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[2023] VSC 470
General information, not legal advice.
Supreme Court of Victoria
2023-08-11
BEACH JA
Original judgment source is linked above.
CRIMINAL LAW - Bail - Applicant charged with conspiring to import 1.6 tonnes of border-controlled drugs - Schedule 1 offences - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Delay constituting exceptional circumstances - Unacceptable risk - Whether applicant an unacceptable risk - Unacceptable risk of applicant not answering bail - Application refused - Bail Act 1977, ss 1B, 3AAA, 4A, 4D and 4E.
Solicitor for the Commonwealth Director of Public Prosecutions
1 The applicant is currently facing two charges of conspiring to import a commercial quantity of a border-controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) (charges 1 and 2); one charge of trafficking in a commercial quantity of a controlled drug, contrary to s 302.2(1) of the Criminal Code (charge 3); one charge of dealing with money that was, and believed to be, proceeds of crime, contrary to s 400.6(1) of the Criminal Code (charge 4); and one charge of possessing a registered general category handgun other than for the purpose of collecting, without being the holder of a licence, contrary to s 7(1) of the Firearms Act 1996 (charge 5).
2 The applicant was arrested on charges 1 and 2 on 7 June 2021, and has been in custody ever since. In December 2021, he applied for bail in the Magistrates' Court. His application was refused. In July 2022, he made a further application for bail in the Magistrates' Court. That application was also refused. On 5 July 2023, he filed an application for bail in this Court.
3 Charges 1, 2 and 3 are Schedule 1 offences within the meaning of s 3 of the Bail Act 1977 ('the Act').[1] Accordingly, in order to be granted bail, the applicant must establish the existence of exceptional circumstances that justify a grant of bail.[2] In the filed application, the applicant asserts that there are exceptional circumstances justifying bail being granted, including (but not limited to) the following:
• the lack of a significant prior criminal history;
• his record of compliance and lack of any non-compliance with earlier bail conditions;
• the availability of a significant surety ($2.29 million);
• the existence of medical conditions suffered by the applicant and members of his family;
• the significant length of time he is likely to spend in custody if bail is refused;
• the impact of, and delay caused by, the COVID pandemic; and
• the fact that the applicant does not pose an unacceptable risk if bail were to be granted.
4 The respondent opposes bail being granted to the applicant. It contends that he has not discharged the burden of satisfying the Court as to the existence of exceptional circumstances that justify a grant of bail. In opposing the application, it also contends that the applicant is an unreasonable risk of failing to answer bail, interfering with witnesses and committing further offences.
5 The prosecution case is that the applicant is the Australian head of a transnational organised crime syndicate which conspired to import commercial quantities of border-controlled drugs and trafficked commercial quantities of controlled drugs. It is alleged that the applicant used the encrypted platform 'An0m' to organise, direct and facilitate the offences for which he is charged. This was done via both individual messaging and group chats to people both inside and outside Australia. The prosecution assert that the criminal enterprise directed by the applicant was a sophisticated one which involved import 'streams', 'cover-loads', and 'dry-runs' to ensure that law enforcement efforts to intercept the drugs and identify the syndicate were frustrated.
6 In relation to charge 1, it is alleged that, between 31 March and 7 June 2021, the applicant conspired to import 600 kilograms of methamphetamine and 600 kilograms of cocaine from the USA.
7 In relation to charge 2, it is alleged that, between 31 March and 7 June 2021, the applicant conspired to import 400 kilograms of methamphetamine from India.
8 In relation to charge 3, it is alleged that, between 7 April and 7 June 2021, the applicant trafficked four kilograms of methamphetamine in Melbourne.
9 The applicant was arrested at his premises on 7 June 2021. A search warrant was executed. The sum of $38,000 was allegedly found inside a coffee machine (charge 4); and a Glock 17 pistol and ammunition were allegedly found under a tile in the patio (charge 5).
10 The prosecution asserts that the wholesale value of the three drug importations, had they been successful, was between $186 million and $700 million. The prosecution alleges that, for his part in the importations, the applicant would have been entitled to 'a significant percentage commission', as well as 'buying in' 25 kilograms for his own distribution.
11 The applicant is 39 years of age. He is married and has a six year old son. His wife, son, and 64 year old widowed mother, have various health issues to which I will refer when dealing with the applicant's material and submissions on this application. The applicant's wife is employed by a bank. Significant assets held by the applicant, his wife and companies described as the applicant's corporate vehicles have been the subject of restraint orders made in the County Court.
12 The applicant has a limited criminal history. In November 2008, he received a total effective sentence of two years and three months for the offences of trafficking in a drug of dependence, knowingly dealing with the proceeds of crime and possessing a drug of dependence, 18 months of which was suspended for two years.
13 The applicant has six co-accused. While the offences with which the co-accused have been charged are not identical, each co-accused has been charged with conspiring to import a commercial quantity of a border-controlled drug. On various dates in 2021, each of the applicant's co-accused made a successful application for bail.
14 In support of his application for bail, the applicant relied upon the following affidavits:
15 Apart from the applicant's wife's affidavit and one of the applicant's mother's affidavits, each of the affidavits relied upon by the applicant exhibit material relied upon in support of the application for bail. Mr Lewenberg's affidavit exhibits 982 pages of material, including medical reports relating to the applicant's wife, son and mother. I do not propose to describe this material in these reasons, other than to say that the medical evidence discloses psychological issues in relation to the applicant's son; a serious physical health issue, together with psychological issues, in relation to the applicant's wife; and multiple health issues (both physical and psychological) in relation to the applicant's mother.
16 By reference to sub-paragraphs of s 3AAA(1) of the Act, the applicant made the following observations and submissions:
(1) Strength of the prosecution case:[4] The prosecution case relies heavily upon encrypted messages said to have been exchanged on An0m. Absent the An0m messages, the prosecution case against the applicant is weak. The admissibility of the An0m messages is disputed. The applicant will rely upon expert reports[5] to dispute the admissibility of the An0m messages. While the prosecution will allege that the applicant was in possession of an An0m handset at the time of his arrest, there is no forensic evidence connecting the applicant with that device.
(4) Whether on bail/parole/facing other charges/subject of violence orders:[10] At the time of the alleged offending, the applicant was not on bail, or on parole, or otherwise subject to any of the matters set out in s 3AAA(e) of the Act; and there were no orders in force of the kind described in s 3AAA(f).
(5) Applicant's personal circumstances, associations, home environment and background:[11] The applicant has strong ties to the jurisdiction, including by reason of his family circumstances and employment situation. The medical conditions affecting the applicant's wife, son and mother, referred to in the various medical reports are of real significance. In the circumstances, being away from his family is 'pure hell' for the applicant. If released on bail, the applicant has immediate, full-time (daily) employment available to him, which can be undertaken substantially (if not wholly) on the basis that he works from home.
(6) Special vulnerability of the applicant:[12] The applicant suffers from diverticulitis, a serious medical condition. This results in him having a special vulnerability in custody. He is in constant severe pain 'with medical practitioners in the prison advising him that they are unable to do anything more for him with the resources available'.
(7) Amount of bail/conditions of bail:[13] The applicant has available to him a surety of $2.29 million provided by his mother, uncle, aunt, sister-in-law and cousins. Each proposed surety has sworn and filed an appropriate affidavit in this application.
(8) Length of time the applicant is likely to spend in custody if bail is refused:[14] Given the complexity of the proceeding (involving substantial disclosure claims, disputes as to relevance, public interest immunity claims, a joint committal and an individual committal), it is unlikely that there will be a trial before 2026. Having regard to all of the matters that must be dealt with, a trial (likely to run for six to seven weeks) is likely to be listed some time in 2026.[15]
17 The applicant relied upon a number of additional factors which he contended supported his application for bail. These included:
(1) Impact of COVID-19: The COVID-19 pandemic had a significant effect on the applicant in custody. He has regularly been subject to lockdowns for significant periods and to 'a raft of other COVID-19-related restrictions and protocols'. These lockdowns, restrictions and protocols have impeded the applicant's ability to effectively communicate with his lawyers.
(2) Lockdown in serious offenders unit: The applicant has been subject to lockdown in the serious offenders unit. This has restricted his use of the library, his ability to effectively communicate with his lawyers and his ability to access his brief and disclosure materials. Lockdown in the serious offenders unit has also had a detrimental impact on the applicant's mental health and general state of wellbeing.
(3) Comparable allegations against co-accused granted bail: The allegations against one of the applicant's co-accused are very similar to those made against the applicant. That co-accused did not have close ties to the jurisdiction by reason of family and employment. He was, however, granted bail in 2021, in circumstances where the surety offered was in the sum of $1 million.
(4) Comparable allegations with another accused: In December 2022, the South Australian Supreme Court granted bail to a person who had been charged with the same offences as the applicant. The alleged circumstances of that person's offending 'appear to be of far greater severity and magnitude than that of the applicant'. That person was described as having 'sat at the apex of a sophisticated national drug trafficking business trafficking vast quantities of methamphetamine and cannabis across borders via commercial trucking companies using the An0m application to coordinate the enterprise'.
18 On the issue of whether the applicant would pose an unacceptable risk of flight and/or of committing further offences if released on bail, the applicant contended that various matters ameliorated any such risk 'rendering it such that the respondent cannot establish that it [the risk] is unacceptable'. Those matters included:
(1) Large surety: There is a surety of $2.29 million available across multiple family members. This provides a strong incentive for the applicant to comply with his bail conditions and to answer his bail.
(2) Electronic monitoring: The applicant is ready, willing and able to submit to (and to pay for) electronic monitoring by way of an ankle bracelet.[16]
(3) Undertakings: Various undertakings are given by members of the applicant's family in the affidavits sworn by them. These undertakings include immediately informing the police upon becoming aware that the applicant has breached any of his bail conditions. The applicant's wife has also undertaken to surrender her passport, and that of their son, if bail is granted; as well as permitting police to attend and search the family home, and to seize items, without the need for a warrant. Mr Barbar has undertaken to closely monitor the applicant's daily work activities and that he will, within 60 minutes of becoming aware that the applicant has not reported for work, notify the police of that fact.
(4) Restrained property: Court orders exist restraining the assets and property of the applicant and his wife, including the family home, a set of six units, a Mercedes Benz and the amounts in various bank accounts totalling in excess of $500,000.
(5) Bail conditions: The applicant is prepared to accept bail conditions which would have the effect of 'subjecting him to extensive and strict home detention', with compliance being enforced and monitored by way of electronic monitoring. In his affidavit, Mr Lewenberg proposed 21 conditions of bail, including the applicant:
19 During the hearing of the application, it became clear that the applicant would be prepared to accept any bail conditions this Court thought appropriate in order to ameliorate any perceived risk of the kind referred to in s 4E(1)(a) of the Act, including a condition that would effectively require the applicant to stay within the apartment to where he would be bailed 24 hours a day/7 days a week.
20 As I have already observed, the respondent opposed bail. In doing so, it relied upon the following affidavits:
21 The informant's affidavit summarises the applicant's alleged offending. The informant gives a relatively detailed description of what, if proved, are extremely serious examples of the offence of conspiring to import a commercial quantity of a border-controlled drug. The balance of the informant's affidavit is directed to supporting the proposition that the applicant, if released on bail, would be an unacceptable risk of failing to answer bail, interfering with witnesses and committing further offences. The informant summarises the reasons why the applicant poses an unacceptable risk as follows:
(1) The applicant has access to large quantities of untraceable cash, encrypted communication platforms, illegal firearms and knowledge on the use of fraudulent identities and police methodology. As a result, he has the capacity to successfully flee the jurisdiction and avoid apprehension. Additionally, he has overseas criminal contacts at his disposal who can assist him with fleeing the jurisdiction and avoiding apprehension.
(2) He is the Australian head of a transnational organised crime syndicate and yields considerable power over others. He has demonstrated a mindset to use violence to control and coerce others. This poses a risk to prosecution witnesses.
(3) He has a strong motivation to flee the jurisdiction and avoid apprehension, given his 'apex' role in the syndicate and planning for the importation of 1.6 tonnes of drugs into Australia, coupled with the strength of the prosecution case and the likelihood of a lengthy gaol term if convicted.
(4) He is likely to resort to committing further criminal activity in order to finance his lifestyle and/or to aid in interfering with witnesses or fleeing the jurisdiction.
22 The respondent observed that charges 1, 2 and 3 carry a maximum penalty of life imprisonment. Charges 1 and 2 relate to a conspiracy to import approximately 1.2 tonnes of methamphetamine and cocaine, and 400 kilograms of cocaine respectively. The respondent contended that these quantities made charges 1 and 2 'exceptionally serious examples of what are otherwise objectively serious offences'. The respondent submitted that the role of the applicant, combined with the quantity that he conspired to import, strongly militated against a finding of exceptional circumstances in this case.
23 The respondent asserted that the prosecution case is strong. In making that assertion, the respondent referred to the evidence of:
• the existence of an An0m handset with the applicant's user ID, which was in the applicant's pocket at the time he was arrested;
• communications made by the applicant in which he is alleged to have referred to illicit drugs, a 'live run' and 600 (being 600 kilograms);
• the applicant having agreed to pay two co-accused $750,000 each in exchange for being the 'door' for the importations;
• the applicant providing directions to co-accused in relation to the receipt of the 'dry-run' consignment, and the plan to 'go live' in July; and
• the receipt by the applicant of images of large crystals (alleged to be methamphetamine) from an offshore facilitator, which images were then forwarded to a co-accused.
24 In relation to the applicant's medical conditions, the respondent submitted that, on the respondent's evidence, the applicant had access to adequate treatment in custody. Submissions were also made by the respondent about the extent and relevance of the medical conditions of the applicant's wife, mother and son.
25 As to delay, the respondent submitted that this must be considered 'in the context of the entire prosecution case including the seriousness of the alleged offending and the strength of the prosecution case'. The respondent accepted that there would be 'some additional delay', given the need for two committal proceedings to be conducted in respect of the charges against the applicant. The respondent observed that the 'joint committal' is scheduled to commence on 18 September 2023, on an estimate of four weeks. It then submitted that the applicant's assertion that the individual committal would not occur until June 2024 was 'speculative', as was his assertion that the trial would likely be listed in 2026.
26 The respondent submitted that it was 'trite to say that a conviction in respect of charges 1 or 2 following a trial would result in a very lengthy sentence of imprisonment'. Moreover, on a finding of guilt on charge 1 or charge 2, any sentence imposed would certainly be longer than the time the applicant might spend in pre-trial detention.
27 In relation to parity, the respondent submitted that the applicant's alleged offending was 'considerably more serious' than that of his co-accused. This was particularly so given the allegation that the applicant is the head of the syndicate and issued directions to his co-accused in relation to the two alleged conspiracies. As the respondent put it, in contrast to his co-accused, the applicant 'orchestrated the conspiracies together with the offshore facilitators, and recruited the Australian-based syndicate members'.
28 On the issue of unacceptable risk, the respondent submitted that the seriousness of the charges, combined with the strength of the prosecution case, provided a powerful motivation for the applicant to flee the jurisdiction. The respondent referred to evidence of discussions between the applicant and a co-offender in relation to the provision of five figure sums of money per month to his family to meet their needs if he were to flee, as well as a discussion between the applicant and his brother about fleeing to countries with which Australia has no extradition treaty.
29 As to the applicant's access to resources, the respondent asserted that the applicant has had $7.5 million in assets restrained by the court. It also referred to the evidence of the applicant having discussed that he had $5 million in 'stook' (hiding).
30 In relation to electronic monitoring, the respondent submitted that the monitoring program proposed by the applicant 'attracts a host of difficulties for the informant from an operational perspective'. In short, the respondent submitted that electronic monitoring does not sufficiently ameliorate the risk of flight, and does not even address the risk of committing further offences or interfering with witnesses.
31 The relevant principles governing an application for bail where exceptional circumstances must be shown are not in dispute. They were conveniently summarised in Re Diab[19] as follows:
Sections 4A and 4D of the Act require the Court, as step one, to consider the exceptional circumstances test; and then to move, as step two, to the unacceptable risk test. At both stages of the analysis, the Court must take into account all the circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act. Moreover, the Court is required to interpret and apply the Act having regard to the matters set out in s 1B, which include:
(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;
The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. The prosecutor, however, bears the burden of satisfying the Court as to the existence of a relevant risk and that that risk is an unacceptable risk.
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, Beale J, citing Kaye J in DPP v Muhaidat, referred to the question of exceptional circumstances in the following terms:
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.[20]
Has the applicant established exceptional circumstances?
32 While the Court is required to take into account all of the circumstances of the case, including those which are specifically referred to in s 3AAA of the Act, in considering whether the applicant has established exceptional circumstances justifying a grant of bail, the critical matters in the present case are delay (the length of time the applicant is likely to spend in custody awaiting trial if bail is refused), the nature and seriousness of the alleged offending, and the strength of the prosecution case.
33 The applicant has been in custody since June 2021. There are significant complexities associated with the proceeding. These include the fact that there will be two committals (a joint committal and an individual committal) - neither of which has yet been held, despite the applicant already having been in custody for more than two years. Barring any adjournment, the joint committal will be concluded in October this year. Realistically, the applicant's individual committal will not be heard before 2024. Having regard to the complexity of the matters in dispute between the parties, and the complexity of the matter generally, a trial before 2025 appears highly unlikely. While analyses of the present kind are inherently speculative, given the size of this case, and the matters likely to be in dispute between the parties, in my view, a trial in 2026 is a real possibility. By that time, the applicant will have been in custody awaiting trial for approximately five years.
34 If a trial does not take place until 2025, the applicant will have spent a period of four years on remand. A period of four years on remand (let alone one of five years if the applicant's trial does not take place until 2026) is completely unacceptable.[21] Absent the possibility that, in a particular case, the seriousness of the alleged offending and the strength of the prosecution case might be capable of overwhelming such an unacceptable period of delay,[22] a delay of the order likely to occur in this case would ordinarily, on its own, constitute exceptional circumstances justifying a grant of bail.
35 There are a number of disputed issues associated with the admissibility of the An0m messages. The applicant contends that, absent the An0m messages, the prosecution case against him is weak. On the other hand, the respondent asserts that the prosecution case is strong. In argument, counsel for the applicant accepted that if the An0m material was found to be admissible and if the applicant was linked to the An0m messages ascribed to him by the prosecution, then the case against him could not be described as a weak one. That said, it is neither possible nor desirable to express a view about the strength of the prosecution case at this stage, other than to say that the case against the applicant is a substantial one which is capable of being contested by him in the way foreshadowed in the applicant's material. The case against the applicant is not open and shut; nevertheless, it is not so lacking in strength as to form a separate basis (either looked at alone or in combination with the other surrounding circumstances) upon which one might conclude that exceptional circumstances have been made out.
36 Ultimately, and notwithstanding the seriousness of the alleged offending and the material relied upon by the respondent in support of its submissions about the strength of the prosecution case, I am persuaded that the delay in this case, which has already occurred, and which is likely to continue in the future, constitutes exceptional circumstances justifying the grant of bail. Were it not for this delay, I would however have concluded that none of the other matters relied upon by the applicant (either alone or in combination) satisfied the exceptional circumstances test in this case. Even if it could be said that, in combination, those other matters were unusual so as to warrant the use of the word 'exceptional', they do not amount to 'exceptional circumstances ... that justify the grant of bail' in all the circumstances on these extremely serious charges.[23]
Has the respondent established that the applicant is an unacceptable risk of failing to answer bail, interfering with witnesses or committing further offences?
37 As with the issue of exceptional circumstances, in considering the issue of unacceptable risk, the Court is again required to consider all of the circumstances of the case, including those which are specifically referred to in s 3AAA of the Act.
38 While the respondent contends that, if released on bail, the applicant is an unreasonable risk of failing to answer bail, interfering with witnesses and committing further offences, it seems to me that the primary risk in this case is of the applicant failing to answer any bail that might be granted to him. On the issue of that risk, the most significant surrounding circumstances are the nature and seriousness of the alleged offending, the strength of the prosecution case and the likely sentence which would be imposed if the applicant were to be found guilty of the offences with which he is charged.
39 As I have already said, charges 1 and 2 involve allegations that the applicant conspired to import 1.6 tonnes of border-controlled drugs. The maximum term of imprisonment for each of those charges is life (as is the maximum term of imprisonment for charge 3). If convicted of one or both of those charges, the applicant could reasonably expect to be sentenced to a term of imprisonment measured in decades - if not life imprisonment. The material filed on this application discloses that the applicant appears to have the wherewithal and resources to flee the jurisdiction - most probably to a jurisdiction which does not have an extradition treaty with Australia. When one examines all of the circumstances of this case, one cannot but conclude that, if released on bail, the applicant would have a very powerful motivation to flee the jurisdiction - notwithstanding the devastating consequences that might have for the applicant's immediate family and for those other family members who may have provided significant sums/assets by way of surety.
40 The question in this case is whether the respondent has persuaded me that the obvious risk of the applicant fleeing the jurisdiction and not answering his bail is, in all of the circumstances (including the various undertakings, sureties and bail conditions proffered by the applicant, together with the other matters upon which the applicant relies), an unacceptable one.
41 In many cases, undertakings, sureties, bail conditions and the other matters advanced by the applicant in this case would collectively be sufficient to make the risks referred to in s 4E(1)(a) of the Act acceptable. In this case, however, the respondent has persuaded me that notwithstanding all of the matters proffered and advanced by the applicant, a grant of bail to him would still involve an unacceptable risk of the applicant failing to surrender into custody in accordance with any grant of bail that might be made to him. A person with the resources the applicant appears to possess can easily flee the jurisdiction without the need for any passport that might have been surrendered. The amounts involved in the applicant's alleged offending suggests that forfeited sureties might be of little moment to the applicant.[24] Moreover, electronic monitoring would likely pose little problem for a person as well-resourced as the applicant appears to be and who would likely prefer to avoid the possibility of a very long period of incarceration following a trial for offending which is alleged to be extremely serious.[25]
42 In short, the respondent has persuaded me that there are no realistic terms or conditions upon which the applicant could be admitted to bail which would make the risk of the applicant not surrendering himself into custody in accordance with the conditions of bail an acceptable one. In so concluding, I have not overlooked the fact that delay (and in particular any unacceptable delay) may come to be of such a magnitude that risks which would in other circumstances be regarded as unacceptable, may properly be viewed as acceptable.[26] That is not yet, however, the present case.[27]
43 While the applicant has established exceptional circumstances justifying a grant of bail, the respondent has persuaded me 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. In such circumstances, the applicant's application for bail must be refused.
[1] See items 8, 9 and 12 of Schedule 1 of the Act.
[3] In addition to relying on Mr Schluter's affidavit, the applicant also relied upon the evidence given by him during the hearing of the application.
[5] Exhibited to Mr Lewenberg's affidavit.
[7] For completeness I should note that the applicant was convicted of three offences in 2008 (see [12] above).
[15] See para 33 of Mr Lewenberg's affidavit. But cf paras 21 and 22 of the applicant's written submissions dated 4 August 2023.
[16] A service provided by Allied Universal Electronic Monitoring Australia Pty Ltd, costing $25,000 'exclusive of GST' per annum (to be paid by, as Mr Schluter put it, 'the defendant'), the details of which were described in the affidavit and evidence of Mr Schluter.
[17] Alternatively, not being permitted to leave his residence at all: see [19] below.
[18] Who was cross-examined by the applicant's counsel during the hearing.
[20] Ibid [34]-[36] (footnotes omitted).
[21] Cf Re Application for Bail by MO [2017] VSC 557, [6] (Weinberg AP).
[23] Roberts v The Queen [2021] VSCA 28, [33]-[35] (Maxwell P, Niall and Emerton JJA)
[24] While the informant deposed in his affidavit that the applicant 'would likely be able to reimburse any money forfeited through further criminal enterprises', another possibility is the applicant may view any forfeiture of sureties as a 'lesser evil' than being incarcerated for a significant portion (if not the balance) of his life: cf Re Kamvissis [2021] VSC 620, [31] (Beale J).
[25] Cf Re Application for Bail by Biba [2020] VSC 536, [36] (Beale J).
[26] See DPP (Cth) v Barbaro [2009] VSCA 26; (2009) 20 VR 717, 726-8 [33]-[41]; HA (a pseudonym) v The Queen [2021] VSCA 64, [54]-[68] (Maxwell P, Kaye JA).
[27] On the other hand, if at some stage it becomes apparent that a trial before the end of 2026 is no longer likely, the issue of unacceptable risk may have to be revisited in the light of all of the circumstances which then might exist.
(2009) 20 VR 717