Houghton v The State of Western Australia
[2005] WASC 48
HOUGHTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASC 48
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 48 | |
| Case No: | MCS:63/2004 | 17 MARCH 2005 | |
| Coram: | TEMPLEMAN J | 31/03/05 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KEITH HOUGHTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Bail Threat to kill Attempt to influence giving of sworn evidence Application dismissed by Magistrate Strength of prosecution case Risk of interference with course of justice Relevance of applicant's health Whether exceptional circumstances |
Legislation: | Bail Act 1982, s 22, Pt C of Sch 1 |
Case References: | Abbott (1997) A Crim R 19 Belajev v Director of Public Prosecutions (1998) 101 A Crim R 362 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail - Threat to kill - Attempt to influence giving of sworn evidence - Application dismissed by Magistrate - Strength of prosecution case - Risk of interference with course of justice - Relevance of applicant's health - Whether exceptional circumstances
Legislation:
Bail Act 1982, s 22, Pt C of Sch 1
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr T F Percy QC
Respondent : Mr S E Stone & Mr S F Rafferty
Solicitors:
Applicant : Dwyer Durack
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Abbott (1997) A Crim R 19
Belajev v Director of Public Prosecutions (1998) 101 A Crim R 362
Case(s) also cited:
Nil
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1 TEMPLEMAN J: The applicant, Keith Houghton, was charged with two offences on 24 November 2004. They were:
(1) that he "made a threat with intent to hinder the doing of an act, namely giving of evidence under oath in Perth Supreme Court by a person namely Darryl Lee Victor MAXFIELD who is lawfully entitled to do that act and threatened to kill this person"; and
(2) that he "attempted to influence the giving of sworn evidence in the Perth Supreme Court by Darryl Lee Victor MAXFIELD, to prevent or pervert the course of justice upon the prosecution of one Darryl Lee Victor MAXFIELD on a charge of Aggravated Burglary and Commit Offence in Dwelling, Assault Occasioning Bodily Harm, Robbery in Company, Steal Motor Vehicle, Criminal Damage by Fire, Criminal Damage and Assault Occasioning Bodily Harm."
2 Shortly after the applicant was charged, he applied for bail. The application was heard by a Stipendiary Magistrate. The application was declined on the basis, as I understand it, that there were no exceptional circumstances.
3 The applicant now applies for bail to this Court, as he is entitled to do. It is necessary to deal with the application on its merits, without regard to the previous refusal.
4 I therefore set out the background to the application.
5 On 13 November 2000, the applicant and his partner (who he has since married) were the victims of a burglary and an armed robbery carried out at their home. This home invasion, as I shall refer to it, was alleged to have been committed by three persons. They were armed and they used considerable violence both to the applicant and Mrs Houghton, as I shall now refer to her. Indeed, the applicant was hospitalised for some ten days following the assaults on him.
6 At the time, the applicant told the police that jewellery to the value of some $30,000 and $10,000 in cash were stolen.
7 According to the applicant, what he did not then tell the police, but disclosed later, was that a bag containing about 3 kg of amphetamines and some $100,000 in cash was also stolen. The applicant said the bag had been given to him for safekeeping shortly before the offences were
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- committed by one Jeffrey White (otherwise known as "Squog") who is said to be the Sergeant at Arms of the Coffin Cheaters motorcycle gang.
8 Shortly after the home invasion, Mrs Houghton identified Daryl Lee Victor Maxfield as one of the offenders. The applicant told White she had done so.
9 Much later, Maxfield (who had been out of the State for some two years) was charged with the aggravated burglary and armed robbery offences. He was due to be tried in the Supreme Court on 22 November 2004.
10 At some stage after the home invasion, White was imprisoned on unrelated matters. He was released in January 2004.
11 According to the applicant, he was visited by White after his release and told of a plot to kill Maxfield and a business associate of the applicant's, one Kenneth Brown. The applicant suspected that Brown was the instigator of the home invasion.
12 On 6 October 2004, the applicant was visited at his office by White and another. They told the applicant in substance, that Maxfield and Brown were to be killed. The applicant offered to help in any way, because he still harboured deep feelings against Maxfield for what he had done to Mrs Houghton: "deep down [he] thought [Maxfield] had it coming to him". However, the applicant thought Maxfield would not be killed until after his trial, so as not to affect his claim to criminal injuries compensation.
13 Following this disclosure, the applicant went to the police and told them of the plot to kill Maxfield. He did so, he says because he thought the information might be useful and important enough to assist in having certain unrelated charges against Mrs Houghton dropped.
14 On 29 October 2004, the applicant was given an undertaking by the Director of Public Prosecutions pursuant to s 20(2)(d) of the Director of Public Prosecutions Act 1991. The substance of the undertaking was that statements made by the applicant during the period 29 October to 28 November 2004 would not be used against him. The undertaking was subject to the condition that the applicant would give his:
"full and active cooperation to police officers, revealing truthfully, frankly and fully, all that he knows in respect of all
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- matters about which the police may enquire, without embellishment and withholding nothing of relevance."
15 The basis on which the undertaking was given is set out in a letter dated 29 October 2004 written to an Assistant Commissioner of Police on behalf of the Director of Public Prosecutions. The letter noted that the applicant had indicated a willingness to assist police with information regarding:
"• A conspiracy by a prominent organised crime group to murder four (4) people allegedly involved in a robbery in November 2000 (see next point).
• An armed robbery in November 2000 in which a significant quantity of amphetamines and a large amount of cash were stolen. This robbery was reported and the subject of investigation and charge. [The applicant] is the complainant in that matter and the existence of drugs and cash was not disclosed at the time of complaint.
• An operation in which significant quantities of drugs are being supplied by a former police officer.
It is recognised that [the applicant], as the complainant in the armed robbery matter, and owner/occupier of the premises from which the drugs and cash were taken is likely to have had, at least, some role in the storage of prohibited drugs. As well, his ability to provide information regarding the alleged conspiracy is likely to be either because of the confidence in which the alleged perpetrators hold him or because he himself is a participant in the conspiracy."
16 According to the applicant, he was told by police that if he was to be a witness against those involved in the murder plot he would need to be put on the witness protection programme and to change his identity. The applicant said he decided he could not live in that way and therefore declined the offer to be a witness. The DPP regarded this as a failure to cooperate to the extent necessary to maintain the undertaking.
17 While these events were unfolding, Maxfield also went to the police. He told them that a threat to kill him had been made not by White, but by the applicant himself. Maxfield said that in about August 2004, he had been told of the threat by White, whom he had known for some 20 years.
(Page 6)
- White said the applicant asked him to kill Maxfield. White said he told the applicant he would not do so "because we went back a bit too far".
18 According to Maxfield, after reflecting on his position for some three weeks, he contacted White in order to ask him some questions about the matter. White told him that the applicant wanted to meet him so as to obtain the names of all the persons involved in the offences of 13 November 2000 who had not been charged. (According to the applicant, it was Maxfield who wanted to meet him).
19 After a further two weeks, Maxfield telephoned White and told him he would meet the applicant.
20 On 17 November, Maxfield was contacted by detectives who told him about the threats made against him. I assume these were the threats the applicant told the police had been made by White.
21 Also on 17 November, police executed a search warrant on the applicant's business premises. As I understand it, these were premises which were used in part at least by White. I note that in Maxfield's statement he said he heard from White on 17 November. White told him that "the coppers raided his house and were ratting his yard …". According to the applicant, the search was carried out by some 30 police officers. They were not officers with whom he had any previous dealings.
22 The applicant accepts that during the search of the premises he said to police officers words to the effect "I'm going to have to get me and my wife out of this State because of what you are doing". The applicant says that the statement was made in circumstances where "a massive police search" was taking place. He was concerned that the search would jeopardise the safety of him and his family.
23 The search appears to have been part of the enquiry into the alleged conspiracy to murder Maxfield and three others.
24 According to an affidavit of police officer, Douglas Jamie Nelson, who is the case officer for that enquiry, following the withdrawal by the applicant of his cooperation as an informant, and his refusal to provide any further assistance to the police, the applicant made threats against "several of the investigators" he was dealing with and threatened the safety of the Director of Public Prosecutions ("the DPP") and members of his staff. Nelson said also in his affidavit that the applicant "implied to detectives" that he had possession of or access to firearms.
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25 These allegations are extremely vague. There is no direct evidence from any of the persons to whom the threats were alleged to have been made. Nor is it disclosed what was said by the applicant from which it might have been inferred that he had possession of or access to firearms. All that is said in Nelson's affidavit is that the threats are recorded in police "Contact Advice Reports" which are completed for each meeting with a registered informant.
26 Nelson was called to give evidence on the bail application. Over objection from counsel for the applicant, I allowed Nelson to give hearsay evidence about these matters. I did so pursuant to s 22 of the Bail Act 1982 which permits a judicial officer, when considering any case for bail, to receive and to take into account "such information as he thinks fit whether or not the same would normally be admissible in a court of law".
27 In fact, Nelson's evidence disclosed that his affidavit was incorrect: the Contact Advice Reports did not record the threats. Nelson said they were recorded in the journal of the Organised Crime Investigations Operation Manager (TS45).
28 I note that no charges have been laid against the applicant arising from any threat made against the safety of the DPP, his staff, or any person other than Maxfield. I asked Nelson the reason for this. He said:
" … It was considered that the information that he had to offer and elicit was of more importance in relation to the threats against Maxfield and these other people." (TS49)
29 I asked Nelson whether it was more important than the DPP's life. He replied that it was "more imminent than the DPP …". He said:
"The threat from (the applicant) was a generic threat that if people screw me on this indemnity then I will sort them out." (TS49)
30 Earlier in his evidence Nelson referred to a statement said to have been made by the applicant in the course of meeting between himself and two detectives that "I could make a phone call and have you shot right now" (TS47).
31 I find it surprising that despite the seriousness of that allegation, it was not referred to specifically in an affidavit from the police officer to whom the threat is alleged to have been made; nor even in Nelson's affidavit.
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32 The applicant, in an affidavit sworn in answer to Nelson's affidavit, denies that he has made any threats to police officers, the DPP or his staff. Indeed, the applicant refers to the fact that despite the alleged threats, investigators continue to deal with him in both public and private places.
33 In the absence of direct evidence from those against whom threats were made or in whose presence threats were made by the applicant, I place very little weight on Nelson's evidence.
34 Put another way, I consider that if threats were made, as alleged, the fact that no charges were laid as a result suggests that the threats should not be taken seriously but should be regarded as no more than extravagant statements.
35 I return to the narrative as at 18 November 2004.
36 There is no dispute that on that date, Maxfield and the applicant met and had a lengthy discussion. For part of the time, White was present. The meeting was recorded in a police surveillance video which I have viewed. The recording was made apparently from a parked car. No sound was recorded. The applicant said that although he had not been told that the meeting would be watched by the police he believed they would be watching because they knew when and where the meeting was to take place.
37 According to Maxfield, the meeting was arranged at the request of the applicant, who wanted to be told the names of all the persons involved in the offences of 13 November 2000 who had not been charged.
38 According to the applicant, his intention was to obtain the names of the other offenders from Maxfield so that he could pass them to the police. The applicant said that before the meeting, he was fitted with a covert sound recording device by police officers. However, the device was removed from him before the meeting took place.
39 The applicant says that at the meeting, Maxfield told him the identity of one of the persons who were present on 13 November 2000. The applicant says (and it has not been denied) that he later told a police officer the name in question. As well, he gave the police officer a telephone number on which he could contact Maxfield. Maxfield had said he was interested in cooperating with the police about the matter.
40 Maxfield gives a different account of the meeting. He contends he was told by the applicant that he knew the names of the persons concerned
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- but wanted Maxfield to confirm them. One of the names mentioned by the applicant was Brown, to whom I have referred above.
41 Maxfield says that the applicant told him if he did not comply with his request "I would be dead": that if he went to prison, he would be "a pincushion". Further, if Maxfield did not go to prison "I would just be knocked". These are references to being stabbed in prison, or killed out of prison.
42 Also, according to Maxfield, the applicant told him to ensure that the trial did not proceed. Maxfield said the applicant told him:
"I was to go to court and plead guilty and just do my time. If I did not comply, I would be knocked."
- The applicant told Maxfield he had organised with "some person at the DPP" to have the charges against him dropped so that he might not go to prison. The applicant also told Maxfield that if he did go to prison, he would look after Maxfield financially by putting money into his account. He would also look after Maxfield's wife financially.
43 Maxfield said that White was present at the conclusion of the meeting. The applicant asked White to confirm to Maxfield that if he did not comply with the request made of him, the applicant would carry out the threats against him. White confirmed this.
44 Maxfield said he was told that he would be contacted again, presumably, to inform those concerned of his decision.
45 On 21 November, Maxfield found a message on his mobile telephone to call White. He did so and was told that White had arranged a further meeting with the applicant.
46 Maxfield informed the police of this development. He agreed to wear a covert recording device at the meeting which was take place at 9 pm on that day.
47 According to the applicant, he received a telephone call from White a few days after the meeting of 18 November 2004. White told the applicant that Maxfield was going to disclose the names of others involved in the home invasion.
48 The meeting did take place and it was recorded by the device worn by Maxfield. However, as a result of background noise, much of what was said is inaudible. This is reflected on a transcript of the recording.
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- Having listened to the recording myself, I estimate that only about one-quarter of the conversation is audible.
49 Without going into the detail of what was said by the applicant at the meeting, it is clear that he repeatedly urged Maxfield to plead guilty at his trial which was due to commence on the following day. The reason for the applicant's insistence that Maxfield plead guilty was his concern that Mrs Houghton should not give evidence.
50 The transcript is disjointed because of the inaudible sections. However, in my view, the essence of it is clear. The applicant wanted Maxfield to go to the DPP and attempt to reach an agreement with him that on the basis of a plea of guilty and disclosure of information about his co-offenders, he would not be imprisoned.
51 Failing that, Maxfield was to plead guilty at the trial and serve a prison sentence. In those circumstances the applicant would make financial provision for him. However, if Maxfield pleaded not guilty and was convicted, he would be "a pincushion" when in prison. Finally, if Maxfield pleaded not guilty and was acquitted he would be killed before he could leave the Supreme Court Gardens.
52 It is not entirely clear whether the threats were made directly by the applicant or whether he was relaying threats made by White and others. There are suggestions that both Maxfield and the applicant were in a situation which was beyond their control. However, at one stage, the applicant told Maxfield, in relation to a death threat:
"I'll see to it myself if I have to, just for my missus." (page 16 of 53)
- Further, when Maxfield asked the applicant if he could actually kill someone, the applicant replied:
"You haven't heard enough about me. I, I use my regimental puppet (inaudible) circles, (inaudible)." (page 48 of 53)
I assume this was a reference to White.
53 Towards the end of the conversation, Maxfield was apparently questioning the way he would be killed, whether by a severe flogging or a bullet. The applicant responded:
"Well, whether it's that or whether it's something else, I don't know."
(Page 11)
- Maxfield then said: "Either way I'm a fucken dead man". The applicant replied:
"You're a dead man walking." (page 51 of 53)
55 As well as the recording of the conversation between the applicant and Maxfield, there is a statement from Maxfield which contains his account of the meeting. In addition to those matters discernable from the recording, Maxfield alleges that the applicant admitted he had organised a serious assault which had been committed on Maxfield while he was in prison in December 2003. According to Maxfield, the applicant told him the object of the assault was to let him know he was not untouchable, no matter where he was. Maxfield said the applicant told him he paid one of the perpetrators of the assault in cannabis for so doing. The applicant told Maxfield that his daughter had taken the cannabis into prison and given it to the offender.
56 It is clear from the tape recording that Maxfield did refer to the assault in the course of his conversation with the applicant. However, in none of the audible passages did the applicant admit that he was responsible.
57 It is against this background that the bail application must be considered. In so doing, I am required to have regard to the principles governing the grant or refusal of bail as set out in Part C to Schedule 1 of the Bail Act.
58 Relevantly for present purposes, I am required to exercise the discretion having regard to the following questions, as well as to any others which I consider relevant. They are:
"(a) whether, if the [applicant] is not kept in custody he may –
(i) fail to appear in court in accordance with his bail undertaking;
(ii) commit an offence;
(iii) endanger the safety, welfare, or property of any person; or
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- (iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person
- (b) …
(c) whether the prosecutor has put forward grounds for opposing the grant of bail;
(d) …
(e) whether there is any condition which could reasonably be imposed under Part D of this Schedule which would –
(i) sufficiently remove the possibility referred to in par (a) and par (d);
(ii) obviate the need referred to in par (b) …
(f) …
(g) whether the alleged circumstances of the offence or offences amount to wrongdoings of such a serious nature as to make a grant of bail inappropriate."
59 In considering whether the applicant might do any of the things mentioned in cl 1(a) above, I am required by cl 3 to have regard to the following matters, as well as to any others I consider relevant. They are:
"(a) the nature and seriousness of the offence or offences (including any other offence or offences for which (the applicant) is awaiting trial) and the probable method of dealing with the [applicant] 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 [applicant];
(c) the history of any previous grants of bail to him; and
(d) the strength of the evidence against him."
60 In dealing with those matters, I consider first whether the applicant might fail to appear in court in accordance with his bail undertaking. In my view, the risk is small. In reaching that conclusion, I have had regard
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- to the applicant's affidavit in which he says that although born in England he has been a permanent resident of Australia since 1969. He has lived at his current address for the past 15 years and he is a director of a company which employs him to run a scrap metal yard in the metropolitan area.
61 The applicant has two adult children and eight grandchildren from his first marriage, which ended in 2001. He married Mrs Houghton in 2002. She has two adult children and two grandchildren. The applicant says that his ex-wife is close to Mrs Houghton and himself and he is close to Mrs Houghton's children and grandchildren. All of those children and grandchildren reside in Western Australia.
62 In these circumstances, I think it unlikely that the applicant would flee the jurisdiction. Although he admits that while the search warrant was being executed on his business premises, he said words to the effect "I am going to have to get me and my wife out of this State because of what you are doing", the applicant has explained that in his further affidavit to which I have referred previously.
63 I note the concern expressed by the applicant in his affidavit that as a result of the disclosure of his statement to Maxfield, his safety has been put in jeopardy. However, the applicant goes on to say he feels he would be better able to protect himself in his own home than in prison (affidavit of 2 March 2005 pars 50 – 51). In other words, the applicant is not contemplating flight as a means of avoiding what he perceives to be a risk of harm.
64 I turn to consider whether, if not kept in custody, the applicant might commit an offence. This question is related closely to the question whether the applicant might interfere with witnesses or otherwise obstruct the course of justice. That in turn raises the question of the nature and seriousness of the offences with which the applicant has been charged: the probable disposition if the applicant is convicted and the strength of the evidence against him.
65 It is this aspect of the application which causes me the greatest concern. In considering these matters, I note that the charges against the applicant have been reformulated in an indictment number 46 of 2005 which was presented recently. It bears the obviously incorrect date of 6 April 2005. I assume that to be an erroneous reference to 6 March. The indictment contains two charges. They are as follows:
"(1) On a date unknown between 29 October 2004 and 25 November 2004 at Bayswater KEITH HOUGHTON
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- made a threat to unlawfully kill DARRYL LEE VICTOR MAXFIELD with intent to compel DARRYL LEE VICTOR MAXFIELD to do an act he was lawfully entitle to abstain from doing.
- (2) AND FURTHER THAT between 29 October 2004 and 25 November 2004 at Bayswater and elsewhere KEITH HOUGHTON attempted to pervert the course of justice upon the prosecution of DARRYL LEE VICTOR MAXFIELD on charges of burglary, assault occasioning bodily harm, armed robbery, criminal damage and stealing a motor vehicle."
66 Despite the wide timeframe referred to in the indictment, the prosecutor confirmed on the bail application that both charges relate to statements made by the applicant on 21 November 2004.
67 It was submitted by counsel for the applicant that the applicant was simply suggesting to Maxfield that it would be a very good idea to plead guilty. The applicant himself says that he did not threaten Maxfield: he told Maxfield about the threats which had been made by others. Further, there is the point that if the applicant was himself the source of the threats, it is improbable that he would have informed the police that Maxfield was under any threat at all. Such information could only have made it more difficult for the applicant himself to carry his threats into effect. Counsel submitted further that the various threats made by the applicant should be categorised as "… bravado … big-noting, fast-talking, full of hype …" (TS58).
68 I am unable to accept the submission that the applicant was merely telling Maxfield that it would be a good idea to plead guilty. In my view, it is clear from the recording of the conversation between the applicant and Maxfield on 21 November, with all its deficiencies, that the applicant was doing his utmost to persuade Maxfield to plead guilty. The applicant made it abundantly clear that he had adopted that position out of a concern for Mrs Houghton's wellbeing. That was apparently a matter of very great importance to him.
69 It is true that the applicant referred to threats made against Maxfield by persons other than himself. However, as I have noted above, he at times made the threats personally. In any event, he made it clear to Maxfield that if he did not plead guilty as the applicant wished him to do he was in fact under threat: he was "a dead man walking".
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70 It is impossible to decide in these proceedings whether the threats made against Maxfield were genuine or whether they were made out of bravado. Maxfield appeared to take the threats seriously. However, I do not overlook the fact that Maxfield had every incentive to postpone the trial which was due to commence on the day following the conversation of 21 November 2004. While I am reasonably confident that if the applicant made threats against the DPP, his staff and police officers, he did so out of bravado, I cannot be as confident in relation to the threats made against Maxfield.
71 For these reasons, I conclude that there is strong evidence against the applicant that he attempted to pervert the course of justice by imposing pressure on Maxfield to plead guilty. I consider that the applicant is likely to be convicted of that offence. I consider also that the threat to kill Maxfield – which was undoubtedly made by the applicant – should be regarded as sufficiently serious as to be reasonably likely to result in a conviction for that offence. In forming that view, I have left out of account the threats made by the applicant against others. I accept that evidence may be inadmissible in relation to the offences charged in the indictment. However, that is not a matter for me to decide.
72 These are unquestionably serious offences. The threat to kill carries a maximum penalty of 10 years' imprisonment: an attempt to pervert the course of justice carries a maximum penalty of 7 years' imprisonment. They are offences which strike at the heart of the criminal justice system which is, in turn, fundamental to the operation of the rule of law. It follows, in my view, that if the applicant was convicted, it is likely that a substantial term of imprisonment would be imposed on him.
73 Further, I consider that having regard to the strength of the applicant's concern for the wellbeing of Mrs Houghton, there is a risk that if granted bail, the applicant might interfere with Maxfield (who is himself on bail) or otherwise obstruct the course of justice by seeking to maintain the pressure on Maxfield to plead guilty. That is a risk, which in all the circumstances, I could not properly ignore.
74 I do not think it necessary to form a view as to the risk of the applicant endangering the safety, welfare or property of any other person. Although the applicant undoubtedly expressed a desire to cause serious harm to Brown and others, he has not been charged with any offences in relation to those matters. It is over four years since the offences of 13 November 2000. The applicant himself said that the police had been
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- expecting him to harm Brown for at least that period: and yet he has not done so.
75 I am required to have regard to the applicant's character, previous convictions, antecedents and associations.
76 There is no evidence of the applicant's character beyond that to be inferred from his previous convictions. He was imprisoned for breaking, entering and stealing in 1972. However, in the last 30 years, the applicant's convictions have resulted principally from infringements of the Road Traffic Act. In 1984, he was convicted of possessing a firearm without a licence and possessing a prohibited slot machine. His most recent offences, in 2001, were possessing a prohibited drug and cultivating a prohibited plant. He was fined a total of $550.
77 The applicant's associations apparently include members of the Coffin Cheaters Outlaw motorcycle gang. As I have noted above, the applicant himself identified White as the Sergeant at Arms of the Coffin Cheaters who, he said, is "a powerful figure within the Club".
78 In Nelson's affidavit dated 2 December 2004 to which I have referred above, he said:
"6. Information gathered during the investigation indicated that an extensive re-recorded criminal organisation, the Coffin Cheaters Outlaw motorcycle gang had been contracted to perform the killings.
7. The Coffin Cheaters are well recorded on police databases for their propensity to violence and intimidation."
79 In relation to those matters I refer to the book "Bail Law in Victoria" by Hampel & Gurvich, published by The Federation Press in 2003. The authors say:
"In Smith (William Archibold) (unreported, VSC, 23/3/97), the sole ground of opposition to bail was the unacceptable risk that the applicant would interfere with witnesses or a witness. A police officer gave evidence of such belief principally because the applicant was a member of the Coffin Cheaters motorcycle club. It was the officer's belief that motorcycle gangs have a reputation for interfering with witnesses. In granting bail, Coldrey J remarked:
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- 'Again, whilst it was asserted that the Coffin Cheaters, of which organisation the applicant is a member, have a reputation for interfering with witnesses, this was in fact just an assertion. No evidence was called to that effect. It is worth noting perhaps that the detention of the applicant in custody would not prevent such an organisation interfering with witnesses if that was their modus operandi.'
- The court is frequently faced with an assertion of fear of the applicant by victims or witnesses or police that a risk of interference with witnesses exists. Because the onus of proving an unacceptable risk is on the prosecution, the court cannot act on subjective assertions or beliefs. There must be some evidence to support the assertions that is capable of a proper inference that the risk exists and that it is unacceptable. A theoretical risk may always exist, but that is not enough. Sometimes a real risk may be capable of being removed or diminished by the imposition of conditions of bail."
80 I make the same observations in the present case. If the applicant's association with members of the Coffin Cheaters motorcycle gang was the only matter relied on in opposition to a grant of bail, I doubt whether I would have regarded Nelson's evidence as sufficient to discharge the relevant onus of proof.
81 A further matter to be considered in relation to cl 1(a) of Pt C to Sch 1 of the Bail Act (as made relevant by cl 3) is the history of any previous grants of bail to the applicant.
82 The applicant says, and it has not been contested, that he has answered to his bail on every previous occasion when bail has been granted to him. I accept that to be the case.
83 I turn next to consider the applicant's health. In his affidavit of 1 December 2004, the applicant contends that he is "in very poor health" having been diagnosed with emphysema.
84 In his further affidavit of 2 March 2005, the applicant says that since his incarceration his medical condition has worsened. Because of a condition which results in his stomach having only about 10 per cent of the usual capacity, it is difficult for the applicant to keep his food down. He says he is able to eat only in small quantities and that it is difficult for him to get appropriate treatment in prison.
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85 In his latest affidavit, the applicant complains of the lack of proper medical attention while in prison and the fact that he is subsisting on jam sandwiches because the special diet which he requires has not been approved by the prison doctor. Further, the applicant contends that he has been bleeding from his rectum, that he has a low blood count (as tested by the prison doctor) and that he has been losing weight. The applicant says he was told by the prison doctor that he was "possibly bleeding internally".
86 The applicant exhibited to his previous affidavit some reports produced by the Victoria Street Radiology Clinic in June, July and August 2004. These reports referred to "moderately severe and widespread but upper lobe predominant centrilobular emphysema". An abdominal ultrasound carried out to investigate an unexplained increase in abdominal circumference appeared to show that the applicant's internal organs were normal. Although the prostrate was enlarged, it did not indent the bladder base.
87 The applicant was taken to Armadale Hospital on or about 14 February 2005 to have a CAT scan. This did not take place, apparently because the applicant refused to be shackled, particularly as he was already handcuffed to an AIMS officer. The applicant contends that he was later asked by the prison authorities to sign a waiver to the effect that he had refused the CAT scan. The applicant declined to sign the waiver. He said that he had not refused the CAT scan, he had refused only to be shackled.
88 The applicant is now 61 years of age. I accept that he is in need of medical attention. However, he should be able to receive such attention as he requires while in prison.
89 Finally, there is the question of delay. The applicant has been in custody for some four months. There was some disagreement between his counsel and the prosecutor about the likely trial date. However, while I accept that any delay is undesirable, I can see no reason why the applicant's trial should not take place within what is a reasonable time, having regard to the state of the lists generally. There will be questions of admissibility of evidence, and possibly other matters foreshadowed by the applicant's counsel. However, these should be resolved well before the trial.
90 I did discuss with counsel, during the hearing, the possibility of expediting the applicant's trial. I raised the possibility of my speaking to
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- the Chief Judge of the District Court and explaining the situation to her Honour. This was on the basis that the applicant's trial might be expedited so as to take place before the trial of Maxfield.
91 On reflection, I have decided that it would be inappropriate for me to approach the Chief Judge in that way. There are two reasons. First, I consider that in principle it would be inappropriate for me to make any request which might be interpreted as a form of interference with the procedures of the District Court.
92 Secondly, given the nature of the risks I have identified, there may be an argument that it would be preferable to have Maxfield's trial concluded before the applicant's. That is a matter which I think the parties should consider further.
93 Taking all these considerations into account, I have reached the conclusion that I should not grant bail to the applicant. For the reasons given above, I consider that the strength of the case against him is such that, were he to be granted bail, there is an unacceptable risk that he might at least obstruct the course of justice in relation to Maxfield's trial. Put another way, having regard to cl 1(g) of Pt C of Sch 1 to the Bail Act, I consider that the alleged circumstances of the offences with which the applicant has been charged amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. That being so, in my view it would be necessary for the applicant to demonstrate exceptional circumstances before he could be considered eligible for bail. He has not done so. Even if there were exceptional circumstances, it might well be inappropriate to grant bail. As Kellam J pointed out in Belajev v Director of Public Prosecutions (1998) 101 A Crim R 362, at 363 (following an earlier decision of the Full Court) bail would not be granted, despite exceptional circumstances "if there was an unacceptable risk that the accused would commit an offence while on bail". And as Gillard J said in Abbott (1997) A Crim R 19, an unacceptable risk of interfering with witnesses would produce the same result.
94 In reaching these conclusions, I have had regard to the possibility of imposing conditions such as those set out in Pt D to Sch 1 to the Bail Act. However, I have come to the conclusion that even conditions preventing the applicant from contacting Maxfield or any other witness might not be sufficient to avoid the risk.
95 The application will therefore be dismissed.