R v Mitchell
[2015] VSC 144
•12 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 0017 of 2015
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for bail by TOBY GEOFFREY MITCHELL |
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JUDGE: | KING J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6, 10 March 2015 |
DATE OF JUDGMENT: | 12 March 2015 |
CASE MAY BE CITED AS: | R v Mitchell |
MEDIUM NEUTRAL CITATION: | [2015] VSC 144 |
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Charges of extortion, blackmail and threat to kill.
Bail refused ‑ The matter of bail to be reconsidered by the magistrate hearing the committal.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Nibbs | Office of Public Prosecutions |
| For the Applicant | Mr C Dane QC with Ms C Gwynne | Croxford Partners |
HER HONOUR:
Charges
On 11 January 2015, the applicant, Toby Geoffrey Mitchell, was arrested and charged with the following offences: four counts of extortion of Bradley Harris on 10 January 2015 relating to a demand by the applicant that Bradley Harris provide him with the sum of $300,000, accompanied with a threat to either kill (Charge 1), or inflict injury (Charge 3) on Bradley Harris by shooting him, and a threat to kill the infant, Olive Harris, daughter of Bradley Harris (Charge 2), or to injure Olive Harris (Charge 4). Charge 5 is a charge of blackmail. Charge 6, a threat to kill Bradley Harris. Charge 7 a threat to kill the infant, Olive Harris. Charge 8, an alternative charge of threat to inflict serious injury upon Bradley Harris. Charge 9, a threat to inflict serious injury upon the infant Olive Harris. Charge 10, a charge of prohibited person using a firearm. Charge 11, carrying a firearm whilst committing an indictable offence. Charge 12, intentionally causing injury to Bradley Harris. Charge 13 is an alternative of recklessly causing injury to Bradley Harris. Charge 14, a charge of assault of Bradley Harris. Charge 15, charge of possessing a prohibited weapon without exemption or approval relating to a belt buckle with a double edged dagger, as is Charge 16. The final charge, Charge 17 is possessing a controlled weapon without lawful excuse.
With the exception of Charges 15-17, these offences are alleged to have occurred on 10 January 2015 in South Melbourne. Charges 15-17 relate to the execution of the search warrant on the applicant’s premises. The applicant was remanded in custody, and on 14 January 2015 made application for bail, heard before his Honour, Magistrate Holzer. That application was rejected and the applicant was remanded in custody until 6 May 2015. An extension on the service of the hand-up brief was granted until 25 March 2015.
The Application
The applicant, being charged with an indictable offence where he is alleged to have used or threatened to use a firearm, is required to show cause to justify a grant of bail pursuant to s 4(4)(c) of the Bail Act 1977. The applicant in his notice of intention to make application for bail states the varied grounds on which bail is sought, submitting that the totality of those circumstances demonstrate that he has shown cause why his detention in custody is not justified. They are:
(1)that he has a stable residence at 1608/100 Harbour Esplanade, Docklands;
(2)that he is responsible for the day to day operations and running of a business ‘City of Ink’ located at 216 Clarendon Street, South Melbourne;
(3)the known and potential delay in the conclusion of the charges;
(4)a weak Crown case;
(5)the applicant’s medical conditions and regime; and
(6)the availability of a surety in the amount of $300,000.
The application for bail made by the applicant is opposed by the police on the following grounds:
(1)that the applicant is an unacceptable risk that if released on bail he would commit further offences;
(2)that the applicant is an unacceptable risk of interfering with witnesses;
(3)that the applicant is an unacceptable risk of endangering the safety or welfare of members of the public; and
(4)that the applicant is an unacceptable risk of failing to answer his bail if released.
Alleged offending
The alleged circumstances of the offending are set out in the affidavit of Katrina Ann Richter, solicitor, sworn 4 March 2015 at exhibit KR4. In summary, the circumstances are that some time prior to 10 January 2015, the complainant received a sizeable inheritance. He has known the applicant Toby Mitchell for approximately 12 years and has met and had dealings with him on a somewhat regular basis. The applicant is the former national sergeant at arms of the Bandidos Outlaw Motorcycle Gang and although no longer a part of that organisation, it is alleged by the police that he still has significant connections and associations to other outlaw motorcycle gangs and organised crime entities both domestically and internationally. The complainant was a former ‘prospect’ of the Bandidos outlaw Motorcycle gang.
The summary indicates that the complainant was feeling intimidated by the applicant (although does not make clear the basis of the intimidation at that earlier stage). He decided to seek protection against Mitchell and sought out one Michael Murray, the state commander for the Comanchero Outlaw Motorcycle Gang. They made arrangements to meet, and during that meeting, the complainant offered to loan Murray money in order to ingratiate himself with Murray. For reasons that are not necessary to detail at this stage, that did not eventuate, but the complainant says that shortly after those discussions the applicant contacted him asking why he was prepared to give money to Murray but had given him, the applicant, nothing.
The complainant says a demand was made for $300,000 and that the demand from the applicant became more persistent in the following weeks. He contacted police for assistance as a result of his increasing anxiety about the threats he claimed were being made by the applicant. He was, however, unwilling to lodge a formal complaint at that stage. There are no telephone intercepts available that support that evidence, the intercept on the applicant’s registered phone having commenced on 1 January 2015.
He was given advice, and whether as a result of that advice or of his own volition, a matter not made clear to me, arranged to meet with the applicant on 10 January 2015. This meeting, on any version of the events, was at the instigation of the complainant. At approximately 12.10pm on that day, the complainant, together with his three month old daughter Olive who was in a child’s pram, attended at the premises of ‘City of Ink’ tattoo shop in Clarendon Street, South Melbourne. The meeting was initially friendly. A person described by the complainant as having the name of ‘Charlie’, a man around the age of 60, was standing near to the table after they had sat down. That person would appear to have been the father of the applicant.
The applicant is alleged to have asked the complainant if he had the money. The complainant informed the applicant he was having trouble getting it released from the trust fund and therefore was unable to lend him the money. The complainant said that he was immediately punched to the left side of his face which caused a cut above the eye which bled. Both the complainant and the applicant stood up and the complainant said the applicant then immediately pulled out a black semi-automatic handgun from his jeans and shoved it into his stomach. The older male, at that stage, is alleged to have approached the table and attempted to shield the applicant holding the handgun at the stomach of the complainant from the sight of persons who were nearby. It is estimated that there were approximately 25 to 30 people nearby or in the vicinity.
The applicant is then alleged to have threatened the complainant and stated words to this effect:
I’ll shoot you cunt if you don’t give me the money and take your kid away or I’ll shoot it as well.
The complainant immediately left and as he did so he could hear Mitchell laughing. He returned to his vehicle where his partner and another friend were located and the friend drove their vehicle to the St Kilda Road Police Complex where the assault was reported.
The investigation and the evidence
Subsequent to that alleged offending, the applicant is recorded as contacting the owner of a neighbouring business asking when he could attend at that neighbour’s business as it was then closed. The crown submit that the applicant was attempting to ensure that no incriminating CCTV of the assault was able to be obtained. He is also heard in the background of another telephone conversation stating that there was blood on the tables. An associate of the applicant attended a neighbouring business where the assault is alleged to have occurred, asked the staff to clean blood off the table and another person ensured that the bottle drunk from by the complainant was thrown away. The applicant, as earlier indicated, was arrested the following day. Warrants were executed at both his home and business address but no firearm was located. Upon investigation it was found that the restaurant ‘What da pho’, does not have CCTV, that the CCTV in the applicant’s premises had not been used for some months, and the CCTV footage from the neighbouring businesses do not show the area where the incident is alleged to have occurred.
A forensic examination located blood on the outdoor heater of the café where the assault is alleged to have taken place as well as in the footpath and in the gutter adjacent to where the complainant had parked his vehicle further along the street in South Melbourne.
Detective Acting Sergeant Chris O’Brien gave evidence in the Magistrates’ Court before his Honour Magistrate Holzer on 14 January 2015 and I take note of certain parts of that evidence for this application. That includes the following matters, which are based upon knowledge, information and belief:
· The complainant in this matter was a former Prospect of the Bandidos until approximately 10 years ago. He is known to the police and does have prior convictions, including convictions relating to false reports to the police some 17 years previously.
· The initial request for the $300,000 was made late in 2014 and it was intended to be a loan. That the discussion was about borrowing $300,000 and receiving $700,000 in return. It was the complainant’s belief that it was for some illicit activity.
· That the complainant felt under pressure because of who the applicant was, the people the applicant associated with, together with his general background, such that he did not believe that he would be able to avoid providing the sum of $300,000, which is when he contacted the police.
· That there are four independent witnesses, three of whom have made written statements and one who has indicated a willingness to make a written statement. All have observed the assault. None has sighted the gun.
· That O’Brien had significant concern that there were serious attempts being made to locate the complainant in this case and gave an example relating to someone asking if a particular dog belonged to the complainant when a friend was out walking it.
· That a number of the people who have made statements have indicated their total fear at being involved in this case, with one indicating they do not intend to give evidence as a result.
· That the applicant travels around four times a year to Thailand and has networks and associates in outlaw motorcycle gang areas with Chapters in South East Asia.
· That the sole source of information about the gun and its description comes from the complainant, despite this being alleged to have occurred in a public place during a busy Saturday.
· He agreed there was no independent evidence gathered by either the warrant material, or any other witness, as to an amount of $300,000 being demanded by the applicant.
· He agreed that the applicant was shot first in November 2011 and again on 2 March 2013 and that he was on bail on both of those occasions.
· That the applicant has no history of gun offences and he is aware of the health issues that were summarised by Judge Smallwood when sentencing him in respect of the affray charge in 2013.
The Applicant’s circumstances
(a) Medical conditions and prison regime
As previously stated the applicant was shot in 2011 and also 2013. The shooting in 2011 was a very serious matter and the applicant was exceedingly unwell as a result. He was in intensive care and under medical treatment for a lengthy period.
Medical reports have been exhibited to the affidavit of Micky Milardovic, legal practitioner, a solicitor at Croxford Partners, solicitors for the applicant. Exhibit MM1 to the affidavit is a transcript of the proceedings in the Magistrate’s court, which I have read and to which I have earlier referred.
Exhibit MM2 are a series of reports from
· Dr Roderick Towie dated 29 October 2013 and 25 February 2014. I have subsequently heard evidence from Dr Towie in this application.
· Dr Warren Sipser, Chiropractor, dated 20 September 2013
· Mr Ian McKinnon, psychologist, dated 29 October 2013
Exhibit MM3 is a further report from Dr Warren Sipser, chiropractor, dated 21 February 2015. Counsel for the applicant has disavowed any reliance upon the reports from Dr Warren Sipser, and accordingly I have no need to further refer to those reports in this application.
In Dr Towie’s report in 2014 he adopted his report from 2013 and stated that the renal function of the applicant remained at 30% of normal, psychologically he still suffered symptoms of PTSD, and was receiving counselling from Ian MacKinnon fortnightly. His medications were unchanged and he was awaiting surgery for his hernia.
The report of 29 October 2013 was addressed to the Presiding Judge of the County Court, stating that the applicant had been a patient of his for 10 years. In that report he said that Mr Mitchell had been a complainant of a shooting on 28 November 2011, resulting in a prolonged inpatient stay at the Royal Melbourne Hospital. He had 21 operations in the first week and had nine subsequent operations. He lost his right kidney, gallbladder and three-quarters of his liver — his recovery has been complex, protracted and is ongoing. He stated:
Although Mr Mitchell appears strong and healthy, from a medical aspect he is vulnerable and unstable. His renal function is of concern having recently dropped to 10% of normal function raising the possibility of dialysis and/or kidney transplantation. Fortunately his renal function has improved to 30% of normal but vigilant monitoring by his renal physician is mandatory. Mr Mitchell has post-traumatic stress disorder with anxiety, depression and insomnia. He also suffers from chronic pain due to the multiple injuries he endured and operations he required. His current medications are Pristiq (anti-depressant), Stilnox (hypnotic) and Diazepam (anxiolytic). His prognosis for recovery in the long term is uncertain. He will have permanent physical and psychological consequences. I expect his treatment and rehabilitation will take at least another year unless unforseen complications arise. Mr Mitchell requires further surgery with two operations planned in the near future, repair of his incisional hernia and removal of bilateral hydroceles. His pre and post-operative care will be complex[1].
[1]Exhibit MM1 – medical report 29 October 2013
Dr Towie, the applicant’s treating GP for the past 10 years and a registered medical practitioner for 53 years, was called to give evidence, predominately relating to a test that had been carried out by doctors employed by Justice Health, who were attending the applicant at the prison. The test was on blood that had been taken at the prison on 23 February 2015 and was tested for what is called general chemistry, and endocrinology - androgen studies.
In examination in chief he was asked if there were specific tests that can be ordered to discover the progress of the applicant’s renal function and he said there were one or two tests that could be ordered, an EGFR, and a CREATININE test. The doctor indicated that both of those were specific to kidney functioning. When asked by the applicant’s counsel about the tests that were administered, this exchange took place:
Mr Dane: Take us through each one? - - - Sodium, potassium chloride and bicarbonate, but they’re not renal function tests.
What do they test for? - - - They test for how much sodium, potassium is in the body
Yes, I know, but that’s got to relate to something, to what does it relate? - - - It relates to the percentages of those and there are certain percentages that are normal for a human.
Why do you look for potassium, etcetera, what’s the purpose in looking for them? - - - Because if they’re not normal you have to look for the reason.
An abnormality will disclose what failing? - - - Yeah, it could be a kidney.
It could be a kidney? - - - It could be but this is not the routine test for kidney.[2]
[2]Transcript 6 March 2015 page 22
Ultimately he explained the difference between the tests, that whilst this test may disclose kidney problems, it was not specific to testing for kidney problems alone. He further gave evidence that the applicant was not on any medication for his kidney damage,[3] and that he based his view that he had suffered damage to his remaining kidney from the report of the Royal Melbourne Hospital, although the damage was unspecified. He was unable to assist further except to say that the applicant will in all likelihood require a kidney transplant in 10 to 15 years’ time.
[3]Transcript 6 March 2015 page 26
In his evidence before this court he stated that the renal function of the applicant was around 65 - 70% at the time of his last assessment[4]. He further stated that he maintained a regime in respect of his renal functioning, although there was no elaboration upon what that regime consisted of, and nothing to indicate that the regime was not in place within the prison system, with the exception of the specific testing to which he earlier referred. He had not been shown the affidavit from Justice Health and, accordingly, was unable to comment upon that document or its contents.
[4]Transcript 6 March 2015 page 20
The only medication that the applicant was on prior to his incarceration was Pristiq, an anti-depressant, Stilnox, a sleeping medication and Diazepam – otherwise known as Valium – a benzodiazepine or anti anxiolytic medication.[5]
[5]Transcript 6 March 2015 page 26
Counsel for the applicant relied upon the fact that since his incarceration he has lost 8 kilograms, indicating that he has not been able to maintain his health regime since entering into custody and his loss of weight demonstrates that his health is suffering. I note in respect of that issue, that the applicant in the ‘Arunta’ calls, on 18 January 2015 – a matter of 8 days after he was arrested – stated to his father;
I’ve lost 8 kgs, it’s probably good for the kidneys, bit of detox, I’ll be off the stolnox (sic) and the alcohol.[6]
I see no reason to doubt that his weight loss to which he referred was not an indication of poor health, but possibly an improvement in his health.
[6]Discussion with Geoff Mitchell (father) 18/1/2015
An affidavit of Larissa Strong, Director of Justice Health was part of the materials relied upon in opposition to bail. That affidavit stated that she had read the medical reports contained in the affidavit in support of bail, and detailed the role of Justice Health, together with a description of the health services available in the Victorian Corrections system to persons in custody. Health services are provided with a quality and care equivalent to that provided in the community through the public health system. In addition a prisoner can access additional services such as other doctors, dentist physiotherapist and chiropractor at their own expense, subject to appropriate approvals. The affidavit then outlined the services provided to the applicant during his time in custody, and I will not repeat all of those matters.
He was, on reception into the prison system at MAP on 16 January 2015, assessed by a medical officer, who noted his medical history, including his complex medical diagnoses resulting from the assault in late 2011, and ordered blood tests. He was noted to have no psychiatric disorder and was considered at low risk of suicide and self-harm.
He was seen again on 12 February 2015, with notes that he had been obtaining intramuscular testosterone and DHEA, a steroid hormone, from a doctor in the community to promote weight gain. He was advised that these are not legitimate medications for that purpose. It was also noted that he was prescribed apple cider vinegar by Dr Warren Sipser to support his renal function. Again it was explained to him that this was not evidence-based practice, and matters relating to the body’s ability to control pH tightly was explained.
The applicant failed to attend an appointment on 18 February, and on 20 February refused to undertake an ultrasound to investigate two lumps on his abdominal wall.
On 23 February, he was reviewed again by a medical officer, who noted that the applicant believed many myths about renal health. He was advised that low blood pressure was the most vital element of his renal management. On 2 March the applicant failed to attend a further appointment.
On 3 March he was reviewed by a medical officer, and advised that his remaining kidney is functioning well and he has no evidence of ongoing renal disease. He does not require any particular intervention or treatment but should ensure that his blood pressure remains low and he should minimise his salt intake.
Overall, on the evidence before me, I am very satisfied that the applicant’s health is being appropriately and efficiently managed and cared for whilst he is in custody.
The applicant is currently in 23 hour lockdown, in Exford unit at MRC, as a result of the risk he faces within the prison system. That risk may be higher than when he is not in custody, as there are more people with criminal propensity within the prison system than on the streets of Melbourne, it would be presumed. The applicant has been shot on two separate occasions and corrections have a duty of care towards the applicant to ensure that he is not the victim of assaults or worse whilst in the prison system.
The applicant did not rely heavily on the aspect of the 23 hour lockdown, but submitted that with his health issues, the circumstances of his incarceration were very difficult. That is not consistent with his statements recorded on the ‘Arunta’ corrections phone system. All prisoners are aware that they are being recorded as there is a message to that effect played at the beginning of each call, and the certain references within the calls make it clear that the applicant was aware of the recording. In a series of calls to different persons the applicant states that he is coping well with his incarceration. All that I have received are the summaries of the Arunta calls, but they give a clear indication that the applicant is coping quite well with his incarceration. Some examples of this are:
I don’t care if I stay here till August. If I have to do 4 months I'll just stay here so I can travel when I get out.[7]
If Im gobba (sic) do the 4 months 100% I'll just stay here. If I get out I’ll be on bail, I don’t want to go out and then come back in[8].
My health is alright. Got 4 weeks to go - mid march. Soli has fucked me up.[9]
TM brags about training for two hours a day, that "cunts get killed everyday in here". TM brags about doing time when he was younger and can still do time easy now.[10]
Talks about conversation being recorded. Amber "I wonder if they listen" TM "to mine they will, but I don't say anything wrong, I'm too smart for them"[11]
[7]Discussion with Steph 8/02/2015
[8]Discussion with Geoff Mitchell (father) 9/2/2015
[9]Discussion with Joe Scordio 10/02/2015
[10]Discussion with Amber and Joe Scordio 20/02/2015
[11]Discussion with Amber and Joe Scordio 20/02/2015
The consistent reference to the 4 months that he may have to serve relates to the sentence imposed by his Honour Judge Smallwood of the County Court on 4 March 2014. The sentence was one of four months imprisonment, wholly suspended for 12 months. The applicant, who has admitted the assault of the complainant by punching him to the head, through his counsel in this court, and consistently in the ‘Arunta’ calls, would undoubtedly be in breach of the suspended sentence by reason of that assault. I note that the applicant had been on bail in respect of the charge of affray and other charges since 24 October 2010, and had not breached any conditions, although a deal of that time was spent in hospital and rehabilitation as a result of the two shooting incidents in which he was a victim.
Counsel for the applicant submits that what the applicant is saying in these calls was pure bravado, but having examined the contents of the summaries, I am far from satisfied that it has anything to do with bravado or reassuring his parents. Whilst I do accept that 23 hour lockdown regime is difficult for any person, it appears that the applicant is coping with the regime remarkably well, and is able to keep fit and train for two hours a day, consistent with the information from the informant that the applicant had told him he had resumed his kick boxing training some time ago.
(b) Stable residence
The applicant has a static residential address comprising rented premises at 1608/100 Harbour Esplanade, docklands, and has resided there for approximately two and half years.[12] I accept and act upon that evidence.
[12]Affidavit of Micky Milardovic, dated 25 February 2015 paragraph 3 (c)
(c) ‘City of Ink’
The applicant relies upon the fact that he is responsible for the day to day operations and running of a business ‘City of Ink’, which operates as a tattoo studio/parlour located at 216 Clarendon Street, South Melbourne. The business employs four people on a full and part time basis[13]. That is undisputed, but the applicant, according to the ‘Arunta’ materials, is able to give directions for the running of the business whilst held in custody. Further, there is evidence that the applicant travels overseas approximately four times a year and leaves the business without his personal direction on those occasions. It was not argued that the business would not continue without his personal direction or presence at the premises. I do accept that he has a business in which he is involved.
[13]Affidavit of Micky Milardovic, dated 25 February 2015 paragraph 3 (d)
(d) Availability of a surety
The mother of the applicant is prepared to offer the equity in her family home in Werribee as surety in the sum of $160,000. That is the total of the equity that she possesses in the home. Counsel submitted that the applicant is close to his mother and would do nothing to put her home at risk of forfeiture. His mother supports him and he is aware that if he was to breach any of the conditions imposed that he would put her home in jeopardy. That matter was not disputed, and is a factor to be taken into account.
(d) The known and potential delay
The applicant relies upon both the known and the potential delay that may occur before proceedings are completed. The evidence before me is that the hand up brief is to be delivered by 25 March 2015 and the committal mention hearing is listed for 6 May 2015. Depending upon the time estimated for hearing, the committal could be heard within two to three months of that time, a not inordinate delay for a committal of this nature. The shorter the committal hearing the higher the likelihood of an earlier rather than a later date being organised, as well as the consideration of an accused being in custody rather than on bail. It cannot be imagined that the committal will take any significant length of time with the exception of the complainant who may be expected to face lengthy cross examination and testing of his evidence, but it would be difficult to imagine his cross examination taking in excess of a day.
There are potentially five other witnesses, including the complainant’s partner, and four persons who were in the vicinity of the incident, none of whom saw the firearm, the subject of the dispute. The issue of bail is automatically reconsidered by a magistrate at the conclusion of a committal and an assessment made at that stage, as to whether, in light of the evidence that the magistrate has heard, bail should be granted or refused, if he has been committed for trial.
(e) Weakness of the crown case
It was argued that the crown case against the applicant is particularly weak by reason of two major factors, the first being that no other witness saw the firearm being produced on this day, despite some or at least one of them being in a position to observe the firearm if it had been produced, and that the complainant has a prior criminal history that includes a number of convictions for making false reports to the police.
I have received a copy of the complainant’s criminal history record, and it includes five convictions for that offence over a substantial period of time, from the first in 1987, to the last in 1998, approximately 17 years ago. As the complainant has not been tested or cross examined yet, I currently have no explanation or knowledge of the type of false report that was made to the police on each of these occasions, if they are of a similar nature to this matter, if they are false claims of an entirely different nature. It would be expected that such a specific history may attract an unreliable witness warning.
The applicant also relied upon what was submitted to be the illogicality of certain actions of the complainant, again in two particular areas, first why he would contact the applicant and arrange to meet him if he was feeling intimidated and frightened by his demands for money, and second, why he would ring the applicant after he had reported the matter of the assault and alleged extortion to the police. Explanations for both of those matters have been provided in the statement of the complainant, and by the informant during his evidence in this court, and those explanations appear to be reasonable, but that assessment cannot be made with any certainty until they are tested via cross examination.
The assessment of the strength of a case of this nature is very difficult to determine on the papers, as much depends upon the evidence of the complainant. Without testing and probing of his evidence, it is hard to accurately assess whether this is a weak or strong case, or whether it lies somewhere in between those two levels.
The applicant has argued the inconsistencies and flaws that the case suffers from as I have already outlined. There are however, other matters that demonstrate some consistency with the complainants’ version of events.
He has attended upon the police and told them of his fears prior to making arrangements to see the applicant, and told the police he was feeling very intimidated by the applicant, and under pressure. The independent witnesses in South Melbourne see a quietly spoken man sitting, having an apparently friendly conversation with the applicant when, for no apparent reason, the applicant leans across the table and punches the complainant to the face, with such force that he bleeds. That is consistent with the complainant’s statement that he informed the applicant that he could not lend him the $300,000 as it was tied up in a trust fund and he couldn’t get it released. There is no other explanation that has been put forward for the assault. The applicant admits the assault, but has not through counsel or via affidavit provided any explanation as to why he suddenly punched the complainant. The witnesses hear the applicant yelling at the complainant and at least one of the witnesses, observes them both stand up after the first punch, and another punch thrown by the applicant at the complainant. Parts of that material are consistent with the statement of the complainant. As to the presence of the gun, it depends on opportunity of observation, where people were located, how large the gun was, how quick the incident was, and other things of that nature. Eye witness evidence is often, if not usually, contradictory and this evidence is no different.
On the material, I am not satisfied that it is a weak crown case, neither is it a strong one, it falls somewhere in the middle, and doesn’t significantly add or detract from the show cause situation.
When I indicated that this may be a premature application, in terms of being able to assess the strength or weakness of the crown case, counsel for the applicant relied upon a decision in respect of a bail application by Dianne Griffey – a case in which I granted bail – and the comments made in respect of the submissions of the then Director of Public Prosecutions. With all due respect to counsel for the applicant, that was a case of a very different nature, in that it was an entirely circumstantial case, with no physical evidence to connect the accused to the crime, and an equally arguable case against a number of other persons. The part of the judgment that I assume counsel has relied upon refers to the prematurity of the bail application:[14]
[14]R v Dianne Griffey - Reasons, 9 March 2006 pages 1-3
The main thrust of argument presented by the Crown in relation to this is that the bail application has been made with almost indecent haste. Mr Rapke QC stated in the submission:
What we've got here is an application which is made 22 days after the arrest of the applicant on the most serious charge that can be proffered against an individual in the State at the moment. It's made at a time, Your Honour, before - as Your Honour has observed in passing - before Your Honour has access to statements of witnesses, before even the interview with the applicant has been transcribed and of course before anybody in this court, including myself, has any opportunity to digest the brief of evidence and make meaningful submissions about the strength of the case against the applicant. It is a very difficult situation. Indeed, some judges might even say that an application of this nature made so early after arrest would be regarded as premature, but whether that is the case or not, we're all at a disadvantage in the sense that all we know about the case against the applicant is that which is contained in the annexure to the answering affidavit filed by the Crown.
I must say that in a number of the bail applications that I have heard in this court, that was exactly the material that was available, the summary of the case as prepared by the informant. Many had not reached the state of service of the hand-up-brief and it has never been argued before me that it was too early for a bail application to be made.
Once the police have made a decision to arrest and charge a citizen, it cannot be that the Crown can then say, we are taken by surprise, we're not ready to argue the merits of the application. Section 4(1) of the Bail Act states:
Any person accused of an offence and being held in custody in relation to that offence shall be granted bail.
It then continues to provide limitations on that section.
Bail is the right of an accused person. It shall be refused only on certain criteria and with certain offences, but it is clearly the right of a person to apply for bail at any time. No applicant must wait until the Crown say that they are ready and that this is a suitable time for them to have the application heard. The court must presume therefore that unless there are unusual or compelling reasons for the Crown not being in an informed position, for example awaiting the results of toxicology or DNA testing, those who provide the Crown with the information necessary to deal with these matters, that is the police officers involved in the decision to arrest and charge any applicant, must be able to provide to the Crown a clear, cogent synopsis of the basis of that arrest and the strength of the case against the applicants.
Those comments hold true in this case. I have before me virtually all of the material upon which this case will be decided. It is only 24 days since the applicant was arrested. The police do not agree that the crown case is weak, but neither are they asserting it is a very strong case, and they have agreed with all the matters I have noted earlier in the evidence of the informant.
In this case, however, unlike the case of Griffey there is no dispute that the applicant was involved in an incident outside the Pho shop in Clarendon street, South Melbourne on 10 January 2015, the issue is the extent of the applicant’s involvement. There are, as I have indicated, facts that assist both sides of the argument, and on this material, and without cross-examination I am unable to determine the reliability and accuracy of the major crown witness, the key determinant of the strength of the crown case.
The prosecution maintain that the applicant is an unacceptable (my emphasis) risk of:
(a) committing further offences whilst on bail
(b) interfering with witnesses whilst on bail
(c) endangering the safety or welfare of members of the public whilst on bail, and
(d) failing to answer his bail.
I am not satisfied that he is an unacceptable flight risk, as he has travelled overseas a number of times whilst on bail, with the permission of the informant and has returned on each occasion. He also has substantial ties to the jurisdiction, and there is nothing in the material that causes me to believe he may flee the jurisdiction.
In respect of the applicant being an unacceptable risk of committing offences and interfering with witnesses, they are in my view interrelated. The risk is that offences he may commit relate to the witnesses in this case. I have considered a number and range of conditions from the ordinary to the extreme, up to and including 24 hour house arrest with the applicant leaving only to attend medical practitioners, but I do not believe that they can ameliorate the risk to an acceptable level.
I must not release a person if they present an unacceptable risk, not just a risk, but an unacceptable risk, and having heard this material I am of the view that the applicant represents an unacceptable risk. Counsel submitted that the view I have formed from his background, the manner in which he talks about the complainant, the police, prison and punishment on the ‘Arunta’ ought not disqualify him from bail. It was submitted that because he comes from a particular milieu that doesn’t support the police or have the same attitude as other members of the public to the law, I ought not be considering those matters as being particularly significant otherwise I would be permanently disqualifying him from obtaining bail.
Those matters as disclosed in his criminal history, his former participation as the Sergeant at Arms of the Bandidos, and the resultant criminal and outlaw motor cycle gang connections he has made and clearly retained, which is evident from an examination of the ‘Arunta’ summaries, have to be considered, together with his demonstrated attitude to the assault to which he has admitted, including statements such as:
I slapped the cunt in the head that it. I won’t get extra for the slap to the bloke.
… For the slap I won’t get nothing. I won’t get any time for it, A slap on the street.[15]
[15]Discussion with Geoff Mitchell (father), Robbie, Mick, 29/1/2015
There are other matters that need to be considered, including that he is recorded in the ‘Arunta’ calls as making arrangements to arrange for a ‘prospect’ to be given an address for the purpose of a bail application. Further, the applicant was shot on the two occasions previously mentioned, and has not co-operated with the police over those shootings, demonstrating his compliance to the code of the milieu in which he mixes, about not co-operating with police. One of the major problems is that the applicant believes as he states in the ‘Arunta’ calls that he is smarter than the authorities which demonstrates a belief that he can live outside the law, and not be subject to the same rules and laws as all other citizens. This is indicated in the statements he made, whilst in custody, which were noted in the summary as:
Talks about conversation being recorded. Amber "I wonder if they listen"
TM "to mine they will, but I don't say anything wrong, I'm too smart for them"[16]
[16]Discussion with Amber and Joe Scordio 20/02/2015
The applicant would not be permanently disqualified from obtaining bail in any situation, it depends on the factual scenario that is presented. If the affray matter to which he pleaded guilty is taken as an example, that was recorded on CCTV, which could not be altered and there were a large number of victims, matters that would contribute towards the applicant being granted bail. Here there is only one victim, there is no CCTV of the incident and without the complainant’s evidence this matter would not proceed with the very serious charges relating to extortion etc.
However, on any version of the events of this day, including those admitted by the applicant, he, whilst on a suspended sentence for affray, involving a quite violent fight in a nightclub in King Street, punched the complainant to the face, causing blood to gush from above his eye, in the middle of the day in an inner city residential environment, with many witnesses around at the time. He has then casually walked away, sending other people to clean up after him, by organising to have the blood removed together with the bottle used by the complainant, containing in all probability his fingerprints or DNA. It demonstrates a lack of fear of the consequences of his actions, and a contempt for the societal norms, as well as the person he has hit.
All of the witnesses have expressed a fear of being involved in a case in which the applicant is the defendant, obviously as a result of his notoriety. His notoriety does not cause him to be refused bail, it is the matters to which I have earlier referred, together with the ‘Arunta’ calls, where a statement is made that: “Theo wants us to stay away from anyone. Theo doesn’t want any of our witnesses, he is worried about witnesses”[17]. That statement indicates that there was a real possibility that approaches of some type would have been made to people involved, but they have been told by the person who was the solicitor at that time, to stay away from anyone. I am unable to say who made those statements, whether it was the applicant or his father, but it makes little difference to the seriousness of the possibility.
[17]Discussion with Geoff Mitchell 26/02/2015
As indicated, it is my view that there are currently no conditions that will ameliorate, to an acceptable level, the risk of the applicant interfering with witnesses, and being involved in other crimes associated with that interference. I am not presuming that the applicant would perform any such task himself, but he is, as his counsel accurately expressed it, from a milieu that don’t respect or view the police in the same way as the majority of the community, they have a contempt for the police, and the laws they enforce. It is that connection and his ability to speak to those people, and organise or make arrangements concerning witnesses that cannot be controlled, as there are no conditions that can, in reality, control the phones on which he would or could speak if released on bail, the persons who he could contact and the arrangements he could make with those people. Whilst he is in custody, those matters are to a very large degree under surveillance. His calls are recorded, he is not able to mix with many other prisoners, and his visits are supervised and controlled.
There was a suggestion that the complainant would be keen to avoid the applicant and would undoubtedly move somewhere he could not be located, or that police would be keeping him in some form of protection. I have no knowledge of whether that is the situation, but our system of justice does not require that the complainant in a criminal matter flee the jurisdiction, or become a prisoner unable to move about freely, because they have reported being a victim of crime. It is, rightly, the person who is accused of the crime, if they represent a real threat to the victim or other witnesses, who is removed from the community, not the victim.
For the reasons outlined above, bail will be refused.
The matter of bail should be reconsidered by the magistrate hearing the committal, who will be in a position to form an assessment of the reliability, accuracy and truthfulness of the complainant, as well as the evidence of the independent civilian witnesses.
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