Re Choppin
[2009] VSC 313
•29 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1478 of 2009
IN THE MATTER of the Bail Act 1977
- and –
IN THE MATTER of an Application for Bail by SUSANNE CHOPPIN
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 JULY 2009 | |
DATE OF JUDGMENT: | 29 JULY 2009 | |
CASE MAY BE CITED AS: | APPLICATION FOR BAIL BY SUSANNE CHOPPIN | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 313 | |
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BAIL – Applicant facing charges of trafficking a drug of dependence – Whether exceptional circumstances shown – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W. Stuart | Balmer & Associates |
| For the DPP | Mr T. Hoare | Craig Hyland, Solicitor for Public Prosecutions |
HIS HONOUR:
This is an application for bail by Susanne Choppin.
The applicant has been charged and is now on remand in relation to three alleged offences. The first of these is trafficking a drug of dependence, namely cocaine, in a quantity not less than the applicable commercial quantity. The period during which it is alleged this trafficking occurred was 6 April 2009 to 4 May 2009.
The second charge presently faced by Ms Choppin is that on 26 May 2009 she dealt with property suspected of being the proceeds of crime, that property being $279,950 in cash.
The third charge is that Ms Choppin was on 26 May 2009 in possession of a drug of dependence, namely cannabis.
The first of the charges to which I have referred and which Ms Choppin faces is not only an offence under the Drugs Poisons and Controlled Substances Act 1981 but also is one which falls within sub-s.(2)(i) of s.4 of the Bail Act1977. Sub-section (1) of that section provides, so far as is relevant, that any person accused of an offence and being held in custody in relation to that offence shall be granted bail if certain circumstances obtain. But (and this is the effect of sub-s.(2) of s.4) notwithstanding the generality of the provisions of sub-s.(1), a court shall refuse bail in the case of a person charged with an offence of the kind that Ms Choppin faces as the first of the charges to which I have referred unless I am satisfied that exceptional circumstances exist which justify the grant of bail.
In an affidavit sworn by Anna Kate Balmer in support of the application, a number of bases are put forward which the deponent submits show exceptional circumstances. They are as follows: First, the applicant's children are, in the one case, 13 years of age and in the other, 17 years of age. (I interpolate to say that, in fact, the elder child is now 18 years old). One of the two children, the younger, attends Williamstown High School, while the elder is a student at RMIT University studying first year psychology. The second ground said to show exceptional circumstances is that the father of the applicant's children resides in Adelaide and suffers from depression and a gambling addiction. That ground has not been pressed in this application. The third ground is that the applicant has limited contact with her family in New Zealand. Indeed, it is a principal submission put by Mr Stuart on behalf of the applicant that the applicant has ties only with Victoria and for that reason is unlikely to abscond.
The fourth basis forming that part of the affidavit of Ms Balmer that consists of her submissions in relation to the application is that the applicant will, if released, reside at her home address of 268 Melbourne Road, Newport. Also residing at that address are the applicant's partner, Mr Pinch, and the two children to whom I have referred.
The fifth basis put forward by Ms Balmer is that the applicant owns and runs a number of small businesses, all of which are suffering while she is in custody. I will return to this aspect of the case shortly.
The next head put forward by Ms Balmer is that the applicant suffers from a joint condition which has been exacerbated whilst in custody. That was not a ground relied upon in the hearing before me.
The next basis relied upon by Ms Balmer is that the applicant is able to provide a surety. I shall return to that point shortly.
A further basis relied upon by Ms Balmer in her affidavit is that there will be significant delay, it is submitted, in the applicant's case being ultimately dealt with either at committal or if the matter goes further, at trial.
As her penultimate basis, Ms Balmer refers to the applicant's ties to the community; and as her final basis, it is submitted by Ms Balmer that the Crown case against the applicant is not strong.
I turn first to the last of the matters referred to in Ms Balmer's affidavit. In my opinion, it was entirely appropriate for counsel for the applicant to concede, as I think he, in the circumstances, had to concede, that the prosecution case is in fact a strong one. There is set out in a sworn statement made by Detective Senior Constable Paul Rowe, a statement to which Mr Rowe swore in the witness box in the hearing before me, evidence to the effect that a sum of money totalling nearly $300,000 was found when the police executed a search warrant at the applicant's residence and that that sum is, in itself, evidence of dealings that go beyond the income which the applicant could be expected to receive from a combination of her business endeavours and the money she receives from social security. Not only is there an apparent discordance between a very large amount of cash said to have been found at the applicant's residence and any income which she might earn, but some of the money thus found is said by the police to be identifiable, by means of relevant serial numbers, as bank notes which, according to the police case, were received by the applicant from a covert operative who was engaged in Operation Planet, a police covert operation intended to flush out what the police suspect was a large scale trafficking of ecstasy, amphetamines and cocaine.
If the police are able to prove that bank notes found in the applicant’s residence were received by the applicant from the covert operator, the case against the applicant will indeed be very strong. I accordingly proceed upon the basis that, as at present, the evidence against the applicant is suggestive of a strong prosecution case.
Having had regard to all the matters which have been put forward in the affidavit of Ms Balmer and in particular having taken into account the submissions put on the applicant's behalf by Mr Stuart this morning, I have formed the opinion that the application must be refused. The special circumstances relied upon by the applicant in her application this morning came down particularly to two. The first is the fact that the applicant's children are at present living without her, and that that is a matter of serious consequence for them. I note, however, that an adult presently lives with them, that adult being Mr Pinch, and that the elder of the two children is now at university and is not in need, one would expect, of the daily assistance of a parent. That is not the position with the younger of the two children who is only 13 years old. Nevertheless, he does reside with an adult and there has been no suggestion that he cannot continue with his schooling in the absence of his mother.
The other exceptional circumstance, as it seems to me, is that of delay. Mr Stuart has submitted that if these charges go to trial, a trial is not likely to be held before the year 2010. That may be the case. If it is, it will be more than unfortunate, although in saying that, I have to accept the reality that prosecution cases where trafficking in drugs are involved are very often difficult and time consuming in their preparation. At the same time, it must be accepted that the courts will have a much clearer idea of the likely delay at the time of the committal. I accept in that respect Mr Hoare's submission that at that time a further examination of the position in relation to delay can be made (should a further application for bail then be made).
The other matters put in support of the application this morning seem to me to go not so much to special circumstances, as to reinforce a case that if bail were granted, no breach of bail or breach of the law would occur. I am, in examining those submissions, minded to also take into account the submission put on behalf of the prosecution that the financial situation of the applicant is such that the temptation to find sources of income beyond those available from her businesses or social security might, and as the Crown would have it, likely would, result in illegal activity. That is a risk, it seems to me, which is one to which I must have regard and which strengthens the submission put by the prosecution that the grant of this application would result in there being an unacceptable risk that an offence would be committed by the applicant when on bail.
It was further put in submissions in support of the application that, as I have indicated, the applicant has ties only to Victoria and therefore would be unlikely to abscond. I accept that that is so, while noting that that in itself does not amount to an exceptional circumstance.
It was also put in support of the application that the applicant is in a position to provide a surety. I heard evidence to that effect from Jeanette Barlow who is the owner of a property in which, if her evidence is correct, she has an equity of some $320,000. According to Ms Barlow, the property in question is worth some $450,000 and there is some $130,000 owing on it, leaving a balance, as I have said, of $320,000.
I accept Ms Barlow's evidence that she is prepared to provide that property as a surety for the applicant should the application be granted. I am also prepared to accept that the value placed upon the property by Ms Barlow is reflective of its true value, albeit that Ms Barlow does not purport to be a valuer. The value for rating purposes is, according to the evidence, $360,000 and it may well be that the property is worth, in fact, the additional amount attributed to it by Ms Barlow.
Again, however, this is a matter that goes not to exceptional circumstances but rather to the question of risk. It therefore does not meet the test which must be met if I am to be satisfied in accordance with the requirements of the legislation. For the reasons I have endeavoured to express, my conclusion is that no exceptional circumstances have been shown sufficient to allow me to grant the application.
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