Jones v The State of Western Australia
[2013] WASC 80
•14 MARCH 2013
JONES -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 80
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 80 | |
| 14/03/2013 | |||
| Case No: | MBA:1/2013 | 25 FEBRUARY 2013 | |
| Coram: | HALL J | 25/02/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Bradley Ernest Jones - bail granted Darren Craig Perry - bail refused | ||
| B | |||
| PDF Version |
| Parties: | BRADLEY ERNEST JONES THE STATE OF WESTERN AUSTRALIA DARREN CRAIG PERRY |
Catchwords: | Bail s 14 Bail Act 1982 (WA) Review of bail Criminal damage charges Whether number and seriousness of charges, risk of other offences, risks of safety to applicants and public, justify refusal of bail McKenzie friend |
Legislation: | Bail Act 1982 (WA), s 13, s 14, sch 1 |
Case References: | Christavao v Butcher Paull & Calder [2006] WASCA 235 Christavao v Butcher, Paull and Calder [2006] WASCA 184 Macartney v The Queen [2006] WASCA 29 McKenzie v McKenzie [1971] P 33 Pennicuik v City of Gosnells [2011] WASC 63 Rehu v The State of Western Australia [2012] WASCA 275 The Legal Practice Complaints Committee v De Alwis [2006] WASCA 198 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail - s 14 Bail Act 1982 (WA) - Review of bail - Criminal damage charges - Whether number and seriousness of charges, risk of other offences, risks of safety to applicants and public, justify refusal of bail - McKenzie friend
Legislation:
Bail Act 1982 (WA), s 13, s 14, sch 1
Result:
Bradley Ernest Jones - bail granted
Darren Craig Perry - bail refused
Category: B
Representation:
MBA 1 of 2013
Counsel:
Applicant : Mr D M Bodeker
Respondent : Ms J Andretich
Solicitors:
Applicant : David Bodeker
Respondent : Director of Public Prosecutions (WA)
MBA 2 of 2013
Counsel:
Applicant : In person
Respondent : Ms J Andretich
Solicitors:
Applicant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Christavao v Butcher Paull & Calder [2006] WASCA 235
Christavao v Butcher, Paull and Calder [2006] WASCA 184
Macartney v The Queen [2006] WASCA 29
McKenzie v McKenzie [1971] P 33
Pennicuik v City of Gosnells [2011] WASC 63
Rehu v The State of Western Australia [2012] WASCA 275
The Legal Practice Complaints Committee v De Alwis [2006] WASCA 198
- HALL J:
Introduction
1 At the conclusion of this application I gave brief reasons for my decision and said that more detailed reasons would be published in due course. I also directed that my reasons not be published until the completion of the trial.
2 The applicants were each refused bail in the Stirling Gardens Magistrates Court on 21 November 2012. On 31 January this year, they filed notices of appeal seeking to appeal the refusal under pt 2 of the Criminal Appeals Act 2004 (WA). Those appeals were incompetent because a bail decision cannot be the subject of an appeal under the Criminal Appeals Act: s 7(3).
3 On 6 February this year, a directions hearing was convened. The applicants were both unrepresented at that time. I ordered that the appeals be treated as applications under s 14 of the Bail Act 1982 (WA). The applicants also sought an adjournment so that they could place relevant material before the court. The respondent also required time to file material in response.
4 An application under s 14 of the Bail Act is not an appeal and does not require the demonstration of error. It is an application in the original jurisdiction of this court to exercise power to grant or refuse bail in any case subject to the limitations in s 14. Accordingly, such an application requires the court to consider afresh whether or not bail should be granted. That jurisdiction is to be exercised in accordance with s 13 and sch 1 of the Bail Act.
5 The applications have been dealt with together because the charges the applicants are facing arise out of the same course of events. However, there are significant differences between the applicants and the claims for bail must receive separate consideration.
The prosecution case
6 The prosecution case is that on 28 September 2012, the applicants and two other co-accused, John Higham and Gary Hindmarsh, were present at Higham's house in Balga. Higham is alleged to be the leader of the Mongols Motorcycle Club in Western Australia and the applicants are alleged to be members of that club. That club has animosity towards the members of another club, the Rebels.
7 It is alleged that the applicants and the other two men decided to go out that night to fire bomb the vehicles of Rebels members. The four men wore dark clothes and equipped themselves with balaclavas and Molotov cocktails.
8 At about 2.15 am on 29 September, the four men arrived at a house in Balcatta. The house was that of the president of the Rebels. Three of them approached the house and one climbed a fence and smashed the window of a car before lighting a Molotov cocktail and dropping it inside the car. The car did not catch fire and the estimated damage is $600. A second Molotov cocktail was thrown onto the roof by the same man and caused minor damage.
9 The prosecution case is that Hindmarsh was the man who broke the window and dropped in the Molotov cocktail and threw the second Molotov cocktail onto the roof. Higham is alleged to be the man who stayed in the car. The other two men are alleged to be the applicants.
10 The four men then got back in the car and went to another address, this time in Balga. Hindmarsh again got out and smashed a window of a vehicle parked at the house. He lit a Molotov cocktail and placed it in the car. This time the fire caught and the damage was estimated at $7,000.
11 A day later on 30 September 2012, Hindmarsh and the applicant Perry went to Higham's house again. There is no allegation that Jones was involved in the events on this occasion. The three men, that is Hindmarsh, Perry and Higham, are alleged to have travelled to a house in Parmelia, that being the house of a member of the Rebels Motorcycle Club.
12 They arrived at about 1.00 am on 1 October 2012. Hindmarsh threw a Molotov cocktail into a Holden utility which caught alight. Perry then used black spray paint to write 'Rebel dog' on a nearby fence. The utility vehicle was destroyed and another car parked nearby was damaged.
13 It is clear from this that the acts which directly caused the damage by fire were all performed by Hindmarsh, on the prosecution case. However, that case is that the others are liable as parties to a common purpose under s 8 of the Criminal Code (WA) or as secondary parties under s 7.
The applications for bail
14 The prosecution submits that the evidence against the applicants is strong and that the inevitable outcome on conviction would be significant sentences of imprisonment. This, it is said, provides a powerful reason to abscond. There is also concern that, if released, the applicants would commit further offences or may be subject to retaliation or that there may be a risk to witnesses. For these reasons the prosecution opposes bail.
15 The applicants submit that the case against them is not strong and that they each have a history of complying with bail. They say that their convictions are not assured and that they will be in custody for a lengthy period if bail is not granted. The trial has been set down for September of this year. They also point to personal factors including the care of dependent children, family connections in Western Australia and the availability of employment, in support of their applications for bail.
Strength of the prosecution case
16 Turning to the strength of the prosecution case, the prosecution case depends critically upon the evidence of Hindmarsh. He is, of course, a co-offender but he has admitted his involvement and provided a witness statement to the police. Given his principal role in the offending, he has a powerful reason to want to improve his position by sharing the blame and obtaining credit by implicating others. For those reasons it is likely that his evidence will be vigorously challenged and is likely to attract warnings as to the care a jury should bring to using it. It should also be noted that on Hindmarsh's own admission he was very drunk on each occasion and this may affect his reliability.
17 Perhaps the most important aspect of Hindmarsh's evidence is his identification of the other co-offenders. As to Higham, Hindmarsh describes very distinctive tattoos. As to Perry, it is said that Perry is Hindmarsh's cousin and thus Hindmarsh's evidence in respect of Perry is not identification evidence in the true sense. That is to say, Perry is a man known to Hindmarsh so there are no issues as to mistaken identification, though Perry may allege that Hindmarsh is falsely implicating him. As to Jones, the evidence is of a quite different nature. There is some suggestion that Hindmarsh may not have met Jones prior to 28 September 2012. In any event, when he gave his statement to police he was unable to identify the fourth person present on 28 September other than to provide a description of that person.
18 Hindmarsh was asked to participate in a digiboard identification exercise and in doing so identified a picture of Jones from amongst 12 others, but whether he was identifying Jones as the fourth person or as being some other member or associate of the Mongols Motorcycle Club that was involved in the planning is unclear from the transcript of the identification. In any event, there is clearly room for this identification to be challenged and I am unable to conclude that a jury will necessarily accept that evidence.
19 The only other significant evidence in the prosecution case is telephone intercepts. There is no DNA evidence, no fingerprint evidence, no relevant closed circuit television footage or admissions. As to the telephone calls, they require some interpretation. I have examined those call summaries and they are consistent with planning for the offences and discussion about them afterwards. The calls involving Jones are fewer in number and more general in content. Those involving Perry include references to locating the addresses at which the offences are known to have occurred.
Risk of offending if released
20 As to the risk of offending, I must be careful not to assume guilt. Both applicants maintain their innocence and the trial is yet to occur. They are at this stage presumed to be innocent. Nonetheless, the prosecution case is a reasonably strong one, in particular as regards Perry, and the possibility of the commission of further offences and the type of such offences must be considered. The nature of the alleged offences involve a risk to the safety of the public. It is alleged that there was planning and repeated conduct to engage in activities that were inherently dangerous. The motivation is said to be an animosity that is ongoing. In these circumstances, there must be a risk of offending of a similar nature if released.
Risk to safety of applicants and others
21 It is also suggested by the prosecution that the applicants would be at risk of their own safety if released to bail. There is no evidence to substantiate any specific threats in this regard and the prosecution ask me to draw a conclusion based upon the nature of the prosecution case, the offences that are alleged to have been committed and the motivation for those offences. The implication is that there may be a risk of retaliation from those it is suggested that these offences were committed against. I am unable to draw any conclusion that any specific risk has been substantiated.
22 It is also suggested that there is a risk to witnesses. No specific risk has been referred to, although there is reference to Mr Hindmarsh, the co-offender who has cooperated with the police, being on bail and therefore being in some potential danger if the applicants were released. However, there is no evidence of any threats being made and I am not satisfied that conditions could not be imposed that could minimise any risk in that regard.
Seriousness of the charges
23 Turning to the seriousness of the charges, these are charges, in particular those involving the use of fire, that carry high maximum penalties. Mr Perry is charged with two counts of criminal damage contrary to s 444(1)(b) Criminal Code (WA), four counts of criminal damage by fire (arson) contrary to s 444(1)(a) Criminal Code and one count of possession of a prohibited drug contrary to s 6(1)(a) Misuse of Drugs Act 1981 (WA). Mr Jones is charged with one count of criminal damage and two counts of criminal damage by fire (arson). The maximum penalties for those offences are 10 years' imprisonment for criminal damage, 25 years' imprisonment or a fine of $100,000 for possessing a prohibited drug, and imprisonment for life for criminal damage by fire (arson).
24 The likelihood of significant terms of imprisonment if convicted provides a real incentive to the applicants to abscond. As against that there is nothing in their histories to suggest that either man would not comply with bail. They appear to have been compliant in the past, with some minor exceptions in the case of Jones.
Personal circumstances and delay
25 As to their personal circumstances, both men are long term residents of Western Australia and both have submitted that they have dependent children. The evidence in that regard, though, is somewhat limited. There has also been reference to delay and the prejudice that the applicants would suffer in that regard.
26 Mr Perry in particular has said that he is held in custody in a protection unit at the moment and that limits his access to facilities and would also make it difficult for him to instruct his lawyers. He says that he has been in custody for some five months already and that that time would be significantly lengthened if bail was refused. The trial is to occur in September 2012 and by that time he would have been in custody for some 11 months, as indeed would Mr Jones, if bail was refused.
27 Delay is a matter that may justify bail in some circumstances. However, that is generally only where the delay is of an unusual length. Ten months is a long time but it is not the type of delay that has been accepted in other cases as being of such length as would in itself justify a grant of bail. As against the delay, which I do not minimise, the seriousness of the charges must be a weighty factor.
28 In conclusion, as regards Mr Perry the case against him appears at this stage, on the limited information available to me, to be relatively strong. He faces very serious charges and the risk of absconding must be a real one. There is a possibility of further offending. He faces more charges than Mr Jones and his alleged role is greater. In those circumstances my conclusion is that bail must be refused.
29 As regards Mr Jones, there are significant differences, as I have noted. First, the case against him is less strong. Further, he faces fewer charges, reflecting the fact he is only alleged to have been involved on one night. The calls in respect of him are capable of indicating involvement but they may also merely show knowledge. To that extent they are capable of alternative interpretations. His role in the offending is also more limited.
30 In regard to Mr Jones' personal position, I accept that he has long-term connections with the state including extended family, all of whom live in this state. He has children, one of whom was in his care until being remanded in custody. I also am of the view that there are conditions that could be imposed upon him that would limit the risk of absconding.
31 I am concerned as to the amount of surety that Mr Jones is able to secure. It was suggested that a $5,000 surety would be adequate. I do not accept that. There would have to be a higher surety than that. If necessary though, I am prepared to allow multiple sureties to make up the amount that I will impose.
Conclusion
32 For the above reasons, at the hearing of these applications, I dismissed Mr Perry's application but granted that of Mr Jones. The terms of bail were set on that day.
Application for 'McKenzie friend'
33 Prior to the hearing Mr Perry sought that he be permitted to have the assistance of a 'McKenzie friend' at the hearing: See McKenzie v McKenzie [1971] P 33. The person he proposed would take on this role was Mr Viji De Alwis. Mr De Alwis filed an affidavit in support of the application. Mr Perry requested that the application be determined prior to the hearing and on the papers. I refused the application and these are my reasons for that refusal.
34 The affidavit of Mr De Alwis is mostly about himself. He is a serving prisoner and a former lawyer. He believes that the proceedings which resulted in him being struck off were flawed. None of this in any way advances Mr Perry's application. The fact is Mr De Alwis is prohibited from representing anyone and the circumstances that led to him being struck off mean that he is unsuited to providing assistance as a McKenzie friend: The Legal Practice Complaints Committee v De Alwis [2006] WASCA 198. See also Christavao v Butcher Paull & Calder [2006] WASCA 235, Christavao v Butcher, Paull and Calder [2006] WASCA 184. The tone and content of the affidavit only serve to confirm this.
35 The circumstances in which a court will permit a party to be represented by a person who is not a lawyer are exceptional. It is not generally in the interests of justice for an unqualified person to represent a party in proceedings: Macartney v The Queen [2006] WASCA 29 [3] - [4] (Steytler P), Rehu v The State of Western Australia [2012] WASCA 275 [4] (Mazza JA). Mr De Alwis may have undertaken studies in law in the past but I am far from satisfied that he should be treated as qualified.
36 The role of a McKenzie friend is limited to taking notes, quietly making suggestions and giving advice. It is rare that a McKenzie friend is necessary and it is a matter for the court hearing the application to determine. A recent consideration of the role of a McKenzie friend and the circumstances in which it was appropriate was undertaken by E M Heenan J in Pennicuik v City of Gosnells [2011] WASC 63.
37 Mr Perry's application was based upon his stated unfamiliarity with the legal system and lack of experience in public speaking. However, this was a simple application that required no detailed understanding of the law. Such procedural issues as existed did not present an impediment as I made allowances for the fact that Mr Perry was unrepresented. The factual material was of small compass. Mr Perry, in fact, had no difficulties addressing me, either at the directions hearing or the final hearing.
38 For these reasons I was not satisfied that grounds for granting leave to Mr Perry to use a McKenzie friend were made out. Even if a McKenzie friend had been appropriate Mr De Alwis was not suitable to play such a role.
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