Princess Theatre Pty Ltd v Asvar Insurance Ltd
[2024] VSC 33
•7 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0007
| IN THE MATTER of the Bail Act 1977 (Vic) |
| AND |
| IN THE MATTER of an application for bail by YUAN CHOK |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 February 2024 |
DATE OF RULING: | 7 February 2024 |
CASE MAY BE CITED AS: | Re Chok |
MEDIUM NEUTRAL CITATION: | [2024] VSC 33 |
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CRIMINAL LAW – Bail – Serious offending – Charges of trafficking and possessing a drug of dependence – Large commercial quantity – Schedule 1 offence – Requirement to show exceptional circumstances – Strength of prosecution case – Availability of stable accommodation – Availability of treatment and support services – Special vulnerability – Exceptional circumstances established – Applicant not an unacceptable risk – Bail granted – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | M Sturges | Angus Cameron Lawyers |
| For the respondent | F Martin | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
On 16 January 2024, an application for bail was filed on behalf of Yuan Chok (“Chok”). Chok was arrested and remanded into custody on 9 November 2023 in relation to offending alleged to have occurred on the same date. The charges against him include:
(1)Trafficking a drug of dependence, namely 1,4-butanediol, in a quantity not less than the large commercial quantity applicable to that drug contrary to section 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(2)Trafficking a drug of dependence, namely 1,4-butanediol, in a quantity not less than the commercial quantity applicable to that drug contrary to section 71AA(1) of the Drugs, Poisons and Controlled Substances Act.
(3)Trafficking a drug of dependence, namely 1,4-butanediol, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act.
(4)Two charges of possessing a drug of dependence, namely 1,4-butanediol, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(5)Three charges of dealing with property suspected of being the proceeds of crime contrary to section 195 of the Crimes Act 1958 (Vic).
(6)Possessing a drug of dependence, namely cannabis, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
Chok has previously made 2 unsuccessful applications for bail in the Magistrates’ Court of Victoria on 9 November 2023 and 12 January 2024. Both applications were refused on the basis that Chok was unable to demonstrate the existence of exceptional circumstances to justify the grant of bail.
In this court, Chok relied upon issues in the prosecution case, the availability of a stable address and bail support services, and his vulnerability in custody to establish the existence of exceptional circumstances. The application for bail was opposed by the prosecution on the basis that exceptional circumstances had not been established, and in any event, Chok would present an unacceptable risk if he were to be released on bail.
B. Background
B.1 Applicant’s personal circumstances
At the time of the alleged offending, Chok was 39 years of age. He emigrated from Singapore to Australia in 2005 and now holds Australian citizenship. After arriving in Australia, Chok studied medicine and practiced in the field up until 2017. At the time of his arrest, Chok was employed as a hotel receptionist.
Chok has been in an intimate relationship with David Sargeant (“Sargeant”) since approximately 2018. At the time of the alleged offending, Chok and Sargeant were residing together in a leased premises located in Southbank (“the Southbank Premises”). Sargeant is a co-accused in the alleged offending, along with a third individual, Guy May-Dessmann (“May-Dessmann”).
Chok suffers from anxiety and depression and is currently taking medication for both conditions. He has described experiencing difficulties surrounding his sexuality during early life, including due to the attitudes of his parents and Singaporean society more broadly. This is suggested to have had a lasting impact on his mental wellbeing. Chok was also diagnosed with HIV[1] in 2023 and is currently taking medication to manage this condition.
[1]That is, human immunodeficiency virus.
Since the age of 33, Chok has experienced issues with substance abuse, specifically methamphetamine and gamma-hydroxybutyrate. These issues were said to have become especially problematic in the 2 years leading up to his arrest, with Chok reporting near daily use of both substances in the context of his relationship with Sargeant. Chok’s mental health issues are understood to be a predisposing factor in his substance abuse.
Chok has a prior conviction for drug trafficking in 2019, for which he was sentenced to a community correction order for a period of 18 months. He has also been previously charged with possession of a drug of dependence, contravening a conduct condition of bail, committing an indictable offence while on bail, burglary and theft.
B.2 Alleged offending
At approximately 7.25am on 9 November 2023, police executed a search warrant at the Southbank Premises. Chok and another individual who is unrelated to the alleged offending were present at the Southbank Premises at the time.
Investigators searched the Southbank Premises and seized, amongst other items, 3 Australia Post-labelled boxes containing 51 identical bottles marked as “hand sanitiser” which contained a total quantity of approximately 25 litres of 1,4-butanediol and various items consistent with the trafficking of that substance. Also seized were approximately 220 grams of cannabis, $12,350 in cash, an American passport not belonging to Chok or Sargeant, and 4 scripts in the names of persons other than Chok or Sargeant.
Chok was arrested at 7.53am and transported to a local police station, where he was interviewed by 2 police officers. Though Chok admitted to having issues with substance abuse and having an awareness that the Australia Post-labelled boxes contained 1,4-butanediol, the record of interview shows that Chok repeatedly denied ownership of the boxes, stating that he did not know where they came from and suggesting they belonged to Sargeant. Chok was charged and remanded at the conclusion of the interview.
Police again attended the Southbank Premises on 12 December 2023, at which time Sargeant was arrested. In his record of interview, Sargeant likewise denied any involvement in the trafficking of 1,4-butanediol. He told police that he was not the owner of the Australia Post-labelled boxes, and stated that the boxes had been delivered to the Southbank Premises by May-Dessmann.
Subsequent investigations conducted by police uncovered closed-circuit television footage of May-Dessmann attending a post office in South Melbourne at 4.27pm on 6 November 2023 and collecting 4 boxes. Investigators believe these boxes to be the Australia Post-labelled boxes later seized at the Southbank Premises. Closed-circuit television footage obtained from the building in which the Southbank Premises is located shows May-Dessmann entering the building’s elevator with the boxes in tow at 4.32pm, before leaving without the boxes at 4.54pm. The footage also indicates that only Chok was present at the Southbank Premises at the time of the delivery, with Sargeant returning home later in the evening. However, there is no footage of the front door or the hallway immediately outside the Southbank Premises, so there is presently no evidence of Chok taking possession of the boxes from May-Dessmann.
Police also obtained Commonwealth Bank records for an account in Sargeant’s name. These records show frequent cash deposits and transfers said to be consistent with a pattern of behaviour linked to the trafficking of drugs. Several of the transfers made into and out of this account were from or to May-Dessmann. Sargeant also made a withdrawal of $2,000 in cash on 6 November 2023, being the day on which it is alleged May-Dessmann delivered the Australia Post-labelled boxes to the Southbank Premises.
These investigations have led police to form a belief that Chok, Sargeant and May-Dessmann are actively involved in a criminal syndicate in the trafficking of drugs of dependence, including 1,4-butanediol.
B.3 Proposed conditions of bail
In support of his application for bail, Chok relies on the availability of stable housing in the form of a private rental, namely the Southbank Premises.
Reliance is also placed on the availability of support services to manage Chok’s substance abuse issues while on bail. In addition to seeking a community referral to the court integrated services program, Chok has expressed an intention to privately fund a community rehabilitation program if granted bail.
To this end, a report was provided by an addiction treatment counsellor (“the Addiction Counsellor”)[2] who has assessed Chok and considered him to be a suitable candidate for an 18-week addiction counselling and rehabilitation program. In addition to weekly urine screening, the proposed program includes group and individual counselling sessions, which reduce in frequency over the 18 weeks of the program. Further, by agreeing to participate in the program, Chok will be required to undertake random urine screening as directed by the Addiction Counsellor.
[2]The Addiction Counsellor has worked in addiction treatment for almost 10 years. She holds a diploma in addiction counselling and a masters in neurolinguistic programming. There was no challenge to her expertise or qualifications by the prosecution.
Chok relied upon his commitment to attend the rehabilitation program in support of his application for bail. The Addiction Counsellor gave evidence at the hearing concerning Chok’s suitability for treatment and his willingness to participate in the program. She undertook to the court to immediately inform the informant or nominal informant in the event that Chok failed or refused to comply with any aspect of the proposed treatment plan, including urine screening. She also undertook to immediately inform the informant or nominal informant if Chok returned a “dirty” result to any urine screen that she directed him to take.
C. Legal principles
Chok has been charged with an offence listed under Schedule 1 of the Bail Act 1977 (Vic).[3] It was common ground that Chok must therefore demonstrate that exceptional circumstances exist that justify the grant of bail.[4]
[3]Bail Act, sch 1, item 6(a).
[4]Ibid, s 4AA(1).
The phrase “exceptional circumstances” is not defined in the Bail Act. In order to be “exceptional”, the circumstances relied upon must be such as to take the case out of the normal and justify the granting of bail.[5] However, although high, this is not an impossible standard to reach.[6] As observed in Woods v Director of Public Prosecutions:[7]
The Bail Act does not define “exceptional circumstances”. Reflecting the ordinary and natural meaning of these words, it has been held that “there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant before those circumstances can be characterised as exceptional”.[8] The category is not closed. It was held by Warren J that “the hurdle is a high one, but … should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail”.[9]
An individual circumstance, or combination of circumstances, can constitute exceptional circumstances.[10] … [I]t is the (oft-cited) view of Vincent J in Moloney that the court must be persuaded that, viewed as a whole, the circumstances are exceptional “to the extent that, taking into account the very serious nature of the charge … the making of an order admitting the person to bail would be justified”.[11] This “appears to be a question of degree” in each individual case.[12]
[5]Re Brown [2019] VSC 751, [65] (Lasry J), citing Re Sam [2017] VSC 91, [22] (Beach JA). See also Re Strachan [2021] VSC 538, [27] (Lasry J).
[6]Ibid, citing Armstrong v The Queen [2013] VSC 111, [31] (Lasry J).
[7](2014) 238 A Crim R 84, 97-98 [38]-[39] (Bell J) (original citations). While substantial reforms were made to the Bail Act on 1 October 2018, the expression “exceptional circumstances” remains.
[8]Re Scott [2011] VSC 674, [14] (T Forrest J). See also R v Tang (1995) 83 A Crim R 593, 596.7 (Beach J); Re Muhaidat [2004] VSC 17, [13] (Kaye J); Re Dalton [2013] VSC 690, [49] (Kaye J).
[9]Re Whiteside [1999] VSC 413, [10] (Warren J).
[10]Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1-2; Re Whiteside [1999] VSC 413, [13]; Director of Public Prosecutions v Cozzi (2005) 12 VR 211, 215 [19]-[20] (Coldrey J); Armstrong v The Queen [2013] VSC 111, [31]-[32].
[11]Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1-2.
[12]Director of Public Prosecutions v Cozzi (2005) 12 VR 211, 216 [25].
If satisfied that exceptional circumstances are in existence, the court must then consider whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.
Bail must be refused if the court is satisfied that there is an unacceptable risk that an applicant would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, 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, notwithstanding that the exceptional circumstances test has been met.[13] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[14]
[13]Bail Act, s 4E(1)(a).
[14]Ibid, s 4E(2).
Both in considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[15] Such surrounding circumstances include, but are not limited to, the matters listed in section 3AAA(1) of the Bail Act, namely:
[15]Ibid, ss 4A(3), 4E(3)(a).
…
(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;
...
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including … 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;
…
In assessing risk, the court must consider whether there are conditions of bail that may be imposed to mitigate the risk.[16] In addition, in interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B, including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.[17]
[16]Ibid, s 4E(3)(b).
[17]See Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
D. Submissions
In support of a grant of bail, it was submitted on behalf of Chok that exceptional circumstances were established by the combined weight of several factors, namely:
(1)The existence of genuinely triable issues in the prosecution case for trafficking (as opposed to possession) against Chok, including that the trafficking indicia was found in an unoccupied room at the Southbank Premises and that the bank account into and out of which transfers consistent with the trafficking of drugs were made was in Sargeant’s name.
(2)The availability of stable accommodation at the Southbank Premises.
(3)The availability of bail support services, including a private addiction treatment counselling program involving urine screening.
(4)The special vulnerability Chok is said to experience on account of his HIV-positive status.
(5)The fact that Chok is likely to spend around 2 years in custody awaiting a trial if bail is refused.
It was also submitted that it would be possible to sufficiently mitigate any risk associated with a grant of bail by the imposition of appropriate conditions of bail. Any residual risk, it was contended, would be outweighed by the injustice that would result from remanding Chok for a period of up to 2 years in circumstances where there was said to be a real possibility of acquittal on the head charge.
In turn, the prosecution submitted that Chok had failed to discharge his burden of satisfying the court as to the existence of exceptional circumstances. However, even if the court were so satisfied, it was submitted that Chok presented an unacceptable risk of committing an offence while on bail and failing to surrender into custody in accordance with the conditions of bail. In this regard, reference was made to:
(1)Chok’s criminal history, which includes charges of committing an indictable offence while on bail, contravening a conduct condition of bail and failing to answer to bail.
(2)The risk associated with Chok continuing to live at the Southbank Premises in the context of his history of substance abuse and alleged involvement in drug trafficking activities at that location.
(3)The risk of Chok’s substance abuse issues driving him to commit further indictable offences while on bail in order to fuel his addiction.
(4)The limited ties Chok has to the State of Victoria.
E. Consideration
E.1 Exceptional circumstances
In first considering whether exceptional circumstances justifying the grant of bail exist, a key consideration is the strength of the prosecution case. The prosecution contended there was evidence to support Chok’s complicity in the alleged offending based on a number of factors. These were identified in the prosecution’s written submissions as follows:
(1)Chok was present at the Southbank Premises, where the drugs and drug indicia were located in clear view and readily accessible to him.
(2)It will be alleged that Chok must have known that all of the Australia Post-labelled boxes contained bottles of 1,4-butanediol disguised as hand sanitiser.
(3)Chok was unemployed at the time of the alleged offending, and the prosecution will allege that he must have been financially supported through trafficking activities.
(4)Chok has prior convictions for drug trafficking and has previously been involved in drug trafficking. Further, these past trafficking activities also involved Sargeant.
In relation to the third of these matters, the position was not pressed. The evidence established that at the time of his arrest Chok was in fact engaged in full-time employment. In short, there was no evidence to suggest that Chok had been financially supported through any drug trafficking activities.
In relation to the fourth matter, Chok has a single conviction for trafficking methylamphetamine in 2019. He also has a number of other convictions for drug possession, but none more recent than 2019.
In submitting that the case against him was not a strong 1, Chok relied on the following matters:
(1)There is no evidence of Chok’s role in the alleged trafficking.
(2)There is no evidence of Chok’s knowledge of the quantity of drugs located at the Southbank Premises, being the address he shares with his co-accused, Sargeant.
(3)Chok denied any role in the alleged trafficking when interviewed by police.
(4)Chok provided his mobile phone and passcode to police upon request after his arrest, and there was no suggestion that this contained any evidence of trafficking.
(5)Chok was arrested when the informant was making enquiries into Sargeant.
(6)The Southbank Premises was not under any form of surveillance prior to the arrest of Chok.
(7)The $12,350 in cash located at the Southbank Premises was acknowledged by Sargeant to be funds for which he was responsible.
(8)There is presently no forensic evidence to support the proposition that Chok handled or touched the drugs located at the Southbank Premises.
(9)The prosecution has indicated that the following forensic evidence will not be provided at the committal stage:
(a)a statement from a fingerprint analyst;
(b)a statement from a DNA analyst; and
(c)a statement from a drug analyst.
(10)There is no evidence of Chok accepting the Australia Post-labelled boxes from May-Dessmann, given the absence of any closed-circuit television footage from directly outside the Southbank Premises.
In response to the contention put by Chok about the strength of the case against him, the prosecution acknowledged that the case could not be described as overwhelming. However, it was also submitted that nor could it be said the case was a weak one. During oral submissions, after the various components of the facts were ventilated, counsel for the prosecution appropriately accepted that it was “not the strongest case against [Chok]”.
Indeed, in my view, on the evidence presently before the court in relation to the more serious charges against Chok, the case against him could not properly be described as strong.
In relation to the likely delay before any trial of the proceeding will be heard, as there are 3 co-accused in this matter, some additional delay is likely. It was common ground that the committal was unlikely to be set down until May or June 2024 (in relation to offences alleged to have occurred some 7 or 8 months earlier), with a further delay of 12 to 18 months before a trial could occur in the County Court of Victoria. Although it was not suggested that this fact in itself was exceptional, I accept that in combination with other matters it is relevant when assessing whether or not exceptional circumstances exist.
The conditions of bail proposed by Chok, which I have referred to above but now refer to in more detail, include the following:
(1)A requirement of daily reporting to a local police station.
(2)The imposition of a curfew between the hours of 10.00pm and 6.00am.
(3)A requirement that Chok present at the door of the Southbank Premises during curfew hours upon request of police.
(4)A prohibition on the consumption of illicit substances.
(5)Participation in an 18-week addiction treatment program under the supervision of the Addiction Counsellor.
(6)A requirement that Chok surrender any passport he may hold and not apply for any new passport or travel document.
(7)A prohibition on Chok attending any points of international departure.
(8)A requirement that Chok not leave the State of Victoria.
(9)A requirement that Chok undergo twice weekly and random urine screening on an ongoing basis, with each screen to be conducted at least 48 hours apart.
(10)A prohibition on Chok associating or having any contact with Sargeant and May-Dessmann.
(11)A requirement that Chok provide his mobile phone, together with the passcode for such, to the informant upon request for the purpose of ascertaining whether or not there has been any breach of the previous condition.
As to the last 2 of these conditions, Sargeant remains in custody. The court was informed that Chok and Sargeant are still in an ongoing relationship. However, despite this, Chok volunteered to be prohibited from contacting or associating with Sargeant as a condition of bail. This position might be motivated by the fact that Chok has expressed a desire not to associate with others involved in the abuse and trafficking of illicit substances. Whatever Chok’s motivation for volunteering to be subject to this condition, it was offered on the basis that variation could be sought if the present circumstances were to change.
The availability of treatment and support services while on bail is relevant to whether or not exceptional circumstances have been established. The evidence in relation to Chok’s participation in the proposed addiction treatment program under the supervision of the Addiction Counsellor has been referred to above.[18] Chok’s stated willingness to participate in such a program and to be subject to these strict conditions is material and relevant to whether or not exceptional circumstances exist.
[18]See pars 17-19 above.
Another factor raised by Chok in contending that exceptional circumstances exist was the issue of parity. It was submitted to be relevant to this application, albeit only faintly so, that May-Dessmann has been released on bail despite the fact that the prosecution case against him is objectively stronger. However, it was conceded that there were a number of other factors weighing in May-Dessmann’s favour, including his younger age and lack of relevant criminal history, such that his personal and surrounding circumstances were distinguishable. Although there are cases in which parity has been considered a relevant matter,[19] on the facts of this case and in light of the differing roles played in the alleged offending by each co-accused and the differences in their personal circumstances, the relevance of the outcome of May-Dessmann’s application for bail could only be very remote at best.
[19]See, for example, Re Nagy [2020] VSC 878, [52] (Taylor J); Re Oldis [2020] VSC 769, [41]-[48] (Tinney J).
Although of itself not exceptional, in considering the combination of circumstances, it is also relevant that Chok has stable accommodation to return to if granted bail. The fact that Chok leases the Southbank Premises together with Sargeant would not appear to give rise to any immediate problem, as Sargeant presently remains in custody. Further, despite it being accepted that the Southbank Premises was previously used by Sargeant for the purpose of trafficking drugs, the court was informed that the layout of the apartment building in which the Southbank Premises is located is such that Chok will have the ability to screen anyone seeking to enter the building and refuse entry to anyone he does not know or who he suspects may be seeking to enter for any nefarious purpose.
Further, Chok is a well-educated person who has extensive experience working in the hospitality industry. It can be reasonably anticipated that he will have little difficulty obtaining some form of employment in that area in the event that bail is granted. The court was informed that it was Chok’s intention to do so, provided that the employment in question was consistent with his ability to successfully participate in the proposed rehabilitation program.
Finally, although I note that Chok is receiving treatment for HIV in custody, I still consider the issue of vulnerability to be relevant to whether or not exceptional circumstances exist.
Having considered the matters referred to above in combination, in the context of the surrounding circumstances including those referred to in section 3AAA(1) of the Bail Act, I am satisfied that exceptional circumstances exist.
E.2 Unacceptable risk
I now turn to the question of unacceptable risk. There is no question that, principally because of issues arising from his ongoing struggles with addiction, Chok poses a risk of reoffending if he is granted bail. Naturally, the fact that Chok has a history of failing to surrender into custody in accordance with the conditions of bail presents a further risk as well. The extent to which these risks might be considered unacceptable is heightened by the fact that Chok’s issues with substance abuse have persisted for some time, and were at a significant level at the time of the alleged offending. Notwithstanding these matters, I have formed the view that in light of the very strict conditions of bail that are to be imposed, as well as Chok’s stated commitment to engage with rehabilitation services in circumstances where he is aware that any breach of a bail condition is highly likely to result in his bail being immediately revoked, I have formed the view that the level of risk posed by Chok is not unacceptable.
It should be noted that the prosecution initially made submissions to the effect that Chok posed a flight risk. It was also contended that Chok presented a risk of interfering with witnesses. Neither of these matters were ultimately pressed. Further, there was no suggestion by the prosecution that if bail were to be granted that Chok would endanger the safety or welfare of any other person. The position adopted by the prosecution in regard to each of these matters was entirely appropriate. On the evidence, there was nothing to suggest that Chok would present any relevant degree of risk in respect of any of these matters, let alone an unacceptable risk.
F. Conclusion
For the reasons stated, I am satisfied that exceptional circumstances exist justifying the grant of bail and that the prosecution has not established that Chok poses an unacceptable risk. Accordingly, bail will be granted.
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