R v Cox [2003] VSC 245

5. As the applicant has been charged with offences under s. 71 and s. 79 of the Drugs, Poisons and Controlled Substances Act 1981, it is common ground that bail shall be refused unless the Court is satisfied that exceptional circumstances exist which justify the grant of bail - Section 4(2)(aa)(i) Bail Act 1977. Furthermore, the Crown submits that bail should be refused on the additional ground that there is an unacceptable risk that the applicant, if released on bail, would interfere with witnesses - Section 4(2)(d)(i) Bail Act 1977.

Unacceptable Risk - Interference with Witnesses

9. It is convenient to first deal with the Crown's allegation that the applicant poses an unacceptable risk that, if released, he would interfere with witnesses. It is for the Crown to discharge the onus of satisfying the Court of this fact. The Crown relies upon the fact that the applicant was a member of the Victoria Police from 1982 until his resignation from the Force on 27 February 2000. Detective Senior Sergeant John Rodger from the Victoria Police Ethical Standards Department prepared a report dated 18 June 2003, being Exhibit A to the affidavit of Peter John Andrew Atkinson filed on behalf of the Crown in opposition to the application for bail. In that report, the author observes that, because of the applicant's contacts within the Victoria Police, investigators believe that he will contact prosecution witnesses and is thereby an unacceptable risk. This appears to be the material upon which the Crown relies to substantiate this ground. During the course of evidence which Detective Senior Sergeant Rodger gave in opposition to this application, it emerged that the investigators' fear was based solely upon the fact that the applicant, as a result of his long service in the police force would have contacts which could be utilised to interfere with witnesses. Detective Senior Sergeant Rodger disavowed any claim that it was feared the applicant would personally interfere with witnesses and it was not suggested that the applicant had ever evinced any intention to do so. It was acknowledged that the applicant, were he so minded, could utilise such contacts whether he was in custody or on bail. No persuasive evidentiary basis has been provided for the assertion that the applicant poses an unacceptable risk that he would interfere with witnesses if granted bail.

13. In support of the application for bail, the applicant relies upon the factors of delay, the weak nature of the Crown case, the significant risk of harm posed to the applicant and his family if he remains incarcerated, his psychiatric condition and his substantial and demonstrated ties to the jurisdiction as, in combination, amounting to exceptional circumstances which would justify the granting of bail. It is clear that exceptional circumstances can be established by a combination of factors, none of which alone may do so. See Re Whiteside[1] and Re Andrea Mantase.[2]

16. The Crown case as described in the summary of evidence, being Exhibit B to Mr Atkinson's affidavit of 23 June 2003, and as further elaborated at pages 1 to 2 of Detective Senior Sergeant Rodger's report of 18 June 2003 is that a drug trafficker and police informant named Le supplied information to Detective Sadler which resulted in the interception of suspects who were to supply heroin. Those suspects were arrested by some of the applicant's co-accused and, according to Le, and those suspects, some seven or eight ounces of heroin were seized. Only four ounces were declared as being seized. Le alleges that the following day the applicant gave him one of the ounces of heroin that had been seized. Le not long afterwards purchased another ounce of heroin from the applicant for $4000. It is alleged that shortly after this incident Le paid the applicant $8,400 for the supply of an unknown quantity of heroin and in the ensuing fortnight obtained two ounces of heroin from the applicant on some seven occasions. Despite the period covered by the charges laid against the applicant, this was the only evidence referred to in the summary of evidence by the Crown of any relevant conduct by the applicant.

19. In his evidence before me, Detective Rodger supplemented that evidence by referring to another meeting which Le alleges took place with the applicant and Detective Constables Sadler and Ferguson near the Shrine, when he was again supplied with drugs. Mr Le was unable to specify the quantity of drugs supplied or the date on which this occurred, but according to Detective Rodger, it must have been at some time prior to Christmas 2000. Detective Rodger also deposed as to two further occasions when Mr Le had contact with the applicant at some time after the applicant had resigned from the police force in February 2000. According to Mr Le, he was then wanted by the police and sought assistance from the then applicant to avoid detection. It appears that the applicant was unwilling or unable to assist Mr Le. Mr Rodger also deposed as to a further occasion when Mr Le alleges that he made contact with the applicant and Detectives Sadler and Ferguson and was advised by them over the telephone to travel north and to change his name to avoid apprehension.

23. It was submitted by Mr Rolfe on behalf of the applicant that the Crown case should be characterised as a weak one. Mr Morgan-Payler conceded that it was not a strong case although he submitted that the evidence of Mr Le, who was clearly an accomplice, was corroborated by the suspects who were arrested in possession of seven or eight ounces of heroin. No evidence has been placed before me concerning those suspects and the quality of any evidence that they may give is difficult to assess. Whether their evidence could constitute corroboration of the accomplice Le remains unknown, as it is not clear to me whether their evidence materially implicates the applicant in either of the offences with which he has been charged.

26. It is clear that prior to Christmas 2000 the applicant ceased to have any ongoing contact with Mr Le, save for the further contacts between the applicant and Mr Le to which I have referred. It is nevertheless the Crown's allegation that there was ongoing trafficking or a conspiracy involving the applicant over the next two years, but no evidence was identified to support such a claim. The Crown does not have available to it any surveillance or recordings providing any confirmation of the accomplice's allegations concerning the applicant. The accomplice has prior convictions for trafficking in heroin and has outstanding charges which have not yet been finalised. It is for these reasons that it is common ground between the parties that the Crown case against the applicant cannot be described as a strong one.

29. It is a notorious fact charges of conspiracy involving a number of members of the Police Force have rarely been the subject of a successful prosecution. There are features of prosecutions of this type which invariably present major obstacles for the Crown. It is neither necessary nor appropriate that I attempt to explore those difficulties, but I take them into account in assessing the weight of the Crown case and the likelihood of conviction.

32. The applicant has no prior convictions. He was a member of the Victoria Police Force for almost 20 years. He is a married man who has three children aged 10, 9½ and 6 years respectively. Following his resignation from the Force in February 2000, he worked in a real estate agency and had completed a program which would entitle him to qualification as an estate agent in the event that he is not convicted of these charges. Reference was made to the fact that Constable Ferguson was granted bail and the fact that other detectives from the former Drug Squad who are facing criminal charges on unrelated matters have also been granted bail. The fact that other members of Victoria Police have been granted bail in relation to serious offences is of little assistance however in determining this application.

36. What is relevant is that special management considerations arise when a police officer is detained in a correctional institution. Initially, the applicant, it appears, was placed in lock-up for some 21 to 23 hours a day. It appears that he became rapidly depressed and was prescribed medication for his condition. That regime ceased and the applicant is now integrated with other prisoners. The applicant is housed with other high risk and special management protection prisoners at a unit of the Melbourne Assessment Prison. It was acknowledged on the applicant's behalf that the prison authorities were doing everything in their power to ensure that the applicant was protected. Recent experience, however, has demonstrated that prisoner safety can be breached even in a maximum security section. In the affidavit in support of this application, it was submitted that the applicant was at significant risk of harm if he remained in custody. It was claimed in the affidavit that the applicant was recognised whilst in custody at the Melbourne Custody Centre and that threats were made. The applicant was concerned that his name would be recognised by other prisoners given the publicity that his case has received in the press. The applicant's surname, unit and cell name appear on a weekly menu sheet. In answer to these concerns, the Crown relies on information provided by the Assistant Governor at the Metropolitan Assessment Prison which is set out in Detective Senior Sergeant Rodger's report and is to the following effect:

"Cox together with the other police inmates were profiled and found suitable to share the section with other protected prisoners; he is not aware of any documentation or threats against Cox."

40. I do not doubt that security arrangements at the prison can go some way towards ensuring that a police officer, despite his vulnerability, is not at greater risk than other prisoners, but the information from the Assistant Governor did not go to this issue or address the claim that the applicant's sense of exposure to risk was an ongoing source of stress. I am left in the position where the applicant's concerns have been largely unanswered. Mr Rolfe in reply reiterated those concerns expressed in the affidavit in support of the application that a police officer in custody is at far greater risk than other prisoners and that these circumstances have had a debilitating effect on the applicant's already depressed condition. There are difficulties in providing protection for those who require it whilst in custody. Protective custody is a more onerous form of incarceration. See R v ZMN[3]. In the absence of evidence to the contrary these factors must be taken into account.

44. The committal hearing for the applicant and his co-accused is presently fixed for hearing in April of next year. It was submitted on behalf of the applicant that I should have no confidence that the committal would proceed at that time. The charges which the accomplice Le faces remain unresolved and there was no confident expectation by the Crown that the outstanding matters in relation to him would have been completed prior to the committal hearing date for the applicant.

47. It was submitted on behalf of the Crown that there was some prospect that the trial of the applicant might take place toward the end of 2004, but this Court's recent experiences in relation to similar types of matters suggests that it is more likely that the trial will take place some time in 2005. I treat the Crown's estimate as a matter of hope rather than likelihood.

50. In R v Kantzides,[4] Smith J., in dealing with an application for bail by a person who had been charged with trafficking in a drug of dependence, took the view that a period of at least 20 to 21 months before trial could take place was in the circumstances of that case exceptional. In R v Alexopoulos,[5] Hampel J., in dealing with an application for bail by a person who had been charged with serious offences which related to a very substantial importation of heroin, concluded that a delay of at least one and a half years from arrest to trial was inordinate and was an exceptional circumstance.

53. In R v Medici,[6] Ashley J. said, when referring to the circumstances of that case:

"The situation presently seems to be this, that the applicant has been on remand since June 1992, is likely to come to trial at the earliest in April 1994, with an estimated length of trial of eight weeks, and it follows that the applicant would have been in custody for something in the order of two years before the conclusion of this trial if he was not granted bail. The estimate of two years depends on the trial getting on in April 1994 and at this stage that seems to be more a matter of hope than certainty."

"In the present case, the applicant has now been 14 months in custody and he will be in custody for not less than two years before his trial is completed. That is simply unacceptable and it must be regarded as exceptional. It does not answer the unacceptable nature of such a delay to say that the applicant is likely to incur a custodial sentence of more than two years for offences to which he has pleaded guilty. Remand and custody are quite different. In my opinion, two years on remand between charge and trial constitutes exceptional circumstances."

In DPP v Radev,[7] Beach J. referred with approval to those remarks by Ashley J. in _Medici'_s case. His Honour regarded such a length of custody between arrest and trial as an unacceptable situation. Kellam J. in Mokbel v DPP (No.2)[8] made observations to a similar effect.

62. There have been a number of recent decisions of the West Australian Supreme Court dealing with legislation in almost identical terms to our own in which similar observations have been made.[9] In Outman v The Queen, Hasluck J. after referring to Alexopoulos v R and Pinkston v R said:

"These cases suggest that delay should be measured not against the state of the court list in any particular jurisdiction, but having regard to objective criteria based on the concept that a humanitarian society recognising the presumption of innocence will find abhorrent the idea that people are kept in custody for such an undue time without trial."[10]

66. The various decisions to which I have referred are a cogent reminder that it is in neither the community or accused's interest to be detained in custody for periods approaching two years. As Vincent J. (as he then was) said in the matter of Mantase[11]:

"Periods of eighteen months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say in effect that such periods represent the norm and therefore cannot constitute part of the matrix of exceptional circumstances. This in effect ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constitute a potential source of injustice."[12]

70. There are numerous decisions of this and other courts, that inordinate delay by itself may amount to an exceptional circumstance. The length of the delay before the applicant's trial is presently a matter of conjecture. I do not stay to consider the appropriate standard of proof for such a prognostication, but I am conscious of the conceptual difficulties that can arise in applying the civil standard to events yet to occur. I do not regard it as appropriate to make any finding in the circumstances presently known as to whether the delay which is anticipated should be characterised as inordinate. There have been differing views expressed in this court as to whether such time as the Crown submits is likely to elapse should be so described. Nevertheless, delay which has not been established as inordinate, may, in conjunction with other factors, amount to exceptional circumstances. I therefore take into account the delay which the Crown concedes will occur bearing in mind that it is the minimum period which is likely to elapse.

73. It is apparent from the summary of the Crown case that the criminal conduct of the applicant's co-accused is alleged to have continued for a substantial time after the applicant resigned from the police force. It was not contradicted that there are a number of serious charges laid against the other accused with which the applicant is not concerned. The time frame of the charges itself suggests allegations of ongoing criminal activity by the other accused in which the applicant was not directly involved. The allegations against co-accused include claims of an attempt to pervert the course of justice, blackmail and bribery, theft of cash and drugs and a conspiracy to money launder. It was not contradicted on the hearing that there has been an intense investigation of the co-accused for the purpose of establishing betterment by them. No evidence has been placed before me to suggest that the applicant or his family were in possession of assets or income which could not be lawfully explained.

76. I was informed by the Crown that the investigation concerning the applicant is ongoing and the implication is that there may yet still be evidence of the applicant's betterment. The fact that there has been and continues to be extensive investigations into such matters is another reason for my conclusion that I should have reservations that the timetable suggested by the Crown can be adhered to. This is a factor which was adverted to by the Magistrate on 27 May 2003 who noted the ongoing status of the investigation and the likely delay in preparation of brief material which would be voluminous.

79. It was not contested that the applicant's immediate family including his mother, father, siblings and parents-in-law are all resident in Victoria and extremely supportive of him. The Crown does not take issue with the claim that the applicant has sound ties to the jurisdiction and is not regarded as a risk of absconding. The arrest and detention of the applicant has undoubtedly caused great distress within the family and has exacerbated the depressive condition from which the applicant suffers. The applicant is on anti-depressant medication which was recently increased by the prison psychiatrist. These factors considered in isolation would not be sufficient to warrant the granting of bail.

82. The applicant's psychiatric condition has been exacerbated by the stress arising from the risks associated with a police officer being on remand within the prison system and the gloomy prognostication of the length of time for which he will remain there before his trial. The tribulations of a long serving member of the Police Force who suffers from depression, who faces a very lengthy period in remand before his committal, who has it appears been threatened and who fears for his safety, who poses no real risk of absconding, and faces a case which cannot be regarded as strong, are a combination of circumstances which in my view can properly be characterised as exceptional and as justifying the granting of bail.

[1] (1999) VSC 413 per Warren J.

[2] (Unreported) 21 September 2000 per Vincent J.

[3] [2002] VSCA 140; [2002] 4 VR 537 at paragraphs 13 and 24.

[4] Unreported Supreme Court of Victoria, 9 August 1996.

[5] Unreported Supreme Court of Victoria, 23 February 1998.

[6] Unreported Supreme Court of Victoria, 29 September 1993.

[7] 108 A Crim R. 121; [1999] VSC 284.

[8] [2002] VSC 312.

[9] See Fawcett v R [2002] WASC 285; Outman v R [200O] WASC 303 and Pinkston v R (2000) 119 A. Crim R. 462.

[10] Outman Footnote 9 at paragraph 28.

[11] Unreported Supreme Court of Victoria, 21 September 2000,