R v Millington
[2020] ACTSC 322
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Millington |
Citation: | [2020] ACTSC 322 |
Hearing Date: | 3 December 2020 |
DecisionDate: | 3 December 2020 |
Before: | Elkaim J |
Decision: | See [36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – strength of case – association with an OMCG |
Legislation Cited: | Bail Act1992 (ACT) ss 9B, 22 |
Parties: | The Queen ( Crown) Christopher Millington ( Accused) |
Representation: | Counsel A Williamson ( Crown) B Morrisroe ( Accused) |
| Solicitors Act Director of Public Prosecutions ( Crown) Sharman Robertson ( Accused) | |
File Number: | SCC 140 of 2020 |
ELKAIM J:
This is an application for bail, filed on 17 November 2020. It is supported by an affidavit of Mr T Sharman sworn on the same day.
The application falls under s 9B of the Bail Act1992 (ACT). Accordingly there is no presumption in favour of bail. The primary bail considerations are those found in s 22.
The applicant has been in custody since his arrest on 20 February 2020 on the following charges.
(a)Aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty is 20 years imprisonment, a fine of $320,000 or both.
(b)Arson by joint commission, contrary to s 117(1) of the Crimes Act 1900 (ACT), by virtue of s 45A of the Criminal Code. The maximum penalty is 25 years imprisonment.
(c)In the alternative to the second charge of arson, arson by joint commission contrary to s 404(1) of the Criminal Code by virtue of s 45A of the Criminal Code. The maximum penalty is 15 years imprisonment, a fine of $240,000 or both.
(d)Act endangering life by joint commission contrary to s 27(3)(d) of the Crimes Act, by virtue of s 45A of the Criminal Code. The maximum penalty is 10 years imprisonment.
All of the charges are alleged to have been committed on 21 November 2019.
In addition there is a related charge, alleging that on 19 February 2020 the applicant destroyed or concealed evidence by joint commission, contrary to s 706 of the Criminal Code by virtue of s 45A of the Criminal Code. The maximum penalty is 7 years imprisonment.
The applicant is said to be under investigation for other matters.
On 12 March 2020 the applicant entered pleas of ‘not guilty’ to the above charges.
On 9 November 2020, his trial was fixed to begin on 6 April 2021. There will be a criminal case conference on 8 February 2021.
The bail application was adjourned from 23 November 2020 to 26 November 2020 and then to 3 December 2020 to afford the Crown an opportunity to serve the remainder of the brief of evidence and other material relevant to the application and to enable the defence to consider that material.
Late on 25 November 2020, the AFP filed and served an application and supporting affidavit in relation to protected information, but a substantial part of the affidavit was redacted.
At the commencement of the hearing today consent orders were made in respect of certain material that had been served upon the applicant and which, pursuant to the orders was to be referred to only within a closed court.
The Crown opposes the grant of bail. The Crown says that if granted bail the applicant is likely:
(a)to disregard bail conditions and ignore the requirement to appear.
(b)to attempt to contact and intimidate witnesses.
(c)to commit further offences that significantly endanger the community.
(d)to become a target of retribution.
The Crown Case
The Crown alleges that on 21 November 2019, the applicant (who was a suspected nominee – applicant for membership – of the Comancheros Outlaw Motorcycle Gang (OMCG)) and a co-accused (Mr Langi, the Sgt at Arms of the Comancheros OMCG) and unknown persons drove to premises at Kambah in the applicant’s Mazda motor car.
The premises were occupied by a Mr Miller and his then partner. Mr Miller was a former member of the Comancheros who had cut his ties with the club and was susceptible to acts of reprisal. In January 2019, Mr Miller had become affiliated with the Nomads OMCG. In mid-2019 he assumed the position of Sgt at Arms of the Nomads.
On 21 November 2019, Mr Langi and an unknown co-offender were armed with firearms. Inside the premises, a firearm was discharged. Petrol was used to set the house on fire. The fire caused extensive damage. The occupants escaped from the back of the house.
Mr Langi was arrested on 19 February 2020. About 40 minutes after he was charged, the applicant rang a scrap metal business and arranged to “get rid of” his Mazda vehicle. At the rear of the applicant’s premises, police located clothing and shoes that had been partially burned.
Criminal history and past breach of bail
The applicant has a criminal history, but it cannot be said to be very recent. What makes it important however is that following convictions in 2017 the applicant on more than one occasion breached either bail or good behaviour order provisions.
The applicant’s criminal history demonstrates a willingness to breach bail conditions. He has, on a prior occasion, failed to appear, necessitating the issue of a warrant.
On 10 November 2020 the applicant participated in a riot at the AMC which caused extensive damage. At one stage, he was observed to have a table leg, perhaps as an improvised weapon. When directed to do so, he refused to return to his cell.
Interference with witnesses
According to the Crown:
(a)Based on protected information, police are concerned that key witnesses may be “stood over”, harmed, or their families may be harmed or threatened as a way of obtaining leverage over the witnesses.
(b)The applicant is aware of the identity of important witnesses.
(c)If remanded in custody, the applicant will be able to communicate with members of the Comancheros in relation to the intimidation of witnesses, but any communications on the topic will be limited because telephone calls can be recorded and emails can be intercepted.
(d)Witnesses remain extremely concerned about their safety.
Further offences
As stated above, the applicant is suspected of being a nominee of the Comancheros OMCG. He has associated with gang members since mid-2017. On 20 April 2020 he participated in a video call with members of the Comancheros. On 8 October 2020 he attempted to add to his visitor list two known members of the Comancheros.
A nominee qualifies as a fully patched member after undertaking tasks that often involve committing criminal offences on behalf of the OMCG.
On 18 July 2020 the commander of the Comancheros died following a physical altercation at the Kokomos Nightclub. It is possible that the Comancheros will seek retribution and will involve nominees in that endeavour.
As indicated above, the applicant has a history of breaching court orders, including by the commission of further offences.
Applicant’s safety
It is alleged that the offences occurred in the context of a dispute with a member of a rival OMCG. If the applicant is released to the community, he may be targeted because of his alleged involvement in the offences. Within the past 12 months, police believe that members of the Comancheros have committed a number of serious offences against members of the Nomads, and the commission of those offences is likely to provoke retribution.
Further, co-offenders may assert their seniority within the Comancheros to force the applicant to take sole responsibility for the offences of 21 November 2019.
Consequently, it is in the applicant’s own interests that he remain in custody. While it might be said that the applicant’s safety is a matter for his own judgement and if he wishes to voluntarily expose himself to harm it is not for the court to interfere in his decision. That may or may not be so, but just as important is that any act of harm directed towards the applicant could involve harm to other persons either immediately or in acts of further retribution.
The applicant’s case
The applicant responded to the Crown’s assertions and resistance to his application by three principal submissions.
Firstly it was submitted that the Crown case is very weak. The strength of a Crown case is specifically listed amongst the criteria stated in s 22 (s22(3)(e)). The Crown case here has two elements. There is some direct evidence and some circumstantial evidence. On any view the direct evidence is weak. The circumstantial evidence however is not weak and, to the contrary, might be described as persuasive.
It is well-known that a case brought against an accused person is not necessarily any weaker because it is a circumstantial case. It is frequently said to a jury that in considering a circumstantial case the jury should be aware that it can be as strong, or perhaps even stronger, than direct evidence. From the material I have seen that may well be the case here.
Accordingly, I reject the submission that the Crown case is weak.
Secondly it was submitted that the bail consideration form should be treated with some scepticism. The author of the form, Senior Constable Amanda Hobson, was cross-examined about its contents together whether the description in the statement of facts for 1 April 2018 concerning entry into the applicant’s father’s residence. It was suggested to her that the behaviour of the applicant’s father when greeting police at his premises was somewhat more benign than described. I agree with the suggestion, but even if the officer was, in effect, putting her best foot forward, the balance of her view is not affected and it is the balance that contains the more persuasive elements.
Thirdly, it was submitted that the applicant’s association with an OMCG was not a basis for concluding that he would commit further offences. He was free to associate with any member of an OMCG so that adverse conclusions should not be drawn simply from such association.
The contents of the form in particular the photographs and the descriptions relating to them, suggest the association is somewhat stronger than asserted.
Conclusion
In summary the applicant has shown that he is not averse to breaching supervisory orders. Bail conditions, are of course, a form of supervisory orders. Next the case against him, when the circumstantial evidence is taken into account, is far from weak. The applicant’s association with an OMCG may have elements of innocent friendship. I cannot be confident that that is the case.
I think the case against the grant of bail is overwhelming. The application filed on 17 November 2020 is dismissed.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 3 December 2020 |
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