Nguyen v The King
[2025] VSCA 153
•26 June 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2025 0078 |
| LUC VAN NGUYEN | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, McLEISH and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 June 2025 |
| DATE OF JUDGMENT: | 26 June 2025 |
| DATE OF REASONS: | 3 July 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 153 |
| JUDGMENT APPEALED FROM: | Re Nguyen (Bail Application) [2025] VSC 179 (Gorton J) |
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CRIMINAL LAW – Appeal – Bail – Appeal against refusal of bail – Cultivating not less than a commercial quantity of cannabis and associated charges – Judge found exceptional circumstances existed which justified grant of bail – Whether judge erred in finding that there was an unacceptable risk that the appellant would commit a Schedule 1 or Schedule 2 offence if granted bail – Whether judge erred in finding that there was an unacceptable risk that the appellant would fail to answer bail – No error established – Appeal dismissed.
Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
House v The King (1936) 55 CLR 499; Dale v DPP [2009] VSCA 212; Zayneh v The King [2023] VSCA 311; FT (a pseudonym) v The King [2024] VSCA 90.
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| Counsel | |||
| Appellant | Ms C Randazzo SC | ||
| Respondent | Mr J McWilliams | ||
| Solicitors | |||
| Applicant | Giorgianni & Liang Lawyers | ||
| Respondent | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
McLEISH JA
BOYCE JA:
Introduction
On 8 April 2025, a judge in the Trial Division refused bail to the appellant, Luc Van Nguyen.[1] By a notice filed on 23 April 2025, the appellant appealed to this Court against that decision.[2]
[1]Re Nguyen (Bail Application) [2025] VSC 179 (‘Reasons’).
[2]The appeal is brought as of right pursuant to s 17(2) of the Supreme Court Act 1986. See Dale v DPP [2009] VSCA 212, [18]–[22] (Maxwell P, Nettle JA and Lasry AJA) (‘Dale’); Zayneh v The King [2023] VSCA 311, [40] (Walker, Taylor and Boyce JJA) (‘Zayneh’); FT (a pseudonym) v The King [2024] VSCA 90, [5] (Beach, McLeish and Niall JJA) (‘FT’).
At the conclusion of oral argument on 26 June 2025, the Court ordered that the appeal be dismissed, indicating that reasons for doing so would subsequently be provided. These are those reasons.
Background
On 1 January 2025, the appellant was charged under the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’) with cultivating not less than a commercial quantity of a narcotic plant, cannabis;[3] trafficking in not less than a commercial quantity of a drug of dependence, cannabis;[4] and possessing a drug of dependence, cannabis;[5] and under the Crimes Act 1958 with theft of electricity[6] and damaging property.[7] Subsequently, on 10 January 2025, the appellant was refused bail by the Magistrates’ Court and remanded in custody. The appellant then applied to the Supreme Court for bail. As we have indicated, that application was heard — and refused — by a judge in the Trial Division.
[3]Section 72A.
[4]Section 71AA(1).
[5]Section 73.
[6]Section 72.
[7]Section 197.
The charges faced by the appellant arose in the following circumstances.
As part of an ongoing investigation into commercial cannabis ‘crop houses’, on 31 December 2024 police were conducting static observation of factory premises at 12 Hall Street, Braeside (‘the premises’). At about noon that day, the appellant and a co-accused, Hy Le, went to the premises. Later, at 4.34 pm, police executed a search warrant at the premises. Police encountered the appellant and Hy Le as they exited a ‘growing room’. The appellant and Hy Le then attempted to flee, but were arrested approximately five metres from the factory’s exit.
Upon searching the premises, police located a room on the second storey containing 575 juvenile cannabis plants and seedlings; grow lights; extractor fans; and watering and fertilising equipment. Three downstairs rooms in the factory contained a total of 122 cannabis plants. Four rooms housed 240 cannabis plants of varying maturity and a set-up of fertilised irrigation, extractor fans and grow lights (charge 1 – cultivating not less than a commercial quantity of cannabis; charge 2 – trafficking a commercial quantity of cannabis; and charge 3 – possessing cannabis). An illegal bypass had been installed in the front of the premises allowing large quantities of power to be stolen without being metered (charge 4 – theft). The ‘street value’ of the seized cannabis was estimated to be $3,000,000.
CCTV footage obtained from the premises depicted the appellant inside the factory at the premises on 23 October 2024 in the company of another unknown male. The footage depicts the appellant and the other male looking around the factory, pointing in discussion at the wires above a fuse box where the illegal bypass was located, and the appellant pacing out measurements along the rear wall of the factory at a point where the temporary cannabis growing rooms were located. As a result of the use of the factory at the premises for the purposes of a cannabis crop house, the factory’s roofing and security systems sustained damage valued at more than $12,000 (charge 5 – damaging property).
Legislative regime governing the grant or refusal of bail
When considering whether to grant bail to the appellant, the primary judge was required to apply various provisions of the Bail Act 1977 (‘the Act’).
Section 4 of the Act makes clear that the appellant was entitled to be granted bail unless other provisions of the Act required the judge to refuse it.
Section 4AA of the Act provides that when a person is accused of a Schedule 1 offence the ‘exceptional circumstances test’ provided for in s 4A of the Act applies to a decision whether to grant bail. Trafficking in not less than a commercial quantity of a drug of dependence (charge 2), and cultivating not less than a commercial quantity of a narcotic plant (charge 1), under ss 71AA(1) and 72A(1) of the Drugs Act, are both Schedule 1 offences.[8] Thus, the judge was required to refuse the appellant bail unless satisfied that exceptional circumstances existed that justified the grant of bail (s 4A(1A)), the burden of satisfying the judge of the existence of exceptional circumstances resting on the appellant (s 4A(2)).
[8]Schedule 1, cl 7(b) and (d).
In considering whether exceptional circumstances existed, the judge was required to take into account the ‘surrounding circumstances’. If satisfied of the existence of exceptional circumstances justifying the grant of bail, the judge was then required to consider the ‘unacceptable risk test’ set out in s 4E (ss 4A(4) and 4D).
Section 4E provides that the judge was required to refuse bail if satisfied that there was an unacceptable risk (s 4E(1)(b)) that, if granted bail, the appellant would commit a Schedule 1 or Schedule 2 offence (s 4E(1)(a)(iaa)); otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means (s 4E(1)(a)(i)); interfere with a witness or otherwise obstruct the course of justice in any matter (s 4E(1)(a)(iii)); or fail to surrender himself into custody in accordance with the conditions of bail (s 4E(1)(a)(iv)). The burden of proving the existence of an unacceptable risk (or risks) lay upon the ‘prosecutor’ (s 4E(2)). In considering whether there was an unacceptable risk the judge was once more required to take the surrounding circumstances into account (s 4E(3)(a)), and also to consider whether there were any conditions of bail that might be imposed ‘to mitigate the risk so that it is not an unacceptable risk’ (s 4E(3)(b)).
Section 3AAA of the Act deals with ‘surrounding circumstances’. So far as relevant, it provides that the Court
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(aa)whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—
(i)that the accused would be sentenced to a term of imprisonment; and
(ii)if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment;
(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;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)… ;
(f)… ;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused … ;
(i)the availability of treatment or bail support services;
(j)… ;
(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;
...
Further, when interpreting the Act, the judge was required by s 1B to take into account (among other things) that the Parliament recognises the ‘overarching importance’ of maximising the safety of the community and persons affected by crime ‘to the greatest extent possible’; and also recognises the importance of taking account of the presumption of innocence and the right to liberty; promoting fairness, transparency and consistency in bail decision making; and promoting public understanding of bail practices and procedures.
The decision to refuse bail
The primary judge was satisfied that there were exceptional circumstances that, but for the issue of unacceptable risk, would justify the grant of bail. Those circumstances included that:
· the appellant has no criminal record and complied with his bail conditions when earlier subject to a grant of bail;
· he has a place to live, a partner and two children, and evidence placed before the Court from a general practitioner and psychologist established that his partner has postnatal depression, for which she is receiving treatment, and is finding it difficult to care for her daughters by herself; and
· a friend of the appellant has offered to put up a bail guarantee in the amount of $50,000.[9]
[9]Reasons, [14].
Notwithstanding that he was satisfied of the existence of exceptional circumstances, the judge was satisfied that there was an unacceptable risk that, if released on bail, the appellant would commit an offence, or fail to surrender himself into custody in accordance with the conditions of bail, such risks being incapable of being adequately ameliorated by the imposition of conditions.[10] Some of his reasons for those conclusions will be discussed when considering the submissions made in support of the grounds of appeal.
[10]Reasons, [15].
Grounds of appeal
The appellant relies on two grounds of appeal, that contend that the primary judge erred in finding that
1… the appellant was an unacceptable risk of committing an offence whilst on bail, or, of failing to surrender into custody in accordance with conditions of bail.
2… the risks could not be made acceptable.
Appellate review of decisions concerning bail
For the reasons set out in FT,[11] it is clear that an appeal to this Court from an order refusing the grant of bail is to be determined according to House principles, rather than the correctness standard. Thus, this Court’s intervention would be warranted in the present case only if the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, failed to take into account some material consideration (or took into account an irrelevant consideration), or if upon the facts the judge’s decision is unreasonable or plainly unjust.[12]
[11]FT, [51]–[64]. See also Zayneh, [40].
[12]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ) (‘House’). See also DPP v Barbaro (2009) 20 VR 717, 719–20 [10] (Maxwell P, Vincent and Kellam JJA) (‘Barbaro’); Beljajev v DPP (Vic) and DPP(Cth) (Unreported, Supreme Court of Victoria Appeal Division, Young CJ, Crockett and Ashley JJ, 8 August 1991, 29–30) (‘Beljajev’).
Moreover, as was pointed out in Barbaro, two factors operate both independently and in combination to impose a severe restraint upon appellate interference with an order granting or refusing bail: first, an order admitting a person to bail is not a final order, and may be revoked at any time; and, secondly, the granting of bail is essentially a matter of practice and procedure.[13]
[13]Barbaro, 719–20 [10]; Fernandez v DPP (2002) 5 VR 374, 390 [31] (Winneke P) (‘Fernandez’); Zayneh, [40]; FT, [61].
The appellant’s circumstances
The appellant, aged 29 years,[14] was born in Vietnam and is a Vietnamese national. He has a partner, Hien Phan, and two small children. Ms Phan has a prior conviction for cultivating cannabis on 28 August 2020, for which she was sentenced to 180 days’ imprisonment (being ‘time served’). On 12 March 2021, the appellant was arrested and charged with cultivating cannabis, on which he was granted bail on 2 July 2021. Those charges were later withdrawn. The appellant, however, has no prior convictions.
[14]His date of birth is 19 June 1996.
Senior Constable Sarah Weller, the informant, gave evidence before the primary judge that the appellant was on a Bridging Visa E, Subclass 050, that did not permit him to work or study. The appellant had come to Australia from Vietnam in June 2019 on a sponsored family tourist visa that lasted until 30 July 2019, at which point he became an unlawful non-citizen. On 29 August 2019 he made an application for a protection visa, which was refused on 7 May 2020, he being found not to be a refugee in need of protection. The decision to refuse a protection visa was upheld by the Administrative Appeals Tribunal (‘AAT’), then the bridging visa that the appellant was on expired on 30 December 2020, upon which he once more became an unlawful non-citizen until his arrest on 12 March 2021 (on charges that were later withdrawn). He was granted bail on 2 July 2021, and a bridging visa was put in place. The appellant lodged an appeal to the Federal Court on 31 August 2021 against the AAT decision, but that is yet to be determined.
Discussion
The appellant’s submissions in this Court
Given that the central contention advanced by counsel for the appellant was that the primary judge erred in finding that the identified risks could not be made acceptable by the imposition of conditions, it is convenient to consider both grounds of appeal together.
In support of the appellant’s central contention, counsel advanced a number of discrete submissions. Without setting them all out, in brief summary counsel asserted that the primary judge:
· failed to have regard to all the surrounding circumstances under s 3AAA of the Act which favoured the appellant;
· had regard to irrelevant and highly prejudicial assertions made by the informant in her evidence concerning Ms Phan (in particular, that Ms Phan had lied on her application for a travel visa to Australia and with respect to an application for a rental property in November 2024);
· ‘improperly concluded’ that Ms Phan was generally a dishonest person;
· wrongly thought it relevant that neither the appellant nor Ms Phan — who had worked as a nail technician — had placed before the court any evidence of actual earnings;
· erred in not having any regard to the severe financial hardship the appellant’s family is experiencing;
· erred in finding that the appellant was working in a cannabis factory ‘again’ (earlier charges of cultivating cannabis having been withdrawn);
· erred in finding that the appellant was a risk of committing further offences (there being no evidence before the court permitting such a finding);
· failed to have proper regard to the appellant’s earlier compliance with bail conditions;
· erred in finding that the appellant is an unacceptable risk of failing to surrender into custody in accordance with the conditions of bail (among other things, on the basis that the judge thought it probable that the appellant could access fake documents); and
· failed to give appropriate weight to the availability of a bail guarantee of $50,000.
The respondent’s submissions
Counsel for the respondent submitted that the appellant could only succeed in this Court if he demonstrated that the judge’s conclusion that the appellant presented an unacceptable risk (which could not be ameliorated by conditions) was unreasonable or plainly unjust. The respondent’s counsel submitted that it was simply not the case that the judge disregarded the fact that the appellant had previously complied with his strict bail conditions in 2021, the judge observing in discussion that this was ‘one of the best points in [the appellant’s] favour’. The judge also noted that the appellant’s proposed bail guarantor was an ‘impressive witness’.
The respondent’s counsel submitted it was open to the judge to conclude — and to take into account for the purposes of s 3AAA of the Act — that both the appellant and Ms Phan lied in their respective visa applications, and that a rental application in which Ms Phan provided false information was made ‘with the [appellant’s] knowledge if not approval’. The argument that the judge impermissibly speculated in concluding that the appellant and Ms Phan ‘are prepared to act dishonestly when they feel it is in their interests to do so at least to the extent that they would not feel constrained to comply with bail conditions’ has no merit, since there was undisputed evidence before the court that both the appellant and Ms Phan had been dishonest in prior visa applications and rental applications.
Further, counsel submitted that in circumstances where it was not disputed that neither the appellant nor Ms Phan were entitled to social security benefits, and the appellant had no legal right to work in Australia pursuant to the conditions of his visa, the only inference reasonably open on the evidence was that the appellant and his wife had engaged in drug offences for money ‘to survive’. Indeed, as the judge noted, Ms Phan had been convicted in 2021 of an offence for doing exactly that.
Finally, counsel for the respondent submitted that the judge was not bound to conclude that the proposed bail guarantee of $50,000 was sufficient to ameliorate the risk of the appellant fleeing or otherwise breaching his bail.
Analysis
As we have mentioned, the judge found that there were exceptional circumstances justifying the grant of bail[15] but was satisfied that there was an unacceptable risk of the appellant committing a Schedule 1 or Schedule 2 offence while on bail or failing to surrender into custody in accordance with the conditions of bail, the risks being incapable of adequate amelioration by the imposition of conditions.
[15]Given that the respondent has not challenged that finding it is unnecessary to consider whether we would have reached the same conclusion.
In challenging the critical findings that there were two unacceptable risks which could not be ameliorated by the imposition of conditions — namely an unacceptable risk that the appellant would fail to surrender himself into custody and an unacceptable risk that he would engage in Schedule 1 or Schedule 2 drug-related offences in order to earn money if he were granted bail — counsel for the appellant accepted that the appeal could only succeed if both these findings were displaced. That concession properly reflected the use of the word ‘or’ in the definition of ‘unacceptable risk’ in s 4E(1).
Turning first to the risk that the appellant would fail to surrender himself into custody, in our view it was open to the judge to make the finding that he did. The appellant has failed to persuade us that the conclusion reached by the judge was not properly available on the material placed before him; that he failed to take into account some relevant consideration, or took into account an irrelevant consideration; or that his decision was otherwise unreasonable or plainly unjust.
The judge found that there was an unacceptable risk that the appellant ‘if he wished to do so, could move, with or without his family, interstate or indeed overseas and not surrender into custody to face these charges, and in my view the risk that he might do so is unacceptable in the circumstances’.[16] This finding was in part informed by two considerations. First, other than his partner and children, the appellant ‘has no real family or other ties to Victoria’[17] — that this is so appears to us to be incontrovertible — and, secondly, the appellant ‘probably has access to persons who could provide him with fake identity documents’.[18] In circumstances where the factory at which the cannabis crop founding the present charges was located was leased using ‘well-made’ forged passports and driver’s licences, it was open to the judge to infer that the appellant has access to persons capable of forging identity documents.[19]
[16]Reasons, [16].
[17]Ibid.
[18]Ibid.
[19]Ibid.
There was also evidence before the judge — apparently uncontradicted — that the appellant and Ms Phan both made false statements ‘intended to mislead the authorities’ in visa applications.[20] We consider that it was open to the judge to conclude that these matters ‘suggest that the [appellant] and Ms Phan are prepared to act dishonestly when they feel it is in their interests to do so at least to the extent that they would not feel constrained to comply with bail conditions’.[21] In light of the fact that, should he choose to leave the jurisdiction, the appellant likely would do so with the knowledge of Ms Phan, her preparedness to make false statements was clearly relevant to the judge’s assessment of the risk that the appellant posed.
[20]Ibid [17].
[21]Ibid.
In the circumstances, it is not necessary to address the judge’s finding that ‘there is an unacceptable risk that the [appellant] would commit a Schedule 1 or 2 offence if granted bail’.[22] It is convenient, however, to make some observations about that finding. The judge’s reasoning is reflected in the following passage:[23]
The [appellant] has been in Australia since June 2019. Ms Phan has been in Australia since August 2019. Neither he nor Ms Phan are, apparently, entitled to social security benefits and so they both need to earn money to survive. No evidence of any actual earnings by either of them has been put before me, other than vague statements that at some times the [appellant] worked as a handyman and Ms Phan in a nail salon. Ms Phan, it has been established, engaged in drug offences, presumably for money, that warranted a period of imprisonment in 2021. The [appellant], on the allegations, was working this year, again presumably for money, at a cannabis nursery. The [appellant], at present, has no legal right to work in Australia and it is not clear whether that situation will ever change or if so when such a change could come into effect. Accordingly, there is a real risk, that in my assessment is unacceptable in the circumstances, that the [appellant] would engage in drug-related offences in order to earn money if he were granted bail.
[22]Ibid [18].
[23]Ibid (emphasis added).
The appellant’s counsel criticised aspects of the judge’s findings in the passage immediately above. In particular, counsel submitted that the judge reversed the onus of proof in observing that neither the appellant nor Ms Phan had adduced evidence of income derived from non-drug related pursuits. We do not see any basis for that submission. In circumstances where the respondent relied on a suggestion that the appellant might once more seek to turn to cannabis cultivation if granted bail, and had adduced evidence that Ms Phan had previously been involved in cannabis cultivation, it was relevant that there was no evidence of income derived from non-criminal activities if such evidence existed. It was also relevant, of course, that the appellant did not claim to have worked lawfully, which might bear on the existence of any such evidence.
To the extent that the appellant submitted that the judge’s finding was plainly unjust or unreasonable, we do no more than note that the view would have been open that, given the possibility of continuing to work unlawfully, while Ms Phan derived income from the nail salon, it had not been shown that there was an unacceptable risk that the appellant would have resorted to drug-related offending in order to earn income. It is unnecessary to decide whether the judge erred, in the House sense or at all, by taking a different view.
The criticism levelled by the appellant’s counsel that, in circumstances where earlier charges of cultivating cannabis had been withdrawn, the judge erred in finding that the appellant was working in a cannabis factory ‘again’, is without substance. The judge had observed that Ms Phan had previously ‘engaged in drug offences, presumably for money’. In the impugned passage the judge was doing no more than reflecting upon the fact that the prosecution alleged that the appellant had also been involved in cannabis cultivation ‘presumably for money’.
Insofar as the appellant’s counsel submitted that the judge failed to have regard to the severe financial hardship the appellant’s family is experiencing, that submission also cannot be upheld. It is clear that the judge accepted that ‘not having the assistance of her partner with the care of her young children will substantially increase the burdens on [Ms Phan] physically and emotionally and add to the distress of their children’; but, notwithstanding that fact, considered that the risk of the appellant failing to surrender into custody or committing offences if bail is granted remains unacceptable.[24]
[24]Ibid [19].
Finally, it was open to the judge to conclude that the bail guarantee offered would not render the putative risks acceptable. It was open to him to be satisfied that the relationship between the appellant and the bail guarantor was sufficiently distant that the appellant ‘would [not] be influenced to any real extent not to breach his bail conditions out of a concern that [the guarantor’s] security might be forfeited’.[25] It was not suggested before us that any of the other conditions that were proposed at the hearing before the judge would have ameliorated the risks he identified.
[25]Ibid [20].
Counsel for the appellant submitted, however, that the risks the judge identified (or at least the risk of failure to surrender into custody) could have been ameliorated by a condition which obliged the manager of the child care centre which the appellant’s older child attended to notify the informant of any absence of the child from arranged care. No such condition was proposed to the judge, and he cannot have been in error for not having considered the possibility. In any event, counsel ultimately did not press the submission, on the basis that the family could no longer afford child care.
Conclusion
For the foregoing reasons, we dismissed the appeal.
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