Director of Public Prosecutions v Okwechime
[2023] ACTSC 199
•28 July 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Okwechime |
Citation: | [2023] ACTSC 199 |
Hearing Date: | 21 July 2023 |
Decision Date: | 28 July 2023 |
Before: | McWilliam J |
Decision: | The application for bail is refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – applicant charged with aggravated burglary, damage property and theft – where investigation into further criminal conduct ongoing – where information obtained about applicant associating with outlaw motorcycle gang – where lengthy criminal antecedents included multiple breaches of bail and failure to appear – bail refused |
Legislation Cited: | Bail Act 1992 (ACT) ss 9B, 19(2), 20B, 20C, 22 Crimes Act 1914 (Cth) s 3F Criminal Code 2002 (ACT) ss 308, 312, 403 Evidence Act 2011 (ACT) s 4 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111(2) |
Cases Cited: | Dunstan v Director of Public Prosecutions [1999] FCA 921; 92 FCR 168 In the matter of an application for bail by Connors [2014] ACTSC 252 In the matter of an application for leave to appeal by Collins [2003] ACTCA 17 R v Celeski [2016] ACTSC 140 R v Chatfield No 2 [2017] ACTSC 397 R v Laipato (No 2) [2014] ACTSC 363 R v Peric [2022] ACTSC 385 R v Reid (No 1) [2021] ACTSC 334 R v Rubino [2012] ACTSC 157 R v Saedam [2015] ACTSC 85 R v Subasic (No 2) [2023] ACTSC 79 R v Wakefield (1969) 89 WN (Pt1) (NSW) 325 |
Parties: | Emeka Okwechime ( Applicant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel T Taylor ( Applicant) C Diggins ( Respondent) |
| Solicitors Hugo Law Group ( Applicant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCC 150 of 2023 |
McWILLIAM J:
1․The applicant, Mr Emeka Okwechime, has been charged with offences of:
(a)Aggravated burglary of the Southern Cross Club in Jamison on 3 March 2023, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code), which carries a maximum penalty of 20 years’ imprisonment; and
(b)Damage property (the cash terminal at the Southern Cross Club) contrary to s 403 of the Criminal Code, which carries a maximum penalty of 10 years’ imprisonment.
(c)An ex officio charge of theft contrary to s 308 of the Criminal Code, which carries a maximum penalty of 10 years’ imprisonment.
2․He was arrested on 18 April 2023 and has been remanded in custody since then. He has pleaded not guilty to the above offences. The proceeding was committed for trial on 21 June 2023. There is not yet a hearing date.
The present application and the Court’s power to grant it
3․By an application filed 18 July 2023, the applicant applied for bail. The application was brought pursuant to s 20B of the Bail Act 1992 (ACT) (Bail Act) which empowers the Supreme Court to grant bail in respect of matters committed to this Court.
4․There are limitations set out in s 20C (relevantly, when there are two or more previous applications for bail in the Magistrates Court). The applicant has made one previous application for bail in the Magistrates Court, which was refused on 8 June 2023. As there has only been one previous application, the limitations do not apply here.
5․The Court may grant bail having regard to “any information it considers relevant and reliable” (s 19(2) of the Bail Act). That section is to be read with s 4 of the Evidence Act 2011 (ACT) which applies the rules of evidence to proceedings that relate to bail (among other proceedings listed).
6․The sole issue on the application is whether the Court should grant bail and if so, upon what conditions. It is a discretionary decision, closely governed by the statutory considerations discussed below.
Applicable statutory considerations
No presumption in favour of bail
7․Part 2 of the Bail Act deals with a variety of circumstances which either give rise to a presumption in favour of bail, or no presumption, or a presumption against bail. Relevantly here, Schedule 1 to the Bail Act contains a list of offences where no presumption in favour of bail applies. One of the offences with which the applicant is charged (aggravated burglary) is listed in Schedule 1 of the Bail Act. Accordingly, there is no presumption in favour of bail: s 9B.
8․However, as submitted by Mr Taylor for the applicant, there is also no presumption against the grant of bail. The application is in neutral territory so far as presumptions are concerned.
Matters arising for consideration
9․The Court must consider the three criteria listed in s 22(1) of the Bail Act in deciding whether to make a grant of bail. They are:
(a) the likelihood of the person appearing in court in relation to the offence,
(b) the likelihood of the person while released on bail
(i)committing an offence,
(ii)harassing or endangering the safety or welfare of anyone; or
(iii)interfering with evidence, intimidating a witness or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c) the interests of the person.
10․The Court may also have regard to the matters set out in s 22(3) of the Bail Act. They include:
(a) the nature and seriousness of the offence; or
(b) the person’s character, background and community ties; or
(c) the likely effect of a refusal of bail on the person’s family or dependants; or
(d) any previous grants of bail to the person; or
(e) the strength of the evidence against the person.
(c) The interests of the person
11․I will deal with the third of the criteria listed above first, as it is the least controversial. The interests of the applicant are likely to be best served if he were to be granted bail. There is the obvious interest in the applicant retaining his liberty or freedom, as someone who has been charged and is presently presumed to be innocent: R v Laipato (No 2) [2014] ACTSC 363 (Laipato) at 1.
12․Further, the applicant’s business partner has written to the Court about the business owned by them and the effects upon the business if the applicant is held in custody. It is in the applicant’s business interests that he remains in the community. However, it does not appear that the business employs other individuals or that the business is likely to cease without the applicant being in the community running it.
13․The Court was also made aware that the applicant has a domestic partner and an eleven-year-old child. It need hardly be said that their lives will be detrimentally affected by their partner and father being in custody. Without hearing argument on this particular mandatory criterion, I am prepared to accept that the interests of the applicant extend to those of his immediate family members.
(a) Likelihood of the person appearing in court in relation to the offence
14․The applicant has an extensive criminal history; extensive in that there are 80 counts recorded, extending back to 2002. It includes various driving offences, possession of prohibited weapons and ammunition, drug possession and trafficking. Refshauge AJ stated in R v Subasic (No 2) [2023] ACTSC 79 at [46] that “an offender’s prior record is a very important part of the consideration of bail, but must be considered rationally.” His Honour went on to cite R v Reid (No 1) [2021] ACTSC 334 at [4]:
…while the past behaviour of an offender is generally regarded as the best predictor of future conduct, evidence suggests that there are limitations on this general principle, including that it is a best predictor but specifically in short intervals and where the circumstances are identical both in the past and the future.
15․Here, the applicant’s criminal history includes:
(a)14 counts of breaching court-imposed bail conditions;
(b)four counts of breaching court imposed good behaviour orders; and
(c)two counts of failing to appear before the court after signing an undertaking.
16․That is, there are twenty separate instances that demonstrate a failure to do something that a court order has required of the applicant. The fact that an Applicant has previously breached bail conditions or failed to answer his bail in accordance with his bail undertaking is a relevant factor: Laipato at [51]-[53], cited in R v Saedam [2015] ACTSC 85 at [42].
17․Most significantly, the applicant has not one but two failures to appear in court, in 2008 and September 2018. While the first may have carried little weight of itself, the last of those failures to appear is relatively recent. Overall, the history is substantial, relevant and includes recent conduct. It is the best predictor of future behaviour and therefore carries great weight in the Court’s assessment. There is a real risk (or likelihood) of the applicant failing to appear in court in relation to the offences with which he has been charged.
(b) The likelihood of the person, while released on bail committing an offence, intimidating a witness, or interfering with evidence
18․Section 22(1)(b) of the Bail Act addresses the risk the applicant might engage in various forms of misconduct, whether it be committing an offence, harassing or endangering a person’s safety or welfare, or interfering with evidence or witnesses, or otherwise obstructing the course of justice.
19․The two key concerns here were the likelihood of the applicant committing an offence and the likelihood of the applicant interfering with witnesses.
20․The applicant submitted that s 22 contains no legislative warrant for “preventative detention”, based on a fear that the worst possibility (of the applicant committing further offences) will come to pass. It was submitted that the Court should not find there is a risk of offending merely because of the applicant’s antecedents. Regard must also be had to whether and how conditions of bail might manage that risk: R v Celeski [2016] ACTSC 140 at [90] (Celeski).
21․In support of that submission, the applicant relied on a number of cases which followed the decision of the Full Court of the Federal Court of Australia, when it was the appellate court of this Court, in Dunstan v Director of Public Prosecutions [1999] FCA 921; 92 FCR 168 (Dunstan).
22․In Dunstan, Madgwick J said at [21]:
It is a wrong approach to deny a person bail in an effort to eliminate the risk that such a person might commit offences if free to do so. There is no legislative warrant for preventative detention based on a fear that the worst possibility will come to pass. The question posed by the Bail Act is whether the Court is satisfied that any risk is sufficient to justify the Court denying the accused person a legal right, the right to bail, established by s 8.
23․In the same case, Gyles J said at [55]-[56] (emphasis added):
55.In my view, it is wrong to approach the issue under ss 8(2) and [22(1)(b)] on the basis of the elimination of risk. The correct question to ask is whether the prosecution has satisfied the Court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not: see the explanation by Deane J in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union [1979] FCA 85; (1979) 42 FLR 331 at 346–348 ... If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of real likelihood is simply to be ignored in the balancing process.
56.…[R]efusal of bail upon the basis of [protection of the community, including the likelihood of committing further offences] alone, is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis.
24․The legislation under consideration in Dunstan was in slightly different terms, with the considerations of s 22 appearing in a different order, but the substance of the limbs in what is now s 22(1)(b) of the Bail Act remains the same. The key difference, which is of some significance to the present application, is that the Court in Dunstan was addressing the application for bail in the context of s 8(2), which provided for an entitlement or a “right to bail”. There was a presumption in favour of bail. That is not the case here.
25․Further, Dunstan was considered in the judgment of In the matter of an application for leave to appeal by Collins [2003] ACTCA 17, where the Court of Appeal said at [34]:
It is true, of course, that one cannot know the future and that any acknowledgment of risk may be thought to involve some measure of speculation, but the decision in Dunstan does not require a conclusion that bail must be granted unless the Crown can establish on the balance of probabilities that the accused will act in a particular way. It is sufficient for the Crown to demonstrate that in the circumstances of the case the need to protect the community outweighs the prima facie entitlement to bail provided by s 8.
26․In the circumstances here there is no prima facie entitlement to bail, and what is required is simply an assessment of the likelihood of the applicant committing an offence. Applying Dunstan at [55], “likelihood” in this statutory context is not to be understood as being more probable than not. However, the applicant is correct to emphasise that the Court is assessing risk, and whether any identified risk can be satisfactorily met through the imposition of conditions on bail, or whether the risk to the community is unacceptable: (applying Celeski at [90]).
27․The applicant’s criminal history is clearly relevant in establishing some likelihood of the applicant committing an offence. However, it is not the only matter relied upon by the respondent.
28․The applicant has been incarcerated for some months. During that time he has admitted to two disciplinary breaches while in prison. The first was in April 2023, and the breach was the applicant having in his cell stored quantities of cannabis, buprenorphine, cocaine and a rock substance believed to be heroin. The second was in June 2023, when he refused to undertake urinalysis. Thus, even when in custody, there are concerns about the applicant’s ability to comply with orders or directions.
29․The respondent also relied upon an ongoing investigation in relation to material seized pursuant to a search warrant which was executed on 18 April 2023 at the applicant’s residence. The items seized included a ‘golf ball’ sized substance suspected to be methamphetamine weighing 24 grams, tape, seal and suspected deal bags weighing 20 grams, cash bundles seized from a safe totalling $8,000, made up of $50, $20 and $100 notes. During the execution of the warrant, police also observed weapons not used for food preparation placed near doorways and on the kitchen stove top.
30․As the respondent submitted, applying appropriate caution, uncharged allegations may be taken into account: see R v Chatfield No 2 [2017] ACTSC 397 at [25]-[27] and R v Peric [2022] ACTSC 385 at [15]-[17]. Here, there is no dispute about what was seized from the applicant’s residence. The reason no charge has yet been laid was explained to be because the police are awaiting confirmation of the substance seized, from drug analysis reports.
31․The Bail Consideration Form in evidence specified a separate concern that the applicant may attempt to approach club staff to intimidate them in changing their version of events. It also referred to matters pertaining to the applicant’s character and associates. There was a concern that the applicant was associated with an outlaw motorcycle gang and in particular undertook debt collection for monies owed to that gang. The officer’s belief was that the applicant had the means and the skills to alter a witness’s version of events.
32․The applicant submitted that these matters were hearsay and unreliable, and further, the Court should eschew suspicion and speculation which is effectively what this evidence amounted to. The author of the document was made available for cross-examination and disclosed the sources for the information he provided in the form. While I consider the evidence that he gave was credible, I have ultimately given it little weight because of the other, more significant, matters which have been discussed above.
Other relevant considerations
33․The parties also made submissions about the strength of the prosecution case for the above charges. The case statement was before the court on the bail application set out the evidence that will be put before the Court at trial.
34․The proposed evidence included:
(a)Photographs of tattoos on the applicant, which are said to match the tattoos of the offender visible in the CCTV footage of the particular night, that was obtained from the Southern Cross Club.
(b)The clothing found at the residence of the applicant, which is alleged to match that worn by the offender in the CCTV footage (including a black “Nike” jacket, black “Skechers” shoes and black “Harbinger” gloves).
(c)An orange and black hammer found in the applicant’s car when a search warrant was executed, which is alleged to match the hammer seen on the CCTV footage.
(d)A series of text messages found on the applicant’s phone, which are said to reference the offence that occurred.
35․There was discussion about identity being an issue in the proceeding, and evidence which may be the subject of challenge in terms of admissibility. For example, the hammer found in the applicant’s car was said not to properly fall within the authorised scope specified on the warrant, an argument based on the interpretation of s 3F of the Crimes Act 1914 (Cth).
36․It has been said that the classification of a case as weak does not of itself justify bail being granted. Rather, the position is that where the case is strong the case for bailis less compelling. So much is clear from R v Wakefield (1969) 89 WN (Pt1) (NSW) 325 at 330, cited in In the matter of an application for bail by Connors [2014] ACTSC 252 at [14]; R v Rubino [2012] ACTSC 157 at [40].
37․However, even with those concerns, the applicant fairly accepted that there was a case to answer. While the case was not overwhelming, it was also not a weak case.
Conclusion
38․Taking all these matters into account I consider a grant of bail poses an unacceptable risk to the community, primarily because I have concerns about the applicant complying with any conditions of bail and appearing at Court when required to do so, as well as concerns about the likelihood of him offending while on bail.
39․I have given careful consideration to whether bail conditions might manage those risks. Even with the applicant offering the substantial surety that has been indicated in the affidavit evidence, it is difficult to accept that appropriately crafted bail conditions would be complied with, because of the applicant’s clear history of non-compliance. For those reasons, and notwithstanding the very able submissions of Mr Taylor for the applicant, a grant of bail is not justified and the application will be refused.
Orders
40․The Order of the Court is as follows:
(1)The application for bail is refused.
(2)Pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) a suppression order is made in respect of these reasons for judgment, until the conclusion of the proceeding.
(3)The parties have liberty to apply in respect of any subsequent variation to Order 2 above.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam Associate: Date: |
0
14
5