Tran v DPP [2005] VSC 498

1 This is a bail application made by Tuan Quoc Tran who is facing one count of murder. Accordingly it is incumbent upon the court to refuse to make a grant of bail unless it is satisfied that exceptional circumstances exist which would justify such an order. By their nature exceptional circumstances are incapable of clear definition and they can either arise as a consequence of the presence of some particular feature which might by itself be treated as exceptional or because there exists a combination of circumstances which taken together make the circumstances exceptional.

2 Mr Morrissey, who appeared on behalf of the applicant, submitted that there were five factors which the court should take into account which either in isolation or in conjunction constitute exceptional circumstances.

3 The last of the matters that he raised was that that there was a genuine prospect of acquittal, the prosecution case not being overwhelming, particularly given that the prosecution would have to establish that the applicant had the necessary guilty state of mind. Reference was made by Mr Morrissey to the decision of Gillard J in Memery's case[1] in which his Honour formed the view that where the prosecution is unable to resist the characterisation of its case as a weak one, that is a circumstance which should give rise to the granting of bail.

4 In my view, the issue of the strength of the prosecution case is not a factor which the applicant can rely upon. Having had the misfortune to preside over a 10 month trial in which the charge the applicant faces was the central issue - the seven accused in that trial all had been facing a count of murder - I am of the clear view that it would not be correct to characterise the applicant's prospects of acquittal as anything less than poor. That is to say, in my view, the prosecution has a strong case to make against the applicant. I put the question of the strength of the prosecuting case to one side.

5 There are a number of circumstances relating to the history of this matter to which I should now refer.

6 The applicant was charged with murder on 31 July 2002 in relation to the death of James Huynh on 8 July 2002. Following his arrest the applicant was remanded in custody and spent some 384 days on remand awaiting the conclusion of his committal proceedings on 19 August 2003. On that day he was discharged in respect of the count of murder and was committed to stand trial in the Supreme Court on one count of affray. He was released on bail at that time which by consent on his own undertaking contained special conditions which included abiding by a curfew which required him to remain at his place of abode between the hours of 8 pm and 7 am and that he report to the officer-in-charge of the Sunshine Police Station every Monday, Thursday and Saturday. Subsequently this court saw fit to vary one of the special conditions of his bail and the curfew was extended from between 8 pm and 7 am to between 11 pm and 5 am.

7 On 24 January 2005 a presentment alleging one count of affray was filed by the Director of Public Prosecutions in this court. The applicant was not arraigned in relation to that count.

8 As I have already mentioned, a trial has taken place in which seven other offenders were arraigned in respect of the same murder and pleaded not guilty in relation to the presentment which they faced. A trial was conducted which resulted in verdicts of guilty in respect of that count against each of the offenders, the jury delivering its verdict on 19 September 2005.

9 On 27 October 2005 the Director of Public Prosecutions served a notice of trial upon the applicant who by agreement attended at the St Kilda Road Police Complex for the service of the documents. The notice of trial requested that the applicant appear before this court on 28 October 2005 which he did. On that day the Director sought to file over a presentment in relation to one count of murder. Objection was taken to that course for reasons that need not presently be explored and the presentment was not on that day filed over. The filing of the presentment was adjourned to a date to be fixed and today, there being no further objection to the filing of the presentment, I ordered that there be a stay in relation to the previous presentment containing one count of affray and the Crown filed over the presentment charging the applicant with one count of murder (the subject of the present application).

10 On 5 December 2005 counsel for the applicant indicated to the court that as there was no longer any objection to the filing of a new presentment, the sole question that would need to be determined was the question of the applicant's bail.

11 At the time of the alleged offence the applicant was aged 20 years, having been born on 20 January 1981. He is now 24 years of age and resides with his parents in St Albans. He has at all material times resided at those premises. The applicant is of good character, is not known to the police in respect of any prior convictions or court appearances and since his release following his discharge by the magistrate on 19 August 2004 he has not offended or come to the attention of police. I understand that since his release from custody in August 2003 he has complied with all bail conditions imposed upon him.

12 The application for bail is opposed by the Director on the sole ground that no exceptional circumstance or circumstances exist which would justify the granting of bail. In support of the Director's position a brief affidavit was filed, but no explanation was proffered as to the course that has been followed by the Director that I have just described. That is probably because it was assumed that it would be apparent to all concerned that the decision to abandon the count of affray and substitute it with a new presentment bearing one count of murder was a decision based upon the evidence that had been led in the trial of the other offenders and which justified the Director concluding that it was proper that such a course be followed.

13 Mr Morrissey has adumbrated that at some point of time in the future it will be argued on behalf of the applicant that the course followed by the Director constituted an abuse of process. That is not a matter that I need consider, but I also assume for the purpose of these proceedings that the course followed by the Director was as a consequence of a judgment being made by the Director upon the advice of counsel prosecuting at the trial as to the strength of the case that could be mounted against the applicant on the count of murder.

14 The first of the other factors relied upon by Mr Morrissey in support of the contention that there were exceptional circumstances was the delay between the applicant's arrest date and the trial date. As I understood the argument, counsel felt constrained to put the matter in that way because such authority as there is which relates to the question of delay and when it may constitute exceptional circumstances it was said turned upon a delay between arrest and trial.

15 Mr Morrissey referred me to the decision of Williams J in the Director of Public Prosecutions v Bernath[2] where her Honour considered a number of authorities dealing with the question of when delay may constitute exceptional circumstances. Most of those cases involve a delay between an arrest and the trial date. A most common circumstance in which an application for bail is made based upon delay is the circumstance that arises when an accused person, having been charged with an offence of a character which requires the accused to demonstrate exceptional circumstances, has remained in custody until the time of their application for bail. Those cases which her Honour considered were all cases that arose in such a setting. They show that this court from time to time will grant bail where the applicant has faced and continues to face a delay between his arrest and the trial date which, speaking generally having regard to the cases to which I have been referred, exceeds a period of 12 months. That is not to say that where a person is remanded in custody for a period beyond 12 months awaiting trial that they are entitled to bail but those cases in which bail has been granted are all cases in which a period of more than 12 months has elapsed between the time of the applicant's arrest and the time of the application. Often regrettably, considerably more time than that has elapsed before such applications are made and granted. In this case the applicant was in custody and on remand from the date of his arrest in July 2002 until his discharge by the Magistrate in August 2003 so that he had served a appeared in custody a little in excess of 12 months before his discharge. It was submitted on his behalf that I should take into account that since his discharge the applicant has faced a period of uncertainty in relation to the hearing of the count of affray, but that there was a grave escalation in the uncertainty of his circumstances after 24 January of this year when the hearing of his trial in relation to the count of affray was adjourned until after the conclusion of the trial of the seven offenders who were charged with murder arising out of the same affray. At that stage, that is in January 2005, the court had been informed that the applicant was intending to plead guilty to the count of affray. The applicant has thus waited, in effect, most of 2005, only to learn in October of this year that the Director was not intending to proceed with the count of affray, but was seeking to file over a presentment charging the count of murder. It does not seem to me to be appropriate to treat the period between the applicant's discharge in August 2003 and the present time as a period of delay in the sense in which the authorities to which I have already made mention refer to delay as constituting an exceptional circumstance. But it is appropriate to take into account, and I do, the history of proceedings and the circumstances which the applicant has faced. What is of greater relevance is the question of when the applicant's trial is likely to talk place.

16 In the affidavit filed on behalf of the applicant in support of these proceedings it was said by the applicant's solicitor Mr Nikakis that information had been provided to him by the Criminal Trial Listing Directorate that a trial of duration of longer than five weeks was not likely to be listed until the second half of the year 2006 and, depending upon a number of features, could easily be listed to commence in 2007.

17 Mr Southey, who appeared for the Director, did not challenge that assertion, but during today's luncheon adjournment enquiries were made of the directorate and I was informed that the latest estimate of when the trial is likely to proceed is that there is a slim possibility of it being listed in July 2006, but that there is a more realistic starting date of September 2006 if the trial can be completed by 15 December 2006. Put that way, it seams to me the prospect is high that this trial will not commence in 2006 because I do not believe that the Crown will ultimately be able to give the trial judge assigned to preside over this trial any assurance that this trial could be concluded within that period of time. In my view the prosecution will in all likelihood call the majority of the civilian witnesses that were called in the trial of the seven offenders to which I have referred. It will do so if it presents the applicant upon the basis that the applicant was acting in concert with the offenders Cuong Lam and Hung Van who were treated as principals in the first degree in that trial. In those circumstances the prosecution will seek to establish through the witnesses they call the conduct not only of the applicant, but of Cuong Lam and Hung Van and it seems to me that once the ambit of the prosecution case is so viewed it can readily be seen that it will and remains a substantial trial which will take some months to complete.

18 To determine whether I should view that circumstance as sufficient to warrant the granting of bail I should refer also to the other arguments advanced on the applicant's behalf. Mr Morrissey submitted that the applicant has compiled with all of his bail conditions since bail was granted following his discharge at the committal. More importantly it was submitted (and not disputed by the prosecution) that he has continued to observe his bail conditions after receiving both his notice of trial on the presentment alleging one count of affray and notice of the Director's intention to file over a presentment alleging a count of murder.

19 It was submitted on the applicant's behalf that there is no reason to view the applicant as an unacceptable risk on any of the grounds set out in s.4(2)(d) of the Bail Act 1977. This was not disputed by the Crown. Although Mr Morrissey at one stage appeared to be suggesting that that itself could constitute exceptional circumstances I did not understand him to persist with that argument because of the way in which the draftsman of the legislation has formulated both the concept of exceptional circumstances and unacceptable risk. However, as Coldrey J observed in The Director of Public Prosecutions v Cozzi[3], the fact that the applicant is an acceptable risk may be a relevant factor which can be taken into account when considering whether or not exceptional circumstances have been made out. His Honour in Cozzi has usefully examined a number of authorities dealing with what constitutes exceptional circumstances, concluding that there are a variety of factors which may be taken into account which either in isolation or in conjunction may constitute such circumstances and that the absence of matters detailed in s.4(2)(d) is often taken into consideration.

20 Mr Morrissey relied on a number of matters which he readily conceded would not by themselves constitute exceptional circumstances, namely the youth of the applicant, who was at the time of this alleged offence 21 and who is now 24, the fact that he lives with his family, and, that he has no prior criminal history. Mr Morrissey argued that those factors in conjunction with other matters should lead to the conclusion that exceptional circumstances have been made out.

21 In my view, having regard to the most unusual history of this case and the fact that the applicant is likely to await a trial until 2007, it was appropriate that the applicant be granted bail as he has made out the existence of exceptional circumstances.