Pak v DPP

[2008] VSC 529

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

No. 1427 of 2008

IN THE MATTER of the Bail Act 1977

MATSUT PAK	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 NOVEMBER 2008
DATE OF JUDGMENT:	27 NOVEMBER 2008
CASE MAY BE CITED AS:	PAK v DPP
MEDIUM NEUTRAL CITATION:	[2008] VSC 529

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BAIL – Charges of trafficking drugs of dependence and conspiracy to traffic – Whether exceptional circumstances exist – Alleged weakness of Crown case - Delay – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C. Pearson	C. Marshall & Associates
For the Respondent	Ms W. Duncan	Stuart Ward, Acting Solicitor for Public Prosecutions
HIS HONOUR:

1. This is an application for bail by Maksut Pak. He was arrested on 31 July 2008 and charged with four offences: first, trafficking in a drug of dependence, namely methylamphetamine, or ice; secondly, trafficking in a drug of dependence, namely hydroxybutanoic acid, or GBH; thirdly, trafficking in a drug of dependence, namely methylemydoximethylamphetamine, or ecstasy; and finally, conspiring to traffic a commercial amount of ecstasy.

2. The conspiracy charge falls within s.4(2)(aa)(i) of the Bail Act 1977. The consequence is that the court shall refuse bail unless satisfied that exceptional circumstances exist which justify a grant of bail.

3. The application is based upon two propositions: first, that the prosecution case is very weak; and secondly, that the likely delay between arrest and committal and then, if a trial is to follow, trial, would be such as to constitute an exceptional circumstance.

4. The two propositions fit together. The weakness or strength of the prosecution case forms a prism through which the court must evaluate the meaning in the particular case of the expression "exceptional circumstances." A circumstance which might qualify as exceptional where the prosecution case is weak would not so qualify or not necessarily so qualify if the prosecution case is strong.

5. The submission that the prosecution case is very weak rests on the transcript of a telephone conversation which is alleged to have taken place on 19 July 2008 between the applicant and his co-accused. There is a reference in that conversation to the number 2000. Accepting that this a reference to ecstasy tablets and that 2000 such tablets constitute a trafficable quantity, nevertheless, it is submitted on behalf of the applicant, the conversation does not amount to evidence of trafficking, because there is no direct or explicit reference to any trade in the tablets, still less, trade involving the applicant, and any implicit reference is so indirect that its characterisation as trafficking could only be the result of speculation.

6. The prosecution disputes these submissions. It contends that in evidence put before the court, both orally and by means of a statutory declaration by Sergeant Brett Williamson of the Fawkner Divisional Response Unit and one of the principal investigating officers (or perhaps the principal investigating officer) in this case, the evidence against the applicant is considerably stronger than the applicant's submissions would indicate.

7. The effect of Sergeant Williamson's evidence is, the prosecution submits, that the monitoring of telephone conversations conducted when the co-accused was using her mobile phone revealed contact between the co-accused and mobile phone No. 0404 280 132. The applicant later, in an interview with the police, admitted that that was the number of one of the mobile phones used by him, though not necessarily exclusively by him. The prosecution case is that the co-accused during these calls placed orders and made arrangements to collect from the applicant drugs thus purchased from him by her. In this context the reference to 2000 tablets in the conversation of 19 July is one which readily gives rise to the inference that a conspiracy to traffic in a commercial quantity of ecstasy was then being given effect.

8. I accept, for the purposes of the present application, the evidence of Sergeant Williamson. I therefore do not accept the applicant's submissions about the weakness of the prosecution case. It is, in my opinion, stronger than the applicant contends that it is.

9. Seen in this light, the delay of some 11 months between the arrests of the applicant and the date set for his committal hearing is not of itself an exceptional circumstance. This picture may change between now and the conclusion of that hearing. If it does, or indeed if it changes thereafter, a fresh application for bail may of course be made.

10. The prosecution also argued that the applicant's release on bail would create an unacceptable risk that, amongst other things, the applicant, if released on bail, would commit an offence. In view of my decision on the issue of exceptional circumstances, there is no necessity for me to deal in detail with this aspect of the application. I should however say that, in my opinion, this aspect of the prosecution's position is also established.

11. The applicant's antecedents and the circumstances in which he would live (at present without a job, albeit as a bricklayer he may be able to get one) and with the prospect of residing with persons who have shown disrespect for the law in the past, satisfy me that there exists an unacceptable risk of the applicant committing an offence were he presently released on bail. For these reasons the application is refused.

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