Hopes v The State of Western Australia
[2014] WASC 249
•15 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HOPES -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 249
CORAM: COMMISSIONER SLEIGHT
HEARD: 23 JUNE 2014
DELIVERED : 26 JUNE 2014
PUBLISHED : 15 JULY 2014
FILE NO/S: MBA 25 of 2014
BETWEEN: WADE ROBERT HOPES
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Turns on its own facts
Legislation:
Bail Act 1982 (WA), s 14, sch 1 pt C
Criminal Code (WA), s 304, s 397
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Mr T F Percy QC & Mr A J C Mossop
Respondent: Mr N R Cogin
Solicitors:
Applicant: Timpano Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Ribot‑Cabrera v The Queen [2004] WASCA 101
COMMISSIONER SLEIGHT:
(These reasons were delivered orally on 26 June 2014 and edited from the transcript.)
The applicant, Mr Hopes, applies for a grant of bail. The application is made pursuant to s 14 of the Bail Act 1982 (WA).
The applicant is charged with a number of offences:
1.Demanding property with threats contrary to s 397 of the Criminal Code (WA) (PE 81967 of 2014); the maximum penalty for which is 14 years' imprisonment;
2.Doing an act with intent to harm contrary to s 304(2)(b) of the Criminal Code (PE 84073 2014); the maximum penalty for which is 20 years' imprisonment.
No previous application has been made for bail on these charges before the Magistrates Court. I express the view that this is undesirable as it would be regrettable if a practice developed that applications for bail were made ab initio in the Supreme Court (other than in murder trials where the Supreme Court has exclusive jurisdiction except in the case of a child) and thus place an additional strain on the already stretched resources of the court.
Mr Hopes also has a pre‑existing charge of conspiring with others in November/December 2013 to pervert the course of justice upon the prosecution of one Jan Solciansky on a charge of criminal damage. On this charge Mr Hopes was granted bail of $10,000 with a similar surety.
Evidence
The application for bail by Mr Hopes is supported by an affidavit by Alexander James Cotgrave Mossop, solicitor, sworn on 18 June 2014; an affidavit of Vilma Mary Hopes (the mother of the accused) sworn 19 June 2014; and an affidavit of Harry Roy Hopes (the father of the accused) sworn 19 June 2014.
The respondent opposes bail and relies upon the following documentation:
1.a copy of an affidavit of Kevin Tee Soo Tan (police officer ) sworn on 18 June 2014 and filed in proceedings of an application for bail by a co‑accused Van Hung Phan (MBA 24 of 2014);
2.a file containing copies of the annexures to the affidavit of Mr Tan;
3.a copy of the prosecution notice of the charge against Mr Hopes of conspiring to pervert the course of justice;
4.a copy of the statement of material facts on the charge against Mr Hopes of conspiring to pervert the course of justice;
5.a transcript of an interview by police with Mr Hopes in relation to the charge of conspiring to pervert the course of justice;
6.a transcript of a telephone intercept relating to the charge of conspiracy to pervert the course of justice charge; and
7.details of Mr Hopes prior convictions.
Summary of allegations
I have had the benefit of reading a draft of the decision of Her Honour Justice Jenkins in the matter of an application for bail by a co‑accused Mr Phan and I have extracted in part from that decision a summary of the background to the charges against Mr Hopes and his co‑accused.
It is not in dispute that at all material times during the alleged offence the accused Mr Hopes was a member of the Commancheros motorcycle gang.
It is alleged that on a number of occasions between 3 April 2013 and 9 July 2013 Mr Phan contacted and then met with the manager (a lay witness to give evidence in support of the State's prosecution) of a karaoke club known as the Galaxy Lounge in Northbridge. Also present at some of the meetings were one or more other co‑accused (other than Mr Hopes) who are members, nominees or associates of the Commancheros motorcycle gang. The prosecution alleges that Mr Phan and a co‑accused demanded that the operators of the Galaxy Lounge pay $10,000 or $8,000 a week in order to ensure the smooth and trouble‑free operation of the Galaxy Lounge. The manager of the Galaxy Lounge told Mr Phan and his co‑accused that the business could not afford to make this payment.
The first of such demands occurred on the 4 April 2013 when Mr Phan, Mr Parr and two others met with the manager of the Galaxy Lounge. It is alleged that Mr Parr was introduced as the 'President of the bikies'. It is alleged that Mr Parr demanded a payment of $10,000 per week in return for the smooth and trouble‑free operation of the Galaxy Lounge.
On the evening of 1 March 2014, a co‑accused by the name of Mr Kilinc, and four others attended at the Galaxy Lounge and told the manager that it had been eight months since the demand was placed on her for the weekly payment of $8,000 and it was 'becoming a joke'. Mr Kilinc told the manager that she had until 5.50 pm on 6 March 2014 to contact Mr Phan to arrange for payment as demanded.
The manager did not comply with this demand and did not contact Mr Phan as directed.
At about 2.50 am on 9 March 2014, a male person (not yet identified) road a white mountain style pushbike towards the Galaxy Lounge and left it outside the premises. He went into the Galaxy Lounge. Once inside he lit a homemade incendiary device and threw it up the stairwell towards the main bar area. The premises were occupied by patrons and staff at the time. The device smashed on impact but failed to ignite. The incident was captured on CCTV footage. The offender then ran out of the club and rode away on the same pushbike.
On 15 May 2014 police executed a search warrant at Mr Phan's home at 30 Money Street, Perth and found a white mountain style pushbike.
The manager of the Galaxy Lounge contacted the police after the incendiary device incident and informed them of the contact she had with Mr Phan and some of the co‑accused. The police then used an undercover police officer (Danny) to investigate the alleged offending.
On 26 March 2014 the manager of the Galaxy Lounge and Danny had a meeting with two persons, Mr Kilinc and Mr Cross. These two persons stated that 'they' controlled the city and if the Galaxy Lounge was to remain open Danny had to pay money demanded for the continued operation of the karaoke bar. Otherwise, the bar would be shut down. One of these persons directed that Danny pay $10,000 upfront and $5,000 per week in arrears. The conversation was recorded and a transcript annexed to the affidavit of Mr Tan. At a further meeting on 27 March 2014 between Danny and Mr Kilinc, Danny paid the sum of $10,000.
On 16 April 2014 the accused Mr Hopes in company with Mr Phan and Mr Kilinc met with Danny. This conversation is recorded and a transcript has been prepared and annexed to the affidavit of Mr Tan. In this conversation Mr Hopes discussed with Danny the ability of the Commancheros to protect Danny and his business. Mr Hopes explained that the Commancheros controlled the city. Mr Hopes went on to state that Mr Phan and his associates controlled the Asians because this was 'Asian Town' but the Commancheros controlled the whole of Northbridge. Anyone who had a problem with Mr Phan and his associates, had a problem with the Commancheros. Mr Hopes told Danny that Mr Hopes was a senior member and had authority 'to call the shots'. Danny negotiated for the next payment to be $10,000 and Mr Phan and Mr Hopes agreed. It was agreed that Danny was to return on 29 April 2014 to make the next payment. Mr Hopes offered to provide Danny with an encrypted blackberry mobile device to allow them to communicate securely without fear of law enforcement interception.
On 29 April 2014 Danny again met with Mr Kilinc and paid $10,000.
On 15 May 2014 the police conducted a search pursuant to a search warrant of the premises of Mr Hopes. They found a Commancheros vest and $8,000 in cash. Also mobile communication devices were located and seized, including an encrypted blackberry mobile communication device. Mr Hopes refused to provide the pass code for investigators to unlock access to the content of the blackberry device.
Strength of the prosecution case
The prosecution evidence filed in this application includes witness statements, photographs, recordings, transcripts and the contents of the supporting affidavit of Mr Tan. Mr Hopes has not filed any evidence concerning the charges and there is no evidence before me which contradicts or disputes the material presented by the prosecution. In fact there is some support for the material because in the affidavit material lodged by Mr Hopes it is not disputed that Mr Hopes was a member of the Commancheros motorcycle gang at the relevant time.
In my opinion, the recorded conversation involving Mr Hopes on 16 April 2014 and the earlier meeting on 26 March 2014 (albeit Mr Hopes was not present) provide strong evidence in support of the State's case of the charge under s 397 of the Criminal Code. On the basis of this and other material before me, I conclude that the State's case on the charge in respect of demanding property is strong. The second charge, which relates to the incendiary device, is not so strong as it relies upon an inference being drawn that this offence was instigated by Mr Hopes and other Commancheros as part of the alleged extortion racket.
Details of conspiracy to pervert the course of justice
Also, as I have mentioned, in addition to the charges in relation to which bail is sought in these proceedings, Mr Hopes has a pre‑existing charge of conspiring to perverting the course of justice. This charge was commenced by a prosecution notice on 19 December 2013 and hence predates the charges the subject of this application for bail.
The allegation on the conspiracy matter is that monitored conversations reveal that Mr Hopes directed a Mr Geldert to accept the blame for a criminal damage charge against Jan Solciansky. It is alleged that Mr Geldert signed a statement falsely accepting responsibility for the damage and was intending to give evidence at the trial of Solciansky, claiming a certificate under s 11 of the Evidence Act 1906 (WA).
A part of the evidence which the State will rely upon is an intercept call between the accused Mr Hopes and another person (presumably Jan Solciansky). In that conversation it is alleged Mr Hopes said:
I'm going to drag him down to the cop shop, and he is taking the blame for you.
Senior counsel for Mr Hopes informed me that Mr Hopes denies this charge and claims he was advocating the person he believed to be the offender to accept responsibility for the offence. I am told that the matter will proceed to trial.
Bail was granted on the charge of conspiracy to pervert the course of justice, and so at the time of the alleged offences of demanding property and doing an act to do harm, the accused was on bail. However, the charge on which Mr Hopes had been granted bail was not a second schedule offence and therefore there is no requirement on Mr Hopes to satisfy the court that there are exceptional reasons why he should not be kept in custody. However, that does not mean that the fact that he was on bail for an indictable offence and is now charged with committing further indictable offences whilst he was on bail, is not a relevant consideration.
Prior history of offending
Mr Hopes has a record of prior convictions but the record is not extensive. However the nature of the record is relevant in the context of someone being charged with an extortion‑type offence. The record of prior convictions includes convictions for possession of a prohibited weapon in 2010 (a flick knife); failing to ensure safe keeping of a firearm in 2012 (a handgun); possession of a prohibited weapon in 2012 (a knuckle duster); and possession of prohibited drugs in 2012 (testosterone and nandrolone).
Personal circumstances of accused
The affidavit material filed on behalf of Mr Hopes reveals that he is aged 26 years. He left school halfway through year 11 and began an apprenticeship in his father's business trading as Advanced Bucket Fabrication. Prior to being taken into custody he remained employed by the business and was the most senior employee.
Mr Mossop in his affidavit states that he has been instructed Mr Hopes joined the Commancheros about nine to 10 months ago and in about February 2014 became the secretary of the Commancheros. Mr Hopes has recently left the Commancheros on an amicable basis.
Mr Hopes' mother and father remain supportive of him and are willing to go surety for him. Mr Hopes senior in his affidavit states that he has various health problems and that the business is being affected by Mr Hopes being held in custody. However the future of the business is somewhat uncertain. On 10 June 2014 an order was made in the Federal Court to wind‑up the company that conducts the business. An appeal has been lodged against that order on the basis of future contracts available.
Legal principles
The grant or refusal of bail to an accused before conviction is at the discretion of the court and that discretion shall be exercised having regard to the matters listed in cl 1 of pt C of sch 1 of the Bail Act. The correct interpretation of the Bail Act was considered in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
The following principles emerge:
1.Clause 1 of pt C contains no express statutory presumption for or against bail. Rather, the grant or refusal of bail is at the discretion of the person invested with jurisdiction who is required to have regard to the questions in pars (a) ‑ (g) and to any other questions which the decision‑maker considers relevant. However, the correct approach to the exercise of the discretion is sourced in and guided by the matters in pars (a) ‑ (g). There are a number of significant points to note. First, the matters in pars (a) ‑ (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
2.Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
3.The Bail Act does not in its terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
When considering the matters set out in cl 1(a) of pt C of sch 1 of the Bail Act the judicial officer shall have regard to the matters listed in cl 3 of pt C of sch 1, as well as any other matters that the judicial officer considers relevant. The items listed in cl 3 are as follows:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The relevance of the seriousness of the offending is primarily three‑fold:
(i)it may be that the likely penalties that will be imposed provide an incentive for an accused not to attend court (see Ribot‑Cabrera v The Queen [2004] WASCA 101 [50] (EM Heenan J; with whom Steytler & Le Miere JJ agreed); and
(ii)the nature of the allegations may suggest that to leave the accused at liberty creates a risk of reoffending and therefore bail should be refused in order to protect the public.
(iii)the likelihood of a term of significant term of imprisonment being imposed if the accused is found guilty may, together with the nature of the allegations and the accused's antecedents, create a risk that the accused will interfere with witnesses.
Submissions
The State's opposition to bail is grounded on the submission that if granted bail there is a substantial risk that Mr Hopes may interfere with witnesses. The State relies upon the nature of the charges against Mr Hopes, including the conspiracy to perverting the course of justice charge. It is also submitted that no condition could be set to overcome the risk of Mr Hopes interfering with witnesses or committing further offences.
Senior counsel on behalf of Mr Hopes submits that Mr Hopes should be granted bail. He stresses that Mr Hopes has a stable position of employment, support of family and he is entitled to the presumption of innocence. It is submitted that conditions can be set which sufficiently reduce the risk of any interference to witnesses by Mr Hopes.
It is further submitted that there is likely to be a considerable delay before trial and this delay creates an injustice if Mr Hopes was required to remain in custody.
Other co‑accused
Senior counsel appearing for Mr Hopes sought to distinguish the circumstances of Mr Phan who was refused bail by Jenkins J. Senior counsel pointed to a number of factors which distinguish Mr Phan's circumstances from Mr Hopes. These included the following:
1.Mr Phan had a record of offences of violence (albeit these were somewhat dated);
2.When the police conducted a search warrant on Mr Phan's premises they found a loaded handgun, silencer and controlled weapons; and $20,000 in cash;
3.During the search Mr Phan swallowed a piece of paper before the police were able to seize it during their search of his home, thus indicating he had a willingness to obstruct the course of justice;
4.There was a history of two other charges against Mr Phan which did not proceed to trial because the main prosecution witnesses did not attend trial. In Mr Phan's possession were framed memorabilia indicating Mr Phan took pride in the fact that the charges did not proceed to trial; and
5.There was evidence that Mr Phan was keen to take physical retribution against a young man who was said to have assaulted the manager of the Galaxy Lounge.
Although all of these factors are important, the overriding factor which led to her Honour refusing to grant bail was that she was satisfied that there was a likelihood that Mr Phan was involved in a criminal subculture and that he was prepared to use violence and intimidation to achieve his ends. This meant there was a real risk he would interfere with witnesses.
I was also informed by senior counsel for Mr Hopes that he believed two other co‑accused had been granted bail in the Magistrates Court. Included in those granted bail was Mr Parr, who is alleged to be president of the Commancheros.
I accept that it is desirable that there is consistency in decisions concerning bail applications of co‑accused as far as possible, but of course, the personal circumstances vary from individual to individual, depending on their personal history and circumstances, their involvement in an alleged offence and the evidence against each of them.
In relation to the decision concerning Mr Parr or other co‑accused, where bail has been granted, I have no details and therefore I am unable to make any comparison. One thing I do know is that the evidence against Mr Hopes includes a tape recording of a conversation he had with the undercover officer, Danny, whereas the evidence against Mr Parr does not include any recorded conversation.
I accept that I am in a position to assess the circumstances of the refusal of bail for Mr Phan. I accept that there are differing features in the case of Mr Phan. For this reason my decision need not necessarily follow the decision of her Honour Justice Jenkins to refuse bail for Mr Phan. It is a matter for me to make an independent assessment of the circumstances of Mr Hopes.
Conclusion
I have considered each of the mandatory questions contained in cl 1 of pt C of the Bail Act.
I conclude that, given the nature and strength of the allegations against Mr Hopes that he was engaged in an offence under s 397, his membership (at least in the past) of a motorcycle gang, the allegations against Mr Hopes on the charge of conspiring to pervert the course of justice, the fact that he was on bail at the time of the alleged offence of making demands with threats and his past history of offending, there is a likelihood that Mr Hopes would intimidate witnesses and thereby interfere with the course of the conduct of the trial on the charges against him.
I do not believe that conditions can be set which adequately reduce this risk.
In considering whether bail should be granted, I also take into account that in my view, as indicated earlier in this decision, on the s 397 charge, the State has a strong case. I believe that the alleged offence on this matter is a very serious matter. If convicted, I believe it is likely a significant term of immediate imprisonment will be imposed. Likewise, a term of immediate imprisonment is likely to be imposed on Mr Hopes if he is convicted of the charge under s 304 of the Criminal Code. The prospect of these outcomes provides an incentive for Mr Hopes to interfere with the course of his trial by intimidating State witnesses. The evidence before me in relation to the charge of conspiring to pervert the course of justice indicates that he is a person who is likely to take such steps.
In relation to the issue of delay, I respectfully agree with the observations made by her Honour Justice Jenkins in her decision on the application for bail by Mr Phan and conclude that, at this stage, the extent of the delay is speculative. I accept that one would normally expect that it would take at least 12 months for the matter to be brought to trial. I do not believe that this delay is exceptional. I do not believe that the length of this delay outweighs other considerations.
Having considered all factors, I conclude that, in the exercise of my discretion, the bail should be refused. Accordingly, the application for bail is dismissed.
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