Re Quach [2022] VSC 7 (20 January 2022)

2 At a filing hearing conducted at the Melbourne Magistrates' Court on 10 September 2021 the applicant did not apply for bail. He did so, however, when the matter returned to the Magistrates' Court for committal mention on 3 December 2021. A magistrate refused that application holding, first, that the applicant had failed to establish exceptional circumstances justifying the grant of bail; and, secondly, that the prosecution had satisfied the Court that there was an unacceptable risk that the applicant would fail to answer bail.

3 The applicant now seeks bail from this Court. Bail is opposed by the respondent. Given that cultivation of a narcotic plant in a quantity not less than a large commercial quantity, and trafficking not less than a large commercial quantity of cannabis, fall respectively within cl 6(c) and cl 6(a) of Schedule 1 of the Bail Act 1977 ('the Act'), bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[7]

4 In summary, the applicant relied on a combination of factors in an endeavour to establish that exceptional circumstances exist which justify the grant of bail. I will later set them out in more detail, but they include:

• the delay on remand until any trial of the matter, with the attached restrictions on work, education and recreation, resulting from the COVID-19 pandemic;

• the absence of previous convictions and other grants of bail;

• the difficulty in providing effective instructions due to the applicant's lack of English, and the difficulties in interpreting the brief of evidence into Vietnamese;

• the untested nature of the allegations made against the applicant (which are challenged);

• family support, a stable residence and the availability of employment; and

• parity considerations, given that an alleged co-offender, Van Luc Pham, has been granted bail.

5 Further, the applicant asserted that the material produced by the respondent could not satisfy the Court to the appropriate standard that the applicant presents an unacceptable risk that he will fail to appear on bail.

6 Opposing bail, the respondent contended that the applicant has failed to demonstrate the requisite exceptional circumstances. Additionally, the respondent submitted that there is an unacceptable risk that, if released on bail, the applicant would fail to surrender himself into custody in accordance with the conditions of bail.

7 Both the applicant and the respondent filed affidavits, the contents of which I have taken into account. In support of his case, the applicant relied, first, on an affidavit sworn by his legal practitioner, David Grace, on 16 December 2021; and, secondly, on an affidavit sworn by his putative surety, Thi Thu Thao Pham, on 19 December 2022, in which she deposed that: she married the applicant, who has applied for a Partner Visa to remain in Australia, on 22 January 2019; the marriage is not contrived; she has a successful business in Flinders Lane, Melbourne, selling Asian Tea products; she owns real estate in which she has 'equity of at least $100,000' which she is 'prepared to pledge as the amount of bail surety';[8] and she is 'aware of the responsibilities of a surety and will exercise those responsibilities' if the applicant is granted bail. The respondent relied on an affidavit sworn by Anthony Gerard Rooney, a legal practitioner from the Office of Public Prosecutions, which exhibits (among other things) a summary of the applicant's alleged offending prepared by the informant, Detective Senior Constable Matthew Poore, for the purposes of the bail application, and the Brief of Evidence. Detective Poore also gave oral evidence before me and was cross-examined by the applicant's counsel.

8 In my opinion, bail must be refused. The applicant has failed to satisfy me that exceptional circumstances exist that justify the grant of bail. Moreover, I am satisfied that there is an unacceptable risk that the applicant would, if released on bail, fail to surrender into custody in accordance with the conditions of bail.

9 Section 4AA(1) of the Act provides that the 'exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence'; and s 4A(1A) provides that this Court 'must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail'.

10 The Act does not define exceptional circumstances. Guidance may be derived, however, from what Beach JA observed in Re Sam:[9]

The Bail Act does not define what are exceptional circumstances. It is trite that, in order to be exceptional, the circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail, notwithstanding the very serious nature of the charge against her.[10] Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[11]

11 Beach JA also observed in Re Diab:[12]

It is well established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him. In Re Reker,[13] Beale J, citing Kaye J in DPP v Muhaidat,[14] referred to the question of exceptional circumstances in the following terms:[15]

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. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[16]

12 When considering whether to grant bail in a case such as the present, ss 4A and 4D of the Act require the Court as a first step to consider the exceptional circumstances test, and then, as a second step, move to the unacceptable risk test.

13 At each stage, the Court must take into account all the circumstances that are relevant to the matter, including the surrounding circumstances in s 3AAA of the Act. Further, the Court is required to interpret and apply the Act having regard to the matters set out in s 1B.

14 Section 3AAA of the Act sets out surrounding circumstances, so that (so far as relevant) the Court

must take into account all the circumstances that are relevant to the matter including, but not limited to, the following -

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c) the accused's criminal history;

(g) the accused's personal circumstances, associations, home environment and background;

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

15 Section 1B provides:

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

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

16 By virtue of s 4A(2) of the Act, the applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. If the Court is satisfied that the applicant has shown exceptional circumstances sufficient to grant bail, then the Court must turn to the unacceptable risk test, found in s 4E(1). That test requires the Court to refuse bail if the 'prosecutor' satisfies the Court[17] that there is an unacceptable risk that the applicant would, if released on bail:

(i) endanger the safety or welfare of any person; or

(ii) commit an offence while on bail; or

(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or

(iv) fail to surrender into custody in accordance with the conditions of bail.

17 As I have mentioned, in considering whether a relevant risk is unacceptable, s 4E(3) requires the Court once more to 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 an unacceptable risk.

18 Born on 2 January 1986, the applicant is not an Australian citizen. He is a Vietnamese national who first arrived in Australia in 2007, and apparently resided in this country as an unlawful non-citizen between 6 June 2012 and 20 February 2019. Presently, he holds a Bridging Visa C which was first granted on 21 February 2019 in association with a Partner Visa application. As I have mentioned, he married Thi Thu Thao Pham - with whom he resides together with Pham's six-year-old daughter - on 22 January 2019. She, as I have said, is prepared to pledge substantial real estate by way of surety. Police allege that her marriage to the applicant is a sham, although it is fair to say that cross-examination of Detective Poore revealed that the allegation that the marriage is contrived is based on nothing more than suspicion.

19 The prosecution alleges that the applicant is the leader of a cannabis cultivation syndicate and engaged in the business of trafficking cannabis between 21 August 2019 and 9 September 2021. It is alleged that the applicant was involved in all aspects of cannabis cultivation across the following five cannabis crop factories:

• 12 Glenbarry Road, Campbellfield (where 1219 Cannabis L plants were seized on 25 October 2020);

• 16 Macbeth Street, Braeside (where 811 Cannabis L plants were seized on 19 November 2020);

• 3 Shelley Court, Kilsyth (where 1007 Cannabis L plants were seized on 10 March 2021);

• 32 Brett Drive, Carrum Downs (where a partially dismantled, large hydroponic factory was located on 6 July 2021); and

• 8 Wise Avenue, Seaford (where 625 Cannabis L plants were seized on 6 July 2021).

20 It is alleged by the prosecution that the applicant:

• co-ordinated the selection and set-up of the factories;

• directed and facilitated the supply of materials and provided logistics for the cultivation of cannabis within the factories;

• personally paid the electricity bills for the cannabis crop factory at 32 Brett Drive, Carrum Downs using the bank account of an offshore Vietnamese national, who is believed to have been a crop sitter at 16 Macbeth Street, Braeside;

• controlled the false identity 'Khin Yee' which was used to rent a large number of Avis rental trucks which were driven by members of his syndicate to supply the five cannabis crop factories;

• utilised at least 14 mobile phone numbers between 1 January 2020 and 24 February 2021, all of which were connected using false details; and

• possessed multiple false bank cards and identification cards which police believe were used or intended for use in further offending.

21 Several alleged co-offenders have been charged - only one of whom has been granted bail - including:

• Van Luc Pham who is alleged to be a syndicate head (and is the only co-offender currently on bail);

• Luong Trong Tran, who is alleged to be a member of the applicant's 'outside crew'; and

• alleged crop-sitters Van Luong Mai, Huy Quoc Nguyen, Quoc Dung Pham and Van Tai Tran.

22 During a search of the applicant's premises on 9 September 2021, police located the following allegedly false identity documents:

• three Medicare cards in the names Thao T Ngo, Thanh Hai Dang and Thuy Ngoc T Le;[18]

• a Bank of Melbourne Visa card in the name Thanh Hai Dang; and

23 Further, the applicant has been employed by M H Nguyen at 'Easy Grow' hydroponics in Braybrook since July 2020. On 29 September 2020, police located a Westpac Handycard and a Medicare card in the name 'Khin Yee' in M H Nguyen's vehicle, which the applicant admitted to driving. The prosecution alleges that Khin Yee is a bogus identity utilised by the syndicate to rent vehicles from Avis Rental Trucks in order to deliver material to the cannabis crop factories. It is alleged that a 'burner' phone in the applicant's possession can be linked to the Khin Yee identity.

24 The applicant challenges the assertion that he is a syndicate leader. That assertion, the applicant submitted, appears to be based upon intercepted telephone communications between alleged co-offenders Van Luc Pham and Hung Viet Do, which, arguably, are inadmissible against the applicant, and, in any event, do not permit the inference that the prosecution seeks to draw. The applicant further submitted that many allegations by the prosecution are yet to be tested, including that it was the applicant who used or controlled the false identity of 'Khin Yee' (who, as I have indicated, was alleged to have rented a large number of Avis Rental Trucks which were driven by persons to transport equipment and supplies to the five cannabis crop factories the subject of the relevant charges). Further, so the applicant submitted, there is no evidence that he has ever visited any of the cannabis crops, and the only direct evidence that appears to link him to any of the crops is the CCTV footage of him allegedly paying monies into an account linked to a credit card used to pay expenses in respect of the syndicate operations. These payments, however, appear to have been made in relation to the Carrum Downs property at which no cannabis was found (although the prosecution asserts the property had contained a large hydroponic set up).

25 The applicant has had no prior grants of bail. He submitted that he wishes to return to live with his wife and her child, and to employment that he has available to him at the Tattslotto Shop where he was employed before his arrest. The applicant faces committal proceedings in June 2022. If bail is not granted, so it was submitted, it is unlikely that his trial will take place prior to 2024. This time will be spent on remand in circumstances in which, due to COVID-19 restrictions, there will be limited opportunity for education, work and recreation. If the applicant is required to spend two to three years on remand, this will represent a substantial proportion of any non-parole period that might be set if he were to be convicted of all of the charges he presently faces.

26 Moreover, the applicant submitted that the Brief of Evidence served on the applicant is in English. Substantial parts of that Brief will need to be translated into Vietnamese. Furthermore, a substantial part of the Brief has been provided in electronic form. The applicant has no access to a computer or to computer facilities on remand. In order to obtain instructions, the applicant's lawyers will need to have many conferences with him with the aid of an interpreter. So much is impossible to achieve within the prison system at the present time due to COVID-19 restrictions. Conferences can only be conducted over the telephone or by video link. Instructions (via an interpreter) are best obtained in person. Even with the use of an interpreter, the reference to documents, the viewing of electronic brief items during the course of a conference, time constraints for conferences due to prison requirements and other possible complications due to disruptions of video or audio links, all have an impact upon the process of obtaining instructions in preparation for committal and trial. This factor alone, the applicant submitted, is an exceptional circumstance justifying his release on bail.

27 Whilst seemingly acknowledging that he has been found in possession of false identity documents and has used mobile phone SIM cards through a 'burner' phone, the applicant submitted that the prosecution assertion of a desire on his part to leave Australia and not attend his trial has no evidentiary foundation. He also submitted that the respondent's assertion that his marriage is contrived is without evidentiary foundation.

28 Finally, the applicant points to the fact that Van Luc Pham, a co-offender alleged to be a syndicate head, has been granted bail.

29 In my opinion, none of the factors relied upon by the applicant - whether considered alone or in combination - amount to exceptional circumstances justifying the applicant's release on bail.

30 As best I am able to judge from the material before the Court, the prosecution's case against the applicant appears to be strong. Although the case presently is untested, there is evidence from which it might be inferred that the applicant performed a pivotal role in a criminal syndicate concerned with the cultivation of a large commercial quantity of cannabis at various sites. Thus, his possession of a 'burner' telephone employing 14 different SIM cards - he told police he used these different SIM cards to play computer games, even though no games were loaded onto the phone - appears to be important circumstantial evidence against him. Moreover, on the assumption that the prosecution ultimately will be capable of demonstrating that their representations concerning the applicant's role were made in the furtherance of a common purpose,[19] the representations made by his alleged co-offenders Van Luc Pham and Hung Viet Do also appear to be significantly probative of the applicant's guilt.

31 Quite clearly, the strength of the prosecution case will be better capable of assessment by the Magistrates' Court when the applicant's committal takes place a few months hence in June, when the question of bail can be revisited. But at this stage, the fact that the apparently strong prosecution case remains untested is far from exceptional. It can be said with a degree of certainty, however, that, if ultimately convicted of cultivating or trafficking a large commercial quantity of cannabis - whether by jury verdict or guilty plea - the applicant faces a substantial period of imprisonment of some years' duration.

32 As to the difficulties faced by the applicant in preparing his defence, it might readily be acknowledged that his legal advisers will face some impediment in seeking instructions, given the applicant's lack of English and the restrictions flowing from the current COVID-19 pandemic. Difficulty in obtaining instructions from a non-English speaking client is, however, far from unusual, and, despite restrictions imposed by the pandemic, instructions remain capable of being obtained via video-link or telephone. And although the applicant presently has no access to a computer in custody, that circumstance is also far from exceptional.[20]

33 Next, in the circumstances of this case, the availability of a substantial surety, and of gainful employment, do not amount to exceptional circumstances justifying the applicant's release on bail.

34 Furthermore, accepting that delay caused by the pandemic might in some circumstances establish exceptional circumstances,[21] there is nothing in the material presently before the Court that suggests that the applicant's case will be subject to inordinate delay as a result of the pandemic. I note in that regard that the extent of an delay will be better capable of assessment once the committal proceedings are concluded a few months hence. A delay of five months from this point to the committal - noting that the applicant has been in custody since September last year - cannot properly be characterised as exceptional.

35 Finally, with respect to parity - a matter upon which the applicant placed substantial reliance - the authorities establish that, in appropriate cases, parity may bear on the issue of exceptional circumstances.[22] In my view, however, parity cannot avail the applicant in the instant case. Unlike the applicant, Van Luc Pham - the co-offender who has been granted bail - is an Australian citizen with three school aged Australian-born children. Thus, Pham has substantial ties to the community in a way that the applicant does not. Of itself, that is sufficient to distinguish materially the applicant's and Pham's circumstances.

36 Even were I of the view that exceptional circumstances had been established, however, I would still refuse bail on the basis that the applicant poses an unacceptable risk that he would not answer bail if it were granted. As I have said, the applicant is not an Australian citizen, and does not have ties to the community of the same kind as Pham. More importantly, the evidence suggests that the applicant has access to - and has previously used to further his criminal purposes - false identification documents and at least one 'burner' telephone. Even accepting the present difficulties in obtaining egress from the country presented by the pandemic, so much persuades me that there is an unacceptable risk that the applicant might use similar articles to avoid answering bail.

37 For these reasons, the application for bail is refused.

[1] His date of birth is 2 January 1986.

[2] Drugs, Poisons and Controlled Substances Act 1981, s 72.

[3] Drugs, Poisons and Controlled Substances Act 1981, s 71(1).

[4] Crimes Act 1958, s 74.

[5] Crimes Act 1958, s 192B.

[6] Crimes Act 1958, s 192C.

[7] Section 4A of the Act.

[8] In oral submissions, the applicant's counsel submitted that Ms Pham was prepared to pledge a greater sum.

[9] Re Sam [2017] VSC 91, [22] (citations as in original).

[10] Re John McDonald [2010] VSC 217 [10] (Kaye J, as his Honour then was).

[12] Re Diab [2020] VSC 196; (2020) 282 A Crim R 462, [36] (citations as in original) ('Re Diab').

[13] Re Reker [2019] VSC 81.

[14] Re Muhaidat [2004] VSC 17.

[15] Re Reker [2019] VSC 81 at [39].

[16] Re Muhaidat [2004] VSC 17 at [13]-[14].

[18] In the course of cross-examination, Detective Poore gave evidence that he has not yet received formal confirmation from Medicare that the cards are false.

[19] See Evidence Act 2008, s 87(1)(c). See also Lindsey (a pseudonym) v The Queen [2021] VSCA 230.

[20] I note that the applicant does not have an enforceable right to have access to a computer in custody which exists independently to his right to a fair trial. See Rich v Secretary to the Department of Justice [2007] VSC 405; Knight v Hastings [2010] VSC 99.

[21] Re Diab. See also Re Ashton (2020) 283 A Crim R 1 (Elliott J).

[22] Bchinnati v DPP (No 2) [2017] VSC 620, [69]-[70] (Croucher J); Re K M Nguyen [2019] VSC 698, [40] (Almond J); Re Tiba (No 2) [2021] VSC 716 (Lasry J).