In the matter of an application for bail by Michael Aaron Le Clair
[2014] ACTSC 245
•19 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application for bail by Michael Aaron Le Clair |
Citation: | [2014] ACTSC 245 |
Hearing Date(s): | 10 September 2014 |
DecisionDate: | 19 September 2014 |
Before: | Refshauge J |
Decision: | Michael Aaron Le Clair be granted bail to appear in court on 16 October 2014, subject to the condition that he is excused from attendance on that day if he is legally represented and subject, further, to the following conditions, namely that Mr Le Clair: a. Deposits with the Registrar of the Supreme Court $5,000 as security for payment to the Territory if he fails to appear in court in accordance with his bail undertaking; b. Reside at [Redacted]; c. Not contact, directly or indirectly whether physically or by electronic means, threaten, harass or intimidate, or approach within 200 metres of [Redacted]; d. Report to the officer in charge of Woden Police Station between 8:00 am and 8:00 pm daily; and e. Be at his place of residence between the hours of 8:00 pm and 7:00 am daily and, when reasonably requested present himself to police at his residence during these hours. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Risk of intimidating witnesses – Uncertainty as to whether complainant now residing in another jurisdiction – Uncertainty minimises the risk of interference with witnesses – Bail granted CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – No presumption in favour of bail – Whether onus on applicant or prosecution – Some onus on prosecution |
Legislation Cited: | Bail Act 1992 (ACT), s 22, s 9B, s 9C |
Cases Cited: | Application for Bail by Breen (2009) 172 ACTR 21 of 26 j [47] |
Parties: | Michael Aaron Le Clair ( Applicant) The Crown ( Respondent) |
Representation: | Counsel Mr H Jorgensen ( Applicant) Mr M Fernandez ( Respondent) |
| Solicitors Legal Aid ACT ( Applicant) Director of Public Prosecutions (ACT) ( Respondent) | |
File Number(s): | SCC 170 of 2014 |
Refshauge J:
At 11:18 pm on 8 December 2013, police received a call that a man was being chased along a street in Theodore ACT by two males with baseball bats and a dog.
On the morning of 29 December 2013, the complainant was admitted to the Canberra Hospital after he had been collected from premises at a location near Captains Flat, NSW. It appears that the complainant had arrived at the premises badly beaten and lost consciousness shortly after he arrived. The occupant contacted police and ambulance officers.
As a result, police investigated the allegations made later by the complainant and later to subsequently arrested Michael Aaron Le Clair on 4 March 2014 and David Achanfuo Yeboah on 4 March 2014.
Mr Le Clair appeared in the Magistrates Court on 5 March 2014, where he was charged with assaulting the complainant occasioning him of actual bodily harm, trafficking in a trafficable quantity of cannabis and unlawfully confining the complainant.
On 31 July 2014, he was committed for trial to this Court for trial of the charges.
On 2 September 2014, he applied for bail in this Court. The Crown, the respondent to the application, opposed the application.
Although he has been in custody since 4 March 2014, Mr Le Clair applied for bail in the Magistrates Court only once, on 12 March 2014. Bail was refused, on the ground that he was likely to reoffend.
He was apparently charged with an unrelated offence of assault occasioning actual bodily harm in 2013. He was sentenced for that offence on 15 August 2014 to eight months imprisonment from 4 March 2014, to be served by full time custody for six months and the balance was suspended. I assume a good behaviour order was then made (see s 12(3) of the Crimes (Sentencing) Act 2005 (ACT), but I did not have any details of that good behaviour order.
That sentence ended on 3 September 2014, which appears to explain the timing of his bail application to the Court.
The allegations
Mr M Fernandez, who appeared for the Crown, submitted that the offence arose out of sanctions following a failed drug deal, meaning that Mr Le Clair was in effect part of a parallel regime of policing in an illegal setting where of course the imposition of any sanction is the application of violence.
The allegations may be summarised as follows. The complainant had been accessing cannabis, though he says he had stopped using some weeks earlier. A friend contacted him on behalf of another person, identified as KC, who was trying to obtain seven pounds of marijuana. The complainant contacted his dealer, who agreed to supply the drug for $3,200 per pound. He told the complainant to contact him when he had the money.
Later KC and another person, a Caucasian male, visited the complainant with cash and the complainant called his dealer to deliver the marijuana. His dealer arrived and the complainant took the cash and went to meet him.
The complainant’s dealer had arrived by motor vehicle and the complainant got into the front passenger seat and handed over the cash. He then asked for the marijuana. The dealer said it was in the boot, so the complainant got out of the car to get it, but the dealer then drove away without letting the complainant get to the boot, much less get any marijuana that was there.
The complainant returned to KC who, unsurprisingly, was upset and angry, and set upon the complainant putting him in a headlock and putting a knife to his throat. He dragged the complainant to a car and drove away with the Caucasian male and the complainant in the car.
They eventually arrived at Theodore and were joined by some other people. The complainant, however, managed to get out of the car and run away. He jumped over eight fences, pursued by the others and a dog that KC had. The complainant was eventually caught and hit in the stomach with a black metal baseball bat by the Caucasian male.
He was dragged back to the car and was told “We’re going for a long drive now. That was the biggest mistake of your life”. He was driven out towards Braidwood. The journey took about one and a half to two hours, the last thirty-five to forty minutes driving up a dirt track.
Eventually KC and the Caucasian male stopped the car in a clearing with a large wooden electricity pole. The complainant’s hands were tied behind his back with straps and he was leant against the pole. KC punched him in the face and to the legs, arms ribs, back and head. The two had cut off his shirt and stuffed it in his mouth to stop him screaming.
The Caucasian male suggested cutting his fingers off, but KC rejected the idea. The Caucasian male suggested just killing the complainant or breaking his legs. One of them then suggested they should break his arms and one leg, tattoo a dog on his face and let him hop away.
KC kept hitting the complainant hard on the whole right side of his body. He was hit with the bat, punched and kicked all over. The two attackers unstrapped him and said, “Well fine, you’re dead” and “We are going to find your friends and kill them”. They then drove away.
These were the facts that were said to constitute the offences of assault occasioning actual bodily harm and of unlawful confinement.
The complainant kept losing consciousness but managed to leave the area and find a property displaying a Neighbourhood Watch sign and knocked on the door. It was from there that the police and ambulance were called.
The complainant was admitted to The Canberra Hospital. Police saw bruising on his left arm at the shoulder, extensive bruising to the inside of his left arm, grazes to his left elbow, bruising to the inside of his right arm, scratches to his right wrist and left knee, a circular bruise to the thigh of his left leg, and bruises and scratches to the thigh of his right leg. The complainant had bruising to his ribs and the left side of his upper back.
The complainant made a statement to police in which he described his ordeal. Police also interviewed a number of other persons who were not willing to give much if any information. The complainant’s girlfriend did give a statement to police of some significant detail including that she was present at the complainant’s flat when KC and the Caucasian male arrived. She did not, however, further identify KC. She did refer to the Caucasian male as “Michael”, whom she had met some time before through a friend with whom she had been staying. She described him as “Arab/Wog”, bald with a round face and chubby. She had spoken to her friend and then tried to tell the complainant that “Michael” was a bad person. She identified other persons that were in the complainant’s flat at the time. Police spoke to a number of them, but they provided little if any information.
Police have claimed that KC is David Achanfuo Yeboah and that his Caucasian male friend is Mr Le Clair.
Police also intercepted a telephone call which police alleged was made between Mr Le Clair and an unknown female. It is alleged that in the telephone call Mr Le Clair admitted that he had put a knife to the complainant’s throat and that, when the complainant escaped from the car in which he was the driver, Mr Le Clair’s friend caught him and punched him, which was why he was bleeding internally. He said that he only hit the complainant once but his friend, KC, “did the rest”. Mr Le Clair, if it was him, said that, if he spends any time in custody, he would kill the complainant.
When police arrested Mr Le Clair, they seized at his home a baseball bat, a bag containing tie-down straps of the kind that were used to tie the complainant, a mobile phone and $7461.58 in currency.
It was never articulated to me how the Crown put the case of trafficking in a trafficking quantity of cannabis.
A search warrant was also executed on the house of Mr Achanfuo Yeboah. Police seized from there a quantity of green vegetable matter together with a tie-down strap and $4960 in currency. Whether the trafficking charge was put as a joint criminal enterprise or the proposed purchase is said to have constituted the offence, or whether there are other facts not disclosed is not clear.
Mr Achanfuo Yeboah was charged with the same three offences as those with which Mr Le Clair has been charged. He has been granted bail on strict conditions.
The Law
Generally, persons charged with a criminal offence have an entitlement to be granted bail unless the Court is satisfied, having regard to the matters set out in s 22 of the Bail Act 1992 (ACT), that refusal is justified.
The Bail Act derogates from that position, however, for certain offences. Thus, for the offences specified in s 9B, there is no entitlement to bail and for offences specified in s 9C bail is not to be granted unless there are special and exceptional circumstances favouring bail.
One of the offences with which Mr Le Clair has been charged is of trafficking in a trafficable quantity of cannabis, an offence contrary to s 603(5) of the Criminal Code 2002 (ACT). This is an offence to which s 9B of the Bail Act applies: Item 4 in Part 1.2 of Schedule 1 to the Bail Act.
There is, then, no reference to any onus on either Mr Le Clair or the Crown to be discharged where there is no entitlement to trial. The jurisprudence on the issue is a little unclear.
In R v Hilton (1987) 7 NSWLR 745, the NSW Court of Criminal Appeal dealt with the question of bail pending appeal. At this time the Bail Act 1978 (NSW) provided that there was no statutory entitlement for an appellant to be granted bail. Street CJ, with whom Hunt and Rogers JJ agreed said (at 748):
There being no statutory prima facie entitlement, a convicted person must make a good case justifying the exercise in his favour of the statutory discretion under s 13 to grant him bail. In this sense he has an onus of putting forward material sufficient to satisfying the Court that bail should be granted to him.
I followed that approach in Re Application for Bail by Breen (2009) 172 ACTR 21 at 26; [47].
Despite R v Hilton however Hunt J expressed in R v Kissner (Unreported, New South Wales Supreme Court, Hunt J, 17 January 1992) a somewhat different view, though his Honour was hearing an application for bail pending hearing of the charge against the appellant and not pending appeal.
His Honour said (at p 4):
Where the applicant has been charged with certain more serious offences (such as armed robbery and various drug offences), s 9 removes that presumption and there is left no presumption either way. The Act makes no reference to onus of proof in such a situation (s59 refers only to the burden to be discharged). At common law, a person charged with a non-capital offence was except after conviction – regarded as entitled to bail, so that the onus lay on the Crown to show why he should not be granted it. Although sometimes described as a presumption in favour of bail (albeit a “weak” one), it was in my view more properly described as an onus upon the Crown. The common law power to grant bail was abolished by s 62 of the Bail Act, although the power of this Court to make orders in the nature of habeas corpus was preserved by s 55. S 67 provides that the Act is to be applied to bail applications to the exclusion of the common law previously in force. The Bail Act provides in the place of that common law power a code, the language of which (in accordance with principle) must in the first instance be examined without regard to the previous law for the purpose of aiding its construction: Bank of England v Vagliano Bros [1891] AC 107 at 144-145. In relation to applications for bail in this present category by persons not yet convicted, therefore, there is in my view an onus on the Crown. The only presumption which the Crown may have to displace, however, is that of innocence – and then only on the balance of probabilities. The onus on the Crown in relation to this category is necessarily less onerous than it is in relation to the previous category. So far as convicted persons are concerned, they not only bear the onus of proof (Regina v Hilton (1986) 7 NSWLR 745 at 748, 751), they must also establish special or exceptional circumstances justifying the grant of bail (s 30AA).
I note that R v Hilton was decided on 20 February 1987. The Bail Amendment Act1987 (NSW) inserted a new provision which required an appellant against conviction or sentence to show special or exceptional circumstances before being granted bail. This provision was relocated as s 30AA of the Bail Act 1978 (NSW) by the Statute Law (Miscellaneous Provision) Act (No 2) 1987 (NSW), being the provision to which Hunt J last referred.
Despite what would appear to be a general statement in R v Hilton about the onus on an applicant where there is no presumption for bail, the approach in R v Kissner as expressed by Hunt J, without reference to that general statement, seems to have been followed in preference.
Thus a number of decisions in the Northern Territory have expressly followed R v Kissner, though without reference to R v Hilton. See In the matter of an Application for Bail by Martin (Unreported, Supreme Court of the Northern Territory, Kearney J, 23 October 1997) at p 11; In the Matter of the Bail Act and in the Matter of an Application for trial by Watt (Unreported, Supreme Court of the Northern Territory, Kearney J, 11 November 1997) at p 5; Tamwoy v The Queen, (Unreported, Supreme Court of the Northern Territory, Kearney ACJ, 19 June 1998) at p 1.
In Re An Application for Bail by Breen, at 26; [51], I took into account the effect of the Human Rights Act 2004 (ACT) and considered that a strict application of the approach in R v Hilton may not be appropriate and said
A strict application of the onus on the applicant does not seem appropriate. That is to say, the attitude and information available to the prosecution should also be considered and made available to the Court. Thus the Court could not pay proper attention to the applicant’s human rights without hearing from the prosecution to allow a proper evaluation of the matters about which they have information.
In R v Rubino [2012] ACTSC 157, however, I reconsidered my position as a result of some academic criticism of that statement. I said (at [42]-[43]) in the context of a prosecution assertion that Mr Rubino, if released on bail posed to the community because of a likelihood that he would reoffend,
In Re anApplication for Bail by Breen (2009) 172 ACTR 21, I suggested that an applicant may bear an onus in a bail application. I was trenchantly criticised by J Gans et al in Criminal Process and Human Rights (Federation Press, 2011) at 173-4, especially as I had relied on a decision of the New South Wales Court of Criminal Appeal where later, through unreported decisions, had come to a different conclusion: see R v Kissner (Unreported, Supreme Court of the New South Wales, Hunt CJ, 17 January 1992); cf R v Hilton (1987) 7 NSWLR 745 at 748. Though a decision of a single judge, R v Kissner was a decision by one of the judges in the earlier case.
I accept that I may be wrong and that it might be, as Hunt CJ held in R v Kissner, the Crown retains the onus throughout the hearing. I do not have the time to come to a final view about that. It does seem to me, however, that the Crown must, certainly in respect of a claim that the appellant is likely to commit further offences, at the very least adduce sufficient evidence to raise the issue. The finding on that issue must be cogent and not speculative.
More recently, I have raised the possibility that the Court should follow R v Kissner. See, for example, Nona v The Queen(No 2) [2012] ACTCA 59 at [27]. See also R v O’Brien [2012] ACTSC 199 at [75].
I did not hear submissions on the issue, but given the state of the authorities, I am prepared to accept that the approach taken in R v Kissner is the appropriate one and I shall apply it.
The Submissions to Bail
The application for bail was based on the lack of strength of the Crown case and the fact that there was no basis other than speculation for the allegations that Mr Le Clair would reoffend.
The Crown submitted that bail should not be granted because of the serious nature of the offending and the likelihood of Mr Le Clair harassing or endangering a possible witness or interfering with evidence.
Considerations
There is no doubt that the offences are serious. The maximum penalties are:
·Assault occasioning actual bodily harm: five years’ imprisonment;
·Forcible confinement: ten years’ imprisonment;
·Trafficking in a trafficable quantity of cannabis: 1,000 penalty units, that is a fine of $140,000), or ten years’ imprisonment, or both.
Thus these are serious offences as measured by the maximum penalties. See Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31].
This is, of course, relevant to whether Mr Le Clair will attend to take his trial. The Crown further submitted that the nature of the offences was relevant to the other grounds of opposition to bail. As the violence offences were in the nature of what might be called stand over offences, being attempts to sanction the complainant for the failed drug deal by violent means, I could infer that there is a likelihood of Mr Le Clair interfering with or intimidating witnesses.
I have set out In the Matter of an Application for Bail by Eiginson [2014] ACTSC 234 at [105]-[110] the approach that should be taken to this ground.
Relevant here, too, is Mr Le Clair’s criminal offences record. He has twenty-nine offences on his record, which includes ten traffic offences, three that may be called ‘street’ offences, and nine dishonesty offences. He has been convicted of three offences of aggravated burglary. The most recent non-traffic offence was an offence of breaching the peace on 22 March 2009, some time ago.
The most significant offences are four offences of violence. Each of them, however, is an offence of common assault, a lower level offence of violence, the most recent of which was committed on 2 November 2007. There is also an offence of resisting police in his record.
It does not seem to me that this is sufficient to provide a strong enough interference that Mr Le Clair is likely to interfere with or intimidate witnesses.
As to whether he is likely to abide by the bail conditions or attend to take his trial in accordance with any bail undertaking, he was dealt with in 2002 for a breach of an order for conditional release, but has no other relevant matters on his criminal record. I do not consider that this is a basis for concluding that he will not abide by conditions of his bail on that will fail to attend to take his trial.
In addition, Mr Hugh Jorgensen, Counsel for Mr Le Clair, submitted that there was no pre-existing relationship with the complainant; indeed, the complainant had been introduced to KC (who may or may not be Mr Achanfuo Yeboah) through a mutual friend and Mr Le Clair (if he was the accompanying Caucasian male) simply attended with him.
Mr Jorgensen further pointed out that Mr Le Clair had been at large since the alleged commission of the offences until his arrest on 4 March 2014, over two months later, during which time police had been actively investigating the offences.
I was not informed of any allegations of offences or improper contact with witnesses or potential witnesses during this period.
I was also informed that the complainant may no longer be in the Territory. There was a suggestion in the submissions that he was in Melbourne. That would be quite relevant as pointed out by Carmichael J in R v Cotter (Unreported, New South Wales Supreme Court, Carmichael J, 15 May 1980) and as I mentioned and addressed it In the Matter of a Bail Application by Eiginson at [108]-[109].
Although Mr Fernandez did not controvert this information, the uncertainty of it makes the factor of minimal weight in the circumstances.
Mr Jorgensen then submitted that the Crown case was a weak one. Mr Fernandez submitted to the contrary.
Mr Jorgensen pointed to the following matters:
·identification was strongly contested. The only evidence of Mr Le Clair’s identification was from a photo board identification by the complainant in Woden and Melbourne;
·no other witness identified Mr Le Clair;
·the telephone intercept material will be challenged on the basis that the speaker with the female caller was not, as alleged, Mr Le Clair.
Despite these matters, there were some matters of strength in the Crown case. For example;
·a motor vehicle registered to Mr Le Clair was said to have been seen at Theodore where the complainant states that he jumped out of the car and ran away;
·at the execution of the search warrant on Mr Le Clair’s house, a baseball bat was found as well as some tie-down straps of the kind used to tie the complainant;
·the identification of KC’s companion as “Michael” by the complainant’s girlfriend.
I was also informed that Mr Achanfuo Yeboah had been granted bail on strict conditions. He was, as noted above (at [29]) charged with the same offences as Mr Le Clair. He also has a criminal record, a copy of which was made available to me. It shows that he has a long record though perhaps not quite as serious as that of Mr Le Clair’s kind. He has fifty-three offences on his record, but forty-nine of them are traffic offences, some of the more serious kind, such as drink driving and driving whilst disqualified, a number of them being repeat offences. He only has two dishonesty offences on his record, though from 1997.
On the other hand, the allegations suggest that he was the most aggressive attacker of the complainant and inflicted the greater injury.
No suggestion has been made that Mr Achanfuo Yeboah has done anything suggestive of intimidation of witnesses while on bail. While it is important for me to acknowledge that this was not expressly addressed in the hearing and that the basis for drawing a negative conclusion is very restricted, I have, however, little doubt that any suggestion of any actual threat or interference would have been raised.
Finally, the offences are all serious. That is not in itself a reason for declining to grant bail. It becomes material if it is a basis for the likelihood of flight or other steps taken by an applicant for bail to avoid facing his or her trial.
Consideration
I have carefully considered the matters that have been put to me by both counsel.
The likelihood of Mr Le Clair not attending to take his trial was not raised and, in my view, will be adequately met by the imposing of appropriate conditions.
I am not satisfied that Mr Le Clair is likely to harm or endanger the safety of anyone, interfere with evidence, intimidate a witness or otherwise obstruct the course of justice. I also consider that appropriate conditions can be made that will, in any event, minimise such a likelihood.
Accordingly I will grant Mr Le Clair bail on conditions.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 19 September 2014 |
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