Chang v Director of Public Prosecutions
[2017] VSC 92
•7 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0021
IN THE MATTER of an Application for Bail by Beatrice Chang
Between:
| BEATRICE CHANG | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2017 | |
DATE OF JUDGMENT: | 7 March 2017 | |
CASE MAY BE CITED AS: | Chang v DPP | |
MEDIUM NEUTRAL CITATION: | [2017] VSC 92 | |
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CRIMINAL LAW – Application for bail – Charge of trafficking large commercial quantity of drug of dependence (methylamphetamine) – Alternative charge of possession – Applicant, aged 24, alleged to be knowing participant in transport from NSW to Victoria of four kilograms of drugs secreted in boot of car driven by boyfriend – Applicant admitted suspicion that there may be drugs in car but denied actual knowledge – Applicant dual citizen of Australia and Malaysia – Whether exceptional circumstances justifying bail – Whether applicant, if bailed, presents unacceptable risk of failing to appear – No prior criminal history – Weak prosecution case on knowledge of quantity of drugs – Delay of eighteen months until trial – Real risk that applicant may spend more time in custody awaiting trial than likely sentence – Parents offered equity in their home as surety – Bail granted, with surety and on strict conditions – Bail Act 1977 (Vic), s 4; Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 70, 71, 71AA & 73 and Part 3 of Schedule 11; DPP Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P. Smallwood | Slades & Parsons |
| For the Respondent | Mr A. Albert | John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
Overview
On 24 January 2017, Beatrice Chang was a passenger in a car in which police found, in a built-in compartment behind the rear seats, two heat-sealed plastic bags containing four kilograms of methylamphetamine. Ms Chang and the driver, Michael Ung, were arrested and charged with trafficking in a large commercial quantity of that drug.[1] A charge of possession was laid in the alternative.[2]
[1] Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[2] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
On 7 February 2017, Ms Chang made an unsuccessful application for bail in the Magistrates’ Court.
On 1 March 2017, she made a further application for bail to this Court. In order to succeed in her application, Ms Chang must establish exceptional circumstances justifying a grant of bail.[3] Further, she must defeat the prosecution submission that there is an unacceptable risk that, if granted bail, she would fail to appear at her trial.[4]
[3] See s 4(2)(aa)(i) of the Bail Act 1977 (Vic).
[4] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
On 7 March 2017, I indicated that I was satisfied of the existence of exceptional circumstances and that I was not satisfied of an unacceptable risk of the kind alleged. Accordingly, I admitted Ms Chang to bail, albeit on strict conditions.
At that time, I gave brief reasons for my decision but indicated I would give more detailed reasons at a later date. These are those more detailed reasons.
Summary of alleged offending
I turn first to a summary of the alleged offending.
Just after midday on Tuesday 24 January 2017, police intercepted a car being driven by Mr Ung towards Melbourne on the Hume Highway at Clonbinane. Ms Chang was in the passenger seat. When asked whether there were any drugs in the car, she said there might be. While it is not suggested that this is evidence against Ms Chang, when asked the same question, Mr Ung said that there were drugs in the car behind the rear seats, and that they weighed five to six kilograms.
In the result, police found two heat-sealed bags secreted in a built-in compartment behind the rear seats. Subsequent testing showed that inside the bags was a white crystalline substance containing methylamphetamine and weighing a total of four kilograms.
Both Mr Ung and Ms Chang were arrested and conveyed to Melbourne.
When formally interviewed, Ms Chang explained that, the previous day, she had travelled with Mr Ung from Melbourne to Sydney. She went with him – her boyfriend of four years – to share the driving. They drove to a park in Sydney, parked the car and went for a walk. Upon the arrival of another man, Mr Ung directed Ms Chang to return to the car, which she did. The two men spoke at the boot of the car and may have exchanged something, but she did not see. She did not speak with or meet the man. Later, Mr Ung and Ms Chang drove to a motel in Goulburn, where they stayed the night. Mr Ung did not say anything about the meeting with the other man. The next morning, they headed back to Melbourne. Initially, Ms Chang drove, but then Mr Ung took over.
Ms Chang said she suspected her boyfriend may have been involved in drugs. However, whenever she questioned him about his trips to Sydney (a couple of which she had accompanied him on), he told her “not to get involved in it”, “[told her] off and ask[ed her] not to ask too much”, or would say that “it was for work”, which concerned “events” and “driving people around”. When the police intercepted his car, she first thought Mr Ung might have been speeding. However, when she noticed numerous police and that they were from the Drug Squad, she suspected “it must be something more than that”. Thus her comment to police at the scene that there might be drugs in the car. As to where in the car drugs might have been, she said “I thought … the boot, if we had it, because there were a few things in there”.
Ms Chang denied seeing any drugs or knowing of the drugs that were found. Further, she made no admission to being involved in possessing or trafficking drugs; and she did not admit any knowledge or suspicion of either the type or amount of drugs found.
While none of the following is admissible for or against Ms Chang, I note that, when interviewed by police, Mr Ung admitted to being a courier of the drugs on this occasion and on previous trips to Sydney. He did not implicate Ms Chang.
Application to this Court
Exceptional circumstances
Mr Smallwood, who appeared for Ms Chang, submitted that a combination of factors established exceptional circumstances justifying bail. Those factors included Ms Chang’s relative youth (she is 24), previous good character (she has no prior criminal history) and strong family support; the offer (by her parents) of a substantial surety; the delay of eighteen months until trial; and the weakness of the prosecution case on the mens rea required for the principal offence charged.
As to the latter consideration, Mr Smallwood submitted that there was no evidence from which to draw the necessary inference of either knowledge of the presence of drugs or (at least) knowledge of an amount of drugs in excess of the large commercial quantity threshold (or, for that matter, the commercial quantity threshold). He also submitted that there was no evidence directly contradicting Ms Chang’s account in the formal interview, and no other evidence supporting her involvement in trafficking – such as telephone calls, enrichment, handling drugs or incriminating conduct.
Mr Albert, who appeared for the Director, submitted that the necessary inference as to mens rea was capable of being drawn from a combination of circumstances, including Ms Chang’s admissions as to her suspicions, coupled with the brevity of the trip, the curious nature of the meeting with the unidentified man in a park in Sydney and the secretion of the drugs in a hidden compartment. As to the other matters, they were common factors in any bail application. He submitted that I should not be satisfied that the high hurdle of exceptional circumstances had been cleared.
Unacceptable risk
On the question of unacceptable risk of flight, Mr Albert pointed to the fact that Ms Chang faced a serious charge and submitted that, as a dual citizen, she may be tempted to flee to Malaysia in order to avoid facing trial.
Mr Smallwood submitted that an unacceptable risk of flight had not been demonstrated in light of several matters, including the absence of any history of such behaviour, her ties to the jurisdiction through her family, work and study, her parents’ offer of a substantial surety and the fact that she has surrendered her two passports to police.
Analysis and conclusions
I turn now to my analysis and conclusions in respect of these matters.
Unacceptable risk
I am not satisfied that there is an unacceptable risk that, if bailed, Ms Chang would fail to appear at her trial.
There are several factors that offset any potential risk so that it is not at an unacceptable level. First, since Ms Chang has no prior criminal history whatsoever, she has no history of performing poorly on bail.
Secondly, Ms Chang has reasonably strong ties to Victoria. She came to Melbourne from Malaysia in 2007, has been educated here and is now an Australian citizen. She has worked at Crown Casino until recently and has a job offer in Swan Hill in the field of her university training, which is animal science. If that job offer falls away because of her existing charges (which Mr Smallwood conceded is likely) or she cannot find other work, she will undertake a PhD in the same area. While her father often travels to Malaysia for work and still owns property there, her mother and brother (a student) are both here permanently in the family home in Ferntree Gully. In addition, her father has three siblings in Melbourne (and two in Malaysia). He has also indicated that, after some scheduled work in Malaysia in a month or so, he will confine his work to Australia so that he can support his daughter during the period of these proceedings.
Thirdly, Ms Chang has already surrendered her (two) passports. International travel, therefore, would require some sort of fraudulent behaviour on her part, yet she has no criminal history at all.
Fourthly, Ms Chang’s parents are prepared to put up the equity in their home in Ferntree Gully as a surety. (I am satisfied that that equity is to the value of about $235,000.) Mr Albert indicated that the informant accepts that that property is the only real estate owned by Ms Chang’s parents in Australia.
Finally, I consider that other conditions of bail – such as daily reporting and prohibitions on attending points of international departure and leaving the State – also can be put in place to help offset the risk that Ms Chang might be tempted to fail to appear.
As I say, overall, I am not satisfied that any such risk is unacceptable.
Exceptional circumstances
In my view, two particular matters in this case – namely, real difficulty in proving an element of the principal charge (and its first alternative) and delay – combine to establish exceptional circumstances, especially when set against other admittedly common but nevertheless important considerations, including previous good character, family support and the surety. Let me explain.
In order to establish the principal charge, the prosecution must prove, inter alia, that Ms Chang intended to traffick methylamphetamine in an amount that exceeded the relevant large commercial quantity threshold,[5] which is one kilogram “mixed”.[6] The same principle applies to the alternative commercial quantity offence, the relevant threshold for which is 500 grams “mixed”.[7] In a case like the present, proof of such intention requires proof of knowledge or belief that the amount of the drug possessed is, or is likely to be, in excess of the relevant threshold.[8]
[5] See, e.g., DPP Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299 at 303[10] & 312-313[37].
[6] Or 750 grams “pure”. See ss 70 and 71 and Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[7] Or 100 grams “pure”. See ss 70 and 71AA and Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[8] Again, see, e.g., DPP Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299 at 303[10] & 312-313[37].
While a court must be cautious about assessing the strength of a case at this early stage of proceedings, I accept the substance of Mr Smallwood’s submission that, on the evidence presently disclosed, it is difficult to see how the prosecution can prove, beyond reasonable doubt, that Ms Chang had any idea of the amount of methylamphetamine that was secreted in the car. The evidence of her possible knowledge – if knowledge it be, for that is squarely in issue too – of the presence of drugs, which comes largely by way of inference from her admissions combined with her presence in the car, simply does not extend to knowledge of the amount possessed. For, while perhaps it might be inferred that, despite her denial, she knew her boyfriend was transporting drugs of some kind, there is no evidence that she touched, lifted or even saw the drugs, let alone that she knew or believed that the substance exceeded, say, one kilogram (or half a kilogram). Nor is there any evidence that she knew of the nature of the drug in the car.
Thus, I think that, on the evidence as it currently stands, there is a good chance that, following a trial, Ms Chang would be found not guilty of both trafficking in a large commercial quantity of methylamphetamine and (if left as an alternative) the offence of trafficking in a commercial quantity of that drug.
Such verdicts would not preclude a finding of guilt on the further alternative of trafficking simpliciter or possession, provided the other necessary proofs were established. Indeed, while I recognize that there are good arguments to be made on behalf of Ms Chang for acquittal on all charges, it seems to me that there is a reasonable circumstantial case against her on possession of a drug of dependence and a lesser, but still arguable, case on trafficking simpliciter.
But that is where the issue of delay comes to be of greater weight. Mr Albert accepted that it is likely that there will be an eighteen-month delay between arrest and trial. Now, while that is a long time to wait in custody for a trial, unfortunately, it is rather common, and would not be regarded as exceptional in and of itself, at least in a case of this nature. However, when regard is had to the realistic possibility that, if convicted of either of these two lesser offences, Ms Chang – given her age, lack of prior convictions and alleged role (which could be no more than that of a courier’s assistant) – could well receive a sentence involving a custodial component somewhat shorter than eighteen months (or even a wholly non-custodial sentence), that period of delay does become exceptional. Further, that a surety and strict conditions are available to offset any risk of failing to appear also brings that level of delay into even sharper relief.
In my view, it would be both extraordinary and inappropriate to keep Ms Chang in custody awaiting trial for a period of eighteen months when not only is there a good chance that that period will exceed any custodial sentence that may be imposed but also she otherwise poses no unacceptable risk to the community and no unacceptable risk of failing to appear at trial.
It is for those reasons that I am satisfied that there are exceptional circumstances justifying a grant of bail and that bail must be granted.
Order
Accordingly, Ms Chang (“the applicant”) will be admitted to bail on the following conditions:
1)There is to be a surety in the amount of $230,000.
2)The applicant is to reside at 10 Beckenham Drive, Ferntree Gully in the State of Victoria.
3)The applicant is to report to the officer in charge of the Knox Police Complex each day between 6:00 a.m. and 9:00 p.m.
4)The applicant is not to contact (either directly or indirectly) her co-accused Michael Ung.
5)The applicant is not to attend any points of international departure.
6)The applicant is not to leave the State of Victoria.
7)The applicant is to surrender to the informant any passport or travel document held by her and is not to apply for any other passport or travel document.
8)The applicant is to appear at the Magistrates’ Court at Melbourne at 9:30 a.m. on 19 April 2017 and thereafter as directed by that court.
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