Re Ahern [2026] VSC 209 (14 April 2026)

1 Mark Ahern ('applicant') applies for bail on the following four charges:

(a) trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine (charge 1);

(b) trafficking in a drug of dependence, namely methylamphetamine (charge 2);

(c) possess a drug of dependence (methylamphetamine) (charge 3); and

(d) failing to provide his mobile phone PIN when requested (charge 4).

All charges were laid on 5 March 2026 by Detective Acting Sergeant De Mel ('Informant'). Charges 2 and 3 are alternatives to charge 1.

2 It is common ground that the offence of trafficking in a commercial quantity of a drug of dependence is a Schedule 1 offence pursuant to the Bail Act 1977 (Vic) ('Act').[1] The onus is on the applicant to satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2]

4 On 16 August 2025 at 12:40am, police observed a BMW vehicle ('BMW') registered to the applicant travelling south in Sturt Street, Southbank. Police activated emergency lights, signalling for the BMW to pull over. The BMW pulled over and once it was stationary, Tess Rowlatt ('Rowlatt') exited from the front passenger door. The BMW then performed a U‑turn and travelled slowly north on Sturt Street.

5 Police formed the view that the BMW was diverting their attention from Rowlatt, who was observed running towards a nearby building. Police pursued her on foot. Rowlatt was quickly apprehended and searched by police. The following items were found in her handbag:

(a) a large vacuum sealed bag containing a white substance;

(b) a small zip lock bag containing a small quantity of a white substance; and

(c) a small bottle containing a small quantity of liquid believed to be 1,4‑Butanediol.

6 A presumptive test showed the white substance to be methylamphetamine. Rowlatt was arrested and transported to the West Melbourne Police Station. She made a 'no comment' record of interview.

7 Police did not pursue the BMW further on this night.

8 On 1 October 2025, the drugs were examined. The large vacuum sealed bag contained a smaller zip lock bag which contained the substance. Forensic analysis confirmed the substance was methylamphetamine, with a total mixed weight of 107.1 grams and a purity of 85%. The pure weight of methylamphetamine was therefore 91 grams. A commercial quantity of methylamphetamine is 250 grams mixed weight or 50 grams pure weight.

9 Swabs were taken from the inside of the zip lock bag and sampled for DNA. On 19 February 2026, the results were made available to police. A mixed DNA sample (three contributors) was obtained. The applicant was not excluded and a likelihood ratio of 12 million was calculated. Rowlatt was excluded as being a source of the DNA.

10 The applicant's mobile phone was examined. It was connected in his name and linked to his correct address. Available call charge records and cell tower information was consistent with the phone being used in Southbank on 16 August 2025. A text message showed that a person called 'Chuck Bennett' had asked the applicant to drive 'Tess' (Rowlatt) home approximately four hours before the BMW was intercepted.

11 On 5 March 2026, a search warrant was executed and the applicant was arrested. He refused to comply with a direction to provide the PIN for his mobile phone. He made a mostly 'no comment' interview. He agreed he was the owner of the BMW. He answered 'no comment' when asked if he knew Rowlatt. He said there should be no forensic evidence linking him to the vacuum sealed bag of methylamphetamine, and asked investigators to DNA test the bag. When asked how his DNA came to be on the inner press region of the zip lock bag, the applicant could not provide an explanation.

12 The applicant was refused bail on 5 March 2026 at the Melbourne Magistrates' Court. The matter is next listed for a committal mention on 27 May 2026.

13 In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B of the Act. Parliament has expressly recognised the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.[3] Parliament has also recognised the importance of the matters set out in s 1B(1), including the presumption of innocence and the right to liberty. The Act is to be applied and interpreted having regard to all the guiding principles.[4]

14 In considering whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances' including, but not limited to, those found in s 3AAA(1) of the Act.

15 If satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the unacceptable risk test.[5] Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[6] In considering whether any relevant risk is unacceptable, the Court must again have regard to the surrounding circumstances, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[7]

16 The applicant has one outstanding matter where the informant is Detective Senior Constable Peker ('Peker matter'). It is alleged that on 8 August 2025 the applicant, together with others, was involved in an attack on a security guard outside the Love Machine Nightclub in Prahran. The applicant was not arrested in relation to the Peker matter until 21 August 2025. He refused to provide his mobile phone PIN. He was charged with affray and failing to provide his PIN when requested. A bail application was opposed but successful, and on 21 August the applicant was granted bail with conditions by the Magistrates' Court. I am told the Peker matter is likely to resolve, and at a scheduled sentence indication hearing (which was unable to proceed due to court availability) the prosecution did not oppose the imposition of a fine. There are three co‑accused and of the two who have been sentenced, one received a fine and the other diversion.

17 At the time of the offending, Rowlatt was subject to two Community Correction Orders ('CCO'). On 12 February 2024, the County Court sentenced Rowlatt to a combined term of imprisonment and a four‑year CCO for charges of trafficking in a commercial quantity of methylamphetamine and dishonesty offending. Three days later, the Magistrates' Court imposed a 24‑month CCO for numerous offences including dishonesty charges, contravening a conduct condition of bail, trafficking methylamphetamine, and driving offences.

18 Initially, Rowlatt was also charged with trafficking in a commercial quantity of methylamphetamine, arising from the drugs found in the vacuum sealed bag. She was remanded into custody. Her matter resolved and on 26 March 2026 she pleaded guilty in the County Court to a charge of trafficking simpliciter on the following basis:

The Prosecution proceeds on the basis that [Rowlatt] possessed the methylamphetamine for the purpose of trafficking, but was not subjectively aware of the purity of those drugs.

19 Additionally, Rowlatt pleaded guilty to breach of a CCO, possess a drug of dependence, namely 1,4‑Butanediol, and an uplifted summary charge of possessing $750 cash and various cards suspected to be the proceeds of crime. Her matter is listed for sentence on 30 April 2026.

20 The applicant's criminal history is not lengthy but it is serious. He has been dealt with on six occasions in the Magistrates' Court and once in the County Court.

21 In 2012, aged 28, the applicant was convicted and fined for criminal damage, unlawful assault and careless driving. Later in 2012, he received a 12‑month term of imprisonment with six months suspended for reckless conduct endangering serious injury, possess a longarm firearm, and use a drug of dependence. The applicant, together with others, fired shots into a car parked outside the house of a Victorian Member of Parliament over a dispute with her son.

22 In 2014, the applicant was dealt with on two separate occasions for storing unauthorised explosives (a single firework) without approval and possessing methylamphetamine. On both occasions he was convicted and received a modest fine.

23 In February 2016 the applicant, together with an accomplice, set fire to a nightclub and all but destroyed the building. The applicant pleaded guilty in the County Court to charges of arson, handling stolen goods, and possessing a prohibited weapon (knuckledusters). In October 2017, he was sentenced to six years' imprisonment with a non‑parole period of four years, with 661 days reckoned as time already served. One month later and while serving that sentence, the applicant was sentenced for contempt by the Supreme Court for refusing to be sworn in. He was sentenced to four months' imprisonment.

24 The applicant's most recent prior conviction is from June 2018. He was sentenced to two months' imprisonment for a theft committed in 2015.

25 The Informant gave evidence that in his view, it is open to infer the applicant placed the methylamphetamine inside the zip lock bag based on the DNA evidence.

26 In cross‑examination, the Informant agreed the applicant's home was searched twice: once on 16 August 2025, and again on 5 March 2026. On both occasions, no drugs were found and none of the accoutrements of drug trafficking, such as cash, scales or deal bags, were located. Upon his arrest on 5 March 2026, the applicant told the Informant he had relinquished all association or affiliation with the Comancheros OMCG ('Comancheros') approximately two months earlier. On that occasion, police did not locate anything connecting him to the Comancheros, such as clothing or his vest. On previous occasions, the applicant's Comancheros vest was located.

27 The Informant confirmed the applicant has been on bail previously and has no history of breaching bail conditions or failing to appear. The Informant agreed his concern about the applicant committing further offences was based on the applicant's prior convictions, the Peker matter and the applicant's involvement with the Comancheros.

28 The Informant agreed that without the DNA evidence, there would not have been sufficient evidence to charge the applicant with drug trafficking. There are no eye‑witnesses establishing the applicant was the driver of the BMW. Rowlatt has never implicated the applicant in any way.

29 The applicant is a 42‑year‑old man, who prior to his arrest was living in a private rental in Soho Boulevard, Berwick, owned by his mother ('Soho property'). He has no dependents. He served the whole of his six year sentence, and was released in March 2022. He lived briefly with his parents before moving to the Soho property. The applicant's father passed away in 2024. At the time of the alleged offending, he was working in construction with Salvo Property Group.

30 The applicant's mother, Mrs Lorraine Ahern, resides in another property she owns in Berwick ('Berwick property'). She is the sole occupant and this is her home of 25 years. It is proposed that should the applicant be granted bail, he can reside with his mother in the Berwick property.

31 Two letters dated 11 March 2026 from the Site Supervisor and Project Manager, Salvo Property Group, were tendered. They are aware of the charges the applicant faces, and would have no hesitation in continuing to employ the applicant, should he be granted bail. They described him as an excellent worker and valued member of the workforce. They do not know the applicant outside the workplace. Counsel for the applicant confirmed the employment is still available, and the applicant often worked long hours, starting at 5:30am.

32 Mrs Ahern swore an affidavit stating she was prepared to act as a bail guarantor and she proposed to use all her equity in the Soho property, which she owns unencumbered. Mrs Ahern gave evidence at the hearing. She is supportive of the applicant, and the applicant has lived with her previously when on bail. She undertook to the Court to notify the Informant if she became aware the applicant was breaching his bail conditions, or committing further offences. She swore that to her knowledge, the applicant is no longer connected to the Comancheros and all his club clothing has gone.

33 The applicant relied on the following matters, in combination, to show exceptional circumstances exist that justify the grant of bail:

(a) The applicant has available family support, stable and suitable accommodation, and employment.

(b) The applicant conceded that charge 1 is a serious offence, but submitted this is not a serious example of that offence, given the quantity involved.

(c) There are real problems with the prosecution case and it can fairly be described as weak. There is no evidence as to how the DNA came to be deposited inside the zip lock bag, and innocent explanations are plausible. It does not make sense that three persons put the drugs into the bag, and all three deposited their DNA on the bag. Rowlatt has taken responsibility for the drugs; she has a history of trafficking in methylamphetamine; and she has never suggested the applicant was involved.

(d) The applicant's criminal history is relevant, but he has no prior convictions for drug trafficking and he has an exemplary record of complying with his bail. This includes complying with a curfew and other conditions when he was on bail for over 12 months in 2011.

(e) The overall delay between charge and trial is likely between 18 and 24 months. The applicant conceded that if he is convicted of charge 1, he is likely to receive a head sentence that may exceed any time spent on remand. However, his time on remand may exceed the non‑parole component of any sentence, which is a significant factor in the applicant's favour.

(f) The available bail guarantee is very substantial. The applicant is not a flight risk, but it will motivate the applicant to comply with all his bail conditions.

(g) The applicant is not an unacceptable risk in the ways alleged by the Informant if granted bail with appropriate conditions, and this is an important and relevant factor when assessing whether exceptional circumstances exist which justify the applicant's release on bail.

(h) The applicant's prior convictions are serious, but since he was released in 2022 he has been consistently employed, and other than the Peker matter and the matter for which he seeks bail, it is not alleged he has reoffended.

34 The applicant submitted there is no evidentiary basis to find he would interfere with witnesses or otherwise obstruct the course of justice. His refusal to be sworn in the Supreme Court was an isolated incident that occurred nine years earlier while the applicant was in custody. There is also no basis to find he would endanger the safety or welfare of any person. It is true he has prior convictions for violence, but they are dated. It is not alleged he behaved violently on this occasion. He has been on bail for the Peker matter since August 2025 and has not breached his bail. The Peker matter involves allegations of violence, but the dispositions received by two of the co‑accused (a fine and diversion) show it is not a serious example of affray. The prosecution concede the applicant may also be dealt with by way of a fine.

35 Bail is opposed on the basis that the applicant has not established exceptional circumstances justifying the grant of bail. Further, if the applicant clears that hurdle, bail should be refused as the applicant is an unacceptable risk of endangering the safety and welfare of any person, and/or interfering with witnesses or otherwise obstructing the course of justice.

36 In response to the applicant's contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relied on the following matters:

(a) The prosecution case is not weak, and there is DNA located on the inside of the press seal of the zip lock bag that (according to the Informant) can 'only have been put there if the applicant placed the methylamphetamine inside the bag'. The respondent conceded that the 'commercial quantity' aspect of the case is weaker, but pointed to the size of the bag and the way it is carefully packaged and vacuum sealed inside another bag.

(b) The pure quantity of the methylamphetamine is almost twice the commercial quantity threshold, and while the quantity of the drug is not great, this is still a reasonably serious example of the offence.

(c) The applicant would have been aware that 'there was a significant or real chance that the amount of drugs trafficked was not less than the pure weight threshold'. The respondent relies on the applicant's 2014 prior conviction for possessing methylamphetamine, which indicates his 'familiarity' with the substance. There was also a text message found on the applicant's mobile phone dated 20 February 2026 with 'Tony Soprano' which reads (in part), 'Got one of the boys at work who wants a bag $300 tomorrow you able to sort it?'. The respondent argued this is clearly a reference to drug dealing, although the Informant conceded in evidence that he was not sure what drug was being discussed and it may be a reference to cocaine.

(d) The respondent referred to the applicant being a member of, or connected with, the Comancheros. The respondent relied on this, together with the applicant's criminal history and the outstanding Peker matter, to establish that the applicant is an unacceptable risk of endangering the safety or welfare of any person, either by committing an offence or by any other means.

(e) The applicant refused to be sworn in the Supreme Court in 2017, and this shows he is an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice.

37 The respondent conceded that if the applicant's time on remand would exceed his non‑parole period, that would be sufficient to establish exceptional circumstances in the context of this matter. The respondent submitted the non‑parole period may exceed 24 months, but it is not straightforward and difficult to know.

38 The respondent accepted that the proposed surety was a significant amount for the applicant's mother to lose, and would provide good motivation for the applicant to comply with his bail. However, the applicant's mother's ability to monitor who he associates with is doubtful.

39 The Act does not define what may amount to exceptional circumstances. For the circumstances to be exceptional, 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. The threshold is high, but it is not an impossible standard. Exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[8]

40 In Rajic v The Queen,[9] T Forrest J stated:

It is well established that exceptional circumstances can be demonstrated by one factor, or a combination of factors. What is demonstrated, however, must be exceptional. It is insufficient for an applicant to demonstrate that he or she is deserving of sympathy, or that a persuasive case has been mounted for bail. The circumstances must be genuinely unusual or out of the ordinary before the test is satisfied.[10]

41 I acknowledge the applicant is presumed innocent and the allegations are unproven. However, I am required to take into account the nature and seriousness of the alleged offending, including whether it is a serious example of the offence. The charge of trafficking in a commercial quantity of methylamphetamine is a serious offence, reflected in the maximum penalty of 25 years' imprisonment. However, in my view, this is not the most serious example of that offence: the alleged purity is high but the quantity of the drug is only just over 100 grams (mixed weight), and the alleged offence occurred on a single day.

42 I accept that an overall delay of 18-24 months between the charge date and trial is a realistic estimate. The applicant conceded that if convicted of charge 1, he faces a head sentence that is unlikely to exceed his time on remand. However, he submitted any period on remand will likely eclipse his non‑parole period. When dealing with delay and the non‑parole period, the applicant drew the Court's attention to what was said by Hollingworth J in Bail application by Hang Cao.[11] In that case, her Honour noted that an applicant's time on remand may be relevant to a bail application in a number of ways, including where the likely period of delay is as much as, or even a 'significant fraction' of, the non‑parole period.[12] While it is difficult to predict any ultimate sentence, I do accept that in this matter, any non‑parole period may well be shorter than the overall period the applicant is held on remand.

43 The respondent indicated their case is based on the applicant preparing the drug for sale and/or being in joint possession (with Rowlatt) of the methylamphetamine for sale. On the material I have, which is necessarily limited on applications such as these, the prosecution case is not strong. The Informant's assertion that the applicant's DNA can 'only' have been deposited on the zip lock bag when he was sealing it after having filled it with methylamphetamine is overreach. There are other plausible explanations available, including transference. Zip lock bags are reusable items and DNA cannot be dated. The applicant may have used or handled the bag before the drugs were placed inside. The text message sent from 'Chuck Bennett' to the applicant seems to establish no more than the applicant had agreed to give Rowlatt a lift. The BMW driver's decision to perform a U‑turn is suspicious and suggests the driver at least knew Rowlatt had drugs on her and was trying to divert police, but knowledge alone is not enough to prove the charge. If the applicant was the driver of the BMW on this night, then he was driving a car registered in his name and carrying a phone connected in his name. Rowlatt was on a CCO at the time for trafficking in a commercial quantity of a drug of dependence; she exited the vehicle with the drugs; and they were found in her handbag. She would seem to present an at least plausible alternative suspect; that is, there is a reasonable possibility that the drugs belonged to her alone. I note that the Summary of Prosecution Opening in Rowlatt's matter is based on her alone possessing the drugs for sale.

44 The respondent's reliance on 'other evidence' to establish the applicant was aware that there was a 'significant or real chance' the pure weight of the methylamphetamine was greater than 50 grams appears to be both weak and likely inadmissible. For example, the respondent asserts that because the applicant has a prior conviction for possessing methylamphetamine from 2014, this indicates his 'familiarity with the relevant substance'. The text message of 20 February 2026 cannot logically link the applicant to the drugs found in Rowlatt's possession six months earlier. The respondent is keen to highlight the link between the applicant and the Comancheros, but it is difficult to see how this evidence would be admissible or probative of charge 1. The manner in which the methylamphetamine was packaged, however, is a factor which arguably supports the prosecution case.

45 The applicant has a relevant and serious criminal history, however he has no history of breaching bail conditions or failing to answer his bail, which weighs in his favour. Indeed, he has a positive history of complying with his bail requirements.

46 The fact that the applicant has stable and suitable accommodation and employment contributes little to establishing 'exceptional circumstances' justifying his release on bail. They are factors in the applicant's favour but they are not uncommon.

47 The proposed surety is very substantial. The applicant's mother will be at risk of losing a large amount of money should the applicant breach his bail, and given their relationship, I accept that this will provide the applicant with a strong incentive to comply with his bail. I also accept the applicant's mother will report any breaches of bail to the Informant, but the applicant is 42 years old and his mother will have no meaningful control over where he goes, who he meets or what he does.

48 Given the position taken by the respondent on the question of risk, it is necessary to consider whether the applicant constitutes an unacceptable risk in any of the ways specified by s 4E of the Act. When considering whether exceptional circumstances exist, the absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways specified by the Act is an important matter that weighs in the applicant's favour.[13]

49 The respondent's assertion that the applicant is an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice lacks merit. The respondent relies solely on the applicant's refusal to be sworn in the Supreme Court in 2017 and provides no further detail. There is no evidence the applicant would interfere, or attempt to interfere, with witnesses in this matter. In the approximately seven months between the alleged offence and the applicant's arrest, there is no suggestion he sought to contact Rowlatt or in any way interfere with the police investigation. He has no history, alleged or proven, of behaving in such a way.

50 The respondent also submits the applicant is an unacceptable risk of 'endangering the safety or welfare of any person'. I treat with some caution the applicant's submission that he has severed all connections with the Comancheros. I accept there is evidence to support this from both the Informant and the applicant's mother, but it really goes no further than the applicant no longer has his vest or other club clothing. However, the respondent's submission does not rise above the general; the respondent relies on the applicant's criminal history, his association with the Comancheros and the outstanding Peker matter. The offending for which the applicant seeks bail does not involve violence. While the applicant may pose some risk, there is no sound evidentiary basis to find he poses an unacceptable risk in the way alleged by the respondent.

51 After carefully considering the matter, I have concluded that the applicant has shown exceptional circumstances that justify his release on bail. The following factors inform my conclusion: first, and significantly, the prosecution case is not strong on the single charge that places the applicant in the position of having to show exceptional circumstances. The applicant is presumed innocent and there is a prospect he will be acquitted by a jury. Secondly, the applicant is not an unacceptable risk in either of the ways alleged by the respondent. Thirdly, even if convicted of charge 1, there is a real risk the applicant's time on remand may exceed his non‑parole period. As observed by the Court of Appeal in Roberts v The Queen,[14] where pre‑trial incarceration may exceed any sentence of imprisonment, there is an obvious risk that continued remand will be productive of injustice.[15] Where, as here, the prosecution case is not strong, and the applicant does not pose an unacceptable risk to the safety or welfare of the community, the additional risk that he will spend more time on remand than the non‑parole component of his sentence is a significant matter. Finally, the provision of a substantial surety is also a relevant factor. However, absent the other factors, a substantial surety alone would not be sufficient to establish exceptional circumstances.

[1] Bail Act 1977 (Vic) sch 1 item 6(b) ('Act').

[8] See Re CT [2018] VSC 559, [64]-[66] and the cases referred to therein.

[9] [2016] VSC 27 ('Rajic').

[11] [2015] VSC 198.

[12] Ibid [18]. Her Honour referred to Hanna v DPP (Unreported, Supreme Court of Victoria, 9 May 2008) where Nettle JA commented that 'there may ... be cases in which a grant of bail is warranted for no more reason than that the likely period of delay is as much or even a significant fraction of the likely non‑parole period.'

[13] Re Lesslie [2024] VSC 568, [64] (Kaye JA), citing Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA).

[14] [2021] VSCA 28.