In the matter of an application for bail by MI
[2019] VSC 347
•17 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0093
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an application for bail by MI |
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JUDGE: | Macaulay J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 May 2019 |
DATE OF RULING: | 17 May 2019 |
CASE MAY BE CITED AS: | In the matter of an application for bail by MI |
MEDIUM NEUTRAL CITATION: | [2019] VSC 347 |
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CRIMINAL LAW — Application for bail — Applicant charged with importing and attempting to possess commercial quantities of a border controlled drug — In total 50 kilograms of cocaine — Exceptional circumstances test — Whether factors in combination amount to exceptional circumstances — Bail Act 1977, ss 4A & 4AA — Criminal Code 1995 (Cth), ss 11.1, 307.1 & 307.5 — Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | C Farrington | Milides Lawyers |
| For the Respondent | P Darby | Commonwealth Director of Public Prosecutions |
HIS HONOUR:
Application for bail
On 11 January 2019, the applicant was arrested and subsequently charged with two counts of attempting to possess a commercial quantity of a border controlled drug (cocaine)[1] and one count of importing a commercial quantity of a border controlled drug (cocaine).[2]
[1]Contrary to s 307.5 of the Criminal Code 1995 (Cth). Section 11.1 of the Criminal Code 1995 (Cth) provides that a person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
[2]Contrary to s 307.1 of the Criminal Code 1995 (Cth). The applicant also faced a fourth charge for contravention of s3LA(5) of the Crimes Act 1914 (Cth) which, the Court was informed, will be withdrawn.
Relating to events alleged to have occurred between 17 December 2018 and 12 January 2019, the charges resulted from two separate investigations conducted by the Australian Federal Police (‘AFP’), codenamed Operation Mackey and Operation Arquebus, into the importation and possession of cocaine.[3]
[3]The informant in both matters is Federal Agent James Dalton.
A magistrate refused the applicant’s application for bail in the Melbourne Magistrates’ Court on 28 February 2019. Offences of attempting to possess and importing a commercial quantity of a border controlled drug being Schedule 1 offences under the Bail Act 1977,[4] the applicant was required to satisfy the magistrate that exceptional circumstances existed to justify the grant of bail, which he failed to do.[5] The matter is currently listed for committal hearing on 10 July 2019 at the Melbourne Magistrates’ Court.
[4]Bail Act 1977 (Vic), (‘Act’).
[5]An application for bail was originally listed at the Melbourne Magistrates’ Court on 23 January 2019, where Magistrate Kledstadt granted leave for the applicant to be assessed for suitability for the Court Integrated Services Program.
By notice dated 11 April 2019, the applicant seeks a grant of bail in this Court.
The co-accused in this matter was arrested on 8 January 2019 in relation to one of the investigations and charged with attempting to possess a commercial quantity of a border controlled drug. He has not made an application for bail and his matter is listed for committal mention on 16 May 2019 at the Melbourne Magistrates’ Court.
Circumstances of alleged offending
What follows is a summary of the allegations made by the respondent. At trial, it is expected that the applicant will dispute some of the alleged facts.
Operation Mackey
On 11 December 2018, a package was intercepted by the United States Department of Homeland Security Investigations (‘the US Department’) at Miami International Airport. The package originated from Costa Rica and was consigned to a haulage company in Perth. Weighing a total of 980 kilograms, the package contained electric transformers concealing 38 blocks of cocaine weighing approximately 42 kilograms.
The cocaine was removed from the package before being forwarded to the AFP, who obtained an ‘authority to conduct a controlled operation’ which authorised controlled delivery of the consignment to its intended recipient. The AFP then used an ‘inert substance’ to rebuild the consignment and made it available for delivery.
On 27 December 2018, the package was delivered to the Perth haulage company where it remained until 3 January 2019, at which time it was hauled by truck to an address in Victoria.
On 5 January 2019, the applicant sent a text message to his uncle, stating ‘I’ve got a mate that needs a favour, it’s a 5min job, gotta move one thing on a forklift, but I’ll explain [m]ore when I call ya, 500 600 he’ll pay you.’ There is also evidence of a telephone conversation between the applicant and his uncle in which his uncle enquires about the contents of the truck, to which the applicant replies ‘well … use your imagination’. The applicants uncle held a licence to drive a forklift.
On 6 January 2019, the applicant arranged to hire a forklift to be delivered to the address at which the package was scheduled for delivered by the haulage company the following day. Payment for the forklift hire was made by the applicant using his credit card and a receipt was sent to his phone. The applicant also directed his uncle to meet with the co-accused at the delivery address the following day.
On 7 January 2019 the haulage company attempted to deliver the consignment but, finding no-one in attendance at the time, took it to a depot. Re-delivery was then arranged for 8 January. During the course of the day on 7 January, the applicant had several communications with his uncle about the changed arrangements.
At approximately 11.15am on 8 January, the consignment was delivered to the front of property at the delivery address and signed for by the co-accused. The co-accused then contacted the applicant’s uncle to advise him of the delivery. Shortly afterwards, the applicant’s uncle arrived at the premises and used the forklift to move the consignment into a garage at the rear of the driveway before departing again. At approximately 11.54am, the applicants uncle contacted the applicant and advised him that the consignment had been moved.
At approximately 1.00pm, police entered the garage and observed that the co-accused had opened the consignment and removed one of the transformers from its packaging. A receipt for the consignment delivery was located in the co-accused’s back pocket. The co-accused was arrested, charged and remanded in custody.
Operation Arquebus
On 17 December 2018, a parcel containing a roll of electric cable arrived at Melbourne Airport from France. The parcel was addressed to a takeaway shop in Melbourne. The applicant is a co-owner and manager of that business.
Upon examination by Australian Border Force officers, the electrical cable was found to conceal eight blocks of cocaine weighing approximately 8 kilograms.[6] Documents inside the parcel listed the applicant as the consignee. The matter was referred to AFP for further investigation.
[6]Forensic examination of two samples taken from the parcel indicated the parcel contained cocaine with a pure net weight of 6.43 kilograms.
On 10 January 2019, an ‘authority to conduct a controlled operation’ was issued. AFP officers replaced the cocaine with ‘an inert substance replicating cocaine’. On 11 January 2019, at approximately 4.08pm, the parcel was delivered by an AFP officer – purporting to be a delivery driver – to the applicant’s business. The applicant accepted delivery of the parcel, led the AFP officer down a laneway next to the business to an area containing bins which was accessed by a roller door, lifted the roller door and directed the AFP officer to place the parcel behind a large dumpster. The applicant then pushed the dumpster back into place, concealing the parcel, and closed the roller door.
At 11.08pm, the applicant returned to the bin area, lifted the roller door and entered, closing the roller door behind him, and remained there for approximately three minutes. Soon thereafter, police arrested the applicant in his vehicle as he exited an underground carpark next to the takeaway shop. At the scene, the applicant told police that the area containing the large dumpster was a storage area for ‘oils and stuff’ and that nothing else was stored there. He admitted he had attended the area that day to empty the bins. At the rear of the bin area was a locked gate. Police were able to unlock the gate using keys they found in the applicant’s vehicle. Behind that gate was the unopened parcel.
Later, upon being interviewed, the applicant admitted that he accepted delivery of the parcel, but denied having access to the storage area where the package was found. He said he did not have a key for the locked gate, and denied moving the parcel from behind the dumpster. The applicant denied that the business ever made international orders and made no comment when questioned in relation to Operation Mackey.
Applicant’s personal circumstances
The applicant is 28 years old. Prior to being on remand, he resided with his mother at his own property, purchased in 2013. Since completing year 12 at school in 2008 he remained in stable employment; completed a food handling and preparation qualification in 2016; and, in 2017, with two partners, acquired and thereafter operated the takeaway shop.
According to a Psychological Assessment Report dated 23 January 2019 and filed on behalf of the applicant,[7] the applicant has a history of mental health issues stemming from the death of his step-father and the breakdown of his own relationship in 2015. At that time he was placed on a mental health care treatment plan and attended four psychological counselling sessions before ceasing the sessions. He has had no medication, nor had he obtained any further treatment or counselling before being arrested. Most recently, while in custody, he has been diagnosed as suffering a Major Depressive Disorder (with anxious distress).
[7]Exhibit ‘TM-10’ of the Affidavit in Support of Bail.
The applicant has no prior criminal history in Australia.
Since 2015 he has been in a romantic relationship, and he enjoys the strong, caring and loyal support of both his family and his partner’s family.
Legal principles
Section 4 of the Act makes plain that the applicant is entitled to bail unless the Act requires the Court to refuse it.
Section 4AA of the Act sets out circumstances in which a ‘2-step test’ applies to the consideration of a grant of bail in certain cases. Section 4AA(1) requires, as the first step, that the ‘exceptional circumstances test’ be applied when deciding whether to grant bail to a person accused of a Schedule 1 offence.
Having been accused of committing Schedule 1 offences, namely, attempting to possess and importing a commercial quantity of a border controlled drug,[8] the applicant accepts that he is required to establish exceptional circumstances to succeed on his application. In such a case, pursuant to ss 4A(1) and 4A(1A) of the Act, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The burden of satisfying the Court that exceptional circumstances exist rests with the applicant.[9]
[8]Act, Schedule 1, Item 9.
[9]Ibid, s 4A(2).
In considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’.[10] This draws attention to s 3AAA of the Act, which sets out the following circumstances that are relevant to this matter and that the Court must take into consideration:
[10]Ibid, s 4A(3).
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused’s criminal history;
…
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
…
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
…
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, pursuant to s 4D(1)(a) of the Act the Court must then apply, as the second step, the ‘unacceptable risk test’ in s 4E(1) of the Act. It requires the Court to refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail:
·endanger the safety or welfare of any person; or
·commit an offence while on bail; or
·interfere with a witness or otherwise obstruct the course of justice in any matter; or
·fail to surrender into custody in accordance with the conditions of bail.
The burden of establishing unacceptable risk rests upon the prosecution.
Finally, when interpreting the Act, s 1B requires the Court to take into account, inter alia, that:
(1) The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extend possible; and
(b)taking into account the presumption of innocence and the right to liberty; and
…
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
In the present case, the respondent does not submit that the applicant is an unacceptable risk. It follows that if the applicant satisfies this Court that exceptional circumstances exist to justify his release on bail, he is entitled to succeed in his application.
Meaning of exceptional circumstances
In Re Reker,[11] Beale J noted with approval what Kaye J had said in the case of Muhaidat:[12]
The question of what are exceptional circumstances has been canvassed before. 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.[13]
[11][2019] VSC 81, [39]. See also Re CT [2018] VSC 559, [64].
[12][2004] VSC 17.
[13]Ibid, [13]-[14].
The test is a ’high hurdle’, although ’not an impossible standard to reach’.[14]
[14]Re TP [2018] VSC 748, [33].
Exceptional circumstances may, in appropriate cases, be established through a combination of factors ’including matters involving the nature of the Crown case, as well as personal factors pertaining to the applicant’.[15]
[15]Re CT, [65]; Re Ceylan [2018] VSC 361, [45].
In comparing the two tests under the Act, being the ‘exceptional circumstances’ test and the ‘compelling reason’ test, Beach JA noted in Re Ceylan that the exceptional circumstances test is plainly intended to be the more difficult test to satisfy.[16]
[16]Re Ceylan, [45].
The expression ‘exceptional circumstances’ was also considered by Champion J in the bail decision of Re CT.[17] In that case, his Honour held:
[17][2018] VSC 559.
The Act does not define what may amount to exceptional circumstances. It is well established that, ‘in order to be exceptional, the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’.[18] It has been observed that ‘the hurdle confronted by an applicant in establishing exceptional circumstances ‘is a high one’.[19] That having been said, it is not an impossible standard to reach.
It is widely accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors, including matters involving the nature of the Crown case, as well as personal factors pertaining to the applicant.[20] Frequently, matters involving the nature of the Crown case involve issues concerning the strength or weakness of the case; undue delay in bringing the matter to trial; or, unusual features of the alleged offending, or the investigation, which might either solely, or in combination, make the circumstances exceptional.[21]
As pointed out by Lasry J in Armstrong v R, in assessing whether exceptional circumstances have been made out:
the formulation that is most often referred to is that of Vincent J in Moloney in which his Honour observed:
A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.[22]
[18]Re Sam [2017] VSC 91, [22].
[19]Armstrong v R [2013] VSC 111, citing Maloney, unreported judgment, Supreme Court of Victoria, Vincent J, 31 October 1990; see also Re Whiteside [1999] VSC 413.
[20]Re Fairest [2015] VSC 375, [17]–[18].
[21]Ibid, [22].
[22]Armstrong v R [2013] VSC 111, [31].
Relevantly for this case, in Re Gloury-Hyde,[23] Priest JA noted that, in addition to the strength of the prosecution case and the applicant’s personal circumstances, an absence of factors indicating that the applicant poses an unacceptable risk can itself contribute to demonstrating exceptional circumstances that justify a grant of bail.[24] Further, in that case, the applicant was 23 years old, had no criminal history and was diagnosed with an acquired brain injury. In considering the applicant’s right to liberty, his Honour stated that he considered such a right to be of ‘particular importance’ where the applicant is young and has physical, psychological and cognitive problems. It was contemplated that the nature and extent of those problems, in combination with other factors such as the availability of treatment, may establish exceptional circumstances.[25]
[23][2018] VSC 393.
[24]Ibid, [30].
[25]Ibid, [35].
Contentions
The applicant contends that a number of matters are established by the evidence, and, in combination, demonstrate exceptional circumstances that justify his admission to bail. He makes the following submissions:
(a) he has no criminal history and is of good character;
(b) he has significant ties to the jurisdiction including his immediate and extended family as well as his partner and her family. He owns a mortgaged property and is a business partner in the takeaway food business;
(c) he has stable accommodation available at his property, which he shares with his mother;
(d) he has full time employment available to him immediately upon his release at his business. Further, his absence is placing pressure on that business. As well, he has available employment at his mother’s business;
(e) his psychologist, who assessed him on 22 January 2019, whilst in custody, has expressed ‘concern’ that, given his history of recurrent depression and his lack of contact with the criminal justice system, incarceration will be particularly onerous for him and will lead to a further decline in his mental health, whereas if he were to engage in and comply with treatment to manage his depression and anxiety within the community, his overall functioning would improve and his current symptoms of depression would likely be alleviated in a more timely manner;
(f) the applicant was assessed by the Court Integrated Services Program (‘CISP’) on 5 May 2019 which, in its report, noted his history of depression and anxiety and his current struggles with anxiety due to being in custody for the first time, exacerbated by concerns regarding his financial situation with respect to his business and his home. Should he be granted bail, CISP has arranged for him to be seen by a doctor on 20 May 2019 for preparation of a mental health plan and referral to a psychologist, has identified and encouraged him to use freely available grief and debt-counselling services, and will provide post-release phone support to him for one month;
(g) his mother is prepared to provide her property as surety if he is granted bail, noting that the equity available in that property is in the sum of $100,000;
(h) the case against him is largely circumstantial: in relation to Operation Mackey, the only direct evidence linking him to the consignment is the evidence relating to him hiring a forklift and a driver to remove the pallet from the truck: and, in relation to Operation Arquebus, while he admits that the parcel was addressed to him at his business address and that he signed for the parcel on delivery, there is no evidence that he tracked the consignment, made enquiries prior to its delivery or attempted to open the parcel once it had arrived;
(i) there is likely to be significant delay in the resolution and determination of this matter, in particular because of the likely delay associated with a Mutual Assistance Request between the Australian and American authorities.[26] The AFP require proof from the US Department that the original substance in the consignment was cocaine, including purity testing in order to prove the charge. This request has yet to be made by the Australian authorities, let alone answered by the US Department, and will most likely delay the progress of the matter by at least several months.
(j) if appropriate conditions are imposed on any grant of bail, due to his lack of prior criminal history, good character, ties to the jurisdiction, stable employment and accommodation and strong family support, he would not be an unacceptable risk of failing to appear, committing further offences or of endangering the safety and welfare of the public.
[26]This arises by virtue of the consignment with respect to Operation Mackey having originated in the United States and being intercepted in Miami via Costa Rica.
In those circumstances, it was submitted that because the respondent does not allege that the applicant is an unacceptable risk of flight, further offending or interfering with witnesses, refusing him bail now would give his continued detention a purely punitive flavour. Put differently, the applicant argues that the only factor precluding a conclusion of ‘exceptional circumstances’ is the seriousness of the alleged offending.
The respondent opposes the application and submits that the applicant has failed to demonstrate exceptional circumstances that justify the grant of bail. Addressing the ‘surrounding circumstances’, the respondent made submissions as follows:
(a) Concerning the nature and seriousness of the alleged offending ―
(i) the maximum penalties for the charges are life imprisonment, indicating that they are in the most serious category of offences;
(ii) charges 1 and 2 (Operation Arquebus) relate to the importation of 6.4 kilograms of pure cocaine, which is over three times the threshold amount for a commercial quantity of cocaine,[27] and charge 3 (Operation Mackey) relates to the attempted importation of cocaine with a gross weight of around 42 kilograms, which is around 21 times the threshold amount for a commercial quantity of cocaine; accordingly,
[27]A commercial quantity of cocaine is 2 kilograms, per Item 41, Schedule 4, Criminal Code Regulations 2002 (Cth).
(iii) these are serious examples of drug importation offences.
(b) Concerning the strength of the prosecution case ― there is a strong circumstantial case against the applicant in relation to each of the two importations having regard to the evidence.[28]
[28]Affidavit of Stephanie Page affirmed 18 April 2019, paragraphs [8] to [32] and paragraphs [47] and [48].
(c) Concerning the length of time the accused is likely to spend in custody if bail is refused and the likely sentence to be imposed should the applicant be found guilty ―
(i) the applicant was arrested on 11 January 2019 and his matter is now listed for a contested committal hearing on 10 and 11 July 2019;
(ii) to this point, there has been no undue delay in the proceedings against the applicant, and that any submission in respect of future delay is speculative; and
(iii) should the applicant be found guilty in relation to either or both of the importations, he will receive a lengthy custodial sentence: this is not a case where time on spent on remand might exceed any sentence imposed.
(d) It is accepted that the applicant does not have a criminal history.
(e) It is accepted that the applicant enjoys the support of his family, has accommodation available to him, has employment available to him, and has a surety available to him.
(f) Concerning any special vulnerability of the applicant, including having a mental illness ―
(i) the evidence in relation to the applicant’s mental health is limited to a diagnosis and brief treatment received in 2015, and his current conditions which have been diagnosed in the context of him experiencing his first time in custody; accordingly
(ii) the applicant’s mental health history is not exceptional, either in isolation or in combination with other factors.
In summary, the respondent submits there is a reasonably strong circumstantial case against the applicant involving allegations of very serious offending and currently no undue delay in these proceedings. The remaining factors relied upon by the applicant are his lack of criminal history, his family support, his mental health issues and the availability to him of accommodation, employment, and a surety should he be released on bail. Even in combination, the respondent submits that the personal factors relied on by the applicant amount to no more than ordinary circumstances.
Analysis and decision
In my view, the key points in favour of the proposition that circumstances exist which, in combination, are exceptional, so as to justify releasing the applicant on bail, are:
·he has no prior criminal history, a good stable family and employment record, strong family supports and the availability of a surety;
·because of those factors, there is not an unacceptable risk of him offending on bail, interfering with witnesses or not presenting for trial;
·his diagnosed anxiety and depression are conditions which probably make incarceration particularly onerous for him, and are conditions for which, if released, he could obtain superior treatment or therapy than is likely to be available to him in custody;
·the opportunity for him to continue productive employment if released, and the further opportunity to demonstrate his rehabilitation to enhance his prospects should he need to be sentenced at some stage;[29] and
·the prospect he faces of an unusual period of delay in this matter coming to trial, because of the prosecution’s reliance on Australian authorities and the US Department to process the Mutual Assistance Request.
[29]Re Gaylor [2019] VSC 46 [37], [38].
I do not consider the prosecution case to be weak on any of the charges. Further, I agree that the charges are serious and, if convicted, the period of incarceration the applicant has spent on remand is not likely to exceed the period of any sentence imposed on him.
In considering whether the applicant’s circumstances are exceptional, I take into account the likelihood that persons who are ‘recruited’ by drug syndicates to be used as staging points for the importation of drugs will commonly be those who do not have an established criminal history. So, being in custody for the first time for charges such as these, being otherwise of good character and having favourable employment history and prospects, is not likely to be well out of the ‘ordinary’. Nor is the fact that incarceration triggers anxiety or depressive conditions.
On the other hand, I am guided by Parliament’s stated intention that, even in a situation calling for exceptional circumstances, a court must place importance on maximising community safety and the accused person’s right to personal liberty. Here, the interests of community safety are likely to be adequately catered for by the application of appropriate bail conditions. But, the applicant’s readily-available opportunity to continue a business in partnership with others, and his need to work to meet debts for his business and his property, brings an additional, tangible focus to the right to (and the benefits of) liberty for him as an individual.
I take into account the fact that the respondent is not contending the applicant is an unacceptable risk of flight, further offending or interfering with witnesses when evaluating whether the circumstances here are exceptional. That position is, no doubt, reached because of the combination of personal characteristics and circumstances I have already addressed. Even allowing for that to be so, I do not accept the applicant’s argument that retaining him on remand must therefore be regarded as punitive. In any event, Parliament has made clear that the existence of exceptional circumstances, as the first step, is a necessary prerequisite to the applicant being considered eligible for bail.
A factor that may potentially contribute toward an assessment of these circumstances as being exceptional, along with the other circumstances, is the need to process the Mutual Assistance Request, and the effect of that process on the timing of the trial. If the effect of that process is that the trial date will be significantly delayed beyond the time it would ordinarily take a case to reach trial, that consideration could provide a relevant ingredient for moving this case toward the exceptional category. But, at present, that remains a matter of speculation only.
The applicant argues that without the evidence which the Mutual Assistance Request is intended to procure, the prosecution could not proceed with the committal in respect of charge 3. The prosecution accept that the request process will not be concluded before the committal. Yet, it contends that admissible evidence of the analysis of a sample of the material presently held at the US Department is to be obtained independently of the inter-governmental request process, and that that evidence is expected to be available for the committal. Time of course will tell if that expectation proves to be correct, but at present this Court has no basis to assume that it will not.
It is possible that the inter-governmental request process may, ultimately, delay the time by which the trial would ordinarily go ahead; equally it may not. In my view, it is not appropriate to factor a mere hypothetical into the mix of considerations – especially one that could be a particularly significant consideration. More concrete information may be known about this factor once the committal hearing has taken place in eight weeks’ time.
Additionally, the Mutual Assistance Request process is only relevant to charge 3; charges 1 and 2, involving, allegedly, 6.4 kilograms of cocaine, are themselves serious Schedule 1 offences. Each, separately, require the demonstration of exceptional circumstances for bail to be granted. Even if the applicant was not facing charge 3, he would still need to overcome the same high hurdle in relation to each of the other charges.
The applicant faces very serious charges. At least on the evidence presented for this application, the prosecution case for each of them has the appearance of being a reasonably strong circumstantial case.
There is no doubt that the predicament in which the applicant finds himself presents a ‘nightmare’ scenario for himself, his family and friends, and his business associates. If this was a case in which the test was ‘compelling reasons’, which it is not, all of these matters taken together might arguably reach that level. Nevertheless, that is not the test for this case, and I am not required to decide whether they would meet it.
In my judgment, taken in combination, the circumstances relied upon fall short of amounting to exceptional circumstances. Sadly, circumstances of family and personal hardship, disruption of business, financial hardship, and the experience of anxiety and depression at being in custody (and the consequences it brings) are not, in combination, circumstances that are so out of the ordinary for those placed in custody, especially for the first time.
Bail must therefore be refused.