Re Saad [2025] VSC 764 (5 December 2025)

1 The applicant applied for bail on charges including twelve charges of cultivating a commercial quantity of cannabis ('commercial cultivation')[1], nine charges of cultivating cannabis ('simpliciter cultivation'), and two charges of trafficking cannabis.

2 Commercial cultivation is an offence contained within Schedule 1 of the Bail Act 1977 ('the Act'), which meant that the exceptional circumstances test applied to the application. Therefore, I was required to refuse bail unless the applicant satisfied me that exceptional circumstances existed that justified the grant of bail.

3 Having heard the application, I was not so satisfied. I therefore refused the application for bail, stating that I would publish my reasons for that decision at a future time. What follows are my reasons.

4 The alleged offending occurred in 2024 and 2025. The applicant was arrested and remanded in custody on 23 October 2025.

5 A bail application proceeded on 24 October 2025 in the Melbourne Magistrates' Court. On 28 October 2025, Mr Halse, Magistrate, refused bail on the basis that exceptional circumstances had not been established, and that there was an unacceptable risk that if released on bail, the applicant would endanger the safety or welfare of any person, and/or fail to surrender into custody in accordance with his bail.

6 The matter is next listed for a committal mention at Melbourne Magistrates' Court on 2 April 2026.

7 The applicant is a qualified 'A Grade' electrician. It is alleged against him that he had a proven connection with each of the 21 addresses relevant to the commercial and simpliciter cultivation charges, as evidenced by mobile telephone tower data, surveillance evidence, tracking device data, CityLink data, call charge records, telephone intercept product, and other evidence. On the prosecution case, the applicant was responsible for installing an electrical bypass at each of the premises. Upon the execution of search warrants at each of the premises between July 2024 and October 2025, cannabis crops were found growing within each of the premises, with the installed electrical bypasses in operation, enabling the use of electricity to support the growing of the cannabis crops without it being registered on the meter. At a number of the addresses, there were in place Certificates of Electrical Safety signed by the applicant in respect of electrical works carried out at the premises. The certificates did not refer to the electrical bypasses.

8 The specific charge laid in respect of each of the properties was determined by the size of the crop seized. In cases where the crop exceeded the commercial quantity specified in Part 2 of Schedule 11 to the Drugs Act, the offence was charged as commercial cultivation. Otherwise, it was charged as simpliciter cultivation.

9 The charges of trafficking concerned specific transactions in which it is alleged the applicant sold quantities of cannabis to covert police operatives.

10 It was indicated in the material that the police intend to charge the applicant with a number of charges of obtaining a financial advantage by deception ('OFAD') in respect of the theft of electricity at the crop houses.[2]

11 On the prosecution case, it is alleged that at the time the applicant installed the electrical bypasses in the houses later found to have been used for the cultivation of cannabis, he did so in the knowledge that the houses would be so used, and for the purpose of assisting in that. The case against him is put on the basis of statutory complicity, pursuant to s 323(1) of the Crimes Act 1958.[3]

12 The prosecution relied on a body of material showing the applicant's complicity in the cultivation of cannabis. This included statements he made to covert police operatives on 5 August 2025, when it is alleged he stated he:

a. was a bypass expert and could assist with setting up crop houses;

b. worked for a group of Albanians and showed them how not to get caught;

e. offered for sale to the covert operatives an electronic device which prevents electrical inspectors from detecting the presence of a bypass.

13 In the informant's report, exhibited to the affidavit in opposition to bail, it was stated that investigators believe that the debts of the applicant amount to some $80,000. Information in the hands of the police indicated that several of the debts were owed to organised crime groups. It was stated that investigators have no way of establishing the magnitude of the debts or whether they will be paid by the son of the applicant, as proposed during the hearing.

14 In the informant's report, it was further stated that lawfully intercepted information indicated that the applicant was in an intimate relationship with a female, called 'Female M' in the material, during the period of the alleged offending. In communications between the two on 26 March 2025, it is alleged that the applicant told Female M that he had had a fight with his wife, and that he was going to kill her. In subsequent communications in April 2025, the applicant allegedly spoke in very negative terms about his wife.

15 A number of co-offenders have been charged with some of the offending alleged against the applicant. The co-offenders and their dispositions thus far were outlined in the informant's report. A number have been released on bail, or have already been sentenced.

16 The applicant is 59 years old, and was born in Lebanon, before arriving in Australia in 1974 at the age of 8. He became an Australian citizen in 1978. He married his wife Zenna in 1990, and before his arrest, he was living with her and his youngest daughter, Mariam, at 50 Tassell Street, Hadfield. The family have lived there for 20 years. The applicant and Zenna have four other children, two daughters and two sons. He has ten grandchildren.

17 After completing Year 12 at Brunswick High School, the applicant commenced an electrical apprenticeship, which he completed 1984. He was qualified as an A grade electrician in 2012. He operated an electrical contracting business from 1989 until his arrest on the current charges. The applicant has four brothers and two sons who are all qualified electricians.

18 The applicant has strong family support, as evidenced by his wife, two of his sons and one of his daughters being present in Court during the application. He has family and other ties to the jurisdiction, and does not hold a Lebanese passport.

19 He suffers from chronic obstructive pulmonary disease for which he is required to take daily medication.

20 The applicant has a gambling addiction, having commenced gambling at Crown Casino in 1995. His gambling has impacted on his life in many ways since that time. He gambled at both legal and illegal venues, and accrued substantial debts by the time of his incarceration, said to be of the order of $80,000.

21 The applicant has a modest criminal history commencing with a traffic matter in 1999 for which he received a suspended sentence, and comprising convictions for obtaining property by deception in 2003, and further traffic matters in 2009.

22 In setting out the guiding principles of the Act, s 1B relevantly provides:

(1AA) The Parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.

(1) The Parliament also recognises the importance of -

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

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

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

23 It is the intention of the legislature that the Act be applied and interpreted having regard to the matters set out above.[4]

24 Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist which justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[5] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[6] including, but not limited to, those prescribed in s 3AAA(1) of the Act.

25 If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D of the Act.[7] The respondent bears the onus of satisfying the Court 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. In my assessment of the question of unacceptable risk, I am again required to consider the surrounding circumstances,[8] including, but not limited to, those prescribed in s 3AAA(1), and to consider whether there are any conditions of bail that may be imposed to mitigate the risk, so that the risk is not an unacceptable one. [9]

26 The phrase 'exceptional circumstances' is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[10] 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. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[11]

27 It is plain from the cases that the threshold of exceptional circumstances is high, but not impossible to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[12]

28 The informant Detective Senior Constable Aaron Bird ('DSC Bird') gave sworn evidence before me. His evidence was largely based on the contents of the remand summary, also referred to as the 'preliminary brief statement made by the informant', as it appears in the affidavit in support, and the informant's report exhibited to the affidavit in response. DSC Bird confirmed the total amount of cannabis that has so far been seized as a result of the executed search warrants, being 933 plants, weighing 951.33 kilograms. He also gave evidence that, based on text messages and phone calls, the police obtained the knowledge that the applicant had been attending illegal gambling venues while not in custody, understood to be 'cafes'. DSC Bird outlined the circumstances surrounding the current family violence intervention order ('FVIO') in place until 2060, in respect of which the protected family members are Zenna Saad, wife of the applicant, and their five adult children. He indicated that, pending the outcome of the application before the Court, the police seek to vary the existing FVIO. The reason for this would be to prevent the applicant from returning to the family home, in light of various comments made by the applicant during phone calls with 'Female M', with whom he is alleged to have maintained a clandestine relationship. DSC Bird also indicated the possibility of further charges being laid, including for threats to kill made by the applicant. The informant was cross-examined in some detail by Dr Alexander for the applicant, particularly on the topic of the FVIO matter. Dr Alexander questioned the basis for this proposal, particularly in the absence of any consultation with the applicant's family. DSC Bird was asked to clarify how the prosecution's case is framed, including the nature of the cultivation charges. In doing so, he indicated that the prosecution case is built on complicity, explaining that the accused is alleged to have actively facilitated the establishment of crop houses for multiple organised crime groups. He referred to statements made by the accused to covert operatives, in which the applicant described himself as a 'bypass expert'. He stated that the actions of the applicant show that he had done much more than electrical work in connection with the crop houses.

29 Waleed Saad, the applicant's son, gave evidence before me under affirmation. He gave evidence on the topic of the state of the Saad family, as well as their relationship with Female M and the extent of their knowledge of the applicant's dealings with her. Mr Saad also gave evidence regarding the identity of Female M, revealing her name to the Court, and also indicating that she is known to him. He gave evidence in respect of the FVIO and his family's wishes regarding this. Mr Saad was at pains to indicate that angry outbursts by his father are common place, he has a longstanding history of losing his temper, and has '...been saying he wants to leave (us) for the last 20 years'. Mr Saad gave further evidence of his father's gambling issues which he stated have spanned the course of the applicant's 'whole life'. Mr Saad provided clarification on the applicant's gambling debts, indicating that they total an amount of approximately $80,000.

30 Dr Alexander, in his written and oral submissions, relied on a combination of matters in proof of the existence exceptional circumstances. The matters were as follows:

a) Triable issues in the prosecution case. Whilst acknowledging the strength of the prosecution case on the trafficking and OFAD charges, Dr Alexander submitted that the evidence is lacking in proof of any direct involvement of the applicant with the cultivation of cannabis as a primary offender. As for the complicity basis relied upon, the prosecution would have difficulty establishing the requisite elements. Dr Alexander submitted that there would be triable issues on the most serious charges, and the case should not be seen as strong, although he stopped short of describing the prosecution case as a weak one.

b) Likely sentence upon conviction. Dr Alexander submitted, following on from his submissions as to the existence of triable issues in respect of the cultivation charges, that upon conviction on the trafficking charges, and perhaps one or several of the cultivation charges, a sentence of the order six to 12 months may be passed, which would be outweighed by the likely time on remand. He acknowledged that if found guilty of all charges, a long term of imprisonment would be the result.

c) Delay. There would be a delay of at least 18 months and potentially significantly longer in the resolution of the contested charges. That period may very well exceed any sentence of imprisonment the applicant would receive. The delay should be viewed as being inordinate.

d) Family support, ties to jurisdiction and residence. Dr Alexander relied upon the substantial support of the applicant from his wife and family, and the existence of a stable residence. In that regard, in response to the police indication of their intention to seek a modification of the current FVIO to prevent the applicant residing at his family home, Dr Alexander proposed an alternative bail address for the applicant in a property owned by his son Waleed in Pascoe Vale.

e) Surety/bail guarantee. A bail guarantee of $1,000,000 was offered, to be put up jointly by Zenna and the applicant's son, Zakkaria. The bulk of the sum would be secured by Zenna's interest in the family home. Dr Alexander challenged the prosecution contention that in the circumstances of the seemingly poor regard by the applicant for his family, a bail guarantee even in that substantial sum would not amount to much guarantee of the compliance of the applicant with bail. He relied upon the evidence of Waleed as to the normal conduct of the applicant, and the closeness of the family.

f) Criminal/Bail history. The applicant's very limited criminal history and lack of any history of breach of bail was noted.

29 Dr Alexander emphasised that the allegations of family violence arose in the context of a long and volatile relationship between the applicant and his wife. He urged me to pay full regard to the evidence of Waleed given during the application.

30 Dealing with the issue of risk of further offending, Dr Alexander submitted the concerns about that were based largely on the applicant's long-standing gambling addiction, and resulting debt. The risk was more illusory than real, he submitted. The applicant's debts could be adequately addressed by Waleed. The applicant would be willing to undergo treatment for his gambling addiction. As for the risk of his engaging in ongoing electrical work, the applicant would be willing, as a condition of bail, to forego that employment.

31 In respect of the asserted risk of failing to answer bail, Dr Alexander emphasised the applicant's close ties to his family and the jurisdiction. Any concerns based on statements made by the applicant to Female M are based on shaky ground, in light of the applicant's tendency to make statements of intent which are not correct. His dual citizenship does not create an automatic risk of flight. His life has been based in Australia for many decades. His relationship with his wife and children is strong. He does not hold a Lebanese passport. The debts which would be said to motivate him to flee can be adequately addressed.

32 Dr Alexander proposed a suite of bail conditions which, he submitted, would ameliorate and risk posed by the applicant to a reasonable level.

33 Mr Pathmaraj, for the respondent, relied on written and oral submissions in opposition to a grant of bail.

34 He commenced by emphasising the seriousness of the alleged offending. The applicant is alleged to be complicit in no fewer than 21 separate crop houses across the suburbs of Melbourne. His alleged role was far from minor. The installation of bypasses was an important means by which the cultivators sought to avoid detection by the authorities. In installing the bypasses, the applicant provided critical assistance in the maintenance of the unlawful enterprises.

35 Further aggravating the seriousness of the offending was its brazen and persistent nature. Despite being aware of search warrants having been executed at properties, the applicant continued to install bypasses in further properties. He was not deterred from continuing criminality even by his knowledge of the risk of detection. He allegedly assisted with the installation of bypasses in premises from June 2023 until late-September 2025.

36 The amount cultivated by virtue of the number of cannabis plants constituted nine times the commercial quantity, only just short of the large commercial quantity threshold. On any objective measure, the applicant was involved in a sophisticated and large-scale operation, it was submitted.

37 Turning to the strength of the prosecution case, Mr Pathmaraj made it clear that the case would likely be based on the principles of statutory complicity. The installation of the bypasses was an essential component of the operation of cannabis crop houses of the type seen here. The critical question would be whether the prosecution could prove that the applicant knew the houses were to be used for cannabis cultivation. Mr Pathmaraj submitted that, when considered in its totality, including the proven actions of the applicant in installing all the bypasses, the admissions he made to covert operatives on 5 August 2025, and the conclusions which could be reached by a jury considering the connection of the applicant with all of the crop houses, not just looking at each house individually, the prosecution case should be seen as a compelling one.

38 In respect of the comparison between the likely time on remand awaiting trial and the sentence likely to be imposed if the applicant is found guilty of the charges he faces, Mr Pathmaraj submitted that a period of delay of the order of 18 months is not inordinate. On the other hand, if found guilty of all or a reasonable number of the commercial cultivation charges, a very significant term of imprisonment would be the only realistic outcome. Such a term would substantially outweigh the time likely to be spent on remand awaiting trial.

39 Turning to the substantial bail guarantee offered by the applicant's family members, Mr Pathmaraj questioned its efficacy in achieving the desired outcome of a bail guarantee, in light of considerations including the troubled relationship between the applicant and his wife, the statements he made to Female M, and the existence of that relationship. He submitted that, in the circumstances, notwithstanding the best intentions of Zenna and the applicant's family, the Court could not be satisfied that the applicant would be sufficiently motivated to ensure that the bail guarantors would not risk losing their respective guarantees.

40 In respect of unacceptable risk, Mr Pathmaraj advanced the contention that, in circumstances where the applicant's long-standing gambling addiction appears to have fuelled his offending in this case, and has led to substantial gambling debts, there would be a strong incentive for the applicant to continue to offend to support his addiction and repay debts. As for the quantum of those debts, there would be no reason to accept the applicant's account, the accuracy of which is unverifiable.

41 Furthermore, there was an absence of any evidence of the applicant having received treatment for his gambling addiction. His addiction is entrenched, and it is unrealistic to suppose, it was contended, that his short period in custody thus far would have sufficiently addressed his problem.

42 Mr Pathmaraj submitted that the Court could be satisfied that the applicant posed an unacceptable risk of committing further offences on bail, which would themselves endanger the community. No conditions of bail could reduce that risk to an acceptable level.

43 As to the risk of the applicant failing to surrender into custody in accordance with bail, this was relied upon very much as a subsidiary risk. What was pointed to was the knowledge the applicant now has as to the strength of the case against him, and the likelihood of a very lengthy sentence of imprisonment being imposed if he is found guilty, in addition to the strained relationship the applicant has with his family, and the existence of dual citizenship. These matters in combination, it was submitted, would provide a strong motivation for the applicant to flee the jurisdiction.

44 The second of the matters contained in the non-exhaustive list of circumstances set out in s 3AAA(1) of the Act, required to be taken into account, is the nature and seriousness of the alleged offending, including whether it is a serious example of the offence. In this case, the alleged offending is of a high order of seriousness. The applicant is alleged to have played a critical part in the operation of no fewer than 21 crop houses, in 11 of which a commercial quantity of cannabis was allegedly cultivated. Commercial cultivation has a maximum penalty of 25 years' imprisonment. The offending alleged against the applicant was brazen and persistent, resulting in a very large number of plants, and substantial weight of cannabis, being cultivated. Seemingly undeterred by the investigative actions of the police, and the risk of apprehension, the allegedly criminal conduct of the applicant continued over a period spanning two years.

45 Turning to the next circumstance in the list set out in s 3AAA(1), not to suggest these matters need necessarily to be considered in sequence, the strength of the prosecution case will always be an important consideration in the case of offending as serious as that alleged here. This case is at an early stage, and it is not appropriate for a judge in my position to reach definitive, detailed conclusions about the strength of a prosecution case. Having said that, there seemed to be no real challenge to the contention that the prosecution will be able to establish the connection between the crop houses and the applicant, that he installed electrical bypasses in them, and that cannabis crops were grown in the houses. In the affidavit in support, much time was spent developing the argument that because the applicant's direct involvement in the houses was said to be his carrying out of electrical work by the installation of bypasses, and that conduct would not fit within the description of cultivation as contemplated by the Drugs Act and the authorities, the prosecution case was deficient. Unsurprisingly, that contention was not really persisted in by Dr Alexander. He acknowledged that the prosecution case would be based largely on the principles of statutory complicity, but still maintained that the prosecution would have difficulty establishing the necessary state of knowledge in the applicant. The prosecution, on the other hand, maintained that the case will be a compelling one.

46 Bearing in mind the evidence outlined in the materials before me, it was difficult to see the problems confronting the prosecution case as outlined by Dr Alexander, and understandable that Mr Pathmaraj characterised the prosecution case as he did. The combination of the proven conduct of the applicant in connection with the crop houses, and the admissions he apparently made to undercover operatives, would dictate that it would be difficult to view the prosecution case as anything less than strong.

47 As for the likely sentence upon conviction, and the relationship between that and the expected period on remand, I did not accept the somewhat optimistic submissions advanced by Dr Alexander. If the applicant were to be convicted of the charges which he currently faces, or a reasonable number of them, then a substantial term of imprisonment would be inevitable, and certainly not one measured in months. Without taking away from the significance of a person being required to spend a lengthy period of time on remand, as would clearly be the case here, especially someone who has not been in custody before, the time the applicant would spend on remand before these charges are resolved, assuming they go to trial, would be substantially outweighed by the likely term of imprisonment.

48 There were other matters relied upon by the applicant which lent support to his application. His limited criminal history and lack of any adverse bail history were to his credit, although there was some force in the prosecution's contention that the fact that his offending allegedly continued even after he was aware that search warrants had been executed on homes in which he had already installed electrical bypasses may be cause for concern as to his willingness to abide by strict conditions of bail.

49 As for the applicant's family support and availability of a residential address, that was all available to him during the period of his offending. By evidence led through Waleed, and through the submissions of Dr Alexander, the applicant challenged the concerning picture painted in the respondent's material as to the status and stability of the applicant's marriage and family relationships. Nevertheless, there remained the appearance of a problematic situation should the applicant be released on bail, and be required to live with his son, away from his wife, subject to an FVIO prohibiting contact with her. In light of the proposed condition that he surrender his electrician licence pending the outcome of the charges, the applicant would be unable to engage in what has been his sole employment for many years, living away from his wife and family home. That would be a far from optimal situation.

50 Also far from optimal would be a bail guarantee largely extended by his wife, who, as I said, is one of the protected family members under the FVIO which is currently in place, and will, if the police achieve their aim, be modified to prohibit the applicant from living with her. Zenna's capacity to effectively act as the 'eyes and ears' of the Court would be substantially impaired in the circumstances. Furthermore, the apparent difficulties between the applicant and his wife, and the very negative things he has apparently said about her and his family, may have the effect of reducing the extent his behaviour might be constrained by his concern about being the cause of the bail guarantee being forfeited.

51 Having considered all of the surrounding circumstances of this case, I was far from satisfied that the applicant had discharged the onus resting on him of proving the existence of exceptional circumstances which justified the grant of bail.

52 For that reason, I refused the application for bail.

53 For completeness, I note that had I been satisfied of the existence of exceptional circumstances, there was material before the Court which may have led me to the view that the applicant, if released on bail, would pose an unacceptable risk of committing further offences on bail. In the circumstances, it is unnecessary to state a concluded view on that matter.

54 For the above reasons, the application for bail was refused.

[1] Drugs, Poisons and Controlled Substances Act 1981 ('Drugs Act') s 72A.

[2] The informant indicated, while giving sworn evidence, that he believes that a theft of electricity charge no longer exists and for this reason the police intend to rely on OFAD, though he did not provide further explanation regarding the justification for this: Bail Application transcript ('Transcript') 15.

[3] Crimes Act 1958 (Vic) s 323(1) ('Crimes Act').

[10] [2004] VSC 17.

[11] Ibid [13]-[14] as cited in Re Reker [2019] VSC 81 [39] (Beale J); see also Re Sipser [2019] VSC 362 [43] (Beach JA).

[12] See, for example, Re Brown [2019] VSC 751 (Lasry J).