Re Dalton
[2013] VSC 690
•6 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 197 of 2013
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by AARON DALTON |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2013 | |
DATE OF JUDGMENT: | 6 December 2013 | |
CASE MAY BE CITED AS: | Bail Application - Dalton | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 690 | |
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CRIMINAL LAW – Application for bail – Conspiracy to traffick large commercial quantity of methamphetamine and other charges – Whether exceptional circumstances – Alleged weakness of prosecution case – Accused unacceptable risk – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Duckett | Valos Black & Associates |
| For the Respondent | Mr M Perry | Solicitor for the Office of Public Prosecutions |
HIS HONOUR:
On 14 September 2012, the applicant, Aaron Dalton, was arrested and charged by Detective Sergeant Bray, of the Wangaratta Crime Investigation Unit, with 41 charges and he was remanded into custody. He applies to this court for bail.
Because of the nature of some of the charges brought against the applicant, he is required under s 4(2) of the Bail Act 1977 to establish exceptional circumstances which justify the grant of bail to him.
The charges against the applicant include the following: two charges of conspiracy to traffic a large commercial quantity of methylamphetamine, each of which are alleged to have occurred between 18 September 2011 and 14 September 2012; eight charges of conspiracy to traffic a commercial quantity of methylamphetamine and eight charges of conspiracy to traffic a commercial quantity of ecstasy. Those conspiracies are alleged to have occurred on various dates between 18 September 2011 and 14 September 2012; two charges of intentionally causing serious injury; one charge of reckless conduct endangering life; one charge of affray and six charges of arson.
The charges have been filed in the committal stream of the Magistrates’ Court at Wangaratta and they are now listed for a five‑day committal hearing which is due to commence on 3 February 2014 at the Melbourne Magistrates’ Court. The committal hearing was originally listed for 14 October last but it was unable to proceed on that date.
A number of co‑accused have given undertakings to give evidence against the applicant and some of the other co‑accused have been sentenced in the County Court.
The applicant made an unsuccessful application for bail to the Magistrates’ Court at Wangaratta on 24 January 2013. Two further such applications made by him on 11 July and 28 October respectively also failed on the basis that the applicant had not demonstrated new facts and circumstances.
In her affidavit in support of the application, the applicant’s solicitor alleges that the case against the applicant is weak as it rests almost entirely on the unreliable evidence of the co‑accused. She points out that there are no telephone intercepts, fingerprint or DNA evidence supporting the testimony of the co‑accused and the applicant’s solicitor states that the 216 grams of methylamphetamine seized after the applicant’s arrest could only be tenuously linked to the applicant.
In addition, the applicant relies on the potential delay between his arrest and his trial date which, the applicant’s solicitor deposes, is likely to be at the earliest in February 2015. If the applicant is granted bail, he could reside with his parents in Wangaratta. There is apparently employment available to him in the meat industry in that area. Alternatively, the applicant could reside with an acquaintance in West Melton. It is also pointed out that the applicant does not have any history of failing to answer bail.
In response, the respondent relies on a detailed report provided by the informant, Detective Sergeant Bray. That report alleges that the applicant has been the head of a syndicate comprising nine persons which purchased and then on‑sold $3 million worth of illicit drugs. Of that syndicate, four members, Andrew Whinray, Kruchan Chandler, Sarah Blackman and Dean Griggs, have each been convicted and sentenced. Each have provided a signed statement to the police implicating the applicant and each have provided an undertaking to give evidence in respect of that statement.
A fifth member of the syndicate, Bradley Whinray, was convicted and sentenced in the County Court. He pleaded guilty and made admissions in his record of interview to the police in which he implicated the applicant as the controller of the syndicate. However, he has declined to assist the prosecution in the case against the applicant.
In his report, Sergeant Bray states that the prosecution brief contains evidence that proves that between September 2011 and September 2012 the applicant received and then on‑sold nine consignments of illicit drugs. If those consignments are in fact each separate consignments, then the total amount of the methylamphetamine contained in those consignments is approximately seven kilograms.
The prosecution will rely on some nine witnesses in respect of those consignments. Eight of those witnesses were in different respects involved in the offending which is alleged against the applicant. In addition, the prosecution will rely on some surveillance and CCTV footage evidence in respect of five of those consignments.
On 14 September 2012, the applicant was arrested in Shepparton while he was a passenger in a motor vehicle driven by a co‑offender, one Verry, and in which Griggs was also a passenger. 216 grams of methamphetamine was found in the vehicle contained in two separate packages. One of those packages was under the rear passenger seat on which the applicant had been sitting. Both of those packages had been contained in Cryovaced materials which was secured by black electrical tape.
Four days later, on 18 September, police located a further 478 grams of ecstasy and 113 grams of methylamphetamine in locations in New South Wales which are alleged to be linked to the applicant.
In addition, in August and September 2012, police located and seized a number of items which are alleged to have been connected with the drug trafficking syndicate operated by the applicant. Those items were packaged with black electrical tape and Cryovac materials. The items which were comprised in one of the seizures were found buried in the applicant’s grandmother’s backyard. They consisted of Cryovaced methylamphetamine, money, a drug price list and drug trafficking instructions. Those items were contained in three separate packages which, as I say, were wrapped in black tape and Cryovac. The applicant’s fingerprints were found on the drug trafficking instructions and the price lists.
In addition, quantities of black electrical tape and Cryovac material have been located at or near three places which were used as short‑term accommodation by the applicant and his associates.
The applicant has previously been convicted of trafficking drugs in circumstances in which he had Cryovaced the products. The prosecution alleged that that technique of wrapping parcels of drugs is quite unique in the northeast of Victoria and, indeed, Sergeant Bray’s evidence is that he has never seen nor heard of that technique being used in any other drug syndicate or operation.
The prosecution alleges that the applicant recruited numerous adults to assist in the operation of his business and that he financed the drug business, including transportation, accommodation, living expenses and illicit drugs to those involved in it. Those persons were required to traffic drugs and also to carry out acts of serious violence at the behest of the applicant.
Surveillance, it is said, reveals that the applicant and his co‑accused lived a transient lifestyle, constantly moving from one short‑term accommodation to another short‑term accommodation facility, most of which were located in New South Wales and close to the Victorian border. Although the applicant funded the accommodation expenses, the bookings for them were always made in the name of a female co‑accused. Sergeant Bray states that the applicant is depicted in surveillance footage residing with co‑accused at those locations and it is alleged that evidence demonstrates that he spent some $15,000 on such accommodation over a period of two and a half months.
In addition, the report compiled by Sergeant Bray specifies five acts of serious violence in which it is alleged that the applicant was either in some way connected or which it is alleged were committed by or at the behest of the applicant. It is alleged that those actions were perpetrated against persons who did not follow the rules of his syndicate. Those acts include the shooting of a victim with a shotgun near the front door of his home; the fire bombing of an occupied home in Wangaratta with a Molotov cocktail; a severe assault on a person who owed the syndicate a drug debt, which assault resulted in several fractures to the skull and face of the victim and has necessitated him undergoing a number of surgical operations, and an incident in which the applicant and others chased a vehicle driven by a co‑offender, James Corboy, at high speed and ultimately rammed Corboy’s vehicle a number of times at Myrtleford until it left the roadway and collided with a tree. Corboy then escaped from his vehicle and was chased by the applicant and his co‑accused, who were both carrying weapons. There is some CCTV footage of the commencement of that pursuit to which I shall shortly refer.
In addition, police investigators have found a number of firearms and weapons associated with the drug syndicate in the course of their investigations. Sergeant Bray states that the police have knowledge that there are also other firearms associated with the syndicate that have not been recovered.
On that basis, the application for bail is opposed, firstly on the ground that the applicant has not established exceptional circumstances and, secondly, on the ground that if the applicant were released, he would fail to surrender himself into custody and answer his bail, and also that he would interfere with witnesses or otherwise obstruct the course of justice.
In those respects, Sergeant Bray in his report states that investigators have concerns that the applicant will interfere with and intimidate witnesses for the prosecution if he is released on bail. It is alleged that evidence in the brief indicates that the applicant uses brutal violence and intimidation tactics against people who pose a threat to himself or to his business. It is alleged that he has distributed written instructions among his criminal associates which stipulate that there would be “consequences” that are “guaranteed to be extremely harsh” for persons who not abide by the rules of the syndicate.
The applicant, it is alleged, has the resources and ability to locate and intimidate people while on bail and a number of witnesses have expressed concern that if he were released on bail, their safety and the safety of their families might be compromised.
The applicant is aware of the content of the hand‑up brief and of the significance of particular witnesses. It is alleged by the prosecution that the applicant has attempted to locate and intimidate witnesses and, in particular, Kruchan Chandler. Further, Sergeant Bray’s report details ten incidents in which the applicant, while he has been in custody, has been behaved in an erratic, unstable and irrational manner. Those incidents are contained in reports which are exhibited to the affidavit opposing the application.
In addition, Sergeant Bray states that he has concerns that the applicant will abscond interstate if he were to be released on bail. He has been communicating with his co‑accused, Rebecca Howarth, who has already been released on bail. They maintain a close relationship and Howarth is located in New South Wales. The applicant’s daughter is located interstate. He resided interstate while committing the offences with which he has been charged and has, it is alleged, a network of unidentified criminal associates interstate and in Victoria.
On 11 July 2013 at the Wangaratta Magistrates’ Court the applicant, during a bail application, produced a false document purporting to be written by his ex‑wife in which she was alleged to have stated that she would permit the applicant to reside at her interstate home address. The applicant’s ex‑wife has been contacted by the police and she has denied that she compiled that document and, indeed, she states that she was overseas on the date of the document’s production.
In addition, the applicant has been arrested in New South Wales on 6 August 2012 and bailed for offences including resisting police. He is alleged to have committed the offences with which he is now charged while he was on bail and the applicant has a number of previous convictions which include convictions for violence and drug offences.
In the affidavit in support of the application, it is stated that the applicant has the support of his parents in their family home should he be granted bail. In his report, the informant states, however, that the same support was available to the applicant at the time of his offending. The applicant has previously used the homes of family members to conduct drug trafficking. In particular, as I have noted, drugs, cash, money and drug instructions were found buried in the rear yard of his grandmother’s home.
In support of the application, the applicant, as I stated, relies on the affidavit of his solicitor and the exhibits contained in it. In the course of submissions made to me, a number of the statements of some of the witnesses who are co‑accused were tendered in support of submissions made in respect of the nature of the prosecution case.
The respondent relied on the affidavit of its solicitor and, as I stated, particularly on the report provided by Detective Sergeant Bray. In addition, Detective Sergeant Bray gave evidence on the application and he was cross‑examined in substantial detail by Mr Duckett, who appears on behalf of the applicant.
Mr Duckett has submitted that in the circumstances of this case there are exceptional circumstances, particularly because he submits the case against his client is weak and also because there will be a substantial delay between the date of his arrest in September 2012 and expected date upon which his trial will take place.
In particular, Mr Duckett submitted that the prosecution case is weak because there is little physical or objective evidence which connects the applicant with the offences.
The prosecution case is mainly reliant on evidence of witnesses who are themselves criminally concerned in the events about which they will give evidence. Four of those witnesses have given undertakings to cooperate with the prosecution and, as a result, each of them received a substantial reduction in the sentences which would otherwise have been imposed upon them. Thus, those witnesses will each, when they give evidence at the applicant’s trial, be subject to warnings given to the jury under s 165 of the Evidence Act.
Mr Duckett submitted that each of those witnesses has a palpable motive to nominate the applicant as the head of the syndicate in which they were involved and thus to shift the blame from themselves on to the shoulders of the applicant or, in the case of Andrew Whinray, to shift the blame from his brother, Bradley, on to the applicant.
It is pointed out that each of the witnesses who will give evidence on behalf of the prosecution have a considerable number of prior convictions and thus their credibility will be subject to attack on that basis at trial.
In addition, Mr Duckett has pointed out that the only drugs that were seized which had a direct connection to the applicant were the 216 grams of methylamphetamine found in the vehicle in which he was a passenger. That vehicle was occupied by three persons, including the applicant. Both packages of the drug were not visible and thus it could not be said that the applicant should have known of them. In total, the quantity of drugs seized by the police and said to be connected with the applicant is less than the threshold prescribed by the Drugs Poisons and Controlled Substances Act for a large commercial quantity.
Mr Duckett submits that there is no fingerprint, DNA or telephone intercept evidence which independently supports any of the allegations against his client by the witnesses.
On the issue of delay, Mr Duckett states, and I think correctly, that if the trial in this case proceeds in Melbourne it is most unlikely that it would commence before February 2015. He submits that there would be some difficulties having a trial conducted in Wangaratta because of the difficulty of empanelling an independent jury and because that court and its holding cells may not have adequate facilities to cope with not only the applicant but also the various witnesses who will need to be called.
Mr Duckett also pointed out that in recent times cases such as these are somewhat delayed when they are heard in circuit courts in the County Court because of the priority which by law that court is required to accord to cases involving charges of sexual offending. He also points out that a number of the charges against the applicant might be severed and subject to separate trials and that would add to the delay.
Mr Duckett submitted that the probable delay between arrest and trial is at least two and a half years, if not more. He submitted that that of itself is an exceptional circumstance that also adds to the matters to which he referred relating to what he submits is the weakness of the prosecution case
On the issue of unacceptable risk, Mr Duckett submits that there is not an unacceptable risk that the applicant will abscond. In particular there is accommodation available for him with his parents. He could be subject to appropriate reporting and curfew conditions which, it is submitted, would allay any concerns in relation to him failing to answer his bail.
He further submitted that it is far‑fetched to contemplate that the applicant would be foolish enough to interfere with witnesses if he was released on bail because of the obvious adverse implications for him were he to indulge in such conduct.
In response, Mr Perry, who appears for the respondent, has submitted that it is too early to make any realistic assessment of the relative strength or otherwise of the prosecution case.
He has submitted that the fact that the primary witnesses of the prosecution are co‑offenders and will be subject to a s 165 direction does not mean that they will not be believed. In a number of respects their evidence supports each other and is supported by independent evidence. The case in part is a circumstantial case and the collective weight of the circumstantial evidence and the consistency of the prosecution witnesses is such that he submitted the case for the prosecution could not at this stage be characterised as being weak.
On the issue of delay, Mr Perry has told me that inquiries made on behalf of the informant indicate that it is possible that if the case is to be heard in Wangaratta, a trial there might occur in May 2014. He submitted it is too early at this stage to project how and when the trial will proceed and, in particular, because issues such as severance and the like will be better clarified after the forthcoming committal proceeding.
Mr Perry also relied on the matters adverted to by Sergeant Bray to submit that there is an unacceptable risk that the applicant would abscond and that he would interfere with witnesses were I to release him on bail.
As I stated, in this application the applicant is required, under s 4(2) of the Bail Act, to establish exceptional circumstances which would justify the grant of bail to him.
It is well recognised that there are a variety of factors which might be taken into account in considering the question of whether an applicant for bail has established such exceptional circumstances. In effect, in order that the circumstances relied on by the applicant be characterised as “exceptional”, they must be circumstances that are out of the ordinary; that is, the circumstances relied on by the applicant must be such as to take the case out of the “normal” so as to justify the admission of the applicant to bail, notwithstanding the very serious nature of the charges which have been brought against him.
In an appropriate case, where an applicant is able to sufficiently demonstrate that the prosecution case against him is weak, such a circumstance may qualify as exceptional for the purposes of s 4(2) of the Act. However, at a preliminary stage such as this, the court should exercise a substantial degree of caution in assessing the relative strength of the prosecution case.
Ordinarily on a bail application the court does not have all the prosecution evidence before it. In this case a committal proceeding has not taken place yet. In those circumstances, it is not possible to form any adequate assessment of the reliability and credibility of the particular witnesses relied on by the prosecution other than to observe that if the case does proceed to trial, a direction would need to be given to the jury as to the potential unreliability of a substantial number of those witnesses pursuant to s 165 of the Evidence Act.
With those principles in mind, I turn to the question as to whether the applicant has established exceptional circumstances in the case. I emphasise, for the reasons I have just stated, that the assessment which I make of the question of whether the prosecution case is weak is purely a preliminary assessment made by me on the limited materials and made purely for the purposes of this application.
In his report and in his evidence Sergeant Bray, as I stated, has identified some of the witnesses who will give evidence as to the nine consignments of drugs which are alleged to have been received and trafficked by the applicant. In particular, it appears the prosecution will be able to call three witnesses to establish three of the consignments in question, two witnesses to support the existence of four of the consignments and one witness to establish the other two consignments.
Four of the nine witnesses who will be called in respect of that aspect of the prosecution case have pleaded guilty, have been sentenced as co‑offenders and have given the undertakings to cooperate with the prosecution, to which I referred. Eight of the nine witnesses were, in one way or another, involved in the offending as co‑offenders.
Thus, as I stated, that evidence will be the subject to a direction under s.165 of the Evidence Act. However, experience demonstrates that it is not uncommon for juries, while mindful of such a direction, nevertheless to be satisfied beyond reasonable doubt of an accused’s guilt based on the evidence.
While that aspect of the witnesses’ evidence is relevant to an appropriate assessment of the prosecution case, it does not of itself necessitate the conclusion that the prosecution case is inherently weak. Nor does the additional circumstance that most of the witnesses have a considerable number of previous convictions necessarily lead to such conclusion.
It is not appropriate nor indeed useful at this stage to refer in any great detail to the evidence to which reference has been made at this stage. However, for present purposes it is necessary to only refer to it in relatively brief compass.
Viewed as a whole and read together, the statements of the witnesses which were provided to me on the application do, I consider, convey a coherent and consistent account of a substantial drug trafficking syndicate headed, controlled and directed by the applicant. Those statements portray the existence of a consistent modus operandi utilised by that syndicate and the applicant which involved the use of short‑term accommodation interstate in New South Wales near the Victorian border, transportation of large consignments of methylamphetamine and ecstasy tablets into Victoria, the use of significant violence and intimidation to coerce those at lower rungs of the syndicate to traffic drugs and to remain loyal to the syndicate, and the use of cryovac materials and black tape to package the drugs.
That collective evidence of the witnesses is also supported by some independent objective evidence. In particular, firstly, there is the evidence of Sergeant Bray who states that the technique of cryovacing and wrapping in black tape of drugs is, to his experience, quite unique. As I stated, such materials were also located near accommodation facilities which were connected with the applicant and there are a number of witnesses, to whom I shall shortly refer, who will testify as to the use of that technique by the drug syndicate.
In addition, there is some surveillance and CCTV footage which apparently supports the evidence relating to five of the drug consignments and which also, as I stated, supports the applicant’s implication in the incident in which Corboy’s vehicle was pursued and rammed.
There is also the drug instruction list which was found at the applicant’s grandmother’s yard and on some of the pages of which can be found the applicant’s fingerprint and, finally, of course, there is the amount of drugs located in the vehicle in which the applicant was a passenger and in which he was arrested.
It is important to bear in mind that those different items of supporting evidence will not be viewed in isolation at trial, rather, they will be considered in light of their combined and united effect and, in particular, in light of the support which those pieces of evidence collective and individually add to the cogency and credibility of the witnesses called on behalf of the prosecution.
Thus, viewed overall, it is difficult, in my view, to characterise the prosecution case as being weak. Rather, to the contrary, at this stage it would seem to me that, subject to it being appropriately tested at committal, the prosecution case could not at all be so characterised.
As I stated, I do not consider it is appropriate or useful to canvass the evidence brought against the applicant in some detail. However, that evidence was the subject of some detailed and careful cross‑examination by Mr Duckett in the course of the proceeding before me and I shall refer to it in brief compass.
In particular, it is convenient to refer to just five aspects of the prosecution case which, I consider, illustrates the degree of coherence and consistency which can be found in it. I point out that the evidence which I shall refer is but a short selection of the material which has so far been put before me which, as I understand it, is but a selection of the evidence contained in the prosecution brief.
Firstly, the first consignments of drugs in which it is alleged the applicant was implicated took place between 18 September 2011 and 14 September 2012 when the co‑accused, Kruchan Chandler, made three trips to Gundagai and Sydney to collect methylamphetamine which it is said in total amounted to 2.1 kilograms of that substance.
The second consignment is said to have taken place between 4 October 2011 and 26 June 2012 when one kilogram of methylamphetamine and 1500 ecstasy tablets were located at the Lake Hume Resort.
The consignments to which I have just referred have support from the statements, which I have read, of Chandler, Corboy and Orcher.
It is important to note that Chandler, although a co‑accused, did leave the syndicate before he voluntarily spoke to the police and made a statement to them. His statement details two trips which he made to Gundagai and one to Sydney at the behest and instruction of the applicant. He states that on the second trip he used the Lake Hume Resort to drop off the drugs which he had taken possession of interstate.
Corboy, in his statement, supports the evidence of a trip made by Chandler to Sydney when Chandler was in possession of a large amount of money and his return from Sydney with one kilogram of methylamphetamine, one kilogram of amphetamine and 1500 ecstasy tablets. Mr Corboy states that he saw the money and then the drugs at the Lake Hume Resort.
Orcher, in his statement, said that he had seen large sums of money with the applicant in a number of motel rooms and on one occasion he saw one kilogram of methylamphetamine at premises at the Hume Weir and on another occasion he saw 1,000 ecstasy tablets.
While that evidence which I have just discussed does not perfectly fit with each other, it does, in my view, demonstrate the type of internal consistency and coherence which can be found in the prosecution case.
Another consignment referred to by Sergeant Bray is said to have taken place in July 2012 when one kilogram of methylamphetamine was located at the Ebden holiday house and was connected with the applicant.
The primary witness in relation to that is one Matthew Field. Mr Field is the one prosecution witness who was not criminally implicated in the offending against the applicant.
In his statement he said that at one stage he was at a Lake Hume holiday house when he saw a package that was the size of a house brick with white crystal substance in it and that the applicant told him that it was ice and that it was a monthly amount supplied by a motorcycle gang out of Sydney.
That evidence has some, although I accept limited, support from Sarah Blackman who states that she saw a large quantity of ice when the syndicate, including the applicant, was staying at a double storey holiday house at Lake Hume.
The third specific piece of evidence to which I will refer is the evidence of a number of witnesses including Sarah Blackman, Orcher and Corboy who each specifically refer to the use of the cryovacing technique by the syndicate. They refer to the use of a cryovacing machine by that syndicate and Orcher states that he saw the applicant with that machine in a motel.
Whilst obviously cryovacing is not itself an unusual or unique technique of packaging, as I state, the evidence which I have before me at this stage from Sergeant Bray is that it is quite unique in drug packaging, particularly in the area in which the syndicate was operating.
The fourth piece of evidence to which I shall refer relates to the car pursuit of the vehicle driven by Corboy.
As I stated, after his car collided with a tree, Corboy alighted and fled. He was pursued by Brad Whinray, who had been driving the pursuing vehicle, and by the applicant who was a passenger in that vehicle.
There is CCTV footage from the local commercial premises which depicts the first stages of that pursuit. Sergeant Bray’s evidence states that he has viewed that footage which depicts the initial stages of the pursuit over at least 15 metres with the participants in it running directly towards the camera. Sergeant Bray states that in that footage the applicant is depicted holding an object like a weapon and that Whinray is depicted holding a baseball bat.
The fifth piece of evidence concerns the fire bombing of an occupied home at Searle Court Wangaratta on 4 August 2012. The prosecution alleges that Bradley Whinray, Andrew Whinray and the applicant were implicated in that event. The prosecution relies mainly on the evidence of Andrew Whinray who states that the applicant and his brother Bradley provided to him two Molotov cocktails with which he carried out that bombing.
That evidence receives some, albeit limited, support from the statement of Jared Vincent who states that on occasions the applicant and others involved in the syndicate had asked him to advise them how they can make Molotov cocktails.
I have referred to those matters, albeit by way of examples, because it seems to me, taking them into account, I could not be persuaded at this stage that the prosecution case could be properly characterised as weak for the purposes of s 4(2) of the Bail Act.
Although the case does to a substantial extent depend on evidence of witnesses in respect of whom it will be necessary to give a strong warning under s 165, as I have observed and I think demonstrated, the evidence of those witnesses is broadly coherent and consistent in its effect. There is some independent evidence supporting that evidence, albeit that there is no DNA or telephone intercept material and there is only one limited aspect of fingerprint evidence which supports the prosecution case. Nevertheless, that independent evidence does support and add some strength and credibility to the testimony of the witnesses. I emphasise I make these observations purely on the papers, without having had the opportunity to observe the witnesses and an assessment of the prosecution case may well alter one way or other after the committal proceeding. For that reason, as I emphasise, my opportunity to assess the strength of the prosecution case is limited and the views which I have expressed must be understood in that light. However, at this very preliminary stage, I could not be sensibly persuaded that the prosecution case could be characterised as weak for the purposes of the application made by Mr Dalton.
The other aspect of exceptional circumstances on which the applicant relies is the delay between arrest and trial. As I stated, the committal proceeding is set down for February 2014 and there does not seem to be any reason why it should not proceed on that date. I do accept that if the trial were held in Melbourne, it would seem realistic to predict that it would not take place until, at the earliest, early 2015. As I stated, Mr Perry has indicated that he understands the trial in Wangaratta could commence in May 2014. However, I do consider that that may be over‑optimistic for a number of reasons, in particular because it may, given the wide‑ranging nature of the allegations against the applicant, leave the applicant’s case too little time to be properly prepared. There are also difficult issues which the trial judge will need to consider relating to severance and admissibility.
I think it would be appropriate, therefore, that for the purposes of this application I should act on the basis that the trial of the case will not take place until early 2015.
Thus, the projected delay from arrest to trial will be at least two and a half years. Obviously, that is a long period of time for a person who is charged and awaiting trial and on remand.
On the other hand, the case does involve a large number of charges and it is somewhat complex. Bearing in mind the number and nature of the charges, in the circumstances of this case the delay is not, I consider, of itself exceptional. I emphasise that that is not to say that delay is not a matter of concern; it is. It is most undesirable that where an accused person is on remand that he should be confronted with such a period of delay. However, standing alone, it is not, in my view, an exceptional circumstance; nor given my assessment at this very preliminary stage of the prosecution case does it combine with the nature of the case to constitute exceptional circumstances.
In light of those matters, I am not persuaded that the applicant has made out the necessary exceptional circumstances to justify the grant to him of bail under s 4(2).
If I were otherwise persuaded, I would, in any event, be satisfied, if I were to grant the applicant bail, that there would be an unacceptable risk that he will not answer that bail and that he would interfere with witnesses.
It must be remembered that the offending alleged in this case is particularly serious. The maximum sentence for each of the two charges of conspiracy to traffic a large commercial quantity of drugs is life imprisonment. Clearly, the applicant has a lot at stake in such a case.
In respect to the question whether the applicant in those circumstances is an unacceptable risk of failing to answer his bail, it is true that he does not have any history at all of failing to answer bail. However, the charges he now faces are significantly more serious than those which were the subject of his previous appearances. He has, it would seem, no fixed place of abode; he has spent much of him time in New South Wales moving from one accommodation to another; he has connections in New South Wales and his young daughter is in New South Wales.
Importantly, on a previous bail application before the Magistrates’ Court, he produced a false document purporting to be compiled by his ex‑wife concerning the accommodation facility available to him. Taking those matters together, I am satisfied that if I were to grant the applicant bail, there would be an unacceptable risk that he would not answer his bail. I do not consider that that risk would be sufficiently, or could be sufficiently, offset by a condition that the applicant reside with his parents, submit to a curfew and report regularly. While those conditions do assist, I do not think they can offset the joint and combined effect of the other matters to which I have referred.
In addition, I am also satisfied that if the applicant were released on bail, there would be an unacceptable risk that he would interfere with witnesses. There is evidence that he has already attempted to ascertain the location of Chandler while he has been in custody. In addition, on one occasion both Chandler and the applicant were transported from prison to Wangaratta Court together and it is alleged that in the course of the four‑hour journey, the applicant sought to intimidate Chandler. The applicant has a number of previous convictions for violence and for drug offences. The statements which have been provided to me implicate the applicant in a pattern of violent and intimidatory behaviour. The ten documented incidents of misconduct by him while in custody indicate that he has been given to indulge in, at times, irrational, volatile and intimidatory conduct. Based on those considerations, I am satisfied that if he were released from custody, there would be an unacceptable risk that the applicant would interfere with witnesses.
Accordingly, I am not persuaded that the applicant has established exceptional circumstances which would justify the grant to him of bail. Secondly, I am satisfied that if bail were granted to him, there would be an unacceptable risk that he would not answer bail and that he would interfere with witnesses.
For those reasons, the application for bail is refused.
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