Re Nicholls [2020] VSC 189 (21 April 2020)

1 David Nicholls ('the applicant'), has been in custody since 26 February 2020. On that day, following the execution of search warrants at his home and business premises, the applicant was arrested and charged with multiple indictable charges, including trafficking in a large quantity of a drug of dependence (with respect to three drugs), unlawfully possessing two firearms, dealing with proceeds of crime and refusing to comply with directions to provide information and/or assistance to allow police to access devices seized at his premises.[1]

2 On 7 April 2020, the applicant filed an application for bail in this Court. He has previously been refused bail in the Magistrates' Court on 31 March 2020. On that occasion, bail was refused on the basis that the applicant failed to show exceptional circumstances and was found to be an unacceptable risk of committing an offence while on bail and endangering the safety or welfare of any person.

3 It is common ground that I must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail. That is because the applicant is accused of committing numerous Schedule 1 offences under the Bail Act 1977 ('the Act'), including trafficking in not less than a large commercial quantity of a drug of dependence.[2]

4 In addition to two affidavits filed in support of the application,[3] and two affidavits filed in opposition,[4] the applicant, Senior Constable Lauren Plumbee, and Mr Paul McDonnell (senior counsellor at Refocus Alcohol and Drug Rehabilitation) gave viva voce evidence.

5 On multiple occasions between 20 December 2019 and 11 February 2020, police conducted surveillance on the applicant in the vicinity of his residential and business premises, in North Fitzroy and Northcote respectively. During the surveillance period, the applicant was observed attending both premises, often alone, but sometimes in the company of a young child believed to be his son. The circumstances leading to the applicant being under surveillance are unclear on the material before me.

6 At approximately 10:35am on 26 February 2020, the applicant was intercepted by police after leaving his residential premises in Fitzroy North. At the time, he was found to be in possession of two iPhones, a small amount of cocaine and $3,825.60 in cash.

7 At 10:43am, a search warrant was executed at the applicant's residential premises which located the following:

(a) 4,350 alprazolam tablets (weighing 2 grams each), stored between 87 separate bottles;

(b) 86 grams of cocaine, stored between seven zip-lock bags;

(c) 16 grams of methylamphetamine, stored between two zip-lock bags;

(d) a set of scales with drug residue;

(e) one loaded firearm with the serial number filed off (being stored incorrectly in a kitchen cupboard);

(f) one magazine containing five rounds of ammunition;

(g) $67,135 in cash;

(h) two mobile phones; and

(i) an Apple MacBook.

8 The applicant was directed under s 465AAA(2) of the Crimes Act 1958 to provide passwords for the seized electronic devices, but refused to do so.

9 At approximately 1:42pm, a search warrant was executed at the applicant's business premises in Northcote which located, inter alia, the following:

(a) approximately 14.65 kilograms of ecstasy, stored between numerous zip-lock bags;

(b) approximately 3.4 kilograms of cocaine, stored between numerous zip-lock bags;

(c) approximately 2 kilograms of methylamphetamine, stored between numerous zip-lock bags;

(d) approximately 20 grams of cannabis, stored between three zip-lock bags;

(e) two sets of scales (one with drug residue);

(f) one semi-automatic firearm;

(g) 10 boxes of ammunition; and

(h) $114,260 in cash.

10 The applicant was arrested and made a 'no comment' record of interview. All drug items, packaging, firearms and ammunition are awaiting forensic and biological analysis respectively.

11 The applicant is a 43 year-old man. He is the youngest of four siblings, each of whom suffer from a range of serious mental health issues. This led to a strained home life for the applicant growing up, which was compounded by his trauma of being sexually abused during adolescence and witnessing his brother stab a friend in the context of psychosis. From the age of 13, the applicant became addicted to substances, particularly heroin, and was in trouble with the law and expelled from multiple schools.

12 Following treatment for depression symptoms, trauma and substance use, the applicant ultimately ceased using illicit substances by the age of 24 and thereafter sustained a period of stability up until his late-thirties. During this period of stability, the applicant was involved in two long-term relationships. He has an eight-year old son from the latter of those relationships, however, that relationship broke down approximately three years ago. The applicant's son suffers from a congenital heart condition.

13 The applicant's mental state deteriorated following his most recent separation, which is said to have been exacerbated by mounting financial pressures and the loss of two friends, to suicide and drugs respectively. Against this background, the applicant is said to have relapsed into substance use. At the time of his remand, the applicant was using Xanax (amount unspecified), 2-3 grams of cocaine and 3-4 grams of methamphetamine daily.

14 The applicant's criminal history is somewhat historic, with his most recent conviction occurring in the Magistrates' Court almost 20 years ago. However, for the sake of completeness, I note that his criminal history includes offences related to possession of weapons, dishonesty, public drunkenness, drug use, attempted possession of drugs, criminal damage, breaches of court orders and failures to comply with court orders (including breaches of community based orders ('CBOs'), failing to comply with CBOs, and failing to answer bail).

15 Section 4AA(1) of the Act sets out that the 'exceptional circumstances test' applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence. As indicated, the applicant is accused of numerous Schedule 1 offences, and accordingly bears the onus of satisfying myself that exceptional circumstances exist that justify the grant of bail.[5] I must refuse bail unless so satisfied,[6] having regard to the guiding principles in s 1B and taking into account surrounding circumstances prescribed in s 3AAA.[7]

16 The meaning of exceptional circumstances is not defined in the Act, although has been explored at length in this Court. In drawing on well-established authorities in the matter of Re Brown,[8] Lasry J summarised the relevant principles as follows:

• 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.[9]
• Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.[10]
• Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[11]

17 If satisfied that exceptional circumstances exist, the 'unacceptable risk test' must be applied.[12] In determining unacceptable risk, I must again take into account 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.[13] The prosecutor bears the onus of satisfying myself that a risk under s 4E(1)(a) exists, and further that that risk is an unacceptable risk.[14]

18 In support of the application for bail, a combination of background facts and circumstances are relied upon to constitute exceptional circumstances. Those matters may be summarised as follows:

(a) the applicant has chronic asthma and is therefore said to be particularly vulnerable to serious health implications if exposed to COVID-19 in the prison system. This submission was in three parts:

(i) firstly, it was submitted by counsel for the applicant, and conceded by the respondent, that the risk of COVID-19 spreading is greater in prison due to the prison population's (at times) extended and unavoidable proximity to one another in the prison system;

(ii) secondly, it was submitted that this risk is taken a step further for the applicant, who has an underlying respiratory condition. The applicant gave helpful viva voce evidence regarding what he perceived to be the practical limitations to social distancing in a custodial setting and the anxiety he experienced regarding the looming threat of COVID-19 entering the prison system and the consequent ramifications on his health. This unchallenged evidence confirmed that the quarantining of new prisoners was not implemented until 28 March 2020. As such, his cell-mates up until that date had not been quarantined for 14 days before entering the mainstream prison population;

(iii) thirdly, it was submitted that the increased risk of COVID-19 spreading in prison, in conjunction with the applicant's underlying asthma condition, makes the applicant's time in prison more onerous. This was said to be compounded with him adapting to increased restrictions around 'out-of-cell' time, fitness, rehabilitation, education, employment and contact visits, all of which have been curtailed in the face of the pandemic. Further, he has been sharing a cell with cell-mates who have not undergone a 14-day quarantine. It was the applicant's evidence that this situation is starting to weigh on his mental health.

(b) the applicant has been assessed as suitable for a 12-week residential rehabilitation program with Refocus Alcohol and Drug Rehabilitation Program ('Refocus Residential Program'), which is a fully supervised facility that hosts up to nine other patients. If the applicant were to successfully complete this program, he would have the option to continue treatment through a 'step-down' program at a separate residence.

As to the Refocus Residential Program, I heard from Paul McDonnell, Senior Counsellor at Refocus. He gave evidence about clients being restricted from leaving the premises for the first 28 days, and thereafter, having a limited ability to leave, other than to go to the supermarket or for exercise. Relatedly, he said that if bail conditions were imposed such that the applicant could only leave with a staff member, Refocus could facilitate that. In respect of reporting breaches of bail, Mr McDonnell said that any evidence that a client was breaching bail conditions would be reported to the informant and that personally, he had reported breaches of bail to informants numerous times, both at Refocus and his previous workplace.

Mr McDonnell also explained that clients are banned from electronic devices for the first 28 days of treatment, and if a bail condition were imposed restricting the applicant from any electronic devices past that period, Refocus would be able to enforce that condition. I was also provided with a rigorous weekly program timetable which showed that, with the exception of three occasions, activities are scheduled between 8am and 11:30pm every day of the week to ensure that time is not unaccounted for. Besides that, Mr McDonnell said that there are therapy programs available for the applicant in relapse prevention, trauma, anger management, fear management, conflict resolution, relationship dependency, individual and group therapy, and communication skills, which are aimed at addressing the issues and behaviours underlying the applicant's addiction. Mr McDonnell gave evidence that residents in the program are able to stay for longer than 12 weeks.

Further, Mr McDonnell also explained the measures put in place to avoid contact with and the spread of COVID-19 within the Refocus Residential Program. This included strict adherence to social distancing, a 'no touching' policy, only having two staff members on the premises during the day, programs and therapy being conducted remotely, ensuring empty seats between clients in group therapy sessions, all residents being screened prior to admission, and each resident having their own room.

(c) the applicant is strongly supported by his elderly parents. The applicant's parents are willing to financially support the applicant and fund his residential rehabilitation if bail is granted. The applicant's parents are also willing to offer their family home as a surety. That home is currently valued at more than $3.5 million, with an existing mortgage of approximately $1 million;

(d) the applicant's difficult background, including complex family dynamics, sexual abuse, drug addiction, psychological instability and the death of two friends in tragic circumstances, are also relied upon as contributing to exceptional circumstances;

(e) the excessive delay in this matter due to the impacts of COVID-19 on committal hearings and jury trials. In the submissions before me, counsel relied upon recent advice published by the County and Magistrates' Courts to contend that there would be additional delays in this matter of at least 10 months. This was said to be on top of what is considered to be a 'normal' delay of between 18 and 24 months, meaning that the applicant could potentially spend up to three years on remand. On that premise, it was put to me that the delay in this matter should, in and of itself, be considered an exceptional circumstance; and

(f) it was submitted that the applicant's criminal history is historic and of little relevance.

19 In respect of unacceptable risk, the applicant notes that the informant's only expressed concern at the previous bail application was that the applicant would traffick drugs to support his lifestyle if granted bail. It was submitted that this would in turn endanger the safety and welfare of the public. In circumstances where the applicant would be fully supervised at a residential rehabilitation facility if bail were to be granted, it is submitted that this risk can be effectively ameliorated.

20 Additionally, counsel for the applicant submitted that the considerations with respect to COVID-19 and its consequential impacts on the applicant, such as the delay in his case proceeding to trial and his particular vulnerability in prison due to his chronic asthma condition, are also relevant to the surrounding circumstances when determining unacceptable risk, such that risks previously considered unacceptable can now be made acceptable with bail conditions.

21 The application for bail is opposed. It was submitted that the applicant has failed to show exceptional circumstances and is an unacceptable risk of endangering the safety and welfare of any person and committing an offence while on bail.

22 In support of this, the respondent relies on the applicant having access to firearms, as is clear from the unregistered and loaded firearms found at his home and place of business. In addition, the respondent submits that the applicant presently has no means to support his drug-addiction or lifestyle, and is therefore at risk of recommencing his criminal activity.

23 The respondent also points to the serious nature of the applicant's alleged offending and his involvement in a large scale drug trafficking enterprise, together with his concession that the case against him is strong, to oppose bail. The applicant has conceded that, if convicted, he faces a significant term of imprisonment.

24 The respondent provides through Ms Hosking's affidavit some detail with respect to the arrangements that are currently in place within Corrections to both prevent and deal with a scenario in which COVID-19 were to pervade the prison system.[15] This includes suspension of contact visits, the establishment of protective quarantine units, medical assessment and 14-day quarantining for all new prisoners (irrespective of their screening risk), and reduced 'out of cell time' for prisoners. In addition, the respondent notes that prisoners are able to be transferred to hospital by ambulance where required, including to hospitals with intensive care beds and ventilators as necessary. As at 14 April 2020, there had been no confirmed cases of COVID-19 in the Victorian prison system. The respondent concedes that new prisoners have not been quarantined until 28 March 2020.

25 In response to the applicant's submission that COVID-19 will result in a delay for the applicant's case proceeding to trial, the respondent submits that the extent of any delay is speculative. Furthermore, it is submitted that the case against the applicant is a 'simple one' and not reliant on complex forensic analysis typically applied in cases of drug trafficking, meaning that any contested committal and/or trial against the applicant is likely to be short.

26 The respondent also submitted that the applicant's place in a residential rehabilitation program, if offered bail, is not exceptional given the applicant's alleged offending seems to be motivated by financial reasons beyond fuelling his drug addiction.

27 As to unacceptable risk, counsel for the respondent submitted that the applicant has contacts and associates in the community who have ready access to drugs and firearms. Counsel also referred to the applicant's history of possessing regulated weapons (in 1995 and 1998) and his alleged attendance at his properties with his child where drugs and weapons were present. Counsel also noted the applicant's potential for relapse into drug use given the additional stress of COVID-19. It was submitted that these matters in combination amounted to an unacceptable risk such that could not be adequately addressed by bail conditions.

28 In this case, a consideration of the matters required to be taken into account when looking at the surrounding circumstances of the case reveals the substantial hurdles facing the applicant in establishing exceptional circumstances.[16]

29 The applicant is charged with very serious offending.

30 The applicant has a criminal history from 20 years ago, including prior convictions for drug and dishonesty offences. The applicant has a single prior for failing to answer bail from 1998 and prior convictions for failing to comply with community-based orders on 10 November 1998, 22 April 1999 and 21 July 2000. I consider that the applicant's previous criminal history is, for the purpose of this application, historic.

31 It was conceded by the applicant that should he be sentenced for the charges, he is faced with the prospect of a lengthy jail term. Life imprisonment is the maximum penalty for each of the three most serious drug trafficking charges against the applicant, with a standard sentence of 16 years. In addition, to his drug trafficking charges, the applicant is charged with serious firearms offences and other offending.

32 When considering the relevance and force of any submission relying on the impact of COVID-19, it should not be thought that the current heath crisis facing our community will, in every case, be a matter which will lead to a conclusion of the existence of exceptional circumstances, or that it will necessarily lead to a grant of bail. The extent to which COVID-19 may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.[17] I adopt Justice Tinney's comments in Re Tong that whilst the impact of COVID- 19 is unheard of in our community in living experience, it is 'simply part of the surrounding circumstances required to be taken into account in a consideration of both steps in the 2 step bail process currently undertaken'.[18]

33 In relation to delay, I accept there may be a delay of 24 months or more in the applicant's case being determined. The delays in criminal matters being heard and determined have been exacerbated due to the COVID-19 crisis. The respondent's submission that this case is relatively simple and that a committal hearing or trial is likely to be of a short duration, fails to address the fact that there will be extra delay than is already experienced in this matter being listed for a committal hearing in the Magistrates' Court or trial in the County Court.

34 Importantly, the applicant's submission that the delays engendered by COVID-19 will result, practically, in every prisoner who is facing contested committals and trials demonstrating circumstances out of the ordinary, is not without merit. It is evident that the pandemic has changed the way the court operates and, on a broader level, has impacted nearly every facet of daily life. Despite the fact that civil trials and criminal applications are being heard remotely which impacts all litigants before the court, and similarly, social distancing restrictions apply to all members of the public, it cannot be said that these changes are 'ordinary' or 'normal', especially in light of their temporary nature. Therefore, it is no answer to the applicant's submission to state that merely because the additional and lengthy delays as a consequence of COVID-19 impact 'essentially every prisoner in Victoria', that this renders what is extraordinary, to be normal.

35 However, the better view, as I have said, is that extra delay resulting from COVID-19, does not, of itself, clear the threshold of exceptional circumstances in every case. Such a finding would be contrary to the wording of the Act_._ Under ss 4A(3) and 4E(3), the Court is to have regard to the 'surrounding circumstances'.[19] Nothing in the Act_,_ not even the express considerations set out in ss 3A (Aboriginality) or 3B (child status) create a presumption of exceptional circumstances being satisfied, much less prescribe an automatic clearing of that threshold. Any extra delay is, consequently, just another factor I must have regard to when determining whether the applicant in this case, given the surrounding circumstances, demonstrates exceptional circumstances.

36 The applicant relies on the current COVID-19 crisis and the particular risk it poses to him while in prison due to his chronic asthma. I have already referred to his prison medical record and his viva voce evidence, both of which detail his asthma condition and the treatment that he is currently receiving for it.

37 It was conceded by the respondent that people in prison are likely to be more vulnerable to the COVID-19 outbreak than the general population, due to the confined conditions in which they live together for prolonged periods of time.[20] While there is no residential setting which is risk-free of COVID-19, I accept that there is a significantly lower risk of the applicant contracting COVID-19 in the Refocus Residential Program compared to prison.

38 It was also conceded by the respondent that the plaintiff's chronic asthma renders him more vulnerable due to the increased risk of him becoming seriously ill if he becomes infected by the virus. Finally, it was conceded by the respondent that COVID-19 has had an impact on the applicant and all prisoners in relation to their access to employment, rehabilitation programs, time outdoors, and activities out of their cells. The applicant's evidence described the increased time in his cell and the inability to practise social distancing. I accept the applicant's evidence that COVID-19 has created living conditions in prison which cause him stress due to his concerns about contracting COVID-19 in light of his chronic asthma.

39 I consider the impacts of COVID-19 as submitted by the applicant to be factors to take into account when determining whether exceptional circumstances exist. I do not consider the extra delay caused by COVID-19, in and of itself, establishes exceptional circumstances. This is particularly so, given the prospect of a significant term of imprisonment if convicted.

40 I consider the applicant's personal circumstances particularly relevant to this application. The applicant is 43 years old. The applicant has an eight year old son who suffers from a congenital heart condition who lives in Melbourne with his mother. Prior to the applicant's arrest, he shared custody of his son on a 50:50 basis.

41 The fact that the applicant has strong family ties to the jurisdiction including that his elderly parents are prepared to risk their family home if he breaches bail, supports the low risk of the applicant being a flight risk.

42 I have had the benefit of reading the report of Mathew Staios, clinical neuropsychologist dated 30 March 2020. Mr Staios interviewed the applicant on 28 March 2020.[21] The applicant reported a substance use problem dating back to 13 years of age which escalated throughout his adolescence, such that between 17 to 24 years of age he was using heroin intravenously. The applicant reports that he ceased all use of substances between the ages of 24 to 39 years of age, with the assistance of drug counselling and other self-help groups.

43 The applicant has been assessed and accepted in to the Refocus Residential Program. I accept that if the applicant is able to attend the Refocus Residential Program, it would provide him with the necessary treatment and support to commence addressing his substance problem which appears to have been, as is often the case, a significant cause for his offending. The applicant has demonstrated in the past the ability to abstain from drug use and maintain a drug-free and crime-free life for a sustained period.

44 Critically, as the Court of Appeal said in Robinson v The Queen,[22] the potential benefit of an intensive residential program (in this case, the Refocus Residential Program) outweighs anything which would be available to the applicant if he remains in custody. This is particularly so given the suspension of rehabilitation programs in prison due to COVID-19.

45 I consider the applicant's proposed treatment in a residential treatment facility to be a powerful factor on this application. This is particularly so when considered in the framework of Mr Staios' clinical opinion that the alleged offending occurred in the context of drug relapse. I note that, prior to this, the applicant had sustained an impressive 15 year period of recovery against the odds of a number of troubling background circumstances that led him to addiction as a young adolescent. Furthermore, based on the evidence of Mr McDonnell, the Refocus Residential Program is very intensive, with the program able to be tailored to accommodate bail conditions that I will impose, resulting in clear and rigorous supervision of the applicant through his daily activities, his access to electronic devices, his ability to leave the premises and his compliance with bail conditions.

46 In his report, Mr Staios observes that the applicant has previously been able to adhere to societal norms when afforded appropriate supports. Mr Staios opines that, had the applicant been accessing professional supports to manage his psychological vulnerabilities at the time of relapse, it is possible that he may have refrained from the behaviours that led to his current remand.

47 For these reasons, I find the availability of a rigorous residential rehabilitation program to be a particularly forceful factor in the circumstances of this case.

48 With considerable hesitation, I consider the applicant has just made it over the hurdle of exceptional circumstances.

49 In relation to the question of unacceptable risk, I consider the 12-week Refocus Residential Program significantly ameliorates a risk which clearly exists of the applicant reoffending to satisfy his drug problem. To this end, I adopt what the Court of Appeal said in the matter of Robinson v The Queen,[23] and in particular "to be in the residential program would, of itself, substantially mitigate risk; and, secondly, the treatment itself would be likely to promote his recovery from addiction and further reduce risk."[24]

50 There is also the surety offered by his parents.

51 I will grant bail for the next 12 weeks with stringent conditions and will reassess the appropriate conditions at the conclusion of the 12-week treatment program at Refocus.

52 Accordingly, I will order that DAVID LOUIS NICHOLLS be admitted to bail on his own undertaking with one surety in the amount of $1,500,000 (one million, five hundred thousand dollars), and on the following special conditions:

(a) He attend the Melbourne Magistrates' Court on 21 May 2020 and then surrender himself, 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 himself into custody.

(b) On being admitted to bail, he immediately attend at the Refocus Alcohol & Drug Rehabilitation Programs ('Refocus Programs'), 15 Waterloo Crescent, St Kilda in Victoria and admit himself into the Residential Rehabilitation Program for twelve weeks, from 21 April 2020 to 20 July 2020, and not change that address without the leave of the Court. The applicant is to be accompanied and transported to Refocus Programs at 15 Waterloo Crescent, St Kilda by a solicitor from Garde-Wilson lawyers or a staff member of Refocus Programs. In the course of transporting the applicant to Refocus Programs, the applicant is permitted to stop only at 17 John Street, Kew in Victoria to collect the applicant's medication (Ventolin and Breo Ellipta) and personal belongings.

(c) He remain at those premises for the duration of bail except in the company of a staff member from Refocus Programs.

(d) He comply with all lawful directions of Refocus Programs, including:

(i) Undertaking all treatment as directed by Refocus Programs;

(ii) Attending all appointments as directed by Refocus Programs; and

(iii) Providing any sample required by Refocus Programs for alcohol and other drug testing.

(e) He abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.

(f) He not contact, directly or indirectly, any witness for the prosecution, except the informant.

(g) He not leave the State of Victoria.

(h) He surrender any passport and any other travel documents he may have to the informant by 27 April 2020 of being released on bail, and not apply for another passport or any other travel documents.

(i) He not attend any points of international departure.

(j) He not possess or use a mobile phone or landline phone except under the direct supervision of a staff member of Refocus Programs until 20 July 2020, and provide the number of any landline and/or mobile phone to be used by him to the informant.

(k) He reappear before this Court for judicial monitoring to review his compliance with this order at 9:30am on Monday 6 July 2020, and any further dates this Court appoints during the course of this order.

[1] Unsworn affidavit of Monique Schwartz in opposition to an application for bail, dated 9 April 2020 [4].

[2] Bail Act 1977 sch 1, item 6(a) ('Bail Act').

[3] Affidavit of Zarah Garde-Wilson in support of an application for bail, affirmed 7 April 2020; Second affidavit of Zarah Garde-Wilson in support of an application for bail, affirmed 15 April 2020.

[4] Unsworn affidavit of Monique Schwartz in opposition to an application for bail, dated 9 April 2020; Unsworn affidavit of Jennifer Ann Hosking, dated 14 April 2020.

[5] Bail Act s 4A(2).

[6] Ibid s 4A(1A).

[7] Ibid s 4A(3).

[8] [2019] VSC 751 [65]-[66].

[9] Re Sam [2017] VSC 91 [22].

[10] Armstrong v The Queen [2013] VSC 111, citing Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990); see also Re Whiteside [1999] VSC 413.

[12] Bail Act s 4D(1)(a).

[13] Ibid s 4E(3).

[14] Ibid s 4E(2).

[15] Unsworn affidavit of Jennifer Ann Hosking, dated 14 April 2020.

[16] Bail Act ss 3AAA, 4A(3).

[17] Brown v The Queen [2020] VSCA 60 [48].

[18] [2020] VSC 141 [33].

[19] Bail Act ss 4A(3), 4E(3).

[20] Unsworn affidavit of Monique Schwartz in opposition to an application for bail, dated 9 April 2020, Exhibit MSC-2.

[21] Affidavit of Zarah Garde-Wilson in support of an application for bail, affirmed 7 April 2020, Exhibit ZGW 4.

[22] [2015] VSCA 161 [50].

[23] [2015] VSCA 161 (Maxwell P, Redlich and Priest JJA) [49]-[51].