, two large consignments of mustard arrived in Melbourne from the U.S., bound for Tung N's convenience store in Parkville ('the Parkville store'). Tung N was the consignee for both consignments. Neither consignment was examined by Australian Border Force ('ABF') and they were both released from Customs. Tung N then arranged for the consignments to be delivered to the Parkville store. Both consignments were delivered without issue, and the packs of mustard were stacked in the back of the Parkville store, where they remained for several weeks. Prior to these two consignments, the Parkville store did not ordinarily stock mustard. Police suspect these first two consignments were arranged to create the appearance of a legitimate pattern of importation in order to conceal the importation of drugs via the third consignment.

9 On 7 November 2020, a third consignment of mustard arrived in Australia, also bound for the Parkville store, with Tung N as the consignee. The ABF inspected the consignment before it could be delivered. The consignment comprised of two pallets of mustard bottles - 1,680 bottles in total. The ABF tested the substances within the bottles and found that 1,608 of the bottles contained methamphetamine (the remainder contained genuine mustard). The total quantity of pure methamphetamine contained in the bottles was later found to be 174.04 kilograms.[12] The estimated street value is estimated to be between $106,743,200 and $213,486,400.[13] The ABF transported the consignment to a cargo facility at Melbourne Airport, placed a customs hold on it and referred the matter to the Australian Federal Police ('AFP').[14] The AFP then opened 'Operation Zeelandia' and commenced conducting surveillance of the applicant and his co-accused by telephone intercept and optical surveillance devices.

10 Between 13 and 14 November 2020, the AFP created a replica consignment, consisting of 1,680 bottles of genuine mustard.

11 On 16 November 2020, Duc N attended the Parkville store and collected a large quantity of the mustard that was delivered in the first and second consignment (all genuine mustard). Police say this was done in anticipation of the third consignment. Tung N gave instructions to Duc N over the phone.

12 Duc N returned to the store on 17 November 2020, expecting the delivery of the third consignment that day. Tung N continued to provide Duc N with instructions over the phone. Before the third consignment arrived, Duc N, on Tung N's instructions, marked a few of the remaining boxes of genuine mustard with an 'X' and left them at the counter of the convenience store in case anyone asked for them. Duc N then collected some further packs of mustard and put them in his car. He then drove around Parkville, to conduct what police allege was 'counter-surveillance', on Tung N's instruction.

13 The AFP arranged for the replica third consignment to be delivered to the Parkville store just before noon that day. Duc N signed for the delivery and he and a worker at the Parkville store took the replica consignment inside the store, and stacked the packs of bottles at the back of the store. Later that day, Tung N instructed Duc N to take the genuine mustard in his car home with him, and to leave the replica third consignment at the store. At that point, it appears there began to be some confusion among the accused as to which of the palettes contained genuine mustard and which contained methamphetamine.

14 The following day, on 18 November 2020, the applicant commenced giving instructions to Duc N via phone. Duc N returned to the Parkville store in the morning, loaded all of the boxes of mustard bottles in to the van and then left in that van, ultimately arriving at a Deer Park address later that morning. Throughout the course of that day, the applicant instructed Duc N to count and photograph the bottles. There was confusion about precisely what Duc N was required to do, and there were several conversations back and forth.

15 Over the course of the applicant's conversations with Duc N throughout 18 November 2020, it emerged that more bottles were delivered than were expected and that the bottles did not contain the methamphetamine as expected. It was suspected that the bottles containing methamphetamine had been mixed up with the bottles containing genuine mustard. The applicant told Duc N to send photos and videos of the bottles and the substance within the bottles. The informant gave evidence that at some stage on 18 November 2020, the applicant sent Duc N screenshots, received by the applicant from unidentifiable persons via an encrypted platform. Those screenshots are inferred to have been relevant to the testing of the substances of the bottles. During the evening of 18 November 2020, on the applicant's instructions, Duc N delivered 46 packs of bottles from the replica consignment to an unknown person. Police allege that the unidentified person was supposed to test the substance in the bottles. Those packs were later located by police at an address in St Albans that was being used as a clandestine drug laboratory. Police infer from his instructions to Duc N about the delivery that the applicant indicated the location of the clandestine drug laboratory.

16 The applicant continued to instruct Duc N throughout 19 November 2020, apparently attempting to ascertain the contents of the bottles. The confusion surrounding what was in the bottles continued throughout the day. During their phone and text conversations, it seems the applicant was expecting the majority of the bottles in the consignment to contain a pink liquid, that he understood to be methamphetamine in a liquid form. Notably, that day, in one call he told Duc N that 'the real sauces are yellow and the pink ones are ice.'[15] The word ice was said in English. It appears that Duc N owed money to the applicant for an unrelated matter. They discussed Duc N collecting further drugs (using words like 'sweet' and 'hot') from the applicant.

17 The applicant met with Duc N twice on 19 November 2020, seemingly to check the bottles that were delivered in the replica third consignment himself, apparently in an effort to determine what was in the bottles.

18 Later that afternoon, Tung N called his brother and told him that he had been contacted by the 'Vietnamese side' who seemed to be enquiring about the consignment and why everything had got 'mixed up'.

19 Throughout both 18 and 19 November 2020 the applicant was allegedly liaising with and receiving instructions from others, variously referred to as 'they' or 'the company'. The informant gave evidence that the applicant was communicating with unidentifiable persons via an encrypted platform during this alleged offending. Police consider those people are likely associated with the Australian side of an organised crime syndicate involved in the importation of the drugs. The applicant was also communicating with his wife and co-accused, Helen N throughout both days, about the apparent problem with the bottles. Helen N appeared to give directions to the applicant at times. They discussed whether they would be blamed for the mix up, and at one stage, Helen N mentioned something about 'profits.'[16] In one conversation, Helen N told the applicant not to 'do this stuff anymore' because 'they' would shift blame on to him and they cannot afford to pay compensation.[17]

20 On 20 November 2020, police executed a search warrant at the applicant and Helen N's Albion residential address. Several items were seized, including 597.0 grams of pure heroin[18] (estimated street value between of $694,320 and $1,388, 640[19]), and 797.8 grams of pure methamphetamine[20] (estimated street value between $198,680-$397,360[21]), which were located in a locked cupboard together with a shopping bag containing dimethyl sulfone (a cutting agent). DNA consistent with the applicant was found on that bag. A smaller amount of MDMA was also located, as were many other items including:

(a) two sets of scales on which traces of heroin, methamphetamine, cocaine, MDMA and dimethyl sulfone were later found;

(b) eight mobile phones and an iPad, including handsets containing numbers used by the applicant and Helen N, and one encrypted device;

(c) two bags full of empty capsules, one of which was within a parcel addressed to the applicant;

(d) a cash counting machine;

(e) three containers of the cutting agent dimethyl sulfone;

(f) a hydraulic block press machine and press stamps for use with that machine (with traces of heroin, methamphetamine, cocaine, MDMA and dimethyl sulfone); and

(g) a blender containing traces of heroin, methamphetamine, cocaine, MDMA and dimethyl sulfone, as well as a mixing bowl and a vacuum sealer on which the traces of the above drugs were also found.

21 Police also seized a wallet containing $8,215.50, together with identification documents for the applicant, and a handbag containing $2,500.05, believed to belong to Helen N. The applicant was arrested during the execution of the search warrant. During a recorded conversation in the course of his arrest, police attempted to caution the applicant and read him his rights. The applicant repeatedly attempted to talk to Helen N in Vietnamese, despite police telling him not to. One comment he made to her was translated as 'call Duc and tell him to accept everything'. According to evidence given by the informant, the applicant's wife admitted to the presence of drugs at their home and provided the keys to the safe in the garage where the heroin and methamphetamines were located. She claimed the drugs were hers. However, as mentioned earlier, DNA sampling of a plastic bag containing cutting agent found in the cupboard showed a potential link to the applicant.

22 The applicant was taken to the AFP offices in Melbourne. He primarily gave a 'no comment' interview. He was then charged and remanded. Examinations of a phone seized from the applicant uncovered numerous text conversations with unidentified persons where the applicant allegedly discusses drug trafficking activities. There are conversations where he discusses importing drugs, the price of various drugs, including ice, and what drugs he has, apparently available for sale.[22]

23 Helen N was also arrested and taken to the AFP offices. She admitted to owning some of the seized items, including the drugs and cash.

24 That same day, police executed search warrants at Tung N and Duc N's addresses. Police located some of the bottles that were part of the AFP's replica consignment at Duc N's address, as well as drugs and cash. They located the bottles believed to be from the first and second consignments at Tung N's address, as well as cash, and devices associated with the Parkville store. Police also searched the Parkville store that day, seizing CCTV footage. Duc N was arrested at his home, and Tung N was arrested at his workplace in Campbellfield that day.

25 Also that day, a search warrant was executed at the address in St Albans where, as previously mentioned, police found that part of the premises was set up as a clandestine drug laboratory. The 46 packs of bottles suspected to have been delivered by Duc N, on the applicant's instruction, on 18 November 2020, were located at that address. Police are continuing to investigate the occupants of that address and their involvement in the laboratory.

26 On one of the phones police seized from Duc N, police located two videos meant for, but never sent to, the applicant. Police believe the videos were to be sent in the event Duc N got into trouble. In the videos, Duc N threatens to disclose 'everything' unless the applicant sends money to Duc N's mother and covers his legal costs.'[23]

The applicant's personal circumstances, and criminal/bail history

27 The applicant is a 34 year old Vietnamese national. He arrived in Australia in 2003 and currently holds a bridging visa, granted on 28 January 2020.[24] The applicant arrived in Australia when he was 18 years old. It was put on the applicant's behalf that he came to Australia to study.

28 The applicant was last in Vietnam in 2012-2013. The applicant has three children. He has two daughters, aged three and six, with an ex-partner (Phuong N), and a 13-month-old daughter with his wife, Helen N. Prior to his remand, the applicant resided at the Albion residential address with Helen N and their daughter. That is a rental property. His other two children were then, and remain now, in the care of his ex-partner. The applicant was 'heavily involved' with his baby daughter prior to his arrest, and he asserts that he maintained regular contact with his other two children. He and his wife are alleged to have recently purchased a home with the settlement date being the date the applicant was arrested.

29 After arriving in Australia around the age of 18, the applicant attended Strathmore High School for years 11 and 12. He applied for and obtained a student visa in 2010. He then studied electronic systems at to Swinburne University for two years, and then attempted an online course at the Central University of Queensland in Information Technology from 2008 to 2010. He did not finish that course. His student visa was cancelled in 2013. During his studies, he supported himself by working as a baker. He then commenced work constructing caravans at 'New Age Caravans' until 2018. He continued in that type of employment as an independent contractor, taking contracting jobs from smaller caravan companies until 2019. He then worked as a general hand at 'a nail shop'(manicurist's premises).

30 The applicant has a criminal history comprising convictions for driving offences. In 2017, the applicant was fined and disqualified from obtaining a drivers licence for six months, for three charges of breaching a court-imposed alcohol interlock condition, two charges of drink-driving, unlicensed driving and a single conviction for failing to answer bail.

31 On 25 May 2021, at the Broadmeadows Magistrates' Court, the applicant pleaded guilty to two charges of driving whilst disqualified and one charge of speeding (by less than 25 kilometres). He was fined $1,000.00 and he was disqualified from driving for six months.

32 When interpreting the Act, the Court must have regard to the guiding principles set out at s 1B(1) of the Bail Act 1977 (Vic) ('the Act').

33 In this case, the parties agree that the applicant must establish that exceptional circumstances exist in order to justify the grant of bail due to being charged with a Schedule 1 offence, namely charge 1.[25]

34 Therefore, the Court embarks on a two-step process in determining the application. First, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances justify the grant of bail.[26] Second, even if satisfied by the applicant under Step 1, the Court must refuse bail if the respondent satisfies the Court under Step 2 that the applicant poses an unacceptable risk pursuant to ss 4D and 4E of the Act.

35 In considering whether exceptional circumstances exist, the Court must take into account 'the surrounding circumstances'.[27] This includes all the circumstances that are relevant to the matter, including, but not limited to, those set out in s 3AAA(1) of the Act.

36 In the bail application of Re Brown,[28] Lasry J summarised principles relevant to interpreting 'exceptional circumstances' in the context of applications for bail:

The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.

Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.

Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[29]

37 Even where the Court is satisfied that exceptional circumstances exist, the Court must refuse bail if the respondent discharges the burden of establishing that if released on bail, the applicant poses an unacceptable risk or engaging in any or all of the conduct captured by s 4E(1). In the present case the respondent says the applicant poses an unacceptable risk of:

(a) Committing an offence while on bail; and/or

(b) Failing to surrender into custody in accordance with the conditions of bail.

38 Under s 4E(3) of the Act the Court is again directed to take into account the 'surrounding circumstances' in determining whether there is any relevant risk and whether it is unacceptable, and is directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk.

39 The applicant relies on a combination of the following factors to both establish exceptional circumstances that justify a grant of bail, and to address risk:[30]

(a) Likelihood of substantial delay: The applicant's representatives submitted that the County Court may not be able to hear a trial in this matter for three years. Relying on timelines outlined in the County Court's 'Revised Relisting Schedule of Melbourne Criminal Trials commencing in January 2021' publication,[31] the applicant submits that at best, a trial in this matter could be listed in term 1 of 2023, meaning that he would spend approximately 26 to 30 months on remand. Mr Dickinson QC, relied on several decisions of this Court where it was considered that a delay of three years could, on its own, found exceptional circumstances.[32] Mr Dickinson noted that this should be the case for a long delay other than in rare cases. In the event the Court were to find this was one such rare case, the expected delay when combined with the other matters put in support of bail should establish exceptional circumstances. Those other matters are summarised below. Mr Dickinson conceded that if found guilty, the applicant's ultimate sentence would likely outstrip his time on remand, but noted that this Court has previously held that lengthy delay between charge and trial could still cause injustice even in such circumstances.[33]

(b) Strength of the Crown case: At the oral hearing, Mr Dickinson submitted the Crown case could be characterised as moderate, but noted that the applicant is contesting the charges against him. He submitted there are triable issues as the applicant denies knowledge of the drugs that were found in his home and he also denies any knowledge of the contents of the importation. Mr Dickinson referred to previous decisions of this Court including Re Jiang[34] and Re Yousuf,[35] both decisions of Lasry J, drawing from these cases that the presence of a strong prosecution case is not a determinative factor in bail applications. Mr Dickinson submitted that this consideration, whilst relevant, should not be paramount in the Court's mind.

(c) The applicant's ties to the jurisdiction and personal circumstances: Mr Dickinson submitted that the applicant had spent his adult life in Australia, having arrived in 2003. The applicant's representatives referred to the fact that the applicant is married to Helen N, an Australian citizen and that he has three children who live in Victoria. Mr Dickinson mentioned family support by referring to the applicant's wife (co-defendant Helen N) and also submitted that his former partner Phuong N (mother of the two older children) is also supportive of him although she refuses to allow their children to see him while he is in custody. The applicant shared the care of their infant daughter with Helen N before his remand. Mr Dickinson asked the informant in cross-examination whether he could confirm that the applicant saw his two other daughters once a week before he was remanded. The informant said he was not aware of those two other children until the time of the last bail application.

(d) The applicant was said to have been trying to make a life for himself in Australia although Mr Dickinson conceded he was still only on a bridging visa, and that this might be as far as he is able to get. The applicant has employment available to him with a truck mechanic in Sunshine. He is able to work there part-time (Mondays, Wednesdays and Fridays), commencing immediately if granted bail, with the possibility of full time employment to be discussed after the applicant has worked there for six months.

(e) The applicant has limited prior criminal history and his limited bail breach history was submitted to be on the lower end of the scale of seriousness.

(f) Mr Dickinson described the risk that the applicant would flee the jurisdiction as 'fanciful', noting the practical difficulties involved with leaving Australia given the current pandemic restrictions, and the fact that the applicant's wife was willing to hand over the applicant's current passport in support of bail.

(g) The applicant is experiencing hardship in custody: The applicant's time in custody was said to have been particularly difficult because of COVID-19 restrictions. Phuong N does not let their children visit the applicant in custody. The applicant complains of difficulties having regular contact with his lawyers as interpreters cannot always be promptly arranged. This would affect his ability to prepare his defence to the charges. It was submitted that the applicant is vulnerable in custody, and has been stood over by other inmates who have tried to intimidate him.

(h) Static residence and a surety: If granted bail, the applicant could reside with his friend Trung P in Kings Park. Trung P gave evidence at the hearing and explained that he and the applicant were friends in Vietnam. Their families in Vietnam remain friends. Trung P came to Australia in 2017. Prior to the pandemic in 2020, Trung P said he and the applicant saw each other about once a week. He is aware that the charges against the applicant involve drugs, but was unsure of the estimated monetary values. He confirmed he is willing to offer a surety by way of equity in an investment property he owns in Kings Park. He understood that he would be at risk of losing the value in that property if the applicant were to fail to answer his bail or otherwise breach a condition of his bail. He confirmed that the applicant could reside with him if he were to be granted bail and that he is in a position to supervise him. The informant gave evidence that he made police checks into Trung P and found nothing of concern about him or the proposed static residence.

(i) Parity: The applicant submitted that the principle of parity should apply because both Tung N and Helen N have been granted bail. Mr Dickinson noted that Helen N is charged with the same charges as the applicant, though he conceded she cares for their baby. Mr Dickinson drew the court's attention to Tung N's involvement with the consignments, wherein two dummy runs were conducted before the drug consignment. The case against Tung N regarding the Parkville offending was therefore 'substantial' as Tung N was involved for that longer period. Mr Dickinson conceded that Tung N does not have further charges such as those the applicant has relating to drugs and accoutrements of trafficking at his home. However, Mr Dickinson submitted that the incentive for Tung N to flee is the same as the incentive that would exist for the applicant if he were released on bail, given the gravity of the offending and the nature of the charges.

40 The respondent submitted that the applicant has not established exceptional circumstances and that the applicant poses an unacceptable risk of failing to answer bail or committing further offences whilst on bail.[36]

41 Strength of the prosecution case: The respondent submitted that the Crown case is strong, and that the evidence indicates the applicant had an elevated role in the offending compared with his co-accused. The informant gave evidence to the effect that he perceived the applicant's role as the highest among the four co-defendants, or regarding Tung N it was at least equal if not found to be higher. Regarding the alleged Parkville offending. Counsel for the respondent, Ms Champion, submitted the applicant's alleged offending is a serious example of the charges, and drew the Court's attention to the maximum penalties for the charges (notably, life imprisonment for charges 1 and 2). She submitted there is cogent evidence that the applicant is the speaker during incriminating phone calls during the alleged offending,[37] and that several of those calls demonstrate the applicant's level of involvement in the offending the subject of charge 1, including by giving instructions to Duc N on various matters, telling Duc N to count the consignment and to take (and then delete) photos of it, his comments about the contents of the bottles, and instructions relating to the bottles being delivered to the clandestine drug lab. Ms Champion also submitted that it was clear from the evidence that the applicant is aware that the third consignment was supposed to contain ice.[38] In addition, the respondent referred to the optical surveillance evidence that captured the applicant meeting with Duc N. The alleged offending was very serious - not only with respect to charge 1, but also with respect to charges 2 and 3, bearing in mind the quantities of drugs found at the applicant's address.

42 Regarding charges 2, 3 and 4, the applicant submitted that drugs and cash were located by police at his residence. The methamphetamine located was different to that found within the mustard bottles. Along with the drugs located at the applicant's home, there were other significant items, including the cash counting machine, press stamps, a book of names, consistent with the applicant undertaking a business of drug trafficking, which was relevant to the strength of the Crown case.

43 Delay: At the oral hearing, the respondent conceded that the applicant was facing a substantial and inevitable delay. Ms Champion accepted that there was a possible delay of three years for the applicant's matters to be finalised. However, having regard to the seriousness of the alleged offending, the applicant's time on remand would not likely eclipse his ultimate sentence (having regard to the maximum penalties for charges 1, 2 (life) and 3 (25 years imprisonment). Further, the respondent submitted that when the issue of delay was balanced against the seriousness of the alleged offending, the strength of the Crown case, and the likely length of a term of imprisonment, it is not sufficient to make out exceptional circumstances. Ms Champion noted the case of Re Warda,[39] referred to and relied on by Mr Dickinson and pointed out that in that case that the young age of the applicant (22 years old) was significant. Ms Champion also referred to the decision of Tinney J in the case of Re James.[40] Bail was refused to the applicant in that matter where the applicant was accused of attempting to possess a commercial quantity of a border controlled drug, and where the Crown case was considered to be strong, and the applicant faced a delay of approximately three years. Tinney J found that delay was one factor to be considered in the context of the case as a whole, the strength of the Crown case, the seriousness of the offence and the ultimate sentence were also relevant. While Ms Champion accepted the difficulty of assessing the Crown case prior to committal, she submitted there was a strong prima facie case against the applicant in this case based on the evidence already discussed above.

44 Regarding parity, Tung N has family here, is an Australian citizen, and one of the matters that was taken into account by the Magistrate on granting him bail was that a conviction was 'by no means inevitable' and that Tung N's knowledge of the contents of the mustard bottles was a triable issue.[41] Further, Helen N is an Australian citizen and her remand would involve her being separated from her infant daughter. As such, the respondent submitted the applicant's circumstances could be distinguished from his co-accused on bail.

45 Regarding the risk that the applicant would not answer his bail, the respondent drew the Court's attention to the applicant's immigration history. He has previously had a visa cancelled, and two further applications refused. He is currently on a bridging visa awaiting an appeal of a decision to refuse his protection visa application. He holds two Vietnamese passports, though one was reported lost. He is not an Australian citizen, and though he has children in Australia, the respondent submitted that there is a risk the applicant would flee the jurisdiction if released on bail, given his ties to Vietnam. During his evidence, the informant conceded it would be difficult for the applicant to flee at the current time, but that he was aware Vietnamese nationals were permitted to return home, and that he considered flight was still possible. That risk would be somewhat addressed by the applicant surrendering his passport, but the informant still held concerns. The respondent submitted that the sheer strength of the case against him and the lengthy jail sentence the applicant faces if found guilty of the current charges is an incentive for him to flee the jurisdiction if released on bail, despite the proposed surety and his ties to the jurisdiction. Regarding the surety, Ms Champion submitted that it was insufficient. Given the transactions going in and out of his bank account proximate to the offending, the cash found at his premises, and the value of the drugs that were located at his premises, it was apparent that the applicant previously had access to significant funds and so the amount of $75,000 may not be regarded as very significant by him.

46 Regarding the risk the applicant would commit further offences the respondent highlighted the evidence suggesting the applicant was involved in the business of drug trafficking. They referred to the items and cash located at his residence. Further, the respondent noted that the applicant has reported negligible income[42] on his tax returns in the last few years, but there is evidence of large transactions in and out of his and Helen N's bank account in that time. The respondent suggested that the applicant does not have a legitimate source of income. While they noted the offer of part time employment if the applicant is released on bail, the informant expressed concern that the income from that employment would not be sufficient for the applicant to support his children financially, posing a risk that he would engage in criminal offending.

47 Whilst I am mindful of the presumption of innocence, and the various matters advanced by Mr Dickinson in his comprehensive summary of matters in favour of bail, ultimately I am not satisfied that bail should be granted for the following reasons.

Has the applicant established that exceptional circumstances exist justifying a grant of bail?

48 I am not satisfied that the applicant has established that exceptional circumstances exist that would justify him being granted bail.

49 I acknowledge the recent decisions of Lasry J in Re Jiang[43] and Re Warda,[44] referred to by Mr Dickinson for the applicant and his Honour's finding in Re Jiang that a delay of three years will demonstrate exceptional circumstances in almost every case. Further, I note his Honour's observation in Re Warda that a long delay represents injustice in any case.[45] It is clear that a delay of three years has previously been found to establish exceptional circumstances in this Court. I accept that Mr Dickinson argued that even if the Court were not satisfied that delay alone was sufficient to meet the test of exceptional circumstances then other factors would get the applicant over the line. Mr Dickinson referred to the offer of employment, the surety of $75,000, a static residence with the proposed surety, limited prior criminal history, links to family and the issue of parity. I accept that these matters are relevant along with hardship in custody due to the pandemic restrictions, and Phuong N's unwillingness to allow their children to visit the applicant during his remand. However, I do not think the additional matters referred to by the applicant when combined with delay, aimed at showing exceptional circumstances, do in fact have that effect.

50 Whilst accepting that a delay of three years is a concerning period to be on remand, I agree with the remarks of Tinney J in Re James,[46] that delay must be considered in the context of the case as a whole. Although the applicant's situation is factually distinguishable from that of the applicant in Re James, given the applicant's more limited criminal history, I nonetheless consider that the principles referred to by Tinney J have some resonance in the present case having regard to the seriousness of the applicant's alleged offending and the strength of the Crown case.

51 Further, the following countervailing factors run against the applicant when considering the exceptional circumstances test: the quantity of the drugs involved in charge 1, being the Parkville store consignment offending, and the quantity of the two different drug substances located at the applicant's home in Albion (charges 2 and 3). While I accept that the applicant is not charged with an importation offence, the applicant does appear to have played a central role in both the offending the subject of charge 1, the Parkville offending, and the offending the subject of charges 2, 3 and 4 (the Albion offending). This is shown by phone intercepts and surveillance evidence regarding the Parkville offending. It is notable that when arrested, the applicant allegedly told his wife to tell 'Duc' to 'accept everything'. This is also significant when viewed in the context of the video messages created by Duc N, appearing to threaten to 'disclose everything' if the applicant did not support Duc N's mother and pay his legal fees. Whilst keeping in mind the presumption of innocence, these aspects of the Crown case appear to support the contention that the applicant had an elevated role in the Parkville offending, which relates to one of the most serious of the charges against him, charge 1.

52 Regarding the Albion offending, DNA consistent with the applicant was found on a plastic bag containing a known cutting agent in the same locked cupboard as the methamphetamine and heroin. Phone data for communication on a phone linked to the applicant and his wife was considered by police to be consistent with ongoing drug trafficking activity, relevant to charges 2, 3 and 4. Again, the case against the applicant is objectively strong for the Parkville offending and regarding the drug charges there are aspects of proof that are facilitated by the Criminal Code provisions that can be relied on for the possession charges.

53 Furthermore, a significant distinguishing feature between this applicant and many applicants who have been found to meet the exceptional circumstances test based on lengthy delay is that this applicant's ties to this jurisdiction are not strong. Although he has lived here for some years and he has a partner and children in Australia, he only has a bridging visa. His previous student visa was cancelled. He applied for a protection visa in December 2019. That was refused, and he is now awaiting the outcome of an appeal from that decision. As mentioned in the hearing, when he applied for the protection visa, he referred to having a current Vietnamese passport that was issued to him in November 2017. At the time the applicant made this bail application, that passport had not been located. However, at the hearing, Mr Dickinson advised the passport had been found by Helen N. Further, shortly before this decision being handed down, the Court was advised by the Commonwealth Director of Public Prosecutions that the passport had been surrendered to the AFP. It is a current Vietnamese passport, due to expire in 2027. Inquiries by the informant revealed that that passport was issued by the Vietnamese authorities after the applicant reported to Victoria Police Lost Property that his previous Vietnamese passport had been stolen.

54 Regarding parity, I am not satisfied that the applicant's circumstances are sufficiently similar to that of his co-accused so as to make parity a significant consideration here. At the time she applied for bail, Helen N was only charged with the Albion offending. She was also the sole carer for the young baby, given the applicant was in custody at that time. Further, she is an Australian citizen, strengthening her ties to the jurisdiction. Regarding Tung N, I accept that he is charged with an importation offence while the applicant is not, but Tung N is only charged with respect to the Parkville offending. There is no allegation of other criminal offending apart from the Parkville offending, unlike the allegations against the applicant. Also, his ties to this jurisdiction appear stronger than the applicant's. Tung N appears to own and manage the Parkville store and he is an Australian citizen. His parents live in Australia along with his wife and children.

55 Regarding the surety, the sum available is not sufficient together with the other matters relied on by the applicant to get the applicant over the line in demonstrating exceptional circumstances.

56 Regarding the applicant's personal circumstances in custody, I accept that conditions in custody are more trying during the current pandemic. The applicant did not advance any evidence to support the claim that he is particularly vulnerable in custody, nor did Mr Dickinson emphasise that submission at the hearing. I appreciate it must be difficult for the applicant not being able to see two of his children in person during his remand, but that is not something that I consider to be exceptional. I am not satisfied that the applicant is suffering any particular vulnerability in prison that makes his time in custody more burdensome than it would be for others. I accept that it can sometimes be difficult to contact legal representatives, and the added issue of requiring an interpreter can pose practical and logistical issues at times, but there was no further evidence before me as to how these issues are affecting the applicant in particular.

57 Taking account of all of the surrounding circumstances of this case, having regard to the purposes of the Act and the submissions of the parties, I am not satisfied that the applicant has demonstrated exceptional circumstances.

Has the respondent established that the applicant poses an unacceptable risk of engaging in any of the conduct set out at s 4E(1)?

58 Even if I am wrong about the applicant having not met the exceptional circumstances test, I am of the view that he presents an unacceptable risk of committing an offence while on bail and/or failing to surrender into custody in accordance with his conditions of bail.

59 Firstly, the applicant does not have strong links to the jurisdiction. He is a Vietnamese national, with no substantive visa allowing him to remain in Australia permanently. According to the informant, if he loses his current passport, he could apply for a fresh passport and use it to return to Vietnam. Although there are barriers to international travel at the present time due to the pandemic, it is feasible that the applicant could return to Vietnam whilst on bail awaiting trial in Australia. I am also persuaded by the respondent that there are significant incentives for the applicant to leave the jurisdiction before his trial, due to the strength of the case against him and the potentially lengthy prison sentences he faces if found guilty.

60 Regarding the availability of a surety, the amount offered ($75,000) is not very significant when viewed in the context of the scale of the alleged offending. On the Crown case the applicant has links to sophisticated criminals and was using encrypted software to communicate with unidentified persons prior to the bottles being delivered to the clandestine laboratory. The applicant's alleged capacity to link in with unknown criminal accomplices is a source of concern, coupled with the overall value of the drug product in the consignment. The raid on the applicant's home revealed substantial cash and drugs, despite the fact that he and his wife appeared to have negligible legitimate streams of income at that time. As such, the amount of money proposed as a surety may not appear particularly significant to him and would not be likely to pose a strong disincentive against failing to surrender into custody in accordance with his bail or against committing offences whilst on bail. Whilst the surety, Trung P, appeared to be a respectable person, and I found his evidence credible, I am not satisfied the amount offered is sufficient to mitigate the risk the applicant will not answer his bail.

61 Further, while the applicant has a limited prior criminal history, he has demonstrated little regard for court orders or police intervention in the past. This is demonstrated by the fact that when police went to serve a summons on him for a driving while disqualified charge in 2018, it appeared to the police that the applicant had given a false address to police. Further, the applicant has breached alcohol interlock conditions, driven whilst his license was disqualified and has failed to answer bail on one previous occasion. The applicant was also on bail at the time of the current alleged offending, arising from the 2018 drive while disqualified charge, and so he has allegedly once again breached bail by the current offences. Despite these matters involving low level offending, they contribute to the assessment that the applicant presents an unacceptable risk of failing to answer his bail or committing offences on bail.

62 Regarding the availability of a static residence, again, Trung P has helpfully offered the applicant a place to live with him, and could provide some support and supervision, but he is a businessman in charge of two separate business operations. This would likely impede his capacity to closely supervise the applicant on bail.

63 Regarding the risk that the applicant will commit further offences whilst on bail, the evidence regarding charges 2 - 4, the Albion offending, and the items seized from the home connected with those charges and other surrounding evidence are suggestive of an ongoing drug trafficking business. Despite having reported negligible income on his last two tax returns, large sums of money have gone in and out of the applicant and his wife's bank accounts around the time of the Parkville offending the subject of charge 1. The Police have been unable to find a legitimate source for these transactions. If released on bail the applicant would have to adjust his lifestyle in order to manage without the kinds of funds he allegedly had access to previously. Whilst he may be capable of undertaking part time employment with the proposed future employer, the applicant poses a risk of resorting to criminal offending to support his financial commitments. I am satisfied by the respondent that the applicant poses an unacceptable risk of committing offence/s while on bail.

64 Accordingly, for all of the abovementioned reasons bail is refused.

[2] Previous committal mentions were held on 20 May 2021 and 7 July 2021, Affidavit in Support of Bail of George Balot signed 16 July 2021 ('Affidavit in Support') [22], [23].

[3] Outline of Respondent's Submissions dated 27 July 2021 ('Respondent's Submissions')[15(c)].

[4] Notice of Order dated 11 February 2021, exhibited at GB-5 of the Affidavit in Support.

[5] Contrary to s 307.1(1) of the Criminal Code.

[6] Contrary to s 307.5(1) of the Criminal Code.

[7] Notice of Order dated 5 February 2021, exhibited at GB-6 of the Affidavit in Support.

[8] Contrary to s 307.5(1) of the Criminal Code.

[9] Contrary to s 302.4(1) of the Criminal Code.

[10] Contrary to s 400.9(1A) of the Criminal Code.

[11] By way of a letter attached to the Affidavit in Support exhibited at GB-11 and a further updated letter filed separately dated 26 July 2021.

[12] Which the police say is two hundred and thirty times the defined commercial quantity under the Criminal Code Act Regulations 2019.

[13] Statement of Jarad Heath, [65], exhibited at NW-7 to the Affidavit in Response to Bail sworn by Nicholas Wall on 26 July 2021 ('Affidavit in Response').

[14] Who then commenced 'Operation Zeelandia.' It appears the AFP then monitored the applicant and his co-accused via surveillance and telephone intercept devices as part of that operation.

[15] Police summary, exhibited at NW-2 to the Affidavit in Response ('Police Summary'), [105](s).

[18] Being, the respondent estimates, 2.3 times the marketable quantity as defined by Schedule 1 of the Criminal Code Regulations 2019, Police summary, [164(b)].

[20] Being, the respondent estimates, just over a commercial quantity as defined by Schedule 1 of the Criminal Code Regulations 2019, Police summary [164(a)].

[28] [2019] VSC 751.

[30] As set out in the Affidavit in Support, the applicant's written submissions filed 27 July 2021 ('Applicant's Written Submissions), and oral submissions.

[31] It is noted that this document has been superseded by the 'Revised Melbourne criminal trial listings (as at July 2021)' notice. Pursuant to the new notice, the earliest the County Court expects a new initiation from 2022 to be listed for trial is July 2023.

[32] Re Jiang [2021] VSC 138; Re Warda [2021] VSC 323, [53], Re Shea [2021] VSC 207, [58]; Re Trinh [2021] VSC 358, per Beale J [16].

[33] Re Warda [2021] VSC 323, Re Shea [2021] VSC 207, [58].

[34] [2021] VSC 148.

[35] [2021] VSC 272.

[36] In addition to the Affidavit in Response, the respondent also filed written submissions on 27 July 2021 ('Respondent's Written Submissions').

[37] As set out in the Affidavit in Response - for example, the phone number being registered to Helen N, it being associated to an email address used by the applicant, the number under 'wife' in the relevant device matches Helen N's number.

[38] In particular his reference to Duc N in one conversation that the real sauces are yellow and then pink ones are 'ice', ice having been spoken in English.

[39] [2021] VSC 323.

[40] [2020] VSC 602.

[41] The AFP opposed Tung N's application for bail in the Magistrates' Court.

[42] $28,871 in the 2018 financial year, and $1 in the 2019 financial year. The applicant has not yet lodged a tax return for the 2020 financial year. Affidavit in Response, [29].

[43] [2021] VSC 148, [60].

[44] [2021] VSC 323.

[45] [2021] VSC 323, [53].

[46] [2020] VSC 602.