Director of Public Prosecutions (Cth) v Lee
[2020] VSC 275
•14 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0094
| IN THE MATTER of s 18A of the Bail Act 1977 |
| and |
| IN THE MATTER of an appeal by the Commonwealth Director of Public Prosecutions against an order granting bail to Anthony LEE |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 May 2020 |
DATE OF JUDGMENT: | 14 May 2020 |
DATE OF REASONS | 18 May 2020 |
CASE MAY BE CITED AS: | DPP (Cth) v Lee |
MEDIUM NEUTRAL CITATION: | [2020] VSC 275 |
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CRIMINAL LAW - Bail – Director’s appeal against magistrate’s grant of bail – Respondent charged with importing a commercial quantity of a border controlled drug, attempting to possess a commercial quantity of a border controlled drug, and failing to comply with an order under s 3LA Crimes Act 1914 (Cth) – Whether reasonably open to magistrate to be satisfied of exceptional circumstances in justification of grant of bail – Whether reasonably open to magistrate to fail to find risk posed by respondent unacceptable – Error to have granted bail – Appeal allowed – Order granting bail set aside – Fresh application for bail on new material – No exceptional circumstances – Unacceptable risk – Application refused – Bail Act 1977 ss 3AAA, 4, 4AA, 4A, 4D, 4E, 12A, 18A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr K Armstrong | Commonwealth Director of Public Prosecutions |
| For the Respondent | Ms L Ristivojevic | Pica Criminal Lawyers |
HIS HONOUR:
Introduction
On 14 May 2020, I heard an appeal by the Commonwealth Director of Public Prosecutions (‘the Director’) pursuant to s 18A of the Bail Act 1977 (‘the Act’) against an order made in the Melbourne Magistrates’ Court on 8 April 2020 granting bail to Anthony Lee (‘the respondent’) in respect of a number of charges he faces.
I granted the appeal and set aside the order of the magistrate granting bail. I then heard a fresh application for bail. That application was refused. I indicated at the time that I would publish detailed reasons for my decisions allowing the appeal and refusing bail. These are those reasons.
The charges and procedural history
The respondent was arrested and charged on 7 April 2020 with:
·Attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine;
·Importing a commercial quantity of a border controlled drug, namely methamphetamine; and
·Failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth)
The maximum penalty for each of the first two charges is life imprisonment. The third charge attracts a maximum penalty of ten years’ imprisonment. The first two charges are offences contained within Schedule 1 of the Bail Act 1977 (‘the Act’). For that reason, I am required to refuse bail unless I am satisfied that exceptional circumstances exist which would justify the grant of bail.
The respondent applied for bail before a magistrate at Melbourne Magistrates’ Court on 8 April 2020. Bail was opposed on the basis that the respondent had failed to establish the existence of exceptional circumstances which would justify the grant of bail, and on the further basis that even if exceptional circumstances were found to exist, there was an unacceptable risk that the respondent, if released on bail, would commit an offence while on bail or fail to surrender into custody in accordance with the conditions of bail.
For reasons which will be the subject of further consideration in this judgment, the learned magistrate was satisfied of the existence of exceptional circumstances, and was not satisfied that an unacceptable risk had been established by the Director. She granted bail to the respondent on his own undertaking with a surety of $1,000,000 and upon stringent conditions.
Grounds of appeal
The Director relied upon the following grounds in support of this appeal:
1.That the learned Magistrate erred in granting bail to the Respondent in that in all the circumstances of the case the grant of bail was manifestly in error and an order refusing bail should have been made;
2.That the learned Magistrate erred in finding that, pursuant to sections 4AA(1) and 4A of the Bail Act 1977, exceptional circumstances existed that justified the grant of bail;
3.That the learned Magistrate erred in failing to find, pursuant to sections 4D and 4E of the Bail Act 1977, that there was an unacceptable risk that if released on bail the Respondent would:
a.commit an offence while on bail, or
b.fail to surrender into custody in accordance with the conditions of bail;
4.That the learned Magistrate erred in failing to properly take into account, pursuant to sections 3AAA, 4A and 4E of the Bail Act 1977, the surrounding circumstances of the case, and in particular,
a.the nature and seriousness of the alleged offending, including that these are serious examples of the offences,
b.the strength of the prosecution case,
c.the Respondent’s criminal history,
d.that at the time of the alleged offending the Respondent was on bail for another offence,
e.the Respondent’s personal circumstances, associations, home environment and background,
f.the length of time the Respondent is likely to spend in custody if bail was refused, and
g.the likely sentence to be imposed should the Respondent be found guilty of the offence with which the Respondent is charged.
The law
The appeal is brought by the Director under s 18A of the Act, which reads in part:
(1)If a person is granted bail, the Director of Public Prosecutions may appeal to the Supreme Court against the order granting bail if –
(a) the Director is satisfied that -
(i) the conditions of bail are insufficient; or
(ii) the decision to grant bail contravenes this Act; and
(b) the Director is satisfied that it is in the public interest to do so.
…
(6)On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, conduct a fresh hearing in relation to the grant of bail to the respondent.
In Director of Public Prosecutions v Molinaro (‘Molinaro’),[1] Weinberg JA stated:
The principles that govern an appeal of this kind are discussed in a number of authorities, including in particular, Beljajev v Director of Public Prosecutions (Vic) and Director of Public Prosecutions (Cth)[2], and Director of Public Prosecutions v Johnstone,[3] but most usefully, I think, in Director of Public Prosecutions (Cth) v Barbaro.[4] It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.
[1][2017] VSC 624.
[2](Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crocket and Ashley JJ, 8 August 1991), 29-30.
[3][2017] VSC 116.
[4](2009) 20 VR 717.
In Molinaro, the respondent asserted, and the Director did not challenge, that the test was whether the impugned finding of the magistrate was ‘reasonably open’. Weinberg JA expressed doubt that the words of s 18A(6) should be so construed, but decided the case in accordance with the test propounded.
Before me, both Mr Armstrong for the Director and Ms Ristivojevic for the respondent, submitted that that was, indeed, the correct test. I therefore proceeded on that basis.
Summary of alleged offending
Operation Lully was an Australian Federal Police (AFP) investigation into the importation into Australia on 28 September 2019 of approximately 57.5 kg of methamphetamine from Mexico. The drugs were concealed in what was designed to look like an industrial-style fridge. The consignment was addressed to a business in Thomastown called White Goods Direct. It is alleged on the prosecution case that the applicant was the organiser of the importation.
A relatively intricate circumstantial case is relied on by the prosecution in proof of the guilt of the applicant and two co-accused, Dean Josifidis (‘Josifidis’) and Ethan Mainieri (‘Mainieri’) who are asserted to have been involved in later steps to gain possession of the consignment after its arrival in the country. In short compass, the prosecution seeks to prove the following matters.
On 12 June 2019, the applicant travelled to Mexico, remaining until 21 June 2019.
On 2 July 2019, a Microsoft email account in the name of [email protected] was created (‘the consignment email address’). Internet Protocol (IP) records of this email account were reviewed for the period 2 July 2019 to 24 October 2019. On 21 separate occasions, these IP records matched known location data for the applicant as indicated by telecommunications records, flight records, gaming records, and immigration records. On the prosecution case, the applicant can be proved to be the user of the email account.
Also on 2 July 2019, a telecommunications service 0432 784 800 was set up using false subscriber details. A comparison of call charge records (CCRs) for this service with CCRs from a known telephone service of the applicant revealed him to be the user of the service ending in 800.
On 16 August 2019, a freight forwarder and customs broker Clarke Global Logistics (‘Clarke Global’) was first contacted via the consignment email address by a person identifying himself as Josh Tims. An email sent to Clarke Global from this email address at 3.49pm on this date was signed off with the name, ‘Anthony’. Two minutes later, a further email containing the same content but signed off as ‘Josh’ was sent.
Josh Tims requested that Clarke Global act in relation to customs clearance for a consignment to be received in Melbourne. At a later time, Josh Tims provided the mobile number ending in 800 as a contact number for him.
On 28 September 2019, an air cargo consignment arrived at Melbourne Airport from Mexico aboard a LATAM Airlines flight. The consignee’s details were White Goods Direct, with a Thomastown address, and a contact person Josh Tims with the consignment email address as the contact information. The contents of the consignment were declared as ‘semiautomatic equipment for the manufacture of pallets, ice cream and snow’. The Australian-based ground handling for the consignment was provided by Qantas Freight.
On 1 October 2019, the consignment was examined by Australian Border Force and then referred to the AFP. A forensic examination revealed 37 vacuum sealed bags of crystalline methamphetamine within the lead-lined side panels of the refrigerator. The net weight was 57.57 kg, and subsequent testing showed the weight of pure drug to be 46.21 kg. The street value of the seized drugs has been determined to be between $14.3 million and $28.7 million.
On 3 October 2019, acting under a controlled operation authority, Qantas Freight staff communicated with the person identified as Josh Tims via the consignment email address. During the communication, Josh Tims claimed to be the person responsible for the consignment. Josh Tims advised Qantas Freight that the broker for the consignment was Clarke Global Logistics Pty. Ltd. (Clarke Global)
On 7 October 2019, a person alleged to be the respondent but identifying himself as Josh Tims telephoned Clarke Global asking to speak to a staff member there. He left his 800 phone number. At 2.30pm on that date, a staff member of Clarke Global received a phone call from the respondent, identifying himself as Josh Tims. He advised that he had purchased the refrigerator to then on-sell to White Goods Direct.
Also on 7 October 2019, Clarke Global notified Qantas Freight that they no longer acted in relation to the consignment because they had not been provided with a valid Letter of Authority by the consignee.
On 10 October 2019, the applicant and Josifidis arranged to meet at Doncaster Shopping Town, the number plates of their respective motor vehicles being recorded at the complex by number plate recognition linked to the car park. At this time, the 800 phone was used to contact a different customs broker, David Zahorodni of 20 Cube Logistics Pty Ltd and request that the company act in relation to the consignment. Ultimately, that company refused to act in the matter.
On 21 October 2019, Josh Tims using the consignment email address requested yet another freight forwarder, Unified Freight Solutions Pty Ltd (‘UFS’) to act in relation to the consignment. On 22 October 2019, the 800 service was used to make a call to UFS, which call was not connected.
On 24 October 2019, the respondent used his other mobile service to view the website of the Australian Government Business Register in respect of records for several companies including a company named White Goods Recyclers Pty Ltd, a legitimate company. The ABN for that company was used in a later Letter of Authority sent to a customs broker in respect of the consignment.
On 25 October 2019, the respondent was arrested at Perth Airport in possession of two suitcases containing $545,000 in cash in bundles of $10,000 and $5,000. The respondent was arrested and interviewed in relation to the money. He claimed that the money was his, and had been brought by him from Melbourne to Perth that morning to be used for gambling at the casino in Perth. He claimed to be an undischarged bankrupt, which was true and to have earned the money by doing cash jobs for Chinese clients. He had not declared any earnings to the Australian Tax Office for three years. Enquiries at the airport revealed that the respondent had brought only one of the suitcases with him upon his arrival at the airport that morning.
At the conclusion of the interview, the respondent was charged with dealing with money suspected of being proceeds of crime and lodged in the Perth Watch House.
On 28 October 2019, the respondent was released on bail by Perth Magistrates’ Court with a surety of $25,000 and a condition that he reside at his parents’ address of 16 Jaserfold Street, North Balwyn.
Relevantly, at the time of his arrest in Perth, the respondent was found to be in possession of a dual-SIM mobile phone. The IMEI of the phone matched the IMEI linked to the 800 phone.
On 6 November 2019, UFS received an email from the consignment email address attaching a letter of authority in relation to the consignment, signed by Mainieri. On 8 November 2019, a mobile phone number registered to Mainieri contacted UFS to advise that he would be taking over from ‘Josh’.
From that time, a number of events allegedly took place involving the two co-accused. Those events, which are set out in detail in the informant’s report, led to the eventual arrest of Mainieri and Josifidis on 28 November 2019 and 12 December 2019 respectively.
During police interviews conducted after the arrests, neither co-accused implicated the respondent in their conduct in connection with the consignment. Mainieri gave an account of having been offered a sum of money by a person named Josh Tims whom he had met in a pub in Port Melbourne, to get an ice cream machine through customs.
Arrest of respondent and s 3LA offence
On 7 April 2020, members of the AFP executed search warrants at the residences of the respondent’s parents and former partner in North Balwyn and Mont Albert respectively. A number of items were seized including no fewer than six mobile phones in respect of which the respondent claimed ownership and some computers.
The informant asked the respondent if he was willing to voluntarily provide the passcodes for electronic devices seized during the search. He declined, and was then served with orders under s 3LA of the Crimes Act 1914 (Cth) compelling him to provide the information. After seeking legal advice, he declined to assist the police, answering ‘no comment’ to all further requests for passcodes. He was arrested and took part in a ‘no comment’ interview with the police. He was remanded in custody.
The bail application the subject of this appeal; 8 April 2020
This matter came on before her Honour as a filing hearing and contested bail application the day after the arrest of the respondent. 20 May 2020 was set as the date for the filing and service of the hand-up brief and 1 July 2020 was set down as the committal mention date.
Bail was opposed and the informant Federal Agent Denis Scott (‘FA Scott’) gave evidence in which he provided a detailed summary of the prosecution case against the respondent. In his evidence, when asked to describe the respondent’s role in the operation, he asserted that the respondent was the organiser and the co-accused were ‘at the bottom of this particular syndicate’.
He attested to the respondent’s ability, as he saw it, to access large sums of money, and pointed out that Operation Lully was an ongoing investigation, particularly in relation to the overseas aspects of it.
FA Scott gave evidence that in his view, the case against the respondent was a strong one, and spoke in justification of that opinion.[5]
[5]Bail application 10.
He indicated that enquiries revealed that the respondent had not been living at his parents’ address as required under the conditions of bail from Perth Magistrates’ Court. Rather, he had been living with his former partner in Mont Albert.
When asked his concerns in relation to a grant of bail, FA Scott stated that no source could be established for the large sum of money found in the respondent’s possession in Perth. The respondent had known associates with significant criminal backgrounds. There were signs the respondent may have been sleeping in his vehicle found outside the Mont Albert address. The vehicle was registered in Queensland. The respondent was not in a current relationship, and was not living at the address to which he had been bailed. As well as the concern about answering his bail, the possession by the respondent of a large number of mobile telephones was something which raised a concern that he may be involved in ongoing criminal conduct. Furthermore, the informant expressed the concern that the respondent may try to influence the co-accused.
In cross-examination, FA Scott agreed that he was aware of no evidence indicating direct participation of the respondent after 24 October 2019. He disputed that there was any evidence indicating that at any time, the respondent was acting on the instructions of the co-accused. He stated that he considered that the respondent was the originator of the scheme, and then after his arrest in Perth, handed the ongoing attempts to possess the drugs to the co-accused.
When asked in cross-examination whether his concern in respect of the respondent committing further offences would be allayed by the imposition of a substantial surety, he stated that such a surety may prevent further offending, but that in his long experience, sometimes a surety in itself was not enough.
The former partner of the respondent, Lina Okada, and his mother, Chen Su-Yu Lee, also gave evidence during the application. It is not necessary to summarise their brief evidence, other than to say that immediately after questioning the mother of the respondent seemingly to ensure she understood the obligations of being a surety, the learned magistrate said, apparently to those at the bar table:
Well, I’m going to leave that there and somebody else can talk about that. If he doesn’t comply with his bail conditions he could be locked up for many years waiting for his court case. That is if bail is granted.[6]
[6]Bail application 34.
Ms Ristivojevic for the respondent then made submissions in support of the grant of bail. She commenced by saying that she relied on a combination of factors in proof of exceptional circumstances, the ‘first and foremost’ of the matters being the availability of a substantial surety.
The learned magistrate immediately referred to decisions made by the Supreme Court and noted:
[E]verybody is concerned about delays and everyone is concerned about getting as many of the right people out of custody as possible. So that is an issue from my perspective. My perspective is I’ve got very little confidence that your client can comply with bail conditions and actually comply with a lifestyle that doesn’t involve high stakes gambling and access to large sums of money. That’s what hasn’t been addressed in this application.[7]
[7]Bail application 35.
Ms Ristivojevic then dealt with those concerns raised by her Honour, indicating the explanation which had been given to the police by the respondent, and submitting that there was little evidence that he was involved in money laundering.
She then proceeded to highlight the respondent’s employment situation, ties to the jurisdiction, and stable residence.
In respect of risk factors, Ms Ristivojevic submitted that a substantial surety would represent a significant incentive to the respondent to behave himself, and other conditions which could be imposed would ameliorate the risk he posed to an acceptable one.
In an apparent reference to the COVID-19 situation, Ms Ristivojevic submitted that, ‘the circumstances that (sic) would find himself in custody for a significant period of time are even more onerous in the circumstances’.[8]
[8]Bail application 38.
Her Honour then asked Ms Ristivojevic about the seriousness of the alleged offending. She conceded the offending was serious. She acknowledged there was ‘clearly a case to answer’, but pointed out that there was still much to be proved in terms of the role of the respondent, and more to unfold before the strength of the case could be understood.
Ms Ristivojevic submitted that it would be speculative to consider that the respondent had contributed to any delay by his refusal to provide access details for his devices.
At no time during her submissions did Ms Ristivojevic address the question of what would be the likely delay before the disposition of the charges.
Ms Mazoori for the Director made submissions in which she disputed that the matters relied upon by the respondent established exceptional circumstances. She emphasised the seriousness of the charges, and the fact that if convicted, the respondent would receive a sentence significantly longer than any period he would spend on remand. She submitted the prosecution case was a strong one.
As for the issue of delay, there was, submitted Ms Mazoori, no delay thus far, the respondent having been arrested only the day before. The standard timetable had been set leading to a committal mention date in July. Delay may arise later, ‘but at this stage that is purely speculative’.
As to family hardship, there was no evidence of that beyond that which would ordinarily be experienced by families of people detained in custody.
As for the implications of COVID-19, that did not amount to exceptional circumstances, alone or in combination with the other matters.
In respect of the availability of a surety of $1,000,000, Ms Mazoori drew her Honour’s attention to the decision of ReSipser[9] in which the availability of such a surety had not been sufficient to lead to a conclusion that exceptional circumstances had been made out or that the risk of failing to answer bail was an acceptable one.
[9][2019] VSC 362.
On the question of unacceptable risk, the risk relied upon was that of reoffending and that of failing to answer bail. The applicant had already breached the bail afforded him by Perth Magistrates’ Court by failing to reside with his parents in North Balwyn. He had provided an explanation, but had not sought any variation of the conditions of bail. In addition, he had further offended while on bail, at the very least by failing to provide the passcodes to his devices as required of him by the s 3LA order. The circumstances of his arrest in Perth demonstrated that he had access to large amounts of money from an unexplained source.
It was also submitted that in further offending, the respondent had placed his former partner, the surety, in jeopardy of forfeiting the $25,000 she had put up as security.
In all of the circumstances, and notwithstanding the current unavailability of overseas travel, the risk of flight by the respondent was real, submitted Ms Mazoori.
Having heard these submissions, the learned magistrate did not call further upon Ms Ristivojevic. She then said, ‘I’ve got very little confidence in Mr Lee’s ability to understand and comply with bail conditions. What is bail, Mr Lee? I asked your mum. What’s bail?’[10]
[10]Bail application 44-5.
In a conversation that then followed with the respondent, her Honour said, at one point, ‘You see, I don’t trust you very much, Mr Lee. I really don’t trust you very much’. Shortly afterwards, she said, ‘So I’m not quite sure that you have any understanding of what the consequences are of your actions’. [11]
[11]Bail application 46.
Moments later, her Honour said the following:
The bottom line is that the prosecution want me to take the view that there’s no exceptional circumstances. I don’t take that view. There are clearly exceptional circumstances. Your case may not come before the courts for three, four or five years and you would be placed on remand for that period of time in a situation where there is a pandemic, lockdowns, quarantines. That’s what your facing. Your former partner gave long evidence about your concerns about the pandemic. I’m not sure how much weight to give that. I found that your former partner was a woman of substance and very credible. I can’t imagine what you’re putting her and the children through. Your poor mother has got no idea what you’ve been charged with. At some stage you’re going to have to tell her all about that.[12]
[12]Bail application 47.
Her Honour then said, ‘Notwithstanding the serious nature of the offending, I’ve taken the view that with appropriate conditions I can reduce the remaining concerns I have about you. Mr Scott knows me very well and he knows that I won’t brook any nonsense from you. Will I, Mr Scott?’[13]
[13]Bail application 47-8.
The respondent was then granted bail, upon conditions spelt out in the transcript. In the certified extract of the order which set out the conditions of bail in full, there was no statement of her Honour’s reasons for granting bail.
The Director’s submissions
Mr Armstrong took the Court through the law as it applied to the bail application below. In addition, because of the seeming central importance of the question of delay and the circumstances under which remand prisoners are currently held, he carried out an analysis of a number of decision touching on the implications of the COVID-19 pandemic, in particular, the recent case of Re Diab[14] in which Beach JA summarised the principles revealed thus far in the cases.
[14][2020] VSC 196.
Turning to the particular finding by the learned magistrate that the trial of the respondent may not be heard ‘for three, four or five years’, Mr Armstrong submitted that the likely delay upon which her Honour seemingly acted as the central basis for her decision granting bail was not established on the application and was not correct, leading to her Honour placing undue weight on the question of delay.
Furthermore, the initial comment by her Honour set out in paragraph 46 provided an indication that her Honour had elevated the issue of the COVID-19 considerations beyond their proper role as simply one of the surrounding circumstances.
A further related error, so it was submitted, was the fact that her Honour seemingly acted on the basis that the onerous remand conditions currently brought about by the pandemic would endure throughout the whole period of time the respondent would spend on remand. There was no basis at all for such a conclusion.
Turning to the strength of the case, Mr Armstrong characterised the case as a strong one, largely made up of incontrovertible and telling pieces of circumstantial evidence.
The offending was exceedingly serious, with two of the three charges faced by the respondent attracting a maximum sentence of life imprisonment. The imported drugs contained 46.21 kg of pure methamphetamine, constituting 62 times the commercial quantity for that drug. The respondent is alleged to be the organiser of the importation. The offending is at the high end of the range of seriousness, submitted Mr Armstrong.
In respect of the criminal history of the respondent, it is brief, but it discloses a significant prior conviction for defrauding the Commonwealth by making false claims for social security benefits over a period of time.
Another of the important surrounding circumstances was the fact that the respondent was on bail for the Perth matter for the latter part of the continuing offence of attempting to obtain possession of the illegally imported drugs, and for the discrete offence of failing to comply with the s 3LA order. Furthermore, the respondent had a condition of the Perth bail that he reside with his parents in North Balwyn. He was not doing so at the time of his arrest on 7 April 2020. That was a significant failing which exposed his surety, his former partner, to the risk of forfeiting the $25,000 she had lodged in support of the bail.
On the question of unacceptable risk, the availability of the large surety in this matter needed to be seen in the context of the large street value of the imported drugs and the fact of the respondent having been arrested in Perth with $545,000 of unexplained cash. In light of those considerations, the amount proposed for the surety ‘is not such an impressive amount’.
It was submitted that the respondent posed an unacceptable risk of committing an offence on bail or failing to answer bail due to the facts that he had:
· breached bail by failing to reside at the required address and by further offending;
· put his ex-partner at risk of forfeiting her $25,000 surety;
· access to large amounts of money;
· a history of travelling frequently overseas and domestically, raising the prospect he could bypass traditional departure points;
None of these risks, it was submitted, was impacted or reduced by the pandemic.
In summary, it was submitted by Mr Armstrong that bail should have been refused by the learned magistrate, who was manifestly in error when granting bail. It was not reasonably open to her to conclude that exceptional circumstances had been shown to exist, and nor would she have done so had she properly taken into account all of the surrounding circumstances in the case, including those set out in ground 4 in the Notice of Appeal. Furthermore, it was not reasonably open to her Honour to find that the Director had failed to prove an unacceptable risk of the respondent committing further offences on bail or failing to answer his bail.
The respondent’s submissions
Ms Ristivojevic conceded at the outset that it was clear that her Honour did not state her reasons for granting bail in the certified extract of the order of the court, and furthermore, that she could have stated more clearly during the hearing itself what her reasons for bail were, and which matters she had taken into account. What was clear from the transcript, however, was that the relevant matters were canvassed during the hearing, and I should infer, particularly in view of her Honour’s considerable experience as a magistrate, that she did, indeed, fully take the relevant matters into account in reaching her decision. The fact that she did not clearly articulate her view about the relevant considerations amongst the surrounding circumstances including the seriousness of the offending and the strength of the case did not mean that she did not properly take them into account.
It could be clearly gleaned from what took place in the court below that her Honour found exceptional circumstances predominantly due to the likely delay in the hearing of the trial.
As to her Honour’s expression of the concern that the respondent may spend three, four or five years on remand, Ms Ristovojevic conceded that there was no evidence before her indicating such a time frame, and nothing in the authorities pointing to delays of that order. It was submitted that her Honour must have arrived at such figures by taking judicial notice of what had been happening to her knowledge both in the Magistrates’ Court and in the County Court insofar as delays were concerned. She was aware of the expected delays before the onset of the pandemic, and must have adjusted things up according to the likely additional delays.
Whilst Ms Ristivojevic did not seek to defend the estimate of three to five years’ delay, there was a real possibility that the delay may indeed be of the order of three years. She disputed that the case was likely to get on much sooner than that. Even if the delay might be of the order of two years, that of itself would be a significant matter in proof of exceptional circumstances.
In respect of the strength of the prosecution case, Ms Ristivojevic submitted that there would be issues as to the intent and knowledge of the respondent, and whether or not he may have been acting under the directions of others. However, whilst disputing that the case was an overwhelming one, she conceded that it was strong.
Ms Ristivojevic submitted that on a consideration of the evidence before her, it was reasonably open to her Honour to conclude that there were exceptional circumstances, albeit that she did not express her conclusion satisfactorily. In particular, even if she was wrong about the likely delay, the addition of the delay likely to be brought about by COVID-19 to the likely pre-pandemic delay would still lead to an inordinate delay.
As for the question of unacceptable risk, the availability of a substantial surety played an important part in her Honour’s consideration, and rightly so. In light of the availability of the surety and the other surrounding circumstances, including his significant ties to the jurisdiction, the family support he would receive and his employment, it was reasonably open to her Honour to find that any risk posed by the respondent could be ameliorated to an acceptable level.
Analysis
The starting point of the application for bail in the court below was of course the fact that this was a case where the presumption contained in s 4 of the Act in favour of bail had been displaced by a statutory requirement for bail to be refused unless the respondent discharged the onus resting on him of satisfying the court as to the existence of exceptional circumstances that justified the grant of bail.
The meaning of exceptional circumstances has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[15] stated the relevant principles as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[16]
[15][2004] VSC 17.
[16]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
Further, in the recent decision of Re Brown,[17] Lasry J noted:
… the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be ‘exceptional’, it has been accepted that:
·The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
·Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
·Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[18]
[17][2019] VSC 751.
[18]Ibid [65]-[66] (citations omitted).
In my view, although of course, the applicable legislation does not dictate the order in which relevant matters may be considered by a court, or which matters should assume the most importance, the sensible starting point in considering this application for bail was a consideration of the first two matters contained in s 3AAA(1) of the Act, that is the nature and seriousness of the offending, and the strength of the prosecution case.
In respect of the first matter, the offending alleged here against the respondent concerned the importation and then attempted possession of an amount of methamphetamine which vastly exceeded the commercial quantity applicable to that drug and which had a very substantial street value. The offending was carefully planned, involved the use of false details and a false identity, and it was alleged that many active steps were engaged in by the respondent in carrying out of the crimes. The maximum penalty applicable to the first two charges faced by the respondent is life imprisonment. The offending as alleged is of an exceptionally high degree of seriousness.
As for the strength of the case against the respondent, I do not need to go down the path of assessing the submissions of Ms Ristivojevic in respect of the possible lines of defence for the applicant. Ms Ristivojevic conceded that the prosecution case was strong, and that concession, to my mind, was undeniably correct.
Moving, for now, straight to the question of the likely sentence to be imposed should the applicant be found guilty, the inevitable result would be a very long term of imprisonment.
The likely period on remand should bail be refused, the matter for consideration under s 3AAA(1)(k), was seemingly the matter at the heart of her Honour’s reason for granting bail. It should be noted that at the time of the application below, the prosecution of the respondent was in its infancy. The bail application took place during the first court appearance of the respondent, only the day after he was charged.
On that day, and before the application for bail commenced as such, the prosecution provided a timetable for the service of the prosecution brief and the hearing of a committal mention which was in accordance with the usual conventions. There was nothing said to indicate that there would be any particular delay in proceedings, aside from the fact that it was known by everyone that some delays could be expected due to the implications of COVID-19, and due to the need to unite this prosecution with those of the co-accused.
There were no specific discussions embarked upon during the application as to the likely hearing date of the trial. In spite of that, and in apparent justification for the decision which she was in the process of announcing, her Honour stated that the matter would not come before the court for ‘three, four or five years’. There was no material before her Honour which justified such a view. It is difficult to understand upon what she based her finding. Ms Ristivojevic submitted that her Honour, using her undoubted substantial experience, took judicial notice of what she knew had been taking place in recent times, applied that data to the pre-pandemic situation in respect of delays, and came up with the figures.
If her Honour did, indeed, engage in such a process, she should not have done so, and in any event, she arrived at a view of the likely delay which did not accord with the reality of the situation as she should, with respect, have viewed it.
Ms Ristivojevic submitted that even if her Honour was wrong to consider a delay of up to five years, the real delay in prospect may be as much as three years, and even if the delay was more likely to be of the order of two years, it would still be an inordinate delay, and would be a strong matter in support of the proof of exceptional circumstances.
I do not accept those submissions. First, there was nothing about the circumstances here to suggest that the delay before trial may be as much as three years. Secondly, a delay of the order of two years, whilst hardly desirable, could not be described as inordinate in a case such as this.
Another problematic aspect of her Honour’s decision was the fact that in considering the implications of the delay, her Honour seemingly acted on the assumption that the onerous nature of the current conditions in custody would persist throughout the period of time the respondent would spend on remand should bail not be granted. There was no basis upon which her Honour could have reached this conclusion, as submitted by the Director before me.
The matters amongst the surrounding circumstances to which I have already referred would mean that her Honour was considering an application for bail by a person charged with exceedingly serious offending, in circumstances where the case was strong, the likely period on remand by no means excessive or unusual, and where the applicant for bail faced the certainty of a very lengthy sentence in the event of conviction.
Therefore, very powerful material would have to have been found amongst the other surrounding circumstances to lead to exceptional circumstances being proved in justification for the grant of bail.
I consider that the other material relied on in that regard was far from powerful, and nowhere near sufficient, in combination with the likely delay, to amount to exceptional circumstances. Indeed, most of the matters were far from unusual or exceptional, alone or in combination.
In my view, it is clear that her Honour erred in granting bail in this case. It was not reasonably open to her Honour to conclude that the material before her was sufficient to prove that exceptional circumstances existed that justified a grant of bail. Indeed, the material relied upon in support of bail was far from strong.
Furthermore, I consider that it was not reasonably open to her Honour to fail to find that the respondent, if released on bail, would pose an unacceptable risk of reoffending or failing to attend in answer to his bail. Amongst the matters which, to my mind, should have led to a conclusion of unacceptable risk, were the exceptionally serious nature of the offending, the long term of imprisonment which, in reality, and to the respondent’s mind, would inevitably flow from a conviction, the strong nature of the case against the respondent, his apprehension on 25 October 2019 in Perth in possession of a large unexplained sum of cash, his subsequent breach of the bail to which he was admitted in Perth, his unexplained possession of a large number of mobile phones at the time of his arrest, the fact that he is an undischarged bankrupt, and his inclination to frequently engage in overseas and interstate travel. He should have been considered by her Honour to be a person who would be under extreme pressure should he be released on bail, with a very strong incentive to flee, and also a strong incentive to engage in criminal offending in light of his precarious financial position. In my view, the risks he posed were obvious, and could not be sufficiently mitigated by the imposition of even the most stringent of conditions.
My conclusion that it was not reasonably open for the learned magistrate to find that there were exceptional circumstances justifying the grant of bail in this case or that the risks posed by the respondent were acceptable would be sufficient to lead me to allow the appeal and set aside the grant of bail.
For completeness, however, I respectfully make the following observations concerning the way in which the application proceeded in the Magistrates’ Court.
A number of important matters amongst the surrounding circumstances, whilst in most cases ventilated by the prosecutor or defence counsel, were not the subject of any express consideration by her Honour. It was submitted by Ms Ristivojevic that because the matters were canvassed in submissions and because of her Honour’s great experience, I should infer that she did, indeed, take all of these matters into account.
It would be difficult to draw that inference. This is particularly so in view of the fact that to my mind, had all of the relevant matters been properly considered by her Honour, it would have been plain to her that bail should be refused.
The picture was made no more clear by the level of the reasons provided by her Honour for her decision to grant bail. Even allowing for the very heavy workload of the court in which her Honour carries out her duties, it seems to me that the reasons given by her Honour were inadequate.
There is a requirement under s 12A(2) of the Act for a bail decision maker granting bail to a person charged with the offences faced by the respondent to ‘include in the order granting bail a statement of reasons for granting bail’.
In Director of Public Prosecutions v Harika,[19] Gillard J said, of reasons provided by a magistrate in that case under the then s 4(4) of the Act:
Taken in isolation, the reasons are difficult to comprehend. Whilst one commends any judicial officer for being brief and to the point, the statement must be comprehensible to the reasonable reader and satisfy the description of ‘reasons’. The object of the requirement is to ensure that judicial officers turn their minds to the issues and determine the matter in accordance with the law. The obligation to state reasons focuses the mind on the issues. In order to determine whether the judicial officer has done so, one turns to the reasons.[20]
[19][2001] VSC 237.
[20]Ibid [30].
The requirement to state reasons would not require a detailed analysis of the reasoning processes of the decision maker. I do not consider, however, that the things said by her Honour during the bail application, including at the time she announced her decision, would amount to compliance with the provision.
Conclusion on appeal
For the reasons set out above, I allowed the appeal by the Director, set aside the order granting bail and revoked bail. I then conducted a fresh hearing in relation to bail as required by s 18A(6) of the Act.
Fresh application for bail
Ms Ristivojevic relied upon the matters set out in the comprehensive affidavit in response by Steven Pica in support of the existence of exceptional circumstances. The affidavit expanded upon many of the matters raised in the court below including those touching on his employment and other aspects of his personal history. One of the additional matters relied upon was the mental condition of the respondent as set out in the report of a psychologist Dr Lynette Cramer exhibited to the affidavit.
The application before me was in reasonably and appropriately short compass. Ms Ristivojevic relied on the issue of delay, whilst not endeavouring to justify the possible period of three to five years relied upon by her Honour and endorsed by Mr Pica in the affidavit.
Also relied upon were the onerous conditions in which the respondent would be held on remand. Reference was made in that regard to the affidavit of Jennifer Hosking[21] filed at the hearing before me.
[21]Acting Assistant Commissioner, Sentence Management Division, Corrections Victoria.
The availability of a substantial surety was again strongly relied upon, and the fact that the surety was the mother of the respondent, with whom he would be living if granted bail, was submitted to be significant.
In her submissions, Mr Ristivojevic acknowledged the fact that the respondent had breached the conditions of the grant of bail from Perth Magistrates’ Court, but submitted that whilst not living at the required address, he did not attempt to conceal his whereabouts.
In respect of the offence of failing to comply with the s 3LA order, Ms Ristivojevic informed me of more recent steps by the respondent to comply with a subsequent order made in that regard. He had provided access details for most of the devices.
A new matter relied upon before me was the fact that in the weeks since bail had been granted, the respondent made no attempt to flee the jurisdiction. The proof of the pudding was in the eating, it was submitted.
Ms Ristivojevic submitted in summary that exceptional circumstances had been shown to exist.
As to the question of risk, the respondent had limited criminal history, very strong ties to the jurisdiction and, as noted above, had not sought to flee when given the opportunity.
It was submitted that in all of the circumstances, stringent conditions including a surety could be imposed which would ameliorate the risks posed by the respondent to an acceptable level.
Ms Armstrong, in opposition to a grant of bail, and largely relying on his earlier submissions and the filed material, submitted that the respondent had failed to prove exceptional circumstances.
In respect of the subsequent s 3LA order, the respondent had not provided access details to two of the Blackberry devices found in his possession, one of which was apparently being carried by him for a time in December last year, indicating that he must have been using the device. It was likely that device would contain material relevant to this case.
In respect of the likely delay, Mr Armstrong informed the Court of two protocols released by the County Court, one of them contemplating the resumption of trials in October.
Mr Armstrong questioned some of the defence material concerning the proposed employment of the respondent, and submitted that the report from the psychologist indicated the respondent only saw fit to consult her when he had looming court cases.
In conclusion, Mr Armstrong submitted that for these reasons and those the subject of earlier submission, the respondent had failed to establish exceptional circumstances.
Furthermore, even if exceptional circumstances had been established, there was an unacceptable risk as previously asserted.
Analysis in respect of fresh bail application
The position of the respondent was little stronger than that in which he found himself at the time of his application for bail in the Magistrates’ Court. I found, in respect of the decision of the learned magistrate in that application, that it was not reasonably open to the her Honour to be satisfied of the existence of exceptional circumstances in justification of the grant of bail, and nor was it reasonably open to her to fail to find an unacceptable risk as asserted by the Director.
Looking afresh at the material as it now appeared, I did not consider that the respondent went close to discharging the onus resting upon him of satisfying me of the existence of exceptional circumstances.
For completeness, I can indicate that had I been satisfied of the existence of exceptional circumstances which would have justified the grant of bail, I would have been satisfied of the existence of an unacceptable risk as asserted by the Director.
Conclusion
For the reasons stated above, the fresh application for bail was refused.