Re James [2020] VSC 602 (18 September 2020)

1 The applicant applies for bail in respect of one charge he faces of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely methylamphetamine, and two charges of failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth).

2 The first charge mentioned above is a Schedule 1 offence under the Bail Act 1977 ('the Act'). As a result, I am required to refuse bail unless the applicant satisfies me that exceptional circumstances exist which justify the grant of bail.

3 The applicant was arrested and charged with the first charge on 17 June 2020. He was remanded in custody. He made an application for bail in the Melbourne Magistrates' Court. On 30 July 2020, bail was refused, the magistrate not being satisfied as to the existence of exceptional circumstances, and in any event, being satisfied that there was an unacceptable risk the applicant would fail to surrender himself into custody in accordance with his bail.

4 The matter is next listed for committal mention at Melbourne Magistrates' Court on 11 November 2020. I have been informed a committal hearing is unlikely to proceed until late 2021. A trial is unlikely to be heard in the County Court until 2023.

5 The applicant is 36 years old and grew up in Frankston South with his parents and two siblings. His parents separated when he was 14 and he then moved to Mornington with his mother and brothers while his father relocated to Malaysia. He maintained some contact with his father, who died in 2017. The applicant had behavioural and other difficulties at school. He left at the end of year 11 and has been in intermittent employment since then in a number of areas. In 2017, using the proceeds of the sale of his home, he set up and commenced to operate a business importing, selling and installing benchtops for residential properties. The business, named Prestigious Stone, operated from an address at Taunton Drive, Cheltenham until the applicant was remand in custody.

6 The applicant has a long history of substance abuse, commencing with cannabis at the age of 14, and graduating to methylamphetamine and cocaine. He reports that his drug use increased following the death of this father. Prior to his remand, the applicant lived with his partner of nine years, Nisha Karlsupon, in Carrum.

7 The applicant has a long criminal history, commencing in 2003 when he was 18. The history includes convictions for arson, criminal damage, recklessly causing injury, assault, affray, drug possession, weapons and driving and dishonesty offences as well as offences involving contravention of court orders. In particular, he has been convicted of failing to answer bail (2004 and 2014), failing to comply with a community based order ('CBO') (2004) and failing to comply with an intensive correction order ('ICO') (2005).

8 On 8 June 2020, Australian Border Force ('ABF') members detected approximately 360 kg of methylamphetamine in a shipping container that had arrived at the Port of Melbourne from Malaysia on 4 June 2020. The methylamphetamine was in green foil packages labelled 'guanyinwang' (tea) inside 18 boxes packed in the container alongside items of furniture.

9 On 9 June 2020, the matter was referred to the Australian Federal Police ('AFP') and operation 'Tiridates' was commenced. Inside each of the 18 boxes, the AFP located 20 of the green foil packages. Each green foil package contained a clear plastic clip seal bag of approximately 1 kg of methylamphetamine. The AFP replaced the methylamphetamine with an inert substance and reconstructed the 18 boxes, to be delivered to its intended destination in accordance with a controlled operation authority. On 11 June 2020, ABF systems were amended to show the consignment as having been processed as a normal inbound article and the container was designated as ready for collection from the Victorian International Container Terminal in Port Melbourne.

10 The AFP maintained surveillance of the container as it was collected the following day and taken to 'Sidelink Transport' in Tottenham. On 13 June 2020, two delivery men attended that address and loaded the contents of the container into the rear of a truck before driving it to an address in Williams Landing.

11 On 14 June 2020, the applicant allegedly met with a courier driver, Vamsi Reddy, and Reddy's housemate, Lakshmi Chekuri, at Purnulu Way, Tarneit. This meeting was allegedly organised by the Director of MNB Logistics, Kumar Nadarajah, on behalf of a Malaysian national named Shahruddin. Reddy transferred nine of the boxes containing the inert substance, representing approximately 180kg of methylamphetamine, into the rear tray of the applicant's silver Isuzu truck which bore the name of his business on the side. Photographs were taken of the consignment being transferred into the applicant's possession.

12 The applicant then drove the nine boxes to the premises of Prestigious Stone at 79 Taunton Drive, Cheltenham. That evening, the AFP installed an optical surveillance device at that address.[1]

13 The applicant re-attended the premises the following morning and was captured on the optical device. At approximately 12.46pm, he was observed to cut open one of the boxes whilst wearing a pair of latex gloves. He removed the 20 clip seal bags from the green foil packages inside the box and emptied the inert substance into a clear plastic tub. The applicant discarded the gloves and was observed to handle the inert substance, raising it to his face. At approximately 1.10pm, he picked up the clear plastic tub and carried it back towards the office/showroom area of the premises. He was observed to have his mobile phone with him.

14 Minutes later, the applicant set fire to the opened box containing the discarded green foil packaging and clip seal bags, using the contents of a yellow jerry can, paper towel and a cigarette lighter. He appeared to either photograph or film the box with his phone while it burned. At approximately 4.09pm, the applicant was observed to open two more of the boxes and remove two packages whilst walking back and forth between the factory and office/showroom area with his phone in his hand. He closed the boxes before appearing to photograph them with his phone. It is not clear with whom he was communicating at that time.

15 Around the same time, Nadarajah received a call from Shahruddin advising that the nine boxes delivered to the applicant needed to be returned as they were 'not according to the customer's specification'. Arrangements were made for another courier, Om Kodali, to collect the boxes from Cheltenham. At approximately 9.45pm, a green BMW sedan driven by Kodali, with passengers Goutham Gutta and Indraneel Kaja, arrived at the applicant's business address. The applicant met with Kodali a short time later and directed him to the eight remaining boxes containing the inert substance. Kodali and Gutta proceeded to load the boxes into the BMW before driving back to the Williams Landing address.

16 It is the prosecution case that the applicant arranged for the return of the eight boxes and destroyed the ninth box and its packaging after realising that it did not contain methylamphetamine. He was arrested at his Carrum residence on the morning of 17 June 2020 and conveyed to the AFP Melbourne office. He was found to be unfit for interview, having disclosed to investigators that he had used approximately one gram of cocaine the previous evening and was sleep deprived. The applicant was charged without interview and remanded in custody.

17 Search warrants were executed at the Williams Landing address, the applicant's Cheltenham business premises and his Carrum residence. Sixteen of the 18 boxes containing the inert substance were located at the Williams Landing address. A yellow jerry can, a partially burnt box, latex gloves, a clear plastic tub and an amount of white crystalline substance[2] were seized from the applicant's business premises and are the subject of ongoing forensic examination. Investigators also located and seized items of clothing from the applicant's residence allegedly worn by him on 15 June 2020 and a number of electronic devices. Further physical and electronic material recovered as part of Operation Tiridates is yet to be processed. The Hand Up Brief in this matter was served on 9 September 2020.

18 On 6 August 2020, investigators served an order made under s 3LA(2) of the Crimes Act 1914 (Cth) compelling the applicant to provide information to facilitate access to three mobile phones and an iPad seized from his home on 17 June 2020. He refused to provide the PIN or passcodes for one of these devices and stated that the other three were given to him for spare parts for his partner's mobile phone repair business. He stated he would try to obtain the passcodes for those three devices. He has not done so, and subsequent examination ascertained that one of the three devices belonged to the applicant.

19 Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.

20 Section 4, under the heading Entitlement to bail, provides:

A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.

21 Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 1 offence, as is the case here. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[4] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances[5], including, but not limited to, those prescribed in s 3AAA(1) of the Act.

22 If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.

23 In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.

1. The meaning of exceptional circumstances has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[6] stated the relevant principle as follows:

Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[7]

... the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be 'exceptional', it has been accepted that:

• 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.[9]

26 Mr Gumbleton, who appeared with Mr Tovey for the applicant, relied upon the very comprehensive outline of submissions filed and on oral submissions before me. He put forward a number of matters relied upon in combination in proof of exceptional circumstances, and in resisting the respondent's contention as to an unacceptable risk.

a) Strength of the prosecution case. Mr Gumbleton conceded that there was an overwhelming case that the applicant possessed the boxes which had been imported from Malaysia containing methylamphetamine. The question on the applicant's trial, however, would be what he knew as to the contents of the boxes. The fault element of the crime would be in dispute. It was submitted that the evidence would not be sufficient to satisfy a jury that the applicant intended to possess a border controlled drug, as opposed to some lesser type of substance, whether illicit or not. Mr Gumbleton made detailed submissions before me dealing with a number of aspects of the prosecution case, advancing what he asserted were equally open conclusions or inferences to be drawn from the proven facts as to the conduct of the applicant. I will not summarise those submissions here, but I have taken them into account. In short, Mr Gumbleton submitted that for every prosecution contention as to the incriminating value or significance of an item of the conduct of the applicant there would be an alternative explanation consistent with the applicant's innocence of the charge alleged. He submitted that there would remain inferences consistent with innocence 'that could never be excluded'.[10] Early in his submissions, Mr Gumbleton submitted that the case was a circumstantial one which was neither overwhelming nor strong. He did not contend that the case was a weak one. Later in his submissions, he asserted that the case was, indeed, weak. At one point, in a submission effectively repeated on a number of occasions, he stated, 'we believe and we submit to your Honour that this is a case that we will win'.[11]

b) Delay. Mr Gumbleton submitted that on the best case scenario, the trial would be unlikely to proceed until at least three years from the time of the arrest of the applicant. Such a delay, he submitted, would be 'inhumane', 'contrary to human rights',[12] and in breach of the Charter of Human Rights and Responsibilities. He likened such a delay to indefinite immigration detention[13] and submitted that this was a delay of an order that 'no civilised community can tolerate'.[14] He submitted that 'the fact that a delay between arrest and trial of around three years is set to become the new norm does not make such a delay any less inordinate or unacceptable'.[15] He submitted that the delay 'in and of itself'[16] was sufficient to establish exceptional circumstances. Indeed, he submitted that even in the case of a person charged with murder where the prosecution case is strong, exceptional circumstances would necessarily be made out by the fact of such a delay. As he put it, 'on exceptional circumstances the delay trumps everything else'.[17]

c) The availability of intensive, in-patient rehabilitation through DayHab. This was a matter principally touched on by Mr Gumbleton in connection with the matter of risk, but it was relied upon in proof of exceptional circumstances as well. Material filed with the affidavit in support described the facility and services offered by it. It was submitted that the applicant is drug dependent, and that treatment for this problem would not only reduce the risk of further offending, but reduce the risk of the applicant absconding while he is in the facility due to the stringent controls which would be in place. Mr Gumbleton placed a number of decisions of this Court and the Court of Appeal before me in support of the proposition that it is highly desirable that the applicant be afforded the opportunity of residential rehabilitation.

d) The impact of the COVID-19 pandemic on those in custody. The pandemic has caused unprecedented upheaval in the criminal courts in Victoria. Mr Gumbleton drew some of the bail jurisprudence to my attention. He noted that personal visits and educational programs have been suspended indefinitely, and that recreational activities have been curtailed. There is a significant likelihood of increasing lockdowns. Overall, the conditions have been burdensome since the applicant was remanded in custody, and will remain so for some time to come.

e) The availability of substantial sureties. The mother and a friend of the applicant are willing to put up sureties amounting in total to close to $1 million. Sureties of this order would not only ensure the attendance of the applicant at Court, but also provide a substantial motivator for him to comply with any and all conditions of bail. Any failure on bail would expose his mother and friend to the risk of losing their homes, and this would drastically reduce the risk of his breaching bail.

f) The applicant's lack of relevant prior convictions. Mr Gumbleton pointed out that what was relied upon here was the lack of any serious drug convictions.

i) That the applicant is not an unacceptable risk.

27 In respect of risk, it was submitted that notwithstanding his prior history, the risk posed by the applicant could be made acceptable by the imposition of conditions, including, importantly, the residential rehabilitation condition.

28 Requiring attendance by the applicant at DayHab would amount to 'essentially exchanging one form of detention for another form of detention'.[18] What was proposed was that the applicant be bailed for a period of 90 days before coming back before the Court for the matter of bail to be revisited upon a consideration of the circumstances as they then appear to the Court. When asked how even a successful period of residential rehabilitation would reduce the risk the applicant would pose in 90 days of absconding, Mr Gumbleton urged me to confine my consideration to the period of three months. He submitted that the lack of any causal connection between the applicant's drug addiction and the offending alleged was not to the point. The period in residential treatment would be significant in a number of ways, including by reducing the risk of absconding during that period, and reducing the risk of later offending.

29 Ms Holmes for the respondent, in her written and oral submissions, emphasised the considerable seriousness of the offending alleged. What is alleged against the applicant is an extremely serious example of a serious crime attracting a sentence of life imprisonment, she submitted.

30 Ms Holmes strongly challenged the defence contention as to the strength of the prosecution case. She dealt with a number of the particular submissions made by Mr Gumbleton in that regard, and submitted that the case is a strong circumstantial one. The facts which the prosecution would be able to prove as to the applicant's possession and handling of the packages in the time he had them under his control would amount to 'extraordinary evidence that would go before a jury in relation to this man's knowledge of what he is dealing with'.[19] She submitted that it would be 'more than open'[20] to a jury to find that the applicant knew that he was dealing with a border controlled drug.

31 On the question of delay, Ms Holmes accepted that this may be of the order of three years, or even longer. She conceded that this is a significant matter, but disputed that of itself, it would amount to exceptional circumstances. It was but one of the factors to be considered in the context of a strong case of offending of a high order of seriousness which, on conviction, would attract a very long sentence of imprisonment.

32 Turning to the availability of residential drug treatment, Ms Holmes submitted that whilst this may assist with his overall rehabilitation, there was no apparent connection between the applicant's drug dependency and his involvement in the instant offending. The drug treatment would not reduce the risk of the applicant absconding when his period of treatment had finished, and indeed, would not remove the risk of absconding even while he was an in-patient. Ms Holmes distinguished the situation here from that which prevailed in other cases, in particular, in the case of Re Nicholls.[21]

33 Whilst the applicant has no serious drug prior convictions, he has convictions for breaching a number of court orders and failing to answer bail, it was submitted.

34 Ms Holmes submitted that exceptional circumstances had not been made out.

35 Turning to the question of risk, Ms Holmes submitted that the main concern of the respondent was the risk of the applicant absconding. He would have a strong incentive to do so in view of his knowledge of the case against him, and the likely sentence should he be found guilty. The substantial surety may not be sufficient to ensure compliance. The level of the surety should be viewed in the context of the substantial street value of the drugs he attempted to possess. A number of identity documents were seized from the applicant's business premises, and the nature of the offending suggested the possibility of the applicant having links with a drug syndicate with significant resources. Furthermore, the applicant has two convictions for failing to answer bail.

36 In addition to the risk of absconding, Ms Holmes pointed to the risk of reoffending, considering the prior convictions of the applicant and his apparent unwillingness to comply with court orders. Furthermore, there were a number of unknown individuals who were still the subject of the ongoing investigation. There may be the prospect of the applicant interfering in some way with the course of justice in respect of the investigation.

37 Ms Holmes submitted that no conditions of bail could reduce the obvious risk posed by the applicant to an acceptable one in the circumstances.

38 A sensible starting point in the consideration of the surrounding circumstances of this case is the first of the matters set out in s 3AAA, which is not to say, of course, that there is a requirement to consider the circumstances in any particular order.

39 The applicant is alleged to have attempted to possess 180 kg of methylamphetamine of a purity of 80.3 percent. The street value is said to be of the order of 90 million dollars. The importation that preceded the alleged offending of the applicant was sophisticated and well-planned. The offending alleged here is of a very high order of seriousness. The maximum penalty is life imprisonment.

40 Turning to the strength of the prosecution case, I have, of course, had regard to the detailed submissions of Mr Gumbleton casting doubt on the strength of the case. It is not appropriate for me to pass judgment on each of the specific aspects of that attack. The strength of the case will ultimately be a matter for a jury to contemplate. As a judge considering a bail application, many months before a committal hearing has even been heard, my consideration of the matter will be necessarily superficial and based upon a summary of the evidence only. I would, however, make two respectful observations about the approach of Mr Gumbleton to the strength of the case. First, that approach betrayed at times an inclination to consider each individual item of the conduct of the applicant in isolation from the overall evidence in the case, including the totality of his conduct and its surrounding circumstances. That, of course, is not the way a criminal trial works. Secondly, in a number of instances, Mr Gumbleton put forward possible innocent explanations for particular items of conduct of the applicant which might be thought to stretch credulity somewhat. In some cases he labelled, as equally open inferences, propositions which might readily be rejected by a jury.

41 Notwithstanding the oft-expressed confidence of Mr Gumbleton as to the likely outcome of the future trial, which may have provided some comfort to the applicant, I do not accept the submissions made as to the weakness of the prosecution case. In light of the evidence only briefly summarised in this decision, I do not consider that the case can be realistically viewed as anything less than strong.

42 Turning to what was by far the most important matter relied upon by the applicant before me, namely, the question of delay, there is no doubt that the prospective delay in this case is inordinate, and very concerning. That having been said, the delay cannot in my view be sensibly likened to indefinite immigration detention, and nor should it be described as 'inhumane' or 'contrary to human rights'. The use of those descriptors seemingly implies ill will by the authorities, which simply cannot be justified. The applicant was taken into custody on suspicion of exceedingly serious offending. The case against him has been clearly articulated, and as I have said, must be viewed at this time as being strong. It would be unsurprising for it to be considered that a person charged with offending of this seriousness may need to be held in custody pending trial. In the case of the applicant, through no fault of the criminal justice system or the prosecution, that trial is unlikely to be possible for a significant period of time.

43 Mr Gumbleton submitted that in any case where a delay of this magnitude is likely to occur, exceptional circumstances would be established. I reject that submission. The same submission, albeit concerning a slightly shorter period of delay, was specifically rejected by the Court of Appeal in El Nasher v Director of Public Prosecutions.[22] The Court stated:

We should add that we specifically reject the appellant's somewhat bold submission that in any case where there is a delay of the order apparent in this case, exceptional circumstances will, without more, be demonstrated. Each case will turn on its own facts and a decision maker will need to balance all of the relevant surrounding circumstances.[23]

44 There is no doubt that in many cases, a delay of the magnitude likely here would be a matter which may lead to a conclusion that exceptional circumstances are made out. As I acknowledged earlier, there is no doubt that delay is an important consideration in this case. I accept the respondent's contention, however, that the delay is but one of the factors to be considered in the context of the case as a whole, and that the extraordinary seriousness of the alleged offending, the strength of the prosecution case and the long sentence of imprisonment which would inevitably result upon conviction are relevant matters to consider when pondering the delay. That is the approach which the law requires me to take to the task which confronts me.

45 In respect of the availability of residential rehabilitation for the applicant, for some months at least, that does not strike me as being a very important consideration. Unlike the position in some of the other cases to which I was referred, in this case, there is no asserted connection between the drug addiction of the applicant and the current offending alleged against him, or indeed, his previous offending, with the exception of his convictions on two occasions for possession of drugs of dependence. The report of Patrick Newton, a clinical and forensic psychologist, which was included in the material in support of bail, noted that the applicant had reported a history of problematic drug use from the age of 14. In spite of that, he has never engaged in any treatment or counselling for the drug issue, has never considered his drug use to be a problem, and has never been motivated to change it.[24] Mr Newton noted that in spite of the expressed keenness of the applicant to engage in the DayHab program, he was unable to identify any goals or plans in respect of his treatment. It is perhaps unsurprising that Mr Newton was of the opinion that three months in the residential facility would not be long enough to enable sufficient progress by the applicant to warrant safe release into the community, and that he would be at elevated risk of relapse whenever eventually released from the program.

46 To my mind, as things currently stand, participation by the applicant in residential drug rehabilitation would do little to reduce the risk posed by him of re-offending, or, more importantly, absconding. Whilst Mr Gumbleton described the prospect of the applicant going into the DayHab facility as 'exchanging one form of detention for another form of detention', the arrangement described would not be a secure one, and the applicant would be able to leave whenever he wished. Furthermore, even his successful completion of the program would do nothing to reduce the risk of him absconding, about which I will say more shortly.

47 Mr Gumbleton urged me to approach the issue of bail now as a sort of interim measure to ensure control over the applicant during the three months or more of residential rehabilitation. Whilst acknowledging that judges of this Court have seen fit to use bail in this fashion on occasions, and that it may be open to me to do so, to my mind, when considering the question of risk in this case, I am required to consider what risk is posed by the applicant now of engaging in any of the conduct outlined in s 4E(1) at any time between a grant of bail and his eventual trial. Even were bail to be granted on an interim basis, for further consideration in the months to come after a period of residential rehabilitation, I cannot see that even the successful compliance by the applicant with residential rehabilitation would reduce the risk posed by him.

48 I take into account the onerous nature of the custody presently imposed upon the applicant as a result of the COVID-19 pandemic. In his case, the suspension of personal visits has affected him, although I note that the applicant had been able to make no fewer than 648 personal telephone calls from the time of his remand until the preparation of the affidavit in response, with 345 telephone calls and 17 Skype calls to his partner. I also note the anxiety he has apparently felt in custody as a result of COVID-19, as noted in the report of Mr Newton. As the Court of Appeal stated in El Nasher:

As the primary judge observed in Tong, the current health crisis and its cascading effects on the criminal justice system form part of the surrounding circumstances required to be considered by every bail decision maker conducting the two step test set out in s 4AA and following of the Act. It remains just one of many factors that must be taken into account by a bail decision maker.[25]

49 Making brief reference to the prior criminal history of the applicant, it may seem somewhat surprising that submissions were made as to the applicant's lack of relevant prior convictions, and lack of prior negative bail history. In fact, the criminal history is notable for showing offending by the applicant from the age of 18 until the fairly recent past, encompassing all manner of offending, some of it quite serious, and comprising, on my reckoning, no fewer than 13 separate court dispositions. As noted earlier, he has been convicted of failing to answer bail on two occasions, failing to comply with a CBO, and failing to comply with an ICO. It is a criminal history which is relevant, indicating as it does a tendency by the applicant to criminal behaviour, and a willingness to breach orders of courts.

50 On the matter of the substantial sureties offered on behalf of the applicant, I note that in some cases, of which Barbaro v Director of Public Prosecutions[26] is an example, even a very substantial surety may not be sufficient, in combination with other factors, to reduce a risk of absconding to an acceptable level.

51 In this case, whilst there is no question that the likely delay is a very significant matter, the applicant is charged with offending of a very high level of seriousness. The case against him is strong, and the result should he be found guilty would be a very lengthy term of imprisonment far outweighing any period on remand. He has a long and significant criminal history. He has an untreated drug problem. He may have a very strong incentive to flee the jurisdiction.

52 I have anxiously considered all of the surrounding circumstances of this case, and in particular, have paid full regard to the long period of time for which the applicant would be held on remand before his trial should bail not be granted. In the end, and bearing in mind where the burden of proof rests in this regard, I am not satisfied that exceptional circumstances exist that justify the grant of bail.

53 For that reason, it would be necessary for this application for bail to be refused.

54 For completeness, I can indicate that even had I been of the view that the applicant had succeeded in discharging the onus resting upon him in respect of exceptional circumstances, I would have been firmly of the view that the applicant would pose an unacceptable risk of committing an offence while on bail or, more importantly, failing to surrender into custody in accordance with his bail. Failing to answer bail is something for which he has a proven track history. The nature of the charges he faces, the apparent strength of the evidence, and the inevitable consequences of a conviction should it occur, would all serve to create a very strong incentive for the applicant to seek to avoid trial. No conditions of bail, and not even the substantial sureties on offer, could, to my mind, reduce the obvious risk he poses to an acceptable level. I would have been satisfied that there would remain an unacceptable risk that he would commit an offence on bail, obstruct the course of justice, or, most importantly, fail to answer bail.

55 For that reason, also, I would have refused bail.

56 For the reasons I have stated, this application for bail must be refused.

[1] The installation and use of the optical surveillance device was authorised by a warrant issued under the Surveillance Devices Act 2004 (Cth).

[2]3 Located in a toilet within the factory.

[6] [2004] VSC 17.

[7] Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].

[8] [2019] VSC 751.

[9] Ibid [65]-[66] (citations omitted).

[21] [2020] VSC 189.

[22] [2020] VSCA 144.

[24] See report of Patrick Newton at [31].

[26] [2009] VSCA 26.