Re Ng

[2007] VSC 191

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

BAIL APPLICATION

No. 1495 of 2007

IN THE MATTER of the Bail Act 1997

And

IN THE MATTER OF an Application for Bail of KEVIN NG

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June, 2007
DATE OF RULING:	7 June, 2007
CASE MAY BE CITED AS:	Kevin Ng v R
MEDIUM NEUTRAL CITATION:	[2007] VSC 191

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Criminal Law – Bail Application

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Ryan S.C.	Office of Public Prosecutions
For the Accused	Mr Dane Q.C.	Mr A. Hargreaves

HER HONOUR:

1. The applicant Kevin Ng applies for bail pursuant to the provisions of the Bail Act 1997.

1. Mr Ng is on remand charged with murder, kidnapping, false imprisonment, trafficking in a drug of dependence namely amphetamines, between 27 December 2006 and 11 January 2007, trafficking in a drug of dependence namely amphetamine on 11 January 2007, and dealing with property suspected of being the proceeds of crime in an amount of $102,000 on 11 January 2007. 

1. The applicant was arrested 11 January 2007 and when arrested made a no comment record of interview.  He has been in custody since that date and six other persons have been charged in respect of these matters.

1. The applicant is 22 years old, he has completed second year studies in commerce at Deakin University, he has no prior convictions and presently resides in the family home with parents at 28 Cunningham Drive, Endeavour Hills.

1. The circumstances of the alleged offences are detailed in the affidavit in opposition to bail sworn by Danielle Marian Guesgon and the exhibits thereto and further expanded in evidence before me given by the informant Detective Senior Constable Daniel Ryan.

1. The application for bail is supported by two affidavits sworn by Mr Anthony Hargreaves on 24 May and 4 June 2007 respectively.  Mr Dane QC who appears on behalf of Mr Ng submitted that exceptional circumstances are here demonstrated by reason of:

1)        The age of applicant;

2)        That he has no prior convictions;

3)        That he would otherwise live at home with his parents;

4)        That the case against him is an arguable one; and

5)        A delay of 18 months before the matter comes on to trial.

1. Mr Dane submitted that the strength of the case against the applicant and the delay of 18 months amount to exceptional circumstances or in the alternative that the matters compendiously amount to exceptional circumstances.

1. The Crown opposes the application.  Mr Ryan SC submitted that exceptional circumstances have not here been made out.  The Crown case against the applicant, he submitted, is a strong one either on the basis of a killing in the course of a common purpose to commit an assault or aiding and abetting the infliction of really serious injury which results in death.  Mr Ryan also submitted that although there is a delay before the matter comes on for trial it is not an inordinate delay and in these circumstances delay cannot amount to exceptional circumstances.

1. The Crown further submits that should exceptional circumstances be shown to exist the applicant is an unacceptable risk of committing further offences or fleeing the jurisdiction.  To this end the Crown relies upon the evidence as established by telephone surveillance that the applicant continued to have telephone contact with one of his co-accused Ngoc Bui after the alleged murder and traffic in amphetamines on two occasions after 18 November 2006.  In these circumstances where the applicant had then been living at home and when he had, on any view, being present when a person had been killed the fact that he continued to associate with one of those person also allegedly involved in the killing and to commit further offences, he is an unacceptable risk of re-offending.  As I understand it, the risk of flight is said to be constituted by reason of the fact that he has three passports issued in his name and as the statement of Detective Senior Constable Ryan recounts he is allegedly part of an established drug syndicate whose reach may possibly extend overseas.

1. Mr Dane submitted that any continued involvement with the co-accused after 18 November, and subsequent offending, was because of fear from having seen what it was that his co-accused were capable of doing but that, that fear had now abated because his co-accused are now in custody.

1. I do not propose to go into the detail of the Crown case other than to say that the charges of kidnapping and murder all arise out of the death of Michael Daou which the Crown alleged occurred in the early hours of 18 November 2006 at a Warehouse in Scoresby.

1. On the Crown case the co-accused Gary, Adam and Aaron Hargreaves on the one hand and Ngoc Bui and his brother Quoc Minh Bui on the other, each operated two drug syndicates from the Warehouse.  Andrew Johnson was the runner for the Hargreaves’ syndicate and the applicant, know as “Kevvy,” was either the runner for the Bui syndicate or was himself a drug dealer.  It appears that the Hargreaves thought that they had been “ripped off” concerning a quantity of ecstasy tablets by Mr Daou and one of his associates, to that end it was decided that Mr Daou should be abducted and brought to the warehouse.  Mr Andrew Johnson has made a statement to the police and a record of interview and is currently a co-accused, it maybe that he will be available to the Crown as a witness in a trial of the other co-accused, but the matter is not yet settled.

1. Ms MacDonald and Ms Archer who were present for a time at the warehouse may also be called by the Crown.  Ms MacDonald was enlisted to arrange to meet the deceased and to drive him to a location where he would be abducted.  To that end she participated in a rehearsal in that she was driven by Ngoc Bui together and in the company of Gary Hargraves, Aaron Hargraves and the Applicant and Mr Johnson to a reserve where it was indicated she should meet the deceased. Ms MacDonald identified the applicant as being present during the practice run earlier on the night of 17 November 2006. 

1. Mr Johnson says that the applicant was present during the actual abduction and that the applicant was in the car which bore Mr Daou in the boot back to the warehouse.  Ms Archer will give evidence that she saw the car being driven into the warehouse at about 9pm that night and she identified the applicant as being a front seat passenger in that car.

1. According to Mr Johnson once out of the car Mr Daou was surrounded by others and that included the applicant.  Mr Daou was then punched and wrestled with.  Mr Aaron Hargreaves produced a gun which discharged possibly in the course of the wrestle.  The applicant was told to put something over Mr Daou’s head which it is said he did and the applicant was one of the co-accused who took Mr Daou to a chair and wrestled him into it and then one of the co-accused tied Mr Daou to the chair with box tape.   The applicant was present when Mr Daou was tortured, in that the applicant according to Mr Johnson, was standing some 20 metres away at the door of the office.  On the informants account the door of the office is some 8 to 10 metres away from the place where the assault is said to have taken place and as I understand Mr Johnson’s statement, when Mr Adam Hargreaves called out inquiring as to whether Mr Daou head had been covered, it was the applicant who replied that it had been. 

1. It appears that the whole episode endured over some three hours during which time Mr Daou had his pubic hair sprayed with aerosol and set a light and he was sprayed with a fire extinguisher.  At one point the applicant, Adam Hargraves and Andrew Johnson were in the office at the warehouse as the other three were torturing Mr Daou and after some 30 minutes those three accused returned to the office and all were present when a discussion took place about the information that had been gleaned from Mr Daou.  During that discussion Mr Daou’s mobile telephone was checked and afterwards a number of the co-accused returned to where Mr Daou was restrained and continued to assault him.  When the assault came to an end Mr Daou was wheeled, still restrained in the chair, to the vehicle, placed in the boot and shot two or three times to the head.

1. The applicant was present when this occurred although as I understand it he was standing by the doorway to the office.  In any event, afterwards he helped to clear up by picking up the box tape and putting it in a box and he and two of the other accused talked about establishing an alibi and then it appears that the applicant changed his clothes and went home. 

1. If Mr Johnson gives evidence in conformity with his statement and his record of interview then the applicant was present when the plan to abduct Mr Daou was articulated, he was in the car during the course of the rehearsal and he was present during the actual abduction.  Indeed, he was the front seat passenger in the car which was driven back to the warehouse when Mr Daou was confined in the boot.  The applicant was also present when Mr Daou was taken out of the car.  He assisted in physically restraining him, including putting a plastic bag over his head, and he was present when he was seriously assaulted.  The applicant remained in the warehouse throughout the assault, and although he may well have been physically ill at the sight of what he had seen, he remained there throughout and was present at the discussions during the hiatus in the assault and assisted in cleaning up after the assault, although as I understand it, that took place before the killing.  He was present when Mr Daou was shot, he took part in a discussion concerning an alibi and changed his clothes.  These are all matters - association, location, proximity, pre and post the assault from which a jury may infer a common purpose to inflict really serious injury from which death results or an agreement to kill or aiding and abetting the actual assailants. 

1. If Mr Johnson does not give evidence on behalf of the Crown there is nonetheless the evidence of Ms MacDonald that the applicant was present in the car during the rehearsal prior to the abduction and the evidence of Ms Archer that the applicant was present in the car when it was driven back into the warehouse.   There is also evidence of the telephone calls between the applicant and Mr Adam Hargraves in the days before the 17 and 18 November and further evidence of the applicant making telephone calls with Ngoc Bui on the evening of the abduction and in the early hours of the morning after the murder. 

1. Whilst no doubt the evidence of Ms Archer and Ms MacDonald would be extensively challenged and no doubt the jury would be appropriately directed, and if Mr Johnson were to give evidence, the jury would have to be warned about the dangers of acting on his evidence.  Nonetheless, it could not be said that the evidence of these witnesses is not capable of being accepted by a jury and if it is, the case against the applicant is not simply an arguable one it is a strong one.

1. As to the issue of delay I accept that the applicant has been in custody since 11 January 2007 that the trial will not be held until the latter half of next year and that this the first time the applicant has been in custody and that this must a be a source of great stress to him to await trial in such circumstances. 

1. At this stage, no doubt, the trial of all co-accused is going ahead together, as is the committal process.  The committal mentioned was adjourned last Friday, to this Friday, and the committal will most likely be held in November of this year.  It appears that all forensic analysis relating to evidence pertaining to this appellant have been completed but one can readily appreciate the complexity of bringing seven co-accused together to trial.  There is no doubt that a delay of some 18 months in coming to trial is regrettable but the question of what is reasonable delay will vary with the circumstances of the alleged offences and the complexity of the matter the subject of the charges but cannot be said to be unreasonable or inordinate where presumably the preliminary matters, and the trial of all accused in so far as they relate to the charges of murder and kidnapping, will be heard together and the committal list and the trial list must find available dates which can accommodate a committal and a trial of a considerable duration.  Whilst the delay is, whether inordinate or not, nonetheless a factor to be taken into account in determining whether exceptional circumstances exist, I am not satisfied having regard to the seriousness number and complexity of the charges that the delay in this case amounts to an exceptional circumstance either alone or compendiously with other factors to be considered.  

1. As to the applicant’s age and that fact that he has no prior convictions I do regard that these considerations amount to exceptional circumstances in this case.  Indeed, a number of his co-accused are of a similar age and likewise it is not uncommon for offences such as murder to be committed by persons with no prior convictions who have not previously experienced the prison system.

1. Accordingly I am not satisfied, for all of these reasons, that exceptional circumstances have been made out.

1. As to the unacceptable risk of further offending whilst on bail I simply say that having witnessed a summary execution it does not appear to have prevented the applicant from continuing to associate with others who were present and to have continued to engage in trafficking which was the primary pursuit of the two syndicates.  His conversations as revealed in the telephone surveillance; the substance of them do not indicate a person in fear but rather a person who continued to engage in various business dealings.  Further, the presence of the applicant’s fingerprint found in a document located in the apartment in Port Melbourne, which was being used as a safe house after the killing, also suggests that the applicant was prepared to continue his association with the other accused and to continue to engage in the principle purposes of the drug syndicate. 

1. I note the informant’s observation as to the breadth and reach and resources of the drug syndicate and the co-accused and note that even if the applicant were to surrender the three passports held in his name, there is much at stake and I would not be satisfied that the risk of flight such as it is would be an acceptable one.

1. Accordingly for these reason I refuse the grant of bail.