Re Ning
[2020] VSC 609
•17 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0210
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by XIAO YIN NING |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 September 2020 |
DATE OF RULING: | 17 September 2020 |
CASE MAY BE CITED AS: | Re Ning |
MEDIUM NEUTRAL CITATION: | [2020] VSC 609 |
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CRIMINAL LAW — Application for bail — Charges of trafficking in a large commercial quantity of a drug of dependence and negligently dealing with the proceeds of crime — Applicant alleged to be one leader of drug syndicate — Chinese citizen on bridging visa — Potential delay of three years — Sole caregiver of two infants — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R van de Wiel QC | Berrigan Doube Lawyers |
| For the Respondent | Mr G Hayward | Office of Public Prosecution |
HIS HONOUR:
This is an application for bail by Xiao Yan Ning (the ‘applicant’).
On 1 July 2020, the applicant was arrested at her residence in Kingston Beach, Tasmania. She was later charged with trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) contrary to s 71 of the Drugs, Poisons and Controlled Substances Act1981 (Vic) and negligently dealing with the proceeds of crime. The charges arise from her alleged involvement in a large-scale, drug-trafficking syndicate.
On 3 July 2020, the applicant was extradited to Victoria. She was then remanded in custody and is at the Dame Phyllis Frost Centre (‘DPFC’). She has remained in custody since that date.
On 17 July 2020, the applicant applied for bail in the Melbourne Magistrates’ Court. The application was adjourned, part heard, to 16 August 2020. On 17 August 2020, after further hearing, bail was refused on the basis that the applicant failed to establish exceptional circumstances that would justify the grant of bail. She was also deemed to be an unacceptable risk failing to surrender into custody in accordance with conditions of bail.
On 31 August 2020, the applicant filed an application for bail in this Court. The matter is at a very early stage, being next listed for mention on 4 November 2020 in the Melbourne Magistrates’ Court. There are still investigations going on. Service of the hand-up brief has been extended to 12 January 2021, and the committal hearing is listed for 12 April 2021.
As I understand it, given the County Court’s relisting schedule for matters committed after January 2021, there is a significant risk that a trial in this matter would not occur in the County Court before the latter half of 2022, with the potential to be further delayed until 2023.[1]
[1]County Court of Victoria, ‘Revised Relisting Schedule of Melbourne Criminal Trials commencing in January 2021’ (3 September 2020).
Mr Hayward, for the respondent, submitted that the matter was of sufficient significance for it to be heard in this Court, which may shorten the delay. However, I can make no assumptions about whether the matter would be properly brought before this Court nor whether doing so would result in a lesser delay — that is a matter for the Principal Judge. I do note, however, that the County Court regularly deals with complex drug trials like this as a matter of course and it is not immediately obvious why the matter should be heard in this Court.
As matters presently stand, the delay is likely to be of the order of two to three years. I will return to this in due course.
The alleged offending
In February 2020, an investigation into a Chinese/Malaysian drug-trafficking syndicate operating throughout Victoria and Tasmania was commenced by the Victoria Police Clandestine Laboratory Squad. The investigation utilised electronic and physical surveillance techniques to monitor the activities of persons believed to be involved in the syndicate.
There are 15 co-accused who have been charged as a result of the investigation: Eng Beng Koh (‘EB Koh’), Yining Tao, Soo Phing Chew, Kag Lai Lim, Hang Kwok, Yew Kean Koo, Time Foo Cheah, Cyrene Liew, Wei Boo, You Pou Chan, Eng Kok Koh, Zheng Kuay, Chexmang Wong, Swee Chin Lim, and Hanyin Zhang. Of those persons charged, it is the Crown case that Mr EB Koh, Mr Tao and the applicant are the syndicate leaders. Mr EB Koh is also the applicant’s partner and the father of her two children.
Evidence obtained throughout the investigation established that the syndicate has been operating a sophisticated and large-scale criminal enterprise since at least 2018 and possibly earlier. The syndicate’s activities are alleged include importing over five tonnes of pre-cursor chemicals, operating numerous clandestine laboratories for the manufacture of methylamphetamine, and laundering money through bank accounts and businesses controlled by the syndicate.
More recently, it is alleged that the syndicate was operating poultry farms and rural labour organisations as a means to legitimise income from criminal activity. It is alleged that the syndicate used vulnerable persons working on the farms to ‘housesit’ the clandestine laboratories. It is the Crown case that the applicant and Mr Tao are the two main persons in charge of the syndicate’s business finances. There is evidence of regular communication between them with respect to the movement of funds between business and individual bank accounts.
As a result of information obtained from the investigation, 23 search warrants were executed at properties across Victoria and Tasmania between 10 February 2020 and 30 June 2020. Numerous clandestine laboratories were discovered and various items seized, including scientific glassware and equipment; rotary evaporators (commonly used in the manufacture of methylamphetamine); over 25 kilograms of methylamphetamine; hydroponic equipment (commonly used in the cultivation of cannabis); cannabis; large amounts of cash; mobile phones; vehicles; and jewellery.
During the course of an execution of a search warrant at a residential property in Tarneit on 10 February 2020 (where an active clandestine laboratory was discovered), police located a delivery receipt attached to a box that was addressed to the applicant at one of her former residential addresses. The mobile number listed on the receipt was also in the contacts of the mobile phone belonging to one of the co-accused who was arrested at the property.
Following the execution of a search warrant at another address in Tarneit on 7 May 2020 (where another active clandestine laboratory was discovered), police identified a fingerprint on a bottle of sake that was matched to Mr EB Koh. That evening, it is alleged that Mr EB Koh contacted the applicant to give her a “coded warning” about the raid and instructed her not to call him. This conversation was recorded by a telephone intercept.
Insofar as the applicant is alleged to have been involved in the syndicate, it is the Crown case that she was the person responsible for purchasing various items for the clandestine laboratories, including scientific glassware, pre-cursor chemicals and at least one rotary evaporator. In addition, it is alleged that the applicant generated invoices for the syndicate’s businesses to facilitate the laundering of money.
In support of those allegations, the Crown relies on, among other things, intercepted coded conversations between the applicant and other alleged syndicate members, including Mr EB Koh; AUSTRAC records relating to the alleged purchase of a rotary evaporator on 3 May 2018; call charge records from the applicant’s phone to ‘Aurora Cleaning Supplies’ (allegedly facilitating the purchase of pre-cursor chemicals); and documents seized at a Mont Albert property under warrant, including receipts for acetone and scientific glassware, and instructions for setting up the glassware.
A search warrant was executed at the applicant’s residence in Tasmania on 1 July 2020, at which time the applicant was found in possession of a bankcard in the name of her sister, Fei Fei Ning. The bankcard was connected to an account with $150,000, which was frozen following the applicant’s arrest. It is believed that the applicant may have been using her sister’s identity to open bank accounts and enter loan agreements prior to her arrest.
The applicant
The applicant is 35 years of age. She is a Chinese national who has been residing in Australia since 2004. In June 2018, the applicant applied for a student visa and, she is currently on a bridging visa, pending the determination of that application.
Since arriving in Australia, the applicant has undertaken a number of courses and has completed studies in graphic design, a Master of Accounting and a Diploma of Accounting. At the time of her arrest, the applicant was working for an egg-farming company, ‘Spring Ranch Pty Ltd’, based in Beauchamp. She assisted with bookkeeping and payroll tasks.
In 2017, the applicant became romantically involved with Mr EB Koh. They later had two children together, one aged two and a half years, and the other is ten months. The children are Chinese citizens
At the time of her arrest, the applicant was residing in Kingston Beach, Tasmania with the children and their paternal grandmother. Following her arrest, the children initially remained in the care of their paternal grandmother. However, that arrangement ended as their grandmother was not in a position to properly support them. The children are now in the care of the Department of Health and Human Services (‘DHHS’) and have been residing with a foster family since 13 July 2020.
The applicant’s immediate family all remain in China.
The applicant has no criminal history and no other outstanding matters.
The applicable legislation
The applicant is entitled to bail unless the Bail Act 1977 (the ‘Act’) requires the Court to refuse bail.[2] In the present application, because the applicant is charged with a Schedule 1 offence under the Act,[3] the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[4] The burden of satisfying the Court as to the existence of exceptional circumstances rests with the applicant.[5]
[2]Bail Act 1977 (Vic) s 4 (‘Bail Act’).
[3]Specifically, trafficking in a large commercial quantity of a drug of dependence. See the Act sch 1 item 6(a).
[4]Bail Act ss 4AA(1) and 4A(1A).
[5]Ibid s 4A(2).
In considering whether exceptional circumstances exist, the Court is required to take into account the ‘surrounding circumstances’, including those listed in s 3AAA of the Act.[6]
[6]Ibid s 4A(3).
To reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant ‘must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’.[7] Exceptional circumstances may be established by reason of a single exceptional circumstance, or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case or undue delay in bringing the matter to trial.[8]
[7]Re CT [2018] VSC 559 [64] (‘Re CT’) citing Re Sam [2017] VSC 91.
[8]Re CT [65] Re Fairest [2015] VSC 375.
If satisfied as to the existence of exceptional circumstances, the Court must then apply the ‘unacceptable risk test’.[9] That is, pursuant to ss 4E(1) and (2) of the Act, the Court must refuse bail if satisfied by the respondent that there is an unacceptable risk that the applicant would, if released on bail –
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
[9]Bail Act ss 4A(4) and 4D(1)(a).
To determine whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable.
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B of the Act.[10]
[10]Bail Act s 1B(2).
The applicant’s contentions
In support of the grant of bail, the applicant relied on a number of factors to establish the existence of exceptional circumstances. In particular, the applicant relied on the inordinate delay before this matter could be finalised as well as the hardship experienced by the applicant and her infant children as a result of their separation.
Delay
Counsel on behalf of the applicant contended that there will be a lengthy and significant delay in bringing this matter to trial. The committal hearing is currently listed on 12 April 2021 for a 10-day estimate for all co-accused. Counsel, on behalf of the applicant, intimated that it would be unlikely, given the volume of evidence yet to be analysed, that the hand-up brief will be ready by January 2021, which will occasion further delays in the committal’s progression.
As I observed above, a trial in the County Court of this matter is not likely to commence until, at the earliest, mid-2022 or into the middle of 2023.
Hardship on the applicant and her children
As previously stated, the applicant has two infant children who are in the care of DHHS pursuant to a voluntarily care agreement. Correspondence from the DHHS, exhibited to the written materials filed in support of the application, stated that, if the children cannot be reunited with the applicant in Victoria, they are exploring the option of repatriating the children to live with family in China, Malaysia or Singapore.
The applicant applied for the children to reside with her at DPFC as part of the Living with Mum Program, but the application was rejected on 17 August 2020.
It is submitted on the applicant’s behalf that her inability to care for her children weighs heavily upon her while in custody, together with broader concerns relating to the uncertainties associated with the current health crisis. I regard these matters as significant.
Seriousness of the alleged offending and strength of the prosecution case
While it was conceded that the principal charge is a significant example of its kind, it was noted that the allegations are denied by the applicant. Counsel for the applicant submitted that there is no evidence to establish that the applicant had any knowledge or involvement in trafficking, particularly in the quantity alleged. That somewhat simplistic view does not do justice to the extent of the investigation.
Stable accommodation
The written materials filed in support of the proposed three residences that are available to the applicant should bail be granted.
First, she is able to return to live with Mr EB Toh’s mother at 1/28 Mount Royal Road, Kingston Beach in Tasmania. Notwithstanding the current border closure between Victoria and Tasmania, the written material states that the applicant would be permitted to return to Tasmania, although she would be required to undergo a two-week quarantine.
Second, the applicant is able to reside at 3/63 Winfield Road, Balwyn North. The property is owned by Ying Ye, who has confirmed that the house would be available to the applicant and her children.
Third, the applicant can reside at 11 Kingsley Crescent, Mont Albert. This property is owned by a Meizhen Chen who resides in China. Counsel for the applicant stated in his submissions that Ms Chen is a close friend of the applicant’s mother and that the applicant and Mr Koh have previously resided there from time to time. The applicant’s former solicitor deposed to confirming with Ms Chen’s legal representatives that the property would be vacant and available for the applicant and the children until 30 November 2020.
It was acknowledged by the applicant that it is preferable for her to remain within the jurisdiction and, to this end, the applicant relied primarily on the Mont Albert address — despite the fact it is only available until 30 November 2020. It was submitted that, if the Court did not find this address to be appropriate, the other proposed addresses should be considered.
Surety
The written materials indicated that a family friend, Wei Wei Lu, is willing to provide a surety. However, after noting that the proposed surety resides in China and is unable to return to Australia as a result of the current health crisis, no surety was ultimately proposed. No further submissions were made on this issue in the hearing of the application.
Unacceptable risk
While it was conceded that there is some risk that the applicant could leave the jurisdiction for China, it was submitted that this risk is fettered by logistical challenges. Specifically, the current health crisis has resulted in reduced flight schedules such that the applicant’s ability to return to China would be significantly impeded.
To further mitigate the risk, it was proposed that the applicant would surrender her passport and her children’s passports at the earliest opportunity.
The respondent’s contentions
The respondent opposed bail on the basis that the applicant has failed to demonstrate exceptional circumstances justifying the grant of bail and that there exists an unacceptable risk that the applicant would obstruct the investigation and/or flee to China.
Strength of the prosecution case
Counsel on behalf of the respondent contended that the prosecution case against the applicant is not a weak one. It was submitted that the investigation is still ongoing and, while there remains significant outstanding evidentiary analysis to be undertaken, the investigation has already uncovered further evidence of the applicant’s connection with the syndicate. The respondent submitted that, even at this early stage, the following evidence corroborates the applicant’s knowledge of the drug trafficking and the large commercial amounts:
·the applicant’s links to various syndicate members;
·the links of both the applicant and other syndicate members to various properties where large amounts of methylamphetamine and pre-cursor chemicals were seized;
·the coded warning from co-accused EB Koh to the applicant following the execution of a search warrant on 7 May 2020;
·the movement of substantial amounts of money to and from syndicate members;
·the purchase of large equipment, including the rotary evaporator, and significant quantities pre-cursor chemicals; and
·possession of instructions regarding setting up scientific glassware.
Accommodation
It was submitted that none of the proposed addresses are suitable.
First, inquiries made by the informant with respect to the applicant’s former residence in Kingston Beach have revealed that the owner of the house is in the process of applying to regain possession of the property, and it will not be available for lease.
Second, it was submitted that little is known about the Balwyn North address or the owners. The informant gave evidence that Mr Ye is the husband of Yiyi Yao, who is a co-director of a labour hire company alongside the applicant. The legitimacy of this company is the subject of investigation and a bank card for this company was located in the possession of Mr Kuay, another co-accused, at the time of his arrest.
Third, with respect to the Mont Albert address, the informant gave evidence that the applicant and Mr EB Koh previously resided there between 2017 and 2018. He stated that investigators believe that the applicant and Mr EB Koh may have used Ms Chen’s details to purchase the property without her knowledge. Inquiries into these matters are ongoing. The informant also stated that investigators have been unable to confirm any information in relation to Ms Chen other than the fact she resides in China. I also note that this address was the subject of a search warrant in relation to the present alleged offending, and a tub was seized from the property containing a number of the applicant’s personal documents and documents that are alleged to relate to drug trafficking.
Hardship on the applicant and her children
In relation to the applicant’s children, counsel for the respondent submitted that the information provided by the DHHS states that her children are doing well with their foster carers and are reportedly building an attachment with the family. In the longer-term, he acknowledged that one plan was to have the children live with family in China, but he contended the DHHS are also considering transferring the children into care in Victoria. If that were to occur, he submitted, the applicant could then appeal the decision of Corrections regarding the Living with Mum Program, or visits could be facilitated with the children.
Delay
Counsel on behalf of the respondent submitted that it was too early to speculate as to the delay. Counsel further submitted that a three-year delay would not be inordinate in circumstances where the prosecution case is strong, such that there is no reasonable likelihood of acquittal, and where possible sentences that would be imposed if the applicant were to be found guilty of these offences are substantial.
Unacceptable risk
In relation to the applicant’s risk, the respondent submitted that the applicant may attempt to hinder the ongoing investigation if she were granted bail, including by contacting offenders who are ‘on the run’. Further, it was submitted there was an unacceptable risk that the applicant would flee to China and relied on the following matters:
·The applicant is a foreign national who engages in regular international travel;
·The applicant has previously had access to large sums of money and assets and appears to be able to access funds even when her bank accounts are frozen;
·The applicant has requested that her children live in China, which would sever her most significant ties to the jurisdiction;
·The applicant is alleged to have been working in breach of her visa conditions, which may be telling with respect to her likelihood of complying with conditions of bail;
·The applicant’s alleged possession of false work references and pre-stamped blank pages;
·The applicant’s apparent willingness to use other’s identification, including alleged use of a co-accused’s Medicare card and the possession of a bank card in her sister’s name; and
·The serious nature of the charges against the applicant, which carry a maximum term of life imprisonment.
Analysis
In determining whether the applicant has established the existence of exceptional circumstances justifying a grant of bail, I have considered the following relevant surrounding circumstances as raised by the parties.
The offences alleged against the applicant are very serious. The applicant is alleged to be a key member of a drug syndicate involved in trafficking a large commercial quantity of drugs over a period of at least two years. I regard the case against the applicant as a reasonably strong one. There does appear to be a valid distinction to be made between the case against the applicant as opposed to the case against some of her co-accused, as the evidence of her involvement seems to be substantially circumstantial. But that is not to say that it is a weak case. It is a very early stage to be making any meaningful assessment, particularly as the investigation is presently ongoing with forensic analysis of other evidence still outstanding.
In relation to the applicant’s personal circumstances, the applicant’s lack of prior criminal history and the fact that she has two infant children are highly relevant to the question of bail. Counsel for the applicant emphasised the importance of the relationship between a parent and child at a young age and that proposition is, in my view, incontestable.
As previously stated, the likely period that the applicant would spend on remand if bail were refused may be approaching three years or more. Although any sentence imposed on the applicant if found guilty of the present offences would likely well exceed that time, it does not follow that the delay is not inordinate. As I have made clear in my earlier rulings made after a State of Emergency was declared in relation to COVID-19 in Victoria, a period of pre-trial custody of that order may ‘well and truly’ demonstrate exceptional circumstances.[11]
[11]See eg Re Broes [2020] VSC 128; Re McCann [2020] VSC 138; Re Assaad [2020] VSC 561.
In my opinion, that delay together with the issue about the future of the applicant’s two young children and her lack of criminal history are sufficient to establish exceptional circumstances that would justify a grant of bail. That, however, is not the end of the matter.
Turning to the question of whether there is an unacceptable risk in releasing the applicant on bail, I must consider whether the respondent has established that there is a risk that the applicant would interfere with witnesses, obstruct the course of justice, or fail to surrender into custody and that the risk is unacceptable.
In relation to the risk of interference with witnesses, I found the informant’s evidence on this topic somewhat imprecise, which is not to be critical. The written materials referenced the possibility that the applicant might access and dispose of identified assets of the syndicate and, in his evidence on the application, he described nothing more tangible than a risk of contact with other offenders, some of whom are not yet charged. While it can be appreciated that these other individuals are still the subject of investigation, and the informant may be circumspect in the details, there is no evidence before this Court as to the actual existence of this risk.
However, as to the risk of flight, the respondent has expressed serious concerns, noting that the applicant is a Chinese national with all immediate family residing in China and has no other ties to the jurisdiction, save for her partner and children.
The issue of flight was recently considered by Beale J in the matter of Re Biba [2020] VSC 536. In that case, the applicant was an Albanian citizen with the majority of his family residing in Albania, the applicant and his brother had arrived in Australia on a false passports, and his brother had been recently accused of using a false passport in the context of another offence. In those circumstances, Beale J found that there were exceptional circumstances justifying the grant of bail but refused bail on the basis that the applicant was an unacceptable risk of flight. In making his determination, his Honour referred to what the Court of Appeal said in Barbaro v CDPP (2009) 20 VR 717:
[I]t is relevant that the risk under consideration is a risk of flight overseas. Objectively, that is a graver risk than in the typical case where the applicant for bail would have no capacity for flight beyond (say) country Victoria. First, the prospects of recapture are greatly reduced in the case of a person who might be anywhere in the world. Secondly, the cost and complexity of a worldwide search is far greater. These matters are properly brought to account in the assessment of (un)acceptable risk.[12]
[12](2009) 20 VR 725 [31].
However, I must consider how likely the risk of flight is. In this case, the applicant is a Chinese citizen on a bridging visa in this country. She holds a Chinese passport as I assume do her two very young children. The respondent’s concern is that she will flee to China, but it is not clear to me how she would do that. It is true that she may be inclined to use more than one identity but, in order to leave Australia, she would need to arrange another foreign passport for herself — whether in her name or someone else’s — and, provided she was taking her children with her, for them too. Under the present circumstances travel out of Australia is more difficult than it has been. Whether there is evidence to suggest that the applicant either had the capacity to do these things herself or had people around her to assist her to do so, aside from access to money (which has been since frozen), it was not presented on this application. Indeed, it was conceded by the informant, in response to questions from me, that it was not clear how it would be feasible for the applicant to do so.
I accept that the seriousness of the charges and the potential penalties involved may give the applicant an incentive to flee, but the respondent has not discharged their onus to establish that the applicant presents an unacceptable risk of interfering with witnesses, obstructing justice or failing to surrender in accordance with bail, especially having regard to potential conditions of bail that might be imposed on her.
I have therefore come to the conclusion that with appropriate conditions, the risk in releasing the applicant on bail is not unacceptable.
Conclusion
The applicant will be admitted to bail on her own undertaking and with the following conditions:
1)Prior to her release on bail, the applicant is to arrange for the surrender of any passport or travel document in her name or under her control, and of any nationality, and any passport or travel document in her children’s names to the informant or their nominee and is not to apply for any other such documents until further order;
2)The applicant is to reside at 11 Kingsley Crescent, Mont Albert in the State of Victoria ('place of residence’) and must not change her place of residence without first giving seven days’ notice to the informant or their nominee;
3)The applicant is not to be absent from her place of residence between the hours of 9 pm and 6 am each day (the ‘curfew hours’);
4)The applicant is to present herself at the front door of her place of residence during the curfew hours upon the request of a member of Victoria Police;
5)The applicant is to report to the Officer in Charge, or their nominee, at the Box Hill Police Station every Monday, Wednesday and Friday between the hours of 9 am and 6 pm, but such reporting is suspended until the informant has notified the applicant that in-person reporting has resumed;
6)The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant;
7)The applicant is not to contact or associate with, either directly or indirectly, any of her the co-accused, except for Eng Beng Koh and only then in relation to their children;
8)The applicant is not to possess or use more than one mobile phone;
9)The applicant is to:
(a)provide the informant with:
(i)the phone number, IEMI number and any password or PIN of that phone within 24 hours of first having access to that phone; and
(ii)any change of password or PIN of the phone within 24 hours of that change.
(b)produce the phone for inspection upon the request of any member of Victoria Police; and
(c)provide any password or PIN for the phone upon request of any member of Victoria Police;
10)The applicant is not to leave the State of Victoria;
11)The applicant is not to attend at any international points of departure; and
12)The applicant is to appear at the Melbourne Magistrates’ Court on 4 November 2020 and thereafter as directed by that Court.
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