Zayneh v The King
[2023] VSCA 311
•11 December 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCR 2023 0150 | |
| DANNY ZAYNEH | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER, TAYLOR and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 November 2023 |
| DATE OF JUDGMENT: | 11 December 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 311 |
| JUDGMENT APPEALED FROM: | [2023] VSC 470 (Justice Beach) |
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CRIMINAL LAW – Appeal – Bail application refused – Two year delay at time of bail application – Likely four year delay before trial, possible five year delay before trial –Exceptional circumstances established by delay – Bail judge held unacceptable risk of flight – Restrictive bail conditions not removing unacceptable flight risk – Right to be brought to trial without unreasonable delay – Effect of Charter of Human Rights and Responsibilities 2006 on application of Bail Act – Conclusions of bail judge reasonably open – Appeal dismissed.
Bail Act 1977, ss 1B, 3, 3AAA, 4, 4A, 4AA, 4D, 4E, 5; Supreme Court Act 1986, ss 17, 17A; Charter of Human Rights and Responsibilities 2006, ss 7, 21, 25, 32.
Re Diab (2020) 282 A Crim R 462, Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, Fernandez v Director of Public Prosecutions (2002) 5 VR 374 followed.
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| Counsel | |||
| Appellant: | Mr D A Dann KC | ||
| Respondent: | Mr C J Winneke KC with Ms K Breckweg | ||
| Chief Commissioner of Victoria Police | Ms A Haban-Beer | ||
| Solicitors | |||
| Appellant: | Lewenberg & Lewenberg | ||
| Respondent: | Solicitor for the Commonwealth Director of Public Prosecutions | ||
| Chief Commissioner of Victoria Police | Victorian Government Solicitors Office | ||
WALKER JA
TAYLOR JA
BOYCE JA:
The appellant is currently facing five serious criminal charges involving importation and trafficking of significant quantities of drugs, dealing with proceeds of crime and possessing a handgun without a licence.[1] He was arrested on 7 June 2021, and has been in custody ever since. Three of the charges are Schedule 1 offences within the meaning of s 3 of the Bail Act 1977 (the ‘Act’).[2] Thus, by reason of s 4A of the Act, he must be refused bail unless he establishes the existence of exceptional circumstances that justify a grant of bail. If he succeeds in establishing exceptional circumstances then, by reason of s 4E of the Act, he must be refused bail if the respondent establishes that he poses an unacceptable risk of, relevantly for present purposes, failing to answer bail. If the respondent fails to discharge that burden, the appellant is entitled to bail pursuant to s 4 of the Act.
[1]The charges are as follows: two charges of conspiring to import a commercial quantity of a border-controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) (charges 1 and 2); one charge of trafficking in a commercial quantity of a controlled drug, contrary to s 302.2(1) of the Criminal Code (charge 3); one charge of dealing with money that was, and believed to be, proceeds of crime, contrary to s 400.6(1) of the Criminal Code (charge 4); and one charge of possessing a registered general category handgun other than for the purpose of collecting, without being the holder of a licence, contrary to s 7(1) of the Firearms Act 1996 (charge 5).
[2]Charges 1, 2 and 3: see items 8, 9 and 12 of sch 1 of the Act.
In December 2021, the appellant applied for bail in the Magistrates’ Court. His application was refused. In July 2022, he made a further application for bail in the Magistrates’ Court. That application was also refused. On 5 July 2023, the appellant applied for bail in the Supreme Court. That application too was refused,[3] on the basis that although the appellant had established exceptional circumstances justifying a grant of bail, the judge was satisfied that there is an unacceptable risk that the appellant would, if released on bail, fail to surrender into custody in accordance with the conditions of bail.[4]
[3]Re Zayneh [2023] VSC 470 (‘Reasons’).
[4]Reasons, [2], [43].
The appellant now appeals[5] from the most recent refusal of bail on a single ground:
The finding that the prosecution had established that the appellant was an unacceptable risk of failing to surrender into custody in accordance with conditions of bail was unreasonable.
[5]The appeal was brought as of right pursuant to s 17(2) of the Supreme Court Act: see Dale v DPP [2009] VSCA 212, [18]–[22]. We observe, for completeness, that leave to appeal was not required because the judge’s decision falls within s 17A(4)(b) of that Act, being a decision affecting the liberty of a person. Section 17A(4)(b) was not disapplied by either s 17A(3) or s 17A(4A) of the Supreme Court Act, because the judge’s decision to refuse bail was not a decision in ‘a proceeding in … the Trial Division of the Supreme Court for the prosecution of an indictable offence’ and therefore fell outside the regime for criminal appeals, including interlocutory appeals, set out in pt 6.3 of ch 6 of the Criminal Procedure Act.
For the reasons that follow, the appeal will be dismissed.
However, it is appropriate to record our concern about the potential delay in this case. As matters presently stand, the appellant has been on remand for some two and a half years and he has not yet been committed for trial. A delay of that length is inordinate, and it is plain that the appellant will not be tried in the immediate future, thus his ultimate time on remand will be even longer. As the judge concluded, this provides a basis for the conclusion that the appellant has established exceptional circumstances for the purposes of s 4A.
Furthermore, the length of the delay is relevant to the question whether the risk that the appellant would not answer bail is unacceptable for the purposes of s 4E. We endorse the judge’s remark that ‘the delay (and in particular any unacceptable delay) may come to be of such a magnitude that risks which would in other circumstances be regarded as unacceptable, may properly be viewed as acceptable’.[6] Thus, although we found no error in the judge’s decision, the courts will not simply tolerate delay of any length in bringing the appellant to trial because he poses a flight risk. Rather, sufficient resources must be committed to the prosecution to ensure it proceeds swiftly, otherwise there will come a point where a judge hearing a further bail application will have no choice but to grant bail.
[6]Reasons, [42].
That is, there 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.[7] In a case where delay constituting exceptional circumstances has already occurred, those facts and circumstances are likely to include detailed information about the reasons for the delay and about what steps, if any, have been taken to progress the proceeding.
[7]In that regard, we do not entirely endorse the judge’s remark that ‘if at some stage it becomes apparent that a trial before the end of 2026 is no longer likely, the issue of unacceptable risk may have to be revisited in the light of all of the circumstances which then might exist’: Reasons, n 27. We do not foreclose that point arriving at some earlier time. As was the case in Re Quach [2022] VSC 7, [34] (Priest JA), the likely length of the expected delay will be better capable of assessment once the individual committal proceedings have concluded.
Relevant statutory provisions
The Bail Act
Section 1B of the Act sets out ‘guiding principles’ that Parliament intends are to be considered in the interpretation and application of the Act:[8]
(1) The Parliament recognises the importance of —
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
[8]See s 1B(2).
Section 4 of the Act provides that an accused person who is being held in custody in relation to an offence is entitled to be granted bail unless the relevant decision-maker is required to refuse bail by the Act.
Pursuant to s 4AA(1) of the Act, a special test (the ‘step 1—exceptional circumstances test’) applies to a person accused of a schedule 1 offence (which is the case here). A note to s 4AA provides as follows:
Section 4E sets out the unacceptable risk test. In circumstances where a step 1 test applies, section 4D provides that the unacceptable risk test will apply as a step 2 test. However, under section 4E, the unacceptable risk test applies even in circumstances where no step 1 test applies.
The step 1 — exceptional circumstances test is set out in s 4A of the Act, as follows:
(1A)The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
(2)The accused bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances.
(3)In considering whether exceptional circumstances exist, the bail decision maker must take into account the surrounding circumstances.
Note
The term surrounding circumstances is defined in section 3. Also the bail decision maker is required to take into account other matters if the accused is an Aboriginal person or a child. See sections 3A and 3B.
(4)If the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail, the bail decision maker must then move to step 2 — unacceptable risk test.
Section 4D sets out when a bail decision-maker is required to apply the step 2 —unacceptable risk test, as follows:
(1) A bail decision maker must apply the unacceptable risk test if —
(a)at step 1 (section 4A) the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail for a person; or
(b)at step 1 (section 4C) the bail decision maker is satisfied that a compelling reason exists that justifies the grant of bail for a person.
(2)For the application of the unacceptable risk test, the prosecutor bears the burden of satisfying the bail decision maker —
(a)as to the existence of a risk of a kind mentioned in section 4E(1)(a); and
(b)that the risk is an unacceptable risk.
(3)On applying the unacceptable risk test, the bail decision maker must refuse bail if required to do so by section 4E.
Section 4E sets out the unacceptable risk test, as follows:
(1)A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that —
(a) there is a risk that the accused would, if released on bail —
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk.
Example
An unacceptable risk that the accused, if released on bail, would commit a family violence offence.
(2) The prosecutor bears the burden of satisfying the bail decision maker —
(a)as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b)that the risk is an unacceptable risk.
(3)In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must —
(a) take into account the surrounding circumstances; and
Note
The term surrounding circumstances is defined in section 3. Also the bail decision maker is required to take into account other matters if the accused is an Aboriginal person or a child. See sections 3A and 3B.
(b)consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
‘Surrounding circumstances’ is defined in s 3AAA of the Act, relevantly as follows:
(1)If this Act provides, in relation to a matter, that a bail decision maker must take into account the surrounding circumstances, the bail decision maker must take into account all the circumstances that are relevant to the matter including, but not limited to, the following —
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused —
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force —
(i)a family violence intervention order made against the accused; or
(ii)a family violence safety notice issued against the accused; or
(iii)a recognised DVO made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
…
(i) the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged.
Section 5(1) of the Act provides that a grant of bail must require the accused to enter into a written undertaking to surrender into custody at the time and place of the hearing or trial and not to depart without leave of the court and, if leave is given, to return at the time specified by the court and again surrender into custody. Section 5(1A) provides that an accused who enters into an undertaking is under a duty to attend court for the hearing or trial specified and surrender into custody on so attending.
The notes to s 5 provide as follows:
Notes
1Sections 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.
2Sections 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.
3Section 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.
The Charter of Human Rights and Responsibilities 2006
The Charter sets out various rights that Parliament seeks to protect and promote in pt 2, which includes ss 21 and 25.
Section 21 of the Charter of Human Rights and Responsibilities 2006 (the ‘Charter’) relevantly provides as follows:
(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 addition, s 25(2)(c) of the Charter provides that a person charged with a criminal offence is entitled to be tried without unreasonable delay.
Section 7(2) of the Charter provides that the rights protected by the Charter may be subject under law to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. The section sets out the following relevant factors to be taken into account in determining whether a limit on rights is justified:
(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 of the Charter, which is in div 3 of pt 3, provides that, as far as possible, and consistently with their purpose, all legislation must be interpreted in a way that is compatible with the human rights set out in pt 2.
The prosecution case
The prosecution case was succinctly summarised by the judge in his reasons as follows:
The prosecution case is that the appellant 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 the appellant 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 the appellant 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 charge 1, it is alleged that, between 31 March and 7 June 2021, the appellant conspired to import 600 kilograms of methamphetamine and 600 kilograms of cocaine from the USA.
In relation to charge 2, it is alleged that, between 31 March and 7 June 2021, the appellant conspired to import 400 kilograms of methamphetamine from India.
In relation to charge 3, it is alleged that, between 7 April and 7 June 2021, the appellant trafficked four kilograms of methamphetamine in Melbourne.
The appellant 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 (charge 4); and a Glock 17 pistol and ammunition were allegedly found under a tile in the patio (charge 5).
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, the appellant would have been entitled to ‘a significant percentage commission’, as well as ‘buying in’ 25 kilograms for his own distribution.
Factual background
The factual background was summarised by the judge in his reasons as follows:
The [appellant] 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…. The [appellant]’s wife is employed by a bank. Significant assets held by the [appellant], his wife and companies described as the [appellant]’s corporate vehicles have been the subject of restraint orders made in the County Court.
12 The [appellant] 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.
13 The [appellant] 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 the [appellant]’s co-accused made a successful application for bail.
By the time of the hearing before the judge, the appellant had been in custody for a little over two years. As the judge observed, there are significant complexities associated with the proceeding against the appellant, including the need for two committals — a joint committal and an individual committal.[9] At the time the judge heard the application for bail, neither the joint committal nor the individual committal had commenced. The joint committal was scheduled to commence in September 2023, and the judge concluded that the applicant’s individual committal would not be heard before 2024.
[9]Reasons, [33].
The judge further concluded that, 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’. Accepting the inherently speculative nature of the analysis, his Honour said that, given the size of this case, and the matters likely to be in dispute between the parties, a trial in 2026 ‘is a real possibility’. As he observed, by that time, the applicant will have been in custody awaiting trial for approximately five years.[10]
[10]Reasons, [33].
The parties’ submissions below concerning unacceptable risk
The judge summarised the appellant’s submissions in relation to whether he was an unacceptable risk of flight as follows:
The applicant contended that various matters ameliorated any such risk ‘rendering it such that the respondent cannot establish that it [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 the applicant to comply with his bail conditions and to answer his bail.
(2)Electronic monitoring: The applicant 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 the applicant’s family in the affidavits sworn by them. These undertakings include immediately informing the police upon becoming aware that the applicant has breached any of his bail conditions. The applicant’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. Mr Barbar has undertaken to closely monitor the applicant’s daily work activities and that he will, within 60 minutes of becoming aware that the applicant has not reported for work, notify the police of that fact.
(4)Restrained property: Court orders exist restraining the assets and property of the applicant 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: The applicant 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, Mr Lewenberg proposed 21 conditions of bail, including the applicant:
•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 details and SIM 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 the applicant 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 Act, including a condition that would effectively require the applicant to stay within the apartment to where he would be bailed 24 hours a day/7 days a week.[11]
[11]Reasons, [18]–[19].
In contrast, the respondent submitted that the appellant has a strong motive to flee the jurisdiction and avoid apprehension, given his alleged ‘apex’ role in the offending, coupled with the strength of the prosecution case and the likelihood of a lengthy gaol term if convicted.[12]
[12]Reasons, [21(3)].
The respondent further submitted that there was evidence of discussions between the appellant and a co-offender in relation to the provision of five figure sums of money per month to his family to meet their needs if he were to flee, as well as a discussion between the applicant and his brother about fleeing to countries with which Australia has no extradition treaty. The respondent asserted that the appellant has had $7.5 million in assets restrained by the court, but that there was also evidence that he had said that he had $5 million in ‘stook’ (hiding).[13]
[13]Reasons, [28]–[29].
In relation to the appellant’s proposal for electronic monitoring, the respondent submitted that such a monitoring program ‘attracts a host of difficulties for the informant from an operational perspective’. In summary, the respondent submitted that electronic monitoring does not sufficiently ameliorate the risk of flight.[14]
[14]Reasons, [30].
The judge’s decision
The judge held that the appellant had established exceptional circumstances, so as to satisfy the step 1 — exceptional circumstances test. That was a consequence of the delay that had already occurred in bringing the appellant to trial, and which was likely to continue in the future. His Honour observed that a ‘period of four years on remand (let alone five years if the … trial does not take place until 2026) is completely unacceptable’.[15]
[15]Reasons, [34].
However, the judge held that the respondent had established that the appellant is an unacceptable risk of failing to answer bail. His reasons for that conclusion were as follows:
[T]he primary risk in this case is of the applicant failing to answer any bail that might be granted to him. On the issue of that risk, the most significant surrounding circumstances are the nature and seriousness of the alleged offending, the strength of the prosecution case and the likely sentence which would be imposed if the applicant were to be found guilty of the offences with which he is charged.
… [C]harges 1 and 2 involve allegations that the applicant conspired to import 1.6 tonnes of border-controlled drugs. The maximum term of imprisonment for each of those charges is life (as is the maximum term of imprisonment for charge 3). If convicted of one or both of those charges, the applicant could reasonably expect to be sentenced to a term of imprisonment measured in decades — if not life imprisonment. The material filed on this application discloses that the applicant appears to have the wherewithal and resources to flee the jurisdiction — most probably to a jurisdiction which does not have an extradition treaty with Australia. When one examines all of the circumstances of this case, one cannot but conclude that, if released on bail, the applicant would have a very powerful motivation to flee the jurisdiction — notwithstanding the devastating consequences that might have for the applicant’s immediate family and for those other family members who may have provided significant sums/assets by way of surety.
The question … is whether the respondent has persuaded me that the obvious risk of the applicant fleeing the jurisdiction and not answering his bail is, in all of the circumstances (including the various undertakings, sureties and bail conditions proffered by the applicant, together with the other matters upon which the applicant relies), an unacceptable one.
In many cases, undertakings, sureties, bail conditions and the other matters advanced by the applicant in this case would collectively be sufficient to make the risks referred to in s 4E(1)(a) of the Act acceptable. In this case, however, the respondent has persuaded me that notwithstanding all of the matters proffered and advanced by the applicant, a grant of bail to him would still involve an unacceptable risk of the applicant failing to surrender into custody in accordance with any grant of bail that might be made to him. A person with the resources the applicant appears to possess can easily flee the jurisdiction without the need for any passport that might have been surrendered. The amounts involved in the applicant’s alleged offending suggests that forfeited sureties might be of little moment to the applicant. Moreover, electronic monitoring would likely pose little problem for a person as well-resourced as the applicant appears to be and who would likely prefer to avoid the possibility of a very long period of incarceration following a trial for offending which is alleged to be extremely serious.
In short, the respondent has persuaded me that there are no realistic terms or conditions upon which the applicant could be admitted to bail which would make the risk of the applicant not surrendering himself into custody in accordance with the conditions of bail an acceptable one. In so concluding, I have not overlooked the fact that delay (and in particular any unacceptable delay) may come to be of such a magnitude that risks which would in other circumstances be regarded as unacceptable, may properly be viewed as acceptable. That is not yet, however, the present case.[16]
[16]Reasons, [38]–[42] (citations omitted).
In a footnote to the final paragraph above, the judge said as follows:
On the other hand, if at some stage it becomes apparent that a trial before the end of 2026 is no longer likely, the issue of unacceptable risk may have to be revisited in the light of all of the circumstances which then might exist.[17]
[17]Reasons, [42] n 27.
Relevant authorities
As the judge observed, there was no dispute concerning the principles governing an application for bail where exceptional circumstances must be shown. They were conveniently summarised in Re Diab as follows:
Sections 4A and 4D of the Act require the Court, as step one, to consider the exceptional circumstances test; and then to move, as step two, to the unacceptable risk test. At both stages of the analysis, the Court must take into account all the circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act. Moreover, the Court is required to interpret and apply the Act having regard to the matters set out in s 1B, which include:
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty;
The appellant bears the burden of satisfying the Court as to the existence of exceptional circumstances. The prosecutor, however, bears the burden of satisfying the Court as to the existence of a relevant risk and that that risk is an unacceptable risk.
It is well established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the appellant and the strength of the case against him. In Re Reker, Beale J, citing Kaye J in DPP v Muhaidat, referred to the question of exceptional circumstances in the following terms:
Effectively, the appellant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the appellant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[18]
[18]Re Diab (2020) 282 A Crim R 462, 469–70 [34]–[36]; [2020] VSC 196 (Beach JA) (citations omitted).
The parties’ submissions
The appellant submitted that the judge’s conclusion that the appellant posed an ‘unacceptable risk’ of failing to answer bail was unreasonable when regard is had to all of the surrounding circumstances, as defined in s 3AAA. In that regard, he pointed to 14 matters that, taken together, were said to compel the conclusion that the respondent had not discharged the burden imposed upon it by s 4E:[19]
[19]The appellant did not contend that the judge had failed to take any of the 14 matters into account.
(a)First, the existence of some $2.9 million in sureties, provided by the appellant’s mother, uncle, aunt, sister in law and cousins, secured by their homes.
(b)Secondly, undertakings from the persons who provided sureties, and others, to notify the officer in charge if the appellant breached a condition of his bail. He referred to an unpublished South Australian decision in which a judge of the Supreme Court of South Australia had accepted that undertakings of this kind can be significant.
(c)Thirdly, the appellant’s significant ties to the jurisdiction: he is an Australian citizen, married to an Australian citizen, he has a six year old son and his mother and other family reside in Australia.
(d)Fourthly, the vulnerabilities of the appellant’s family members, namely significant physical and psychological medical issues. He pointed to the decision of ReChew,[20] where bail had been granted in circumstances where the judge accepted that the accused would wish to be reunited with her children (although in that case the children were in the care of the State and the judge described the accused as therefore ‘tethered’ to the jurisdiction).
[20]Re Chew [2021] VSC 265.
(e)Fifthly, the fact that the appellant has an offer of employment, which can be undertaken from home, and pursuant to which the employer undertook to be in daily contact with the appellant and notify the officer in charge of any issues.
(f)Sixthly, the appellant’s special health vulnerability — namely that he is in constant pain — that makes time in custody more difficult and burdensome.
(g)Seventhly, the appellant’s limited prior criminal history, being relatively minor offending that occurred and was dealt with in 2008.
(h)Eighthly, the appellant’s previous compliance with bail conditions in relation to the 2008 offending and his previous compliance with the suspended sentence imposed on him in 2008.
(i)Ninthly, the proposal for electronic monitoring of the appellant’s whereabouts at all times by the use of a bracelet, coupled with a condition that he remain in his home at all times, that would be paid for by the appellant and monitored by a private company, and which must be of assistance in reducing or ameliorating the risk of flight.
(j)Tenthly, the principle of parity, noting that the appellant’s co-accused have been granted bail.[21]
(k)Eleventhly, the delay to date and the likely delay in bringing the appellant to trial, which will ultimately be a four-to-five year delay, which the appellant described as ‘extreme’ and highly significant in assessing whether the risk of flight is unacceptable.
(l)Twelfthly, the impact of the time the appellant has already spent in custody which, it was submitted, is relevant to whether he is likely to risk fleeing.
(m)Thirteenth, the effect of the proposed conditions on bail, which included that he would effectively be subject to home detention, his passport would be surrendered, he would be subject to travel restrictions and he would be subject to electronic monitoring — coupled with the sureties and the family undertakings, these matters must lower the risk of the appellant failing to answer bail, accepting that no one has ‘zero risk’.
(n)Fourteenth, the effect of the Charter, in particular the right to a trial within a reasonable time and, failing that, a right to be released, which enhances the weight to be given to delay.
[21]We note that, before the trial judge, the appellant conceded that parity is not relevant to an assessment of whether an accused poses an unacceptable flight risk. We also note that it is unnecessary for us to decide whether that concession is correct.
The appellant submitted that the impact of the judge’s reasons is, in substance, to require that a bail applicant show a delay of more than four to five years in order to render a risk of flight a risk that is not unacceptable. This, he submitted, makes it all but impossible for a bail applicant ever to show delay that would overcome the s 4E requirement.
In contrast, the respondent, while accepting that a point would come at which pre-trial delay is such that the risk of flight must be regarded as no longer unacceptable, contended that that point has not arrived in the present case. He pointed out that the various factors relied upon by the appellant were considered by the judge, and submitted that it was open to the judge, having weighted and evaluated those factors, to reach the conclusion that the appellant posed an unacceptable risk of failing to answer bail.
Consideration
We note at the outset that this matter is in federal jurisdiction, because it concerns a person charged with offences against the laws of the Commonwealth. Thus the Act applies because it is picked up as federal law by s 68 of the Judiciary Act 1903 (Cth). The current state of the authorities is that the Charter applies to the question of bail for Commonwealth offences.[22] At least in so far as s 32 of the Charter is concerned, that is correct. That is, s 68 ‘picks up’ and applies the Act as interpreted in light of the Charter.
[22]DPP (Cth) v Barbaro (2009) 20 VR 717, 727 [36] (Maxwell P, Vincent and Kellam JJA); [2009] VSCA 26 (‘Barbaro’), recording a concession by the Commonwealth DPP.
Although it has been said that a decision to grant or refuse bail is discretionary,[23] that label is not, strictly speaking, accurate in relation to a decision pursuant to s 4E of the Act. That is because, pursuant to that section, a bail decision maker must refuse bail if (relevantly for present purposes):
(a)the bail decision maker is satisfied that there is a risk that the accused would, if released on bail, fail to surrender into custody in accordance with the conditions of bail; and
(b)that the risk of which the bail decision maker is satisfied is an ‘unacceptable risk’;
and, if the decision maker is not so satisfied, then the accused has an entitlement to bail under s 4.
[23]See, eg, Roberts v The Queen [2021] VSCA 28, [4] (Maxwell P, Niall and Emerton JJA) (‘Roberts’), Ha (a pseudonym) v The Queen [2021] VSCA 64, [4] (Maxwell P and Kaye JA) (‘Ha’).
The power thus conferred on the decision maker ought not be described as a ‘discretion’ — rather, it is a duty to be exercised if a particular state of satisfaction is reached. The respondent accepted as much.
Nonetheless, in accordance with the authorities in this Court concerning the standard of review on an appeal from a bail decision,[24] such an appeal is to be decided in accordance with the principles set out in House v The King.[25] That is because, although not discretionary, the decision to grant or refuse bail, turning as it does on whether the decision maker is satisfied that a particular risk is ‘unacceptable’, is one that requires appellate restraint.[26] Thus, as this Court observed in Barbaro, quoting the earlier decision of the Full Court in Beljajev v DPP (Vic) and DPP(Cth):[27]
It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this Court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.
…
There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first is that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike appellate Courts have frequently refused to interfere with a primary judge’s decision on a matter of practice and procedure.[28]
[24]Barbaro (2009) 20 VR 717, 719–20 [10]–[11] (Maxwell P, Vincent and Kellam JJA); Ha [2021] VSCA 64, [4] (Maxwell P and Kaye JA), Roberts [2021] VSCA 28, [4] (Maxwell P, Niall and Emerton JJA).
[25](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See also Robinson v The Queen [2015] VSCA 161, [86] (Priest JA).
[26]See the factors set out in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 591–2 [150]–[151] (Edelman J); [2018] HCA 30.
[27]Unreported, Supreme Court of Victoria Appeal Division, Young CJ, Crockett and Ashley JJ, 8 August 1991, 29–30.
[28]Barbaro (2009) 20 VR 717, 719–20 [10] (Maxwell P, Vincent and Kellam JJA). To similar effect, in Fernandez v DPP (2002) 5 VR 374, 390 [31]; [2002] VSCA 115, Winneke P pointed to the fact that an appeal against an order concerning bail is an appeal against an order made in a matter of practice and procedure, and which is interlocutory in nature. Appellate courts are reluctant to interfere with such orders.
Applying these principles, and noting that no specific error is alleged by the appellant, we do not consider that the primary judge erred in refusing bail on the basis that he was satisfied that there was an unacceptable risk that the appellant would not surrender. That is, that decision was not ‘unreasonable or plainly unjust’,[29] and it was open to the judge to reach the evaluative conclusion that he reached.
[29]House v The King (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
We have considered the 14 matters on which the appellant relied in support of his submission that the judge’s conclusion was unreasonable. We are not persuaded that they require the conclusion that it was not open to the judge to conclude that there was an unacceptable risk that the appellant would fail to surrender. The matters relied upon reflected one side of the ledger in the evaluative exercise required. But there are matters on the other side of the ledger. In particular, as the judge found:[30]
(a)the nature and seriousness of the offending, and the likely sentence if the appellant is found guilty, which would be measured in decades, is such that the appellant would have a powerful motive to flee the jurisdiction;
(b)the appellant appears to possess sufficient resources — including $5 million that has not been located by police — to flee the jurisdiction without the need for any passport that might have been surrendered;
(c)the amounts involved in the appellant’s alleged offending are such that the fact that sureties provided by his family would be forfeited if he fled might be of little moment to him;[31] and
(d)electronic monitoring would likely pose little problem for the appellant, who appears to be well-resourced and who would likely prefer to avoid the possibility of a very long period of incarceration.
[30]Reasons, [39]–[41].
[31]As the judge observed, the informant had deposed that the appellant ‘would likely be able to reimburse any money forfeited through further criminal enterprises’; but the judge considered that it is also possible that the appellant might view any forfeiture of sureties as a ‘lesser evil’ than being incarcerated for a significant portion (if not the balance) of his life (Reasons, n 24).
The most significant of the 14 matters on which the appellant relied was the period of time the appellant has spent in custody awaiting trial.[32] That period was a little over two years at the time of the bail application. It is anticipated to be considerably longer before the trial of the appellant can commence — the judge found that a trial is unlikely to commence before 2025, and that it is a ‘real possibility’ that it will not commence before 2026, leading to a likely delay of four years, and a possible delay of five years, although his Honour observed that this predictive exercise was ‘speculative’. We accept the judge’s conclusion about the possible timing of the appellant’s trial. In our view, it was nonetheless open to the judge to conclude that the point had not yet been reached where the delay was such that the risk that the appellant would not surrender was not an ‘unacceptable risk’.
[32]Reasons, [42].
The final matter on which the appellant relied was the Charter, which was said to enhance the importance or weight to be attributed to delay in assessing whether a grant of bail is appropriate. No party disputed the proposition, articulated in Barbaro, that the Charter does not ‘require any departure from the existing approach to the treatment of delay as an issue in bail applications’,[33] and no submission was made that the Charter required any particular construction of the Act. Courts called upon to apply ss 4A and 4E of the Act ought to bear steadily in mind, in assessing whether the tests in those sections are satisfied, the fact that s 21(5) confers the right to a trial without unreasonable delay.[34] 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. But we do not consider that the Charter required any different outcome in the present case. It remained open for the judge to reach the conclusion he reached.[35]
[33]Barbaro (2009) 20 VR 717, 728 [40]–[41] (Maxwell P, Vincent and Kellam JJA); [2009] VSCA 26. See also Woods v DPP [2014] VSC 1; (2014) 238 A Crim R 84, [21] (Bell J).
[34]See, eg, Gray v DPP [2008] VSC 4, [12] (Bongiorno J); Re Dickson [2008] VSC 538, [22] (Lasry J); R v Rich (Ruling No 19) [2008] VSC 538, [28] (Lasry J); Woods v DPP (2014) 238 A Crim R 84, 100 [47] (Bell J); [2014] VSC 1.
[35]We note that the judge did not refer to the Charter, because no argument based on the Charter was made before him. Quite properly, that failure expressly to consider the Charter was not said to give rise to specific error.
For these reasons, we would dismiss the appeal.
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