Houghton v Director of Public Prosecutions

[2001] QCA 36

SUPREME COURT OF QUEENSLAND

CITATION:	Houghton v Director of Public Prosecutions [2001] QCA 36
PARTIES:	DAVID BARRY HOUGHTON (appellant) v DIRECTOR OF PUBLIC PROSECUTIONS (respondent)
FILE NO/S:	CA No 422 of 2001 SC No 131 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from Bail Application
ORIGINATING
COURT:	Supreme Court at Cairns
DELIVERED ON:	16 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2001
JUDGES:	McPherson and Thomas JJA, Mackenzie J Judgment of the Court
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – BAIL – REVOCATION, VARIATION, REVIEW AND APPEAL - where appellant’s conviction for murder set aside and new trial ordered – where appellant has applied to High Court for special leave to appeal – whether discretion to grant or refuse bail properly exercised.
Bail Act 1980, s 13, s 16(1), s 16(3)(b)
COUNSEL:	A Rafter, with T Harland, for the appellant M Byrne QC, with J Healy, for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT: Jason Tyler was a member of Bandidos bikies' club at Cairns in 1995. He was last seen alive on the night of 19/20 August of that year. In November 1998 his body was found buried in hills outside Cairns.

2. Last year the appellant and one Roussetty were tried and convicted in the Supreme Court of the murder of Tyler. The Crown case against them at the trial was that they and some other club members had gone to the clubhouse on the night of 19 August 1995, and killed Tyler. For this, the prosecution relied on the evidence of Klarfield, who was then the current local president of the club, and also of another club member named Sainsbury. He testified that he had driven Klarfield and others to the scene, but had then left and returned the following morning to clean the premises after the killing. Klarfield, who at the trial gave evidence under an undertaking from the Crown not to use his evidence against him, said he too was absent when the killing took place and that he went there only after the killing had taken place; but he also told police that the appellant himself had confessed to having taken part in the murder of Tyler.

3. Soon after the disappearance of Tyler the police began keeping watch on the suspects. Video surveillance of the club house in October 1995 showed Klarfield driving the appellant and Roussetty to the vicinity where Tyler was buried. On their return, they engaged in cleaning items that were removed from Klarfield's vehicle.

4. The appellant appealed to this Court against his conviction on the ground that it was unsafe or unsatisfactory in that it was based solely on the confessional statements said to have been made by the appellant to Klarfield. Their Honours considered that Klarfield was an "unsavoury" witness, but that the trial judge had properly and sufficiently warned the jury about acting on his evidence. In consequence, the Court was unable to conclude that the verdict was so unsafe or unsatisfactory that it should be set aside.

5. On the other hand, the appellant tendered on the appeal an affidavit from one Tracey Hancock, who had not given evidence at the trial, to the effect that she knew the appellant was not at the club house on the night in question whereas both Klarfield and Sainsbury were there when Tyler was killed. This was contrary to evidence given at the trial. The Court of Appeal, before whom Tracey Hancock was cross-examined on her affidavit, regarded her evidence and demeanour in the witness box as sufficient to indicate a "significant possibility" or a "likelihood" that the jury, acting reasonably, would have acquitted the appellant had it heard her evidence at the trial.

6. In the result, the appeal was allowed, the appellant's conviction set aside, and a new trial ordered. The appellant has now applied to the High Court for special leave to appeal against the order that there be a new trial instead of an outright acquittal in his favour. On what we have been told, it seems unlikely that the application will be heard until the Brisbane sittings in June this year.

7. In the meantime the appellant remains in custody pending retrial. In November last year he applied for bail, which was refused. He now appeals against that decision. Section 16(1) of the Bail Act 1980 requires a court to refuse bail if satisfied that here is an unacceptable risk that the defendant would, among other things, (i) fail to appear and surrender into custody; or (ii) would, while released on bail, either (A) commit an offence; or (B) endanger the safety or welfare of any person; or (C) interfere with witnesses or otherwise obstruct the course of justice. By the operation of s 16(3)(b) of the Bail Act 1980, read with s 13 of the Act, a person charged with murder must be refused bail unless he shows cause why his detention in custody is not justified.

8. Under these provisions the appellant was bound to satisfy the learned judge at first instance that there was no such unacceptable risk. He failed to do so. Jones J, who heard the application in Cairns, considered that there remained an unacceptable risk of interference with witnesses or otherwise of obstructing the course of justice. He reached this conclusion after considering evidence from the prosecution that showed the appellant had, while in prison, maintained a continuing association with the Bandidos club, which included regular contact with other members, the sending and receipt of mail from other chapters of the club coupled with attempts by the appellant to start a newsletter, as well as physical defence of other club members in prison. There was material before the learned judge that the appellant had assaulted another inmate at the prison where he is detained for no reason other than that man had attacked another Bandido member. There was also material that the appellant had while in prison assaulted a man named Michael Stewart because he had been a witness and had provided a statement in relation to the murder of Jason Tyler.

9. There are good reasons for supposing that members of the Bandidos club maintain a code of silence among themselves about the activities of the club and its members, and that they carry out revenge on those who contravene it. The learned judge considered that the killing of Tyler had overtones of being club "business", or at the very least that it was facilitated and its occurrence covered up by members of the group. There was also information suggesting that club members elsewhere in Australia were taking a continuing interest in the trial of those charged with the murder of Tyler and exhibiting threats against those who "snitched". His Honour regarded this as an indication of the extent of the discipline that the club imposed upon its members.

10. These were among the matters that his Honour took in to account in arriving at his conclusion that the applicant had failed to satisfy him that there was no risk that he would interfere with the witnesses Sainsbury or Klarfield or that he would in some other way obstruct the course of justice. Before this Court, the appellant has not demonstrated that this assessment was mistaken in any respect. His Honour also considered, but rejected, a submission that bail might be granted on the condition that the appellant have no further contact with members of the Bandidos club. He was concerned that such a condition could not easily be enforced. The level of surveillance necessary to ensure compliance with such a condition would, he said, be unacceptable, and proof of a breach would be difficult to establish.

11. The grant or refusal of bail is a discretionary matter. Although refusing it is not a decision lightly to be arrived at, it is plain that his Honour took the relevant factors into account and properly assessed them. It has not been shown in this Court that his discretion miscarried in any respect.

12. It follows that there is no reason for disturbing the decision to refuse bail, and that the appeal should be dismissed.