Re Chau

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0154
S ECR 2024 0125

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by Dara CHAU

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2024
DATE OF RULING:	26 June 2024
CASE MAY BE CITED AS:	Re Chau
MEDIUM NEUTRAL CITATION:	[2024] VSC 387

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CRIMINAL LAW – Application for bail – Charge of murder – Schedule 1 offence – Requirement to show exceptional circumstances – Other charges of affray, possessing a firearm as a prohibited person and accessing child abuse material – Nature and seriousness of alleged offending – Strength of prosecution case – Delay – Availability of family support, stable accommodation and employment – Bail guarantee – Criminal history – Exceptional circumstances not established – Applicant otherwise an unacceptable risk – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the applicant	J Desmond	Giorgianni & Liang Lawyers
For the respondent	N Hutton	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

On 2 December 2022, the applicant, Dara Chau (“Chau”), was arrested and charged with the following offences:
(1)Murder, contrary to common law, on 11 July 2022.
(2)Committing an affray by using unlawful violence, contrary to section 195H(1) of the Crimes Act 1958 (Vic), on 11 July 2022.
(3)Possessing a firearm as a prohibited person, contrary to section 5(1) of the Firearms Act 1996 (Vic), on 22 July 2022.
(4)Accessing child abuse material, contrary to section 51H(1) of the Crimes Act, on 4 November 2022.[1]
[1]Initially, this charge was laid pursuant to s 474.19(1)(a)(i) of the schedule to the Criminal Code Act 1995 (Cth), however it was later substituted with a charge under the Crimes Act.
Chau has been on remand since his arrest, and has applied for bail in this court for the first time.[2]
[2]Bail Act 1977 (Vic), s 13(2).
In support of his application, Chau relied on a number of factors to establish the existence of exceptional circumstances justifying the grant of bail. These included issues with the prosecution case, the length of time likely to be spent on remand if bail were refused, the availability of stable accommodation and employment and the offer of a bail guarantee.
The application for bail was opposed by the prosecution on the basis that exceptional circumstances had not been established, and in any event, Chau would present an unacceptable risk if he were to be released on bail.
For the reasons to follow, Chau’s application is refused.

B. Background

B.1 Alleged offending

The following account of Chau’s alleged offending is based on the prosecution case and comprises allegations only.

B.1.1 Murder and affray

On 13 April 2022, Diana Mossawi (“Mossawi”) allegedly borrowed $2,000 from Christina Subu (“Subu”). A dispute subsequently arose between Mossawi and Subu about whether or not the money had been repaid. It is alleged Subu began dealing with Mossawi’s husband, Zeeshan Medhi (“Medhi”), rather than Mossawi in relation to the alleged debt. Subu sought the assistance of Tommy Loulanting (“Loulanting”) to collect the money from Medhi. Loulanting was described as a “huge” person who was effectively acting as a “standover man” for Subu.
On 8 July 2022, Loulanting allegedly confronted and seriously assaulted Medhi, before giving him a timeline within which the money had to be repaid.
The prosecution case is that rather than repay the money, Medhi decided to exact revenge on Loulanting by either killing him or causing him really serious injury, and that he arranged for 3 associates, being Chau, Moweit Qian (“Qian”) and Trung Nguyen, to assist him. In the alternative, the prosecution says that the 4 co-accused assisted, directed or encouraged each other to kill or cause really serious injury to Loulanting.
In the early hours of the morning of 11 July 2022, Medhi allegedly lured Loulanting to an address in Noble Park (“the Noble Park Residence”) under the pretence of wanting to repay the debt.
It is then alleged that upon arriving at the Noble Park Residence, Loulanting was ambushed and murdered. Medhi was unmasked, while the other accused, including Chau, were masked. Loulanting was shot twice, once to the left knee and once to the face, and stabbed several times. He died almost immediately.
Loulanting had attended the Noble Park Residence with his 2 sons, as well as Subu and her partner, Reza Misawi (“Misawi”). Loulanting’s sons stayed in Loulanting’s car, while Subu and Misawi (who had attended in a different car) accompanied Loulanting to the front door and were present when Loulanting allegedly went inside and was attacked and killed.
It is expected that both Subu and Misawi will give evidence that they saw Medhi unmasked when he opened the door for Loulanting. It is further expected that Subu will give evidence that she saw 3 masked persons inside.
Immediately following the shooting, Subu and Misawi ran back toward their car, but were allegedly chased by the 4 co-accused. Misawi was allegedly caught and beaten with weapons before he and Subu managed to escape in their car. At approximately the same time, the vehicle containing Loulanting’s sons was allegedly attacked and chased from the scene. It is these incidents that constitute the alleged affray.

B.1.2 Possessing a firearm as a prohibited person and accessing child abuse material

Further charges have been brought against Chau as a result of discoveries made by police during the investigation into the alleged murder and affray.
On 22 July 2022, a search warrant was conducted at Chau’s home address and a homemade pen gun was found. The item was examined and the prosecution’s case is that it met the definition of a handgun, and was capable of being discharged. Chau was interviewed and made a full admission to possessing the article in question.
Police monitoring of Chau’s mobile phone data during the investigation revealed that he allegedly accessed child abuse material on or around 4 November 2022.
It was determined that these charges would be severed from the previous indictment.
The evidence in relation to the charges of affray, possessing a firearm as a prohibited person and accessing child abuse material was the subject of substantial criticism by Chau’s counsel. The parties agreed, however, that the relevant charge for the purposes of whether bail ought to be granted is the murder charge,[3] and so it is unnecessary to descend into further detail in relation to the remaining charges beyond what has already been stated.
[3]See par 28 below.

B.2 Applicant’s personal circumstances

Chau is 45 years old. He was born on 5 June 1979 in Cambodia and came to Australia with his family in 1990 as refugees. He became an Australian citizen in 1993.
He completed high school at De La Salle College in Malvern, Victoria. He then completed a 7 year apprenticeship in computer numerical control programming at Toyota. He has subsequently worked at the Nissan factory in Dandenong as a quality engineer, at a rose farm in Clyde and in various labouring jobs.
Chau married his wife in 2014. She is 38 years old and works as an accounts administrator at an accounting firm. They have a daughter who is 7 years old. She has an undiagnosed neurodevelopmental disorder associated with a clinical diagnosis of Ataxic cerebral palsy. It was not however suggested that Chau is a key figure in her care.[4]
[4]Care responsibility for a young child has been found to be a relevant surrounding circumstance under s 3AAA(1)(g) of the Bail Act. See, for example, Re Kane [2010] VSC 8, [37]-[40] (Lasry J).
His father is 74 years old. He is now retired, but previously worked as a machine operator. His mother is 70 years old. She is also retired and previously worked at garment sewing factories. Chau has a younger sister who is 43 years of age. She owns and operates a vegetable farm southeast of Melbourne and another farm near Shepparton. She gave evidence in support of her brother being granted bail.
Chau has not been diagnosed with any medical or mental health conditions. He has used drugs in social settings in the past, and aside from testing positive to amphetamines and methamphetamines on 1 occasion on 7 December 2023, has otherwise appeared to be abstinent since his arrest and remand.
While on remand, Chau has worked as a unit billet and has completed numerous programs, including “ATLAS”[5] and a specialised cleaning course. He receives fortnightly visits from his wife, daughter and sister.
[5]The “ATLAS Remand Program Suite” is a suite of 8 voluntary psycho-educational sessions which provide practical information for adjusting to prison, as well as building capacity to help persons on remand address their transitional needs in prison and in the community.
Chau has a significant criminal history, including prior convictions for intentionally causing injury, behaving in a riotous manner in a public place, possession of methylamphetamine, possession of cocaine, burglary, theft, theft of a motor vehicle, retention of stolen goods, possessing a controlled weapon without excuse, dangerous driving while pursued by police, driving in a dangerous manner, driving whilst disqualified and failing an oral fluid test within 3 hours of driving.
He does not have any prior history of failing to answer bail, though he was subject to a community correction order at the time of some of the offending described in the previous paragraph.

C. Legal principles

Murder is an offence listed under schedule 1 of the Bail Act 1977 (Vic).[6] Chau must therefore demonstrate that exceptional circumstances exist that justify the grant of bail.[7]
[6]Bail Act, sch 1, item 2.
[7]Ibid, s 4AA(1), 4A.
The phrase “exceptional circumstances” is not defined in the Bail Act. Numerous authorities have established that, to be exceptional, the circumstances must be such as to take the case out of the ordinary or norm to justify the grant of bail.[8] Although the threshold is high, it is not an impossible standard to reach. It may be met by a combination of matters, even when none of the individual circumstances is considered exceptional in and of itself.[9]
[8]See, for example, Re Brown [2019] VSC 751, [65] (Lasry J), and the cases there cited.
[9]Ibid.
If satisfied that exceptional circumstances exist, the court must then determine whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[10] In assessing whether any risk is an unacceptable risk, the court must consider whether the risk may be mitigated by any conditions of bail.[11]
[10]Bail Act, s 4D(a).
[11]Ibid, s 4E(3)(b).
The court must refuse bail if satisfied that there is an unacceptable risk that an applicant may endanger the safety or welfare of any person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the bail undertaking, notwithstanding that the exceptional circumstances test has been met.[12] The notion of unacceptable risk does not concern merely any risk of reoffending. Rather, the question is whether such a risk is unacceptable.[13] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[14]
[12]Ibid, s 4E(1).
[13]Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).
[14]Bail Act, s 4E(2).
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 following matters listed in section 3AAA(1) of the Bail Act:
[15]Ibid, ss 4A(3), 4E(3)(a).
…
(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)       whether, at the time of the alleged offending, the accused—
(i)        was on bail for another offence; or
…
(v)      was subject to a community correction order …
…
(g)the accused’s personal circumstances, associations, home environment and background;
(h)      any special vulnerability of the accused, including—
…
(iii)      experiencing any ill health, including mental illness; or
(iv)having a disability, including physical disability, intellectual disability and cognitive impairment;
(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 interpreting and applying the Bail Act, including the sections outlined above, the court is required to take into account the guiding principles set out in section 1B. These include competing considerations of maximising the safety of the community, and the presumption of innocence and the right to liberty.[16]

D. Submissions

[16]Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).

D.1 Chau’s submissions

Although it was conceded that the alleged offending is serious, it was submitted on Chau’s behalf that exceptional circumstances could be established by the combined weight of several factors, namely:
(1)The strength (or lack thereof) of the prosecution case. It was submitted that the case against Chau in relation to the alleged murder is a circumstantial case and is not overwhelming. While it was accepted that the case might be said to be strong concerning whether Chau was in the area at the relevant time, it was submitted his presence inside the Noble Park Residence when the killing is said to have occurred is in issue and that there is no direct evidence to establish it. It was further submitted that even if this could be proven, difficulties would be encountered by the prosecution in proving that Chau was part of an agreement to kill or seriously injure Loulanting.
(2)The length of time Chau is likely to spend in custody if bail is refused. He has been on remand since 2 December 2022, and by the time of trial, which is listed to commence on 14 October 2024, he will have been on remand for 683 days.
(3)The availability of family support and stable accommodation. Chau proposes to reside at 1 or more of the properties owned or occupied by his sister.[17]
(4)The availability of employment. Chau has been offered employment as a farmhand 5 days per week at his sister’s farms.
(5)The offer of a bail guarantee. Chau’s sister has offered $25,000 by way of security over her home.
[17]See further par 68 below.
In relation to unacceptable risk insofar as interference with witnesses is concerned, it was submitted that a suggestion made by the prosecution that Chau may interfere with his sister’s evidence is far-fetched,[18] as she has already provided a witness statement and the prosecution could make an application to cross-examine her as an unfavourable witness should her evidence change.[19] In relation to other witnesses suggested by the prosecution to be at risk of interference, it was submitted that none of these other witnesses identify or inculpate Chau in any agreement to murder Loulanting, and there is no evidence of Chau having interfered or sought to interfere with these witnesses while he has been on remand.
[18]See par 40 below.
[19]Pursuant to s 38 of the Evidence Act 2008 (Vic).
It was further submitted that it would be possible to sufficiently mitigate any unacceptable risk associated with a grant of bail by the surety offered by Chau’s sister and the imposition of the following conditions, namely that Chau must:
(1)Reside at [proposed residential address].
(2)Report to Dandenong Police Station each Monday, Wednesday and Friday.
(3)Abide by a curfew between 10.00pm and 6.00am each day.
(4)Not contact witnesses for the prosecution, except the informant.
(5)Not contact any co-accused.
(6)Not leave the State of Victoria.
(7)Not leave Australia.
(8)Not attend any international points of departure.
(9)Surrender all valid passports and travel documents and not apply for any other travel documents.

D.2 Respondent’s submissions

In response, the prosecution submitted that Chau had not reached the high threshold of establishing exceptional circumstances justifying a grant of bail.
The prosecution noted the seriousness of the alleged offending and rejected Chau’s assertion that the case against him was not strong. It was submitted that numerous pieces of evidence inculpate Chau in the alleged murder. These include:
(1)Known associations between Chau and his co-accused.
(2)Text message exchanges between Chau and his co-accused prior to the alleged offending said to provide evidence of planning and coordination of the murder.
(3)Phone mapping and closed-circuit television footage prior to and on the day of the alleged murder and affray, which appear to place Chau and his co-accused at the Noble Park Residence and surrounding areas.
(4)Intercepted phone calls between Chau and his sister and father in which he appears to ask them not to identify him as the driver of his sister’s vehicle on the night of the alleged offending. This vehicle was seen driving to and from the Noble Park Residence on or around the time of the alleged murder and affray.
(5)Text message exchanges and intercepted phone calls with other associates after the alleged murder and affray, in which Chau appears to discuss, among other things, media releases and arrests of his co-accused and whether he was included in those releases, as well as seeking for an associate to contact Medhi’s family in order to have Medhi admit to the shooting.
(6)Alleged lies Chau told police in his record of interviews to the effect that he was in Shepparton at the time of the alleged offending, that he had never been to the Noble Park Residence and that he had never met Mehdi or Qian.
It was conceded there had been delay in progressing the matter for reasons not attributable to Chau. It was submitted, however, that in light of the seriousness of the alleged offending, time spent on remand is unlikely to outweigh any sentence imposed if he is found guilty. Further, it was submitted that taking into account the nature of the case, involving 4 co-accused, the delay to date had not been inordinate. Furthermore, the matter is listed for trial commencing 14 October 2024 and it was submitted that there is therefore no substantial uncertainty pertaining to the likely finalisation of the proceeding.
The prosecution disputed that Chau’s sister’s residence would be a stable bail address. This was on the basis that Chau was residing there at the time of the alleged offending, as well as the fact that the homemade pen gun the subject of 1 of the charges against Chau was located at that address. In addition, Chau’s sister is a witness at the trial, and given the evidence of intercepted phone calls with his sister and father,[20] the prosecution submitted that there was a concern Chau may attempt to influence his sister’s evidence if he were granted bail to reside at the same address as her.
[20]See par 38(4) above.

Given the seriousness of the alleged offending, the prosecution also submitted that the amount of the bail guarantee offered by Chau’s sister would not be sufficient to mitigate risk.
Finally, the prosecution submitted that even if exceptional circumstances could be established, Chau nevertheless posed an unacceptable risk of endangering the safety or welfare of a person, interfering with witnesses or otherwise obstructing the course of justice, and failing to surrender into custody in accordance with the conditions of his bail.

E. Consideration

E.1 Exceptional circumstances

While Chau relied upon each of the matters identified above in seeking to establish the existence of exceptional circumstances,[21] at the hearing particular reliance was placed upon the strength (or rather, lack thereof) of the prosecution case on the charge of murder.
[21]See par 34 above.
In assessing the strength of the prosecution case for the purposes of an application for bail, it is not the court’s role to analyse “in detail each piece of evidence to determine its likely admissibility and importance to a jury”, or to express “any firm or concluded view” on the matter.[22] This is due to, among other things, the fact that the court has “not had the benefit of seeing what effect cross-examination might or might not have in relation to evidence that might be regarded as critical”.[23] However, it is necessary, in having regard to the surrounding circumstances, to form a broad view about whether, “taking the prosecution case at its highest, it might be regarded as a strong or weak case”.[24]
[22]Formica & Forni v Victoria Police [2020] VSC 719, [68] (Hollingworth J).
[23]Re CD [2017] VSC 721, [23] (Beach JA); Re Sam [2017] VSC 91, [24] (Beach JA).
[24]Re Wetzler [2023] VSC 626, [71] (Champion J). See also Bail Act, s 3AAA(1)(b); FT v The King [2024] VSCA 90, [78], [83] (Beach, McLeish and Niall JJA).
Naturally, each case must be decided according to its own particular facts and circumstances. However, it is of some assistance to refer to a number of other cases where bail has been sought when an accused was facing a charge of murder.
In Re Frank,[25] Champion J found that while the applicant had an arguable defence, the case against him could not reasonably be described as weak.[26] It also could not be said that there was undue delay “beyond the normal limits”,[27] and matters personal to the applicant’s situation, including the availability of a static residence and community assistance, did not satisfy his Honour that exceptional circumstances had been established.[28]
[25][2018] VSC 718.
[26]Ibid, [43]-[44], [51].
[27]Ibid, [46], [51].
[28]Ibid, [47], [51].
In Re Lacey,[29] Priest JA did not consider the prosecution case in relation to the charge of murder to be weak. His Honour noted that it would be “open to a jury to conclude that the applicant was present at the time the deceased was killed and acted “as part of a joint criminal enterprise, or was otherwise complicit”.[30] In his Honour’s view, none of the other factors relied upon, including the applicant’s limited prior criminal history, family support and stable accommodation and the offer a substantial bail guarantee, alone or in combination, went “beyond the kind of circumstances encountered in the ordinary case”.[31]
[29][2015] VSC 611.
[30]Ibid, [9].
[31]Ibid, [7]-[8], [10].
In Re Sam,[32] Beach JA found that the prosecution case against the applicant for murder was circumstantial, and was neither unusually strong nor unusually weak.[33] Whilst concluding that the applicant had reasonable prospects of being acquitted,[34] his Honour was of the view that the delay was not exceptional, and the remaining matters relied on by the applicant, including a stable place of residence, family support and the fact that she had no criminal history, did not amount to exceptional circumstances either alone or in combination.[35]
[32][2017] VSC 91.
[33]Ibid, [25].
[34]Ibid, [24].
[35]Ibid, [17], [27].
In Re CD,[36] Beach JA held that on the material tendered for an application for bail, all that could be said in relation to the prosecution case for murder was that it “may or may not succeed at trial against the applicant”.[37] The delay asserted by the applicant could not be described as exceptional.[38] None of the other factors raised were exceptional in and of themselves, nor did they add sufficiently to the grounds concerning the strength of the prosecution case and delay to constitute exceptional circumstances.[39]
[36][2017] VSC 721.
[37]Ibid, [24].
[38]Ibid, [25].
[39]Ibid, [26].
Conversely, in Re Wetzler,[40] Champion J held that the prosecution case for murder against the applicant did not “appear to be particularly strong or compelling”.[41] Taken in combination with, in particular, the fact the applicant had no criminal history and a delay of up to 2 years was anticipated before a trial might commence,[42] his Honour was satisfied that exceptional circumstances justifying a grant of bail existed.[43]
[40][2023] VSC 626.
[41]Ibid, [71].
[42]Ibid, [73]-[74].
[43]Ibid, [75].
Similarly, in Re Nguyen,[44] Lasry J regarded the evidence before him on the charge of murder to be, at the stage at which the application for bail was made, “effectively non-existent”.[45] His Honour observed that he could not see “how any inference could be drawn on the evidence which would implicate the applicant in the charge of murder”.[46] In addition, the anticipated delay in bringing the applicant to trial, “whilst of itself perhaps not inordinate”, would be “of the order of some two years and potentially longer”.[47] When these factors were considered in combination with the offer of a substantial bail guarantee and the availability of a stable place of residence and community treatment and supervision services for the applicant’s schizoaffective disorder,[48] his Honour was satisfied that exceptional circumstances existed.[49]
[44][2022] VSC 836.
[45]Ibid, [74(b)].
[46]Ibid.
[47]Ibid, [74(d)].
[48]Ibid, [74(a)], [74(c)].
[49]Ibid, [74].
In Armstrong v The Queen,[50] Lasry J concluded that the prosecution case for murder against the applicant could not be accurately described as strong.[51] Given the likely delay of at least 18 months in the matter coming to trial, as well as the personal circumstances of the applicant, including the existence of medical conditions and the lack of any criminal history,[52] his Honour was also satisfied that exceptional circumstances justifying a grant of bail existed in that case.[53]
[50][2013] VSC 111.
[51]Ibid, [25], [33].
[52]Ibid, [27]-[29].
[53]Ibid, [34].
More recently, in Re Tilley,[54] the court found that, even “viewing the evidence at its highest”, there was “scant evidence upon which [the applicant] could be incriminated as being part of any conspiracy to murder” at the time at which her application for bail was made.[55] Viewing the weaknesses in the prosecution case in combination with the applicant’s “lack of criminal history, her personal circumstances, the availability of stable accommodation and full time employment, the availability of support through the Bail Safe Program, and the offer of a not insignificant bail guarantee”,[56] exceptional circumstances were found to exist.
[54][2024] VSC 274.
[55]Ibid, [49].
[56]Ibid, [53].
In the circumstances of the present application, there is some complexity associated with the case for murder against Chau. It is “not an open and shut case”.[57] The prosecution case is not that Chau was the shooter, rather it is put on the basis of complicity. That is, the prosecution alleges that Chau was part of an enterprise, agreement, or understanding to kill or cause really serious injury to Loulanting. In this regard, it was submitted on behalf of Chau that:
(1)No witness has identified Chau as having been outside or inside the Noble Park Residence at the time of the alleged offending.
(2)Even if the prosecution could prove Chau’s presence in the immediate area at the time of the shooting, it would be unable to exclude reasonable possibilities that, among other things, he was never part of any agreement to shoot or kill anyone, and if he had been, that he withdrew from that agreement, as well as that the shooter or killer acted on a frolic separate, apart from and outside any agreement that existed between Chau and anyone else.
(3)The text messages exchanged between Chau and his co-accused and relied upon by the prosecution[58] at their highest are consistent with no more than a possible agreement to secure drugs or to assault someone, and are not evidence of knowledge or the proposed use of a firearm or any intention to harm Loulanting.
(4)Chau’s subsequent phone calls[59] and lies during his police interview[60] are readily explained by panic and are far from conclusive evidence of a consciousness of guilt of murder.
[57]Re Sam [2017] VSC 91, [24] (Beach JA).
[58]See par 38(2) above.
[59]See par 38(4) and (5) above.
[60]See par 38(6) above.
There are clearly triable issues in relation to the charge of murder. However, taking each of the matters raised by Chau into account and in light of all the relevant circumstances including the surrounding circumstances, on the material tendered as part of this bail application including the extensive details provided in the summary of prosecution opening, it cannot be concluded that the case against Chau on the basis of complicity is weak.
Based on the evidence of the circumstances leading up to the confrontation on 11 July 2022, the phone mapping and closed-circuit television footage relevant to the affray that allegedly occurred shortly after the killing, text message exchanges, intercepted phone calls and witness testimony, it would be open to a jury to conclude that there was in fact a plan by the 4 co-accused, including Chau, to ambush and kill Loulanting or cause him really serious injury, and to find that Chau was present at the time Loulanting suffered the injuries which subsequently led to his death.
Ultimately, the prosecution case is “not so lacking in strength as to form a separate basis (either looked at alone or in combination with the other surrounding circumstances) upon which one might conclude that exceptional circumstances have been made out”.[61]
[61]Re Zayneh [2023] VSC 470, [35] (Beach JA).
Turning to the issue of delay, Chau has been on remand for approximately 19 months. The prosecution conceded that there had been delay in progressing the matter. While the significance of that period should not be downplayed,[62] and his time in custody has not been without incident,[63] it does not appear to have been unduly burdensome.[64] For example, he does not have any physical or mental health issues which are not being effectively treated in custody.
[62]Re Sam [2017] VSC 91, [26] (Beach JA).
[63]On 1 June 2023, a syringe secreted in a bottle of moisturiser was located in Chau’s cell. On 14 June 2023, Chau was involved in a fight with another prisoner where punches were exchanged by both parties. Chau’s counsel characterised these incidents as “minor in their nature”.
[64]As noted at par 25 above, Chau has taken up work as a unit billet and completed numerous programs in custody, and receives regular visits from his wife, daughter and sister.
In respect of any prospect of future delay, there is certainty in respect of the trial date. The trial is listed to commence in less than 4 months’ time on 14 October 2024. If ultimately convicted of the offences with which he is charged, Chau would be sentenced to a term of imprisonment which would far exceed any time spent on remand.[65]
[65]Bail Act, s 3AAA(1)(aa) and (k).
Consequently, while there has been delay in the matter, I am not satisfied that there has been or will be unusual or inordinate delay so as to constitute an exceptional circumstance, either alone or in combination with the other factors relied upon by Chau, including the strength of the prosecution case.
As to the remaining factors Chau relied upon in order to establish exceptional circumstances; namely, the availability of stable accommodation, employment and the offer of a modest bail guarantee, none of these give rise to exceptional circumstances, either alone or in combination.
Having therefore 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, Chau has failed to establish that exceptional circumstances justifying the grant of bail exist.

E.2 Unacceptable risk

In light of this, it is unnecessary for me to rule in relation to whether Chau presents an unacceptable risk of the kind identified in section 4E(1) of the Bail Act. However, had I been required to rule on the matter, I would have been satisfied that there is an unacceptable risk that, if Chau were granted bail, he would interfere with witnesses or otherwise obstruct the course of justice.
While the question of risk is “forward-looking and involves a predictive exercise often based on incomplete material”,[66] in forming the view that Chau would pose an unacceptable risk of interfering with witnesses or otherwise obstructing the course of justice, I have taken into account the evidence that Chau has allegedly already made attempts to influence his sister, a prosecution witness, as well as his father, in respect of information or evidence that they might provide to investigating police.[67]
[66]FT v The King [2024] VSCA 90, [79] (Beach, McLeish and Niall JJA).
[67]Compare Re Sam [2017] VSC 91, [27] (Beach JA).
As noted above,[68] it was submitted on behalf of Chau in response to this concern that his sister has already made a statement, and should her evidence change, the prosecution could make an application to cross-examine her as an unfavourable witness. Whether or not such an application were made, this would do nothing to ameliorate the risk contended by the prosecution. While I also note that Chau’s sister appears to be visiting him while in custody, the risk of interference would be greatly amplified if he were granted bail and their contact became unsupervised.
[68]See par 35 above.
It was also submitted that the charged events in no way involved Chau’s sister, nor is she a significant witness in the trial. Accepting this for the sake of argument, this does not change the fact that there is a material risk of Chau interfering with a witness.
In light of previous alleged attempts by Chau to influence his sister and father and the fact that his proposed bail address is a property frequented by his sister, it is difficult to see how there could be any conditions imposed that could realistically ensure that no further attempts of this nature were made.
This brings me to a further matter. In an affidavit in support filed by Chau’s sister, she proposed that Chau reside with her (together with her 4 children and her mother and father). She also proposed that Chau work full time at her farming property southeast of Melbourne. However, when she gave evidence on the hearing of this application, she proposed that he work and reside at another rural property near Shepparton. It was suggested that he would live at that location with 4 other workers who were not identified. Chau’s sister gave evidence that she only visited the property every 3 or 4 days, usually on weekends. Chau does not have a driver’s licence, which means, unless assisted, he would be incapable of reporting to the nearest police station in Shepparton. No arrangements were in place to ensure this could happen.
It was then suggested from the bar table that if this was not satisfactory, then Chau could work and reside at the farming property southeast of Melbourne. Again, this was a different arrangement to what was put forward in the application as filed.
In short, based on the state of the evidence, it was unclear precisely what was being proposed by way of conditions. Although this opacity undoubtedly could have been addressed had the court been satisfied that exceptional circumstances were established, it should be noted that the state of the evidence on this matter was unsatisfactory.
It was acknowledged that the bail guarantee offered of $25,000 was modest in the context of a bail application for the charge of murder. In the circumstances of this case, it would have been insufficient in allaying the concerns identified with respect to Chau being an unacceptable risk.
It follows that I would not otherwise have been satisfied that the proposed conditions of bail would be capable of reducing this risk to an acceptable level.

F. Conclusion

For the reasons stated, I am not satisfied that exceptional circumstances exist justifying the grant of bail. Further, even if I had been so satisfied, I would have found that Chau posed an unacceptable risk. Accordingly, bail is refused.

[2024] VSC 387

26 June 2024