Formica & Forni v Victoria Police [2020] VSC 719 (30 October 2020)

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SALVATORE FORMICA and PIERONI FORNI	Applicants

v

CHIEF COMMISSIONER OF VICTORIA POLICE	Respondent

JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 14, 21 September 2020
DATE OF JUDGMENT:	30 October 2020
CASE MAY BE CITED AS:	Formica & Forni v Victoria Police
MEDIUM NEUTRAL CITATION:	[2020] VSC 719

CRIMINAL LAW – EXTRADITION – Warrants issued in Queensland for drug and other offences under the Criminal Code (Cth) – Applicants arrested in Victoria – Magistrate ordered applicants be taken in custody to Queensland – Application to Supreme Court for review – Whether applicants should be granted bail – Nature of extradition bail – Some errors shown, but exceptional circumstances not established – Ordered applicants be taken in custody to Queensland – Service and Execution of Process Act 1992 (Cth), ss 83, 86.

APPEARANCES:	Counsel	Solicitors
For Mr Formica	Mr R Richter QC Mr M Thomas Mr M Weinman	Stephen Andrianakis & Associates

For Mr Forni	Mr I Hill QC Ms C Marcs	Anthony Isaacs

For the Chief Commissioner of Victoria Police	Ms K Breckweg	Commonwealth Director of Public Prosecutions

1 Operation Weathers is a complex and ongoing investigation by the Queensland Joint Organised Crime Taskforce, which began in November 2018. It is concerned with the importation of substantial commercial quantities of cocaine from Papua New Guinea into Queensland using so-called ‘black flights’, which involve private or undeclared aircraft flying at very low altitudes to avoid radar detection. Police allege that there was an actual importation of 300kg of cocaine in August 2018, and a further importation of 500kg of cocaine that was planned to occur on 26 July 2020. It is alleged that the applicants, Salvatore Formica and Pierino Forni, are members of a syndicate involved with such importations.

2 On 24 July 2020, warrants were issued by a magistrate in the Magistrates’ Court of Queensland for:

3 On 26 July 2020, the applicants were both arrested in Victoria, and taken into custody under those warrants.

4 Section 83(1) of the Service and Execution of Process Act 1992 (Cth) (‘SEPA’) requires a person to be taken before a magistrate of the State in which the person was apprehended, as soon as practicable after their arrest. Once the warrant is produced, under s 83(8) the magistrate must order either that the person be remanded on bail to appear at, or taken in custody to, a place specified in the place of issue of the warrant.

5 The applicants were taken before the Melbourne Magistrates’ Court on 27 July 2020. They did not challenge the validity of the warrants, or oppose orders being made for their extradition to Queensland. However, the applicants argued that they should be extradited on bail, not in custody, to appear before the Cairns Magistrates Court (‘the Queensland court’).

6 By virtue of s 88(1) of SEPA, the law of Victoria governs the grant of bail in these cases. Because the applicants have been charged with a Schedule 1 offence^[1] within the meaning of the Bail Act 1977 (Vic) (‘the Bail Act’), they must demonstrate ‘exceptional circumstances’ justifying the grant of bail. If an applicant was able to satisfy the exceptional circumstances test, the court would then have to consider whether the respondent had established that there would be a relevant ‘unacceptable risk’ if bail was granted to the applicant.

7 The applicants’ bail applications were heard together by Magistrate Huynh on 27 and 31 July, and 10 August 2020.

8 On 13 August 2020, his Honour refused the applications for bail, and published written reasons for his decision ( the ‘Ruling’). His Honour was not satisfied that the applicants had established exceptional circumstances for the grant of bail; he did not go on to consider any question of unacceptable risk. He ordered under s 83(8)(b) of SEPA that they be taken in custody by nominated Federal Agents of the Australian Federal Police, to be returned to the Queensland court by 20 August 2020.

9 By originating motions filed in this court, the applicants seek review under s 86(1) of SEPA of the magistrate’s orders that they be taken in custody to Queensland.

10 By consent, on 19 August 2020, I stayed the execution of the magistrate’s orders, and remanded the applicants in custody, pending the determination by the Supreme Court of the applications for review.^[2]

11 The magistrate had before him a mixture of written and oral evidence, and submissions from both sides.^[3]

12 Although there were some differences in their personal backgrounds and circumstances, both applicants argued that exceptional circumstances had been established by one or more of the following matters: a weak prosecution case; delay; onerous prison conditions caused by COVID-19; family hardship; their good character and limited or no criminal history; strong family support and employment; the availability of a substantial surety; the availability of electronic monitoring; parity with one of their co-accused; and their prima facie bail entitlement in Queensland.

13 The bail applications were argued below as if the magistrate was considering trial bail, rather than extradition bail. Accordingly, much time was spent leading evidence and making submissions about matters that had little, if any, relevance or importance to the real issues to be determined by his Honour.

14 The Ruling is 22 pages long. After setting out the procedural history of the matter, and the nature of the prosecution case and charges, the magistrate considered separately each of the matters relied upon by the applicants, and found that none of them amounted to exceptional circumstances in themselves. His Honour then concluded that, having carefully considered all factors, he was not satisfied that exceptional circumstances had been made out in combination either.^[4]

15 There is no dispute that a review under s 86 of SEPA is by way of rehearing,^[5] not a hearing de novo. This court’s powers are exercisable only where an applicant can demonstrate some legal, factual or discretionary error on the part of the court below, or that its decision is insupportable having regard to new evidence properly admitted before the reviewing court.^[6]

16 There is also no dispute that this court can receive fresh or new evidence on such a review. It is not necessary for me to consider the limits of the court’s powers in that regard, as the parties ultimately consented to my receiving all of the further evidence sought to be tendered before me.

17 This court may confirm, vary or revoke the orders below.^[7] The applicants seek to have this court vary or revoke the orders below, by remanding them on bail to appear before the Queensland court.

18 Each applicant has issued a separate review proceeding, and is entitled to have his matter considered separately. However, given the substantial similarities in their arguments and circumstances, I will frequently refer to them jointly for convenience.

19 ‘Exceptional circumstances’ is not a defined term in the Bail Act. However, the following propositions are not disputed, and were accepted by the magistrate:^[8]

(a) Exceptional circumstances may be defined as something ‘unusual or out of the ordinary’;

(b) The hurdle is a high one, but should not be set so high that it is impossible for an accused person in custody to ever, or virtually ever, achieve bail; and

(c) Exceptional circumstances may be established as a result of the interaction of a variety of factors, which of themselves might not be regarded as exceptional.

20 In considering whether exceptional circumstances have been established, the court must take into account all of the surrounding circumstances that are relevant to the matter, including the matters listed in s 3AAA of the Bail Act.

21 Many of the decisions made by the court in a bail application involve a question of fact and degree. There are 14 variables in the list of ‘surrounding circumstances’ in s 3AAA that must be considered, together with subsets within some of those variables. Section 3AAA is a provision which applies to a number of different bail sections; it is not a provision that is only relevant to a consideration of exceptional circumstances. The weight to be given to those variables, and their interaction with each other, will vary from case to case. The end result will be the product of ‘an informed, intuitive evaluation, and reasonable minds may well differ on that result.’^[9]

22 It must also be remembered that these cases are concerned with whether or not bail should be granted pending extradition to Queensland and the applicants’ first appearance before the Queensland court. It is not the function of this court (or the magistrate below) to decide whether bail should be granted until trial; that will be for the Queensland court to decide on any bail application made in that court. After the applicants have been extradited to Queensland, there will be no further role for the respondent, Victoria Police, or the Victorian courts, to play in relation to these accused. The weight to be given to the various surrounding circumstances in s 3AAA must be assessed with those important considerations in mind.

23 Before considering the applicants’ review grounds, I propose to deal with a preliminary issue, namely, whether, if bail was granted, the applicants could appear by videolink (‘AVL’) from Melbourne, or whether they must attend in person before the Queensland court. The issue has potential relevance in assessing a number of the factors relied upon by the applicants as going to establish exceptional circumstances.

24 When this issue first arose on the second day of the hearing before me, I adjourned to enable the parties to obtain evidence and make proper submissions on the matter.

25 There is no dispute that the applicants would be permitted to enter Queensland, as compliance with an order to attend a court has at all relevant times been a permitted ground of entry into Queensland during the COVID-19 pandemic. That would be the case whether they were on bail or in custody.

26 Because the applicants have been in Melbourne, a COVID-19 hotspot, they would need to undergo a quarantine period upon any entry into Queensland. If they were in custody, they would be quarantined in a custodial setting. If they were on bail, they would be quarantined in a hotel. In neither event would their family members be permitted to join or visit them in Queensland, under the relevant border restrictions.

27 The contentious issue is whether the applicants would be required to physically attend the Queensland court, or whether they could appear by AVL from Melbourne if they were on bail.

28 Once the warrant is produced to the court, s 83(8) of SEPA requires the court to order:

(a) that the person be remanded on bail on condition that the person appear at such time and place in the place of issue of the warrant as the magistrate specifies; or

(b) that the person be taken, in such custody or otherwise as the magistrate specifies, to a specified place in the place of issue of the warrant.

29 There is no dispute that the phrase ‘the person be taken’ in s 83(8)(b) requires the physical production of an accused who is in custody to a specified place in the place of issue of the warrant. But the applicants argue that the use of the different phrase, ‘the person appear’, in s 83(8)(a) indicates that there is no requirement for an accused who is on bail to physically attend the place of issue of the warrant.

30 It is true that the concept of ‘appearing’ before a court can have a number of different meanings. A narrow construction would require the personal physical attendance of the person who is required to appear. A broad construction might also include appearance by another person (such as a lawyer) on their behalf, or from another place (such as by AVL). Its meaning in any particular situation must be ascertained from the relevant legislation and context.

31 I do not accept the applicants’ argument that because two different phrases (‘the person appear’ and ‘the person be taken’) were used in the two sub-sections, that indicates that Parliament intended that only persons in custody would need to physically appear in the jurisdiction to which they were being extradited. The different phrases are needed for another reason. If an accused is in custody, then the court order under sub-section (b) that the person ‘be taken in custody’ grants the police power to move the person from one jurisdiction to another. It would not make sense to use the concept of ‘taking’ in respect of an accused who was on bail.

32 The sub-sections include a requirement that the accused either appear at, or be taken to, a ‘place in the place of issue of the warrant.’ That is to say, both sub-sections envisage that the accused will attend at a designated place in the jurisdiction to which they are being extradited.

33 A narrow construction of the concept of appearance is supported by the Second Reading Speeches to SEPA, which relevantly state that SEPA provides a mechanism for the ‘interstate arrest and return of persons to face criminal charges’,^[10] and is designed to ‘streamline procedures for the return of persons interstate.’^[11] That is entirely consistent with the general concept of extradition, which involves the court-ordered transfer of persons between jurisdictions, so that they can face charges in the jurisdiction which seeks their return.

34 There being no challenge to the validity of the warrants, the Victorian courts are required to extradite the applicants to Queensland. The only live question in this case is whether they are to be extradited on bail or in custody. If an applicant is extradited in custody, he can apply for bail before the Queensland court. If he is extradited on bail, he must surrender himself into the custody of the Queensland court in answer to his extradition bail, before applying for trial bail from that court.

35 The concept of surrendering into the custody of a court ordinarily assumes that the person is physically present at the court. However, the applicants argue that they could surrender into custody by AVL from Melbourne, if they were on bail. In support of that argument, I was referred to various Queensland Acts and practice notes, only some of which are in fact relevant or applicable.

36 The applicants referred me to s 20(3AA) of the Bail Act 1980 (Qld) (‘Queensland Bail Act’), which provides that a defendant:

need not surrender into custody or appear personally if the defendant is represented by the defendant’s lawyer unless –

(b) a charge is being heard and determined, an examination of a witness is being conducted or a penalty is being imposed.

37 That provision only applies in the case of people granted bail under the Queensland Bail Act. It does not apply to persons granted bail under other legislation, as would be the case if the applicants were granted extradition bail in Victoria.

38 The applicants also referred me to Part 6A of the Justices Act 1886 (Qld) (‘Justices Act’), which deals with the use of video or audio link facilities in certain proceedings in Queensland Magistrates Courts. Different provisions apply, depending on whether an accused is in custody or on bail. It seems clear that if the applicants were applying for bail before the Queensland court, whilst in custody in Queensland, that bail application must be conducted using AVL, unless the Queensland court, in the interests of justice, orders otherwise.^[12]

39 If an accused is not in custody, and is represented by a lawyer and present ‘at another place that the presiding magistrate considers suitable for the conduct of a proceeding under this part’^[13] (called an ‘associated place’), the primary court ‘may, in the interests of justice, order the proceeding be conducted’ from the associated place using video or audio link facilities.^[14] The legislation gives two examples of the sorts of places that might be suitable to be ‘associated places’, namely, places appointed for the holding of a Magistrates Court, or a place in a State government or local government building.^[15] There is no evidence that the applicants have identified or sought to have a suitable place in Melbourne approved as an ‘associated place’ from which they could appear.

40 The applicants also referred me to various guidelines and practice directions published by the Queensland Magistrates Court during the pandemic, a number of which no longer apply. Practice Direction No 5 of 2020 commenced operation on 15 June 2020, and is still in operation. Under that practice direction, an accused who is in custody will generally appear by AVL, unless the accused is excused from appearing, or the magistrate requires their personal appearance.^[16] However, if an accused is not in custody, they and their lawyers must be present in court for hearings ‘unless a magistrate gives leave to appear by telephone or video conference.’^[17]

41 The warrants in these cases were issued under s 57 of the Justices Act, which provides that a justice may issue a warrant ‘to apprehend the person’ and to have the person ‘brought before justices to answer the complaint and to be further dealt with according to law.’^[18] The language of that provision suggests that the physical appearance of an apprehended person is envisaged at the return of a warrant in Queensland (whether the person was arrested in Queensland or elsewhere).

42 The applicants rely on the fact that two of their co-accused, Mr El-Houli (on bail) and Mr Machem (in custody in Queensland), have been excused from personally appearing before the Queensland court at their next mention date. That is irrelevant for present purposes. Both of those persons were arrested in Queensland, and taken in person before the Queensland court to answer their respective warrants. Their situations do not establish that the Queensland court is likely to excuse an accused who is being extradited from appearing in person at their initial hearing.

43 After the issue arose before me, the respondent’s lawyers contacted the Cairns and Brisbane registries of the Queensland Magistrates Court, to find out whether a person surrendering on a warrant would be required to appear in person. The registries provided copies of relevant practice notes, and responded to the effect that it would be up to the presiding magistrate what they accepted in relation to a person surrendering on a warrant and their whereabouts. There is simply no evidence before this court as to the likelihood of a Queensland magistrate granting the applicants leave to appear from Melbourne by AVL, in the event that they applied for that leave.

44 Given that the applicants live in another jurisdiction, will have been extradited to Queensland following their arrest on very serious charges, and will need to apply for trial bail in Queensland after surrendering themselves into the custody of the Queensland court, it seems most likely that a personal appearance would be required even if they were on bail. The very purpose of the extradition proceedings is to ensure their appearance before the Queensland court.

45 However, it is not necessary for me to come to a final conclusion on that matter. I am not satisfied that exceptional circumstances have been established in the case of either applicant, whatever the means by which they might answer bail in Queensland.

46 The applicants spent a considerable amount of time before the magistrate, and before me, arguing that the prosecution cases against each of them is weak. The evidence before the magistrate concerning the prosecution case consisted primarily of a statement of facts, and the oral evidence of one of the informants, Federal Agent Neale.

47 The nature of the alleged offending, and the parties’ arguments about the strength of the prosecution case, may be briefly summarised as follows.

48 The offending is alleged to have been committed by a syndicate which included a number of other co-accused, including Aiden Khoder, George Machem and Osman El-Houli, all of whom were arrested and charged in Australia. Another alleged co-accused, David Cutmore, was arrested in PNG.

49 The prosecution allege that the syndicate members, including Mr Formica, imported 300 kg of cocaine on 30 August 2018, via a black flight from PNG into Mareeba, North Queensland, using a Cessna 402C aircraft (‘the Cessna’).

50 It is alleged that the general nature and extent of Mr Formica’s involvement in the first importation was as follows:

(a) Mr Formica and Mr Khoder travelled to PNG between 30 July and 3 August 2018;

(b) Mr Khoder bought the Cessna in August 2018, using money from Australian bank accounts in the names of two of his overseas associates;

(c) On 25 August 2018, Mr Formica travelled from Melbourne to Cairns on a commercial flight. In Cairns, a car was rented by an associate, giving Mr Formica’s mobile phone number as the contact number. On 28 and 29 August, he and other co-accused conducted reconnaissance on various rural airfields in the surrounding area, including Mareeba airport (which is about 60 km west of Cairns);

(d) On 30 August 2018, while Mr Formica was in Cairns, the Cessna was flown to Mareeba, then on to Kerema in PNG. Once in PNG, 300kg of cocaine was loaded onto the plane, before it flew back to Mareeba, arriving at 6.30pm;

(e) Mr Formica and Mr Khoder unloaded the cocaine from the plane into a hire car. They later transferred it below the false floor of a trailer, which was driven to Melbourne by Kenneth Wiggett; and

(f) On 31 August 2018, Mr Formica and Mr Khoder returned from Cairns to Melbourne on a commercial flight.

51 The first alleged importation occurred before Operation Weathers began, so there is no direct evidence or surveillance in relation to this importation. Instead, the prosecution’s circumstantial case is based on data from mobile phone towers, Australian Border Force travel records, flight records, bank records, CCTV footage, radar data, and intercepted conversations after the event.

52 Mr Formica argues that the prosecution face substantial difficulty in even proving that the first importation occurred, as no drugs were seized and there are no contemporaneous recordings about the importation. In particular, the police have no direct evidence that Mr Formica removed cocaine from the plane, loaded it into the hire car, or transferred it into the trailer.

53 On various dates in 2019, the pilot, Mr Cutmore, was recorded in a number of conversations with one or more colleagues (not alleged to be syndicate members) talking about the first importation. Mr Formica argues that such statements are not admissible against him.

54 Mr Formica argues that the circumstantial case has been reconstructed from phone tower data and travel records, and has a number of weaknesses, including the following:

(a) The prosecution case assumes that the various travel records booked in his name mean that he was the person who in fact travelled to PNG, Cairns and Melbourne on the relevant dates. He says there is no CCTV or other evidence to confirm that;

(b) The prosecution case assumes that at relevant times he used a mobile phone that was not registered in his name, and which has never been found in his possession;

(c) There is no evidence as to the range and extent of coverage of the phone towers at Mareeba airport, to establish that the mobile phone alleged to have been in his possession was being used at the airport; and

(d) The prosecution case assumes that the fact that different phones were using the same phone tower location proves that those people were meeting each other at a specific location.

55 The prosecution allege that Mr Forni met with Mr Khoder on 23 February 2019, to discuss using Mr Forni’s existing money laundering network to buy legitimate assets using the proceeds from the first importation. Thereafter, it is alleged that Mr Forni laundered almost $1.4 million on behalf of the syndicate. They allege he did this by making cash deposits into the accounts of two companies, which were under the control of his associate, Edward Murphy. The money was then transferred into the account of another company, which was used to buy shares for Mr Khoder in a fourth company.

56 The police rely on intercepted phone calls and text messages between Mr Khoder and Mr Forni, discussing money transfer arrangements, as well as bank records showing the transfer of money between the relevant accounts.

57 Mr Forni says that even though the police have had access to his bank and email accounts, they have not been able to piece together an accurate trail of the transactions said to constitute money laundering. The accounts into which he deposited the funds were not controlled by him.

Planning the second black flight importation – July 2020 (Formica and Forni)

58 After the successful first importation, the prosecution allege that the syndicate began planning a second black flight importation, this time of 500kg of cocaine.

59 They allege that the applicants were involved in the conspiracy to import in the following ways:

(a) Between 8 and 9 October 2019, Mr Formica travelled from Melbourne to Port Moresby, PNG via Brisbane, on a commercial flight. When he arrived back in Sydney on 18 October 2019, his baggage was randomly swabbed and returned a positive result for traces of cocaine. He had in his possession a commercially encrypted mobile phone, and a fake Victorian drivers licence bearing his photo and the name Alberto Campagna (that same name was also used in the remittance of money from Melbourne to a PNG associate);

(b) In April 2020, due to the pandemic, the Queensland border was closed. On 6 April 2020, Mr Forni arranged for a pilot to fly Mr Khoder and Mr Cutmore on a private plane from Essendon Airport to North Queensland. When they arrived in Queensland, they were met at Atherton Aerodrome by Queensland police, who directed them to return to Melbourne as soon as possible. Instead, Mr Cutmore and Mr Khoder left Atherton Aerodrome in a hire car. Whilst in the car, Mr Cutmore said that because police were checking airports due to COVID-19 they would be ‘fucked’ no matter where they landed and could be ‘locked up for life.’ Mr Khoder responded ‘This just can’t happen until the travel comes back.’ They flew back to Essendon Airport on 10 April 2020;

(c) In May 2020, Mr Forni started to make arrangements with Bairnsdale Air Charter (‘BAC’) for Mr Khoder and Mr Cutmore to again travel from Melbourne to North Queensland and back, in the next three weeks;

(d) On 10 July, Mr Forni called BAC to confirm the flights for Mr Khoder and Mr Cutmore. He said they were prospectors and would be bringing back mining equipment from Queensland. Three days later, Mr Forni went to Tyabb airport, where he met the BAC pilot. Mr Forni asked the pilot to confirm that the plane could carry 3 people plus 500kg;

(e) On 19 July, Mr Machem, travelled under a false identity from Sydney to Cairns on a commercial flight. The following day, Mr Khoder and Mr Cutmore flew to Innisfail Airport in Queensland, and travelled to the same address in Tolga Road, Atherton, where Mr Machem was staying. Over the next couple of days, those three co-accused visited several rural airfields in the area, including at Atherton, Mareeba and Kalinga. During the afternoon and evening of 22 July, whilst at the Tolga Road property, they discussed the logistical planning for the proposed black flight, and the transport of the drugs back to Melbourne;

(f) On 23 July 2020, a listening device at Tolga Road captured a conversation between Mr Khoder and Mr Machem, which the prosecution say refers to Mr Formica as ‘the boss’;

(g) Also on 23 July 2020, payment was made to the pilot who had flown Mr Khoder and Mr Cutmore to Queensland. The payment was made from the Westfield Shopping Centre in Airport West. Phone data shows that Mr Formica was in the vicinity of that shopping centre on that day;

(h) Late in the afternoon of 25 July, police saw Mr El-Houli and another man in a white truck bearing Victorian registration ‘HOULI0’ (‘the truck’) in the vicinity of Tolga Road;

(i) Just before 4.30am on 26 July 2020, Messrs Khoder, Cutmore and Machem left Tolga Road and drove to Mareeba Airport. The Cessna from the first black flight was still at the airport, and had a listening device installed in it. The device captured a conversation between Mr Cutmore and Mr Khoder in which Mr Khoder said ‘Stop fucking around mate, you’d better explain that to Sam, not me’. The prosecution allege the reference to ‘Sam’ is a reference to Mr Formica;

(j) At 9.19am on 26 July, Mr Cutmore left Mareeba airport, flying the Cessna towards PNG. Around 12.23pm, he landed on a remote dirt airstrip in PNG;

(k) Later that afternoon, Mr El-Houli was arrested and the truck was searched. A large concealed space was found. During a record of interview, Mr El-Houli made admissions in relation to being paid $10,000 to transport a commodity in the concealed space from Queensland to Victoria;

(l) Later that day, Mr Khoder and Mr Machem were arrested at Tolga Road, and the applicants were arrested in Melbourne. At the time of his arrest, Mr Formica was in possession of a commercially encrypted mobile phone, which surveillance showed he had used shortly before his arrest. He was issued with a court order under s 465AA Crimes Act 1958 (Vic) to provide information or assistance to enable the police to access the phone, but said he had found the phone a few days ago and was still trying to access it. Whilst Mr Formica was in custody, a ‘remote wipe’ command was sent to delete all stored data from the commercially encrypted phones which had been seized from Mr Formica and other syndicate members; and

60 The applicants argue that the prosecution will have difficulty in proving the existence of an agreement between the co-conspirators. There is no recorded conversation of either of them discussing the planned importation. While there are conversations of other alleged co-conspirators, which are said to reference one or other of the applicants, they say that none of those conversations explicitly refers to an agreement or understanding on their part to import cocaine.

61 Mr Forni also argues that there is no evidence that the charter flights that he arranged are necessarily connected with the importation of cocaine.

62 The magistrate noted that, having regard to the quantum of drugs and proceeds involved, the level of sophistication of the operation, the maximum penalties for the offences,^[19] and the protracted nature of the alleged offending, the offending was serious. That finding is not criticised; it is undoubtedly correct.

63 His Honour then went on to discuss the strength of the prosecution case in the following terms:

57 It was submitted by Mr Formica and Mr Forni that a weak prosecution case, either singularly or in combination, can amount to exceptional circumstances.

58 The prosecution argue that the case with respect to the substantive offences and that of the conspiracy offences is strong. In contrast, both Mr Formica and Mr Forni submit that the prosecution case is weak, based on a number of assumptions and speculative ‘inferences’ from those assumptions. The reason for these differing contentions has already been discussed and I won’t repeat them.

59 What is clear is that this is a lengthy investigation, spanning some two years and that which seemingly involves great volumes of data and information. In part, it is a retrospective investigation with concession made that the investigation did not commence until after the completion of the initial alleged ‘black flight’ import of 300kg of cocaine in August 2018. There is no contemporaneous surveillance of this first alleged importation nor was any cocaine ever seized, with the case, in summary, pieced together from later intercept material and phone records amongst other evidence. Upon its inception from late 2018/early 2019, Operation Weathers can be fairly described as comprehensive with what appears to be extensive physical and electronic surveillance, listening device material, telephone intercepts, and back records.

60 At this stage in proceedings, it is difficult to make a proper assessment of the strength of the prosecution case. I accept that there are certainly ‘contestable’ issues with respect to all three charges. I do not however accept that it is a ‘weak’ case as contended by the accused men.

61 Accordingly, the weakness of the prosecution case is not by itself sufficient to demonstrate exceptional circumstances.^[20]

64 The applicants make a number of criticisms of the Ruling in relation to the strength of the prosecution case.

65 The applicants point out that his Honour referred to the investigation as having been ‘lengthy’ and ‘spanning some two years and ... great volumes of data and information.’ They say that is ‘not a comment or a valid consideration as to [the investigation’s] strength,’ as the adverse inference is also open. But they then go on to engage in exactly the same type of reasoning, when they argue that if, after a two year investigation and a 29 page statement of facts, the prosecution still could not produce any direct material that confirmed the terms and existence of the alleged conspiracy, then it was not open to the magistrate to conclude that it was not a weak prosecution case. The duration of the investigation, and the amount of data seized, do not, in themselves, establish the strength or weakness of the prosecution case. It is necessary to look at the actual evidence and allegations.

66 The applicants argue that the magistrate failed to grapple with the prosecution case as it existed at the time of the application for bail. Certainly, his Honour did not go through each of the arguments advanced about particular pieces of evidence, and make specific findings about their admissibility or strength. The fact that he did not descend into that level of detail does not demonstrate that he failed to understand or grapple with the prosecution case. He said sufficient during the course of the Ruling to indicate that he understood the nature of the prosecution case, and the parties’ respective arguments about the strength or weakness of the prosecution case.

67 In so far as the applicants criticise his Honour for saying that it was difficult at that stage in proceedings to make a proper assessment of the strength of the prosecution case, the criticism is unfair. It is common, and perfectly appropriate, for a judicial officer to comment that it is difficult for them to assess the strength of the prosecution case on the material currently before them, if that be the case. The fact that s 3AAA of the Bail Act requires the court to consider the strength of the prosecution case, as one of the ‘surrounding circumstances’, does not require it to make detailed or specific findings about particular pieces of evidence, if it is not able to do so.

68 A judicial officer hearing a bail application will frequently only have limited material before them on which to make an assessment of the strength of the prosecution case. That is particularly so where the hand up brief has not been completed. Judges of this court have frequently commented on the inappropriateness of analysing in detail each piece of evidence to determine its likely admissibility and importance to a jury, or in expressing any firm or concluded view about the strength or otherwise of the prosecution case, on the hearing of a bail application.^[21]

69 That is particularly so in a case such as this, where bail is being sought at such an early stage. The applicants and their co-accused were arrested on 26 July 2020, the very day on which it is alleged that the second importation was to occur. The bail application commenced the following day, and continued on two days over the next fortnight. The police were, and still are, gathering and analysing evidence, and there may be other persons charged, or other charges laid against the accused who have so far been arrested. Indeed, further evidence was put before the court, that had not been available before the magistrate. That there may have been difficulties in assessing the strength of the prosecution case at such an early stage was hardly surprising. The fact that there may be difficulties in assessing the strength of the prosecution case does not mean, as the applicants seem to suggest, that the court should conclude that the prosecution case is weak in that event.

70 None of the criticisms raised by the applicants can be said at this early stage to be guaranteed to succeed; there is no ‘knock out’ point. Their comments about the lack of direct evidence of certain matters are accepted, but the fact that a case is circumstantial does not necessarily mean that it is weak.

71 It is too early to assess their arguments about the admissibility of particular pieces of evidence. For example, Mr Formica argues that the various statements made by Mr Cutmore about the first importation could not be admissible against him, and without that evidence there is no proof that the first importation even occurred. In so far as he argues that they are not admissible under s 87 of the Evidence Act 2008 (Vic), that is not a provision that will apply to a trial in Queensland. In so far as he argues that Mr Cutmore’s statements are not admissible under what is often referred to as the co-conspirators’ rule,^[22] such an assessment can only be made by considering the whole of the evidence against Mr Formica.

72 The circumstantial prosecution case against both men will rely on inferences being drawn by the jury. Depending on what further evidence is obtained, the applicants have some prospects of being acquitted. At this stage, on the very limited material available, I conclude that it is neither an unusually strong nor an unusually weak case.

73 I am not persuaded that the magistrate erred in concluding that the applicants had not established that the prosecution case was so weak as to amount to exceptional circumstances.

74 The charges against the applicants are ones for which they would have a prima facie entitlement to bail, if they were applying for bail in Queensland.^[23] It would then be a matter for a Queensland court to consider whether bail should be refused on an ‘unacceptable risk’ basis.^[24]

75 The applicants argued that this matter should be given great weight in assessing whether exceptional circumstances have been established under Victorian law.

76 The magistrate noted that ‘no authorities were proffered on if, let alone, how this was to be applied’, before stating that he had ‘had some regard to this, albeit it (sic) in a limited manner.’^[25]

77 The precise nature of the applicants’ attack on the magistrate’s finding in this regard is not clear.

78 In so far as they criticise his Honour for not explaining what he meant by ‘some regard’ and ‘in a limited manner,’ it is not clear what more they are suggesting he should have said on the matter. Such expressions are frequently employed by judicial officers in their bail (and sentencing) decisions.

79 In so far as they seem to be criticising the magistrate for either not finding that this matter amounted to exceptional circumstances in itself, or at least giving greater weight to this matter, I am not persuaded that they have established any relevant error.

80 The applicants could not point to any authority in support of such a proposition, and the matter was not argued at length, or in detail, before me. Mr Formica referred to some brief written submissions that had been filed below on this topic. In those submissions, they had argued by analogy. They referred to the position that used to apply in Victoria where the prosecution case on murder was found to be weak, and the judge considered that manslaughter (for which there used to be a prima facie entitlement to bail) was the worst possible verdict. The court in such a case may have granted bail, on the basis that exceptional circumstances had been established. They argued that, applying that logic, the fact that there would be a prima facie entitlement to bail in Queensland should be found to constitute exceptional circumstances. However, the analogy is not appropriate. The accused in the murder case would not be granted bail because there was a prima facie entitlement to bail for manslaughter. An accused who was able to establish good prospects of a verdict of not guilty of murder (whether the likely alternative was a verdict of guilty of manslaughter, or an outright acquittal) would have established that there was a sufficiently weak prosecution case on the murder charge to amount to exceptional circumstances.

81 I accept that the concept of ‘exceptional circumstances’ is not a fixed concept, and there is not a finite list of matters that are capable of amounting to exceptional circumstances. But in deciding how much weight to give to the applicants’ prima facie entitlement to bail in Queensland, it must be remembered that s 88(1) of SEPA explicitly provides that the bail law of the place of arrest is the relevant bail law for the purposes of extradition. SEPA clearly envisages that different State bail laws may apply to different co-accused facing the same charges, depending on where each person was arrested. The fact that these are Commonwealth charges does not alter that position, as the applicants seem to suggest.

82 In these cases, the place of arrest happens to apply a harsher bail test to these particular charges than the place of issue of the warrant. Had the legal tests in the two jurisdictions been reversed, the applicants would have (rightly) said that it would be absurd to suggest that Queensland’s harsher test should be applied, so as to negate a prima facie entitlement to bail in Victoria.

83 Queensland’s Bail Act will apply when the applicants apply for trial bail in that State. But, given the purpose and limited duration of extradition bail, it makes sense to give primacy to the bail law of the place of arrest, as is required under s 88 of SEPA.

84 I am not persuaded that the applicants have established any error in relation to the magistrate’s findings about this factor.

85 Finally, I wish to dispose of the suggestion made by Mr Formica that there would be a ‘significant psychological unconscious pressure’ on a Queensland magistrate hearing an application for trial bail, if the Supreme Court of Victoria had extradited the applicant in custody. There is no reason to think that a Queensland magistrate applying a ‘prima facie presumption’ provision, in deciding whether to grant trial bail, is going to be improperly influenced by the decision of a Victorian court applying an ‘exceptional circumstances’ provision to an extradition bail application.

86 Given the nature, size and complexity of this investigation, there is still a lot of work to be done by the police and prosecuting authorities to prepare these cases for trial. For example, the preparation of the hand up brief will take at least six months. It may be that other persons will also be charged in relation to these events, which could lead to further delays. Although jury trials are being conducted in Queensland, there is uncertainty as when the committal hearings and trials of these charges may occur.

87 The way in which the issue of delay was argued below was misconceived.^[26] Much time was spent speculating about things such as how long it will take to prepare the brief, and possible trial dates in Queensland.

88 At times, the arguments below bordered on the absurd. For example, Mr Forni raised the possibility that he may, at some future date, file an application for a change of venue, meaning that the charges against him would ultimately be heard in Victoria and subject to even greater delays in this State than in Queensland. This illustrates just how misconceived the applicants’ arguments below were as to the issues before the magistrate.

89 The magistrate accepted, correctly, that delay may amount to exceptional circumstances, either in itself or in combination with other matters.^[27] However, his Honour went on to make a number of erroneous findings.

90 For example, he said that the delay in these cases was ‘anticipated’ and therefore not ‘undue or inordinate’.^[28] The dichotomy between ‘anticipated delay’ and ‘undue or inordinate delay’ was misconceived; anticipated delay can be undue or inordinate, and can amount to exceptional circumstances.

91 His Honour also commented that although a delay of six months to prepare the hand up brief was a long time, it was ‘not unreasonable’ given the amount of material involved.^[29] His Honour appears to have misconceived the legal test: delay can be undue or inordinate, regardless of whether it arises due to a reasonable or unreasonable cause.

92 Although it was unclear what the time frames would be for listing trials in Queensland, his Honour said it would ‘seem reasonable to assume that any such delays will not be as long as what we are experiencing in Victoria.’^[30] The applicants say his Honour misdirected himself by comparing anticipated delay in Victoria with anticipated delay in Queensland. It is not clear to me that his Honour was engaging in the impermissible comparison contended for by the applicants; that is to say, he was not suggesting that the delay in Queensland could not amount to exceptional circumstances, simply because it would be less than in Victoria. Rather, he was drawing a factual inference that the delay until trial in Queensland was likely to be less than in Victoria, due to the prevailing situation in Victoria and in its criminal justice system, as a result of Victoria’s higher COVID-19 infection levels at that time. However, in any event, the magistrate was in error in thinking that his task was to consider delay until trial, rather than delay until the first appearance before the Queensland court.

93 The applicants had stressed how onerous it would be for them to be isolated from their families in Queensland during the period of delay until trial. The magistrate noted that family and friends would be unable to visit the accused men in Queensland, before observing that there had been no face to face prison visits in Victoria during the pandemic.^[31] I agree with the applicants that it was not relevant to compare prison visiting conditions between the two States, in assessing the question of delay.

94 The magistrate said he was required to consider the issue of likely sentence if found guilty, because of s 3AAA(1)(l) of the Bail Act. He concluded that the applicants would be facing a significant prison term, which would exceed any period on remand regardless of any ambiguity surrounding the timing of trials in Queensland.^[32] Once again, whilst his finding is undoubtedly correct, the likely sentence has little relevance to the question of delay for the purposes of considering extradition bail.

95 It is perhaps unsurprising, given the way the matter was argued before him, that the magistrate fell into error in some respects in his consideration of the question of delay. However, his errors do not lead to the conclusion that exceptional circumstances have been established.

96 The only relevant period to consider for the purposes of extradition bail is whether there will be any delay until the applicants’ first appearance in Queensland.

97 The applicants’ co-accused have a mention date in the Queensland court on 27 November 2020. It seems likely that the applicants may end up joining that mention hearing. But that would not be their first appearance before the Queensland court. There is no dispute that (subject to any stay application) the applicants will be brought before the Queensland court within a fortnight or so after this court’s decision. On that occasion, they can apply for trial bail before that court, which will be far better placed to assess questions of delay until the trial.

98 I am not persuaded that there will be any delay in extradition, much less any delay that might amount to exceptional circumstances by itself.

99 There is no dispute (and the magistrate accepted) that the pandemic has resulted in conditions in Victorian prisons generally being more onerous than they were before the pandemic. For example, prisoners cannot have face to face visits, or access rehabilitation programs. They also face longer hours of lockdown. Both applicants relied upon the general effects of the pandemic on Victorian prison conditions as a factor going towards exceptional circumstances.

100 Mr Forni also relied on a number of health conditions, including severe sleep apnoea, dilated cardiomyopathy, atrial fibulation and mitral valve regurgitation. In the past, he has suffered from significant cardiac failure. His medication (including Warfarin to prevent strokes) requires careful monitoring, as the consequences of an incorrect dose can be severe. According to his cardiologist, Mr Forni’s cardiac problems, together with his age (61 years) place him at a very high risk for major complications and a poor outcome, were he to contract COVID-19. In the absence of any evidence, his counsel invited the magistrate to take ‘judicial notice’ of the fact that there were at least 17 COVID cases in the Victorian prison system at the time of the hearing.^[33]

101 The prosecution responded to Mr Forni’s specific concerns by detailing the health services that were available to prisoners in Queensland, and contending that he would receive the same standard of medical care as was available in the Queensland community.

102 The magistrate accepted that Mr Forni’s age and chronic heart condition made him especially susceptible to risk were he to contract COVID-19.^[34] However, he was satisfied that there would be an appropriate level of medical care available to Mr Forni in the Queensland custodial environment.^[35]

103 As to the more general argument about onerous prison conditions in Victoria, his Honour said that it was unclear what impact the pandemic was having on the Queensland prison system,^[36] but it could reasonably be assumed to be less than what was being experienced in Victoria.^[37]

104 He concluded that ‘the factors amounting to Mr Formica and Mr Forni experiencing more onerous conditions in custody do not amount to exceptional circumstances.’^[38]

105 Mr Forni alleges that the magistrate erred by drawing a comparison between the Queensland and Victorian custodial conditions. Once again, I am not persuaded that his Honour was impermissibly thinking that his task was to compare the prison conditions in the two States, in order to decide whether exceptional circumstances had been established. Rather, he was making a finding of fact about the conditions in Queensland, and inferring that, whatever they were, they were likely to be less onerous than in Victoria. It was appropriate for the magistrate to consider the Queensland prison conditions, including the possible risks to Mr Forni’s health, for whatever time he would be in custody in Queensland if he was not granted bail. In fact, there is no evidence that Mr Forni’s health conditions have not been, or cannot continue to be, adequately managed in custody in either State.

106 The applicants will be brought before the Queensland court within a couple of weeks of any Victorian court’s decision. The only relevant period to consider for the purposes of extradition bail is whether the current prison conditions, first in Victoria, and then in Queensland, for that short period, amount to exceptional circumstances for one or both of the applicants.

107 I am not persuaded that the magistrate erred in concluding that neither the general custodial conditions, nor Mr Forni’s specific health problems, amounted to exceptional circumstances by themselves.

108 Both of the applicants are willing to pay for, and be subject to, round the clock electronic monitoring, as a condition of their bail.

109 The magistrate noted that the applicants had called written and oral evidence from Attenti Australia Pty Ltd, the company that the applicants proposed would provide the monitoring service. The evidence addressed the availability and operation of their service, and how issues of monitoring and compliance would be dealt with.

110 His Honour went on to note that Federal Agent Neale had expressed concern that, notwithstanding that the bracelets would be able to keep track of the wearer, and that the company would notify police in a timely manner of any breach or violation:

Police would not be able to monitor them 24/7 with the concern being the response time once alerted to a breach. This concern was in the context of Mr Forni being a pilot, having access to aircrafts – either directly or through industry contacts – and the ability to flee before police could respond.^[39]

111 Having briefly summarised the evidence in those terms, the magistrate did not go on to analyse the evidence, or make any factual findings about electronic monitoring. In particular, he did not give any reasons for deciding that the availability of monitoring did not constitute exceptional circumstances (by itself, or in combination with other matters). There is force in the applicants’ various criticisms in that regard.

112 Attenti listed the names of 15 NSW cases, and one Victorian case, in which courts granted bail subject to an Attenti electronic monitoring condition. None of the details of those other cases are before this court. The mere fact that Attenti monitoring is available, or has been ordered in other cases, does not mean that a court is obliged to grant bail whenever an accused offers to be subject to such monitoring.^[40] It is still necessary to consider the particular circumstances of each case.

113 No further evidence in relation to this matter was put before this court. Accordingly, I will consider the same evidence as was before the magistrate.

114 Attenti’s monitoring system can monitor somebody around the world, including on a plane, provided there is adequate cellular coverage. Both of the applicants live in areas with cellular coverage that would be adequate for round the clock monitoring. The ankle bracelets can be set to send an alarm to Attenti if the wearer leaves home or any other designated area.

115 Although it is not easy to remove the bracelets, they can be removed. The bracelets have an electronic tamper built into the system, which sends an alert to Attenti within 20 seconds of somebody opening the strap to take the device off. Attenti is prepared to notify the AFP immediately, in the event that such an alert was received.

116 Although they have a round the clock presence at the larger airports, the AFP do not maintain a 24/7 response capability right across the Melbourne area.

117 If the applicants are convicted of these offences, they face very substantial terms of imprisonment. There is no evidence that they have substantial connections to Australia beyond their partners and young children, who could presumably join them overseas, were they to flee the jurisdiction. Notwithstanding their previous good character, it cannot be said that there is no risk of the applicants absconding on bail.

118 The syndicate clearly has connections with people in PNG. Mr Formica himself has travelled there on at least two occasions, and admits to having associates in that country. PNG can be readily accessed from northern Australia, without using a commercial airport, by air or sea. Australia has no current extradition treaty with PNG.

119 Mr Forni is a qualified pilot, who lives close to his private aircraft. Syndicate members have demonstrated that they have the resources, contacts and ability to obtain chartered aircraft. Some of the alleged syndicate members, including Mr Formica, were found with high quality fake ID papers when arrested. The syndicate’s alleged modus operandi involves travelling within and out of Australia, avoiding detection by using private planes and small airports or landing strips. Even if AFP staffing levels provided round the clock monitoring across the entire metropolitan area, it is highly unlikely that an alert would provide authorities with sufficient time to prevent these particular applicants from absconding, if they sought to do so. If they removed their ankle bracelets, their whereabouts would be unknown.

120 In these particular cases, I am not persuaded that the availability of electronic monitoring is sufficient to amount to exceptional circumstances in itself.

121 Mr Formica’s father-in-law has offered to provide $1 million surety in the form of an unencumbered property in Brunswick West.

122 Mr Forni’s sister and her husband have offered to provide $175,000 surety in the form of a property in NSW.

123 The police did not raise any specific concerns about the properties, or the suitability of the persons offering to act as sureties.

124 After mentioning the proposed sureties, the magistrate’s only comment was that ‘the availability of a surety is of course a factor that can be considered in deciding exceptional circumstances however it is but one factor to be weighed up alongside all the others.’^[41]

125 The applicants do not allege any specific error in relation to the magistrate’s finding on the availability of a surety. Their criticism is that he did not give sufficient weight to this factor when considering whether exceptional circumstances had been established having regard to the factors in combination.

126 The amounts offered by way of surety (particularly in the case of Mr Forni) are not significant, compared with the amount of the alleged proceeds of crime. While there is no evidence as to how much the applicants themselves might have earned (or expected to earn) from their alleged involvement in this offending, both of the alleged importations involved shipments of hundreds of kilograms of cocaine.

127 The magistrate was right to conclude that the proposed sureties are not sufficient to amount to exceptional circumstances in themselves.

128 The following matters concerning Mr Formica’s personal circumstances were put before the court below:

(a) He is a 33 year old Australian citizen. He is married to Antonina Formica. At the time of the bail application below, his wife was pregnant, with their first child due in a matter of weeks;

(b) Mr Formica has a background working as a cook and restaurant manager. He was unemployed at the time of his arrest. The magistrate was informed that he had employment available to him if released on bail; and

(c) He has a limited, minor criminal history in Victoria, including convictions for possessing a controlled weapon without excuse (2003), driving while suspended (2005 and 2008), and failing to comply with a community based order (2007). He has never been on bail before.

129 The following matters concerning Mr Forni’s personal circumstances were put before the court below:

(a) He is a 61 year old Australian citizen, who lives in Northcote with his de facto partner, Sarah Meeson, and their two year old daughter;

(b) He has worked for some years as a finance and mortgage broker, most recently through his own company Comsec Finance Pty Ltd. He has six active clients who want his assistance; and

(c) He has no prior convictions and no other outstanding matters. A very positive character reference was provided by Reverend David Peake OAM.

130 The magistrate noted that both applicants had a long term partner, a child (or one soon to be born, in the case of Mr Formica), a stable address, and an employment or business opportunity. He described those as ‘matters that go to their favour.’^[42]

131 His Honour also noted that Mr Formica had a limited criminal history, Mr Forni had no criminal history, and Mr Forni had co-operated with investigators to access his email. He described those as matters that ‘of course’ went in the applicants’ favour.^[43]

132 The magistrate was correct to describe those as matters in favour of the applicants. But they are certainly not matters that amount to exceptional circumstances in themselves.

133 No specific error is alleged in relation to the magistrate’s findings as to these personal circumstances, so it is not necessary for me to consider or comment further on the evidence.

134 The applicants argued that the hardship that would be suffered by their families if they were remanded in custody amounted to exceptional circumstances.

135 At the time of the bail application below, Ms Formica was heavily pregnant with their first child. She suffered from gestational diabetes, which comes with associated risks. It was argued that Mr Formica needed to be there to support her, and that other family members were unable to assist her due to their own care obligations.

136 Ms Formica also suffers from asthma, which has previously required her to be hospitalised. A letter from her general practitioner said that, due to the unpredictability and severity of her asthma attacks, it was not safe for her to be left alone.

137 Mr Forni’s partner, Sarah Meeson, relies heavily on him for assistance in a number of respects. He assists with the care of their two year old daughter. He supports her financially, as she is presently on unpaid parental leave. He provides emotional support in dealing with her long-standing anxiety and depression (for which she is on medication).

138 The magistrate accepted that there was authority that family hardship can, singularly or in combination, amount to exceptional circumstances, but said that, like all factors, it depends on the nature and degree of the hardship.^[44] He then accurately and fairly summarised the evidence before him relevant to family hardship,^[45] before concluding as follows:

It is almost inevitable in most cases that the absence of a loved one due to incarceration will place some hardship on families. While the circumstances facing Mr Formica and Mr Forni’s families are, to use the language of the prosecution, “regrettable”, they are not of themselves exceptional in my view. Nevertheless, they form part of the matrix that goes to determining whether this threshold is met.^[46]

139 Mr Forni did not challenge the specific finding that the hardship to his family was not exceptional in itself. Rather, he said that the magistrate did not provide insight into how he took family hardship into account in considering all the factors collectively. That is a matter I will consider later in these reasons.

140 Mr Formica argued that the magistrate did not give sufficient weight to the hardship that his family would suffer if they were extradited in custody to Queensland. Once again, that argument is largely misconceived, in so far as it are based on the assumption that the magistrate was considering trial bail, and should have had regard to the possible hardship caused by a lengthy family separation until trial.

141 In fact, the relevant period for considering family hardship is the period between the Victorian court’s decision and the first appearance before the Queensland court - a matter of a couple of weeks. If the applicants are required to physically attend Queensland, they will need to be separated from their families for the period of quarantine in Queensland, whether they are on bail or in custody. No doubt their families would find it easier, for that fortnight or so, if the applicants could appear by AVL on bail from Melbourne; but the manner of appearance is a decision for the Queensland court, not this court. The family hardship if they were in custody until their first appearance in Queensland falls a long way short of establishing exceptional circumstances.

142 I am not persuaded that the magistrate erred in finding on the evidence before him that there was nothing exceptional in relation to family hardship for either applicant.

143 Even if regard was also had to the further evidence presented to this court on behalf of Mr Formica, the evidence overall would not be sufficient to establish exceptional circumstances.

144 Ms Formica gave birth on 19 August 2020, between the Magistrates’ Court decision and the first hearing in this court. Ms Formica’s obstetrician reported that she had a difficult labour and emergency caesarean section, and was hospitalised for five days to recover from the surgery. He said that upon discharge from hospital, she would have limited mobility and would require assistance with household chores, personal and child care, for at least the following four weeks. He expected that after six weeks she would be completely recovered, and able to resume full and independent activity and normal childcare.

145 Ms Formica has also experienced increased levels of depression since the birth. In late August, her general practitioner referred her to a psychologist, as part of a GP mental health treatment plan.

146 There is nothing exceptional about Ms Formica’s situation. Women who deliver via caesarean section generally need assistance for a period in the vicinity of four to six weeks, while they recover from the birth. The evidence is that Ms Formica’s family were in fact able to provide that support to her during her recovery period (which has now passed). There is also no evidence that her post-partum depression is unable to be adequately treated without the physical presence and support of her husband.

147 The applicants relied below on the principle of parity, pointing out that one of the co-accused, Mr El-Houli, had been granted bail.

148 The magistrate noted that parity was to be applied rarely in bail cases, as each case should be considered on its merits.^[47] After noting that Federal Agent Neale was not able to comment on the reasons why the police had not opposed bail in the El-Houli case, or to provide further details about Mr El-Houli or his case, the magistrate concluded ‘Accordingly, I have given parity little to no weight in my decision.’^[48]

149 Given the paucity of evidence as to the circumstances of the other co-accused, and the fact that all of the co-accused, apart from Mr El-Houli, have been remanded in custody, it is unsurprising that the applicants did not allege any error in relation to the magistrate’s findings as to parity.

150 After considering each of the individual factors in some detail, and concluding that none of them amounted to exceptional circumstances in themselves, the magistrate concluded as follows:

Having carefully considered all factors, and despite a number of matters weighing in their favour, even in combination I am not satisfied that exceptional circumstances have been demonstrated, especially in light of the seriousness of the alleged offending against Mr Formica and Mr Forni.^[49]

151 The applicants say that, even though the magistrate did consider each of the individual factors relied upon, because he did not provide insight into his reasoning as to how he assessed them collectively, I should find that he erred in failing to analyse the interaction of these factors in a collective way. There is some force in that argument.

152 Even though the magistrate was required to undertake an informed, intuitive evaluation, in considering whether the various factors collectively amounted to exceptional circumstances, that does not mean that he did not have to provide some explanation for his conclusion.

153 However, I do not accept the applicants’ submission that when you put the various factors together, they overwhelmingly do amount to exceptional circumstances. That is to say, I am not persuaded that his Honour erred in his ultimate conclusion on the combined factors.

154 Considering the factors relied upon by the applicants in combination, I would assess them in the following way.

155 It is difficult at this very early stage, and on the limited material before the court, to come to any firm or concluded view about the strength or otherwise of the prosecution case. I accept that the applicants may have some reasonable criticisms of the prosecution case. However, at this stage, this is neither an unusually strong nor an unusually weak prosecution case.

156 Having regard to the quantum of drugs and proceeds involved, and the level of sophistication of the syndicate’s operation, the alleged offending in this case is very serious. The maximum penalties for the offences with which the applicants have been charged are also very substantial.

157 The applicants’ prior good character, including the fact that they have little or no prior criminal history, and that Mr Forni co-operated with police by providing access to his emails, are positive factors in each applicant’s favour. However, there is nothing particularly unusual or exceptional about those matters in themselves. If there were other factors which (individually or collectively) got close to approaching exceptional circumstances, these matters might tip the balance in the applicants’ favour. But that is not the case here.

158 That they each have a partner and child in Victoria gives them a connection to Victoria, but says little, if anything, about the likelihood of their answering bail upon being extradited to Queensland. For the reasons given earlier: it cannot be said that there is no risk of their absconding due to the strength of their family or other connections to Victoria or Australia; and I would give only limited weight to the availability of electronic monitoring and the proposed sureties.

159 The availability of potential employment (in the case of Mr Formica), or the opportunity to continue his finance and mortgage broking business (in the case of Mr Forni), have little relevance in considering whether bail should be granted for the couple of weeks before they appear before the Queensland court.

160 Given that this court is only considering extradition bail, not trial bail, for the various reasons discussed earlier, I would give almost no weight to the following factors: delay; onerous prison conditions (including the risks to Mr Forni’s health in custody); family hardship; or the bail position in Queensland.

161 What constitutes exceptional circumstances will always be a question of fact or degree, and involves an informed, intuitive evaluation. In this particular case, the weakness of the individual factors relied upon by the applicants is such that, even in combination, they do not amount to exceptional circumstances.

162 It follows that I am not persuaded that the magistrate erred in concluding that exceptional circumstances had not been made out by the combined weight of the factors relied upon by the applicants.

163 For the reasons given above, I have concluded that the magistrate did commit some errors in his reasoning process. However, I am not persuaded that he erred in his ultimate conclusion, namely, that exceptional circumstances had not been established by either applicant.

164 Accordingly, the applicants will be extradited in custody, to be taken before the Queensland court. The date specified in the magistrate’s orders as the last date by which the applicants were to be taken before the Queensland court, 20 August 2020, has obviously passed. I will therefore vary the orders made in the Magistrates’ Court, by amending the date by which they are required to be taken before the Queensland court. I will hear from the parties as to the appropriate date for the varied orders. The magistrate’s orders will otherwise be confirmed.

^[2] The hearing in this court did not proceed until transcript of the Magistrates’ Court proceedings had been prepared. The hearing was subsequently adjourned twice, to enable further evidence to be obtained and submissions prepared.

^[9] The observations made in this paragraph are taken from the recent Court of Appeal decision in El Nasher v DPP [2020] VSCA 144, [51]. Although the comments were made when the court was considering what constitutes an acceptable or unacceptable risk, they are equally apposite in this case.

^[10] Commonwealth, Parliamentary Debates, House of Representatives, 9 November 1992, 2941 (Peter Duncan, Parliamentary Secretary to the Attorney-General).

^[22] The rule is set out in cases such as Tripodi v R [1961] HCA 22; (1961) 104 CLR 1. The name is a misnomer, as the principle also covers substantive offences allegedly committed by persons acting in concert, and is not limited to conspiracy charges.

^[24] Ibid s 16. I was informed that the police will be opposing bail in Queensland on an unacceptable risk basis. That is not a matter in relation to which it is necessary for me to make any findings, as I am not persuaded that exceptional circumstances have been established.

^[26] The magistrate started off thinking (correctly) that he was only concerned with the period of any delay until extradition but, unfortunately, the applicants persuaded him out of that.

^[33] It is not clear on what possible basis ‘judicial notice’ could have been taken of such a fact. The magistrate, sensibly, did not take up that suggestion, or make any specific finding as to active case numbers in the absence of evidence. The number of COVID-19 positive prisoners has varied from week to week.

^[36] No party had led any evidence as to how, if at all, the pandemic was affecting prison conditions in Queensland.

^[40] In the recent decision in Re Application for Bail by Biba [2020] VSC 536, Beale J refused to order bail on the basis of unacceptable risk, notwithstanding an offer to submit to electronic monitoring. In Re Assaad [2020] VSC 561, Lasry J granted bail, but did not include the proposed condition regarding Attenti electronic monitoring. At [91], his Honour expressed reluctance to support such a condition where the supplier of the service was a private company who regard the accused as their client.