JFG v The State of Western Australia
[2015] WASC 106
•27 MARCH 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: JFG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 106
CORAM: McKECHNIE J
HEARD: 25 MARCH 2015
DELIVERED : 27 MARCH 2015
FILE NO/S: MBA 10 of 2015
BETWEEN: JFG
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Procedure - Application for bail - No new principles
Legislation:
Bail Act 1982 (WA), sch 1 pt C
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Mr S Vandongen SC
Respondent: Mr B E F Tooker
Solicitors:
Applicant: Gary Rodgers Barrister & Solicitor
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
McKECHNIE J: The applicant who is a patched member of the Rebels Motorcycle Club and a number of other men also affiliated with the Rebels are charged with doing grievous bodily harm with intent to the complainant on 30 September 2014.
The applicant was arrested on 12 November 2014 and made an unsuccessful application for bail on 5 December 2014.
Other co‑accused have applied for bail in this court, one being refused and two being granted bail on strict conditions. As the grant of bail involves some considerations personal to the applicant, the disposition in other matters has no precedential effect.
Outline of prosecution case
In summary it is alleged that the complainant was enticed to attend an address at Ridgewood by a woman who is also an accused.
The prosecution allege that the applicant was one of five men who drove together to the place where the complainant was lured and attacked him with at least one baseball bat. The complainant was struck repeatedly to the head, torso and limbs. He suffered grievous injuries and was hospitalised for three weeks. The complainant did not recognise the applicant's photo from a digi‑board. However, the prosecution case is that a combination of circumstances including CCTV footage showing the applicant at relevant times will establish he was a member of the group.
The prosecution proceedings to date
Following his arrest on 12 November 2014 and the unsuccessful application for bail the applicant appeared at one disclosure committal hearing and will appear in the Perth Magistrates Court on 23 April 2015 for a further disclosure committal hearing.
There is likely to be some considerable delay before the applicant faces trial in the District Court and for the purposes of this application I will assume that a trial will not take place until 2016.
This delay is a significant matter affecting the discretion to grant or refuse bail.
The evidence filed in this application
The application is supported by three affidavits, one from the applicant, one from his solicitor and one from a person who is presently trying to continue the applicant's bricklaying business.
There is also a reference from a builder, but there is no indication within that reference that it was written to support the bail application or indeed the writer even knew that the applicant had been charged with a serious offence.
The prosecution filed an affidavit by the investigating officer, an extensive brief for the bail application, CCTV footage, stills from that footage and photographs of the applicant in particular showing certain distinctive tattoos taken, coincidentally it would appear, on the morning following the alleged offence.
The Bail Act 1982 (WA)
The application is governed by the Bail Act 1982 (WA) which sets out the court's jurisdiction: Bail Act sch 1 pt C cl 1. The manner of exercise of the jurisdiction is explained in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [31].
The application proceeded, correctly, on the basis that the matters in sch 1 pt C cl 1(b), (c), (d), (f) were irrelevant.
The prosecution did not argue that pt C cl 1(g) was applicable, that is whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Part C cl 1(a) is relevant:
(a)whether, if the accused is not kept in custody, he may ‑
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
In considering whether the applicant may do any of the things mentioned in cl 1(a) regard should be had to the following matters as well as any other relevant matters as set out in pt C cl 3:
(a) - the nature and seriousness of the offence and the probable method of dealing with the accused for it if he is convicted
The offence attracts a maximum penalty of 20 years' imprisonment. The allegations if proved make this a very serious example of the offence. If convicted, I predict the applicant will be sentenced to a lengthy term of immediate imprisonment.
(b) - the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of accused
The accused is a person of bad character. He first started offending when he was 14 years old. As an adult he has a lengthy conviction history for dishonesty offences and multiple offences of armed robbery. On 12 April 2000 an appeal against sentences imposed was allowed and his sentence was reduced to 11 years 9 months' imprisonment. I am advised by counsel that the applicant was released in 2004. It appears he completed the parole period without incident.
The applicant has not committed violent offences since that time, but has amassed a series of traffic offences between 2010 and 2015 including three offences of driving while disqualified. These indicate a persistent disregard for the law and a refusal to comply with it.
On 6 January 2015 the applicant pleaded guilty to a breach of a violence restraining order on 25 September 2014 taken out to protect his former partner.
The applicant is a patched, that is full member, of the Rebels Motor Cycle Club. The investigating officer's affidavit filed in opposition to the grant of bail asserts that the Club is 'a recognised criminal syndicate whose members have a history of extreme violence including murder and their illegal activities are known to include assault, theft, drug distribution, extortion and money laundering'.
In photographs of the applicant taken on 1 October 2014 I observe that among tattoos imprinted on the applicant are the words 'Rebels MC Australia' on his left forearm. On his left hand is a tattoo of the figure '1%' inside a rhomboid and on his right hand also in a rhomboid, is the figure '13'. The significance of both numbers gives an indication of the character of the accused.
Little is known of the applicant's background. He has a son, 16, who is employed by him in the bricklaying business as a first year apprentice. The son is at present living with his maternal grandparents but ordinarily lives with the applicant.
The effect on the applicant's bricklaying business is detailed in his affidavit and that of the person running the business at the moment. Tendered without objection were extracts from the applicant's bank statements showing a steady decline in savings from the date of arrest until the present so that there is now less than $10,000 available in the account. The applicant says that the person running the business is not of the same level of experience as the applicant in the industry, a fact confirmed by that person, and does not have the rapport in the area where the applicant works and would not be as easy for him to secure ongoing jobs, a fact also confirmed. The person running the business concludes:
As I have control of the applicant's business finances I am able to say that the applicant is financially going backwards and if he had to pay me for the time that I put into his business he would be looking at folding the business and not keeping his workers employed.
(c) - the history of any previous grants of bail to him
The applicant has a conviction for breaching his bail. However, as this occurred on 18 March 1991 it is so long past that I leave it entirely out of account.
(d) - the strength of the evidence against him
A description of the correct adjective to place before the word 'case' is sometimes productive of heat and noise but rarely very helpful. Strong cases can be lost; weak cases can be won. Moreover, a judge at this stage is necessarily working on only part of the information that may be available to a trial court and without observing the witnesses. One exception to this is the CCTV footage. This is an important piece of evidence linking the accused to the circumstances of the offence. Mr Vandongen made the point that the affidavit in which the deponent identified the applicant in the footage and still photographs taken from it is simply a police officer's opinion. I agree and so I have watched the footage myself. For the purposes of this bail application I am satisfied that the applicant is depicted in the CCTV footage and that at trial, the prosecution would have reasonable prospects of establishing this indispensable link in a chain of reasoning leading towards guilt.
Bail Act 1982 (WA) sch 1 pt C cl 1
Having regard to the matters I have just outlined I return to the Bail Act sch 1 pt C cl 1(a):
(a) - whether, if the applicant is not kept in custody, he may -
(i) fail to appear in court in accordance with his bail undertaking
There is nothing to suggest that the applicant would fail to appear. He appears to be a West Australian with strong links to the local community. He has engaged a solicitor. I would not refuse bail on this ground alone or in combination with others.
(ii) - commit an offence
I do not consider the prospect the applicant may commit a general criminal offence of itself as a sufficient impediment to the grant of bail.
(iii) - endanger the safety, welfare, or property of any person; or (iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person
The combination of these two factors decisively lead to a refusal of bail. Although the prosecution case is circumstantial in nature the complainant's evidence is crucial. Without him there is no case. With an almost inevitable lengthy term of imprisonment if convicted, there is a strong incentive to threaten the complainant or otherwise obstruct the course of justice. Having regard to the circumstances of the alleged offence, the complainant may well be in considerable fear already. The applicant has shown that he has been quite prepared to use violence to obtain what he desires. He is a patched member of the Rebels Motor Cycle Club. His offending over the last five years, including the most recent offence of breach of a violence restraining order, shows that he has little, if any, regard for legal sanctions but does what he chooses to do.
Conclusion
I have carefully considered the discretionary matters which lean in favour of the grant of bail. There will be a very significant delay before trial and if the applicant is kept in custody his business will certainly close. I have also considered whether there are conditions that could sufficiently remove the possibility the applicant could interfere with the complainant or other witnesses (cl 1(a)(iii), (iv)). In this respect I have read the orders made by Mitchell J and Corboy J in respect of co‑accused. But having regard to all those matters adverse to the applicant which I have outlined, there are no conditions which would sufficiently remove the possibility that he might interfere with witnesses or obstruct the trial. Bail is therefore refused.
This judgment is made available to the parties but is not to be published in electronic or other form until the trial has concluded or further order of a judge.
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