IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
CRIMINAL DIVISION

S ECR 2024 0124

IN THE MATTER of the Bail Act 1977 (Vic)		
		
AND 		
		
IN THE MATTER of an application for bail by Danny ZAYNEH 		

---

JUDGE:	Elliott J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	20 November 2024	
DATE OF RULING:	22 November 2024	
CASE MAY BE CITED AS:	Re Zayneh (No 3)	
MEDIUM NEUTRAL CITATION:	[2024] VSC 726	

---

CRIMINAL LAW – Bail – Application for variation of undertakings – Application granted. 

---

APPEARANCES:
	Counsel	Solicitors	
For the applicant	M Pena-Rees (solicitor)
	Lewenberg & Lewenberg	
			
For the respondent	B Stevens 	Commonwealth Director of Public Prosecutions 	

HIS HONOUR:
A.	Introduction
1	The applicant, Danny Zayneh (“Zayneh”), has been charged with serious criminal offences involving conspiring to import and trafficking of commercial quantities of drugs, dealing with proceeds of crime and possessing a handgun without a licence.  He was arrested on 7 June 2021 and was on remand until 28 June 2024, when he was granted bail on strict conditions. 
2	In support of bail being granted, on 28 June 2024 Zayneh’s mother and wife each gave undertakings to the court.  They now apply for these undertakings to be varied.
3	For the reasons that follow, the application for variation of the undertakings will be granted for a strictly limited period and subject to further undertakings.
B.	Background
4	Before turning to the conditions upon which Zayneh was granted bail, it is important to record the series of refusals of bail that preceded bail being granted.
5	Zayneh had previously made 2 unsuccessful applications for bail in the Magistrates’ Court of Victoria in December 2021 and July 2022 respectively.  
6	An application for bail was heard in this court on 9 August 2023.  That application was also refused.  At the time that application was heard, a trial was not expected to commence until 2025, with a trial in 2026 being “a real possibility”, meaning that Zayneh was likely to spend a period of at least 4 years on remand awaiting trial.  On the basis of delay alone, Beach JA was satisfied that Zayneh had established exceptional circumstances justifying the grant of bail.  However, Beach JA considered there was an unacceptable risk that, if released on bail, Zayneh would fail to surrender into custody in accordance with the conditions of bail, and that the delay, though significant, was not yet of such a magnitude as to render that risk acceptable.
7	Zayneh appealed that decision on the basis that Beach JA’s finding that the Commonwealth Director of Public Prosecutions had established that Zayneh posed an unacceptable risk was unreasonable.  The Court of Appeal dismissed the appeal, determining that the conclusion reached by Beach JA was reasonably open. 
8	Zayneh subsequently sought special leave to appeal to the High Court of Australia.  In April 2024, that application was refused.
C.	Initial bail conditions and undertakings
9	In granting bail on 28 June 2024, the pivotal factor in acceding to the application was the length of delay between Zayneh’s arrest and the likely trial date.  But for the truly exceptional delay in bringing this matter to trial, bail would have again been refused.
10	Further, bail was only granted on very strict conditions. They were as follows:
[Zayneh] is admitted to bail on his own undertaking and with bail guarantees from [6 guarantors], in the combined total amount of $1,780,000 on the following conditions, namely that he must: 
(1)	Reside at [address] (“the Residence”). 
(2)	Not leave the Residence other than:
(a)	between the hours of 9.00am and 10.00am each day to use the communal gymnasium facilities in his apartment building located at [address]; or 
(b)	to travel to and from and attend court hearings in the company of a legal representative in respect to proceedings to which he is a party. 
(3)	Present at the front door of the Residence upon the reasonable request of the informant, Detective Sergeant [name], or his nominee, being an authorised member of the Australian Federal Police or Victoria Police. 
(4)	By 4.00pm on 2 July 2024, accept the offer of employment at Food Innovation Group made to him by way of letter dated 5 July 2023, a copy of which is exhibited to the affidavit of Edward Barbar affirmed on 5 July 2023.
(5)	Prior to his release from custody and at his own expense, be fitted with an electronic monitoring device provided by Allied Universal Electronic Monitoring Australia Pty Ltd (“Allied Universal”).  
(6)	Comply with all lawful directions of employees of Allied Universal and their agents. 
(7)	Prior to his release from custody and at his own expense, arrange for employees of Allied Universal or their agents to have access to the Residence for the purpose of installing any necessary technology to facilitate the electronic monitoring arrangement, including geofencing (the details of which arrangement are to be provided to the court upon completion of installation and made the subject of an order by the court before his release). 
(8)	Not remove the electronic monitoring device fitted by Allied Universal from his person except by arrangement with employees of Allied Universal or their agents for the purpose of repair or replacement of the electronic monitoring device. 
(9)	Not allow anyone other than [Zayneh’s wife], [Zayneh’s son], [Zayneh’s mother], his legal representatives, medical practitioners providing treatment to [Zayneh], [Zayneh’s wife], [Zayneh’s son] or [Zayneh’s mother], authorised members of the Australian Federal Police or Victoria Police and nominated employees of Allied Universal or their agents (acting in the course of their employment and not otherwise) to attend the Residence. 
(10)	Not contact or associate with, either directly or indirectly, any co-accused. 
(11)	Not contact or associate with, either directly or indirectly, any witness for the prosecution other than the informant. 
(12)	Not contact or associate with, either directly or indirectly, any person charged with an offence arising from the Australian Federal Police investigation known as “Operation Ironside”. 
(13)	Not possess or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act. 
(14)	Not possess or use more than 1 mobile telephone.
(15)	Not possess or use a mobile telephone with an integrated computer, commonly referred to as a “smartphone”. 
(16)	Provide the informant or his nominee with the telephone number, international mobile equipment identity (“IMEI”) number, subscriber identification module (“SIM”) card number and any password or passcode of the mobile telephone he possesses or uses, within 1 hour of first having access to that mobile telephone, and notify the informant or his nominee of any change of password or passcode of that mobile telephone within 1 hour of that change.
(17)	Produce the mobile telephone he possesses for inspection upon the reasonable request of the informant or his nominee. 
(18)	Provide any password or passcode for the mobile telephone he possesses or uses upon the reasonable request of the informant or his nominee. 
(19)	Not possess or use any computer, tablet or other electronic device that has any applications installed that allow for encrypted communications. 
(20)	Not engage in any encrypted communications. 
(21)	Not leave metropolitan Melbourne (as defined in section 3 of the Planning and Environment Act 1987 (Vic)). 
(22)	Not attend any points of international departure. 
(23)	Surrender any current passport or interstate or international travel document in his possession or control to the informant or his nominee within 2 hours of his release from custody. 
(24)	Not apply for any passport or interstate or international travel document or cause, whether directly or indirectly, any other person to do so on his behalf. 
(25)	Subject to compliance with paragraph [10](2)(b) above, attend the Magistrates’ Court of Victoria at Melbourne at 9.30am on 10 September 2024 and there surrender himself, and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.
11	In addition to these conditions, bail was only granted on the basis that the following undertakings were given to the court, as detailed in the recitals to the orders made on 28 June 2024:
…
B.	On 28 June 2024, [Zayneh] by his counsel provided an undertaking to consent to any lawful search and seizure at his proposed bail address, without the need for a warrant.
C.	On 28 June 2024, [Zayneh’s wife], by [Zayneh’s] counsel, provided an undertaking to the court to immediately notify police if she became aware that [Zayneh] had breached any condition of his grant of bail.  She also provided an undertaking to consent to any lawful search and seizure at her residence, being [Zayneh’s] proposed bail address, without the need for a warrant.  In addition, she provided a further undertaking not to leave the State of Victoria and to surrender her passport and the passport of [Zayneh’s son], to the Australian Federal Police or the court.  
D.	On 28 June 2024, [Zayneh’s mother], by [Zayneh’s] counsel, provided an undertaking to the court to immediately notify police if she became aware that [Zayneh] had breached any condition of his grant of bail.  In addition, she provided a further undertaking not to leave the State of Victoria and to surrender her passport to the Australian Federal Police or the court.  
E.	On 28 June 2024, Edward Barbar provided an undertaking to the court by affidavit to closely monitor [Zayneh’s] daily work activities.  Edward Barbar also provided a further undertaking to, within 30 minutes of becoming aware that [Zayneh] had not reported to work in accordance with the terms of his employment agreement (being at an agreed time each morning, 7 days per week), notify the informant of that fact.
(Emphasis added.)
D.	Variations of bail conditions
12	On 29 August 2024, the Magistrates’ Court ordered that Zayneh’s conditions of bail be varied as follows: 
Application Granted.
Bail varied to [Zayneh’s] own undertaking with 4 bail guarantees in the amount[s] of
1. $690,000.00  2. $510,000.00  3. $500,000.00  4. $80,000.00
1. Reside at [address]. 
2. Not leave the Residence other than: 
– Between the hours of 9am - 11am each day to use the communal gymnasium facilities in his apartment building located at [address] or; 
– To travel to and from and to attend court hearings in the company of a legal representative and or/ (sic) a bail guarantor and/or [Zayneh’s wife] and or Edward Barbar in respect to proceedings to which he is a party[;]
– To travel to and from and to attend medical appointments in the company of representative (sic) and or/ (sic) a bail guarantor and/or [Zayneh’s wife] and/or Edward Barbar, subject to the informant (and/or his nominee) being provided 48 hours (sic) notice of such proposed attendance; or
– To travel to and from and to attend any financial banking institution and VicRoads only once, for the purposes of obtaining one driver’s license and opening one bank account in the company of a legal representative and/or a bail guarantor and/or [Zayneh’s wife] and/or Edward Barbar, subject to the informant (and/or his nominee) being provided 48 hours (sic) notice of such attendance.
3. Present at [the] front door of [the] Residence upon the reasonable request of the informant, Detective Sergeant [name], or his nominee, being an authorised member of the Australian Federal Police or Victoria Police. 
4. By 4pm on 2 July 2024, accept the offer of employment at Food Innovation Group made to him by way of letter dated 5 July 2023, a copy of which is exhibited to the affidavit of Edward Barbar affirmed on 5 July 2023[.]
5. Prior to his release from custody and at his own expense, be fitted with an electronic monitoring device provided by Allied Universal Electronic Monitoring Australia Pty Ltd (“Allied Universal”).
6. Comply with all lawful directions of employees of Allied Universal and their agents. 
7. Prior to his release from custody and at his own expense, arrange for eploymees (sic) of Allied Universal or their agents to access the Residence for the purpose of installing any necessary technology to facilitate the electronic monitoring arrangement, including geofencing (the details of which arrangment (sic) are to be provided to the court upon completion of installation and made the subject of an order by the court before his release[.] 
8. Not remove the electronic monitoring device fitted by Allied Universal from his person expect (sic) by arrangement with employees of Allied Universal or their agents for the purpose of repair or replacement of the electronic monitoring device. 
9. Not allow anyone other than [Zayneh’s wife], [Zayneh’s son], any bail guarantor[,] Edward Barbar [and other specified persons], his legal representatives, medical practitioners providing treatment to [Zayneh], authorised members of the Australian Federal Police or Victoria Police cont[.]
10. Please see attached Supreme Court bail. 
(Emphasis added.)
13	On 11 September 2024, Zayneh was committed to stand trial in the County Court of Victoria and entered into trial bail subject to the following conditions:
(a)	Attend at the trial, at a day, time and place notified to [Zayneh] and [his] bail guarantor/s by the Court and then surrender into custody; and
(b)	Not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender [himself] into custody; and
(c)	To attend at the Melbourne County Court on 26/11/2024 at 09:00 AM 
Trial Bail fixed in [Zayneh’s] own undertaking 
With 4 bail guarantees in the amount[s] of 
1. $690,000.00 2. $510,000.00 3. $500,000.00 4. $80,000.00
1. Reside at [address].
2. Not leave the Residence other than:
– Between the hours of 9am - 11am each day to use the communal gymnasium facilities in his apartment building located at [address] or;
– To travel to and from and to attend Court hearings in the company of a legal representative and or/(sic) a bail guarantor and/or [Zayneh’s wife] and or Edward Barbar in respect to proceedings to which he is a party.
… 
SCHEDULE OF SPECIAL CONDITIONS
– To travel to and from and to attend medical appointments in the company of representative (sic) and/or a bail guarantor and/or [Zayneh’s wife] and/or Edward Barbar, subject to the informant (and/or his nominee) being provided 48 hours (sic) notice of such proposed attendance; or
– To travel to and from and to attend any financial banking institution and VicRoads only once, for the purposes of obtaining one driver’s license and opening one bank account in the company of a legal representative and/or a bail guarantor and/or [Zayneh’s wife] and/or Edward Barbar, subject to the informant (and/or his nominee) being provided 48 hours’ notice of such attendance.
3. Present at front door of [the] Residence upon the reasonable request of the informant, Detective Sergeant [name], or his nominee, being an authorised member of the Australian Federal police or Victoria Police.
4. By 4pm on 2 July 2024, accept the offer of employment at Food Innovation Group made to him by way of letter dated 5 July 2023, a copy of which is exhibited to the affidavit of Edward Barbar affirmed on 5 July 2023[.]
5. Prior to his release from custody and at his own expense, be fitted with an electronic monitoring device provided by Allied Universal Electronic Monitoring Australia Pty Ltd (“Allied Universal”).
6. Comply with all lawful directions of employees of Allied Universal and their agents.
7. Prior to his release from custody and at his own expense, arrange for eploymees (sic) of Allied Universal or their agents to access the Residence for the purpose of installing any necessary technology to facilitate the electronic monitoring arrangement, including geofencing (the details of which arrangment (sic) are to be provided to the Court upon completion of installation and made the subject of an order by the Court before his release[.]
8. Not remove the electroniic (sic) monitoring device fitted by Allied Universal from his person expect (sic) by arrangement with employees of Allied Universal or their agents for the purpose of repair or replacement of the electronic monitoring device.
9. Not allow anyone other than [Zayneh’s wife], [Zayneh’s son], any bail guarantor Edward Barbar [and other specified persons], his legal representatives, medical practitioners providing treatment to [Zayneh], authorised members of the Australian Federal Police or Victoria Police cont[.]
Please see oth (sic) orders for continued/further conditions…
(Emphasis added.)
E.	Previous application to vary undertakings
14	An application was initially made on 8 November 2024.  No evidence was filed and there was no attempt to adduce any evidence at the hearing.  There had been some suggestion in correspondence leading up to this earlier hearing that the undertakings may not be binding, as they had not been referred to in the variations of bail ordered by the Magistrates’ Court.  After it was noted that there had been no application to have the undertakings varied or released, it was confirmed that Zayneh’s mother and wife had both continued to treat themselves as bound by their previous undertakings.
15	The suggestion in the correspondence was misconceived.  Conditions of bail set forth the obligations of an accused who has been granted bail.  Depending on the nature of the undertakings provided, the fact that conditions may be varied after the grant of bail may or may not affect undertakings given by others at the time bail was granted.  Each case needs to be considered according to its own facts.  Whatever they may be, ordinarily, there would be no proper basis to presume that if conditions were varied after the grant of bail that such a circumstance would have the effect of releasing any person who had previously given an undertaking in support of bail being granted.
16	In any event, both sets of Magistrates Court orders made with respect to Zayneh’s conditions of bail referred to what had preceded them and could not sensibly be understood as intending to release Zayneh’s mother and wife from the undertakings in question.  
17	Ultimately, the previous application was withdrawn when it was made clear that the court would not release or vary any of the undertakings previously given unless proper evidence was before the court.
F.	Details of the present application
18	An application is now made by each of Zayneh’s mother and wife to have the undertakings they provided to this court varied so that they may travel to Queensland next month for a limited period together with their grandson and son respectively (who is also Zayneh’s son).  
19	An affidavit affirmed by Zayneh’s solicitor was filed in support of the application which stated that Zayneh’s mother and wife wanted to travel together with the child to Queensland for the purposes of a holiday.  It is intended they will spend time with long-time family friends, including children who are said to be close friends of Zayneh’s son.
20	In light of the undertakings, precise travel details have not been put in place.  Departure is foreshadowed on 12 December 2024, with a return flight on 22 December 2024.  A specified address was given in relation to the proposed holiday destination.  The affidavit stated that Zayneh’s mother and wife were willing to abide by any condition imposed by the court should the variation be granted, including a condition requiring them to provide notification of confirmed travel plans, and a copy of the paid return-flight tickets to the informant once booked.  During the hearing, they also agreed that each of them would report to the local police station (which was close to the proposed holiday destination) while away as often as the court required.  In addition, they said they were willing to report daily to the informant or any other nominated police officer if the court considered that an appropriate condition.
21	The affidavit also noted the existing undertaking given by Zayneh’s employer, Edward Barbar, to monitor Zayneh.
22	The application was opposed.  It was submitted the reduction in supervision would increase the risk of Zayneh breaching conditions of his bail.  Self-evidently, if Zayneh’s mother and wife are in Queensland, they will not be in a position to properly monitor Zayneh’s movements.  Further, it was submitted that Zayneh’s mother, wife and child remaining in Victoria ameliorated the risk of flight.  Concern was also expressed about the ability of Zayneh’s family to flee Australia being more readily achieved from Queensland, rather than Victoria, given its proximity to neighbouring countries.  Finally, it was submitted that now that Zayneh had been committed to trial, the risk of flight may well have increased.
23	In response to any conditions being imposed if the variations were granted, the court was informed after the hearing that arrangements could be made for reporting to occur at the relevant local police station in Queensland.
24	Further, the respondent indicated that daily reporting to the informant was not a condition sought by the prosecution if the court was minded to allow the travel to occur.  Instead, the respondent sought for reporting to occur on 3 separate occasions during their vacation, namely in the first 48 hours of arrival, 4 days after that attendance and report, and in the last 48 hours before departure. 
G.	Consideration
25	On the very confined basis sought, I am satisfied it is appropriate to grant the application.
26	Neither Zayneh’s mother nor his wife are accused of any criminal conduct or other wrongdoing.  The undertakings that have been given are onerous (and were accepted by the court as being appropriate and reflective of the seriousness of the charges pending).  Naturally, those undertakings are concerned with the risk that Zayneh poses now that bail has been granted, and had been accepted for no other reason.
27	Further, the variation is for a maximum period of 10 days.  The police may form the view that further surveillance of Zayneh is required during this relatively short period of time.  When it was suggested to the respondent’s counsel that the affidavit of the informant filed in response was silent on the availability of resources to add additional surveillance for this period of time, and that it was open to the court to draw the inference that such resources were available, there was no submission put to the contrary.  Accordingly, I am satisfied that in the limited period of time in which the variation will operate, other appropriate measures are capable of being put in place to ensure the risk posed by Zayneh does not become unacceptable.
28	Furthermore, the undertaking to report to a local police station in Queensland on 3 separate occasions throughout the vacation will be accepted and recorded in the orders granting the application.  At the very least by this means, the whereabouts of Zayneh’s mother and wife may be monitored.
29	Moreover, the remaining aspects of the existing undertakings will stay in place.  Amongst other things, each of Zayneh’s mother and wife will still be the subject of an obligation to immediately notify police if either of them becomes aware that Zayneh has breached any condition of his grant of bail.
30	Finally, although Zayneh has been committed for trial, it is still likely that he will remain on bail for a considerable period of time.  Thus, it is not unreasonable for Zayneh’s mother and wife to seek limited variations from time to time so that they may be afforded the ability to engage in some recreational activities interstate that otherwise would not be permitted because of their undertakings.
H.	Conclusion
31	Accordingly, the undertakings given to the court on 28 June 2024 will be varied as follows:
On 22 November 2024, [Zayneh’s mother], by Zayneh’s solicitor, confirms she continues to provide an undertaking to the court to immediately notify police if she becomes aware that Zayneh has breached any condition of his grant of bail.  She also provides a further undertaking not to leave the State of Victoria except from 12 December 2024 to 22 December 2024 (both inclusive) to travel (via Melbourne and Coolangatta airports) to [address] to reside exclusively at that address during that period.  She also provides a further undertaking to notify the informant or any other nominated police officer of any travel arrangements within 48 hours of any booking and at least 48 hours before any departure, such notification to include copies of the paid return-flight tickets.  She also provides a further undertaking to attend and report to [address] police station on 3 separate occasions between 12 December 2024 and 22 December 2024 between the hours of 8.00am and 4.00pm, namely in the first 48 hours of her arrival at [address], 4 days after that attendance and report, and in the last 48 hours before departure from [address].
On 22 November 2024, [Zayneh’s wife], by Zayneh’s solicitor, confirms she continues to provide an undertaking to the court to immediately notify police if she becomes aware that Zayneh has breached any condition of his grant of bail.  She also provides a further undertaking not to leave the State of Victoria except from 12 December 2024 to 22 December 2024 (both inclusive) to travel (via Melbourne and Coolangatta airports) to [address] to reside exclusively at that address during that period.  She also provides a further undertaking to notify the informant or any other nominated police officer of any travel arrangements within 48 hours of any booking and at least 48 hours before any departure, such notification to include copies of the paid return-flight tickets.  She also provides a further undertaking to attend and report to [address] police station on 3 separate occasions between 12 December 2024 and 22 December 2024 between the hours of 8.00am and 4.00pm, namely in the first 48 hours of her arrival at [address], 4 days after that attendance and report, and in the last 48 hours before departure from [address]. She also provides a further undertaking to consent to any lawful search and seizure at her residence, being Zayneh’s bail address, without the need for a warrant.