Re Ngo [2024] VSC 474 (21 June 2024)

2 The applicant is 29 years old. She is 33 weeks pregnant and in custody for the first time. She is a Vietnamese national on a student visa in Australia and she does not speak English. She applies for bail in respect of one charge of cultivating a narcotic plant, namely cannabis, in a large commercial quantity, contrary to section 72 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

3 The applicant was arrested, charged and remanded in custody for the alleged offending on 29 November 2023. She was refused bail at the Bendigo Magistrates' Court on 12 February 2024 on the basis that she did not meet the exceptional circumstances test to justify a grant of bail. Her matter is next listed for a two‑day committal hearing in the Bendigo Magistrates' Court, commencing on 14 November 2024, alongside four co‑accused namely, Hua Van Duong, Duc Ahn Nguyen, Van Phuc Tu and the applicant's husband, Song Ngoc Duong. They face the same charges as the applicant and are remanded in custody. Duc Ahn Nguyen and Song Ngoc Duong hold student visas, and Hua Van Duong and Van Phuc Tu hold temporary bridging visas.

4 The application is supported by affidavit material from both the applicant and the prosecution. The parties did not file nor seek to rely on any written submissions.

5 As to a brief description of the alleged offending, in August 2023, Victoria Police commenced an investigation into cannabis cultivation and production, and associated operations in Melbourne and rural Victoria after receiving an information report from the Australian Federal Police.

6 On 29 November 2023, Victoria Police executed search warrants at properties in Dunluce, Kamarooka and Deer Park:

(a) Co‑accused Hua Van Duong and Duc Anh Nguyen were arrested at the Dunluce property, which contained 1,393 cannabis plants, and 70 kilograms of loose cannabis.

(b) The applicant, her husband and co‑accused Song Ngoc Duong, and co‑accused Van Phuc Tu, were arrested at the Kamarooka property which contained 1,815 cannabis plants, and 210 grams of loose cannabis.

(c) 252 cannabis plants were seized at the Deer Park property. The applicant is not charged in relation to plants located at that particular property.

7 The applicant and co‑accused were arrested, interviewed and, with the assistance of a Vietnamese interpreter, charged. The applicant made a no comment interview, however, some of her co‑accused made admissions to the growing and taking care of plants and doing farm work. Notably, co‑accused Van Phuc Tu answered that he, the applicant and her husband had planted the small plants at the Kamarooka property, and that he and the applicant's husband had built one of the greenhouses and connected pipes. I note that none of the co‑accused identified the plants as cannabis.

8 The prosecution case against the applicant appears to rest significantly on her presence at the property at the time of her arrest. As it was explored at the hearing of this application, there are some added pieces of evidence that the prosecution would rely on, which include:

(a) a photograph of the applicant's hand holding a cannabis plant;[1]

(b) her residence at the property, said to be established by a number of things that demonstrate she was living at the property; and

(c) some other circumstantial facts.

9 There is also mention of some fingerprints that were found, although the analysis of those fingerprints appears to be outstanding.

11 She was raised by her parents in Vietnam, along with her six siblings. Her family members continue to reside in Vietnam, except for her sister, Thi Hoa Ngo, who lives in Sydney on a temporary visa. The applicant's father died in a motor vehicle accident in 2005.

12 The applicant arrived in Australia in February 2023 on a working holiday visa. She has since applied for and been granted a student visa, which expires on 11 July 2025.

13 The applicant has not provided any information in respect of her studies in Australia, and/or her compliance with the conditions of her student visa. Regrettably, that material should have been placed before the court in order for the court to make an assessment, in respect of whether or not she is a genuine student in this country. Due to the absence of that material, I have not taken that particular issue into account when reaching my decision.

14 Prior to her arrival in Australia, the applicant completed a business management degree and worked in the accounting department of an import company and a construction company in Vietnam.

15 She married co‑accused Song Ngoc Duong in Vietnam in 2020, and is currently expecting her first child, following two previous miscarriages. She is expected to give birth to this child on or around 5 August 2024.

16 By way of criminal history, the parties agreed and have approached this application on the basis that the applicant does not have a criminal history.

17 The applicant submits that the alleged offending is serious, however, it is noted that the particular charge pertains to a single day of offending. It is acknowledged, perhaps implicitly, that the amount of cannabis said to be grown or cultivated is a very significant example of a large commercial quantity.

18 As to the strength of the prosecution case, the applicant submits the prosecution case is not a strong one. It is acknowledged that her presence at the property is not disputed at the time of her arrest. The applicant submits that there are triable issues in respect of establishing the elements of the offence beyond reasonable doubt and, of course, the strength of the prosecution case will be properly assessed at the committal, and then, potentially, at a later trial. Nevertheless, the primary submission of the applicant is that the prosecution case is not a strong one.

19 As to family support and stable accommodation, the applicant relies on the availability of stable accommodation with her sister, Thi Hoa Ngo, and her nephew, Duc Long Nguyen, who live both in Bankstown in New South Wales. As I have said, her sister and nephew are temporary residents of Australia.

20 Of note, the applicant's sister has offered $15,000 by way of a bail guarantee or surety to be provided by bank cheque. The applicant's sister gave evidence before me, and supported the application for a grant of bail, indicating that she would assist the applicant by providing her with accommodation that is sufficient, in the circumstances, and also indicated she would assist in caring for both the applicant and the unborn child. The applicant's sister also indicated to the court, and in effect gave an undertaking, that she would report the applicant to the authorities should she breach any conditions of her bail.

21 The applicant submits that she has a special vulnerability by virtue of a number of factors, being:

(a) that it is her first time in custody;

(b) she is approximately 33 weeks pregnant and is due to give birth in the following weeks; and

(c) she has experienced health issues, which have included pelvic bleeding as a result of her pregnancy, requiring a number of hospital admissions whilst in custody, most recently in May of this year.

22 The question arises as to whether, in the course of the next three weeks, that medical condition will cause problems. There is no evidence before the court as to whether this is likely, or possible, or whether or not that condition would have any application to the period following the birth of the child, and for that reason, I am unable to act on any evidence in respect of that type of circumstance. Nevertheless, it is put that there remains a risk towards the applicant, should she remain in custody, that she may not receive urgent or timely medical treatment given her language difficulties.

23 The applicant also relies on the fact that she does not speak English and has been apparently experiencing symptoms of depression, as well as loneliness, hearing voices, poor sleep and appetite, and some degree of self‑harm. The applicant relied on a letter from Forensicare by way of a referral letter and hospital discharge summaries from 2023 and 2024 in support of the evidence of her medical conditions and hospital admissions. The applicant's sister also gave some evidence relating to the applicant's health issues, including receiving a degree of psychological treatment.

24 As to the time in custody, the applicant submits that she will, if not granted bail, spend a significant time in custody. The committal, as I have said, is listed in November of this year. If the committal proceeds and the applicant is committed to trial, it is likely that the trial listing will not, for practical purposes, be until the second half of 2025. The applicant has spent, or will have spent, approximately 350 days in custody by the time the committal begins in November and, therefore, there is a potential that she will spend some 18 months in custody by the time it is anticipated that the trial will actually take place. That period of time must, of course, be viewed in the circumstances of what is submitted by the applicant to be a weak prosecution case.

25 In respect of the exceptional circumstances test, the respondent has approached this application by submitting, as I understand it, that it is open for the court to find that the exceptional circumstances test has been satisfied. The court has taken the respondent's position into account, albeit that at the end of the day, the decision about this particular issue is a matter for the court. In the event that the court is satisfied that the exceptional circumstances test has been met, the respondent appears to accept that the conditions that have been foreshadowed, and currently proposed by the applicant, will ameliorate or are capable of ameliorating the risk to an acceptable level with a number of amendments that may need to be discussed, in the event that bail is granted.

26 In relation to the strength of the prosecution case, the respondent does not concede that it is a weak case but rather, a case that does have a degree of strength to it, taking into account the prospect of an accumulated set of circumstantial facts that are capable, so it is argued, of establishing the guilt of the accused.

27 When interpreting and applying the Bail Act 1977 (Vic) ['the Act'] provisions, the court is required to have regard to the guiding principles set out in section 1B of the Act and those principles recognise a number of things that are salient to this application, including:

(a) maximising the safety of the community and the persons affected by crime to the greatest extent possible;

(b) taking into account the presumption of innocence and the right to liberty;

(c) promoting fairness, transparency and consistency in bail decision‑making; and

(d) promoting public understanding of bail practices and procedure.

28 I have had regard to these particular principles, as I must.

Has the exceptional circumstances test been established?

29 The applicant is charged with a Schedule 1 offence, being cultivating a narcotic plant in the nature of cannabis in a large commercial quantity contrary to section 72 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).[2] Bail must be refused unless the applicant satisfies the court that exceptional circumstances exist that justify a grant of bail.[3] In making that determination, the court must have regard to the relevant surrounding circumstances and a non‑exhaustive list as set out in section 3AAA of the Act.

30 If the exceptional circumstances test is satisfied, the court must then turn to consider the question of unacceptable risk. The Act does not define what is meant by 'exceptional circumstances' but this court has previously considered this and summarised some circumstances that can be taken into account, and they include that the circumstances relied on must be such as to take the case out of the normal so as to justify the admission of the applicant to bail and that, whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.[4]

31 Furthermore, and significantly to this case, exceptional circumstances may be established by a combination of circumstances which by themselves may not be considered exceptional. The applicant has put forward a number of factors in combination which, she says, has reached the threshold.

32 As to the strength of the prosecution case, it appears that primarily the case against the applicant is based on her presence at the scene of the cultivation. There appears to be some other evidence that is capable, so it is argued by the prosecution of demonstrating in a combined form the involvement of the applicant in the alleged offending. On the other hand, the applicant asserts there are triable issues. On balance, it seems to me that the best that can be said at this stage is that the prosecution case does not appear to be a particularly strong or overwhelming one in respect of this application. I am not prepared to say that it is a weak case because, at this stage, all of the evidence is not in. But I do acknowledge that it is submitted that the case put forward by the prosecution is one that does have some arguable issues, and it does not appear to me to be a case that is, as I have said, to be overwhelmingly strong.

33 As to delay, it appears common ground that, should the applicant be committed for trial and the matter then remains contested, her trial is not likely to be heard until the second half of next year. I note the possibility that the trial will involve a number of co‑accused which nearly always slows trials down for various reasons. It is also foreshadowed by implication that there may be a separate trial application by this applicant in respect of seeking a separate trial from the remainder of her co‑accused. That also may slow things down.

34 In my opinion, the prospect that this trial may not get on until the second half of next year represents a significant delay faced by the applicant, particularly given the prospect that if she does not receive a grant of bail, she will be in custody for the birth of an infant and then, of course, have to care for an infant in a custodial setting which, on any view, should be regarded as undesirable.

35 The applicant does not have a criminal history. This is her first time in custody and, as I have outlined above, she is currently in her third trimester of pregnancy, coming to the end of the nine month period of her pregnancy. She has experienced a number of complications, some of which have required urgent medical care and I accept that this has made her time in custody more difficult and, in the immediate time ahead, this is likely to remain the case. I accept that this is a factor in favour of a grant of bail and I have given significant weight to this.

36 I have given consideration, of course, to the availability of stable accommodation and support, and the evidence of the applicant's sister. However, I remain somewhat concerned that the applicant, if released on bail, will be bailed to a place outside of the current jurisdiction in Victoria, which can present some difficulties if things go amiss in terms of breaching bail conditions and so on. I also have some hesitation as all of the people involved in this particular application by way of co‑accused, the applicant and the sister, are in Australia on a temporary basis. I have taken all of that into account in making the decision that I have.

37 The applicant's sister has offered a bail guarantee of $15,000 in the form of a bank cheque and of course, the applicant's sister has indicated in her evidence that she understands the consequences associated with the breach of bail, that she risks losing the $15,000 which I have no doubt is a very significant amount of money for this particular witness.

38 The applicant, as I have said, has no previous criminal history and there are no allegations that she has been engaged in violent behaviour. That is a matter that goes to the assessment of risk to the general community.

39 Having taking into account and weighed each of the salient factors in support of the application, I am, therefore, satisfied that the exceptional circumstances test has been satisfied. I note that I am, however, of the opinion that the evidence does not appear to me to represent a strong prosecution case, and that if the applicant does not receive a grant of bail, she will remain in custody for a very significant period in difficult circumstances.

40 That is not the end of the matter, of course, because the court must now consider whether the respondent has satisfied the court that there is an unacceptable risk that the applicant, if granted bail, may do a number of things which include commit further offences, or alternatively not appear at any later proceedings. They are the two most significant matters, and whether or not there is a risk to the general community.

41 So the court is obliged to have regard to those matters. It is, as is clear, the respondent's role and burden to establish that the applicant would amount to an unacceptable risk in those circumstances. In my opinion, having taken into account the surrounding circumstances as I must, and considering whether or not there are any bail conditions that may be imposed to mitigate that risk so that it is not unacceptable, I am of the opinion that the respondent has not satisfied me that the applicant is an unacceptable risk.

42 In making that decision, the court has noted the approach taken by the respondent to the application. Firstly, that it was open to the court to find that exceptional circumstances exist, and it seems to me that that issue has been left very much open to the court and there appears to me to be very little resistance to the proposition that the applicant is not an unacceptable risk to the community. In those circumstances, I am prepared to grant bail to the applicant on various conditions, which will be fairly strong conditions, taking into account that the prospect that she will reside with her sister in New South Wales.

43 I will, therefore, grant the applicant bail on her own undertaking, with a bail guarantee of $15,000, with the following special conditions:

1. She attend the Bendigo Magistrates' Court on 14 November 2024 and then surrender herself, and must not depart without the leave of the court and, if leave is given, return at the time specified by the court and again surrender herself into custody;
2. She reside at [redacted] in the State of New South Wales ('the premises');
3. She remain at the premises from 10:00pm to 6:00am ('the curfew hours'), unless:
   1. in the company of her sister; or
   2. for the purposes of giving birth; or
   3. seeking medical attention for herself or her child.
4. She present at the front door of the premises upon request by police during the curfew hours;
5. She report to Bankstown Police Station each Monday and Friday between the hours of 9:00am and 9:00pm, unless she is in labour or is receiving care in hospital. Additionally, she is excused from this reporting obligation for one month from the date of the birth of her child;
6. She notify the Informant as soon as practicable after going into labour;
7. She not contact any witnesses for the Prosecution except for the Informant;
8. She not contact or associate with any co‑accused, namely, Hoa Van Duong, Duc Anh Nguyen and Van Phuc Trieu, except for Son Ngoc Duong;
9. She not discuss matters concerning the allegations and evidence against her with Son Ngoc Duong;
10. She not leave the State of New South Wales, except to travel to Victoria for the purpose of attending court proceedings or engaging with her legal representatives. If there is proposed travel that would interfere with her reporting obligations, she must advise the Informant in advance;
11. She not attend any international points of departure except where there is a domestic terminal but for the purposes of travelling to Victoria to attend court proceedings or to engage with her legal representatives;
12. She not leave Australia;
13. She surrender any passport and travel documents held within 24 hours of release, and not apply for any other passport or travel document;
14. She provide to the Informant the name and date of birth of her child upon their birth;
15. She provide the Informant with her mobile number upon release and provide if require by the Informant access to her telephone by providing the appropriate IMEI number;
16. She is prohibited from signing and submitting and/or lodging any 'Request for Voluntary Removal Form', prior to the finalisation of the current criminal proceeding;
17. Where she makes a written request for voluntary removal from Australia, she notify the Office of Public Prosecutions of that request on the same day that it is made to Home Affairs;
18. She advise the Informant if she is notified of a cancellation of her Visa;
19. She appear for judicial monitoring at the Supreme Court of Victoria at 9:30am on a date and time to be fixed, via audio‑visual link, and any other further dates that the court appoints.

[1] I note that the applicant's face is not captured in this photograph.

[2] Bail Act 1977 (Vic) sch 1, item 6(c).

[3] Ibid, ss 4AA(1), 4A(1)-(2).

[4] Re Brown [2019] VSC 751 [65] (Lasry J).