Re Nguyen
[2022] VSC 836
•8 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0223
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by Chi Thanh NGUYEN |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 September 2022 |
DATE OF JUDGMENT: | 8 September 2022 |
DATE OF PUBLISHED REASONS: | 28 June 2023 |
CASE MAY BE CITED AS: | Re Nguyen |
MEDIUM NEUTRAL CITATION: | [2022] VSC 836 |
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CRIMINAL LAW – Application for bail – Charges of murder and trafficking a commercial quantity of a drug of dependence – Strength of the prosecution case – Delay – Onerous custodial conditions due to COVID-19 pandemic – Exception circumstances established – Surety – Unacceptable risk mitigated by the imposition of bail conditions – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4D.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Tim Marsh | Angus Cameron Lawyers |
| For the Respondent | Ms Lauren Gurry | Office of Public Prosecution |
HIS HONOUR:
Introduction
By an application dated 26 August 2022, Chi Thanh Nguyen seeks bail (‘the applicant’). The applicant has been in custody since 18 July 2022, and he is currently on remand for charges of murder, trafficking a commercial quantity of a drug of dependence, being methylamphetamine, and possessing a drug of dependence, being cannabis.
The applicant has not previously applied for bail. Because he is charged with murder, only this court or a court committing the matter for trial can grant bail, and the parties agree that the applicant is required to demonstrate exceptional circumstances that would justify the grant of bail.
There are two co-accused in the matter, Yu Ying Juan (‘Juan’) and Tong Diem Vuong (‘Vuong’), who are both charged with murder and are currently in custody on remand. Juan is the applicant’s partner and Vuong is Juan’s ex-partner.
The next listing for this matter at the committal stage is at the Melbourne Magistrates’ Court on 2 November 2022.
The alleged offending
Background
The applicant is charged with the murder of Hai Dai Lam, a 49-year-old man from St Albans (‘the deceased’).
At the time of the alleged offending, the applicant was living at 9 Palm Street, Thomastown (‘the Thomastown address’) with his partner and the co-accused, Juan.
On 29 June 2022, the deceased man attended the Thomastown address to facilitate a drug transaction between Juan and an associate named John Booth (‘Booth’).
The following day, three men wearing balaclavas committed an aggravated burglary on the Thomastown address while Juan was present, assaulting her and stealing approximately $250,000 worth of drugs and an unknown quantity of cash. This incident is described generally in the material as ‘the drug rip’.
Nick Peng (‘Peng’) was living with the applicant and Juan at the Thomastown address until 1 July 2022 and referred to Juan as his ‘god mum’, although he had only known her since early 2022.
The applicant, Juan, Vuong and Booth originally suspected that Peng was involved in the planning of the drug rip. On 1 July 2022, the applicant, Juan, Vuong and Booth confronted Peng and threatened him with knives. Denying responsibility for the drug rip, Peng doused himself with petrol and threatened to set himself alight, which alleviated suspicions that Peng had been involved. Following concerns voiced by Booth, the parties became suspicious that the deceased in fact, had planned the drug rip.
Events on 6 July 2022
On the afternoon of 6 July 2022, the applicant and Juan were at the Thomastown address with Booth and Peng. Following discussions about the deceased’s suspected involvement in the drug rip, the group decided to lure the deceased to the Thomastown address and confront him. At around 2.30pm, Booth left and returned home.
At around 4.40pm, Juan called the deceased and asked him to attend the Thomastown address purportedly for a drug transaction. Acting on Juan’s instruction, Peng left the address in his vehicle just before 5.00pm to pick up Booth and to bring him back to the Thomastown address.
Juan told Peng she did not want Booth’s car parked at the residence as she thought the deceased would become suspicious. Before reaching Booth’s address, Peng was intercepted by police and his vehicle was impounded. Peng walked to Booth’s address, then he and Booth caught an Uber back to the Thomastown address, arriving there at about 7.28pm.
While Peng was away, Juan called Vuong to discuss the plan to confront the deceased. Vuong arrived at the Thomastown address at around 5.41pm. As the deceased had not arrived at the address by 7.10pm, Juan called the deceased and spoke to him twice. When he still had not arrived after Booth and Peng returned, Juan called again and was told by the deceased he was on his way but stuck in traffic.
By 8.30pm, the deceased still had not arrived and had failed to answer several of Juan's phone calls and the parties became even more suspicious regarding his responsibility for the so-called drug rip. Juan, the applicant, Vuong, Peng, and Booth then left to attend Vuong’s residence in Margrave Street in St Albans (‘the Margrave Street unit’), arriving there at about 9.00pm.
On arriving at the Margrave Street unit, the group bought takeaway food and shortly after that, Vuong left the residence to drive Booth to the house of an associate, Leanne Craig (‘Craig’). Vuong returned shortly before 10.00pm, with Booth and Craig later arriving around 10.30pm at the request of Juan.
Between 10.00pm and 10.30pm, Lag Ngoc Tran (‘Tran’) attended the unit, followed by Jamie Keith (‘Keith’) and Cassandra Maggioli (‘Maggioli‘), who were visiting so Keith could buy drugs from Tran. Keith and Maggioli identified several people at the unit, including Juan who had visible bruising to her face. Tran identified those present as the applicant, Juan, Vuong, Peng, and an unknown male. Tran later stated to police that Juan and Vuong were discussing the deceased missing an appointment and having ‘done some not very good things’. The unknown male, followed by Tran, Keith and Maggioli, left the unit as Booth and Craig were arriving.
Craig had prior plans to meet up with the deceased that night and told him she was going to St Albans. Upon arriving at the Margrave Street unit, Craig texted the deceased the address and he arrived there at 11.17pm. When the deceased arrived at the Margrave Street unit, Juan and Vuong confronted him, and a discussion then turned to the drug rip. Vuong began punching the deceased who retaliated and the other parties subsequently joined in the assault.
Peng has made a substantial statement in relation to these matters and in that statement said he was asked to watch the back door to prevent the deceased escaping. Peng stated he saw Juan take out a taser, but he then attempted to separate the deceased from the applicant and Vuong without success. He then went outside for a few minutes for a cigarette and upon his return, he observed the deceased bleeding profusely and saw Vuong in the possession of a samurai sword, with Vuong and Juan still assaulting the deceased as he was bleeding.
In his statement, Peng said the following:[1]
after that, I finished my smoke and went back inside. I think I just flicked the butt on the ground. When I went back inside, I went through the back laundry entrance. When I got inside, people were still yelling and grappling, but I saw blood gushing out of Hai. The blood was gushing out of his backside, Hai was on his feet and facing towards the living room at the time. The others were in the kitchen as well, by them I mean Hai, Lyn and Tony. I couldn’t see Johnny or Tommy, so I assumed they had left, but they must have left from the front entrance because I didn’t see them leave when I was having a cigarette unless they were inside one of the rooms because I didn't check.
[1]Statement of Nick Allen Peng dated 8 July 2022, [48].
Peng then went outside again feeling ill from the sight of blood. While in the rear courtyard, he saw through a window the applicant throwing the deceased against the wall and wielding a machete, which Peng said Vuong had brought from the Thomastown address, with Juan tasering the deceased. During this time, CCTV audio from the neighbouring address is said to have captured the sound of the taser and shouting.
At 11.44pm, Peng called triple zero but the call was disconnected because Vuong snatched the phone away from him. The operator called Peng back several times, connecting at 11.45pm. During this time, Peng had gone back into the unit and witnessed the deceased trying to crawl out of the unit through the laundry door. The applicant is then said to have dragged the deceased out to the front of the block of units and left him on the nature strip covered by a tarpaulin. Upon the triple zero call connecting, Peng requested an ambulance to attend and attempted first aid on the deceased, as directed by an Ambulance Victoria operator. The applicant saw the first ambulance drive past the unit block and left on foot.
At four minutes to midnight, police and paramedics arrived. They saw the deceased lying unresponsive on the nature strip with several stab wounds to his back and hips. The deceased could not be revived and was declared deceased at 12.34pm.
A post mortem was conducted on 7 July 2022 by Dr Paul Bedford, who found the deceased had been stabbed five times, with one stab wound to his thigh causing catastrophic blood loss by severing the femoral artery.
Post-offence events, investigation and arrests
Shortly after 3:00am on 7 July 2022, Vuong was arrested hiding under a bed inside the Margrave Street unit. On 8 July 2022, he was interviewed and charged with murder.
In his interview, Vuong told police he was at home on 6 July 2022 and that Peng and Juan had visited for dinner. He told police that a male named Jackson or Jason had brought the deceased, who Vuong did not know, with him to the unit. He stated that an argument started but he did not witness any fighting or blood, and he subsequently went to bed at 9.30pm.
Following the incident, crime scene investigators found evidence of blood splatter in the living room, kitchen and laundry of the Margrave Street unit. Fingerprints from the scene were found matching the applicant, Vuong, Juan, Peng, Booth, Keith and Maggioli. Fingerprints matching the applicant were also found on a bloodstained broom and on the driver’s side of a vehicle parked along where the deceased is said to have been dragged. The vehicle itself had bloodstains along the driver’s side.
Police also seized a machete, bloodstained taser, Samurai sword and several other weapons, which have not yet been forensically analysed. Exhibit A on this application were four photographs of the machete.
On 18 July 2022, police attended the Thomastown address pursuant to a warrant, where the applicant and Juan were subsequently arrested. Juan would not participate in an interview. The applicant was interviewed and made no admissions. He told police he had been at the Margrave Street unit on the night of 6 July 2022 and was in the lounge room with Juan, while Peng and Vuong were in the kitchen with the deceased. He said he saw blood on the deceased's trousers. He stated further that he left the Margrave Street area without waiting for emergency services because he was directed to leave by Juan.
During a brief period, following the interview where the applicant was left alone in the interview room, he is said to have deliberately damaged the interview discs in an attempt to destroy the record of interview. What is to be made of that evidence remains to be seen.
Trafficking offences
When the police executed a warrant at the Thomastown address, they searched the premises and found 212 grams of methylamphetamine of which 174 grams was pure. The commercial quantity for methylamphetamine so I am informed is 50 grams pure. They also found 622 grams of dried cannabis.
The applicant was charged with trafficking a commercial quantity of methylamphetamine and possessing cannabis on 18 July 2022.
Those charges have been served on the applicant's solicitor and filed with the Magistrates’ Court.
Co-accused
Following their respective arrests, Vuong and Juan were both charged with murder.
Juan has also been charged with trafficking and possession as a result of the drugs found when the warrant was executed at the Thomastown address.
Neither co-accused has a prior criminal history and neither co-accused have applied for bail since their arrest and as such remain on remand.
On 18 July 2022, a warrant was executed at Booth’s residence in Essendon North and he was interviewed by police in relation to what occurred on 6 July 2022, and released pending further inquiries.
The applicable legislation
The Bail Act 1977 (Vic) (‘the Bail Act’) sets out the guiding principles which a court must have regard to in applying and interpreting the Act: [2]
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible;
(b)taking account of the presumption of innocence and the right to liberty;
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
[2]Bail Act 1977 (Vic) s 1B(1).
The applicant is charged with Schedule 1 offences, being murder and trafficking in a commercial quantity of drugs[3] and is, therefore, subject to the exceptional circumstances test, there is nothing controversial about that.[4]
[3]Ibid sch 1, item 2; item 6(b).
[4]Ibid s 4AA(1).
As such, the Court must refuse bail unless satisfied that exceptional circumstances exist, justifying the grant of bail having regard to the surrounding circumstances and the onus of establishing exceptional circumstances lies with the applicant.[5] As has been noted many times, exceptional circumstances is undefined in the Act. It has been the subject of numerous rulings by various members of this and other courts.
[5]Ibid ss 4A(1A), 4A(2)-(3).
Kaye JA, sitting as a trial division judge in Re ER, said:[6]
The applicant must establish circumstances that are ‘right out of the ordinary’ so that they are exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail.
[6][2022] VSC 88, [30].
Speaking for myself, I am attracted by the observations and conclusions of the Court of Appeal in Roberts v The Queen, where the Court considered what they describe as the ‘informing principle’ underpinning the test as follows: [7]
If continued incarceration before trial would be productive of injustice, then a grant of bail may be justified. Subject always to the separate question of unacceptable risk. The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration as in the cases concerning pre-trial delay. But what justifies bail is the need to prevent or mitigate future injustice.
[7][2021] VSCA 28, [10].
They also highlighted the centrality of justification by referring to the language of s 4A(1)(a). That is well settled, as I and others have said on numerous occasions, that exceptional circumstances can be established by a combination of factors, even although none of those on their own would be considered exceptional.
If that test is clear, then an unacceptable risk test must be considered and bail must be refused if satisfied by the respondent that the applicant poses an unacceptable risk of:
(a)endangering the safety and welfare of any person;
(b)offending while on bail;
(c)interfering with witnesses or obstructing the course of justice; and
(d)failing to surrender into custody in accordance with the conditions of bail.[8]
[8]Bail Act1977 (Vic) s 4E(1)-(2).
That burden, as I have indicated, lies on the prosecutor.[9]
[9]Ibid s 4D(2).
Section 3AAA sets out the surrounding circumstances which are to be considered.
Personal circumstances
Health
In relation to this application, this applicant is a 41-year old male and as I have been told in the course of evidence on the application, has been diagnosed with a schizoaffective disorder and is being medicated for that condition.
Employment
Prior to his remand, the applicant was unemployed, living with his partner, the co-accused, Juan, in Thomastown and receiving voluntary treatment for his condition through an area mental health service. The applicant was not punctilious about that treatment, but nonetheless, attended from time to time to receive the medication that he clearly needs.
Criminal history
The applicant has a criminal history consisting of four court outcomes occurring in 2002, 2003, 2017 and again in 2017 for trafficking ecstasy and heroin.
In 2002, he had been placed on a community based order without conviction for unlawful assault and intentionally causing injury. The applicant has not ever previously been sentenced to a term of immediate imprisonment.
Applicant’s submissions
Mr Marsh, on behalf of the applicant, submits that there are a number of matters in combination that demonstrate exceptional circumstances, and though conceding that the offending is serious and that a substantial sentence would be imposed if found guilty, has submitted that the case against the applicant on the charge of murder is not strong.
Witness evidence
In support of that contention, he notes the content of the statement of Peng, who it is assumed, is the prime prosecution witness. Peng was present during discussions that preceded the fatal assault and formed the view that those present did not intend to harm the deceased, but only to remonstrate with him. Peng did not observe the applicant assaulting the deceased with any weapons and said that it was someone other than the applicant, who had brought the machete to the house. Others, indeed, may have inflicted the fatal wound on the deceased as Ms Gurry, on behalf of the respondent, conceded and this case may become a case more concerned with issues of complicity.
Previous offending and bail compliance
Mr Marsh also pointed out that, while the applicant has a criminal history, including for drug trafficking, he has no prior history of offending while on bail, and that is also conceded by the respondent. He was not subject to charges in any other matter at the time of the alleged offending.
Family support and accommodation
The applicant relies on family support and stable accommodation with his parents, and his mother gave evidence on this application through an interpreter. Though divorced, the applicant’s parents live together in a property owned by the applicant’s mother in Epping, and the applicant’s father is said to act as the applicant's carer.
It is said that his father assists the applicant with various things, including cooking, cleaning, prompting him to eat meals, buying groceries and ensuring he takes his medication.
Surety
It is significant that the applicant also relies on the provision of a substantial surety, if bail were to be granted. Ms Le, his mother, offers a surety of $700,000, being the equity in her property in Epping.
Support pension
As I indicated earlier, the applicant has a schizoaffective disorder, and he is eligible for a disability support pension. Dr Saravanan gave evidence on this application and had written accordingly on 23 August 2022.
Compliance with medical treatment
The applicant also relies on his past compliance with treatment in support of the application. He was, it is argued by Mr Marsh, largely compliant with voluntary treatment, although Dr Saravanan notes that he attended for his depot injection appointments from time to time, was late and missed some medical review, but nonetheless attended.
Court Integrated Services Program (CISP)
The applicant was referred to the Court Integrated Services Program (‘CISP’), but declined to participate, and so he has been effectively found unsuitable for their support.
Delay and likely sentence
An important part of the application is the delay that is likely to occur in this case. The next committal mention is 2 November 2022.
The applicant contends that given the pressure of business both in the Magistrates’ Court and in this Court, he would be unlikely to receive a trial date before 2024 and that is not accepted necessarily by the respondent, who thinks that it might occur by the end of next year, that is 2023. No one says that the period on remand would be longer than the sentence likely to be imposed, if the applicant were to be found guilty of the offences with which he is charged.
COVID-19 and onerous conditions of custody
Reliance is also placed by the applicant in the material on the consequence of COVID-19 and the onerous conditions that apply in custody, and I previously made observations about that, and it is sufficient for me to say that I acknowledge the difficulties for prisoners during the course of the pandemic.
Imposition of bail conditions
And finally, it is argued that any risk can be ameliorated by the imposition of conditions.
Respondent’s submission
Ms Gurry, on behalf of the respondent, has opposed the application for bail and says that in effect, there are no exceptional circumstances sufficient to justify a grant of bail. And even if there were, she says, the applicant would be an unacceptable risk.
In relation to the strength of the prosecution case, it has been submitted that the case is not a weak case, notwithstanding the brief of evidence has not yet been served and has not yet been disclosed.
Consideration
In the course of the application and in the course of debate, a number of things became clear.
Evidence for conviction for murder
Firstly, as things presently stand, there is no evidence that the applicant inflicted the wound that caused the death of the deceased.
The best that can be said is the applicant may have done it because he was present, but there is no direct evidence that he did. No witness gives evidence that he did and he does not admit it. To the extent that the Crown’s case will depend, therefore, on evidence of complicity in relation to the offence of murder, it also seems to me with great respect, that there is no evidence which incriminates the applicant as being part of an enterprise or agreement, or part of an understanding that the deceased would be murdered, which is what would be necessary for him to be implicated on the basis of complicity.
There may well be other offences of which the applicant could be convicted, including quite serious assaults, intentionally cause injury, perhaps even intentionally cause serious injury, but as things presently stand, I am unable to see any evidence on what has been put before me, which would underpin a conviction for murder.
Ability of the applicant’s parents to exercise control
The respondent concedes that there is no history of breaches of bail. The respondent is dubious in those submissions about the degree to which the elderly parents of the applicant will be able to exercise any control over him.
Delay
Ms Gurry also effectively argues that the delay, which is certain, is not of itself inordinate and also, in the written material, the respondent argues that the applicant’s conditions in custody are not unique to any person in his position, which rather avoids the issue with great respect.
Unacceptable risk
In relation to the charge of murder, it is argued that the applicant poses an unacceptable risk of endangering the safety and welfare of a person or persons, and the safety and welfare of the family of the deceased.
I am not clear if there is any significant evidence that would demonstrate that there is a significant prospect that he would interfere or obstruct the course of justice.
Conclusion
Exceptional circumstances
On the evidence before me, I am satisfied that exceptional circumstances are established by combination of four factors, not necessarily in order of priority:
(a)the substantial surety which is offered on behalf of the applicant and the willingness of the applicant’s mother to ensure that the applicant resides with her and her ex-husband at their address;
(b)I regard at the present stage, the evidence for the charge of murder as effectively non-existent. That may change, but I do not adhere to the approach that we should wait and see how it develops at the committal. The evidence as it presently stands, is conceded to be deficient on the charge of murder, although Ms Gurry did argue that with some effort, inferences could be drawn. With the greatest of respect, I do not see how any inference could be drawn on the evidence which would implicate the applicant in the charge of murder;
(c)I am persuaded that the applicant can be properly treated and supervised in the community for his schizoaffective disorder, and it would be a condition of his bail that he be so treated; and
(d)in my view, the delay, whilst of itself perhaps not inordinate, will be a delay of the order of some two years and potentially longer.
Unacceptable risk
In relation to the risk, the submissions are not based on anything the applicant has done particularly, but what he might be motivated to do given his circumstances.
I am not persuaded by the respondent that the risk, which is implicit in the release of anyone on bail, could not be mitigated by the imposition of strict conditions and I will impose what I consider to be reasonably strict conditions to avoid the risk. The applicant should know, and he will be no doubt told by his counsel, that a breach of these conditions will result in his immediate return to custody.
Decision
I order that the applicant be released on bail with a surety of $650,000, on his own undertaking and on a number of conditions:
(a)The said Chi Thanh Nguyen (‘the applicant’) reside at [redacted] in the State of Victoria (‘place of residence’);
(b)The applicant remain in those premises between the hours of 10:00 pm and 7:00am each day and that he only leave during those hours if in the company of either or both of his parents;
(c)On each Monday, Wednesday and Saturday, the applicant report to the Officer in Charge or his or her delegate at the Epping Police Station;
(d)The applicant not contact any witness for the prosecution at any stage with the exception of the informant;
(e)The applicant surrender to the informant his passport or any other travel documents in his name or under his control and that he do that within 24 hours of his release on bail;
(f)The applicant not attend any points of international departure;
(g)The applicant not leave the State of Victoria;
(h)The applicant obey all lawful directions of Dr Sankara Saravanan or his delegate;
(i)The applicant not consume any drug identified under the Drugs, Poisons and Controlled Substances Act1981 (Vic);
(j)The applicant not drink alcohol at any stage whilst on bail;
(k)The applicant not drive a motor vehicle;
(l)The applicant appear at the Melbourne Magistrates’ Court for committal mention on 2 November 2022 and thereafter as directed by that court.
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