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[2021] VSC 207
Supreme Court of Victoria
2021-04-27
INCERTI J
Original judgment source is linked above.
CRIMINAL LAW - Application for Bail - Applicant charged with Schedule 1 offences - Requirement to show exceptional circumstances that justify the grant of bail - Whether exceptional circumstances shown - Whether unacceptable risk - Exceptional circumstances shown - No unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
1 Warren Shea ('the applicant') is one of three co-accused charged following a joint investigation into the importation of TFA-methamphetamine[1] from Hong Kong on 4 August 2020, and the subsequent discovery of a clandestine laboratory at a rural property in Darraweit Guim on 3 September 2020. He faces three charges arising from the investigation, as follows:
2 The applicant and co-accused, Joshua Seal and Peter Siaoloa, have each been remanded in custody since 3 September 2020. The applicant was refused bail in the Melbourne Magistrates' Court on 8 February 2021. Neither co-accused have applied for bail.
3 By notice filed on 7 April 2021, the applicant seeks a grant of bail in this Court.
4 Between 7 July and 2 September 2020, Joshua Seal allegedly collected building materials and various chemicals, equipment and glassware for the purposes of converting a large shed at a property located at 1088 Bolinda-Darraweit Road, Darraweit Guim into a clandestine laboratory.
5 On 7 July 2020, the applicant travelled from the Gold Coast to Melbourne and commenced residing with Seal at the Darraweit Guim property.
6 On 4 August 2020, Australian Border Force ('ABF') officers detected 95.58 kilograms of pure TFA-methamphetamine inside a consignment of four blue steel drums imported into Australia from Hong Kong. The Australian Federal Police ('AFP') seized the consignment and a joint taskforce commenced an investigation into the importation. It is the prosecution case that Seal organised the importation through a contact in Hong Kong.
7 On 27 August 2020, the shipping company handling the cargo sent instructions for the consignment to be delivered to 'Michael Rajab' at an address in Sunshine West. The AFP determined that the phone number provided for 'Michael Rajab' belonged to Peter Siaoloa and began lawfully intercepting his phone calls and text messages. On 2 September 2020, a call was placed to that number to organise delivery. AFP officers took apart and reconstructed the consignment with a substance replicating the TFA-methamphetamine. Seal and Siaoloa exchanged a number of text messages and phone calls after this time in which the pair discussed the delivery.
8 On the morning of 3 September 2020, two undercover AFP officers delivered the substituted consignment to Unit 11, 94 Boundary Road, Sunshine West. Siaoloa was present at the address to receive the delivery. He unpacked the consignment and placed the four blue drums in the back of his car before driving in convoy with Seal towards Bolinda. The pair parked on McIntyre Lane, Bolinda, where Seal was observed to take possession of one of the blue drums. The pair then parted ways, and Seal's car was observed to travel to the property at 1088 Bolinda-Darraweit Road, Darraweit Guim, where the applicant was waiting for Seal.
9 Police attended the Darraweit Guim property at 4:45pm where they located and arrested the applicant and Seal. Inside a large shed on the property, police located the single blue consignment drum along with chemicals, glassware and equipment consistent with a sophisticated clandestine laboratory. The drum was open and its contents had been emptied. It is the prosecution case that the applicant and Seal were in the process of attempting to manufacture illicit drugs with the contents of the drum at the time of their arrest.
10 After leaving Bolinda, Siaolo was observed to travel to an address in Preston where he weighed the contents of the three drums in his possession. He was arrested at his Hadfield residence at approximately 6:42pm.
11 All three accused provided largely 'no comment' records of interview, although the applicant confirmed that he had been residing at the Darraweit Guim property since his arrival in Victoria on 7 July 2020. All three were charged with attempting to possess a commercial quantity of a border-controlled drug and remanded in custody.
12 Forensic examination of items seized from the Darraweit Guim property located the applicant's fingerprints on two separating funnels found in the shed.
13 Police returned to the property on 22 October 2020 and observed that the shed had been renovated. The owner of the property informed investigators that two Samsung mobile phones were found hidden inside a wall cavity during work on the shed. The phones were provided to police and both were found to contain SIM cards commonly used in 'Ciphr' phones, which utilise encryption to facilitate covert communications. Analysis of the phones revealed movements consistent with that of the applicant and Seal.
14 On 21 December 2020, the applicant was charged with possessing chemicals and equipment for trafficking in a drug of dependence, and on 19 March 2021, a further and final charge of attempting to manufacture a commercial quantity of a controlled drug was filed against him.
15 Additional charges were also laid against the co-accused. Seal faces identical charges to the applicant, together with a charge of possessing a false document, while Siaoloa has been charged with attempting to possess a commercial quantity of a border-controlled drug and failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth).
16 A number of evidentiary materials remain outstanding in this matter, including a final report on the clandestine laboratory, a drug valuation statement, and further evidence relating to the two phones found inside the wall cavity of the Darraweit Guim property shed.
17 The matter is next listed for committal mention in the Melbourne Magistrates' Court on 27 May 2021.
18 The applicant relied on the affidavit of Sarah Tricarico sworn 7 April 2021 and the viva voce evidence of:
(a) the affidavit of Marc Coghill sworn 21 April 2021;
(b) the affidavit of Bruce Giles sworn 22 April 2021;
(c) the unsworn affidavit of Jennifer Hoskings dated 26 April 2021;
(d) viva voce evidence of Marc Coghill given on 26 April 2021; and
(e) viva voce evidence of Bruce Giles given on 26 April 2021.
20 The applicant is 49 years old. He was born and raised in Melbourne but moved to the Gold Coast at the age of 23. He left school in year 9 and thereafter held employment in various fields including retail and telemarketing.
21 The applicant has three children to his ex-wife aged between 15 and 22. He was largely responsible for their care prior to the dissolution of his marriage, in the context of his ex-wife's struggles with substance use and health issues. All three children currently reside interstate, however, the applicant continues to maintain contact with them in custody via phone and Zoom.
22 The applicant has been in a relationship with his current partner, Linda Nieuwland, since 2011. The couple have a son, James, who is 9 years old. Ms Nieuwland and their son currently reside with Ms Nieuwland's mother, Valerie Markby, in Doreen.
23 The applicant has a criminal history in both Victoria and Queensland which includes convictions for trafficking in a drug of dependence, negligently dealing with the proceeds of crime and refusing to answer questions before an Australian Crime Commission Examiner. He has findings of guilt without conviction recorded for failing to answer bail in 1993 and possessing a dangerous drug in 2000.
24 As the applicant is accused of committing Schedule 1 offences within the meaning of Bail Act 1977 ('the Act'),[5] it is common ground that the Court must refuse him bail unless satisfied that exceptional circumstances exist which justify the grant of bail.[6] The burden of satisfying the Court as to the existence of exceptional circumstances rests with the applicant.[7]
26 In order to reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant 'must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail',[9] notwithstanding the very serious nature of the charge.[10] Exceptional circumstances may be established by reason of a single exceptional circumstance, or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[11]
27 If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, s 4D(1)(a) of the Act requires the Court to apply the 'unacceptable risk test'. That is, bail must be refused if the Court is satisfied by the respondent that there is an unacceptable risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act.[12]
29 Finally, when interpreting and applying the Act, the Court is required to have regard to the guiding principles set out in s 1B.[15] This includes maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty.[16]
30 The applicant relies on a combination of factors to demonstrate the existence of exceptional circumstances.
(a) Seriousness of the alleged offending - the applicant concedes that the alleged offending is serious, but not the most serious example in circumstances where the allegations against him are limited to the alleged activities at the Darraweit Guim property where he was arrested.
(b) Strength of the prosecution case - while conceding that there is strong circumstantial evidence relating to his presence at the Darraweit Guim property on 3 September 2020, the applicant submits that there is no evidence that he had any involvement in the importation of TFA-methamphetamine or the conversion of the shed at the property into a clandestine laboratory. While the applicant accepts that his fingerprints were located on two items found within the shed, he contends that the circumstances in which they came to be on those materials is a matter for a jury to determine. He submits that there are triable issues concerning his involvement and knowledge of any unlawful activities alleged to have taken place at the Darraweit Guim property on and before 3 September 2020, and also in relation to the seizure of a mobile phone allegedly owned by the applicant at the property sometime after his arrest and remand.
(c) Criminal history and compliance with earlier grants of bail - the applicant contends that his criminal history is limited. He has only one previous finding of guilt for failing to answer bail in 1993, despite having been granted bail multiple times. This includes in 2013, when he was granted bail in this Court with a $1,000,000 surety in relation to a historical murder charge. The applicant complied with all conditions of bail in that matter, including daily reporting and static residence with his partner and son in Doreen, until he was eventually acquitted at trial. The applicant contends that his positive bail history demonstrates his capacity to comply with conditions of bail.
(d) Stable accommodation and strong ties to the jurisdiction - if granted bail, the applicant proposes to reside with his partner, Ms Nieuwland, their son, James, and his partner's mother, Valerie Markby, at Ms Markby's residence at 27 Kiora Avenue, Doreen. He contends that his partner and youngest son residing in Melbourne represent strong ties to the jurisdiction.
(e) Surety - Ms Markby is prepared to offer a surety of $625,000 by way of equity in her home at 27 Kiora Avenue, Doreen. The residence represents Ms Markby's only substantial asset.
(f) Family hardship - the applicant's partner has a number of health issues, including a deteriorating spinal condition and injury that required surgery in November 2020. She experiences daily discomfort from inflammation and post-operative pain in her lower back and right leg, and is prescribed a number of pain and other medications. Ms Nieuwland finds daily activities such as cooking, cleaning, driving and caring for James challenging. She relocated from Queensland after her surgery so that her elderly mother, Ms Markby, could care for her and James. Ms Nieuwland has been admitted to hospital on a number of occasions in that time, leaving Ms Markby to care for James for days at a time. This experience has been difficult for Ms Markby, who would welcome the applicant's support in caring for Ms Nieuwland and James in the event he is granted bail.
It is further noted that James has been diagnosed with attention deficit hyperactivity disorder and struggles with learning difficulties. The applicant and Ms Nieuwland have elected not to tell James that the applicant is in custody out of concern that he would not cope well with the news.
(g) Availability of employment - the applicant has full-time employment available undertaking warehouse and delivery work with 'WH Amad', a commercial bed linen company, located in Coburg.
(h) Delay - the applicant has been on remand since 3 September 2020. The matter has not progressed beyond the committal mention stage due to ongoing disclosure by the prosecution. If bail is refused, the applicant anticipates that he may be held on remand for two-and-a-half to three years owing to current listing delays in the County Court. If he is to face a joint trial with his co-accused, the applicant expects these delays to extend further and the length of trial itself to increase.[17] The applicant submits that such delay is inordinate, particularly in circumstances where the case against him is defendable.
(i) Likely sentence - the maximum sentences for the charges the applicant faces range from 10 years to life imprisonment. If found guilty, the applicant concedes that he will most likely receive a term of imprisonment and non-parole period in excess of any time that he may spend on remand.
(j) COVID-19 and onerous conditions of custody - the applicant submits that his time on remand has been rendered more onerous by COVID-19 restrictions, which have included a strict quarantine period following his arrest, suspension of personal visits, limited access to educational and rehabilitative programs, restrictions on liberty of movement, and restricted means of communication with his legal team.
(k) Availability of electronic monitoring - if granted bail, the applicant proposes to have his location electronically monitored via a GPS device administered by Attenti Australia Pty Ltd ('Attenti'), a private company. Laura Windsor of Attenti deposes that if bailed with a condition imposing electronic monitoring, a GPS device would be fitted to the applicant by an Attenti technician, either before or after his release from custody.[18] In the event the applicant breaches conditions of his bail, for instance by travelling into an excluded geographical area, or should Attenti receive an alert regarding the battery or strap status of the GPS device, Attenti's monitoring centre will notify a nominated police officer of the breach within 20 seconds, in addition to a secondary contact and the closest police station, if required.[19] Attenti has confirmed that its service has full coverage in the areas of Coburg and Doreen where the applicant proposes to work and reside. The applicant would be required to self-fund this service, which costs $25,000 (excluding GST) for 12 months.
31 The applicant submits that stringent conditions of bail are available to mitigate any risk that his release on bail may pose.
32 The respondent opposes bail on the basis that the applicant has not demonstrated exceptional circumstances justifying the grant of bail. In written submissions prepared for the purposes of the present application, counsel for the respondent submits that the applicant's personal circumstances, neither individually nor collectively, can be regarded as exceptional, particularly in light of the very serious charges and lengthy sentence he faces.
33 In the event the Court is satisfied that exceptional circumstances exist, the respondent also opposes bail on the basis of an unacceptable risk that the applicant would commit an offence while on bail, interfere with a witness or otherwise obstruct the course of justice in any matter, and fail to surrender into custody in accordance with the conditions of bail.
34 With respect to the seriousness of the alleged offending, the respondent notes that the quantity of TFA-methamphetamine the subject of the head charge is 23.5 kilograms, that amount being more than 31 times the commercial quantity of methamphetamine prescribed by the Criminal Code Regulations 2019 (Cth). The respondent submits that this amount of TFA-methamphetamine has a conservative street value of approximately five million dollars, and that the clandestine laboratory located at the Darraweit Guim property was capable of producing large quantities of drugs of dependence, including methamphetamine.
35 The respondent submits that the case against the applicant is strong having regard to the totality of evidence against him, including:
(a) surveillance footage depicting the applicant opening the gate of the Darraweit Guim property for Seal when he arrived in possession of one of the blue consignment drums prior to their arrest on 3 September 2020;
(b) the applicant's fingerprints found on two separating funnels inside the shed;
(c) proof that the applicant was residing at the Darraweit Guim property for approximately two months prior to his arrest, which includes his personal belongings having been found in a bedroom of the property, messages from Seal's phone which are said to refer to the applicant travelling from the Gold Coast to Melbourne, and location data on a seized phone alleged to belong to the applicant, which is consistent with his residence at the property;
(d) communications from Seal's phone in which he states that he will use 'w's phone to send pictures of 'the completed room', said to be references to using the applicant's phone to transit photographs of the clandestine laboratory, together with multiple messages and notes on Seal's phone regarding the consignment and intended manufacture of drugs at the Darraweit Guim property;
(e) thousands of images from an SD card located in the shed depicting the applicant and Seal inside the shed on multiple dates between 25 August and 3 September 2020; and
(f) the location of the substituted drug material from the consignment on a number of beakers and other laboratory equipment inside the shed, said to evidence the applicant and Seal's attempts to manufacture drugs of dependence prior to their arrest.
36 With regard to delays in the disclosure of evidence, the respondent anticipates that the majority of outstanding evidence will be filed and served by 13 May 2021. In its written submissions, the respondent contends that additional delay caused by COVID-19 is not in itself exceptional,[20] and must be considered in light of the significant term of imprisonment the applicant faces if convicted. The respondent further submits that the impact of COVID-19 on the applicant's time in custody should be accorded little, if any, weight owing to the present easing of restrictions in Victorian prisons. [21]
37 In response to the proposed electronic monitoring of the applicant by Attenti, the respondent notes that such monitoring requires a designated police officer to respond to any alert regarding a breach of bail conditions or status of the GPS device. The respondent states that the AFP lacks dedicated resourcing to monitor individuals on bail by responding to such alerts. The respondent strongly opposes the use of electronic monitoring - particularly where administered by a private company - and does not consider it capable of sufficiently mitigating the risks posed by the applicant if released on bail.
38 Bruce Giles, Assistant Commissioner of the AFP, deposes to further perceived limitations of the electronic monitoring services provided by Attenti.[22] In particular, Mr Giles states that Attenti does not 'live monitor' its devices or physically attend to alerts to determine their cause, but instead relies on its systems to send an alert to the designated police officer for action. In this way, Mr Giles contends that the service offered by Attenti does not prevent an accused person from absconding on bail, but simply provides information surrounding when this may have occurred after the fact.
39 Mr Giles further advises that the AFP has previous experience with electronic monitoring services provided by Attenti in other Commonwealth prosecutions. In one such matter, an individual on bail and subject to Attenti monitoring in New South Wales was able to abscond in May 2018 and his whereabouts remain unknown. In another matter, an AFP designated police officer received multiple alerts for 'tracker strap tamper' after an Attenti device was fitted to an individual on bail, with no location information provided to accompany the tamper alert. Thereafter, the designated police officer reported almost daily interruptions to the service through loss of GPS signal, making it difficult to monitor the location of the individual on bail.
40 With respect to the hardship that may be experienced by the applicant's family by his ongoing remand, the respondent submits that such impact, whilst regrettable, is plainly not exceptional.[23] Further, matters such as the availability of employment, surety and stable accommodation are submitted to be insufficient to meet the high hurdle of exceptional circumstances.
41 In support of its position as to unacceptable risk, the respondent holds concerns that the applicant may:
(a) commit an offence while on bail - it is submitted that the applicant may use encrypted devices to contact members of an organised crime syndicate;
(b) interfere with a witness or otherwise obstruct the course of justice in any matter - the respondent contends that there is a risk the applicant may attempt to contact witnesses who were present when his alleged mobile phone was located in a wall cavity at the Darraweit Guim property; and
(c) fail to surrender into custody in accordance with the conditions of bail - the respondent contends that the applicant may fail to answer bail, having regard to his alleged association with organised crime figures, and the serious indictable offences he faces which carry maximum penalties of life imprisonment. The respondent further submits that the applicant's ties to the jurisdiction are superficial, in that his partner and child relocated to Victoria from Queensland because of his current remand.
The respondent submits that no conditions of bail are able to sufficiently mitigate these risks.
42 The first question to be determined is whether the applicant has established that there are exceptional circumstances that justify a grant of bail.
43 The board principle is that exceptional circumstances can be established by one factor, of itself, or by a combination of factors that may not be exceptional in themselves but together amount to exceptional circumstances.[24] Bearing this in mind, I will deal with the relevant surrounding circumstances from s 3AAA of the Act.
44 The applicant concedes that the alleged offending is serious. The maximum penalties with which the applicant has been charged are very substantial.
45 The strength of the prosecution's case was in contention during the hearing of this application and is a consideration in circumstances where the evidence is yet to be tested at a committal proceeding.
46 The applicant concedes that there is strong circumstantial evidence relating to his presence at the Darraweit Guim property on 3 September 2020, however, that there is no evidence that he had any involvement in more serious matters including importation of TFA-methamphetamine or the conversion of a shed at the property into a clandestine laboratory.
47 The respondent has outlined the circumstantial evidence relied upon and submits that the case is a strong one. I consider there is a case to answer.
48 I am required to take the prosecution's case at its highest on the evidence as it currently stands. While the evidence in this case is circumstantial, it does not mean that the case is without strength. I am satisfied that the case against the applicant is not a weak case, however there are triable issues.
49 Additionally, any sentence imposed if the applicant is found guilty would be in excess of the remand period served by the applicant and I agree with the respondent that any sentence will most likely involve a term of imprisonment of double figures with a non-parole period.
50 A surety of $625,000 is offered by Ms Markby by way of equity in her home. The property represents Ms Markby's only substantial asset. Ms Markby has known the applicant for over 10 years from his relationship with her daughter and he is the father of Ms Markby's grandson. The property is also where the applicant would reside if granted bail with his son, Ms Nieuwland and Ms Markby.
51 Ms Markby detailed in her evidence the severity of her daughter's medical conditions and the need for assistance to care for her and her grandson James. While Ms Markby's viva voce evidence suggested that some of the difficulties in terms of receiving treatment for her daughter had been addressed, there was no evidence that the demands placed on Ms Markby or have lessened or that there has been any significant change to Ms Nieuwland's prognosis. James is nine years old and has been recently diagnosed with ADHD and has experienced difficulty at school connected to his recent diagnosis. The applicant's family has experienced very difficult circumstances and it would be of significant benefit if the applicant were able to provide assistance to Ms Markby caring for Ms Nieuwland and James.
52 Having heard Ms Markby's evidence, I am satisfied that she is aware and understands her obligations of being a surety and that should she become aware that the applicant, if bailed, was not complying with his bail conditions, she would contact the informant immediately.
53 I consider the surety is not insignificant and that Ms Markby is at risk of losing her only asset, which is also the place of residence for her unwell daughter and her young grandchild. These factors provide strong incentive for the applicant to honour his bail.
54 The availability of this surety is a significant factor in the assessment of all matters to be weighed in combination in this case to determine if exceptional circumstances justifying bail have been established.
55 Next, I note that the applicant has a criminal history which is not insignificant but is only in part relevant. However, the applicant has a better than reasonable bail history having only one previous finding of guilt for failing to answer bail in 1993. I consider his positive bail history supports his capacity to comply with conditions of bail.
56 Exhibited to the Salter affidavit is a letter from Paul Amad, the director of WH Amad. Mr Amad has known the applicant for over six years and is prepared to offer him full-time employment doing factory work at his company WH Amad. Mr Amad is aware of the charges against the applicant. Mr Amad said in evidence that he would contact the solicitor if the applicant did anything unlawful or behaved antisocially and that he would terminate his employment in such circumstances.
57 I now turn to the question of delay. It seems common ground between the parties that were I to refuse bail, the pre-sentence detention that the applicant would have accrued by the time of his trial will be a period of approximately two and a half to three years. It is not possible to predict precisely how much delay will be experienced but I agree that given what has occurred to date, the back log in County Court and the fact that there are three accused on trial, the delay will be significant and no less than two and-a-half years and probably more.
58 In my view, despite the gravity of the alleged offending and sentence likely to be imposed if the applicant were convicted, it is strongly arguable that a two and a half year delay, let alone three year delay, is one that, in and of itself, amounts to exceptional circumstances justifying bail. As Lasry J said in Re Jiang,[25] 'a period of pre-trial custody of three years will demonstrate exceptional circumstances in almost every case'.[26]
59 Counsel on behalf of the respondent submitted that a delay of two and a half years as a result of the COVID-19 pandemic, while long, may now be considered the usual circumstances of delay for trial at the County Court and as such this length of delay is not necessarily exceptional. I reject this analysis for a number of reasons. The current delays in all courts, but relevantly to this case, the Magistrates' Court and County Court, are not a new normal but due to an acute event never before seen in the world caused by the COVID-19 pandemic. There is no reason to think that with time, the delays the courts are currently experiencing will persist. The current delays are likely to be temporary and as such affect a particular cohort of prisoners temporally connected to the COVID-19 pandemic. Next, and importantly, I agree and adopt what Croucher J said in Re Raffoul[27] in response to a similar submission by the prosecution. In Re Raffoul, while Croucher J did not ultimately conclude that the delay of two and a half years by itself was a factor justifying the grant of bail as he found it was a combination of factors that amounted to exceptional circumstances, he said that he would be inclined to have made such a finding in any event.[28] I agree with his Honour's comments on the issue of delay in Re Raffoul and consider it warrants repeating his Honour's reasons on this issue in a fulsome manner given delay will undoubtedly be a central issue in forthcoming bail applications:
60 Added to the delay is the fact that the conditions in prison due to COVID-19 are still more difficult than in the pre-COVID-19 period. Ms Hosking's affidavit reported some amelioration of the conditions in prison as the COVID-19 pandemic restrictions have eased. However, it is clear that the conditions are still more onerous in prison as a result of the COVID-19 pandemic. While I am satisfied that this is a matter that adds to the hardship of delay, 'it is a matter of only rather modest weight in the exceptional circumstances calculus'.[30]
61 I consider, in the circumstances of this case, that it is unnecessary for the Court to rely on delay alone to establish the existence of exceptional circumstances. Significant delay in this case combined with the other matters including the applicant's bail history, his surety, the offer of full-time employment and the hardship caused to the applicant's family are all relevant considerations which support the finding of exceptional circumstances justifying bail in this case. I note that the hardship factor in and of itself does not rise to the level of exceptional circumstances justifying bail. I accept that the impact of the applicant being in custody, whilst regrettable, is of itself plainly not exceptional. However, it is an aspect of the applicant's personal circumstances and one which I consider can give some weight, albeit modest, in combination with other circumstances. It is true that if the applicant is convicted of the charges and, in particular charges, 1 and 3, the hardship inherent in his absence for his family could not prevent him from receiving anything but a long sentence. However, as Croucher J noted in Re Raffoul,
62 In summary, for the foregoing reasons, I am satisfied that there are exceptional circumstances justifying bail in the applicant's case.
63 The next matter to be addressed is whether the respondent has established that there is unacceptable risk such that the applicant should not be granted bail. The question is whether or not risk, which clearly exists in this case, can be reduced to an acceptable level with the imposition of appropriate conditions.
64 The respondent submitted that, for the following reasons, I should be satisfied that there is an unacceptable risk that, if bailed, the applicant would: commit an offence; interfere with a witness or otherwise obstruct the course of justice; or fail to surrender into custody.
(a) the applicant had access to a dedicated encrypted device which was used to communicate with the co-accused and other persons relevant to the subject offending. It was submitted that if the applicant is granted bail, the AFP is unable to know if the applicant uses any encrypted device;
(b) the name of the possible witness (who located the mobile phone believed to be the applicant's that was secreted in the shed in the property) was referred to in the bail application in the Magistrates' Court. The witness has real concerns about his safety if he provides a statement to the police; and
(c) it is submitted that the applicant, if granted bail, will fail to surrender himself into custody in accordance with conditions of bail, given the strength of the prosecution case, the applicant's role in the criminal enterprise and the likely sentence to be imposed if he is found guilty. It is submitted that the applicant's ties to the jurisdiction are superficial - his partner and child relocated from Queensland to Victoria because the applicant was remanded in custody in Victoria.
66 It has been said repeatedly that no conditions can remove all the risk and that granting bail is not risk-free. However, my task is to determine if the risk is unacceptable. The applicant's criminal history and the strength of the case against him are factors pointing towards the gravity of the risk. There is no evidence that the applicant has interfered with any witness or that he has a history of doing so. The respondent relied on Mr Coghill's evidence that a relevant witness who has to date refused to provide a statement is fearful of the applicant and the co-accused. This evidence does not support an inference that given a witness' reluctance to give a statement or their concern about the accused, in the absence of something more, supports the assertion that the applicant might interfere with this or any witness.
67 In short, I consider the risks identified by the respondent are somewhat speculative. Generally, there is an absence of evidence that the applicant is an unacceptable risk of doing any of the things alleged by the respondent. It is no more than speculation to assert that the applicant has the ability to interfere with the seized electronic devices remotely.
68 There is no evidence that the applicant has the capacity to access false travel documents or take any steps necessary to flee the jurisdiction. While he has prior convictions, he has overall a positive bail history, strong ties to the jurisdiction, the prospect of full-time employment, and the confidence of his surety that he will appear, and the incentive of the surety and the applicant to ensure he appears to avoid forfeiture of the surety's property.
69 Accepting that here is some risk, I am not satisfied that any such risks are unacceptable. As discussed, the applicant will be fully occupied in work, engaged in assisting Ms Markby with the care of his partner and child.
70 I accept that any residual concerns may be addressed by strict bail conditions. Such conditions were discussed at the hearing, including a static address, daily reporting, a curfew, possession of only one mobile phone, and so on. The applicant had no objection to the proposed conditions.
71 The applicant offered to impose a condition requiring electric monitoring. The respondent is opposed to such monitoring being a condition of bail. The respondent pointed out the risk of false alerts causing AFP resources being wasted responding to such alerts; the limits of AFP resources to monitor and respond to such a system; and weaknesses in the system, including the delay between noticing a breach of the system and getting to an accused who has sought to flee. Concerns have been raised by the Court with respect to the proposed electronic monitoring conditions. Justice Lasry in Re Assaad[32] raised a concern that he was reluctant to support such a condition where the supplier of the device was a private company who regarded an accused person as their client. Justice Beale in Re application for bail by Biba[33] raised a concern that there could be considerable delay between the electronic alert and police responding. His Honour considered that it would take very little time for the applicant in that case to cut off the device and disappear.
72 On the other hand, Croucher J, while on the facts of the case considered it unnecessary to include a condition requiring electric monitoring said this:
If the AFP do have genuine concerns about the risks that an accused person poses on bail, I cannot understand why, despite limitations in the system and the potential difficulties identified, that they still would not want the additional monitoring potential that comes with the condition that requires electronic bracelets. It may well be that, if delays in the County Court become even longer, more and more applicants for bail will establish exceptional circumstances. If so, I can envisage cases in which the availability of electronic monitoring may well be decisive in determining whether unacceptable risks of the kind alleged in the case are established.[34]
73 In the circumstances of this case, I think it is unnecessary to impose a condition requiring electronic monitoring. The other conditions are sufficient to alleviate any concerns I have about the identified risk. Importantly, I do not consider the applicant to be a flight risk and had I considered the risks generally to be higher including the risk of flight, I may have imposed such a condition. I agree with Justice Croucher that despite the limitations in the system, it may be an effective tool in reducing the risk that an accused would seek to flee, commit an offence or interfere with witnesses.[35]
74 Having considered the evidence in this matter and the parties' submissions, at the conclusion of the hearing I indicated that I was satisfied that exceptional circumstances justifying the grant of bail had been established and, further, was satisfied that any risk could be mitigated to an acceptable level with appropriate conditions of bail.
75 Accordingly, bail was granted on 26 April 2021, and I made orders after hearing submissions from counsel for the applicant and the respondent on the conditions that should be attached to those orders.
[1] N-trifluoroacetyl-methamphetamine, an analogue of methamphetamine.
[2] Contrary to ss 11.1 and 307.5(1) of the Criminal Code 1995 (Cth) ('the Criminal Code').
[3] Contrary to s 71A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[4] Contrary to ss 11.1 and 305.3(1) of the Criminal Code.
[5] Namely, attempted offences against ss 305.3 and 307.5 of the Criminal Code in respect of commercial quantities of drugs of dependence - the Act, Schedule 1, items 8, 9 and 12.
[9] Re CT [2018] VSC 559 [64] (Champion J), citing with approval Re Sam [2017] VSC 91 [22] (Beach JA).
[10] Armstrong v R [2013] VSC 111 [31] (Lasry J), quoting Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1.
[11] Re CT [2018] VSC 559 [65] (Champion J), citing with approval Re Fairest [2015] VSC 375 [17]-[18], [22] (Weinberg JA).
[17] Citing Re Raffoul [2020] VSC 848, [73] (Croucher J).
[18] Affidavit in Support sworn by Sarah Tricarico on 7 April 2021 ('Affidavit in Support'), Exhibit ST-15.
[20] Citing Re Tong [2020] VSC 141 [33] (Tinney J); DPP (Cth) v Sun [2020] VSC 399 (Coghlan JA).
[21] Unsworn affidavit of Jennifer Hosking dated 26 April 2021 outlines the current state of COVID-19 restrictions in Victorian prisons.
[22] Affidavit of Bruce Giles sworn on 22 April 2021.
[23] Citing Re Martinow [2019] VSC 118 [7] (Beale J); Re Sipser [2019] VSC 362 [47] (Beach JA).
[24] Re Assaad [2020] VSC 561 [102] (per Lasry J).
[27] Re Raffoul [2020] VSC 848.
[28] [2020] VSC 848 [93].
[29] [2020] VSC 848 [84]-[90] (citations omitted).
[30] [2020] VSC 848 [150].
[31] [2020] VSC 848 [109].
[34] Re Raffoul [2020] VSC 848 [175].