Re Application for Bail by Michael Pickersgill [2013] VSC 715 (19 December 2013)

3 The offending is alleged to have occurred between 20 February 2013 and 8 November 2013. The former is the date upon which the electricity account for the factory at Seaforth Street was activated and the latter is the date of execution of a drug warrant at a factory in Seaforth Street, North Shore. When the search warrant was executed, investigators discovered within the factory a permanent structure encompassing approximately two thirds of the floor space. That structure had four separate rooms, a roof and was insulated. In total 86 cannabis plants weighing 205 kilos in total were located. This is a commercial quantity of cannabis. A large quantity of hydroponic equipment valued at more than $40,000 was being employed. Police estimate the commercial operation to be a significant financial outlay.

4 A surveillance operation that commenced in September 2013 targeted the factory and on 28 October 2013 the applicant had been seen to attend at the factory for about 45 minutes. There are prosecution witnesses who saw a person matching the description of the applicant and a vehicle matching the description of the applicant's vehicle at the factory on other occasions.

5 In the months prior to February 2013, separate surveillance of a business, 'Sunshine Hyalite' a hydroponic outlet in Third Avenue, Sunshine, revealed that the applicant was seen with others acquiring equipment and supplies for hydroponic cultivation. On one occasion the applicant had rented a truck that was used to transport equipment from Sunshine to North Shore.

6 At the factory, an electrical bypass was in place and an estimate of the value of the power used per day, multiplied by the number of days for which the factory was rented, provides an estimate of approximately $70,000 for the value of the electricity that was stolen.

7 During the search, the co-accused Clinton Walker was observed to drive past the address and although directed by police to stop, he fled from the scene. Telephone records indicate that immediately after Walker fled the scene he called the applicant. The applicant is a close friend of the co-accused Clinton Walker. About an hour later, Walker attended at the Corio police station and handed himself in.

8 During a record of interview, Walker made admissions to the offences of trafficking and cultivating a commercial quantity of cannabis. He stated that he was the only one who had access to or had tendered the cannabis plants and that it was he who bypassed the electricity.

9 On 12 November 2013, police executed a search warrant at the applicant's home address. The items of interest there located included three mobile phones, two bundles of cash totalling approximately $3,000, a number of items that had green residue on them and smelt of cannabis including gloves and several large plastic tubs, documents connected to Clinton Walker, documents connected to Hyalite and another hydroponic equipment supplier, and a key chain with 14 keys.

10 The keys were found in a garage on a shelf behind a photograph. Police subsequently ascertained that the keys permitted access to the padlocked front gate of the factory premises and to the external door to the office at the factory.

11 The applicant was arrested and later made a 'no comment' record of interview.

13 The issues to be determined are, firstly, whether the applicant has demonstrated that exceptional circumstances exist such that the making of an order for bail is justified; then, secondly, whether the Crown established that to release the applicant on bail would be an unacceptable risk pursuant to the matters set out in s 4(2)(d) of the Bail Act.

14 It is well established that the hurdle confronting the applicant is a high one but not an impossible one. It is also well established that there is no general definition of the factual circumstances that will constitute exceptional circumstances.

15 In DPP v Cozzi[1] Coldrey J adopted an earlier statement of Vincent J in Re: The Matter of Application for Bail by John Denis Moloney.[2] His Honour had stated:

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

16 Coldrey J added that the major factors found to constitute exceptional circumstances have been: firstly, the strength of the Crown case where that may be sensibly assessed; secondly, the question of delay to committal and/or trial or the extent of pre-trial detention; thirdly, principles of parity insofar as they are applicable to a bail application. In R v Griffey[3] King J noted that it has long been held that it is a combination of circumstances that are of importance and that the combination must be assessed in each individual case. A myriad of other factors can be relevant in establishing exceptional circumstances.

17 In Re Kane[4] Lasry J restated a list of those factors, drawing on the earlier cases to which I have already referred. Those circumstances include -

18 In Re Marijancevic[5] Lasry J added relevantly to this list the further consideration of whether or not a surety in relatively substantial terms is available. The provision of a substantial surety places an applicant for bail in circumstances where another person at risk of significant financial loss takes on the responsibility of ensuring the applicant's attendance at his or her trial. This is a matter of some significance. Commonly, the fact that there is an absence of the matters detailed in s 4(2)(d) constituting unacceptable risk, is also to be taken into consideration.]

19 I am satisfied that the continued detention of the applicant in custody is not warranted in this case. In summary, the issues that are of particular relevance to my decision are these. First, the applicant suggests that the Crown case is circumstantial and will be contested. Secondly, a surety in relatively substantial terms was available when the application was first made. However by the time the application was heard, a judge in the County Court has made a restraining order under the Confiscation Act, 1997 that now prevents any dealing with the property that was proposed to secure the intending surety. Thirdly, there is a question of unacceptable delay. Fourthly, the applicant's immediate family needs his support and, beyond that immediate need, the extent of family support, stable accommodation and employment of the applicant contribute to exceptional circumstances. In combination, these matters persuade me that exceptional circumstances are shown leading to the final considerations. Fifthly, the risk of the applicant reoffending is contested. Sixthly, neither a risk of interference with witnesses or a risk of flight is relevant.

20 Although the applicant's counsel could not submit that the Crown case was weak, she maintained that it was not a compellingly strong case and, as such, was a matter that could be considered, with other factors, in demonstrating exceptional circumstances The Crown case against the applicant is characterised as circumstantial. Police do not accept, having regard to the scale of the operation, that Clinton Walker acted alone. Although surveillance and other evidence places the applicant at the factory, police cannot presently confirm the applicant's involvement inside the factory. The applicant's keys would not open the secured internal doors between the office and the factory floor and there is no evidence of the applicant entering into or exiting the area where the hydroponic set-up was located. Fingerprint evidence will not assist the police and DNA evidence is not yet available.

21 The Crown did not dispute that its case was circumstantial and not presently demonstrable as compellingly strong. However, the Crown drew my attention to a number of pieces of evidence that, it submitted, were likely to be highly persuasive. It is unnecessary to rehearse these arguments in depth. That is a matter either for a committal or a trial. It is not the function of this court summarily determining an application for bail to undertake a thorough analysis of the evidence to asses the prospect of conviction. The court is simply not in a position to do so. Having carefully considered all of the arguments that have been put in relation to the strength of the prosecution case, I am not persuaded that this is a factor that favours the applicant in his task of demonstrating exceptional circumstances. On the other hand, I am not presently persuaded that the strength of the Crown case is such that the applicant's task of establishing exceptional circumstances is significantly disadvantaged by it. I regard this factor as neutral.

22 The applicant and his wife jointly own premises in Lara. Those premises were purchased approximately 18 months ago for $550,000. It is their family home. It is subject to a mortgage of approximately $120,000. The applicant's wife is prepared to provide a surety secured by the equity in the matrimonial property. So much was stated by the applicant's solicitor in an affidavit sworn 4 December 2013. On 10 December 2013, the Director of Public Prosecutions applied, ex parte, under s 16 of the Confiscation Act 1997 for a restraining order that would preclude the disposal of or any dealing with the matrimonial home, another property (the investment property), two bank accounts containing approximately $10,800 and $8,700 respectively and two vehicles. On 11 December 2013, a County Court judge granted the restraining order.

23 Before that order was sought, the applicant and his wife had contracted to sell the investment property to fund the family's living expenses and the applicant's defence costs. The restraining order permits that sale to be completed on the basis that the proceeds of sale, when the contract is settled, are used to pay the costs and expenses of sale and the registered mortgage with the balance being held on trust by Asset Confiscation Operations of the Department of Justice and restrained.

24 A restraining order prevents an interest in property from being disposed of or otherwise dealt with except in the manner specified in the order. Dealings with all of these assets are restrained until the occurrence of automatic forfeiture under s 35 of the Confiscation Act or until further order of the court. On this application, argument proceeded on the basis that if Mrs Pickersgill was to satisfy the court under s 9(3)(a) of the Bail Act of the sufficiency of her means to post a surety calculated by reference to the equity in the matrimonial home, the lodging of a document that was evidence of her ownership and the value of the property would constitute a dealing with property for the purposes of the Confiscation Act. The parties accepted, without argument,[6] that this consequence followed on the making of the restraining order by force of the statute.

25 As already noted, whether a surety in relatively substantial terms is available is an important factor in considering whether there are exceptional circumstances. A surety that effectively encumbered the matrimonial home would place Mrs Pickersgill at risk of significant financial loss. As a matter of practical consequence, she would take on the responsibility of ensuring that the applicant observed his bail conditions.

26 The applicant suggested that the restraining order was a pre-emptive strike by the Director to deny him the benefit of a substantial surety and the opportunity to demonstrate that his continued detention in custody is unjustified. There is no evidence that persuades me to accept that submission. However, I am satisfied that the restraining order can properly be seen to contribute to the existence of exceptional circumstances in this case. I would not be satisfied that exceptional circumstances had been established solely on the basis of this restraining order. However, in my view, the restraining order contributes to the circumstances that are out of the ordinary, or exceptional.

27 One effect of the restraining order is that it inextricably exposes all of the applicant's assets, including those that are jointly owned with his wife, to a significant risk of forfeiture. It is true that other applications under the Confiscation Act might be brought to show that the property is not tainted or to exclude interests in the properties and assets. Nevertheless in seeking to avoid confiscation, the applicant will be significantly motivated to succeed on his defence. The consequences of not doing so may now extend beyond his own interests to the welfare of his family. I will say more about the restraining order when discussing the applicant's personal circumstances. It is not clear that the State would be worse off if the matrimonial property had been pledged by its co-owner in support of a surety before the restraining order was granted. If granted bail and if the applicant observed his bail conditions and answered his bail, on conviction, Asset Confiscation Operations would be in a similar position. If the applicant failed to observe his bail conditions or answer his bail, the surety could be forfeited.

28 The next question raised was whether there would be unacceptable delay in the applicant's trial. The applicant's counsel contended that current experience suggests that a contested two to three week trial would not be heard before mid 2015, meaning that the applicant faced a minimum of 20 months on remand for his trial. However, it emerged that these estimates were based upon delays in Melbourne. Counsel for the respondent pointed out, and I accept, that the delays in listing a contested committal and obtaining a trial date in the Geelong circuit of the County Court are significantly shorter. Counsel submitted that the trial might be completed by mid 2014. Possibly, that assessment is as optimistic as the applicant's assessment is pessimistic. Making due allowances, I am not satisfied on the information presently available to me that there is a prospect of significant delay that would contribute to showing exceptional circumstances.

29 The applicant is 41 years old. He lives with his wife in the matrimonial home with four children. Each of them have a child from a previous marriage and together they have two very young daughters aged 18 months and 8 weeks. The applicant has another child, dependent on him, who does not live at the matrimonial home. Mrs Pickersgill is a full time mother who has been on maternity leave from her position as a 000 call operator for approximately two years. The applicant was the sole breadwinner in the family prior to his remand. The family is currently receiving a family assistance payment of $698 a fortnight. The mortgage repayments on the family home are $470 a fortnight. Until the restraining order was obtained, Mrs Pickersgill had access to funds in a Westpac Bank account and was using that access to support the family and pay the mortgage. These funds, apart from the family assistance payment have now dried up.

30 The applicant was remanded into custody about a month after the birth of his daughter. He had wound back his work to assist his wife with the birth about a month prior to the birth. Plainly, there is significant financial hardship for the applicant's family in losing his services as a breadwinner and his assistance with a young family. During the last 12 months the applicant had worked a number of jobs to support his family including as a mechanic, a plasterer's labourer, and a labourer in a demolition and asbestos removal business. The proprietor of G Works Custom Cycles, Luke McPherson, has sworn an affidavit that he is willing to offer the applicant employment of at least three days a week if he is granted bail. There is no reason not to accept this offer as bona fide. Having been denied access to the family assets by the restraining order, particularly to the proceeds of sale of the investment property and the bank accounts, both the applicant and his family are now exposed to significant financial hardship. That is not to say that the Crown is not entitled to make such applications as the law permits in relation to assets of accused offenders in these circumstances, but in my view, the restraining order now throws the applicant into an exceptional rather than an ordinary circumstance. Provided the risks of unacceptable consequences are capable of proper management by strict conditions of bail, there is much to be said in favour of permitting the applicant to work to support his family, fund his defence and fund any applications that may be advised under the Confiscation Act.

31 I am satisfied that, if released on bail, the applicant has employment available and stable accommodation. The current family situation would appear to be both stable and mutually supportive. In particular, the applicant's relationship with his wife post-dates his prior offending, to which I will shortly refer, and it is not suggested that his return to his marriage and family, if released on bail, may lead to reoffending.

32 Taken in isolation, I do not consider that any of these factors establish exceptional circumstances. However, as I have stated, relevant matters must be assessed in combination and, in particular, having regard to my view that the applicant is a low flight risk and a low risk of interfering with witnesses, and that his very young family is dependent on him as the sole breadwinner, I am satisfied that the applicant has demonstrated that exceptional circumstances exist. In so concluding, I am not discounting the strength of the Crown case against the applicant as he contends that I ought, but, nevertheless, bearing in mind all of the matters to which I have referred in combination, particularly the impact of the restraining order, I am satisfied that exceptional circumstances are present.

33 The Crown contends there is a significant risk that the applicant will reoffend. In support of this contention, the informant points to a history of modest income being declared by the applicant to the ATO and the want of financial resources as facts from which it might be inferred that the applicant will engage in further offending relating to drugs in order to support his family. The applicant's prior convictions are also relevant.

34 Although the applicant was before magistrates' courts in 1991 and 1994, his first relevant prior conviction was in April 2006 when he was fined for cultivating and using cannabis. In November 2009, he was sentenced to 3 months' imprisonment that was wholly suspended for 2 years for trafficking in cannabis, possessing a prohibited weapon and possessing ammunition. Plainly these prior convictions are relevant and on each occasion, the offending was related to the use of hydroponic equipment. On the other hand, he has no prior history of failing to answer his bail or of offending whilst on bail or during the two year operational period of his suspended sentence.

35 The applicant sought to discount the significance of his prior history. The offending in 2006 apparently came about as a result of his admission, there having been no recovery of any drugs. The applicant also pleaded guilty in 2009. I am not persuaded by the applicant's submissions that the significance of his prior offending for present purposes is diminished by the circumstances in which it occurred. That prior offending must be balanced with all of the considerations that I have already discussed and the fact that bail will be strictly conditioned. I am not satisfied that releasing the applicant on bail would be an unacceptable risk.

36 I propose to release the applicant on strict conditions to attempt to ameliorate further that risk. Those conditions are that the applicant:

(a) attend at mention, committal and trial, at a day, time and place notified to him by the Director of Public Prosecutions by notice in writing and then surrender himself.

(b) not depart without the leave of the Court and, as often as leave is given, return at the time appointed by the Court on granting leave and again surrender himself.

(c) reside at 36 Lara Boulevard Lara, Victoria, and not change this place of residence without giving the informant 7 days notice or further order of a court.

(d) report daily to the Officer in Charge of the Police Station at Lara or his/her nominee between the hours of 8.00am and 6.00pm.

(e) abstain from the use of illicit drugs.

(f) not contact directly or indirectly any witness for the Prosecution or any co-accused except the Informant or his nominee.

(g) surrender any passports which he may hold to the Informant within 24 hours of being admitted to bail and not apply for another passport.

(h) not attend any point of international departure during the period of bail.

[1] [2005] VSC 195; (2005) 12 VR 211, at [19].

[3] [2006] VSC 86, at [35].

[4] [2010] VSC 8 (22 January 2010), at [16].

[5] [2010] VSC 122 (8 April 2010), at [17].

[6] For the purposes of this application, I will likewise accept that proposition at face value.