Re Zayneh (No 2) - [2024] VSC 374

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0124

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by Danny ZAYNEH

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2024
DATE OF RULING:	28 June 2024
CASE MAY BE CITED AS:	Re Zayneh (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 374

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CRIMINAL LAW – Bail – Applicant charged with conspiracy to import 1.6 tonnes of border-controlled drugs and other offences – Schedule 1 offences – Applicant previously refused bail – New facts or circumstances – Likely 5 year delay before trial, possible 6 year delay before trial – Requirement to show exceptional circumstances – Exceptional circumstances established by delay alone – Whether applicant an unacceptable risk – Risk of applicant failing to answer to bail – Risk rendered acceptable by delay – Bail granted – Stringent conditions – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5, 5AAA, 18, 18AA, 18AH.

HUMAN RIGHTS – Right to be brought to trial without unreasonable delay – Bail – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7, 21, 25, 32.

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APPEARANCES:	Counsel	Solicitors
For the applicant	E Kelly	Lewenberg & Lewenberg
For the respondent	B Stevens with B Kerlin	Commonwealth Director of Public Prosecutions

HIS HONOUR:

A. Introduction

The applicant, Danny Zayneh (“Zayneh”), has been charged with serious criminal offences involving conspiring to import and trafficking of commercial quantities of drugs, dealing with proceeds of crime and possessing a handgun without a licence. He was arrested on 7 June 2021 and has been on remand since that date.
Zayneh has previously made 2 unsuccessful applications for bail in the Magistrates’ Court of Victoria in December 2021 and July 2022 respectively.
On 5 July 2023, Zayneh filed a notice of intention to make an application for bail in this court, which application was heard on 9 August 2023 (“the August 2023 Application”). That application was also refused.[1] At the time the August 2023 Application was heard, a trial was not expected to commence until 2025, with a trial in 2026 “a real possibility”, meaning that Zayneh was likely to spend a period of at least 4 years on remand awaiting trial.[2] On the basis of delay alone, Beach JA was satisfied that Zayneh had established exceptional circumstances justifying the grant of bail.[3] However, Beach JA considered there was an unacceptable risk that, if released on bail, Zayneh would fail to surrender into custody in accordance with the conditions of bail, and that the delay, though significant, was not yet of such a magnitude as to render that risk acceptable.[4]
[1]Re Zayneh [2023] VSC 470.
[2]Ibid, [33]-[34].
[3]Ibid, [36].
[4]Ibid, [41]-[42].
Zayneh appealed that decision on the basis that Beach JA’s finding that the Commonwealth Director of Public Prosecutions (“the Director”) had established that Zayneh posed an unacceptable risk was unreasonable.[5] Though recording serious concerns about the existing and potential further delay in the proceeding,[6] the Court of Appeal dismissed the appeal, determining that the conclusion reached by Beach JA was reasonably open.[7]
[5]Zayneh v The King [2023] VSCA 311.
[6]Ibid, [5]-[6] (Walker, Taylor and Boyce JJA).
[7]Ibid, [44]-[45].
Zayneh subsequently sought special leave to appeal to the High Court of Australia. In April 2024, that application was refused.[8]
[8]Zayneh v The King [2024] HCASL 103.
Zayneh now makes a further application for bail on the basis that new facts or circumstances have arisen since the refusal of the August 2023 Application; namely, the existence of further delay in the proceeding.
Certain of the charges faced by Zayneh at the time of the August 2023 Application have since been discontinued and replaced by charges relating to the same offending, but with a different statutory basis.[9] As such, the charges the subject of the present application are as follows:[10]
(1)Two charges of conspiring to import a commercial quantity of a border controlled drug, contrary to sections 11.5(1) and 307.1(1) of the schedule to the Criminal Code Act 1995 (Cth) (“the Criminal Code”) (“Charges 1 and 2”).
(2)Dealing with money that was, and was believed to be, proceeds of crime, contrary to section 400.6(1) of the Criminal Code (“Charge 4”).
(3)Trafficking in a quantity of a drug of dependence not less than the large commercial quantity applicable to that drug, contrary to section 71(1) of the Drugs, Poisons and Controlled Substances Act 1991 (Vic) (“Charge 6”).
(4)Possessing an unregistered general category handgun contrary to section 7B(1) of the Firearms Act 1996 (Vic) (“Charge 7”).
[9]Compare Re Zayneh [2023] VSC 470, [1] (Beach JA).
[10]The Bail Act 1977 (Vic) applies to Zayneh‘s application by virtue of s 68(1) of the Judiciary Act 1903 (Cth).
The charges that were on foot at the time of the August 2023 Application, but have since been discontinued, included:
(5)Trafficking in a commercial quantity of a controlled drug, contrary to section 302.2(1) of the Criminal Code (“Charge 3”).
(6)Possessing a registered general category handgun for purposes other than the purpose of collecting, without being the holder of a licence, contrary to section 7(1) of the Firearms Act (“Charge 5”).
In support of this application, Zayneh relied on a number of the same factors relied on in the August 2023 Application to establish exceptional circumstances justifying the grant of bail. These included, but were not limited to, issues with the prosecution case, his limited criminal history and record of compliance with earlier bail conditions, the availability of a significant bail guarantee, the availability of stable accommodation and employment, personal circumstances including medical conditions suffered by Zayneh and members of his family, the impact of and the delay caused by the COVID-19 pandemic, and the significant length of time he is likely to spend on remand if bail is refused. He also submitted that the delay in the proceeding had reached such an unacceptable level that any unacceptable risk that was said to have existed at the time of the August 2023 Application must now necessarily be considered to have been rendered acceptable.
The Director opposed the application for bail on the basis that Zayneh had not established that any new facts or circumstances had arisen since the August 2023 Application. In the alternative, the Director did not seek to challenge Zayneh’s submission that exceptional circumstances existed, but opposed bail being granted on the basis that Zayneh posed an unacceptable risk of failing to surrender into custody in accordance with the conditions of bail, interfering with witnesses and endangering the safety or welfare of any other person, including by committing further offences. It was submitted that even the most stringent conditions of bail could not ameliorate these risks to an acceptable level.
For the reasons that follow, Zayneh’s application for bail will be granted.

B. Background

B.1 The prosecution case and related proceedings

The case against Zayneh was summarised by Beach JA as follows:[11]
[11]Re Zayneh [2023] VSC 470, [5]-[10], [13].
The prosecution case is that [Zayneh] is the Australian head of a transnational organised crime syndicate which conspired to import commercial quantities of border-controlled drugs and trafficked commercial quantities of controlled drugs. It is alleged that [Zayneh] used the encrypted platform ‘An0m’ to organise, direct and facilitate the offences for which he is charged. This was done via both individual messaging and group chats to people both inside and outside Australia. The prosecution assert that the criminal enterprise directed by [Zayneh] was a sophisticated one which involved import ‘streams’, ‘cover-loads’, and ‘dry-runs’ to ensure that law enforcement efforts to intercept the drugs and identify the syndicate were frustrated.
In relation to [C]harge 1, it is alleged that, between 31 March and 7 June 2021, [Zayneh] conspired to import 600 kilograms of methamphetamine and 600 kilograms of cocaine from the [United States of America].
In relation to [C]harge 2, it is alleged that, between 31 March and 7 June 2021, [Zayneh] conspired to import 400 kilograms of methamphetamine from India.
In relation to [C]harge 3, it is alleged that, between 7 April and 7 June 2021, [Zayneh] trafficked four kilograms of methamphetamine in Melbourne.[12]
[Zayneh] was arrested at his premises on 7 June 2021. A search warrant was executed. The sum of $38,000 was allegedly found inside a coffee machine ([C]harge 4); and a Glock 17 pistol and ammunition were allegedly found under a tile in the patio ([C]harge 5).[13]
The prosecution asserts that the wholesale value of the three drug importations, had they been successful, was between $186 million and $700 million. The prosecution alleges that, for his part in the importations, [Zayneh] would have been entitled to ‘a significant percentage commission’, as well as ‘buying in’ 25 kilograms for his own distribution.
…
[Zayneh] has six co-accused. While the offences with which the co-accused have been charged are not identical, each co-accused has been charged with conspiring to import a commercial quantity of a border-controlled drug. On various dates in 2021, each of [Zayneh]’s co-accused made a successful application for bail.
(Original emphasis.)
[12]Charge 3 has since been discontinued and Charge 6 has been filed in its place: see pars 7-8 above.
[13]Charge 5 has since been discontinued and Charge 7 has been filed in its place: see pars 7-8 above.
The charges against Zayneh arose from a now well-known federal police operation referred to as Operation Ironside. That operation involved the development and subsequent distribution of encrypted devices equipped with the “An0m” messaging platform throughout organised crime networks by undercover police operatives. Recipients of the devices were led to believe that the An0m platform would enable them to communicate undetected by authorities, however, the contents of these communications were observable by police.[14]
[14]See further R v Okusitino [2024] NSWSC 143, [4]-[6] (Dhanji J).
Numerous arrests were made across Australia in connection with Operation Ironside in early June 2021 on the basis of evidence obtained through the monitoring of communications made using the An0m devices. This included the arrest of Zayneh and his co-accused.
At the hearing of the present application, counsel for the Director provided an update in relation to prosecutions of persons charged in connection with Operation Ironside. There are presently 16 accused subject to ongoing Commonwealth prosecutions in Victoria. In addition, there are 19 accused the subject of State prosecutions, of which 13 either are or have until very recently been in the “committal stage” of proceedings. Of those 13, 6 were committed for trial on 24 June 2024, with an initial directions hearing fixed for 16 July 2024. Another 5 of those 13 accused have had their committal hearing adjourned to 17 July 2024, at which time it is anticipated they will also be committed for trial.
There are also a number of ongoing prosecutions in New South Wales and South Australia arising out of Operation Ironside.[15] Challenges to the admissibility of evidence obtained using the An0m platform have resulted in significant delays in many of these proceedings, and the matter of admissibility of such evidence remains yet to be finally resolved in any jurisdiction, with any resolution either already or likely to be the subject of appeal.[16] There was no dispute that further substantial admissibility issues will almost certainly be raised in this jurisdiction.[17]
[15]See, for example, R v TB (2023) 413 ALR 514; R v Okusitino [2024] NSWSC 143, [41]-[42]; Kitanovski v The King [2024] NSWSC 732, [70]-[71] (Walton J).
[16]See, for example, R v TB: Questions of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82 (Livesey ACJ, Doyle and David JJA), a case decided on 27 June 2024 effectively dismissing a challenge to the admissibility of evidence obtained from the An0m platform. See also Kitanovski v The King [2024] NSWSC 732, [71]-[72]; R v Okusitino [2024] NSWSC 143, [42].
[17]As has already been observed by Judge Cahill: Director of Public Prosecutions v Williams [2023] VCC 717, [40]; Director of Public Prosecutions v James [2022] VCC 1603, [113].

B.2 Applicant’s personal circumstances

Zayneh’s personal circumstances were summarised by Beach JA as follows:[18]
[Zayneh] is 39 years of age. He is married and has a six year old son. His wife, son, and 64 year old widowed mother, have various health issues to which I will refer when dealing with [Zayneh]’s material and submissions on this application. [Zayneh]’s wife is employed by a bank. Significant assets held by [Zayneh], his wife and companies described as [Zayneh]’s corporate vehicles have been the subject of restraint orders made in the County Court.
[Zayneh] has a limited criminal history. In November 2008, he received a total effective sentence of two years and three months for the offences of trafficking in a drug of dependence, knowingly dealing with the proceeds of crime and possessing a drug of dependence, 18 months of which was suspended for two years.
[18]Re Zayneh [2023] VSC 470, [11]-[12].
Reference was also made to medical evidence disclosing psychological issues in relation to Zayneh’s son, serious physical health issues together with psychological issues suffered by Zayneh’s wife, and multiple health issues in relation to Zayneh’s mother.[19] Further, evidence of a serious medical condition suffered by Zayneh said to result in special vulnerability in custody was tendered on the August 2023 Application.[20]
[19]Ibid, [15].
[20]Ibid, [16(6)].
There was a large amount of evidence before Beach JA, both written and given orally.[21] All of this evidence was relied upon on this application. In light of the fact that none of his Honour’s findings (which are set out in these reasons at some length) were the subject of challenge (and, having read the evidence, understandably so), it is unnecessary to go into much of the detail.
[21]Ibid, [14], [20]-[21].
On this application, 3 further affidavits of Zayneh’s solicitor were relied upon and a further responsive affidavit was affirmed by the informant. Unlike during the hearing of the August 2023 Application, there was no cross-examination of any of the deponents.

C. New facts or circumstances

C.1 The new matters relied upon

As touched upon earlier, Zayneh’s application for bail was made on the basis that new facts or circumstances had arisen since the refusal of the August 2023 Application.
Pursuant to section 18(1) of the Bail Act 1977 (Vic), an applicant who has been refused bail and is in custody pending the hearing or trial of a charge may make a further application for bail.[22] Section 18AA(1) provides that a court must not hear an application under section 18 unless, relevantly, the applicant satisfies the court that “new facts or circumstances” have arisen since the initial refusal. However, nothing in sections 18 and 18AA derogate from the right of a person in custody to apply or appeal to this court for bail.[23]
[22]For completeness, it is noted that pursuant to s 18(3) of the Bail Act, subject to s 144(2)(c) of the Criminal Procedure Act 2009 (Vic), a further application for bail made under s 18(1) is to be made to this court in the case of a person charged with treason or murder, and in any other case, to the court to which the person is remanded to appear. Further, it was not reasonably practicable for Beach JA to hear this application: see Bail Act, s 18(4).
[23]Bail Act, ss 18AA(2), 18AH(1). See also Constitution Act 1975 (Vic), s 85(1); Supreme Court Act 1986 (Vic), s 5; Director of Public Prosecutions v Kanfouche [1992] 1 VR 141, 142.6 (Young CJ and Ashley J).
The only new facts or circumstances relied on by Zayneh concerned the further delay occasioned by developments in the proceeding since the hearing and determination of the August 2023 Application.
Due to significant complexities associated with the proceeding, both a “joint committal” for all matters arising out of Operation Ironside in Victoria and an “individual committal” for Zayneh and his co-accused were ordered.[24] Separate individual committals for other accused or groups of co-accused charged in connection with Operation Ironside are also scheduled or underway in Victoria at present. At the time of the August 2023 Application, the joint committal was scheduled to commence in September 2023 and it was expected that the individual committal for Zayneh and his co-accused would not be heard before 2024.
[24]These labels reflect the nature of the hearings, noting that there is only a single committal proceeding: Criminal Procedure Act, s 96.
A joint committal in relation to all Operation Ironside matters in Victoria, which was confined to technical evidence about the An0m platform, commenced on 18 September 2023. It was scheduled to take 20 days,[25] but only ran for 6 days before being adjourned due to witness unavailability. The joint committal resumed on 14 December 2023. However, it did not conclude as significant disclosure and public interest immunity issues arose during the course of the evidence of a particular witness identified as “CIN325”. The joint committal was again adjourned on 15 December 2023 to a date to be fixed pending the resolution of these issues. CIN325 was excused at that time on the express understanding that he may be required to be the subject of further cross-examination.
[25]Re Zayneh [2023] VSC 470, [25] (Beach JA).
On 22 December 2023, Zayneh’s co-accused Omar Dib (“Dib”) filed a witness summons addressed to the Australian Federal Police seeking production of various materials relating to CIN325. Public interest immunity claims were raised by the Commissioner of the Australian Federal Police in respect to the materials the subject of the summons. The matter was heard in late February 2024. The magistrate presiding over the matter reserved his decision.
At a special mention hearing conducted in early March 2024, Dib made an application to adjourn all individual committals for Operation Ironside matters until after the conclusion of the joint committal. The application was opposed by counsel for the Director, who raised concerns about further delays in the proceeding in circumstances where some accused were in custody. At the special mention hearing, Zayneh’s counsel noted that Zayneh wished to avoid delay, but acknowledged the individual committals could not conclude until all relevant evidence and disclosure from the joint committal was before the Magistrates’ Court. The adjournment application was ultimately refused.
On 12 March 2024, the individual committal for Zayneh and his co-accused commenced. Upon the conclusion of the evidence, the individual committal was adjourned to 8 May 2024 for submissions and any committal of the co-accused for trial.
One witness, an Australian Federal Police officer, was unavailable to attend for the purposes of cross-examination during the individual committal. Upon indication from Zayneh that he intended to make submissions on discharge but had not yet cross-examined this witness, the presiding magistrate suggested the witness might be cross-examined on application under section 198B of the Criminal Procedure Act 2009 (Vic) if Zayneh was committed to stand trial. In the interests of avoiding further delay in the proceeding, Zayneh did not oppose this course. By email to the Magistrates’ Court dated 10 April 2024, a representative of the Director advised that the witness was now available and proposed that he be cross-examined upon the resumption of the individual committal on 8 May 2024. This proposal was followed up by further email to the Magistrates’ Court on 23 April 2024.

On 2 May 2024, a representative of the Director emailed the Magistrates’ Court expressing the view that the individual committal scheduled to recommence the following week could not meaningfully proceed in circumstances where a ruling on the public interest immunity claims raised in response to Dib’s summons remained outstanding. The following day, a co-accused of Zayneh applied for an adjournment of the individual committal to a nominal future date to allow for the public interest immunity claim to be determined, the co-accused’s respective positions in relation to witnesses to be settled, and the joint committal to be formally concluded. That application was unopposed.
On 8 May 2024, the Magistrates’ Court emailed the parties stating the matter had been adjourned to the following day so that enquiries could be made about the outstanding public interest immunity ruling. On 9 May 2024, enquiries were made of the parties about their availability in May and June 2024.
On 10 May 2024, the individual committal was adjourned to a nominal date of 25 June 2024. The Magistrates’ Court informed the parties that once the status of the reserved public interest immunity ruling became known, the matter could be abridged or adjourned to a set date.
On 18 June 2024, the Magistrates’ Court emailed the parties to advise that the public interest immunity claim was still yet to be determined. The parties’ availability for a 2 day committal in August 2024 was sought. The Director responded that, as its senior counsel would be overseas, it had no availability in that month.
On 21 June 2024, the parties received further correspondence from the Magistrates’ Court proposing to relist the individual committal on 10 and 11 September 2024. Each party subsequently confirmed that the proposed dates were suitable.
On 24 June 2024, being the day before the present application was heard, the major trials coordinator of the Magistrates’ Court emailed the parties involved in the joint committal, stating that a determination had been made that the objection to Dib’s summons made by the Commissioner of the Australian Federal Police on the basis of public interest immunity would be upheld in full. It was further stated that reasons had been prepared and the parties would receive them (with necessary redactions) “in the near future”. On the same morning, this was also stated in substance by the magistrate at a mention hearing held in respect of all Operation Ironside matters. The magistrate confirmed that written reasons had been prepared and were in the process of being redacted, and further stated that he understood the parties would require some time to review his reasons and to consider what course they would take as to the further conduct of the joint committal and the various individual committals.
Zayneh’s solicitor has since been informed by Dib’s solicitor that Dib and other accused in Operation Ironside matters have given “provisional instructions” for the filing of an appeal or the seeking of judicial review in respect of this ruling once reasons are delivered.
Accordingly, at the date of the hearing of this application, it was anticipated that reasons for the public interest immunity ruling would be published imminently. Further, the joint committal for all Operation Ironside matters remains adjourned part-heard (which will need to be addressed once the reasons for the public interest immunity ruling are made available), and the individual committal for Zayneh and his co-accused has been relisted for 10 September 2024 on an estimated duration of 2 days. However, precisely how matters will ultimately unfold still remains significantly unclear.[26]
[26]A further matter Zayneh relied upon was that there had been 10 further “disclosure ‘packs’ and tranches” served by the Director on him and other accused in Operation Ironside matters since August 2023. This is only referred to for completeness: see par 23 above.

C.2 The contentions as to delay

Based on these further events, Zayneh’s solicitor deposed that in his experience and, “notwithstanding the unprecedented state of affairs”, it was unlikely any trial of Zayneh’s charges would be held before the end of 2027. Zayneh’s solicitor provided a further update in a subsequent affidavit affirmed on 21 June 2024. After referring to events of the last week, the solicitor stated that “[i]n light of this further delay” he believed the delay was likely to be even greater than that previously estimated.
Notwithstanding this evidence, Zayneh’s counsel’s written submissions were less pessimistic, submitting that “a trial before 2026 now appears highly unlikely”. In oral submissions, Zayneh’s counsel contended a trial in 2027 (rather than 2026) was now a real possibility. Indeed, after going through various plausible scenarios and referring to the usual time between committal for trial and trial in the County Court,[27] he ultimately submitted that 2027 was the most realistic estimate of timing.
[27]It was agreed by the parties that in light of present indications from the County Court this would likely be in the order of 12 to 14 months.
In written submissions, the Director submitted the matter had progressed since the August 2023 Application, with both the joint and individual committals largely being completed, and that the likely trial date remained within the estimate accepted by Beach JA, that is, 2025 or 2026. On this basis, the Director submitted that Zayneh had not demonstrated a relevant new fact or circumstance and therefore the application should be refused at the threshold.
Although this threshold submission was maintained, in light of more recent developments this week, counsel for the Director accepted in oral argument that there had been a change in the likely trial date from the forecast provided to Beach JA on the August 2023 Application. To demonstrate the extent of the change, it is helpful to refer to what his Honour described the position to be in August 2023:[28]
[Zayneh] has been in custody since June 2021. There are significant complexities associated with the proceeding. These include the fact that there will be two committals (a joint committal and an individual committal) – neither of which has yet been held, despite [Zayneh] already having been in custody for more than two years. Barring any adjournment, the joint committal will be concluded in October this year. Realistically, [Zayneh]’s individual committal will not be heard before 2024. Having regard to the complexity of the matters in dispute between the parties, and the complexity of the matter generally, a trial before 2025 appears highly unlikely. Whilst analyses of the present kind are inherently speculative, given the size of this case, and the matters likely to be in dispute between the parties, in my view, a trial in 2026 is a real possibility. By that time, the applicant will have been in custody awaiting trial for approximately five years.
(Emphasis added.)
[28]Re Zayneh [2023] VSC 470, [33].

His Honour’s observations concerning the complexities associated with the proceeding, both in relation to the matters in dispute between the parties and the matter more generally, remain apposite.
Further, the possibility of an adjournment of the joint committal was referred to. As set out above,[29] the joint committal has now been adjourned on a number of occasions. These adjournments have necessarily had a flow-on effect in relation to the timing of the various individual committals. The individual committal for Zayneh and his co-accused is now scheduled to be completed on 10 and 11 September 2024,[30] but there is no certainty that this will eventuate.
[29]See par 25 above.
[30]Zayneh’s counsel repeatedly referred to 11 and 12 September 2024 during the hearing of this application, but the correspondence indicated 10 and 11 September 2024 were the scheduled dates. Whichever dates are correct, nothing turns on this.
Without determining the likelihood or otherwise of any appeal or application for review of the public interest immunity ruling,[31] if Dib were to take such a step then it is highly likely that this would result in further delay of the individual committal. In this regard, I attach little weight to the hearsay evidence concerning “provisional instructions”, as the absence of any reasons to date would make any attempt to assess the likelihood of an appeal or application for review entirely speculative. That said, it would be far from surprising if a ruling at first instance of this nature became the subject of challenge.
[31]See par 36 above.
Regardless, Zayneh’s position (as already put in the Magistrates’ Court in January 2024) is that the documents the subject of Dib’s summons are required to be produced by the Director in any event by reason of the prosecution’s general duty of disclosure.[32] Accordingly, whether or not the ruling yet to be published is the subject of challenge, issues concerning public interest immunity are highly likely to be agitated in 1 way or another.
[32]Criminal Procedure Act, s 416. See also R v Farquharson (2009) 26 VR 410, 464 [213] (Warren CJ, Nettle and Redlich JJA), applying R v Spiteri (2004) 61 NSWLR 369, 373–374 [17] (Simpson J, with whom Grove and Shaw JJ agreed).
Furthermore, a trial “before 2025” is no longer merely highly unlikely (as Beach JA stated), but now completely unrealistic. Indeed, a trial at any time in 2025 is also unrealistic. In light of more recent developments, the earliest a trial might realistically be heard in this matter is 2026. So much was accepted by counsel for the Director, who agreed that there was “every reason to believe it could be in – it will be in 2026”. Later, it was submitted that 2026 was the most likely time for a trial to commence and that the issues in the case, including pre-trial argument, would “comfortably fit within 2026”.
Ultimately, extensions of estimates as to when a committal is likely to be completed have occurred consistently from the time of Zayneh’s first application for bail in the Magistrates’ Court, such that the estimates given on previous bail applications materially differ from those now made.
I will return to the issue of delay.[33]
[33]See pars 90-95 below.

C.3 Ruling on threshold issue

The expression “new facts or circumstances” in section 18AA(1)(a) of the Bail Act encompasses a broad range of matters.[34] That said, not every fact or circumstance, no matter how trivial, will satisfy the court that the statutory criteria has been met. The provision is not to be enlivened based on some minor detail so as to enable it to be relied upon as a means of reagitating an earlier adverse determination. However, if new factors emerge which may favour the granting of bail then, ordinarily, a court will be satisfied the threshold has been met.[35]
[34]Director of Public Prosecutions (Cth) v Barbaro [2009] VSC 27, [26]-[31] (T Forrest J) and the cases there cited.
[35]Ibid.
Irrespective of which estimate of any likely future trial date is correct, and without deciding the question of whether new facts or circumstances must be established before a further application for bail may be made to this court,[36] I am satisfied that as a consequence of the more recent developments in the proceeding (including the various issues that have arisen and the changes in the proposed course of both the joint committal and the individual committal since August last year), Zayneh has established that new facts or circumstances have arisen. The effluxion of time in combination with the various issues that have unfolded in seeking to advance the committal proceeding, including as a result of the claim for public interest immunity, have meant that there are now new circumstances before the court relevant to the determination of an application for bail by Zayneh that were necessarily not the subject of consideration on the August 2023 Application.
[36]Divergent views have been expressed on this issue: see, for example, Re Gentile (No 2) [2021] VSC 781, fn 2 (Taylor J); Re AK (No 2) [2021] VSC 637, [3] (Coghlan JA); Re IT (No 2) [2021] VSC 636, [4] (Coghlan JA); Director of Public Prosecutions v Roberts (No 2) [2021] VSC 559, [5]-[6] (Kaye JA); Re Rahman [2021] VSC 402, [9]-[12] (Coghlan JA); Re Alimic [2021] VSC 235, [69]-[78] (Tinney J); Re Mongan (No 2) [2019] VSC 119, [4]-[8] (Tinney J); Re Al-Jinavo [2017] VSC 413, [5] (Beale J); Re Abdulrahim [2017] VSC 411, [33]-[34] (Weinberg AP); Re Foxwell (No 2) [2014] VSC 145, [2] (John Dixon J).
Put succinctly, although the current estimate of the trial date remains in dispute, the further delay likely occasioned by recent developments in the matter is directly relevant to the question of whether the degree of risk posed by Zayneh if he were to be released on bail remains unacceptable for the purposes of section 4E of the Bail Act.[37]
[37]Zayneh v The King [2023] VSCA 311, [6] (Walker, Taylor and Boyce JJA). See also Beljajev v Director of Public Prosecutions (Unreported, Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991) 9.8-10.4 regarding the principles that inform the approach taken by a court to a further application for bail.

D. Legal principles

Charges 1, 2 and 6 relate to offences listed under Schedule 1 of the Bail Act.[38] Zayneh must therefore demonstrate that exceptional circumstances exist that justify the grant of bail.[39]
[38]Bail Act, sch 1, items 6 and 9.
[39]Ibid, ss 4AA(1), 4A.
In interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B. These include the competing considerations of maximising the safety of the community, and the presumption of innocence and the right to liberty.[40]
[40]Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
The phrase “exceptional circumstances” is not defined in the Bail Act. Numerous authorities have established that, to be exceptional, the circumstances in question must be such as to take the case out of the ordinary or norm so as to justify the grant of bail.[41] Although the threshold is high, it is not an impossible standard to reach. It may be met by a combination of matters even when none of the individual circumstances is properly considered exceptional.[42]
[41]See, for example, Re Brown [2019] VSC 751, [65] (Lasry J), and the cases there cited.
[42]Ibid.
If satisfied that exceptional circumstances exist, the court must then determine whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[43] In assessing whether any risk is an unacceptable risk, the court must consider whether the risk may be mitigated by any conditions of bail.[44]
[43]Bail Act, s 4D(a).
[44]Ibid, s 4E(3)(b). See also s 5AAA.
The court must refuse bail if satisfied that there is an unacceptable risk, notwithstanding that the exceptional circumstances test has been met.[45] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[46]
[45]Ibid, s 4E(1).
[46]Ibid, s 4E(2).
In considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[47] Such surrounding circumstances include, but are not limited to, the matters listed in section 3AAA(1) of the Bail Act.
[47]Ibid, ss 4A(3), 4E(3)(a).
If the court is considering the release of an applicant on bail, it must impose any condition that, in the opinion of the court, will reduce the likelihood of the risk that the applicant may endanger the safety or welfare of any person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the bail undertaking.[48] However, those conditions must be no more onerous than is required to reduce the likelihood of the risk in question, and must be reasonable, having regarding to the nature of the alleged offending and the circumstances of the applicant.[49]
[48]Ibid, s 5AAA(1).
[49]Ibid, s 5AAA(2).
Section 5(1) of the Bail Act concerns bail undertakings and provides that a grant of bail must require an applicant to give an undertaking in writing to surrender into custody at the time and place specified and not to depart without leave of the court and, if leave is given, to return at the time specified and again surrender into custody. Section 5(1A) provides that an applicant who gives a bail undertaking is under a duty to attend court for the hearing or trial specified in the undertaking and surrender into custody on so attending.
The notes to section 5 read as follows:
Notes
1 Sections 12 and 21 of the Charter of Human Rights and Responsibilities set out a right of freedom of movement and a right to liberty and security of the person.
2 Sections 23 and 25 of the Charter of Human Rights and Responsibilities set out the rights of children in the criminal process and the rights of an adult in criminal proceedings.
3 Section 7(2) of the Charter of Human Rights and Responsibilities sets out how a human right may be limited after taking into account all relevant factors, including any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
Section 21 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”) relevantly provides:
…
(3) A person must not be deprived of that person’s liberty except on grounds, and in accordance with procedures, established by law.
…
(5) A person who is arrested or detained on a criminal charge—
(a)must be promptly brought before a court; and
(b)has the right to be brought to trial without unreasonable delay; and
(c)must be released if paragraph (a) or (b) is not complied with.
…
(6) A person awaiting trial must not be automatically detained in custody, but that person’s release may be subject to guarantees to attend—
(a)for trial; and
(b)at any other stage of the judicial proceeding; and
(c)if appropriate, for execution of judgment.
…
In language not dissimilar to that adopted in section 21(5)(b), section 25(2)(c) of the Charter provides that a person charged with a criminal offence is entitled without discrimination to be tried without unreasonable delay.
Section 7(2) provides that a human right protected under the Charter may only be subject to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors, including:
(a)the nature of the right; and
(b)the importance of the purpose of the limitation; and
(c)the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
Section 32(1) of the Charter provides that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.[50] This extends to the interpretation of the exceptional circumstances test and the unacceptable risk test under the Bail Act. As observed by the Court of Appeal when this matter was last before this court:[51]
Courts called upon to apply ss 4A and 4E of the [Bail Act] ought to bear steadily in mind, in assessing whether the tests in those sections are satisfied, the fact that s 21(5) [of the Charter] confers the right to a trial without unreasonable delay. The existence of that right properly informs the assessment both of whether there are exceptional circumstances for the purposes of s 4A and whether a risk of flight, or other risk referred to in s 4E, is unacceptable.
(Citations omitted.)

E. Submissions

[50]The current state of the authorities is that the Charter applies to applications for bail in respect of Commonwealth offences: see Zayneh v The King [2023] VSCA 311, [37] (Walker, Taylor and Boyce JJA), citing Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, 727 [36] (Maxwell P, Vincent and Kellam JJA), recording a concession made by the Director.

[51]Ibid, [44].

E.1 Zayneh’s submissions

On this application, Zayneh relied on the submissions made in respect to the August 2023 Application. In this regard, the observations and submissions made by Zayneh in relation to exceptional circumstances were summarised by Beach JA as follows:[52]
[52]Re Zayneh [2023] VSC 470, [16].
(1)    Strength of the prosecution case: The prosecution case relies heavily upon encrypted messages said to have been exchanged on An0m. Absent the An0m messages, the prosecution case against [Zayneh] is weak. The admissibility of the An0m messages is disputed. [Zayneh] will rely upon expert reports to dispute the admissibility of the An0m messages. While the prosecution will allege that [Zayneh] was in possession of an An0m handset at the time of his arrest, there is no forensic evidence connecting [Zayneh] with that device.
(2)    [Zayneh]’s criminal history: [Zayneh] has one prior conviction, in 2008, correctly described as ‘a very limited, aged history of drug trafficking offending’.
(3)    Extent of compliance with conditions of any earlier grant of bail: There is no adverse bail history. [Zayneh] was on bail in respect of his 2008 conviction and was fully compliant with his bail conditions. He also complied with the terms of the suspended sentence imposed upon him.
(4)    Whether on bail/parole/facing other charges/subject of violence orders: At the time of the alleged offending, [Zayneh] was not on bail, or on parole, or otherwise subject to any of the matters set out in s 3AAA(e) of the [Bail Act]; and there were no orders in force of the kind described in s 3AAA(f).
(5)    [Zayneh]’s personal circumstances, associations, home environment and background: [Zayneh] has strong ties to the jurisdiction, including by reason of his family circumstances and employment situation. The medical conditions affecting [Zayneh]’s wife, son and mother, referred to in the various medical reports are of real significance. In the circumstances, being away from his family is ‘pure hell’ for [Zayneh]. If released on bail, [Zayneh] has immediate, full-time (daily) employment available to him, which can be undertaken substantially (if not wholly) on the basis that he works from home.
(6)    Special vulnerability of [Zayneh]: [Zayneh] suffers from diverticulitis, a serious medical condition. This results in him having a special vulnerability in custody. He is in constant severe pain ‘with medical practitioners in the prison advising him that they are unable to do anything more for him with the resources available’.
(7)    Amount of bail/conditions of bail: [Zayneh] has available to him a surety of $2.29 million provided by his mother, uncle, aunt, sister-in-law and cousins. Each proposed surety has sworn and filed an appropriate affidavit in this application.
(8)    Length of time [Zayneh] is likely to spend in custody if bail is refused: Given the complexity of the proceeding (involving substantial disclosure claims, disputes as to relevance, public interest immunity claims, a joint committal and an individual committal), it is unlikely that there will be a trial before 2026. Having regard to all of the matters that must be dealt with, a trial (likely to run for six to seven weeks) is likely to be listed some time in 2026.
(Citations omitted.)
Zayneh relied on a number of additional factors in support of the August 2023 Application, including the impact of the COVID-19 pandemic on his time in custody, the impact of having been subject to lockdowns in the serious offenders unit, the fact that a co-accused facing comparable allegations was granted bail in 2021, and that the Supreme Court of South Australia granted bail to a person in 2022 who had been charged with the same offences as Zayneh and whose alleged offending appeared “to be of far greater severity and magnitude”.[53]
[53]Ibid, [17].
In relation to the question of unacceptable risk, Beach JA summarised Zayneh’s submissions as follows:[54]
[54]Ibid, [18]-[19].
… [Zayneh] contended that various matters ameliorated any such risk ‘rendering it such that the [Director] cannot establish that [the risk] is unacceptable’. Those matters included:
(1)Large surety: There is a surety of $2.29 million available across multiple family members. This provides a strong incentive for [Zayneh] to comply with his bail conditions and to answer his bail.
(2)Electronic monitoring: [Zayneh] is ready, willing and able to submit to (and to pay for) electronic monitoring by way of an ankle bracelet.
(3)Undertakings: Various undertakings are given by members of [Zayneh]’s family in the affidavits sworn by them. These undertakings include immediately informing the police upon becoming aware that [Zayneh] has breached any of his bail conditions.[55] [Zayneh]’s wife has also undertaken to surrender her passport, and that of their son, if bail is granted; as well as permitting police to attend and search the family home, and to seize items, without the need for a warrant.[56] [Zayneh’s proposed employer] has undertaken to closely monitor [Zayneh]’s daily work activities and that he will, within 60 minutes of becoming aware that [Zayneh] has not reported for work, notify the police of that fact.[57]
[55]Both Zayneh’s wife and Zayneh’s mother gave undertakings to this effect on this application.
[56]By Zayneh’s counsel, Zayneh’s wife provided undertakings in similar terms on this application, along with a further undertaking not to leave the State of Victoria.
[57]By way of affidavit, Zayneh’s proposed employer provided undertakings in similar terms on this application, however the notification period was shortened from 60 minutes to 30 minutes.
(4)Restrained property: Court orders exist restraining the assets and property of [Zayneh] and his wife, including the family home, a set of six units, a Mercedes Benz and the amounts in various bank accounts totalling in excess of $500,000.
(5)Bail conditions: [Zayneh] is prepared to accept bail conditions which would have the effect of ‘subjecting him to extensive and strict home detention’, with compliance being enforced and monitored by way of electronic monitoring. In his affidavit, [Zayneh’s solicitor] proposed 21 conditions of bail, including [Zayneh]:
·     not being permitted to leave his residence unless in the company of his wife or mother, or for urgent medical purposes, or have anyone other than family members attend the premises;
·     being required to present himself at the front door of his premises upon request by police;
·     not contacting witnesses for the prosecution or associating with any co-accused;
·     not leaving Melbourne;
·     surrendering passports and travel documents;
·     not attending any points of international departure;
·     daily reporting to police;
·     only being permitted to access one analogue phone;
·     only being permitted limited access to the internet;
·     not being permitted to have access to any computer or device with encrypted software; and
·     being required to provide the informant with the telephone number, IMEI [(international mobile equipment identity)] details and SIM [(subscriber identification module)] card number of any device used by him (including providing any pass code or password access) for the purpose of inspection by police upon request.
During the hearing of the application, it became clear that [Zayneh] would be prepared to accept any bail conditions this Court thought appropriate in order to ameliorate any perceived risk of the kind referred to in s 4E(1)(a) of the [Bail Act], including a condition that would effectively require [Zayneh] to stay within the apartment to where he would be bailed 24 hours a day/7 days a week.
(Citations omitted.)
On this application, Zayneh’s counsel confirmed that the same conditions of bail as proposed on the August 2023 Application were again proffered. It was again made clear that any further condition that the court may wish to impose, including with respect to the specific details of any electronic monitoring arrangement, would also be agreed to.
It was also confirmed that each of the bail guarantors on the August 2023 Application remained ready, willing and able to provide a collective bail guarantee. Because of a change in the assets held by some guarantors, the total amount of the guarantees offered was reduced from $2.29 million to $1.81 million. It was also confirmed that the offer of full-time employment made to Zayneh by the founder of a large food manufacturing company on the August 2023 Application stood (though Zayneh’s specific duties may vary from those initially proposed) and that this work could be performed without any requirement for Zayneh to leave his residence.
On the question of delay, Zayneh submitted that in light of the recent procedural history of the matter, a trial before 2026 was no longer a realistic prospect, a trial in 2026 was likely, and a trial in 2027 was a real possibility. As such, the length of time that Zayneh is likely to spend in pre-trial detention if bail is refused has increased from at least 4 years with a possibility of 5 years,[58] to at least 5 years with a real possibility of 6 years.
[58]See Re Zayneh [2023] VSC 470, [34] (Beach JA).
On this basis, Zayneh submitted that the lengthy period of delay in the proceeding was now at a level sufficient to render acceptable any risk that would otherwise be considered unacceptable. In other words, it was submitted that the magnitude of the delay in the proceeding was such that Zayneh’s pre-trial detention could no longer be justified, notwithstanding the seriousness of his alleged offending and the magnitude of any risk that he will not answer bail. In making this submission, reference was made to Beach JA’s finding that the anticipated delay in bringing Zayneh to trial, as it stood almost 1 year ago, was “completely unacceptable”.[59] Notably, his Honour’s observation was made on an assumption that can no longer be made, namely that a trial would most likely be held in 2025 and that Zayneh’s time on remand would total 4 years. Zayneh also referred to the Court of Appeal’s observation that the delay in the proceeding was “inordinate”.[60]
[59]Ibid.
[60]Zayneh v The King [2023] VSCA 311, [5] (Walker, Taylor and Boyce JJA).

E.2 The Director’s submissions

In response, it was submitted that the Director did not seek to contest the finding of Beach JA that exceptional circumstances had been made out on the sole basis of delay.
In relation to the question of unacceptable risk, the Director maintained that, if released on bail, Zayneh would pose an unacceptable risk of endangering the safety or welfare of members of the community, interfering with witnesses or otherwise obstructing the course of justice, and failing to surrender into custody in accordance with the conditions of bail. Specifically in relation to the last of these risks, reference was made to Zayneh’s “wherewithal and resources to abscond” and his powerful motivation to flee the jurisdiction. It was submitted that no conditions could render that risk acceptable. In addition, the Director submitted that as the matter has now progressed in the Magistrates’ Court to a point where Zayneh is facing committal for trial in the County Court, the unacceptable risk of Zayneh failing to answer bail had increased from that in existence at the time of the August 2023 Application.
The Director accepted that delay is a relevant consideration in an assessment of unacceptable risk and that there will come a point where pre-trial detention can no longer be justified.[61] However, the Director submitted that that point had not yet been reached in this case. The Director submitted that with the delivery of the ruling in relation to public interest immunity there was no longer any basis for witness CIN325 to be recalled,[62] and that effectively the joint committal had been completed. Further, it was submitted it could reasonably be expected that the individual committal of Zayneh and his co-accused would be finalised by 11 September 2024 and that the matter could subsequently proceed to trial in the usual way.
[61]This was also the position adopted by the Director before the Court of Appeal: ibid, [36] (Walker, Taylor and Boyce JJA).
[62]See pars 25-26 above.
The Director submitted that some limited further delay could be reasonably anticipated given the likelihood of pre-trial applications in the County Court relating to the admissibility of evidence obtained from the An0m platform. However, it was submitted that this could not be considered a new development since the August 2023 Application. The Director submitted it could be reasonably anticipated that the County Court would apply its “long trials” case management protocol to the proceeding and streamline the hearing of pre-trial applications in an efficient manner.
For these reasons, the Director submitted that the matter remained on course to be determined substantially within the estimated timeframe accepted by Beach JA, and further submitted that any predictions of further delay beyond those referred to above[63] remained, at this stage, entirely speculative. However, as noted above,[64] and somewhat contrarily to this submission, counsel for the Director ultimately accepted in oral argument that the prospect of a trial in 2025 now appeared to be optimistic, and agreed that 2026 was the appropriate estimate of when a trial would commence. Nevertheless, the Director maintained that the delay in the proceeding was not yet at a level to render the unacceptable risks associated with a grant of bail acceptable.
[63]See par 75 above.
[64]See par 46 above.
In relation to electronic monitoring, the Director maintained the submission that it would present a host of difficulties for the informant from an operational perspective. Further, it was again submitted that such monitoring would not sufficiently ameliorate the risk of flight, the risk of committing further offences or the risk of interfering with witnesses. Reliance was placed upon the finding of Beach JA that electronic monitoring would likely pose little problem for a person with Zayneh’s resources.[65] In this regard, the Director adopted each of Beach JA’s findings (as summarised by the Court of Appeal),[66] in submitting that electronic monitoring would not make the risks associated with a grant of bail acceptable. That said, the Director acknowledged that there was nothing peculiar about this case and that the matters raised were of a general nature and did not go beyond the normal difficulties that might be experienced in relation to electronic monitoring. Ultimately, the Director submitted that if the court decided to grant bail, the conditions of bail should include electronic monitoring.

F. Consideration

[65]Re Zayneh [2023] VSC 470, [41].

[66]Zayneh v The King [2023] VSCA 311, [42] (Walker, Taylor and Boyce JJA).

F.1 Exceptional circumstances

The Director properly conceded that it is open for the court to find that Zayneh has established exceptional circumstances on the sole basis of delay. Zayneh has now been in custody on remand for a period of more than 3 years. Although the estimated date for the commencement of a trial remains in dispute, the parties agree that a trial before 2025 is not realistic. At significantly earlier points in this proceeding, the delay in bringing Zayneh to trial has been variously described as “completely unacceptable”,[67] “truly appalling”,[68] and “inordinate”.[69]
[67]Re Zayneh [2023] VSC 470, [34] (Beach JA).
[68]During the hearing of the August 2023 Application, Beach JA described the possibility of a person presumed to be innocent spending 4 (if not 5) years on remand awaiting trial as “truly appalling”.
[69]Zayneh v The King [2023] VSCA 311, [5] (Walker, Taylor and Boyce JJA).
The situation is even more unsatisfactory when viewed in light of section 21(5)(b) of the Charter, which confers the right of a person arrested or detained on a criminal charge to be brought to trial without unreasonable delay. As the Court of Appeal has observed, the existence of the right to a trial without unreasonable delay properly informs the assessment of whether exceptional circumstances have been established and whether an applicant poses an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[70]
[70]Ibid, [44].
Although the period Zayneh will spend in pre-trial detention is unlikely to exceed the term of imprisonment to be imposed should he be found guilty of the offences with which he has been charged, the delay is nevertheless significant in circumstances where Zayneh is to be presumed innocent of all charges against him. Further, although I do not accept Zayneh’s characterisation of the prosecution case as “weak”,[71] it cannot be said that the strength of the prosecution case is such as to be capable of overwhelming the delay in the proceeding for the purpose of determining whether exceptional circumstances exist.[72]
[71]I refer to and adopt the various matters raised by Beach JA in this regard: Re Zayneh [2023] VSC 470, [35].
[72]Ibid, [34], citing Re MO [2017] VSC 557, [6] (Weinberg AP).
Accordingly, I am satisfied that the delay in this proceeding on its own constitutes exceptional circumstances justifying a grant of bail.

F.2 Unacceptable risk

Delay was again at the forefront of Zayneh’s submissions on the issue of unacceptable risk. At the outset of considering whether Zayneh poses an unacceptable risk of the kind described in section 4E(1) of the Bail Act, reference should be made to an observation of the Court of Appeal in this proceeding concerning delay. It was stated that the courts will not simply tolerate delay of any length in this proceeding just because Zayneh poses a flight risk. Their Honours warned that sufficient resources must be committed by the Director to ensure the matter proceeds swiftly, otherwise there would come a point where a judge hearing a further bail application would have no choice but to grant Zayneh bail.[73]
[73]Zayneh v The King [2023] VSCA 311, [6] (Walker, Taylor and Boyce JJA).
There was no submission to suggest that any further delay in the proceeding which arose between the August 2023 Application and the making of this application was as a result of any lack of resources or any other failure on the part of the Director. Nothing in the evidence on this application suggested the Director had been anything other than diligent in seeking to progress matters in this proceeding since August 2023. Equally, it is clear that the recent delays were caused through no fault of Zayneh. To the contrary, both parties have taken positive steps to minimise delay to the extent reasonably possible.[74]
[74]See, for example, pars 27, 29 above.
Further, there was no suggestion that there had been any dilatoriness on the part of the Magistrates’ Court. It was accepted that the multifarious issues in this proceeding and those relating to the Operation Ironside matters more generally are complex, and the delay experienced could not be attributed to the fault of any particular person or organisation.
Turning to the question of unacceptable risk more generally, in addition to delay and the length of time Zayneh is likely to spend in custody if bail is refused, the nature and seriousness of the alleged offending, the strength of the prosecution case, the offering of substantial bail guarantees and the likely sentence to be imposed if Zayneh were to be found guilty of the offences with which he is charged are of particular relevance in this case.[75]
[75]On the August 2023 Application, it was conceded that the principle of parity was not relevant to the assessment of whether or not an accused person poses an unacceptable risk of flight. The Court of Appeal noted that it was unnecessary to decide whether that concession was correct: Zayneh v The King [2023] VSCA 311, fn 21 (Walker, Taylor and Boyce JJA). The concession was made once again on this application.

The maximum penalty for Charges 1, 2 and 6 is life imprisonment. Further, conspiracy to import 1.6 tonnes of border-controlled drugs with an estimated wholesale value of between $186 million and $700 million is an extremely serious example of these offences. Although it is not desirable to express any view about the strength of the case beyond that required by section 3AAA(1)(b) of the Bail Act, the seriousness of the charges against him and likelihood of a lengthy term of imprisonment, coupled with the fact that the prosecution case cannot be properly characterised as weak, provide a strong incentive for Zayneh to abscond.
On the evidence before the court, it appears that if he were released on bail, Zayneh would have access to substantial resources, as well as connections with serious organised criminal groups and contacts in overseas jurisdictions, including his brother. Further, it is alleged that Zayneh has made statements to associates on the An0m platform which indicate a disposition to flee the country. Furthermore, it is alleged that Zayneh has had discussions with his brother on the platform about countries with which Australia has no extradition treaty. There is also evidence before the court that Zayneh applied for an urgent passport from the Australian Passport Office shortly before his arrest.
Moreover, Zayneh allegedly informed his brother that he has $5 million “in stook”, or hiding, despite the fact that significant assets have been seized and restrained by the authorities.
In short, it appears that Zayneh has the “incentive, capacity and disposition” to abscond[76] and that the proposed conditions of bail, including electronic monitoring and substantial bail guarantees, may not ameliorate the risk of flight. It is relevant that the risk under assessment is an international flight risk, as the prospects of recapture would be low and the potential cost and complexity involved in a global search would likely be significant.[77] Broadly speaking, it is for these reasons, in the context of the very serious charges and possibility of life imprisonment he is facing, that Zayneh has been considered to present an unacceptable risk and bail has been refused to date.
[76]Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, 724 [28] (Maxwell P, Vincent and Kellam JJA).
[77]Ibid, 725 [31] (Maxwell P, Vincent and Kellam JJA).
Returning now to the issue of delay. As stated previously, the length of the delay in the proceeding is relevant to the question of whether, if released on bail, Zayneh would pose an unacceptable risk of failing to answer bail.[78] In cases of inordinate delay, the risk posed by an applicant must be assessed bearing in mind that the community “will not tolerate the indefinite detention of its citizens with no prospect of charges being tried within a reasonable period”.[79]
[78]Zayneh v The King [2023] VSCA 311, [6] (Walker, Taylor and Boyce JJA). See also Bail Act, s 3AAA(1)(k).
[79]Mokbel v Director of Public Prosecutions (No 3) (2002) 133 A Crim R 141, 143 [13] (Kellam J), cited with approval in Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, 728 [41]. More recently, see Re Tiburcy [2024] VSC 163, [71]-[76] (Fox J), being another case arising out of Operation Ironside (though acknowledged to involve “not the most serious example of large commercial quantity drug trafficking”: at [74]).
Accordingly, Victorian courts have acknowledged that there will be circumstances where actual or anticipated delay in a proceeding is of such a magnitude that risks which would otherwise be regarded as unacceptable may properly be viewed as acceptable.[80] As observed by the Court of Appeal:[81]
[T]here will come a point where the continued pre-trial detention of a person who is presumed innocent can no longer be justified, notwithstanding the seriousness of their alleged offending and the magnitude of the risk that they will not answer bail. We do not venture to say when that point will occur, either generally or in this particular case, because that will depend upon all the facts and circumstances.
(Citations omitted.)
[80]Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, 728 [41].
[81]Zayneh v The King [2023] VSCA 311, [7].
Even on the most favourable estimate, the delay in this case is as unacceptable as it is extraordinary. If the trial were to proceed at the start of 2026, Zayneh would have spent at least 4½ years in custody. The prospect of a trial at this time, while possible, appears to be unrealistic. If the trial were to commence in 2026 (about which there is no certainty), it is more likely that it would occur later in that year. Obviously, if bail were refused and the trial did not commence until the middle of 2026, Zayneh would have spent a 5 year period in pre-trial detention. This only has to be stated to demonstrate that such a state of affairs would be completely intolerable in circumstances where there are triable issues with respect to the more serious charges Zayneh is facing.
But it does not end there. Given all the matters that have legitimately been raised to date in this and other proceedings stemming from Operation Ironside, although necessarily speculative, there is a real possibility that Zayneh’s trial will not commence until well into 2027. The issues raised in the previous paragraph are commensurately magnified by the extent of this real prospect of yet further delay.
It is trite that every application for bail must be determined on its own facts and circumstances, including the surrounding circumstances. However, it is instructive that the court was not referred to any authority which suggested that where there are triable issues, subject to appropriate conditions, bail should not be granted in circumstances of such extreme delay.
There could be no issue that the refusal of bail by Beach JA in August 2023 was reasonably open on the facts that then existed. Indeed, if I had been in his Honour’s position I would have come to the same decision. However, on the facts now before the court, the Director has not established that, were Zayneh granted bail on very strict conditions, he would pose an unacceptable risk of failing to answer bail. In light of the intolerably inordinate delay that will undoubtedly transpire before this proceeding is brought to trial, the undeniable and serious risks identified by the Director can no longer be considered unacceptable for the purposes of section 4E(1) of the Bail Act. This is so even if the most optimistic of the estimated trial dates referred to above were accepted. When the more likely scenarios of a trial commencing in the second half of 2026 or in 2027 are considered, there is simply no proper basis for finding that the risk associated with granting bail to Zayneh remains unacceptable.
However, bearing those undeniable and serious risks in mind, it is clear that only the most stringent conditions of bail would be appropriate in this case. As already noted,[82] Zayneh has indicated that he is willing to subject himself to any conditions the court considers appropriate.
[82]See par 68 above.
It has been proposed that Zayneh be required to stay inside his apartment at all times; that is, 24 hours a day, 7 days per week.[83] Given the serious risk of flight he poses, such a condition, though oppressive, is appropriate. Further, gymnasium facilities will be accessible to Zayneh inside his apartment building, and the offer of employment that has been made to Zayneh is for work that can be carried out entirely from inside his home.
[83]During the course of argument, I raised with Zayneh’s counsel whether any human rights concerns might arise if such a condition were imposed. No point was taken. It was stated that if any issues arose, an application would be made to vary the conditions of his bail in due course.
Significant contact limitations will be imposed, prohibiting Zayneh from contacting or associating with any witness for the prosecution, any of his co-accused, and any other person charged with offending arising from Operation Ironside. Zayneh will be prohibited from possessing or using a smartphone, as well as any computer, tablet or other electronic device that has any applications installed which allow for encrypted communications. He will only be permitted to own 1 analogue telephone, the passcode or password of which must be known to the informant at all times.
Turning to the question of electronic monitoring, the resourcing difficulties such an arrangement may cause for the police are acknowledged, as are the potential shortfalls (including with regard to efficiency) that were the subject of evidence during the August 2023 Application. That said, in a case such as this, it is entirely appropriate that electronic monitoring form part of the conditions imposed. Any additional cost or inconvenience must be seen as part of the obligations assumed by police when a decision is made to prosecute someone.[84]
[84]Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232, [8] (Beech-Jones CJ at CL, with whom Bathurst CJ agreed). See also Re Tiburcy [2024] VSC 163, [89]-[90], [92] (Fox J).
Prior to his release from custody and at his own expense, Zayneh will be required to be fitted with an electronic monitoring device by the nominated service provider. Electronic monitoring equipment will also need to be put in place to “geofence” the bail address before Zayneh is released from custody.
With respect to the bail guarantees, no point was taken by the Director that the overall value of the guarantees was less than the amount offered on the August 2023 Application. Though the Director’s primary position was that no level of bail guarantee would be sufficient to make the risk associated with a grant of bail acceptable, it was also acknowledged that the reduction in amount was not material in circumstances where the same number of people would be at risk of being impacted by any breach.
There are a number of issues with respect to the state of the evidence concerning the bail guarantees that were not raised on the hearing of this application and will need to be addressed before any orders are made. Further, matters pertaining to the numerous undertakings to be provided will also need to be addressed.
In summary, despite the seriousness of the alleged offending, the legitimate risk of flight and the reservations I have expressed about granting bail, having taken all the circumstances into account including the surrounding circumstances, the length of delay in this proceeding has become so intolerable that any risk posed by Zayneh can no longer be described as unacceptable.
For these reasons, subject to any further matters counsel may wish to raise, I propose to grant bail on the following stringent conditions:
[Zayneh] is admitted to bail on his own undertaking and with bail guarantees from [6 guarantors], in the combined total amount of $1,780,000[85] on the following conditions, namely that he must:
[85]At the request of the Prothonotary, this amount was reduced from $1.81 million to provide a “buffer” for any fluctuation in the value of some of the properties provided as security: see par 69 above.
(1)Reside at [address] (“the Residence”).
(2)Not leave the Residence other than:
(a)between the hours of 9.00am and 10.00am each day to use the communal gymnasium facilities in his apartment building located at [address]; or
(b)to travel to and from and attend court hearings in the company of a legal representative in respect to proceedings to which he is a party.
(3)Present at the front door of the Residence upon the reasonable request of the informant, Detective Sergeant [name], or his nominee, being an authorised member of the Australian Federal Police or Victoria Police.
(4)By 4.00pm on 2 July 2024, accept the offer of employment at Food Innovation Group made to him by way of letter dated 5 July 2023, a copy of which is exhibited to the affidavit of Edward Barbar affirmed on 5 July 2023.
(5)Prior to his release from custody and at his own expense, be fitted with an electronic monitoring device provided by Allied Universal Electronic Monitoring Australia Pty Ltd (“Allied Universal”).
(6)Comply with all lawful directions of employees of Allied Universal and their agents.
(7)Prior to his release from custody and at his own expense, arrange for employees of Allied Universal or their agents to have access to the Residence for the purpose of installing any necessary technology to facilitate the electronic monitoring arrangement, including geofencing (the details of which arrangement are to be provided to the court upon completion of installation and made the subject of an order by the court before his release).
(8)Not remove the electronic monitoring device fitted by Allied Universal from his person except by arrangement with employees of Allied Universal or their agents for the purpose of repair or replacement of the electronic monitoring device.
(9)Not allow anyone other than [Zayneh’s wife], [Zayneh’s son], [Zayneh’s mother], his legal representatives, medical practitioners providing treatment to [Zayneh], [Zayneh’s wife], [Zayneh’s son] or [Zayneh’s mother], authorised members of the Australian Federal Police or Victoria Police and nominated employees of Allied Universal or their agents (acting in the course of their employment and not otherwise) to attend the Residence.
(10)Not contact or associate with, either directly or indirectly, any co-accused.
(11)Not contact or associate with, either directly or indirectly, any witness for the prosecution other than the informant.
(12)Not contact or associate with, either directly or indirectly, any person charged with an offence arising from the Australian Federal Police investigation known as “Operation Ironside”.
(13)Not possess or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
(14)Not possess or use more than 1 mobile telephone.
(15)Not possess or use a mobile telephone with an integrated computer, commonly referred to as a “smartphone”.
(16)Provide the informant or his nominee with the telephone number, international mobile equipment identity (“IMEI”) number, subscriber identification module (“SIM”) card number and any password or passcode of the mobile telephone he possesses or uses, within 1 hour of first having access to that mobile telephone, and notify the informant or his nominee of any change of password or passcode of that mobile telephone within 1 hour of that change.
(17)Produce the mobile telephone he possesses for inspection upon the reasonable request of the informant or his nominee.
(18)Provide any password or passcode for the mobile telephone he possesses or uses upon the reasonable request of the informant or his nominee.
(19)Not possess or use any computer, tablet or other electronic device that has any applications installed that allow for encrypted communications.
(20)Not engage in any encrypted communications.
(21)Not leave metropolitan Melbourne (as defined in section 3 of the Planning and Environment Act 1987 (Vic)).
(22)Not attend any points of international departure.
(23)Surrender any current passport or interstate or international travel document in his possession or control to the informant or his nominee within 2 hours of his release from custody.
(24)Not apply for any passport or interstate or international travel document or cause, whether directly or indirectly, any other person to do so on his behalf.
(25)Subject to compliance with paragraph [104](2)(b) above, attend the Magistrates’ Court of Victoria at Melbourne at 9.30am on 10 September 2024 and there surrender himself, and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.

G. Conclusion

Accordingly, Zayneh’s application for bail will be granted with the above conditions of bail (subject to the outstanding matters relating to these conditions being addressed satisfactorily upon the delivery of these reasons).

ADDENDUM

After the necessary arrangements had been put in place in relation to electronic monitoring, on 1 July 2024 the following orders were made:
(1)The electronic monitoring technology and equipment installed by Allied Universal pursuant to paragraph 1(7) of the [orders made on 28 June 2024][86] be programmed with the following geofencing requirements:
[86]See par 104(7) above.
(a)an “inclusion zone” around [apartment building address], with a 24-hour curfew;
(b)a further “inclusion zone” around [the Residence], with curfews between (i) 12.00 midnight and 8.59am; and (ii) 10.01am and 11.59pm each day.

(2)Upon [Zayneh] having been fitted with the relevant electronic monitoring ankle bracelet pursuant to paragraph 1(5) of the [orders made on 28 June 2024][87] and released from custody, [Zayneh] is to be transported directly to the Residence without any stops by [his wife] and/or [his mother] and/or [his proposed employer] and/or his legal representatives, namely [names inserted].
[87]See par 104(5) above.
(3)Upon [Zayneh] having arrived at the Residence, he must immediately notify his legal representatives, who are in turn required to promptly inform the court and [the Director] of that fact.