Re Molla
[2023] VSC 729
•6 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0227
IN THE MATTER of s 18A the Bail Act 1977
- and -
IN THE MATTER of an appeal by the Commonwealth Director of Public Prosecutions for Victoria against the grant of an application to vary the conditions of bail for AVDI MOLLA
BETWEEN:
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| - and - | |
| AVDI MOLLA | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 December 2023 |
DATE OF JUDGMENT: | 6 December 2023 |
DATE OF REASONS: | 6 December 2023 |
CASE MAY BE CITED AS: | Re Molla |
MEDIUM NEUTRAL CITATION: | [2023] VSC 729 |
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CRIMINAL LAW — Bail — Director’s appeal against grant of application to vary conditions of bail — Respondent charged with serious drug offences — Respondent granted bail by Magistrates’ Court — Conditions of bail varied by County Court to permit temporary travel overseas — Whether the Judge should have dismissed the application to vary the original conditions of bail — Whether the Judge erred in failing to find the variation carried an unacceptable risk of the respondent failing to surrender into custody — Appeal allowed — Bail Act 1977 (Vic), s 1B, 5AAA, 18A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Andrew Sprague | Commonwealth Director of Public Prosecutions |
| For the Respondent | Amara Hughes | Vassis & Co |
HIS HONOUR:
Introduction
Avdi Molla [‘the respondent’] is charged on indictment with the following Commonwealth offences:
(a) dealing with money or property worth $100,000 or more, which is proceeds of indictable crime, contrary to section 400.4(1) of Schedule 1 of the Criminal CodeAct 1995 (Cth) [‘the Code’];
(b) cultivating a controlled plant for a commercial purpose, contrary to section 303.6(1) of the Code; and
(c) cultivating a marketable quantity of a controlled plant, contrary to section 303.5(1) of the Code.
In short, on 2 August 2022, search warrants were executed at two residential properties in suburban Melbourne, in Burwood East and Keysborough, where sophisticated cannabis cultivation setups were discovered. It is alleged that the respondent exercised control and/or direction over the cultivation of cannabis at these properties by multiple co‑accused persons.
It is further alleged that the respondent was involved in cannabis cultivation activities at numerous other properties in suburban Melbourne, including further properties in Keysborough, Altona and other locations, from 2020 onwards. During a search on 7 June 2023 at the respondent’s home, $271,000 in cash was located by police, which is alleged to be proceeds of crime.
Procedural history
The respondent was granted bail unopposed in the Magistrates’ Court of Victoria on 18 August 2022. The grant of bail was subject to a surety in the amount of $20,000 and certain conditions, namely that he:
(a) report to Mordialloc Police Station three times a week between 6:00am and 9:00pm;
(b) reside at an address in Aspendale Gardens;
(c) notify the informant within 24 hours of any proposed change of address;
(d) surrender any valid passports or other travel documents within 24 hours of release to the informant, and not apply for any other;
(e) not attend any points of international departure;
(f) not leave the state of Victoria or Australia;
(g) not contact witnesses for the prosecution other than the informant;
(h) not associate with any co‑accused;
(i) not leave his place of residence between the hours of 9:00pm and 5:00am except in the company of his wife and for medical purposes only; and
(j) present at the front door of his residence during curfew hours upon request of any member of Victoria Police.
These conditions were varied on 23 May 2023, upon the respondent being committed for trial in the County Court.
On 7 November 2023, the respondent’s father passed away in Albania. The respondent thereafter applied for a variation of his conditions of bail to allow him to travel to Albania to attend at his father’s funeral and support his ill mother. It is understood that the date of the funeral has not been set, however the respondent is currently booked to leave Australia to travel to Albania on 7 December 2023.
On 27 November 2023, his Honour Judge Tiwana of the County Court granted an application by the respondent to vary his conditions of bail. As a result, existing reporting and travel conditions were temporarily suspended, with an additional surety ordered, so that the respondent could travel to Albania between 7 December 2023 and 9 January 2024. It was also ordered that the respondent depart Melbourne on 7 December 2023 and return on 9 January 2024 in accordance with a travel itinerary provided to the court. There was a further condition ordered that the respondent answer a video call from the Australian Federal Police [‘AFP’] informant once each week for the duration of the relevant period.
On 30 November 2023, the Commonwealth Director of Public Prosecutions [‘the CDPP’] lodged an appeal against the order of the County Court pursuant to section 18A of the Bail Act 1977 (Vic) [‘the Act’]. The appeal is based on the following three grounds:
Ground 1: THAT it was not reasonable, having regard to the material before the County Court and the surrounding circumstances, for the Court to grant bail on the conditions as varied, including special conditions permitting the respondent to travel to Albania and suspension of regular conditions. An order dismissing the application to vary bail should have been made.
Ground 2: THAT the learned Judge erred in failing to find, pursuant to sections 4D and 4E of the Bail Act 1977, that if the application to vary bail was granted there was an unacceptable risk that the Respondent would fail to surrender into custody in accordance with the conditions of bail.
Ground 3: THAT taking into account the surrounding circumstances, the conditions as varied by the County Court are insufficient, and the risk that the Respondent would fail to surrender into custody if released on those conditions of bail is unacceptable for the purposes of sections 4D and 4E of the Bail Act 1977.
The CDPP’s appeal is supported by an affidavit of Federal Agent Leon Linstedt dated 30 November 2023. The appellant also filed written submissions dated 4 December 2023, which were supplemented by oral submissions during the hearing.
The respondent has filed an affidavit in response deposed by solicitor George Vassis dated 4 December 2023. The respondent filed submissions dated 4 December 2023, which were also supplemented by oral submissions.
The decision of the County Court
Judge Tiwana provided written reasons dated 27 November 2023, a copy of which was provided to this court. From those reasons it can be discerned that during the County Court hearing, evidence was given by the respondent’s wife and a friend (the proposed sureties) and the informant. Various other written materials were also provided.
To summarise, his Honour concluded that the offending alleged against the respondent was “plainly serious”, and that the prosecution case was not weak. It was also noted that the respondent has contacts in Albania who it was suggested could provide false identity documents, which his Honour described as raising “some concern”. It was also observed that there was no extradition treaty between Albania and Australia. However, his Honour noted that there was no evidence that the respondent had attempted to flee the jurisdiction by using a false identity. It was also highlighted that the respondent has numerous ties to Australia, including the fact that he is a permanent resident and has a wife, three children, a property, and business here. The learned Judge ultimately considered that whilst there was a risk the respondent might not return to the jurisdiction, when all the surrounding circumstances were taken into consideration, the risk was not unacceptable.
The applicable legislation
When interpreting and applying the Act, the court is required to have regard to the guiding principles set out in section 1B.[1] Section 1B provides:
[1]Bail Act 1977 (Vic), s 1B(2).
(1)The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Bail conditions
Section 5AAA of the Act governs the imposition of “conduct conditions” upon the grant of bail. It requires a conduct condition to be imposed if it will reduce the likelihood that the accused may fail to surrender into custody in accordance with the conditions of bail.[2] However, conduct conditions must be no more onerous than is required to reduce that likelihood,[3] and must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused.[4]
[2]Ibid s 5AAA(1)(d).
[3]Ibid s 5AAA(2)(a).
[4]Ibid s 5AAA(2)(b).
Conduct conditions that may be imposed include the surrender of the accused’s passport,[5] and obliging the accused not to attend “geographical exclusion zones”,[6] such as a point of international departure.
[5]Ibid s 5AAA(4)(e).
[6]Ibid s 5AAA(4)(f).
Appeal against bail conditions
Section 18A provides for the CDPP to appeal against an order granting bail as follows:
(1)If a person is granted bail, the Director of Public Prosecutions may appeal to the Supreme Court against the order granting bail if —
(a)the Director is satisfied that —
(i)the conditions of bail are insufficient; or
(ii)the decision to grant bail contravenes this Act; and
(b)the Director is satisfied that it is in the public interest to do so.
In the recent case of Re Zhang,[7] President Emerton made a number of relevant observations about section 18A. Her Honour ruled that section 18A permits (and governs) an appeal against an order by a lower court varying a bail condition:[8]
Although s 18A does not expressly refer to the Director’s right to appeal against a decision to vary a condition of (existing) bail, it must be construed as conferring such a right. A successful application to vary bail conditions results in the court — in granting the application to vary — making a fresh grant of bail with new conditions. It cannot have been the intention of Parliament that s 18A would confer upon the Director a right of appeal against a decision fixing bail conditions on an initial grant of bail, while conferring no such right in relation to a subsequent decision varying bail conditions in a manner that reduces their stringency and compromises the protections that they afford.
[7]Re Zhang [2023] VSC 8 (Emerton P).
[8]Ibid [17] (citation omitted).
As to the nature of the appeal, subsection 18A(6) of the Act provides:
On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, conduct a fresh hearing in relation to the grant of bail to the respondent.
In Beljajev v Director of Public Prosecutions,[9] the Full Court of this Court held, in relation to a similar predecessor provision of section 18A(6), that:
It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this Court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.
In other words, the Director is not in our opinion, confined to relying upon error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.
There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike, appellate Courts have frequently refused to interfere with a primary judge’s decision on a matter of practice and procedure.[10]
[9]Beljajev v DPP (Vic) (Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991).
[10]Ibid 29–30.
The position was summarised by Justice Weinberg in Director of Public Prosecutions v Molinaro[11] as follows:[12]
It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.
[11]DPP v Molinaro [2017] VSC 624 (Weinberg JA).
[12]Ibid [7].
His Honour further stated:[13]
In the event that the Court finds relevant error, and sets aside the decision below, it must then conduct a fresh hearing in relation to the grant of bail to the respondent. In other words, the relevant provision contemplates a two stage process, one regarding correction of error, and the second, in effect, a hearing de novo.
[13]Ibid [9].
Molinaro was applied by Justice Tinney in Director of Public Prosecutions (Cth) v Khan,[14] which also concerned an appeal under section 18A brought by the CDPP.
[14]DPP (Cth) v Khan [2021] VSC 224 (Tinney J).
Accordingly, as was correctly submitted by the appellant in this application, there is no requirement for the CDPP to establish an error of law. Rather, what is required is for the appellant to show that, for any reason, the discretion of the primary decision maker has miscarried. If this Court is of the view that, on the material put before the County Court, the respondent would represent an unacceptable risk on the conditions as varied, a finding under section 18A(6) “that a different order should have been made” must follow.
The appellant’s contentions
The appellant submits that the main issue for consideration is whether the respondent should be permitted to depart Australia pending determination of the criminal charges laid against him. The appeal therefore concerns section 4E of the Act, specifically whether there is an unacceptable risk that, if released on bail with the conditions as varied by the County Court, the respondent will fail to surrender into custody.
The appellant contends that the risk of the respondent not surrendering into custody once he departs for Albania is unacceptable and cannot be ameliorated by the imposition of other bail conditions. It is therefore submitted that:
(a) it was not “reasonable” (within the meaning of section 18AD(a) of the Act), taking into account all the surrounding circumstances, for the County Court to vary the respondent’s conditions of bail to permit him to travel to Albania;
(b) the County Court erred in not finding that there was an unacceptable risk that the respondent would fail to surrender into custody in accordance with his bail, if conditions were suspended and varied so that he could travel to Albania; and
(c) the conditions as varied are insufficient in all the circumstances (as per section 18A(1) of the Act), because the variation gives rise to an unacceptable risk that the respondent will fail to answer his bail.
In support of its argument that there is an unacceptable risk the respondent will fail to surrender into custody if allowed to travel to Albania, the appellant highlights that the respondent is facing serious charges, for which there is a strong prosecution case. The charges he faces carry substantial prison terms, with section 306.5 of the Code prescribing a maximum of 25 years’ imprisonment in respect of Charge 3 on the indictment. Although it is conceded the respondent is unlikely to receive a term of imprisonment towards the upper end of the maximum sentence applicable, it is submitted that a sentence of at least 12 months is almost inevitable, which would result in the mandatory cancellation of his visa. In this context, the appellant submits that the respondent has ample motivation not to return to Australia if he is allowed to travel to Albania.
The appellant points to the serious nature of the prosecution case, in particular that the alleged offending occurred over a period of time, was well planned and sophisticated, and that the respondent was the person who operated the drug cultivation syndicate, directed others to carry out their roles and, essentially, was in charge of the operation. Furthermore, it is pointed out that the alleged offending involved multiple cannabis crop growing houses.
Further, while the appellant concedes the respondent has ties to Australia, it is submitted that the respondent and his wife also have significant family ties to Albania and other foreign jurisdictions. The respondent is likewise not an Australian citizen. He is a citizen of the United Kingdom and was born in Albania, with there being no evidence he has renounced his Albanian citizenship.
Further, in the appellant’s submission, there is a concern that evidence indicates the respondent was provided with copies of European identity documents by a contact with an Albanian mobile phone number, one of which was used in connection with the offending. The alleged offending also involved extensive use of false identities, which suggests the respondent may be capable of evading detection by the authorities once he has departed the country. The appellant also contends that, as the alleged offending involved large sums of money, it is possible the respondent has considerable cash reserves that he may be able to call on, thus undermining the potential effectiveness of the surety imposed by the County Court.
Moreover, the appellant points out that whilst one of the ties that the respondent has to Australia is an investment property owned by his wife, according to the informant, that property is currently on the market for sale. Furthermore, the appellant submits that note should be taken of the fact that the respondent’s wife, who is a surety for the respondent, left the country with her children on 11 November 2023, without the authorities being made aware of that fact. Evidence provided to the County Court by the respondent’s wife was to the effect that she is “currently located in the Molla residence in Albania with her three children”.
Finally, in the event the respondent does fail to return, the appellant notes that there is no direct extradition treaty between Australia and Albania. Although an inherited treaty with the United Kingdom exists, it has never been used to extradite a person from Albania to Australia.
In light of the above, the appellant submits that the Magistrates’ Court rightly subjected the respondent to strict bail conditions that sought to mitigate the risk he would flee the jurisdiction. It is contended that the County Court gave too much weight to the respondent’s lack of criminal history and ties to Australia when deciding to remove these protections and permit travel to Albania.
The appellant also seeks to distinguish the present circumstances from Re Zhang[15] and Director of Public Prosecutions v Semaan[16] (being two cases where overseas travel was permitted), on the basis that those cases involved serious driving offences and the individuals involved were Australian citizens. It is submitted that the respondent’s circumstances are more similar to those in Director of Public Prosecutions v Basic,[17] which similarly concerned serious drug trafficking offences. In that instance, Justice Beach upheld an appeal against the decision of a lower court to allow Mr Basic to travel overseas. The appellant submits that the court should follow the reasoning in Basic.
[15]Re Zhang [2023] VSC 8 (Emerton P).
[16]DPP v Semaan [2014] VSC 658 (Croucher J).
[17]DPP v Basic [2013] VSC 412 (Beach J).
The respondent’s contentions
In response, the respondent submits that the decision of the County Court to vary the conditions of bail was entirely reasonable in light of the surrounding circumstances. In support of this submission, the respondent notes that the learned Judge considered an extensive list of factors when weighing the level of risk, and that he was mindful of the concerns raised by the appellant. It is submitted that the decision to add an additional surety reveals that his Honour seriously considered the risk that the respondent would not return to Australia, but ultimately concluded that the surety could reduce this risk to an acceptable level.
Further, it is noted that the respondent has demonstrated impeccable compliance with the bail conditions, that he has ties to Australia, that his reasons for seeking to travel to Albania are tragic but understandable, and that there is no evidence of any intention to abscond on his part. In this respect, the respondent highlights that he visited Albania in 2021 to visit his ill mother, shortly after police had seized cash and cannabis from his properties, yet he returned to Australia without incident.
In oral submissions, counsel for the respondent drew the Court’s attention to the experience of the learned Judge, the fact that his Honour had the benefit of hearing directly from the witnesses and that the County Court had given the matter “anxious consideration”. The respondent submits that these factors, in combination, lead to the conclusion that the decision to vary the respondent’s bail conditions was reasonably open to the learned Judge.
As such, the respondent submits that the appellant cannot establish that the learned Judge’s discretion miscarried, such that this appeal ought to be dismissed.
Analysis
Turning first to the test to be applied, I am of the opinion that the appellant’s characterisation of the test is to be preferred. In my view, the respondent pitched the test too high by submitting it is necessary to show that it was “not reasonably open” to the learned Judge to reach the conclusion that he did. I agree with the submission of the appellant that this would come close to amounting to Wednesbury[18] unreasonableness. Reference was made in written submissions to the past decisions of Beljajev v Director of Public Prosecutions,[19] Director of Public Prosecutions v Basic,[20] Director of Public Prosecutions v Molinaro,[21] Director of Public Prosecutions v Semaan,[22] and most recently, Re Zhang.[23]
[18]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Lord Greene MR, Somervell LJ, Singleton J).
[19]Beljajev v DPP (Vic) (Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991).
[20]DPP v Basic [2013] VSC 412 (Beach J).
[21]DPP v Molinaro [2017] VSC 624 (Weinberg JA).
[22]DPP v Semaan [2014] VSC 658 (Croucher J).
[23]Re Zhang [2023] VSC 8 (Emerton P).
Having considered these decisions, in my opinion, it is clear that section 18A of the Act gives the Supreme Court considerable discretion to set aside the decision of a lower court. The appeal is better conceived of as a re‑hearing, not as a judicial review of the lower court’s discretionary judgment. If this Court is of the view that “a different order should have been made”, it may set aside the order of the lower court and make a new one.
In Zhang, President Emerton cited and approved the approach taken by Justice Weinberg in Molinaro. In that case, Justice Weinberg observed that in a Director’s appeal it is not necessary to establish an error of law, holding that:[24]
[T]he Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made.
[24]DPP v Molinaro [2017] VSC 624 (Weinberg JA), [7].
Further, in a footnote to that paragraph, his Honour elaborated that:
It does not follow, as the respondent contended, that this Court will only allow an appeal if it concludes that the magistrate below arrived at a finding or findings that were ‘not reasonably open’. That may be too high a threshold. Put that way, it comes very close to saying that nothing short of an error of law, and perhaps even a jurisdictional error, in the sense described by the High Court in Craig v The State of South Australia (1995) 184 CLR 163, 179, is essential in order for the Director to succeed under s 18A. If a judge of this Court is of the firm view that, on the material before the Court below, there were no exceptional circumstances, or that the respondent represents an ‘unacceptable risk’ that should trigger a finding that ‘a different order should have been made’, within the language of s 18A(6). In other words, the appeal under that section should be seen as being by way of rehearing, rather than akin to judicial review of a discretionary judgment.
Therefore, in this matter I propose to follow the approach set out above.
The CDPP has submitted that the respondent is an unacceptable risk in the sense that if he is permitted to leave Australia and travel to Albania, there is a risk he will not return to face his trial. The CDPP points to all the matters set out above, including the very serious nature of the matters he is charged with; the significant sentence he will inevitably receive if found guilty of the alleged offending; the strength of the prosecution case; and the lack of a direct extradition treaty between Australia and Albania. Furthermore, the fact that there is evidence the respondent has had contact with persons in Albania who appear to have provided a series of photographs of European passports in the names of various persons causes the appellant concern that the respondent has the ability to arrange false identities. It is alleged that the identity of an individual depicted in at least one of the passports was utilised by the respondent to purchase a motor vehicle used in the commission of the alleged offending. As noted, the prosecution case also relies on the use of false identities, as set out in the Summary of Prosecution Opening for trial. The appellant also points to the risk that the respondent has access to financial resources given the amount of money, in cash, that was seized from his premises by the police, which included $271,000, and €40,000.
Further to these factors, the appellant also relies on matters of a more personal nature relating to the respondent, including his ties to Albania in the face of his UK citizenship and his lack of Australian citizenship.
Of some significance is evidence provided to this court that the respondent’s family have travelled to Albania on 11 November 2023, and are currently in that country. Whilst it may be that the fact of her father in law’s death may have provided a reason for that travel to be undertaken, the fact still remains that if the variation of bail conditions is permitted to stand, allowing for the respondent’s travel, he will join his wife and children in a country where his wife is a citizen, and with which country Australia does not have a direct extradition treaty. It is noteworthy that in Semaan, Justice Croucher held that:[25]
There is no rule that accused persons facing substantial periods of imprisonment, should they be convicted at trial, are not entitled to have their bail varied so that they might travel overseas to countries without extradition treaties with Australia.
[25]DPP v Semaan [2014] VSC 658 (Croucher J), [56].
Indeed, it is to be accepted that there is no such rule. Nevertheless, in my opinion, the fact that a person proposes travel to such a country still represents a factor to be weighed when assessing the acceptability or unacceptability of risk. In Semaan, Justice Croucher also noted that each case turns on its own facts.
Further, Semaan was a culpable driving case, also involving charges of negligently causing serious injury. An examination of the circumstances concerning the variation of bail reveals that the offending was alleged to have occurred in mid‑2010. The respondent in that case had successfully appealed against his first conviction at trial. A subsequent attempt to hold a retrial was aborted because of an issue with the jury. It was anticipated that almost five years would pass before the matter would finally be resolved. In his conclusions, his Honour commented that the decision to vary bail was well open to the lower court given the overall circumstances, including that the learned Judge had heard part of the ultimate retrial, had witnessed the respondent comply with his bail conditions repeatedly, knew that the respondent had been doing so since he had been on bail, and that the respondent had been behaving in the same responsible manner even before he was charged. Furthermore, his Honour had observed the respondent, his fiancé and her family in his court, and was satisfied as to the strength of the relationship. In other words, in light of the learned Judge’s experience, familiarity with the respondent and the length of time that had passed while the respondent was on bail, Justice Croucher dismissed the Director’s appeal.
Likewise in Zhang, President Emerton dismissed the appeal by the Director, concluding that it was well open to the Magistrate to make the decision of variation. Whilst some of the features of the respondent’s circumstances in Zhang favourably compare with those of the present respondent, in my opinion there are some significant and compelling points of distinction, which are instructive. It was argued that the respondent in Zhang, who was a medical practitioner, had strong professional and financial ties to the Victorian jurisdiction, that he had been an exemplary citizen, that he faced a prosecution case with more than a reasonable possibility that he would be discharged from prosecution or acquitted, that the prosecution case did not involve the existence of some common and salient aggravating features in similar driving cases, and that there was a realistic possibility of a non‑custodial disposition in the event of a finding of guilt.
Furthermore, although wishing to travel to Singapore, Zhang had no entitlement to return to live in China, his country of birth. Weighing up all the matters under consideration, President Emerton concluded that despite the serious nature of the alleged offences, the strength of the prosecution case, and the possibility of a severe sentence, it was still well open to the Magistrate to grant the application to vary bail in that case. Her Honour accepted the strong family, financial and professional ties of the respondent to Victoria, his exemplary citizenship, his responsibility at the scene of the collision, a significant surety, his tenuous ties to his country of birth, no entitlement to travel there as of right, and his fragile mental health. It might be noted that the possible penalty faced by the respondent in Zhang was likely less than the penalty the respondent in the current proceedings might expect to receive, given the maximum sentence that applies to the present offences under consideration.
On the other hand, in Basic, a case with some similarities to the present in that it involved allegations of serious drug trafficking, Justice Beach allowed the appeal by the Director. In that case the accused person sought, and persuaded the Magistrates’ Court that the operation of some bail conditions should be suspended to enable the respondent to travel to Croatia for the purpose of attending a family wedding. The Director appealed against the decision of the Magistrate, in part because there was no extradition treaty between Australia and Croatia. Similarly to the present case, there appeared to be an inherited treaty that may have applied between the United Kingdom and the former Yugoslavia, however that treaty did not appear to have been utilised in recent years. The respondent also had extensive family in Croatia. The charges against him were serious, with the prospect that he would be sentenced to a not insignificant term of imprisonment if convicted. Justice Beach concluded that:[26]
[I]f the respondent was permitted to travel to Croatia, then, notwithstanding the fact that he has previously answered his bail and complied with bail conditions, there is a not insignificant risk that he might not answer bail in respect of the charges with which he has been committed for trial. Further, the material discloses that attempting to extradite the respondent from Croatia might be problematic.
[26]DPP v Basic [2013] VSC 412 (Beach J), [10].
In determining that appeal, his Honour expressly took into account the restraint that should be exercised in appeals of this kind. Nevertheless, he was satisfied that the Magistrate was wrong to permit the respondent to travel overseas to Croatia in the circumstances of the case. His Honour concluded:[27]
This was not a case to then permit the respondent to travel out of Australia and away from the supervision entailed in the reporting condition. The order made by the magistrate permitting this to occur was, in the language of the authorities in this area, manifestly the wrong order to make.
[27]Ibid [11].
I am compelled to reach a similar conclusion in this case. I am of the opinion that the present circumstances can be distinguished from Zhang and Semaan. Accepting that each case has to be determined on its own facts and circumstances, having weighed the matters set out in the evidence, and taking into account the submissions made, with respect, I do not consider that the decision made by the learned Judge was the correct one. In my view, in light of all of the factors discussed, including the very serious nature of the allegations, the apparent strength of the prosecution case, the significant penalty that is likely to be imposed on a finding (or findings) of guilt, the lack of an extradition treaty, and the matters more personal to the respondent (including the presence of his family in Albania), I consider that the risk that he will decide not to return to Australia is an unacceptable one, such that I would not conclude that the decision to vary bail should stand.
Further, I am of the opinion that the learned Judge of the County Court manifestly made the wrong order. In my view, to allow the respondent to travel to Albania as proposed, represents a risk that is unacceptable.
Conclusion
Accordingly, I would allow the appeal.
The order of the Melbourne County Court constituted by Judge Tiwana made on 27 November 2023, varying the respondent’s bail, will be set aside.
The orders of the Magistrates’ Court of Victoria made on 18 August 2022 and varied on 23 May 2023, admitting the respondent to bail on his own undertaking and with one surety, will also be set aside.
The respondent will be re-admitted to bail on his own undertaking with one surety in the amount of $20,000 and on the following special conditions:
(a) he attend at Melbourne County Court on 30 January 2024 and any further dates ordered by the court;
(b) he report to his local Police Station every Monday and Thursday between 6:00am and 9:00pm;
(c) he reside at an address in Aspendale Gardens;
(d) he notify the informant within 24 hours of any proposed change of address;
(e) he surrender any valid passports or other travel documents within 24 hours of release to the informant, and not apply for any other;
(f) he not attend any points of international departure;
(g) he not leave the state of Victoria;
(h) he not leave Australia;
(i) he not contact witnesses for the prosecution other than the informant;
(j) he not associate with any co-accused;
(k) he not associate with any co-accused; and
(l) he only possess one mobile phone, and must provide informant with the mobile phone number.
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