Ornig v The State of Western Australia
[2015] WASC 131
•14 APRIL 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ORNIG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 131
CORAM: CORBOY J
HEARD: 25 MARCH 2015
DELIVERED : 14 APRIL 2015
FILE NO/S: MBA 8 of 2015
BETWEEN: MATTHEW JOHN ORNIG
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Applicant a member of an outlaw motorcycle gang - No new principles
Legislation:
Bail Act 1982 (WA), cl 1 and cl 3, pt C, sch 1
Result:
Application for bail granted
Category: B
Representation:
Counsel:
Applicant: Mr S Vandongen SC
Respondent: Mr B 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) WAR 99
S v The State of Western Australia [2015] WASC 2
CORBOY J:
(These reasons were delivered orally and have been edited from the transcript.)
Matthew John Ornig is charged that on 30 September 2014 at Ridgewood he, with intent to do some grievous bodily harm to Gary Robert Bedggood, did grievous bodily harm to Gary Robert Bedggood, contrary to s 294(1) of the Criminal Code (WA). Section 294(1) of the Code provides that:
Any person who, with intent to maim, disfigure or disable any person or to do some grievous bodily harm to any person or to resist or prevent the lawful arrest or detention of any person -
(a)unlawfully wounds or does any grievous bodily harm to any person by any means whatsoever, is guilty of a crime and is liable to imprisonment for 20 years.
Six persons are also charged with doing grievous bodily harm to Mr Bedggood: Robert Wayne Doodson, Jamie Frederick Gin, Ryan Keith Peak, Shane Jeffery Lee, Jesse Francis Copeman and Rachel Marie Cantrill.
Mr Ornig was arrested on 12 November 2014. He applied for but was refused bail on the following day. He has remained in custody since that application. He has renewed his application for bail. Mitchell J granted one of Mr Ornig's co‑accused bail on 27 January 2014: S v The State of Western Australia [2015] WASC 2 [27].
The remaining co accused are currently detained in custody. I have become aware this morning that one of Mr Ornig's co‑accused has an application for bail to be heard today by another judge and I understand that Hall J has refused bail on an application by one of Mr Ornig's other co‑accused. The State opposes Mr Ornig's application for bail. However, I have concluded that the application should be granted for the reasons that follow.
The statement of material facts
The statement of material facts alleges that Mr Ornig is a nominee (prospective) member of the Rebels outlaw motorcycle gang, Northern Suburbs chapter. Mr Ornig's male co‑accused are also alleged to be members or nominee members of that chapter.
It is further alleged that on the evening of 30 September 2014, Mr Ornig and his co-accused formed a common intention to assault Mr Bedggood. Ms Cantrill enticed Mr Bedggood to go to a house that she occupied in Ridgewood. Mr Ornig and the other male co‑accused were at a nearby house in Clarkson. At least one of them was armed with a baseball bat.
Mr Ornig and the male co‑accused travelled in a vehicle to Ms Cantrill's house where they confronted and attacked Mr Bedggood. Mr Bedggood was struck repeatedly to the head, torso and limbs with a baseball bat. Mr Ornig and the male co‑accused then returned to the house in Clarkson, leaving Mr Bedggood seriously injured and without assistance on the ground at the front of Ms Cantrill's house.
Mr Bedggood struggled to his vehicle and managed to drive himself home. He was discovered by his mother, semi‑conscious and moaning in pain, on the ground. He was transported by ambulance to the Royal Perth Hospital. He was found to have suffered a fractured skull and a related wound to his head, a broken arm, hand and leg. He underwent surgery and was subsequently admitted to the State Trauma Unit. He remained in hospital for over three weeks.
Mr Ornig was arrested on 12 November 2014. He declined to provide an explanation for his involvement in the alleged assault.
The State's further allegations
The State provided a further outline to the facts that will be alleged against Mr Ornig at trial. The State alleged in summary that CCTV film was seized from an address in Clarkson. The film showed a number of men, including Mr Ornig, entering a vehicle. At least one person was armed with a baseball bat. The film also showed six men return in the vehicle to the Clarkson address, approximately 12 minutes later. Mr Ornig was driving the vehicle, Mr Doodson was in the front passenger seat and Mr Lee was amongst the other men. One man had a baseball bat.
The assault occurred at approximately 11.50 pm. A neighbour made an emergency services call at 11.52 pm. The CCTV film showed the men leaving the house in Clarkson at about 11.43 pm and returning at about 11.55. (The times have been adjusted for an inaccuracy in the various cameras' clocks.)
Mr Bedggood identified Mr Doodson and a person called Shane as being two of the men who had attacked him. Further, Mr Lee had contacted Ms Cantrill just before and immediately after the assault, by telephone.
In a witness statement dated 10 October 2014, Mr Bedggood stated that he was invited to Ms Cantrill's house for dinner on the evening of 30 September 2014. At one point in the evening Ms Cantrill, her partner and Mr Bedggood went into the garage to have a cigarette. Mr Bedggood heard a car arrive while they were in the garage. He and Ms Cantrill went back into the house and then Mr Bedggood returned to the garage.
He opened the door of the garage and saw a vehicle parked in the driveway. Some people were standing outside. He thought that there were about eight people. He recognised Mr Doodson and a person who he knew as Shane and who he considered to be a close friend of Mr Doodson. Mr Bedggood tried to run out of the garage and away from the men but he was attacked and hit numerous times with a baseball bat. Mr Bedggood described a history of animosity between himself and Mr Doodson and people associated with Mr Doodson in a further statement dated 2 December 2014.
Mr Bedggood was asked to participate in a series of digiboard identifications. One digiboard examined by Mr Bedggood contained Mr Ornig's photograph. The witness conversation for that image identification recorded that Mr Bedggood stated that none of the persons depicted in the Digiboard were 'from this assault'. However, he identified Mr Ornig and another person as being persons that he recognised 'from another assault'.
The prosecution brief contains a number of photographs that were images taken from the CCTV film referred to in the statement of material facts. Mr Ornig was identified as one of the people captured in those photographs. The photographs recorded the male accused, including Mr Ornig, getting in and out of that vehicle at the house in Clarkson and at least one person holding a baseball bat both as the men leave and when they return.
I have reviewed the CCTV film. The film was seized from multiple cameras and showed, as the State alleges, at least one person carrying a baseball bat as a group of men go to a car, which I understand to have been that identified as belonging to Mr Doodson. The film also showed a different person returning and going into the house with a baseball bat.
The evidence in the prosecution brief would, if accepted, establish that Mr Ornig was with the other male accused persons when the vehicle – was with the other male accused persons when the vehicle left and returned to the house in Clarkson.
There was no evidence that Mr Ornig actually assaulted Mr Bedggood. The State's case, on the material contained in the prosecution brief and as alleged in the statement of material facts, is that Mr Ornig was a party to the assault pursuant to s 8 of the Criminal Code.
The State's submissions
The State opposes bail being granted on three grounds. First, that Mr Ornig may interfere with witnesses; second, that he may fail to appear in court in accordance with his bail undertaking; and third, that he may commit an offence if he is released from custody.
The State emphasised Mr Ornig's association with the Rebels outlaw motorcycle gang in opposing bail. The association was not denied by Mr Ornig. The State relied on an affidavit made by Detective Constable Medlock to establish the association between Mr Ornig and the Rebels outlaw motorcycle gang. Detective Medlock was the police officer responsible for investigating the assault allegedly committed on Mr Bedggood.
Detective Medlock stated in his affidavit that intelligence held by the Western Australian Police indicated that:
(a)Mr Ornig was a nominee member of the Rebels outlaw motorcycle gang, Northern Suburbs chapter;
(b)Mr Doodson was the president of that chapter and Mr Ginn and Mr Peak were patched - that is, full members of the chapter. Mr Lee and Mr Copeman were nominee members of the chapter.
(c)The Rebels outlaw motorcycle gang is an international outlaw motorcycle gang with chapters in more than 20 countries. The gang is the largest outlaw motorcycle gang in Western Australia and in Australia. The gang 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.
Detective Medlock further stated in his affidavit that:
(a)the CCTV film referred to in the statement of material facts was seized from an address in Clarkson that was occupied by another patched member of the Rebels outlaw motorcycle gang.
(b)Mr Lee admitted during an electronically recorded interview with the police, that he attended at the address in Clarkson for a 'church night';
(c)data downloaded from mobile phones used by Mr Ginn and Mr Copeman contained a text message apparently connected with organising a meeting at a house that evening;
(d)the vehicle shown in the CCTV film was registered in the name of Mr Doodson. The film showed Mr Ginn carrying a baseball bat and getting into the vehicle. It also showed Mr Copeman holding a baseball bat when the group returned to the house in Clarkson.
Mr Ornig's personal circumstances
Mr Ornig was born in Western Australia on 25 February 1987. He has a history of working for a particular labour hire company and has participated in various skill training courses through that company. He is described as a reliable employee in a letter from the company's managing director. The letter states that the company would be willing to employ Mr Ornig if he was released on bail.
Mr Ornig has a partner who is a full‑time university student and who also works part‑time. She states in an affidavit that she has made that she is currently in the third year of her studies and juggles two jobs around her studies. She further states that Mr Ornig's absence while he has been detained in custody has adversely affected her health and her financial circumstances.
Mr Ornig has a criminal record. He was convicted in July 2010 of an offence under the Public Transport Authority Regulations and with giving false personal details to the police. He was fined a total of $350. In December 2011, Mr Ornig was convicted in the District Court of possessing a prohibited drug with intent to sell or supply. He was sentenced to 2 years' imprisonment, conditionally suspended for 18 months.
In July 2013 he was convicted of driving a motor vehicle without authority. He was fined $200.
The relevant principles
The principles to be applied in determining an application for bail are well established and were identified by the Court of Appeal in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) WAR 99.
In summary:
(1)The Bail Act was intended to provide a comprehensive code on the subject of bail.
(2)The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may be properly granted having regard to the provisions of cl 1 and cl 3 of pt C sch 1 to the Act.
(3)Clause 1 and pt C contains no express statutory presumption for or against the grant of bail. Rather, the judicial officer is required to exercise the discretion having regard to the questions in pars (a) to (g) and to any other question that the decision‑maker considers relevant, that is, the correct approach to the exercise of the discretion is sourced in and guided by the matters referred to in pars (a) to (g) of cl 1.
(4)The court is required to consider and answer the mandatory questions before commencing the balancing process inherent in the exercise of the discretionary power to grant bail. The answers to the mandatory and other relevant questions provide a factual basis for the exercise of the discretion.
(5)All of the mandatory questions with the exception of par (e) are directed to whether there are positive grounds for refusing bail. The matters in par (e) go to the question of whether it is possible to neutralise wholly or sufficiently the grounds for refusing bail. The focus of the questions that direct attention to whether there are proper grounds to refuse bail is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
(6)The Act does not place a legal onus on any party to the application. However, the structure of cl 1 is such that bail will be granted if there is no material before the court providing a proper foundation for refusing bail. Consequently, it will often be for the State to furnish the material required to provide a proper foundation for refusing bail.
(7)The word 'may' in pars (a) and (d) of cl 1 means the possibility of the event occurring. So, for example, the court is required to answer the question whether if the accused is not kept in custody there is a possibility that he or she will fail to appear in court with compliance with his or her bail undertakings.
(8)It may be that having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused upon conviction are sufficient to enable the court to conclude that the accused may fail to appear in court in compliance with his or her bail undertaking and the existence and extent of that possibility may, having regard to the answers of all of the matter to questions in cl 1, require or justify the refusal of bail. However, the common law presumptive approach for or against bail is inconsistent with the approach required by the Bail Act.
The questions posed by pars (b), (d) and (f) of cl 1 pt C do not arise in this application. It is necessary to consider the questions posed in par (a) of cl 1, having regard to the matters specified in cl 3. The evidence is relevant to those questions will also inform the answers to the questions contained in pars (c), (e) and (g) of cl 1.
The application by the State
The State opposed the application for bail made by S on the same grounds as those relied on to oppose Mr Ornig's application. Further, the evidence presented by the State in S's application is similar to that received in this application. There are some findings that have been made in this application that are consistent with the findings and reasoning of Mitchell J in S. That is not surprising given the similarities between the applications. However, the findings made in determining Mr Ornig's application are the result of an independent review of the evidence and the matters that must be assessed according to cl 1 pt C read with cl 3. In particular, the evidence of Mr Ornig's involvement in the alleged offence and his personal circumstances are necessarily different to those of S and of the other accused.
The alleged offence
Mr Ornig's solicitor, Mr Rogers, has made an affidavit in support of Mr Ornig's application. Mr Rogers states that he has been instructed that Mr Ornig intends to plead not guilty to the charge alleged against him. Mr Ornig does not otherwise dispute the matters alleged in the statement of material facts or the material contained in the prosecution brief.
It will be apparent from the summary of the statement of material facts and the prosecution brief provided earlier in the reasons that the case against Mr Ornig is entirely circumstantial. There is also a difficulty for the prosecution in that Mr Bedggood did not identify Mr Ornig as one of his assailants.
The difficulty is more than just that Mr Bedggood did not recognise Mr Ornig as being among those who attacked him. Rather, Mr Bedggood positively identified Mr Ornig as a person who had been involved in an earlier assault but was not one of the people who had been involved in the assault that is the subject of the present charge. There may be explanations for Mr Bedggood's identification that are consistent with Mr Ornig being a party to the offence alleged by the State. However, Mr Bedggood's evidence diminishes the strength of the State's circumstantial case against Mr Ornig to some extent.
I would describe the State's case in the material disclosed in the prosecution brief as strong and consider that there are reasonable prospects of the State securing a conviction, notwithstanding Mr Bedggood's evidence regarding identification. The State's case against Mr Ornig, however, is not as apparently strong as the State's case against S. Mr Bedggood had identified S as being among the men who had attacked him.
Plainly, the offence allegedly committed by Mr Ornig is serious. An immediate term of imprisonment would be the only appropriate sentence on the material presented in this application. I will return later to the matter specified in par (g) of cl 1. That paragraph focuses on the alleged circumstances of the offence rather than on the charge or the statutory provision that creates the offence that is the subject of the charge alleged against Mr Ornig.
Clause 1(a) and cl 3
For the present, I am only considering those matters that are identified in cl 3 as being relevant to par (a) of cl 1. I have already noted that Mr Ornig has a criminal record. However, he has only been previously convicted of one offence that could be described as serious. He otherwise has an apparently good employment record. He is in a stable relationship. He has a place of residence and his personal circumstances appear to be relatively settled. He apparently has reasonably close family ties. The partner of his brother is prepared to act as a surety with an undertaking fixed in a substantial amount. Mr Ornig has no history of failing to comply with any bail undertaking that he may have been given in the past.
The principal matter concerning Mr Ornig's character on which the State relies is his association with the Rebels outlaw motorcycle gang and the information held by the police regarding the activities of that gang. I will return to Detective Medlock's evidence regarding those matters when I consider the risk of Mr Ornig interfering with witnesses or offending while in the community on bail.
However, I note that Mr Ornig has not renounced his association with the Rebels and I have taken into account Detective Medlock's evidence concerning the criminal nature of the gang in assessing Mr Ornig's character for the purpose of this application. I do not consider that there is a significant risk that Mr Ornig will fail to appear in court as required if he is granted bail. He has no record for breaching a bail undertaking or the conditions on which the term of imprisonment imposed by the District Court was suspended. He is in a stable relationship and has a fixed place of residence. The conditions to be imposed on his bail will, in my view, sufficiently protect against the risk of flight.
The risk of offending identified by the State is the risk that Mr Ornig, either alone or in conjunction with other members of the Rebels may engage in some criminal activity for the purpose of deterring Mr Bedggood from giving evidence or giving evidence in accordance with the statements that he has provided to the police. Consequently, the same concern underlies the State's opposition to the grant of bail on the grounds that Mr Ornig may interfere with witnesses and that he may offend if released on bail.
I accept the connection between Mr Ornig and his co‑accused is their membership or nominee membership of the Northern Suburbs chapter of the Rebels outlaw motorcycle gang. I further accept that the Rebels is an organisation involved in serious criminal activities, including crimes of violence. However, I agree with the observations made by Mitchell J concerning the evidence provided by Detective Medlock about the activities of the Rebels.
I appreciate that the evidence by its nature will be expressed in the form of general conclusions derived from unidentified sources of information. I also understand that the evidence of association may be significant, having regard to the culture of outlaw motorcycle gangs. Nevertheless, it is difficult to determine the weight to be given to such evidence in the context of an application for bail.
The material in the prosecution brief suggests a history of animosity between Mr Bedggood and, at least, Mr Doodson. It is not clear whether their conflict is personal or whether it has some connection with the activities of the Northern Suburbs chapter of the Rebels. It is clear, however, that on the State's case Mr Ornig was prepared to join with other members of the Northern Suburbs chapter of the Rebels to commit a serious assault on Mr Bedggood, apparently as retribution for some past act. As Mitchell J observed, and I quote:
The motivation for further retribution is presented by the fact that members of the Rebels organisation are now charged with a serious criminal offence in which the complainant is a serious cooperating witness [46].
That is a matter that I have taken into account in determining the risk of offending and the risk that Mr Ornig may interfere with witnesses, in particular, Mr Bedggood. Indeed, I would add that the State's case substantially rests on Mr Bedggood's complaint and his evidence of the circumstances in which he was allegedly assaulted. However, as senior counsel for Mr Ornig emphasised, the relevant risk is that of Mr Ornig offending and/or the risk of him interfering with witnesses and not the risk that members of the Rebels Outlaw Motorcycle Gang may engage in some criminal activity designed to deter Mr Bedggood from giving evidence or giving evidence according to the statements that he has provided to the police.
As I have already noted, Mr Ornig has not renounced his association with the Rebels and that is a matter of some concern in determining this application. However, Mr Ornig is only a nominee member. He has no criminal record for offences involving violence and he has an incentive to comply with bail conditions. He has not been identified as one of the persons who actually assaulted Mr Bedggood and, unlike S, he does not appear to have been a close friend of Mr Doodson. Mr Ornig has indicated through his counsel that he is willing to comply with conditions similar to those imposed by Mitchell J on the grant of bail.
The only witness who is indispensable to the State's case is Mr Bedggood. I consider that the possibility of Mr Ornig interfering with Mr Bedggood or any other witness can be sufficiently removed by the conditions on which I propose to grant Mr Ornig bail. The conditions to be imposed will reflect and, in my opinion, will be sufficient to remove the possibility of Mr Ornig offending by seeking to interfere with Mr Bedggood or more generally through his association with the Rebels outlaw motorcycle gang.
Other mandatory questions
I will impose conditions that, in my view, will sufficiently remove the possibility of Mr Ornig committing an offence connected with prohibited drugs, given that he has a previous serious conviction for possessing a prohibited drug with intent to sell or supply. The State does not contend in its written submissions that the alleged circumstances of the offence amounted to wrongdoing of such a serious nature as to make the grant of bail inappropriate. Nevertheless, I am required by cl 1 to consider that matter.
In that regard I agree with and greatly adopt the observations made by Mitchell J in S, at [54] to [59] of his Honour's reasons. Like his Honour, I am not satisfied that the circumstances of the offence allegedly committed by Mr Ornig are so serious as to themselves make it inappropriate to release him to the community on bail. In Mr Ornig's case there is no evidence that he actually participated in the assault on Mr Bedggood.
That, of course, is not to diminish the significance and the seriousness of his alleged involvement, as somebody who planned the assault on Mr Ornig and who was seen driving the vehicle which is alleged to have conveyed those who are accused of the assault on Mr Bedggood to the house where the assault is said to have occurred. I do not consider that it is necessary to impose a home detention bail condition and so I will not order a home detention report. I will, however, impose a curfew as part of the conditions on which I will grant bail.
Having regard to the matters that I have identified in the reasons, I consider in the exercise of my discretion that it is appropriate that bail be granted. I have taken into account the further factor that the prosecution of the charge against Mr Ornig and his co‑accused still is at a stage in the Magistrates Court where there has not been a committal hearing and so it is likely that there will be some time before the trial is held in the District Court.
I will indicate the conditions on which I propose to grant bail and I will hear counsel further on any submissions that they wish to make about those conditions:
(a)Mr Ornig is to provide a personal undertaking in the amount of $50,000. Mr Ornig's proposed surety, Ms Tanya Anne Welsh, is to enter into an undertaking in the amount of $50,000.
(b)Mr Ornig is to surrender his passport to the Supreme Court by 4 pm on 26 March 2015 and he is not to apply for the issue of a passport.
(c)Mr Ornig is to remain in Western Australia unless permitted to leave by an order made by this court.
(d)Mr Ornig is not to go within 200 m of any interstate or international point of departure.
(e)Mr Ornig is not to contact or communicate with in any way, whether directly or indirectly, Bedggood, any of his co‑accused or any witness or potential witness in this trial. The exception will be that Mr Ornig's legal representatives may contact witnesses proposed to be called by the defence and may communicate with legal representatives for each of the co‑accused.
(f)Mr Ornig is not to contact or communicate with in any way, whether directly or indirectly, any member or nominee member of the Rebels Outlaw Motorcycle Gang.
(g)Mr Ornig is to immediately notify Detective Constable Medlock of any attempt by any member or nominee member of the Rebels Outlaw Motorcycle Gang to contact or communicate with him, whether directly or indirectly.
(h)Mr Ornig is not to visit or take phone calls from any person who is held in custody.
(i)Mr Ornig is to reside at 43 Flowerwood Way, Huntingdale, and he is to be at that address every night between 9 pm and 6 am. I have fixed those terms of reference in anticipation that Mr Ornig will be employed by the labour hire company to which reference has been made in the application and that he will be employed by that company in the building industry.
(j)Mr Ornig is to report to the officer-in-charge at the Cannington Police Station by 7 pm every Monday, Wednesday and Friday, commencing tomorrow. Again I have fixed that time to accommodate Mr Ornig's proposed employment.
(k)Mr Ornig is to notify Detective Constable Medlock immediately on being provided with an offer of employment and he is to provide Detective Constable Medlock with the details of his employment. He is to advise Detective Constable Medlock immediately if his employment ceases or any change in the location of his employment.
(l)Mr Ornig is not to be in possession of offensive weapon.
(m)He is not to be in possession of any or use any prohibited drug or illicit substance.
(n)Mr Ornig is not to consume alcohol.
(o)Mr Ornig is not to go within 500 metres of 72 Aldersea Circle in Clarkson.
In relation to the charge pending in the Armadale Magistrates Court, I will set bail on the same terms and conditions. There will be a variation, however, to ensure that there is no doubling up on the amount of the personal undertaking so that in relation to the bail to be granted for the matter in the Armadale Magistrates Court, Mr Ornig is to provide a personal undertaking in the amount of $100. That amount, of course, has been fixed by reference to the fact that I have set an undertaking of $50,000 in relation to the charge that is the subject of the application. Likewise, Mr Ornig's surety is to enter into an undertaking in a sum of $100 in respect of that bail to be granted in respect of that matter. Otherwise Mr Ornig is to be remanded to appear again in the Perth Magistrates Court on 27 March.
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