Re Hoang
[2022] VSC 135
•22 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0013
| IN THE MATTER of an Application for Bail by HONG HOANG |
| and |
| IN THE MATTER of the Bail Act 1977 (Vic) |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 February 2022 |
DATE OF JUDGMENT: | 22 February 2022 |
CASE MAY BE CITED AS: | Re Hoang |
MEDIUM NEUTRAL CITATION: | [2022] VSC 135 |
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CRIMINAL LAW — Application for bail — Charges of cultivating and trafficking in a large commercial quantity of cannabis — Significant delay caused by pandemic — Strength of prosecution case — Exceptional circumstances established — Risk of flight — Risk not unacceptable with conditions — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Menegas | Auslex |
| For the Respondent | Mr P Bourke SC | Office of Public Prosecutions |
HIS HONOUR:
Introduction
By application filed 25 January 2022, Hong Hoang (‘the applicant’) seeks bail in this Court on the following charges brought by Senior Constable Daniel Ippolito, relating to alleged offending between 31 May and 15 August 2021:
(a)Trafficking a commercial quantity of cannabis;
(b)Cultivating a commercial quantity of cannabis;
(c)Trafficking a large commercial quantity of cannabis;
(d)Cultivating a large commercial quantity of cannabis; and
(e)Theft of electricity.
The applicant has been in custody since her arrest on 15 August 2021. She has been refused bail in the Melbourne Magistrates’ Court on three occasions, 16 August, 21 October and 29 November 2021, each time on the basis that she posed an unacceptable risk of failing to surrender into custody in accordance with conditions of bail.
There is one co-accused, Tuyet Duong, also a female who faces identical charges to the applicant and has been on remand since 15 August 2021.
On 10 December 2021, the applicant entered a plea of not guilty to the above charges and was committed to stand trial in the County Court by way of straight hand-up brief. The matter is next listed for a directions hearing in the County Court on 10 March 2022.
The application
The application is supported by the affidavit of Ian Mark Lacy, solicitor, dated 6 December 2021, attaching a series of exhibits, some of which will be referred to below. The applicant also relies on the affidavit of Tajir Hussain, a truck driver, dated 14 February 2022. The applicant filed a seven page written submission and supplemented these with oral submissions on the hearing of the application, as well as calling the evidence from Mr Hussain.
In response to the application, the respondent filed an affidavit sworn by Sivadharshini Shivakumar, solicitor from the Office of Public Prosecutions, dated 15 February 2022, also attaching a series of exhibits, including a report prepared and authored by Detective Senior Constable Michael Fullerton dated 17 January 2022, and a copy of the hand-up brief relating to the applicant. The respondent relied on the filed written material as well as oral submissions on the application.
The parties agreed that the exceptional circumstances test applies to this application, and accordingly it proceeded on that basis, without objection.
The alleged offending
At 6:00am on 15 August 2021 police became aware of a burglary taking place at a warehouse at [redacted] (‘the first warehouse’). They attended the address and arrested three males at the scene.
Inside the first warehouse, police observed a large quantity of cannabis plants in three makeshift rooms fitted out with hydroponic growing systems. Police searched the premises and seized a total of 312.93 kilograms of cannabis from 227 cannabis plants. Police also found an electrical bypass below the meter box of the property, which is alleged to have been used to steal an estimated 95,925 kilowatts of electricity.
At 7:00am police observed a male and two females exiting an adjacent warehouse at [redacted] (‘the second warehouse’) and directed them to stop. The three persons attempted to run away, but police caught up to the two females, who are now the applicant and co-accused. The male escaped.
Police searched the applicant and found two telephones in the applicant’s possession, as well as keys to both warehouses. She was wearing pyjamas at the time. The co-accused, Duong, was also searched and a phone was found in her possession.
Police suspected the second warehouse was also being used for unlawful activity and searched it. They found that the warehouse had been divided into nine makeshift rooms, six containing plants and hydroponic growing systems, two containing equipment for drying, and one which appeared to have been set up for sleeping and food preparation. A blue Toyota Camry with a distinctive dent in the right rear corner was also located inside the second warehouse. A high-visibility shirt was located in the vehicle. This car is registered to the applicant. Police also located an electrical bypass attached to the second warehouse, which was allegedly used to steal 55,523 kilowatts of electricity. The total weight of cannabis seized from the second warehouse was 299.97 kilograms, comprising 243 cannabis plants and 16.79 kilograms of dried cannabis.
The applicant and co-accused were arrested and taken to Sunshine Police Station. During a record of interview the applicant told police she:
(a)received a call from ‘someone’ to clean rubbish for $100 per hour, but did not know how the person got her phone number;
(b)drove to the second warehouse at 7am that day and parked her car inside. She had never been there before and did not know the address;
(c)went inside to use the toilet and saw an unknown male and female who were also there to clean, but did not see or touch any plants;
(d)had never been inside the first warehouse;
(e)always wears pyjamas to clean as they are comfortable; and
(f)ran from police because the unknown male and female did.
The co-accused told police she was driven to the warehouse by an unknown female on the evening of 14 August 2021, and was due to be paid $200 to remain there and cut plants throughout the night. She stated further that it was her first time there, that she did not know the address or location, and that a second unknown female was present. She knew she was cutting cannabis plants and ran from police because she feared getting in trouble.
Investigation
Analysis of phones
The applicant provided access to her phones which contained:
(a)photographs, identification details and documents linked to her;
(b)numerous calls to, and text messages with, a phone number saved as ‘C Tuyet’, which is linked to the SIM card located in the co-accused’s phone. This included a text message to that number asking, ‘can you please get there at 6 dear?’; and
(c)photographs of invoices for garden supplies and instructions for cultivating plants.
Analysis of the co-accused’s phone revealed:
(a)numerous calls to and messages with a contact named ‘Homg’, including a message asking ‘can you please get there at 6 dear?’;
(b)a photograph of a handwritten note detailing the applicant’s name and date of birth; and,
(c)various photographs of lists of gardening supplies and a message attaching a list asking, ‘can you help me buy these things on your way uncle?’.
CCTV
Police seized a hard drive from a neighbouring warehouse containing CCTV footage with an unobstructed view of the second warehouse. In this footage two females believed to be the applicant and co-accused, and a male wearing a high-visibility shirt, can be seen frequenting the location in a blue Toyota Camry with a distinctive dent on the rear bumper and a black sedan.
Forensic analysis
It is alleged that GPS data on the applicant’s phone places it in close proximity to the warehouses on numerous occasions between 31 May and 15 August 2021, and aligns with the corresponding CCTV footage from those times, which purports to show the applicant arriving at and entering the second warehouse.
Further forensic analysis of the phones, CCTV footage, and miscellaneous items found at the first warehouse is yet to be completed.
The applicable legislation
The applicant is charged with a number of Schedule 1 offences within the meaning of the Bail Act 1977 (Vic) (‘the Act’), including trafficking in a large commercial quantity of a drug of dependence and cultivating a large commercial quantity of a narcotic plant.[1] Bail must therefore be refused unless she can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2] In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including those in s 3AAA(1) of the Act.[3]
[1]Bail Act 1977 (Vic) (‘the Act’) sch 1, items 6(a) and (c).
[2]Ibid ss 4AA(1), 4A(1A) and 4A(2).
[3]Ibid s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[4] In considering this, the Court must take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[5]
[4]Ibid ss 4D(1)(a) and 4E.
[5]Ibid s 4E(3).
Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[6]
[6]Ibid s 1B(2).
Evidence on the application
The informant, Senior Constable Daniel Ippolito, gave evidence on the application, confirming that he authored the bail report referred to above. He confirmed that there is no direct evidence placing the applicant in either warehouse; that the second warehouse has a façade hiding the cannabis operation; and that there is a section of the warehouse designed to look like a normal warehouse. The cannabis plants were not immediately visible on entering the warehouse, and the owner of the first warehouse has declined to get involved in the investigation. Further, he has looked through all available CCTV, some of which is incomplete. The CCTV does not enable any facial identification, vehicle registration numbers, or show the applicant’s face. There is no CCTV from within either of the properties.
The informant confirmed that the applicant was found with keys in her possession which opened both warehouses. There is no fingerprint evidence obtained from the electrical bypasses, there is no evidence to prove the applicant installed them, or had knowledge of them, and no evidence of any DNA matches with the applicant from anything found in the premises. There are no telephone intercepts of the applicant’s phone, but there is evidence of records of communications between the applicant and the co-accused, particularly pointing to one SMS exchange on the day of the applicant’s arrest. The informant was referred to photographs found on the applicant’s phone regarding large quantities of gardening supplies, but confirmed that there was no name shown on the depicted invoice, and no evidence who prepared it. Police did not locate any cash on the premises, or on the applicant’s person. Police did not locate any SMS messages relating to the trafficking of drugs, no tick books or scales, and no ‘deal’ bags. However the informant did refer to pre-prepared bags of dry cannabis that were located on the premises.
The informant described the layout and nature of the partitioning setups in the warehouses, and further referred to the smell of cannabis in the street outside, with an even stronger smell inside the buildings. He referred to photographs of the inside of the premises, and later provided the same to the Court for examination.
The informant maintained that the charge of trafficking was based on the quantity of cannabis found, and the way in which the warehouse was set up in a manner suggesting that the cannabis was being prepared for sale. He conceded there is no direct evidence the applicant had entered any of the rooms in the warehouse which contained cannabis.
As to the proposed accommodation of the applicant at 17 Percy Street, St Albans, the informant confirmed that police have no concerns with that address being suitable should the applicant receive a grant of bail. He said that he was not aware if the applicant has had any legitimate employment, and asserted his belief that her only source of income was derived from cultivating and trafficking cannabis. As to the risk of flight, the informant bases the issue of unacceptable risk on the fact that the applicant lives in Australia on a student visa, and is facing a term of imprisonment if found guilty of the alleged offences. Furthermore, she has no connections to Australia other than her partner and that their relationship appears to be relatively short-term. The informant pointed to Mr Hussain’s limited knowledge of her employment circumstances around the time she was arrested. Furthermore, according to the informant there is a strong possibility that the applicant will be deported in the event she is found guilty of the alleged offending. However, the informant conceded he had no direct evidence that the applicant has any intended plan to depart Australia, and further he agreed that there are processes that can be put in place through Australian Border Force security that will act to prevent her from easily leaving Australia.
Tajir Hussain, the applicant’s partner gave evidence confirming his affidavit, referred to above. He added that he regarded the applicant as his girlfriend, and that they have been together since February 2019. He stated that he lives at his present address with two friends. He came to Australia in 2012 as a refugee, and he is on a protection visa, awaiting permanent residency. He is working with Lawson Sideloader, and confirmed the letter from his employer, exhibited to his affidavit. The employment is regular. He agreed he was aware of the charges that the applicant is facing, and that he was supportive of her, and that he is willing to have her reside with him if the Court was to order it. He is also prepared to lodge a surety of $50,000 cash which is presently deposited in his bank account. He is aware that he risks forfeiture of the surety amount should the applicant fail to comply with her bail conditions. Mr Hussain confirmed that he had little knowledge of the applicant’s employment circumstances around the time when she was arrested, but understood she had recently secured employment as a cleaner.
The applicant’s personal circumstances
The applicant is a 28-year-old Vietnamese woman who arrived in Australia in December 2018 on a temporary activity visa. She remains in Australia on a temporary working visa which expires in October 2023. Her family have remained in Vietnam. As above, she is currently in a personal relationship with Tajir Hussain. She has worked on a vegetable farm in Werribee for approximately two years, and an Asian grocery in Melbourne for a short time prior to Melbourne lockdowns. More recently, she was working on a casual basis as a cleaner.
Criminal history
The applicant does not have a criminal history and thus no background of bail-related offending.
The applicant’s submissions
The applicant relies on the following matters, in combination, in support of her application for bail.
Strength of the prosecution case
Accepting that for the purpose of this application the prosecution case must be taken at its highest, the applicant concedes that the prosecution case is a ‘reasonably strong’, circumstantial case. Nevertheless, it is submitted that there are triable issues including the role, if any, of the applicant in the alleged offending, the lack of direct evidence supporting the allegations against her, questioned provenance of the CCTV footage, non-identification of the applicant in the CCTV footage, the evidence being less strong in respect of one warehouse over the other, the charges of trafficking and theft of electricity as being weaker than that of cultivation, and issues concerning some of the circumstantial evidence and whether it was lawfully obtained. It is pointed out that in her record of interview the applicant provided an alternative hypothesis consistent with innocence, being that she was employed to clean the property and that she was arrested by police on the first occasion she ever went to the property. In all, it is submitted that there are significant issues to be agitated at trial, which are not minor, and are genuine, leading to this matter proceeding to a trial at a future date. It is argued that the prosecution’s circumstantial case is flawed, and it is far from clear that the applicant will be found guilty.
It is submitted that the applicant, as well as her co-accused, participated in records of interview, denied all charges, maintained their innocence, and have entered not guilty pleas.
Delay and expected sentence outcome
The applicant concedes that the charges against her are serious.
The applicant submits there will be an inordinate delay in the matter proceeding to trial. Having been remanded since 15 August 2021, some 185 days, it is submitted — with reference to the County Court’s Revised Melbourne criminal trial listings document dated July 2021 — that a trial would not commence until July 2023 at the earliest, some two years after the applicant’s arrest. It is submitted that the County Court document is now out of date, and that the Court has experienced a further lengthy delay in the allocation of trial dates as a consequence of lockdowns that occurred in the latter part of 2021. As a result, during argument, it was submitted that the applicant’s trial may not be listed for hearing for two to three years from her arrest, and that the case is not one that would be expected to attract priority. It is pointed out that the applicant’s trial has not yet been allocated a trial date, although a trial date may be set at the next directions hearing on 10 March 2022.
Overall, the applicant submits that the delay alone is an exceptional circumstance that justifies the grant of bail. In support of her argument the applicant noted that in refusing bail on 29 November 2021, the Magistrate found that exceptional circumstances existed that justified the grant of bail, with that finding being based on the anticipated delay in this matter.
Although it is conceded that the applicant will face a lengthy prison sentence if convicted, the applicant submits this aspect should be considered in the context of the charges being contested, the presumption of innocence, and the applicant’s role not involving leadership, control or responsibility. Rather, it is submitted the evidence suggests that the applicant acted under the direction of her co-accused. Further, there is no prior criminal history, and there is likely delay in reaching trial. The applicant submitted that the sentence the applicant might be expected to have imposed is far less than that asserted by the respondent. The applicant’s counsel referred to the decision of her Honour Judge Wilmoth in the case of Virag,[7] which resulted in a sentence of imprisonment of 18 months, in a case that was suggested to have a factually similar matrix as the applicant’s.
[7]DPP v Virag [2018] VCC 1314.
COVID-19 and onerous conditions of custody
It is submitted that the current COVID-19 related restrictions have made the applicant’s time spent on remand significantly more onerous than it might otherwise have been, particularly due to her limited ability to speak English. Restrictions on in-person visits and snap lockdowns, and the applicant’s need for an interpreter, have resulted in inefficiencies and limitations on her ability to communicate with and properly instruct her legal representatives.
In an affidavit affirmed 21 October 2021, the applicant’s solicitor, Ian Lacy, outlines a series of difficulties he has experienced in attempting to confer with and obtain instructions from the applicant. It is submitted these circumstances add to the burden experienced by the applicant in the custodial setting.
Stable accommodation
If granted bail, it is proposed that the applicant reside with Mr Hussain at 17 Percy Street, St Albans. There are two other residents who live at the house and they, together with Mr Hussain, gave evidence at the applicant’s previous bail application to the effect that they were all employed, had no criminal histories, and no issues with the applicant residing with them in the share house pursuant to a residential condition if bail was to be granted. It is submitted that police have made enquiries in relation to the proposed address, have spoken to the residents there, and raise no concerns regarding its suitability. It is submitted that the address proposed is a suitable one where the applicant will have a roof over her head, police will know where to find her, and a curfew can be imposed by way of conditions to a grant of bail.
Surety
The applicant’s partner proposes to provide a surety from his savings of $50,000, which is submitted to be a substantial amount in the context of his available means. Further, he earns a reasonable income, and is not concerned about his ability to maintain his lifestyle if he provides that amount of money. It is submitted this surety amount will deter the applicant from not attending her charges. It is submitted that Mr Hussain clearly understands the serious position the applicant finds herself in, and it is of significance that he is willing to provide the amount offered.
Unacceptable risk
In relation to the respondent’s assertion that the applicant represents a flight risk, the applicant submits this suggestion is entirely speculative as it is based only on her visa status and Vietnamese background, and is unsupported by evidence. The applicant resides in Australia lawfully and has suitable accommodation available to her. Furthermore, the applicant notes the respondent alleges a risk that she may obstruct the course of justice, but emphasises that this was not a concern raised by the informant in his bail report. The applicant submits that there is no basis in evidence for this recent allegation.
The applicant proposes bail conditions designed to address these argued risks, including to reside at the St Albans address, comply with a curfew, surrender any passport, not leave the jurisdiction or attend international departure points, not contact any witnesses, regularly report to police, and to provide a surety.
The respondent’s submissions
The respondent opposes bail on the basis that the applicant has not demonstrated exceptional circumstances that justify a grant of bail. Furthermore, it is submitted that she poses an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody in answer to conditions of bail.
In response to the applicant’s submissions, the respondent refers to the report prepared by the informant for the purposes of this application.
Strength of the prosecution case
The respondent submits that the prosecution case is strong, relying particularly on the accumulated amount of cannabis exceeding 600 kg which far exceeds a large commercial quantity as defined by the relevant Act, as well as the following factors:
(a)the applicant was arrested fleeing the scene in her pyjamas, the presence of her car in one warehouse, and her possession of keys to both warehouses;
(b)the presence of the seized substances, as demonstrated by the exhibits and photographs;
(c)the alleged presence of the applicant’s vehicle on many previous occasions in the near vicinity;
(d)the various stages of growth of the cannabis located;
(e)the evidence of electricity theft;
(f)the GPS data, messages, phone calls, and photographs on the applicant’s phones, including invoices, car registration documents and instructions for plant cultivation;
(g)the CCTV product;
(h)the witness and police statements; and
(i)the records of interview, in which it is alleged the applicant told a number of admissions and relevant lies.
The respondent argues that the applicant faces a strong circumstantial case in respect of all charges.
Delay
The respondent submits that the best evidence about the listing date of the applicant’s trial emerges from the County Court Revised trial listings document referred to above. Whilst more might be known following the next directions hearing on 10 March 2022, it is anticipated the applicant’s trial will be dealt with by the middle of 2023, being approximately two years from the time of her arrest. In support of the argument that the delay of that magnitude does not amount to an exceptional circumstance, the respondent referred to the bail decisions of James[8] and Re Nhat.[9] It was submitted that both decisions demonstrate that in some circumstances a remand period of up to three years before trial does not necessarily of itself amount to an exceptional circumstance.
[8]Re James [2020] VSC 602.
[9]Re Nhat [2021] VSC 446.
Further, it was submitted that the context involves a strong prosecution case, a very large cannabis crop where the applicant is not simply a ‘crop-sitter’ but is more highly placed in the sophisticated cultivation project, and that these are factors that need to be considered in assessing whether the delay in this case is one that is exceptional. Further, it was submitted that if the applicant is convicted of the alleged offending, the sentence to be imposed would far outstrip a remand period expected to be served should the applicant not receive bail. In part, this was based on the proposition that the applicant should be assessed as an ‘ongoing cultivator’.
Stable accommodation and surety
In response to the applicant’s submission that police have made enquiries and hold no concerns regarding the applicant’s proposed residential arrangements involving her boyfriend, the respondent points out that when police attended [redacted] on 15 August 2021, being Mr Hussain’s residence at that time, they were told by him that the applicant was his girlfriend and worked nights at a factory, but that he did not know what kind of work she engaged in. Furthermore that the applicant only stayed with him intermittently, mainly on weekends, and had asked to list his address as her residence on her driver’s licence, registration and other documents.
The respondent notes that Mr Hussain indicated in previous bail applications that he was prepared to offer his ‘life savings’ of $20,000 as surety, however in the present application he has indicated he can provide $50,000. In addressing the ability of the proposed surety to moderate risk, the respondent relies on the following remarks made by the presiding magistrate when refusing bail:
(a)On 21 October 2021, she found that Mr Hussain’s evidence was unimpressive, noting that he could not answer questions about the applicant’s study arrangements, or how long he and the applicant had been living together; and
(b)On 29 November 2021, she said that the nature of the relationship appeared short-term and lacked features of permanency, noting they had not been residing together full-time, had no children and no joint property. Her Honour also found that it would be easy for the relationship to end and for the applicant to ‘go elsewhere’.
In oral argument the respondent submitted that in the case of Re Nhat, Justice Jane Dixon regarded a surety amount of $75,000 as ‘not very significant’ when viewed in the context of the large scale of alleged offending.[10] It was argued that there are similarities to the present case. Further, it was submitted that in assessing the professed relationship between the applicant and Mr Hussain, this Court should exercise caution, and give consideration to inconsistencies in what he told the police about the strength or level of the relationship between the two people.
[10]Re Nhat [2021] VSC 446, [60].
Unacceptable risk
Interfering with a witness or otherwise obstructing the course of justice
The respondent has concerns about the unknown male who evaded police during the arrest as he remains at large. This is, presumably, relied on in the context of risk of the applicant contacting this male and frustrating police attempts to identify and locate him.
Failing to surrender into custody
The respondent submits the applicant has limited ties to the jurisdiction and there is a risk she may flee as she:
(a)Has no family in Australia and there are remaining doubts regarding the seriousness of her relationship with Mr Hussain;
(b)Has no legitimate employment;
(c)Is on a student visa, is not subject to COVID-19 related travel restrictions, and can willingly leave the State or country; and
(d)She will likely be deported after serving a sentence that may be imposed.
Thus the respondent submits that the applicant is an unacceptable risk of answering her bail given the position she finds herself in, with continuous and insufficient ties to the jurisdiction.
Analysis and conclusions
It is common ground that the exceptional circumstances test applies to this application. The applicant has argued that she has satisfied the test, and further, that the respondent has not satisfied the Court that she is an unacceptable risk such that a grant of bail should be denied. The burden of establishing exceptional circumstances remains on the applicant. The burden of establishing the applicant is an unacceptable risk lies on the respondent.
Exceptional circumstances
In making an assessment of whether the applicant has satisfied the requirements of the exceptional circumstances test I have had regard to the relevant provisions of the Act as have been noted above. It is clear that the test can be satisfied by a combination of factors, observing that whilst each of the factors might individually be regarded as ordinary and not individually exceptional, when viewed together, may satisfy the test. Further, I have considered and applied the observations as expressed in Roberts v The Queen,[11] referenced by Lasry J in Re Strachan.[12] His Honour observed:
The Act does not define what is meant by ‘exceptional circumstances’. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:
a)The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
b)Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
c)Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[13]
[11][2021] VSCA 28, [9].
[12][2021] VSC 538, [28].
[13]Ibid, [27].
In determining this application I will apply the test as set out by Lasry J, as above.
As to the strength of the prosecution case, whilst conceding that in general terms the prosecution mounts a reasonably strong circumstantial case, the applicant argued there are triable issues that arise, some of which were pointed out in submissions. In particular it is argued that the trafficking charges and charge of theft are of lesser strength when compared to the evidence relating to the applicant’s alleged cultivation activities. On the other hand, the respondent argues that when all the facts and circumstances are considered together, the whole prosecution case should be regarded as being a strong circumstantial case.
It is not the role of this Court to try the issues between the prosecution and defence, but rather at this stage to make a broad assessment of the strength or weakness of the prosecution case. A conclusion that a case against the applicant is strong or weak has obvious importance in determining the present application, and thus is part of the process of weighting factors. In my opinion, and in overall terms, the prosecution puts forward a strong circumstantial case against the applicant. There are some aspects of the case which, when considered together, appear to put forward a relatively compelling case against the applicant, particularly in relation to the charge of cultivation. Nevertheless, whether the prosecution can satisfy a jury of all the charges as presently presented will remain to be seen.
Unsurprisingly, the issue of delay is a major factor put forward on behalf of the applicant. It is submitted that having been remanded in custody since mid-August 2021, and given the current circumstances in relation to trial delays in the County Court, that it is reasonably foreseeable the applicant’s trial will not be held in 2022, more likely in 2023, but possibly extending into 2024. The respondent concedes that there will be a lengthy delay before the trial in this matter is finally resolved, particularly if the applicant maintains her resolve to contest all the charges she presently faces. The respondent argues that more may be known when this matter comes before the County Court in a directions hearing on 10 March 2022, at which time a trial listing may be obtained. The respondent submits that it is likely the matter will be heard by the middle of 2023, being approximately two years from the time of the applicant’s arrest. In that regard, the respondent maintains that the applicant is likely to receive a sentence of imprisonment far outstripping the period she will serve on remand.
In my opinion, should the applicant plead to, or be found guilty of the cultivation of a large commercial quantity of cannabis she will expect to receive a very significant penalty, most likely exceeding the period she would otherwise spend on remand. However, much will depend on what conclusions will be made about whether she is guilty of large commercial trafficking, and theft of electricity. Much will also depend on what conclusions will be formed about her role. Depending on the resolution of these issues the applicant may be exposed to a much more significant sentencing outcome. In the end, it is in my opinion somewhat unclear as to what the outcome of the case against the applicant will be. There are a number of possibilities. At this stage, it seems to me that what can be said with a reasonable degree of confidence is that the applicant faces a relatively strong prosecution case, that there is likely to be a delay of at least two years from the date of her arrest before the matter comes to trial, and that ultimately if found guilty of even the least serious of the alleged drug-related charges, she is likely to receive a sentence of imprisonment, which will be significant. Should the outcome be that she is found guilty of a cultivating and trafficking operation involving two warehouses, with a combined approximate total of 500 kg of cultivated cannabis, and that she is to be regarded as relatively highly placed in the operation, the penalty will be very significant. But at this stage, the eventual outcome is not clear.
The applicant also relies on other matters in combination, including the onerous conditions of her remand custody, that she has stable accommodation available to her, that a surety is prepared to place $50,000 of his savings at risk in order to ensure the applicant’s appearance at her trial, and not to breach her bail conditions.
All of these matters weigh in combination in the assessment of whether the applicant has satisfied the exceptional circumstances test. As well, as is clearly understood, the Court is obliged also to take into account the surrounding circumstances in the assessment of these factors.
When all is weighed together, I am satisfied that the applicant has demonstrated exceptional circumstances justifying a grant of bail. I have weighed all of the relevant factors, but in particular taken into account the strength of the prosecution case against her, the degree of uncertainty as to what the eventual outcome may be that on balance she is likely to be found guilty of, as well as the significant delay anticipated in the resolution of this case. Furthermore, I have taken into account the existence of the offer of stable accommodation, and surety, as presented by Mr Hussain.
I have also carefully considered the submission advanced by counsel for the applicant that there are ‘triable issues’ with respect to some of the charges before the Court. This is a phrase that appears commonly utilised in bail applications, and should bear careful consideration. I make the observation that due to the role of the Court in bail applications being not to try the issues, and in circumstances where a defence may not be evident to the Court, that such a submission must be carefully made and after due reflection. The Court relies on counsel to put submissions that are founded on evidence, and on instructions, and are not to be lightly made.
Unacceptable risk
Having concluded that the applicant has satisfied the exceptional circumstances test, that of course is not the end of the matter, as it is necessary to consider whether the respondent has satisfied the Court that the applicant represents an unacceptable risk, as provided for by the Act.
In the applicant’s case, the respondent has relied mainly on the ground there is a risk that the applicant will fail to surrender herself into custody, and as such, she represents an unacceptable risk such that she should not be granted bail.
Having considered the evidence, I am not satisfied that the respondent has established that the applicant represents an unacceptable risk. Although at one point it was suggested that the applicant may take action to obstruct the course of justice, this assertion was faintly pressed, and I do not propose to act on it. As for the issue of flight, it may be observed that any grant of bail involves the element of risk, and this must be balanced when weighing all of the relevant factors. In this case, the risk of flight is put forward as the only realistic factor applying to the applicant. Whilst I take into account all of the issues canvassed, I am not satisfied that there is sufficient evidence available that establishes that the risk the applicant will fail to surrender herself into custody is an unreasonable one. I accept that she has limited ties to the jurisdiction including a lack of direct family connections, or ownership of property, and that she remains in Australia on a temporary form of visa. However, the applicant has no previous convictions or adverse bail history, and the un-contradicted evidence before me is that she is currently in a relationship with Mr Hussain, is prepared to live with him for the duration of any bail, and that he is prepared to put up $50,000 to ensure the applicant appears at her trial. In my opinion bail conditions can be placed upon her that will act to ameliorate that risk to a point where it becomes acceptable. As required, in forming this conclusion I have had regard to the surrounding circumstances.
Accordingly I will grant bail to the applicant.
The order of the Court will be that the applicant be admitted to bail on her own undertaking there being a surety in the amount of $50,000 provided by Mr Tajir Hussain and on the following special conditions:
(a)She attend the County Court in Melbourne on 10 March 2022 and then surrender herself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender herself into custody.
(b)She reside at [redacted], and not change that address without the leave of the Court.
(c)She remain at those premises between the hours of 9:00pm to 6:00am each day for the duration of bail.
(d)She present herself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e)She report Monday, Wednesday and Friday to the Officer in Charge of the Keilor Downs Police Station at 1 Copernicus Way, Keilor Downs, Victoria 3038, or his or her nominee, between the hours of 9:00am to 8:00pm.
(f)She not contact, directly or indirectly, the co-accused, being Tuyet Duong, for the duration of the bail period.
(g)She not contact, directly or indirectly, any witness for the prosecution, except the informant.
(h)She not leave the State of Victoria.
(i)She surrender any passport she may have to the informant within 24 hours and not apply for any other.
(j)She not attend any points of international departure.
(k)She reappear before the Court for judicial monitoring to review her compliance with this order at 9:30am on 22 March 2022, and any further dates this Court appoints during the course of this order.
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