NSW Director of Public Prosecutions v Scott Allan Orrock
[2012] NSWSC 459
•08 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: NSW Director of Public Prosecutions v Scott Allan Orrock [2012] NSWSC 459 Hearing dates: 04/05/12 Decision date: 08 May 2012 Before: Garling J Decision: (1) Application for review of the decision of Huber LCM in the Central Local Court on 26 April 2012 to grant bail to Mr Orrock be upheld.
(2) The following decision be substituted for that decision, namely that Mr Orrock's application for bail be refused.
(3) I revoke Mr Orrock's bail granted on 26 April 2012 and entered on 27 April 2012.
(4) I direct, pursuant to s 48(5) of the Bail Act, that a warrant issue committing Mr Orrock to prison.
Catchwords: BAIL - Review of Local Court grant of bail - Nature and seriousness of offence - Strength of Crown case - Probability of future appearance - Protection of the community - Bail refused Legislation Cited: Bail Act 1978
Crimes Act 1900
Evidence Act 1995
Weapons Prohibition Act 1998Category: Principal judgment Parties: NSW Director of Public Prosecutions (applicant)
Scott Allan Orrock (respondent)Representation: Counsel:J Crespo (NSW DPP)
D Provera (applicant)
Solicitor for Public Prosecutions (NSW DPP)
Ays Legal (respondent)
File Number(s): 2012/127175 Publication restriction: Nil
Judgment
On 21 April 2012, Scott Allan Orrock, the respondent, was arrested by police and charged with six offences.
Four of those offences alleged that the respondent between 3am and 3.03am on 20 April 2012, intimidated each of four police officers at the Newtown Police Station, while each of them was executing their duty. Such an offence constitutes a breach of s 60(1) of the Crimes Act 1900.
The fifth offence alleged was one contrary to s 195(1)(b) of the Crimes Act, namely that, between 2.45am and 3.11am on 20 April 2012, Mr Orrock intentionally or recklessly damaged by means of fire, a 2009 Ford Ranger police motor vehicle.
The sixth offence alleged, which seems to be an alternative to the fifth offence, alleges a breach of s 199(1)(a) of the Crimes Act, namely, threatening to destroy or damage another person's property.
Each of the offences carries a maximum penalty of 5 years imprisonment except that the offence of damaging property by means of fire carries a maximum term of imprisonment of 10 years.
After his arrest, Mr Orrock was refused bail by the relevant police officer.
On 26 April 2012, upon his first appearance in court, Mr Orrock applied for, and was granted, conditional bail by Huber LCM sitting in the Central Local Court.
The bail granted required that Mr Orrock agree to adhere to the following conditions:
(a) to be of good behaviour;
(b) to report to Marrickville Police Station once daily between 8am and 8pm;
(c) to reside at a specified address;
(d) to surrender his passport and not apply for any other passport or travel document;
(e) not to go within 2 kilometres of any international point of departure;
(f) that he enter into an agreement, without security, to forfeit the sum of $10,000 if he failed to comply with the bail undertaking;
(g) that one acceptable person deposit the sum of $10,000 in cash, and enter into an agreement to forfeit the amount if Mr Orrock failed to comply with the bail undertaking.
Having entered into the requisite bail agreement, and all other conditions being satisfied, Mr Orrock was released on bail on 27 April 2012. On that day the Director of Public Prosecutions lodged, with the Supreme Court, an application for a review of the bail determination of the Local Court magistrate.
The DPP also sought expedition of the hearing of that review.
The review was heard on Friday 4 May 2012.
For the reasons which follow, I have decided that the bail granted to Mr Orrock on 26 April 2012, should be revoked, and accordingly, I have decided that the application for review be upheld.
Bail Act1978
The grant or refusal of bail is founded upon the Bail Act 1978. There is no common law basis for a grant of bail.
The Supreme Court has the power to review the grant of bail by a Local Court magistrate: s 45 Bail Act.
The provisions of the Bail Act regarding a review of a previous bail decision are to be found in s 48. So far as is relevant, they are as follows:
"(1) The power to review a decision pursuant to this Division:
(a) may be exercised only at the request of:
(i) the accused person,
...
(iv) the Attorney General or the Director of Public Prosecutions, and
(b) includes the power to affirm or vary the decision or to substitute another decision.
(2) A decision as varied or substituted must be in conformity with this Act.
(3) The review of a decision shall be by way of rehearing, and evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review."
As is apparent from the terms of s 48(3), upon the hearing of a review, a court is not limited to the factual material which was before the Local Court magistrate. Nor is it constrained by the application of the rules of admissibility in the Evidence Act 1995. The Court is entitled to act not only on evidence in the traditional sense, but also on any information with which it is provided.
However, the provisions of s 59 of the Bail Act are relevant. They are as follows:
"Where [a] ... court, in making a decision in relation to bail (other than a decision in proceedings for an offence committed in connection with bail), is to be or may be satisfied as to any matter, it is sufficient if the ... court is satisfied on the balance of probabilities."
The effect of this section is that the standard of proof on a bail application is very different from the usual criminal standard.
Finally, the Bail Act provides for the criteria to be exclusively considered in bail applications. It is important to note that in an application for bail, a court is limited to considering only the matters set out in s 32.
Section 32 in so far as it is relevant to this application for review is in the following terms:
"(1) In making a determination as to the grant of bail to an accused person, [a] ... court shall take into consideration the following matters (so far as they can reasonably be ascertained), and the following matters only:
(a) the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, having regard only to:
(i) the person's background and community ties, as indicated (in the case of a person other than an Aboriginal person or a Torres Strait Islander) by the history and details of the person's residence, employment and family situations and the person's prior criminal record (if known), and
...
(iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty, and
...
(b) the interests of the person, having regard only to:
(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody, and
(ii) the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both, and
(iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii),
...
(vi) if the person is a person referred to in section 9B (3), the nature of the person's criminal history, having regard to the nature and seriousness of any indictable offences of which the person has been previously convicted, the number of any previous such offences and the length of periods between those offences, and
...
(c) the protection and welfare of the community, having regard only to:
(i) the nature and seriousness of the offence, in particular whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900 , and
(ii) whether or not the person has failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition previously imposed in respect of the offence, and
...
(iv) whether or not it is likely that the person will commit any serious offence while at liberty on bail, but the authorised officer or court may have regard to this likelihood only if permitted to do so under subsection (2), and
...
(2) The ... court may, for the purposes of subsection (1) (c) (iv), have regard to whether or not it is likely that the person will commit one or more serious offences while at liberty on bail if the ... court is satisfied that:
(a) the person is likely to commit the offences, and
(b) that likelihood, together with the likely consequences, outweighs the person's general right to be at liberty.
(2A) The following matters are to be considered in determining for the purposes of subsection (1) (c) or (2) whether an offence is a serious offence (but do not limit the matters that can be considered):
(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900 ,
(b) the likely effect of the offence on any victim and on the community generally,
(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.
(3) For the purposes of this section, the ... court may take into account any evidence or information which the ... court considers credible or trustworthy in the circumstances and, in that regard, is not bound by the principles or rules of law governing the admission of evidence."
Relevant Facts
According to the Statement of Facts which was put before the Court, Mr Orrock is the owner of the "Skin Deep" tattoo shop which is located in King Street, Newtown. He is said to be a member of the Hells Angels Motorcycle Gang, having previously been a member, and sometime president of the Nomads Motorcycle Gang.
The Skin Deep tattoo shop building has been the subject of damage on a number of occasions prior to April 2012.
At about 9pm on Tuesday 17 April 2012, as a result of information received, Newtown Police parked a Ford Ranger police truck on King Street, Newtown in the immediate vicinity of Skin Deep. The vehicle was not manned and was moved about every two hours to another close-by location, but at all times remaining in the immediate vicinity of the Skin Deep.
At about 3am on Friday 20 April 2012, Mr Orrock attended the enquiry counter of Newtown Police Station. He appeared to the four officers on duty to be agitated and angry. He demanded that the police move their police truck right now. He was advised that officers would not move the vehicle. Mr Orrock then said (omitting offensive language):
"No, you ... move it right away or otherwise I will burn it down".
He went on to say:
"I don't ... care, do you know what you are doing? You are making me a target, you are making my family a target. I'll give you ten minutes to move that car or I'll burn it to the ground."
He then said:
"You've got ten minutes to move the ... truck, or I'll burn the ... thing. You have no idea what you are doing. I'm not scared of you or of my people. You are making my family the target."
Mr Orrock was informed that the police vehicle would not be removed and that if it was damaged, that would lead to a prosecution.
Mr Orrock then said:
"Well, you'd better be down there in fifteen minutes to arrest me then. I'm telling you, you have ten minutes to move the ... truck or I'll burn the ... thing down."
According to CCTV footage, Mr Orrock left the police station at 3.01am. He was observed to walk towards to King Street, Newtown and then in a southerly direction along King Street until he was about 60 metres from where the police vehicle was parked.
At about 3.16am Mr Orrock can be seen on CCTV footage leaving the rear of the Skin Deep tattoo shop building and getting into a taxi which apparently leaves the area.
The police allege that in the period of time when Mr Orrock disappeared from the view of the CCTV cameras, namely at about 3.05am, he walked approximately 60 metres towards the police motor vehicle and then using accelerant, set the vehicle alight.
At about 3.10am the police were advised that the parked police vehicle was on fire.
Observations of the vehicle after the fire had been extinguished indicated that the front side passenger window had been smashed, an unknown accelerant introduced to the interior of the vehicle, and the vehicle set alight.
At about 7.50pm on Friday 20 April 2012, police were contacted by Mr Orrock's solicitor, who offered to surrender Mr Orrock to the police on Monday 23 April 2012. This time was not acceptable to police officers, and accordingly arrangements were made that Mr Orrock would surrender to police at the Newtown Police Station at 9am on the following morning, 21 April 2012.
Shortly after 9.30am on 21 April 2012, Mr Orrock attended at the police station and was arrested and taken into custody. He was charged with the offences now before the Local Court.
The author of this Statement of Facts was not required to give evidence. The Statement was unchallenged by the provision of any other conflicting facts. I am satisfied that I should, for the purposes of this review, accept the contents of the Statement of Facts as both true and accurate.
In addition to the Statement of Facts, the Court was provided with a letter from Detective Sergeant Pieter Schouten, a police officer who is part of the Gangs Squad of the State Crime Command.
The contents of Detective Schouten's letter was not challenged by Mr Orrock. However, it must be said that many of the statements in this document are in the nature of submissions rather than statements of fact, and represent opinions held by the author, rather than conclusions objectively available on the facts provided in the letter. Indeed, the author described the contents as "Representations".
Leaving to one side matters of rhetoric, impermissible and illogical conclusions and assertions of guilt by association, I am satisfied that I can rely upon the following material contained within that document:
(a) Mr Orrock has a lengthy criminal history, and is the subject of 349 police intelligence reports relating to criminal activity, suspected criminal activity and "outlaw motorcycle gang" associations;
(b) Most of the police intelligence reports relate to Mr Orrock's membership of outlaw motorcycle gangs, namely, the Nomads Motorcycle Gang from 1992-2009, during which time he held the role of president, and then since 2009, the Hells Angels Motorcycle Gang;
(c) Police intelligence reports have provided information suggesting that since January 2012, there has been a conflict between the Nomads and the Hells Angels. However, the police hold no specific intelligence reports relating to Mr Orrock's role in this conflict. That is to say, the police have no material which suggests that Mr Orrock has been a participant in any of the events surrounding such conflict;
(d) Detective Schouten, however, identifies Mr Orrock as a potential victim of the conflict, and by reason of his former membership of the Nomads, his present membership of the Hells Angels regards him as a "possible person of interest"; and
(e) Mr Orrock, as the owner of an apparently successful tattooing business, has sufficient personal resources to facilitate his flight from the jurisdiction;
In summary, Detective Schouten says:
"in addition to the seriousness of the current charges, the circumstances indicate a high degree of contempt for police, authority and community standards. ... The police vehicle was that was targeted [Mr] Orrock's arson attack was lawfully parked at the location and [Mr] Orrock's extreme reaction to the presence of the police vehicle was a clear demonstration of his risk to the community. [Mr] Orrock's association with the Hells Angels OMCG provides him with the willingness and ability ... as well as the resources to effectively flee the jurisdiction. Given the current strength of the prosecution case, the seriousness of the charges, [Mr] Orrock has ample motivation to do so."
Detective Schouten also asserted that the police case was a strong one. It will be necessary to examine this assertion in due course.
There were a number of pieces of evidence and material placed before the Court on behalf of Mr Orrock. They included a number of medical reports, affidavits of family members and the affidavit of Mr Andrew Sparks, an employee of Skin Deep. None of the material was objected to by the DPP. Nor was any of it subject to cross-examination. Mr Orrock did not give any evidence.
That material establishes the following:
(a) Mr Orrock is in a stable domestic relationship with his wife. He has living with him and his wife, two children of an earlier relationship who attend a local high school;
(b) In addition to his wife and these children, Mr Orrock is also responsible for the financial support of three other children who, although they are over the age of 18, require financial support from time to time, an adult stepson, and his 74 year old pensioner father, who is unwell and unable to work;
(c) Mr Orrock suffers from a number of psychological conditions which require attendance at, and the obtaining of treatment from, a medical centre at Newtown. With respect to these conditions, Mr Orrock requires regular daily medication;
(d) Mr Orrock is the driving and creative force behind the Skin Deep business and that his experience and talent are needed to ensure that the business is successful and profitable.
According to the evidence, Mr Orrock's sole source of income (although the amount of his annual income was undisclosed) is from the Skin Deep tattoo business. His wife describes herself as unemployed. There is no material before the Court which outlines either the financial position of the Skin Deep business or else the financial position of Mr and Mrs Orrock, by way of profit and loss accounts or statements of assets and liabilities. No bank statements or other supporting documents, were produced which were said to reflect the extent of their financial position.
It is therefore not possible to make any specific findings about the impact that Mr Orrock being in custody will have on the financial well being of his family, or those who depend upon him for financial support. I accept that there will be an obvious effect if bail is refused, namely that Mr Orrock will not be able to attend at the Skin Deep business, carry out work there and supervise others who work there. What the material before me does not disclose is the monetary effect, if any, which that will have.
Discernment
It is necessary to consider this factual material and the submissions of each party against the criteria fixed in the Bail Act, and matters of general principle.
Presumption about Bail
The offences with which Mr Orrock is charged, are not offences for which there is a presumption in favour of bail: see s 9 Bail Act. Nor are they offences for which there is a presumption against bail: see ss 8A - 8F (inclusive) Bail Act. In common parlance, there is a "neutral" presumption.
Although the offence of intentionally or recklessly damaging property by fire contrary to s 195(1)(b) of the Crimes Act is defined as a "serious personal violence offence", because Mr Orrock has no previous conviction for a serious personal violence offence, he does not fall within the provisions of s 9D of the Bail Act. That section requires a court not to grant bail to a person in respect of a serious personal violence offence, in the absence of exceptional circumstances, where the person is a "repeat offender". A person is a repeat offender within the meaning of that phrase if the person has a previous conviction for a serious personal violence offence.
Accordingly, it is necessary for the Court to approach the provisions in s 32 without a presumption imposed by the Legislation either for or against a grant of bail.
Object and Purpose of the Bail Act
Before further considering the issues presented in this review, it is appropriate to notice, and keep in mind, in accordance with the usual principles of statutory construction, a part of the Second Reading Speech of the Honourable Frank Walker MLA, the then Attorney-General, when on 14 December 1978, he said that the Bill which became the Bail Act, was being introduced as a result of a decision to "codify the law as to bail".
He said (at page 2016) that:
"The basic object of setting bail is to ensure that an unconvicted accused person appears in court in respect of the offence for which bail is being considered. As such, it is the primary and most important factor to be considered in any bail application."
He concludes the Second Reading Speech with the following remarks:
"These bail provisions are important measures which will substantially improve the administration of criminal justice in New South Wales. They attempt to strike the necessary delicate balance between the right of an unconvicted accused person to be at liberty while awaiting determination of the charge on the one hand, and the protection and welfare of the community on the other... Although it is perfectly true that the community must be protected against dangerous offenders, one must not lose sight of the circumstances, first, that when bail is being considered, one is confronted with an alleged crime and an unconvicted accused person, and second, that the liberty of the subject is one of the most fundamental and treasured concepts in our society."
The Proper Role of a Court under the Bail Act
This decision does not determine the correctness of the decision of the Huber LCM. That is because the Bail Act requires a rehearing on the evidence and material before this Court and not what was before the Local Court. The fact that I have come to a different conclusion from that which Huber LCM came to, does not bespeak error on her part. It reflects the different material, the different assistance and a longer time to enable adequate reflection, with which this Court was provided.
As the Attorney-General's remarks (and the provisions of the Bail Act) clearly demonstrate, a decision about whether to grant or refuse bail under the Bail Act is an occasion for the exercise of independent judicial power. Bail is not to be refused in order to punish an individual. That is the task after conviction of a sentencing court.
What is being weighed up in making a bail determination, in short, is whether an unconvicted accused person, to whom the law accords the presumption of innocence, ought for the proper administration of justice, and the protection of the community (or an individual within the community) be deprived of their general right to liberty.
In deciding where, in any individual case, this "delicate balance" lies, a court is not a part of the executive arm of government. Nor is it supporting the executive function of government. On the contrary, it is determining, as a wholly independent arbiter, how the law fixed by the Parliament ought to be applied in a dispute between the executive and the individual.
Probability of whether Mr Orrock will appear in Court in respect of the offences: s 32(1)(a) Bail Act
This is the first of the criteria which the Court is required to take into consideration in determining whether there should be a grant of bail. However, the Court is not at large as to what it can consider in relation to the probability of whether or not Mr Orrock will appear in Court.
As the legislation set out in [19] above demonstrates, the only matters in this review to which the Court is entitled to have regard are:
(a) Mr Orrock's background and community ties as indicated by the history and details of his residence, employment and family situation, together with his prior criminal record; and
(b) The circumstances of the offence, including its nature and seriousness, the strength of the case against Mr Orrock and the severity of the penalty or probable penalty.
Circumstances of the Offence
So far as is relevant, I would draw the following conclusions from the material provided about the circumstances of the offence, and the other matters referred to in (b) above:
(a) The offences with which Mr Orrock is charged are serious offences. They carry maximum penalties of either 5 or 10 years imprisonment. These are neither minor nor trivial offences.
(b) In my assessment, the Crown case against Mr Orrock is, on the balance of probabilities, a very strong one. He is identified as entering the police station. Four officers witnessed the threats which he made. The threats which he made challenge directly the police authority in addressing a possible crime, and seek to have the police withdraw their crime prevention measures. When he received no satisfaction from the police, they indicating that they did not propose to move the motor vehicle, he delivered a threat of violent and unlawful conduct, namely, that if the vehicle was not moved within a nominated period of time, it would be blown up. He then challenged the police to attend and arrest him.
(c) Mr Orrock left the police station and walked towards his tattoo shop in the immediate vicinity of which was the police motor vehicle. He is seen a few minutes later to leave his tattoo shop by the backdoor and then leave the vicinity in a taxi.
(d) In the short period between when he disappears from the view of the CCTV cameras, and when he leaves the scene, being no more than12 minutes, the police vehicle is blown up, just as Mr Orrock threatened the police that he would do.
There is no material before me indicating that anyone else was in the vicinity of the police vehicle, or Mr Orrock's tattoo shop, at the time that this incident occurred. There is no material before me indicating that anyone else had a sufficient interest in destroying the police vehicle.
Although counsel for Mr Orrock urged the Court, in light of the fact that the case against him was a circumstantial one, as indeed it is, to conclude that it was a weak case because the Crown would not, ultimately at trial, succeed in disproving any hypothesis consistent with Mr Orrock's innocence.
He submitted that the fire may well have been lit by an individual who was entirely independent of Mr Orrock. Such a submission strikes me as pure speculation and lacking in common sense. What, in substance, is submitted is that someone, whose identity is unknown to Mr Orrock, and therefore, someone uninformed about the threats which Mr Orrock had just made at the Newtown Police Station, would coincidentally with the time at which Mr Orrock happened to be in the vicinity of the police motor vehicle, and his tattoo shop, having delivered his threats to the police, would take that moment of time to undertake an activity in which he, the unknown individual, had no interest, but which activity was designed to assist, or had the effect of assisting in, the delivery of, or enforcement of, Mr Orrock's threats. On the material before me, I regard this as so unlikely as to be fanciful.
Counsel for Mr Orrock submitted that another reasonable hypothesis consistent with Mr Orrock's innocence was that the act of destruction of the police vehicle was carried out by an individual who was acquainted with Mr Orrock, knew of his concerns about the presence of the police vehicle and had decided independently of Mr Orrock, and without his knowledge or consent, to do that which Mr Orrock was threatening police he would do.
As it seems to me, for this "caring" individual to have acted in the short period of time during which Mr Orrock was not captured on CCTV footage would be a remarkable and highly unlikely coincidence. I also regard this hypothesis as, on the material before me, fanciful.
The police case is a strong one against Mr Orrock. The offences are serious. They involve violence directed at police officers, and their equipment assets, which are being used in law enforcement with the intention of the protection of the community. Mr Orrock acted in complete disregard for those efforts, and took the law into his own hands. He determined for himself, in a way which posed a significant potential risk to the community, how the police should do their job. He intentionally, and in a calculated way, defied their authority and then challenged the police to arrest him.
Mr Orrock's Criminal Convictions
Mr Orrock's criminal history, as an adult, began in August 1985 and comprises 24 criminal convictions. It must be said that many of these are for quite minor offences associated with driving and minor drug possession offences.
The most serious series of offences are those with which he was charged on 16 August 2006. He was convicted of the offence of concealing a serious indictable offence of another person, possessing or using a prohibited weapon without a permit (3 counts) and possessing or attempting to possess a prescribed restricted substance.
After a successful appeal from the Local Court to the District Court on the severity of the penalty imposed, in respect of the offence of concealing a serious indictable offence, Mr Orrock was sentenced to a term of imprisonment of 2 years, with a 1 year non-parole period, which was ordered to be served by way of periodic detention. In respect of the other offences, he was given respectively a bond and a fine.
The circumstances of those more serious offences are before the Court by way of a Police Facts Sheet. It is important to have regard to the Facts Sheet as a convenient summary of the case made against Mr Orrock. These facts provide a context within which to consider Mr Orrock's criminal history. It does appear that Mr Orrock, whilst holding the position of National President of the Nomads, went to the Showgirls Strip Club at Kings Cross where together with a number of male companions he consumed a number of drinks and ordered a half hour private show with two female strippers. Also at the club was a group of men on an organised bucks night. A fight broke out in the club which was broken up by bouncers and the club's owner.
A short time later, a number of males of middle eastern appearance came to the club and went to the private room where Mr Orrock was being entertained. Mr Orrock and these men of middle eastern appearance left the private room and entered the main club area where a number of fights broke out. During one of the fights a pistol was discharged by a member of Mr Orrock's group and which struck the left leg of one of the members of the buck's party and also, by accident, the right leg of Mr Orrock.
It was later established that Mr Orrock had been shot with the pistol by a member of the group assisting him with the fight.
Police spoke to Mr Orrock on a number of occasions and asked for information with respect to the events which occurred. By covert means of investigation, the police became satisfied that Mr Orrock fully knew the identity of the individual who had discharged the gun and refused to disclose that identity to police.
When he was offered a final opportunity to assist the police by the identification of suspects for the shooting, Mr Orrock refused to provide any information or participate in any identification procedure. He reiterated his reasons to include that
"it was against the policy of the Nomads ... to assist or provide information to police regarding any matter."
After Mr Orrock had been taken into custody upon his arrest, his home premises were searched. During the course of the search, police recovered two replica pistols which were classified as prohibited weapons. As well, the police recovered a set of daggers in a box, which were described as "Riddick's Saber Claws". These fell within the definition of knuckledusters under Schedule 1 of the Weapons Prohibition Act 1998, and hence were prohibited weapons.
These offences were undoubtedly serious. The offences do not reflect well on Mr Orrock's character, nor his attitude to authority and his obligations as a member of a law abiding community.
I note, as counsel for Mr Orrock submitted, that although he had been on bail with respect to these quite serious charges, he had not failed to appear in court.
Mr Orrock's criminal history also includes a number of other offences with which he has been charged and which have not resulted in convictions, either because he was acquitted, the charges were withdrawn, or else courts declined to record a conviction.
There were 25 such charges. The fact that he has been charged, and acquitted or else charges have not proceeded for one of the reasons to which I have made reference, is not a relevant consideration on this application. The relevance of the fact of these charges is that in respect of many, but not all of them, he was released on bail.
I accept his counsel's submission that in respect of these charges, on no occasion did he fail to answer his bail and appear in court when required so to do. However, not all of these charges carried a term of imprisonment of the same or greater length of the terms here.
There were a number of occasions when he was in breach of a reporting condition of a bail undertaking. However, having regard to the facts of those matters, I regard them as minor, and not indicative, on their own, of any likelihood of failing to appear in answer to his bail.
However, what is clear is that the offences with which he is now confronted are far more serious than many of the matters with which he has been previously charged, regardless of whether those matters have resulted in convictions or not.
Mr Orrock's Community Ties
Counsel for Mr Orrock pointed to his community ties. It is undoubted that Mr Orrock is in a stable relationship, has family who are dependent upon him for support, and is self-employed in a business which has existed for some years.
Whilst there is no strong evidence relating to the probability of his appearance in Court, there is material based upon the expression of the Detective Schouten's opinion, that indicates that Mr Orrock has the capacity to flee the jurisdiction if he thought appropriate.
The Interests of Mr Orrock: s 32(1)(b) Bail Act
The next criterion to which s 32 draws attention, is the interests of Mr Orrock.
If bail is refused, Mr Orrock will be required to remain in custody until his matter is next before the Local Court, which is on 7 June 2012. He is able at that point to make a further application for bail. It is not possible at the moment to tell whether, by 7 June 2012, the police brief will be complete and able to be served. That appears unlikely. However, I am not presently satisfied that the length of time that Mr Orrock will be required to remain in custody, should he not be granted bail, is an undue one.
Alike with all other persons who seek bail, it is much more convenient and easier for Mr Orrock to prepare for any appearance in court and to obtain legal advice if he is not in custody. However, there is nothing about his legal needs in this case which suggest that should bail be refused, he would be unable, in any practical sense, to adequately prepare his defence and obtain legal advice.
The third matter relied upon by Mr Orrock's counsel is his need to be free for the lawful purpose of conducting his business and supporting the various members of his family.
Whilst I have regard to this need, as I have earlier remarked, Mr Orrock has not put before this Court any material which elucidates his financial position. I am not prepared to infer, in the absence of such material, that his family will not be financially supported if he is in custody.
Protection and Welfare of the Community: s 32(1)(c) Bail Act
The next matter to which attention must be given is the protection and welfare of the community. In this respect I am entitled to have regard to the nature and seriousness of the offence and whether it is likely that Mr Orrock will commit any further serious offence while at liberty on bail. However, in considering whether or not it is likely that a person will commit one or more serious offences, the Court is obliged to have regard to the provisions of s 32(2) of the Bail Act.
That subsection requires that the Court be satisfied that Mr Orrock is likely to commit one or more serious offences and that that likelihood, together with the likely consequences, outweighs the person's general right to be at liberty.
Neither party pointed to any authority as to what the word "likely" in the context of "likely to commit" one or more serious offences, meant. It seems to me that in this context, "likely" means probable. That is to say, something more than a mere possibility and something less than a certainty.
It further seems to me that in considering this subsection, a court needs to be satisfied that there has been identified a serious offence of a kind or type which it is likely that the applicant for bail will commit. I do not mean that it is necessary for there to be identified for the Court with precision the identity of an offence, its timing, place and any other particulars relating to it. But there seems to me, having regard to the terms of s 32(1)(c)(iv) to be a need for there to be identified the nature or type of the serious offence, which it is said the applicant is likely to commit.
There is no definition of "serious offence" in the Act. Again, some assistance with determining the meaning of that expression is to be found in subsection (2) where, together with the likely consequences of such an offence, the Court must consider whether the person's general right to liberty is outweighed. Clearly, the serious offence is not a trivial one. However, depending on the circumstances, an offence that carried a maximum of 12 months imprisonment, or perhaps, even 5 years imprisonment, may not fall within the definition. Very much will depend upon the nature of the offence, the identity or identities of any specific victim, or class of persons in which such a victim falls, and since one is considering the broad proposition of protection of the community, what consequences such an offence may have for the community.
Subsection 2A of s 32, provides some indication as to whether an offence is a serious one. It refers to the fact of whether an offence is of a violent nature and what the consequences of the offence will be.
The features of the offence which has brought Mr Orrock before the Court are, I am satisfied, serious. They involve:
(a) significant damage to a vehicle in public ownership which is designed to be used for, and was being used in, the protection of the community and maintenance of law enforcement obligations;
(b) a willingness to take the law into his own hands;
(c) a deliberate defiance of authority;
(d) a demonstrated unwillingness to accept the lawful activities, in the pursuit of law enforcement, of members of the police force; and
(e) a belief that Mr Orrock was entitled to disregard the law and engage in dangerous conduct when he determined that he was so entitled.
I am satisfied that having regard to the nature of this offence and the seriousness of it, the fact that Mr Orrock has demonstrated that this is not the first occasion in which he has engaged in unlawful conduct, nor is it the first occasion upon which he has acted in defiance of the law and/or lawful authority, all combine to make it likely that he will commit further serious offences if at liberty on bail. I am satisfied that these offences are likely to be violent acts in defiance of authority, committed in circumstances where he alone judges that such conduct is both necessary and appropriate.
Such violence has an adverse affect on the community generally and may, if the violence is directed towards any one individual, have a significant adverse affect on that victim. However, even if no victim has been identified, this particular feature is of little or no weight.
I am satisfied that the protection and welfare of the community and the likelihood of his committing further serious offences if at liberty on bail, outweigh his general right to be at liberty.
Summary
From the foregoing, I am satisfied that, having regard to the nature and seriousness of the offence with which he is charged, the strength of the police case, the criminal history of Mr Orrock, that there is a real risk that, and it is unlikely that, Mr Orrock will appear in Court in respect of offences for which bail is being considered. Further, I am satisfied that the protection and welfare of the community, in particular having regard to the violent nature of the offence and the likelihood that he will commit further serious offences, require that the bail review should be upheld and Mr Orrock's bail should be revoked.
Orders
I make the following orders:
(1) Application for review of the decision of Huber LCM in the Central Local Court on 26 April 2012 to grant bail to Mr Orrock be upheld.
(2) The following decision be substituted for that decision, namely that Mr Orrock's application for bail be refused.
(3) I revoke Mr Orrock's bail granted on 26 April 2012 and entered on 27 April 2012.
(4) I direct, pursuant to s 48(5) of the Bail Act, that a warrant issue committing Mr Orrock to prison.
**********
Decision last updated: 08 May 2012
0
4