Evans v The State of Western Australia
[2014] WASC 180
•19 MAY 2014
EVANS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 180
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 180 | |
| Case No: | MBA:11/2014 | 11 & 23 APRIL & 1 MAY 2014 | |
| Coram: | CORBOY J | 19/05/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application to vary bail conditions refused | ||
| B | |||
| PDF Version |
| Parties: | MOHAMED IGASAAN EVANS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail Application to vary bail conditions |
Legislation: | Bail Act 1982 (WA), s 14, s 17, pt C, pt D sch 1 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Application to vary bail conditions
Legislation:
Bail Act 1982 (WA), s 14, s 17, pt C, pt D sch 1
Result:
Application to vary bail conditions refused
Category: B
Representation:
Counsel:
Applicant : Mr L M Levy SC
Respondent : Mr J Newton-Palmer
Solicitors:
Applicant : Holborn Lenhoff Massey
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
1 CORBOY J: This is an application under s 14(1)(b) of the Bail Act 1982 (WA) to vary the conditions on which the applicant has been granted bail.
2 The statement of material facts alleges that members of the gang crime squad searched the applicant's premises and motor vehicle on 9 December 2013. A clip-seal bag containing approximately 1 gm of cannabis was located in a bedside drawer in the applicant's bedroom; a firearm and ammunition were found hidden under a drawer to a desk and a dagger was seized from the motor vehicle.
3 The applicant was subsequently charged with the following offences:
(a) possession of a prohibited drug (cannabis), contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA);
(b) possession of a controlled weapon (a dagger), contrary to s 7(1) of the Weapons Act 1999 (WA);
(c) possession of a firearm, contrary to s 19(1)(c) of the Firearms Act 1973 (WA);
(d) possession of ammunition, contrary to s 19(1)(c) of the Firearms Act;
(e) failing to ensure the safekeeping of firearms and ammunition, contrary to s 23(9)(a) of the Firearms Act.
4 The applicant was granted bail after being charged. His bail conditions included that he was not to:
Approach within 50 m radius of any Outlaw Motorcycle Gang member or any place where an Outlaw Motorcycle Gang member resides or is known to meet, including but not limited to 4 Olney Court, Balga; Not to associate with any known Outlaw Motorcycle Gang member, including but not limited to: Troy Desmond MERCANTI, Stephen John WALLACE, Stephen Laurence SILVESTRO, Josh Luke RIDER, Clovis CHIKONGA, Troy Crispin SMITH, Alan Keith WRIGHT, Jarrod Stephen WALLACE and Liam Campbell WILSON.
- (The Outlaw Motorcycle Gang Condition.)
5 The applicant applied to vary his bail by deleting the Outlaw Motorcycle Gang Condition when he appeared in the Magistrates Court on 17 December 2013. The application was refused, the learned magistrate observing that (attachment 'MIE 3' to the affidavit of Mohamed Igasaan Evans made on 3 April 2014, ts 6):
[I]n my view the restrictive conditions in all the circumstances regarding your non-association and non-attendance with people and premises associated with an outlaw motorcycle gang are conditions that go directly towards preventing the potential for further offending while on bail.
6 The applicant has again applied to vary his bail conditions by deleting the Outlaw Motorcycle Gang Condition. His application was supported by an affidavit in which the applicant stated that:
(a) The condition relating to Mr Wilson was 'very restrictive' as he was an employee of a business, Ellenbrook Handy Hire & Sales, that was operated by the applicant. Mr Wilson was described as a valuable staff member and it was said that the applicant's business would be adversely affected if the applicant could not work with him.
(b) The applicant was, with members of the Mongols motorcycle club, a part-owner of a tattoo business. The effect of the Outlaw Motorcycle Gang Condition was that he was unable to attend to the affairs of that business.
(c) The applicant was responsible for the maintenance of a property located at 4 Olney Court, Balga. The property is the clubhouse for the Mongols motorcycle club. The applicant had been unable to attend to the maintenance of the premises as a result of the Outlaw Motorcycle Gang Condition.
(d) The Outlaw Motorcycle Gang Condition meant that the applicant and his family were unable to associate with some close family friends. In particular, his children were very close friends with the children of Mr Smith and Mr Silvestro.
7 The applicant stated in his affidavit that his application in the Magistrates Court to vary his bail conditions had been opposed on the ground that the police were then investigating an incident in which a person had been stabbed at the clubhouse of the Mongols motorcycle club. The applicant stated that he had not been involved in the incident; that he had not been charged in respect of any offence alleged to have been committed at the clubhouse and that, to the best of his knowledge, the charges alleged against him had no connection with any involvement that he might have had with a motorcycle gang.
8 The application to vary the applicant's bail conditions was opposed. The respondent relied on an affidavit made by Detective Sergeant Keady, a police officer attached to the gang crime squad. He described the applicant as an 'office bearer' of the Mongols motorcycle gang and stated that the gang had 'a structure whereby the senior members are designated the role of "office bearers" who are in control of the finances and general running of the drug network' (affidavit made on 22 April 2014, par 4). The reference to 'the drug network' was not further explained, except that Detective Sergeant Keady stated that the Mongols' clubhouse was utilised by members of the gang to socialise and discuss club business and that the 'club business includes criminal enterprises including drug distribution and the supply of illegal firearms' (pars 36 and 37).
9 Detective Sergeant Keady provided information about the applicant, including that he was a director and secretary of a company that conducted a number of businesses. Those businesses included Ellenbrook Handy Hire & Sales.
10 Detective Sergeant Keady stated the applicant's premises had been searched as part of an operation conducted by the gang crime squad. That operation had been established to investigate the assault of a nominee member of the Mongols gang allegedly committed by other members of the gang. The assault was the stabbing incident to which the applicant had referred in his affidavit.
11 According to Detective Sergeant Keady, the victim of the assault, Mr Allbeury, was found bleeding profusely opposite the Mongols' clubhouse. He was conveyed to Royal Perth Hospital where he underwent surgery to remove his gallbladder and to repair a lacerated liver and severed tendon in his left arm. He had sustained numerous other lacerations to his body.
12 Mr Allbeury was subsequently charged with various offences. He refused to assist police with their investigation into his assault. However, the police have identified a number of persons of interest in relation to the assault, including the applicant and Mr Wilson.
13 Detective Sergeant Keady stated that CCTV footage seized from the Mongols clubhouse showed the applicant had been hiding in a storeroom at the clubhouse shortly after Mr Allbeury had been assaulted. The applicant had left the clubhouse prior to the police arriving. Mr Wilson's motor vehicle had been found parked outside the clubhouse when the police had arrived. It had been spattered with blood. Personal items belonging to Mr Wilson had been found in the clubhouse but he had apparently left before the police had arrived.
14 Detective Sergeant Keady attached a copy of the applicant's criminal and traffic history to his affidavit. The applicant's record is extensive and includes convictions in the District Court for threats to injure (October 1988), possession of MDMA with intent to sell or supply (May 1999) and possession of an unlicensed firearm carried with drugs and/or cash (August 2011).
15 Detective Sergeant Keady also attached to his affidavit the criminal and traffic history of Mr Wilson and of another person referred to in the Outlaw Motorcycle Gang Condition, Mr Josh Rider. Mr Wilson has been convicted for offences that include armed robbery, assault occasioning bodily harm and assaulting a public officer.
16 Mr Rider has convictions for possession of prohibited drugs, stealing a motor vehicle and possessing unlicensed firearms and ammunition. According to Detective Sergeant Keady, the police executed a search warrant at premises occupied by Mr Rider on 16 December 2013. They seized a loaded handgun and a quantity of ammunition and a small quantity of illicit drugs.
17 The applicant made two further affidavits in support of his application. In a supplementary affidavit made on 22 April 2014, he provided further details concerning Mr Wilson's employment with Ellenbrook Handy Hire & Sales. According to the applicant, an essential part of the business was to deliver and pick up trailers and equipment from various building sites in the Ellenbrook area. Mr Wilson was responsible for those services as he was the only employee of the business with a driver's licence.
18 The applicant also stated that he had been elected to the role of maintaining the Mongols' clubhouse by club members. Accordingly, maintaining the clubhouse formed part of his responsibilities and duties as a club member. It was an unpaid role. The clubhouse was subject to a freezing order under the Criminal Property Confiscation Act2000 (WA) and the clubhouse was required to be maintained in good condition under the order.
19 The applicant provided further evidence concerning his involvement in the tattoo business. He stated that he had previously attended the business every day to assist in its running. He also stated he had a significant investment in the business and was unable to ensure that it was being properly managed as a result of the Outlaw Motorcycle Gang Condition.
20 The applicant also made an affidavit in response to the evidence given by Detective Sergeant Keady. In his responsive affidavit made on 30 April 2014, the applicant denied any involvement in drug distribution or the supply of illegal firearms and maintained that he had been employed in 'legitimate' businesses since he came to Australia from South Africa. He noted that he had not been charged with any serious drug offences for over 15 years.
21 The applicant also stated that CCTV footage had not been provided to him in support of the allegation that he had been hiding at the clubhouse at the time that Mr Allbeury was assaulted. The applicant's supplementary affidavit, which was apparently made before Detective Sergeant Keady's affidavit, also dealt with the stabbing of Mr Allbeury. The applicant stated (supplementary affidavit made on 22 April 2014, par 24):
No evidence has ever been produced or provided to prove that I had any involvement in the stabbing or was even at the clubhouse at the time that it occurred. The Police have investigated me and have even taken clothing from my house to attempt to link me to the incident, but I have still not been charged with any offence in relation to that incident almost six months after the incident.
22 It was not in issue that the applicant is a member of the Mongols motorcycle club. The applicant expressly denied that he is 'in control of the finances and general running of the drug network' as an office bearer of the club. He also denied that he is involved in drug distribution and the supply of illegal firearms. However, he did not deny the statements made by Detective Sergeant Keady to the effect that the Mongols motorcycle club was involved in criminal activities, including drug dealing. Similarly, the applicant referred to the absence of proof provided to him that he was at the Mongols' clubhouse when Mr Allbeury was stabbed but he did not deny being present.
23 Section 13 of the Bail Act provides that the jurisdiction to grant bail is to be exercised in accordance with the provisions of pt III of the Act and pts B, C and D of sch 1 to the Act. Clause 1 of pt C, sch 1 contains various questions that a judicial officer must consider in exercising a discretion on whether to grant bail. The questions that must be considered include whether, if the accused person is not kept in custody, he or she may commit an offence or may endanger the safety, welfare or property of any person or may interfere with witnesses or otherwise obstruct the course of justice (whether in relation to himself or any other person (cl 1(a)).
24 Section 17 of the Bail Act provides that:
(1) A judicial officer or authorised officer may impose conditions on a grant of bail only to the extent that he is authorised to do so by clause 2(3)(c) of Part C and Part D of Schedule 1.
(2) Conditions imposed on a grant of bail shall not be any more onerous on the accused than the judicial officer or authorised officer considers is required in the public interest having regard to the nature of the offence for which the accused is in custody and the circumstances of the accused.
25 Part D of sch 1 to the Act is entitled 'conditions which may be imposed on a grant of bail'. Clause 1(1) pt D empowers a judicial officer or authorised officer to impose conditions on the grant of bail if the officer considers that 'it is desirable to do so to ensure the performance of the accused's bail undertaking'. An accused's bail undertaking is an undertaking in writing that he will appear at a specified time and place and that he will comply with such conditions as may be imposed under cl 2 pt D of sch 1 (s 28 of the Act). Clause 1(2) of pt D provides for various conditions that may be imposed for the purpose of securing the performance of the accused's bail undertaking.
26 Clause 2 pt D empowers a judicial or an authorised officer to impose other conditions on the grant of bail, including as to the accused's conduct while on bail, if it is considered desirable to do so for any of the purposes mentioned in cl 2(2), cl 2(2b), cl 2(3) or cl 2(4). Clause 2(2) permits a judicial or authorised officer to impose conditions to ensure that an accused person does not commit an offence while on bail or endanger the safety, welfare or property of any person or interfere with witnesses or otherwise obstruct the course of justice. Consequently, the conditions that may be imposed under cl 2(2) pt D correspond with some of the questions that must be considered under cl 1 pt C in determining whether an accused should be granted bail.
27 The applicant contended that the Outlaw Motorcycle Gang Condition exceeded the conditions that could be lawfully imposed having regard to the limitations contained in s 17 of the Bail Act. The condition was either not authorised by pt D sch 1, when read with pt C of the schedule, or the condition was more onerous than could reasonably be considered as required in the public interest having regard to the nature of the offences allegedly committed by the applicant and his circumstances.
28 The applicant noted that two reasons had been advanced in the Magistrates Court for the condition: first, the risk of him committing further offences and second, the risk that he might interfere with evidence. The latter risk was said to arise out of the assault on Mr Allbeury. However, the applicant further noted that neither he, nor anyone else, had been charged with any offence in connection with the assault. Consequently, there was no real risk that the applicant would attempt to interfere with evidence in connection with the assault.
29 The respondent accepted that the Outlaw Motorcycle Gang Condition could not be justified on the ground of a risk that the applicant would interfere with evidence. However, it was contended that the condition was justified on the grounds that there was a risk that the applicant would commit a further offence; alternatively, to ensure that he did not endanger the safety, welfare or property of any person. In particular, it was said that the matters stated by Detective Sergeant Keady showed that:
[T]hree [members of the Mongols] around the time of the stabbing were in possession of loaded firearms, including the accused, significant violence has gone on at that clubhouse, the business that the gang members are involved in involves possession of firearms, possession of drugs and violence and the accused himself is a senior member of that gang (23 April 2014, ts 21).
30 Accordingly, the condition was imposed, so it was said, because members of the Mongols possessed firearms, committed violence, possessed drugs and the applicant was part of those activities so that there was a significant risk that he would continue to possess firearms and drugs and be involved in incidents of violence if he was permitted to associate with members of the Mongols, including by going to the clubhouse (ts 21).
31 The evidence of Detective Sergeant Keady concerning the activities of the Mongols motorcycle club was expressed as bare assertions. However, he is a member of a squad of police officers investigating the criminal activities of outlaw motorcycle gangs. The Mongols motorcycle club is considered to be one such gang. As has been noted, Detective Sergeant Keady's assertions regarding the criminal activities of the Mongols motorcycle club were not contested by the applicant and he did not deny that he was an officer bearer of the club.
32 The applicant also did not dispute the evidence given by Detective Sergeant Keady regarding the circumstances in which Mr Allbeury was assaulted, including that the assault was committed by members of the Mongols motorcycle club when Mr Allbeury was evicted from the club. The applicant chose not to respond to those parts of Detective Sergeant Keady's affidavit that provided evidence about those matters.
33 I am satisfied for the purpose of this application that the Mongols motorcycle club is involved in criminal activities, including dealing in drugs and firearms; that the applicant is an office bearer of the club; that Mr Allbeury was assaulted on about 22 November 2013 at the club's premises in Olney Court, Balga; that Mr Allbeury suffered significant injuries as a result of the assault and that the applicant was present at the clubhouse when Mr Allbeury was assaulted.
34 It would appear that the case against the applicant for possessing a prohibited drug, a firearm and ammunition and an offensive weapon is strong. The items were found during a search of the applicant's house and motor vehicle.
35 I am satisfied by the matters stated in Detective Sergeant Keady's affidavit, including the circumstances in which the applicant's house and vehicle were searched and what is alleged to have been found during the search, that it is, and was, appropriate that conditions be imposed on the applicant's bail under cl 2 pt D of sch 1 to the Bail Act to ensure that the applicant does not commit an offence while on bail or does not endanger the safety, welfare or property of others by being involved in the affairs of a motorcycle club that is engaged in criminal activities, including dealing in drugs and firearms.
36 The applicant further contended that the Outlaw Motorcycle Gang Condition was more onerous than could reasonably be required in the public interest. However, the applicant's evidence concerning Mr Wilson's employment with Ellenbrook Handy Hire & Sales begged obvious questions to which no satisfactory answer has been provided. The applicant was granted bail on 13 December 2013. His application to this court to vary his bail conditions was made on 4 April 2014. There was no explanation provided by the applicant as to the arrangements that had been made since he had been granted bail. How had Mr Wilson remained an employee of Ellenbrook Handy Hire & Sales given the Outlaw Motorcycle Gang Condition? How had the business delivered and collected hire equipment during the time that the Outlaw Motorcycle Gang Condition has applied? Was there any reason why another person could not be engaged to replace Mr Wilson? The evidence provided by the applicant did not answer any of these obvious questions.
37 As to the tattoo business, the applicant did not provide any details as to how the business was conducted, except to say that he attended daily. He did not describe what, if any, role he performed in the operation of the business when he attended. He also did not provide any evidence about whether the imposition of the Outlaw Motorcycle Gang Condition had adversely affected the business.
38 Presumably, arrangements have been made for the maintenance of the Mongols clubhouse since the applicant was granted bail given the order made under the Criminal Property Confiscation Act. The applicant did not explain why any alternative arrangement was unsatisfactory or why the ban on him attending the clubhouse would be onerous other than to say that he had been elected by the members of the motorcycle club to attend to the maintenance of the premises. The applicant also did not explain what he actually did in maintaining the clubhouse.
39 I do not consider that a condition prohibiting the applicant from having contact with members of the Mongols motorcycle club or from being at or near the club's premises would be more onerous than is required in the public interest, after taking into account the applicant's business interests and his role in the affairs of the club. I also do not consider that such a condition is more onerous than is required by reason of the fact that the applicant is prevented from having contact with club members who may also be family friends.
40 I have dealt with the effect of the Outlaw Motorcycle Gang Condition by separately considering each of the matters raised by the applicant. However, I am also satisfied that the condition does not exceed the limitations imposed by s 17(2) of the Bail Act if all of the matters raised by the applicant are considered in combination.
41 There is, however, one aspect of the Outlaw Motorcycle Gang Condition that does cause concern. The condition is expressed to refer to 'any Outlaw Motorcycle Gang member'. That expression is, obviously, intended to refer to members of motorcycle gangs other than the Mongols. However:
(a) There is no evidence that the applicant is associated with any other gang.
(b) The expression 'Outlaw Motorcycle Gang member' is not defined. Consequently, the applicant and the court have no means of knowing when the condition has been breached. A person who breaches a bail condition commits a criminal offence. Consequently, it is of fundamental importance that bail conditions be expressed in terms that inform the accused what he or she must do in order to comply.
(c) The condition is not expressed to be qualified by the applicant's knowledge ('where an Outlaw Motorcycle Gang member … is known to meet …').
42 Consequently, I consider that the applicant's bail conditions should be varied to delete the Outlaw Motorcycle Gang Condition and to substitute a new condition that refers only to the Mongols motorcycle club and its members and premises. In my view, such a condition is required to ensure that the applicant does not commit an offence while on bail and/or to ensure that he does not endanger the safety, welfare or property of any person.
43 I will hear further from the counsel as to the form of the substitute condition.
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