Ta v The State of Western Australia - [2019] WASC 153

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   TA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 153
CORAM:   FIANNACA J
HEARD:   26 MARCH & 18 APRIL 2019
DELIVERED          :   10 MAY 2019
FILE NO/S:   MBA 21 of 2019
BETWEEN:   DEP MONG TA
Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail application - Significant risk of flight - No conditions that could reasonably be imposed which would sufficiently remove the possibility that the applicant may fail to appear - Turns on own facts

Legislation:

Bail Act 1982 (WA)

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant	:	Mr A Elliott
Respondent	:	Mr D Jubb

Solicitors:

Applicant	:	Legal Pathways
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Chadburne v The State of Western Australia [2014] WASC 160
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Milenkovski v The State of Western Australia [No 2] [2011] WASC 273
R v Quaid [2009] WASC 202
Vander Waide v Western Australia Police [2015] WASC 497
YSN v The State of Western Australia [2017] WASCA 155

FIANNACA J:

The application and its history

The applicant, Dep Mong Ta, has applied for bail in respect of four charges pending in the Magistrates Court at Perth, but which will eventually be committed to the District Court of Western Australia. Her next appearance in the Magistrates Court is on 28 May 2019 for a committal mention hearing. The applicant has been held in custody since 15 November 2018 when she was charged with three of the four offences she faces.
The four charges are for the following alleged offences:
(1)PE 58975/2018 - possession of a prohibited drug, namely methamphetamine, with intent to sell or supply, contrary to s 6(1)(a) Misuse of Drugs Act 1981 (WA) (MDA), which is alleged to have been committed on 15 November 2018 at Perth. In the alleged circumstances of this case, the maximum penalty for that offence is life imprisonment.[1]
(2)PE 58976/2018 – engaging in a transaction that involved money or other property that was the proceeds of an offence (money laundering), contrary to s 563A(1)(a) Criminal Code (WA), which is also alleged to have been committed on 15 November 2018 at Perth. The maximum penalty for that offence is 20 years imprisonment.
(3)PE 58977/2018 - possession of a prohibited drug with intent to sell or supply a prohibited drug, namely heroin, contrary to s 6(1)(a) MDA, which is also alleged to have been committed on 15 November 2018 at Perth. In the alleged circumstances of this case, the maximum penalty for that offence is 25 years' imprisonment, a fine of $100,000 or both.[2]
(4)PE 3645/2019 - failing to obey a data access order without reasonable excuse, contrary to s 61(2) Criminal Investigation Act 2006 (WA), which is alleged to have been committed between 28 November 2018 and 21 December 2018. When dealt with on indictment, the maximum penalty for that offence is 5 years' imprisonment.
[1] Misuse of Drugs Act 1981, s 34(1)(a).
[2] Misuse of Drugs Act 1981, s 34(1)(aa).
The application was filed in this Court on 20 March 2019, after the applicant was refused bail in the Magistrates Court on 23 November 2018.
I heard the application on 26 March 2019 and 18 April 2019. During the hearing on 26 March 2019, I indicated that, if bail were to be granted, which I had not decided, it would be only on the basis that the applicant be subject to a home detention condition. Bail could not be granted on that basis unless I had a Bail Assessment Report examining the suitability of home detention. Counsel for the applicant submitted that I should request such a report, so that I could give consideration to home detention bail. I acceded to that request and the application was adjourned to 18 April 2019 for that purpose.
On 18 April 2019, after hearing further argument in light of the home detention assessment report, I adjourned the matter to 10 May 2019 for decision.
For the following reasons, I have decided that the application should be refused.

Legislative provisions

The application is brought under s 14(2) of the Bail Act 1982 (WA) (the Act). It invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Act. It is not an appeal from the magistrate's decision refusing bail on 23 November 2018.
As the court's jurisdiction to grant bail arises by the operation of s 13 and sch 1 pt A of the Act, it must be exercised subject to and in accordance with pt III of the Act and the further provisions in pts B, C and D of sch 1.
Clause 1 of pt C provides that, subject to cl 3A and cl 3C, neither of which applies in this case, the grant or refusal of bail 'shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested'. It goes on to provide that the discretion shall be exercised having regard to a number of questions set out in pars (a) to (g) of cl 1, 'as well as to any others which [the judicial officer or authorised officer] considers relevant'.
The questions in pars (a) to (g) of cl 1 are non‑exhaustive mandatory considerations.[3] They are non‑exhaustive because cl 1 expressly provides that the judicial officer may have regard to any other questions he or she considers relevant. In this case, such questions are raised by the matters relied upon by the applicant in support of the application. However, the starting point is to consider the mandatory questions in cl 1. Of relevance in this case are the questions in subclauses (a) and (e).
[3] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24].
The questions in cl 1(a) are directed at whether the accused will do a number of things if not kept in custody. The focus is whether there are reasons why bail should not be granted. As McLure P explained in Milenkovski v The State of Western Australia,[4] the consequence of the structure of cl 1 is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail.
[4] Milenkovski [41].
Ordinarily, bail will be granted unless the court is satisfied that the accused should be kept in custody after considering the questions in cl 1, having regard to the matters in cl 3.
The questions in cl 1(a) include whether the accused may fail to appear in court as required by her bail undertaking, whether she may commit an offence, whether she may endanger the safety or welfare of any person and whether she may interfere with witnesses. The other questions are not relevant in the circumstances of this case.
Clause 3 of pt C provides that, in answering the questions in cl 1(a), the court must take into account a number of specific matters set out in that clause, as well as any other matters the court considers relevant. The specific matters may be summarised as follows:
(a)the nature and seriousness of the offence or offences and the probable method of dealing with the applicant if she is convicted;
(b)the applicant's personal circumstances, including her character and antecedents, which include any previous convictions;
(c)the history of any previous grants of bail; and
(d)the strength of the evidence against the applicant.
If the court is satisfied of the possibility that the applicant will do any of the things referred to in cl 1(a), having regard to the matters in cl 3, it must then consider, under cl 1(e), whether there are conditions that could reasonably be imposed which would 'sufficiently remove the possibility' of the accused doing those things.
The proper approach to the questions and considerations in clauses 1(a), 1(e) and 3 was explained in YSN v The State of Western Australia [2017] WASCA 155 [15] ‑ [21]. The following principles extracted from that decision are relevant for present purposes:
(a)The risk or possibility referred to in cl 1(a) must be actual or real, as distinct from theoretical or hypothetical, and assessed having regard to the matters set out in cl 3(a) ‑ (d) and any other matters the judicial officer considers relevant;
(b)The court must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail. That assessment is made in the context where the accused has been charged with, but not convicted of, an offence and is presumed to be innocent. What is a proper ground for refusing bail must be considered in light of the risk of injustice to an accused who is ultimately acquitted of the charged offence after being held in custody for a lengthy period;
(c)The reference in cl 1(e) to the possibility of the accused engaging in relevant conduct being 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the accused engaging in that conduct is sufficiently reduced; and
(d)The possibility of an accused engaging in conduct referred to in cl 1(a) will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That construction recognises that, before bail is refused, the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
For convenience, I will refer to the question in cl 1(e) as whether the risk can be reduced to an acceptable level, which is to be understood in the context of the principles outlined in the preceding paragraph, in particular in points (3) and (4).
In addition to the considerations I have outlined, cl 1(g) requires the court to consider whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. I have discussed the application of cl 1(g) elsewhere.[5] Although it was raised as a consideration that potentially has application in this case, it is not necessary to canvass the relevant legal principles concerning cl 1(g) in these reasons, as I am of the view that, while the MDA offences are very serious, the seriousness of the offending is not such that it would, without more, make a grant of bail inappropriate. As Simmonds J noted in Vander Waide,[6] the assessment of whether the seriousness of the alleged conduct is such as to engage cl 1(g) is a matter of impression.
[5] [Suppressed].
[6] Vander Waide v Western Australia Police [2015] WASC 497[123].
In this case, I consider that the appropriateness of bail turns on the question of whether the applicant poses a flight risk, and whether any condition could reduce that risk to an acceptable level. However, in considering those matters and exercising the discretion in respect of bail, in a case where the alleged offending is very serious and had the potential to cause significant harm to the community, as in this case, the community's interest in achieving an outcome in respect of the charges through the administration of justice is a significant relevant factor.

The evidence in the proceedings

The application is supported by an affidavit of the applicant, sworn 13 March 2019, which outlines her personal circumstances and information in respect of the proposed bail conditions. Attached to the affidavit are a number of documents, including the statements of material facts in respect of the alleged offences, a criminal history, the transcript of the bail hearing on 23 November 2018 before Magistrate Hall and the relevant prosecution notices.
The application is also supported by an affidavit of Ta Van Quoc, sworn 22 March 2019. Mr Ta is Ms Ta's uncle. The purpose of the affidavit is to demonstrate that the applicant will have a place to reside and support in the community if she is released on bail. That is in the context that the applicant's usual place of residence is in Melbourne. Mr Ta describes his living arrangements and, in essence, states that he and his wife would be willing and able to support Ms Ta at their home if home detention bail were to be imposed.
The respondent tendered a bundle of statements of prosecution witnesses (exhibit 1), a document setting out travel details for the applicant from 11 January 2018 to 15 November 2018 (exhibit 2) and an index of materials that have been disclosed to the applicant by the prosecution in relation to the charges and their investigation (exhibit 3).
The respondent also tendered an affidavit of Detective Senior Constable Bradley Gardiner, sworn 1 April 2019, which annexed copies of a number of documentary exhibits relevant to the prosecution case. Those documents include copies of rental agreements alleged to have been entered into by the applicant for the hire of vehicles alleged to have been used by the applicant in a criminal enterprise that resulted in the commission of the offences charged. They also include: supporting documentation for the travel entries in exhibit 2 (some of which is alleged to have been undertaken by the applicant under false names); telecommunication spread sheets resulting from a number of telecommunication warrants, which set out text message (SMS) communications and what purport to be translated transcriptions of audio from lawfully intercepted calls between the applicant and other persons; and a data access order issued to the applicant under s 59 of the Criminal Investigation Act 2006.

The prosecution case

The applicant is alleged to be part of a criminal syndicate that was transporting prohibited drugs from Melbourne to Perth for distribution in this State. The other members of the syndicate are alleged to be:
(a)Phuoc Van Le, who is said to be the 'coordinator/distributor';
(b)Van Hoang Tran, who is said to be a courier; and
(c)Nelson Valentino Salcedo, who is said to be the Perth based distributor.
The applicant's role in the syndicate is alleged to be 'facilitator/organiser'.
In broad terms, the State's case is that the syndicate would hire vehicles at the airport in Victoria and would transport prohibited drugs to Perth in those vehicles. The drugs would be concealed in the vehicles and would be recovered once the vehicle had reached Perth ad payment was made by the Perth based distributor. The vehicles would then be returned to Melbourne by train. It is alleged that the applicant would arrange for someone to drive the vehicle to Perth. She would fly to Perth for the purpose of taking control of the vehicle with the drugs and delivering the drugs to the Perth based distributor at a residential address that was used as a storage location (also known as a 'safe house') for the drugs. The applicant would then fly back to Melbourne.
The State alleges that large quantities of prohibited drugs were transported in exchange for large sums of money.
The prosecution case against the applicant relies on a significant body of circumstantial evidence, some of which is relied on to establish the broader criminal enterprise of which the applicant is alleged to have been a part, and some of which goes to establish more specifically the applicant's role in that enterprise and the specific offences with which she is charged. It is not necessary or appropriate to canvass in these reasons all of the evidence disclosed in the materials tendered by the respondent. However, for the purpose of the considerations in cl 3, it is necessary to provide a summary of the case, focussing on the evidence against the applicant. The following summary relies mainly on the police statement of material facts, augmented with additional information from the tendered materials.
In September 2018, the Organised Crime Squad of Western Australia Police commenced an operation to investigate a suspected criminal syndicate that was believed to be transporting significant quantities of prohibited drugs into Western Australia from Victoria. By means of lawful interception of telecommunications, surveillance and other investigations, police identified a syndicate with a hierarchical structure and identified a unit in Forrest Avenue, East Perth (the Forrest Avenue address) as a storage location (also known as a 'safe house') for prohibited drugs and cash.
The applicant, Mr Le and Mr Salcedo were observed at the Forrest Avenue address on numerous occasions, often together. Mr Salcedo was based in Perth and had possession of the keys to the property.
Records obtained during the investigation show that, before the date of the alleged offences, the applicant flew from Melbourne to Perth on at least 19 occasions in 2018, staying in Perth for a short time on each occasion, usually for one day, before returning to Melbourne. On several occasions she returned to Melbourne on the same day, spending as little as two hours in Perth.
Exhibit 2 also indicates that the applicant drove to Perth from Melbourne on three occasions in 2018 with her former husband and her daughter. It is not apparent what evidence is relied on in support of those allegations.
Vehicle leasing records also show that the applicant had leased seven hire cars from various companies at the Tullamarine airport in Victoria during 2018. The vehicles were driven to Western Australia and then transported back to Victoria by train.
In the days prior to 13 November 2018, the applicant went to the Tullamarine airport where she leased a grey Toyota Kluger, registration 302XMX (the Toyota), from Thrifty Car Rentals. She drove that car to Mr Tran's premises in Melbourne, where she gave him possession of the vehicle.
In the late evening of 13 November 2018, Mr Tran left Melbourne in the vehicle and drove to Perth, arriving at 6.35 pm on Thursday, 15 November 2018. Mr Tran stayed at the Flag Motor Lodge situated on Great Eastern Highway in Rivervale.
At 2.35 pm on Thursday, 15 November 2018, the applicant boarded a flight from Melbourne to Perth, arriving in Perth at 7.00 pm. The applicant then travelled by taxi from the airport to the Rendezvous Hotel on Mount Street in Perth.
At 7.41 pm, investigators intercepted a telephone conversation between Mr Tran and the applicant. The applicant asked Mr Tran to pick her up. At 8.00 pm, Mr Tran arrived at the Rendezvous Hotel and handed the keys to the Toyota to the applicant.
Mr Tran waited at the Rendezvous Hotel while the applicant drove to the Forrest Avenue address, which is within the Queens Garden apartment complex. At that address Mr Salcedo opened the electronic gate to the carpark.
The applicant parked the vehicle. She got out and walked around to the passenger side whilst Mr Salcedo approached the driver's side of the vehicle. At that point in time the investigators approached the vehicle and arrested the applicant and Mr Salcedo. Mr Tran was arrested at the Rendezvous Hotel.
Upon searching a black satchel being carried by Mr Salcedo, police found $30,835 in Australian currency, keys and an electric fob for a unit in Regal Place, East Perth (the Regal Place address).
Police searched the Toyata pursuant to a search warrant. Concealed under the centre console, they found 12 Cryovac (airtight) bags containing a total of 3 kg of methylmphetamine. In order to locate the bags, police had to dismantle the centre console.
Upon searching the relevant unit at the Forrest Avenue address, police located $350,000 in cash concealed in the lining of three Eskys. Some of the cash was packaged in sealed Cryovac bags. The rest was wrapped in cling wrap.
Inside an orange Esky, which was situated inside a wardrobe, police found a large clip seal bag containing 250 grams of methylamphetamine.
Upon searching the drawers under a desk in the lounge room, police found numerous clip seal bags containing approximately 500 grams of heroin. That is the subject of the third charge referred to above.

A set of digital scales in the style of a CD case was also found in the unit. The scales had traces of white powder on them. Further police found a Cryovac machine, unused Cryovac rolls, a money counter, large scales with detectable traces of a white crystal substance, large rolls of Glad wrap, several 'tick lists', and a press machine believed to be capable of pressing heroin into block form. 'Tick lists' are lists of names and numbers that ordinarily signify the names of persons who have been supplied drugs on credit and the money owed by them for the drugs.
At 12.05 am on Friday, 16 November 2018 a search was conducted under warrant at the Regal Place address. Police found $7,000 in Australian currency.
As was her right, the applicant did not participate in an electronically recorded interview.
The alleged facts in relation to the Criminal Investigation Act charge of failing to obey a Data Access Order are as follows.
During the search of the Toyota on the evening of 15 November 2018, police found and seized a Samsung mobile telephone. The telephone was found inside a 'Hello Kitty' backpack that was on the front passenger seat of the Toyota. The applicant had been seen to be carrying a 'Hello Kitty' backpack on every occasion she had been observed while under surveillance at Perth Airport during 2018. The mobile telephone was therefore believed to belong to the applicant. The police seized two other Samsung mobile telephones from the applicant.
On 28 November 2018, Detective Senior Constable Beyfus served a Data Access Order on the applicant at the remand facility where she is being held in custody. The order, under s 59 of the Criminal Investigation Act, related to the three Samsung mobile telephones seized by the police on 15 November 2018. Relevantly for present purposes, the order required her to provide information or assistance that is reasonable and necessary to allow the police to gain access to any data that may be contained on the mobile telephones. She was required to provide the information or assistance by 21 December 2018.
The police had reasonable grounds to suspect that the telephones would contain data providing evidence of the applicant's involvement in distributing prohibited drugs and the proceeds of drug dealing. The mobile telephones were 'locked', preventing access to data on the telephones. To unlock the telephones it was necessary to use a passcode, which may be in the form of a personal identification number (PIN), a password or a pattern. The specific request made of the applicant, pursuant to the order, was for the passcode to the telephones. She provided the pattern to unlock two of the telephones, but in respect of the third telephone (found in the backpack), which was labelled as Item 9, she said that the telephone did not belong to her and she did not have the password to that phone. She did not provide a passcode by 21 December 2018, and it appears she has not provided a passcode since then.
Police were able to download data from the first two telephones. In respect of Item 9, they were able to download data from the SIM card, which was removed, but they were not able to access data on the telephone's internal storage.

The strength of the prosecution case

It is not the task of the court on a bail application to make findings in relation to the alleged facts of offending. The applicant is presumed innocent. It will be for a jury in due course to determine whether the case against the applicant is proved beyond reasonable doubt. However, the court is required to make an assessment of the strength of the evidence against the applicant, if that is possible. That assessment is one of the factors that informs the court's findings in respect of the questions in cl 1. As McLure P noted in Milenkovski:[7]
The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
[7] Milenkovski [42].
In this case it is possible to make an assessment because of the detailed information provided to the court about the evidence.
That evidence includes a large number of lawfully intercepted text messages and telephone calls sent or made from and to telecommunications services used by the applicant. That evidence was produced in these proceedings in the form of tables or logs (attachments BG3, BG4, BG5 and BG6 to the affidavit of Detective Gardiner). Apart from details of the telecommunications devices, the date and time of each call, and the direction of messages or calls, the tables contain a column that purports to set out the contents of each message or call and a column that sets out the investigators' analysis of the message or call. Such material in that form will not be admissible at trial. Further, it appears that most, if not all, of the messages and calls were in a foreign language. Although there is no direct evidence of it in these proceedings, I understand that the State will establish the language used was Vietnamese. It is apparent that the content column does not always set out a verbatim or full[8] translation of the message or transcription of the words spoken during the call. However, the application was argued on the basis that evidence in admissible form, with full translations, will be adduced at any trial of the applicant.
[8] Bearing in mind that proper translations require adjustments to be made of syntax, and sometimes a nuanced approach to the meaning of words in order to accurately convey the meaning of things said in another language, and will not necessarily be achieved by a verbatim translation.
To the extent that some of the content is a direct translation or transcription, rather than a summary or paraphrase, the inference is open that the authors or speakers used coded language on numerous occasions. Without going into detail, it is open to infer from a number of the messages and calls that the applicant was talking about dealing in large quantities of prohibited drugs and large sums of money.
Counsel for the applicant informed me that there will be disagreement about translations, and there will be legitimate (innocent) explanations for the messages or calls from which the State is drawing incriminating inferences, that arise from other calls that may not be in the tables.
In determining the meaning to be given to the contents of messages and calls, the jury at any trial will need to consider the evidence in the context of other evidence, not in a piecemeal manner. That will include other calls, as suggested by the applicant's counsel, but also all of the evidence concerning the applicant's trips to Perth, the hiring of vehicles, the surveillance evidence and the events that occurred on 15 November 2018.
In any event, the telecommunications evidence is predominantly relevant to proof by the State of the overall enterprise. While the inferences the State contends for from that material would strengthen the State's case, the evidence in relation to the charge of possession of the 3 kg of methylamphetamine with intent to sell or supply is strong, given:
(a)the clandestine nature of the activities in which the applicant engaged upon her arrival in Perth;
(b)the fact that the applicant hired the vehicle in which the drug was found;
(c)the fact that she had someone else drive the vehicle to Perth, but then took control of the vehicle in Perth and drove it to the Forrest Avenue address;
(d)the fact that she was met at that address by Mr Salcedo, who was in possession of a satchel containing $30,835;
(e)the fact that the unit at the Forrest Avenue address was not being used as a residence, but had indicia of drug dealing, consistent with it being a location for the storage and distribution of drugs;
(f)the fact that concealed within the unit was $350,000 in cash.
On that evidence, there is a strong inference to be drawn that the applicant was in possession of the methylamphetamine, intended to sell or supply it to Mr Salcedo for distribution in Perth, and was to be paid a substantial sum of money by Mr Salcedo.
Although counsel for the applicant indicated that the applicant's knowledge of the presence of a prohibited drug in the car will be in issue at trial, there is no explanation from the applicant in the materials from which any assessment might be made of the extent to which the strength of the prima facie case might be diminished by the defence.
For those reasons, it was not disputed on behalf of the applicant that, prima facie, there is a strong prosecution case in relation to the charge of possession of the methylamphetamine with intent to sell or supply. Counsel was content to limit his submission to the proposition that it cannot be said that conviction is inevitable.
In light of the strength of the case on the first charge, it is not necessary to consider the strength of the case in relation to the second and third charges referred to above. It seems to me that the prospects of conviction on the money laundering charge, which I have understood to relate to the money Mr Salcedo was carrying, which it is alleged was intended for the applicant, may well depend on the strength of the case in respect of the first charge in any event.
As for the charge of failing to obey Data Access Order, counsel for the applicant submitted that the applicant could not be convicted of that charge if the telephone (Item 9) was not hers and she honestly disclosed that. That is so, but the evidence, as I outlined it, provides a strong basis for inferring that it was a telephone used by the applicant. In any event, the assessment of the strength of the case on that charge would not determine this application. It is not necessary to consider that matter further in this context, although it has some bearing on the issue of whether the applicant would comply with bail conditions.
Taking into account the above analysis in respect of the evidence concerning the methylamphetamine charge, I consider that the applicant must apprehend that there is a real prospect she will be convicted of the most serious of the offences charged.

The applicant's personal circumstances

The applicant is 36 years old. She was born in Vietnam. In 2005 she moved to Melbourne from Vietnam. She had lived in Melbourne until her arrest on the current charges. She is a permanent resident.
The applicant has been married to Thao Trong Truong for 3 years. She has two children from a previous marriage, being a son who is aged 13 years and a daughter aged 6 years. She also has a one‑year‑old daughter, from her current relationship with Mr Truong.
The applicant has two sisters who, along with their children, also reside in Melbourne.
The applicant has no criminal history. The occasion has not previously arisen for her to be on bail, so there is no history of any previous grant of bail for the purposes of cl 3.
Neither of the applicant's sisters has a criminal history. Nor does her husband.
Prior to being arrested the applicant was living with Mr Truong and her three children in a suburb of Melbourne. She states that she was a full time 'stay at home' mother before she was remanded in custody, and was the children's primary caregiver. She states that Mr Truong works full time and is struggling to care for the children without her assistance. The applicant also states that her sisters are only able to provide her husband with 'limited' support.
The applicant has an 'uncle' and 'aunt', Mr Ta and Ms Nguyen, who live in Perth. The Bail Assessment Report in respect of home detention relates to their home. The information provided to the author of the report is that the applicant is the daughter of Mr Ta's cousin, who resides in Vietnam. Further, the applicant has not previously met Mr Ta or Ms Nguyen. They were approached by one of the applicant's sisters, who asked for their assistance to support the applicant. During the assessment by the author of the report, they communicated through a family friend, Mr Nguyen, so it appears they are not proficient in English.
The applicant informed the author of the report that all of her direct relatives live either in Victoria or in Vietnam. It appears, therefore, that she continues to have family ties to Vietnam.

Co-accused

Mr Salcedo, Mr Tran and Mr Le were also charged. Although I have not been provided with details of the charges they face, I understand them to relate to the possession of the 3 kg of methylamphetamine found in the vehicle hired by the applicant. I was informed that Mr Le was arrested when he flew to Perth from Melbourne.
Mr Salcedo and Mr Tran have been remanded in custody. I was informed at the hearing that Mr Le was granted bail in the Magistrates Court on 17 April 2019.

The parties' submissions

In opposing the application, the respondent submitted that the questions of significance in this case are whether, if not kept in custody, the applicant will fail to appear in court, will commit an offence or will interfere with witnesses. Specifically it was asserted that Ms Ta was a significant flight risk. It was said that the significant flight risk arose from the seriousness of the offences, the strength of the case, and the likely sentencing outcome if she is convicted.[9]
[9] ts 22.
The applicant disputed that there was any basis for concluding, on the materials before the Court, that she would commit an offence or interfere with witnesses if released on bail. However, she did not dispute that it can be inferred from all the circumstances that there is a possibility she will fail to appear if she is not kept in custody. However, it was submitted on her behalf that the possibility can be sufficiently reduced by the imposition of reasonable conditions, including home detention.
She relied on a number of factors which she submits, in combination, weigh in favour of a grant of bail, notwithstanding the seriousness of the alleged offending and the risk of flight that may be inferred. They are as follows:
(a)The applicant is the primary caregiver for her children, whose care is difficult for her husband and extended family; and
(b)The applicant's children will be brought to Western Australia to reside with her at her uncle's home, where she would reside under home detention bail;
(c)There are logistical difficulties running a defence and taking instructions, given taking instructions from the applicant requires an interpreter;
(d)The substantial delay before the applicant could be brought to trial.
Before dealing with those factors, which can properly be taken into account as 'other matters' under cl 1 and cl 3, it is appropriate to deal with the specific questions that are relevant in this case under cl 1.

Consideration of cl 1 questions

I am not persuaded on the materials before me, having regard to the matters set out in cl 3, that there is an actual or real, as distinct from theoretical or hypothetical, possibility or risk that the applicant would commit an offence or interfere with witnesses if not kept in custody. She does not have a criminal record and there is no evidence in these proceedings that she has engaged in any form of intimidation in the course of the alleged offending. The alleged offending in this case does not provide a basis for concluding that the applicant would offend if she were on bail. She has never previously been on bail.
I accept that the risk of flight carries with it the risk that the offender would commit an offence associated with absconding, but that adds nothing to the risk of flight as a basis upon which bail might be refused.
The respondent's submission in relation to interference with witnesses relied on the fact that the applicant is alleged to have been part of a criminal syndicate which would endeavour to protect its own interests, and that there are a number of civilian witnesses in this case who give evidence about the leasing of vehicles, the booking of flights and other matters of that kind. Most of the facts in relation to those matters are established by documentary evidence. While there may be a need for witnesses to produce and speak to those documents, it seems to me that the risk of interference with such witnesses does not rise above a hypothetical risk.
The risk that is real in the circumstances of this case is that the applicant will fail to appear in the criminal proceedings if she is not kept in custody. As I have said, the applicant concedes that risk can be inferred. Nevertheless, it is necessary to assess the nature and extent of the risk, which will bear upon the question of whether any condition could reasonably be imposed to sufficiently reduce the risk
It is necessary to make that assessment having regard to the matters specifically identified in cl 3.

Nature and seriousness of the offences

The first matter is the nature and seriousness of the offence and the probable method of dealing with the applicant for it if she is convicted. The MDA offences are very serious offences, in particular the the offence relating to 3 kg of methylamphetamine. As I noted earlier, the maximum penalty for that offence is life imprisonment, and the maximum penalty for the offence in relation to the 500 grams of heroin is 25 years' imprisonment.
It was conceded on the applicant's behalf that the charges were 'extremely serious' and that, if convicted, the applicant will receive a lengthy term of imprisonment.[10] For offences of possession of methylamphetamine with intent to sell or supply, where the amount is in the order of the amount found in this case and where the offender is relatively high in the hierarchy of dealing or distribution, as the applicant is alleged to have been in this case, sentences of between 10 and 15 years' imprisonment have been held by the Court of Appeal to have been appropriate.
[10] ts 12, 13.
Therefore, the probable outcome in the event of conviction provides a powerful incentive for the applicant to abscond in order to avoid that outcome. That is a matter of logic, experience and commonsense.[11] The possibility that the applicant will be motivated to do so is reinforced by consideration of the last matter under cl 3, namely the strength of the evidence against the applicant.

Strength of the evidence against the applicant

[11] Milenkovski [53] (Hall J).

As I said earlier, I am satisfied that the evidence, as outlined in these proceedings, discloses a strong case against the applicant, such that the applicant must apprehend there is a real prospect that she will be convicted of the offence charged. The applicant was ostensibly in control of the 3 kg of methylamphetamine, in that she had hired and was in control of the vehicle that contained the drug. Her intention can be inferred from the fact that she drove the vehicle to an address that ostensibly was being used as a safe house for the storage of prohibited drugs and the proceeds of sale of prohibited drugs, where a very substantial sum of money was available.
While, as counsel for the applicant has submitted, conviction may not be inevitable, there is nothing before me at this stage to detract from the finding I have made about the strength of the evidence against the accused and the likely impact on her motivation to avoid trial.

Character and antecedents

The next specific matter to be considered under cl 3 is the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant. I referred to some of those matters in outlining the applicant's personal circumstances. On balance, I consider the effect of those matters to be neutral in considering the applicant's flight risk.
The applicant's background reveals a person of apparent good character from a family that does not have a criminal history. However, if the telecommunications evidence is to be construed as the State alleges, she has connections with other persons who are engaged in criminal activity.

Further, the applicant has loose ties to the jurisdiction. She has never met the relatives with whom she would reside in Western Australia. The applicant's counsel submitted that the fact they are not close relatives might be regarded as a reason why they would be more vigilant in monitoring the applicant and reporting any indication that she might abscond. There is merit to the submission. On the other hand, however, those relatives appear to have little, if any, facility with English, and because of their lack of familiarity with the applicant and her behaviour, may be less capable of adequately monitoring her compliance with home detention conditions and the risk that she might abscond. It is doubtful, in my mind, that they would be able to exercise any influence over the applicant or be expected to alert authorities if it became clear the applicant was planning to abscond.
The applicant has said that arrangements will be made to bring her youngest children to Western Australia to live with her, and that will provide a significant tie to this jurisdiction and an incentive for her to remain. I accept that her children are significant ties to Australia, if not Western Australia. However, it is not immediately clear why her desire to be with her children would not provide just as much incentive to flee as to stay, given the very significant term of imprisonment that would be imposed if she is convicted and the inevitable separation from her children.
Although the applicant has permanent residency, she is not an Australian citizen and continues to have significant family ties to Vietnam, which consequently may be regarded by the applicant as a potential haven if she were to abscond.
The applicant's counsel noted that there is no evidence before the court that the applicant has savings that would facilitate her flight and enable the applicant to sustain herself as a fugitive. That is so. However, I accept the respondent's submission that the evidence of the applicant's numerous trips to Western Australia during 2018 and the money found at the Forrest Avenue address indicate that the applicant has access to substantial sums of money, alternatively, that others in the syndicate do and would be prepared to assist the applicant financially if she were to abscond.

History of previous grants of bail

The final specific matter to be considered under cl 3 is the history of any previous grants of bail to the applicant. As I noted earlier, she has no prior criminal history. Therefore, I regard the effect of this factor to be neutral in considering the applicant's flight risk.

The applicant poses a significant flight risk

Having taken into account all of the matters under cl 3, I am satisfied that the applicant poses a significant flight risk, for the reasons outlined in [85] to [89] above.

Whether conditions can be imposed to reduce the risk sufficiently

Turning to the conditions that could be reasonably imposed, the applicant submitted that, apart from any other conditions the court may consider necessary, conditions requiring (a) a substantial personal undertaking and a substantial surety, (b) reporting to the police, (c) surrender of her passport, (d) maintaining a specified distance from any airport or point of departure from the jurisdiction and (e) home detention, would sufficiently reduce the risk of flight, such that the applicant's detention on remand would no longer be warranted.
I would not regard any condition short of home detention to be adequate to reduce to an acceptable level the risk that the applicant would fail to appear if she is not kept in custody.
The author of the Bail Assessment Report concluded that the proposed residential address would be suitable for home detention, and the applicant was regarded as a suitable candidate, notwithstanding the shortcomings to which I have referred concerning the lack of relationship between the applicant and her relatives and their lack of facility with the English language. The relatives have said that they are prepared to provide support to the applicant.
Notwithstanding the fact that there is no history of the applicant breaching bail and the availability of suitable accommodation for home detention, I am not satisfied that home detention or the combination of proposed conditions would prevent the applicant from absconding if she chose to do so. Further, I consider that the incentive for the applicant to make that choice (as discussed above) is such that the very substantial potential loss to her surety, and the likely separation from her children (at least in the immediate future), would not be sufficient counterweights to justify the court having any confidence that the applicant would comply with her bail undertaking.
The following view expressed by Le Miere J in R v Quaid [2009] WASC 202 [43] is apt in this case:
To a large extent, the effect of conditions, even home detention, is to provide early notice that the applicant has fled or is fleeing but they do not sufficiently remove the possibility that the applicant may fail to appear in court.
That case involved a charge of conspiracy to traffic in a commercial quantity of a border controlled drug. On the evidence presented in that case, Le Miere J concluded that the accused had the 'means and associations' to flee if he chose to do so.
Similarly in this case, the nature of the syndicate and the operation disclosed in the Statement of Material Facts and the materials from the prosecution brief that were tendered in the application, support the conclusion that the applicant has the means and associations to abscond if she chose to do so. On the facts alleged in those materials, it was a sophisticated operation in which the applicant was an integral and trusted participant. It may be inferred from the apparent nature of the syndicate that it would have the means to overcome any conditions of the kind that have been proposed that could reasonably be imposed to ensure that the applicant were to comply with an undertaking to appear in relation to this matter. In my opinion, that inference can be drawn notwithstanding the restrictive nature of the conditions, including the reporting condition and home detention, which would include electronic monitoring by a tracking device affixed to the applicant.
The applicant has demonstrated the capacity to travel frequently by different means, including driving from Victoria to Western Australia. The materials before me also indicate that she has demonstrated a preparedness to travel under a false name.
While I accept that the applicant desires to see her children and be a part of their lives, the applicant's counsel frankly indicated that bringing the applicant's children to Western Australia was a means to create ties with the jurisdiction so that the court might be more confident that she would comply with her bail, in circumstances where it was acknowledged that release on bail to a residence outside the jurisdiction was unlikely, because of the heightened risk that the applicant would fail to appear. I do not criticise the applicant for endeavouring to be with her children and creating the tie with Western Australia, but the endeavour highlights the fact that the applicant really has no family or economic ties with the jurisdiction.
In summary, I consider that there are no conditions which could reasonably be imposed which would sufficiently remove the possibility that the applicant may fail to appear in court.

The applicant's arguments

The applicant submitted there were other factors I should take into account which should tip the discretionary scales in favour of a grant of bail, notwithstanding the conclusion I have just expressed. In essence, the submission is that the factors require a recalibration of what is an acceptable risk in determining the sufficiency of bail conditions, because of the potential injustice to the applicant.
I have referred to the factors at [78] above and will deal with them now.

Care of children

While I do not doubt the applicant's desire to be a mother to her children, the claim that she was a 'stay at home' mother and the primary care-giver for her children must be considered in the context that she travelled to Western Australia on at least 19 occasions during 2018. While her stays in Perth were short, she was nevertheless prepared to leave an infant child at home to be cared for by someone else during that time.
In any event, while I accept that the applicant's absence places a burden on the applicant's partner and her sisters to look after the children, it is not such as to justify a grant of bail when other factors justify a refusal of bail. There is no suggestion that the children are receiving inadequate care. I am mindful of the emotional impact that the applicant's absence may have on her children, in particular the two youngest children. It is regrettable, but sympathy for the children cannot override the need to safeguard the integrity of the criminal justice process, particularly in a case involving alleged offending of a most serious kind, which had the potential to cause significant harm in the community.
As I have already discussed, I do not consider that bringing the children to Western Australia provides a sufficient basis for concluding that the flight risk would be sufficiently reduced. It would seem that in doing so the children may then be deprived of other family connections, including with the applicant's current partner, who has a business in Victoria. If other family members were to travel to Western Australia with the children, the children could be cared for and be able to visit the applicant if she remains in custody.

Difficulty accessing brief and giving instructions

The second matter relied on by the applicant concerns her (and her counsel's) ability to properly prepare for her trial, in order to ensure that the trial is fair.
It was submitted that the applicant's ability to come to terms with the voluminous materials constituting the prosecution brief, in circumstances in which she will need a translator, is significantly compromised while she remains in a prison environment. Further, it will be very difficult for counsel or any other legal representative to take instructions from the applicant because of the limited time available during prison visits, the need for an interpreter, which may be difficult to arrange, and the volume of material, including the large volume of telecommunication materials, most of which in original form are in a foreign language. Apart from the potential injustice from the compromised nature of preparation in such circumstances, the difficulties could lead to the 'blowing out' of the time the matter would take to get to trial.[12]
[12] ts 14 - 15.
There is no evidence before me of any difficulties having arisen to date or of any attempts to address any such difficulties by taking the matters up with the prison authorities. I accept that the potential exists for the difficulties that have been identified by counsel to arise. However, at this stage, I am not satisfied that the potential for difficulties to arise provides a sufficient basis to recalibrate the view I have reached that the risk of flight cannot be reduced to an acceptable level by the imposition of conditions, including home detention.
If at some future time it becomes apparent that the applicant's ability to defend the charges is significantly hampered because of the sorts of difficulties identified by counsel, and evidence of that is available, the question of bail can be reconsidered.

Time that will elapse before trial

I do not have evidence as to when the charges are likely to come to trial. I accept that the delay may be significant. It would appear that a trial will be lengthy, especially if there is to be a joint trial with the co‑accused, which appears likely. I will proceed on the basis that the trial is likely to be held next year. In my opinion, the time that is likely to elapse before trial is not such as to warrant a grant of bail on the basis of potential injustice, when otherwise I am satisfied of a real risk of flight and the inability of bail conditions to reduce that risk sufficiently. In the event that the applicant is convicted of the most serious charge, the non‑parole period of an appropriate term of imprisonment would be significantly greater than the time she will have spent in custody.
Of course, the issue of delay in getting to trial is a matter that would be kept under review. Once the applicant is committed for trial to the District Court, and the availability of trial dates is known, the question of whether there will be delay of a kind that would make it unjust to continue to detain the applicant on remand can be revisted.

Authorities

The applicant's counsel referred to two authorities, concerning similar alleged offending, which were said to be indicative of circumstances in which bail may be considered appropriate because of the delay in a matter getting to trial, or because bail conditions of the kind proposed in this case have been considered to be sufficient to reduce any risk of flight. Those cases are Milenkovski v The State of Western Australia [No 2] [2011] WASC 273 and Chadburne v The State of Western Australia [2014] WASC 160. Both were bail decisions at first instance in this Court. Neither case was advanced as being directly comparable, but it was submitted they were illustrative of the point being made by counsel for the applicant. It appears Chadburne was referred to in the Magistrates Court in the hearing that resulted in the co‑accused, Mr Le, being granted bail.
In my view, the exercise of discretion in both of those cases depended on the facts of those cases, which were different in a number of respects from this case. In Milenkovski, it was considered by McKechnie J to be significant that the prosecution had been responsible for inordinate delay in the matter proceeding to trial because of delays in disclosure, which had occurred on a 'drip feed' basis. As his Honour said:[13]
The excessive delay, for which the prosecution conduct is a substantial cause, brings the scales of justice down on the side of a closely confined grant of bail.
[13] Milenkovski v The State of Western Australia [No 2] [85].
No such circumstance exists in this case at this stage.
On my assessment of the circumstances in Chadburne, the case was not as strong as the case in the present case. Chadburne had provided an explanation for how he came to be driving a vehicle that contained 2.8 kg of methylamphetamine, 8.35 kg of MDMA and 483 grams of cocaine. He was in the transport business. He denied any knowledge of the drugs. At the bail hearing there was no prosecution brief or witness statements. Chadburne had not been apprehended with others. He was stopped in his truck en route, not in circumstances in which it was apparent, as is alleged in this case, that there was a particular person who was about to receive the drugs. In that case there was not the kind of evidence presented at this hearing pointing strongly to the existence of a syndicate.
In all the circumstances, the fact that bail conditions, including home detention in Chadburne's home state (not Western Australia), were considered to be adequate in that case, after careful consideration by Hall J of the materials before him, does not assist, with respect, in the determination of that issue in this case.
Of course, there have been cases in which bail has been refused in similar circumstances of alleged offending. Quaid, referred to above, is an example, although it must be acknowledged that the personal circumstances of the accused in that case were quite different to those of the applicant in this case.

Conclusion in relation to the additional factors

Ultimately, the determination of the application involves an exercise of discretion that requires the weighing of various competing factors.
I am of the view that the matters on which the applicant relies do not outweigh the factors that otherwise make a grant of bail inappropriate. Those factors remain compelling reasons why the applicant should be kept in custody pending trial in this matter.

Conclusion

For the reasons I have given, a grant of bail is not appropriate in this case.
Accordingly, the application for bail is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Secretary
9 AUGUST 2022