Re McKenzie
[2025] QSC 15
•3 February 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Re McKenzie [2025] QSC 15
PARTIES:
Matthew James McKenzie
(applicant)
v
Director of Public Prosecutions(respondent)
FILE NO:
136/25
DIVISION:
Trial
PROCEEDING:
Application for bail
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
3 February 2025
DELIVERED AT:
Brisbane
HEARING DATE:
30 January 2025
JUDGE:
Ryan J
ORDER:
Application dismissed
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – BAIL – BEFORE TRIAL – SERIOUS AND ORGANISED CRIME SUSPECTS - second application for Supreme Court bail after first application refused – additional evidence and information disclosed by the prosecution – change in material circumstances asserted by applicant – whether change affected the factual basis upon which bail was denied – whether additional evidence and information tipped scale in favour of bail
COUNSEL:
D Jones KC for the applicant
R Guppy-Coles for the respondentSOLICITORS:
Lumme Rynderman Legal for the applicant
Office of the Director of Public Prosecutions (Qld) for the respondent
Matthew McKenzie has been charged with (a) dangerous operation of a motor vehicle, whilst excessively speeding; (b) endangering the safety of a person in a vehicle with intent; and (c) doing grievous bodily harm (GBH), with a “serious organised crime circumstance of aggravation”. It is alleged that the offences were committed in the course of one protracted episode on 18 September 2024. If the applicant were to be convicted of the GBH and the “serious organised crime” circumstance of aggravation is proved, then the applicant falls to be sentenced under section 161R of the Penalties and Sentences Act 1992, which would, in effect increase whatever sentence the court might consider just for the GBH (which must be a sentence of imprisonment) by seven years.
His Honour Justice Burns refused the applicant’s application for bail on 31 October 2024. The applicant has applied for bail again – asserting that there has been a material change in circumstances which now favour his release before trial. The material change in circumstances alleged is reflected in additional witness statements and clarifying information from the Crown.
The Crown does not accept that any change in circumstances is properly described as “material” in the bail risk sense and submits that there is no justification for my hearing a second bail application. Alternatively, the Crown says, if I were to consider there to have been a material change in circumstances, then the Crown maintains the position it took at the first bail application – that is, that a bail order ought not to be made because the applicant presents an unacceptable risk of: committing offences whilst on bail; endangering the safety or welfare of any person; interfering with witnesses; or obstructing the course of justice.
My understanding of the Crown’s position is that those unacceptable risks are inherent in the nature of the alleged offending as well as in his connection to, and criminal deployment of, members of the Rebels motorcycle gang.
For the reasons which follow, I dismiss the application. My primary view is that the “changed circumstances” (that is, the provision by the Crown to the applicant of additional evidence and information), do nothing to ameliorate relevant bail risks. In other words, in my view, there has not been a material change in circumstances. And if I am wrong about that, and I ought to consider a second application for bail by the applicant, in my assessment, the additional evidence and information is adverse to him, in the sense that it supports, if not strengthens, the basis upon which Justice Burns refused bail. I would refuse bail on a similar basis.
Brief outline of the facts of the alleged offending
The complainant is a professional gambler. At the relevant time, he ran a business called Worldwide Sporting Investments Pty Ltd (WSI). People invested in his business with a view to sharing in gambling wins. The applicant was an investor. He had been introduced to the business by the complainant’s business partner, BW.
The applicant invested in WSI in June 2023. He sought to withdraw his investment in about May of 2024. His money was returned to him (with its profit) – though perhaps not as quickly as he would have liked.
The applicant claimed to have funded investments in WSI by two other people, which he also wished to withdraw from WSI. It is alleged by the Crown that the applicant demanded this money, with threats, from the complainant in August or September of 2024.
After the threats, the complainant was scared. He knew the applicant was “affiliated with a “bikie gang” but he did not know which one [paragraph 22 of his police statement].
The complainant did not elaborate, in his statement, upon the basis of his knowledge of the applicant’s affiliation with a bikie gang; nor did he elaborate on what he meant by “affiliated with”. However, after being threatened, he engaged his own security and varied his usual routine in an attempt to keep safe.
It is alleged that the applicant either procured, counselled, or aided Nicholas Pozzebon and Nathan Dyson, two members of the Rebels, an Outlaw Motorcycle Gang, to behave in a dangerous and threatening way towards the complainant.
On 14 September 2024, the complainant received, via a third party, a video recording of himself at a gym, which suggested that he was under surveillance of some kind. (However, there appears to be no direct link between that particular video and the applicant.)
On 18 September 2024, after leaving a gym, the complainant was pursued by two vehicles, a Dodge RAM utility driven by Pozzebon, and a Ford Ranger utility driven by Dyson. They were acting in unison and driving dangerously, including through red lights, and at speed. The RAM collided with the back of the complainant’s car on purpose about four times. The applicant was travelling with one of them.
The fact that the complainant was followed from when he left a gym in his car implies that he was being watched by the offenders (including the applicant) before their pursuit commenced.
Evidence implicating the applicant as the procurer et cetera includes the fact that there was a photograph of the complainant’s car on his phone which was taken about an hour before the pursuit began.
After chasing the complainant in his car, the RAM forced it off the road. Both vehicles travelled through a fence, over an embankment and into a field before they crashed and halted. The complainant’s car’s airbags deployed, and its windows were smashed. The complainant was removed from his car by Pozzebon and Dyson. He was then assaulted by them and left with facial fractures and other injuries.
The applicant took no part in the physical assault upon the complainant.
Witnesses to the crash called police and informed the applicant and his co-accused that they had done so. The complainant was told by Pozzebon or Dyson to tell police that he could not remember anything about the pursuit or the assault. He did as he was told. He made a police statement on 19 September 2024.
Law governing a repeat application for Supreme Court bail
The authorities demonstrate that, to achieve bail on a repeat application to the Supreme Court, the applicant must point to a persuasive change in circumstances: that is something new which alters the balance in favour of a grant of bail, including by addressing relevant bail risks in a way which is favourable to the applicant. It is not enough to trigger a re-consideration of a bail application to simply show that something has, or one or more things have, changed.
To evaluate the applicant’s argument about a material change in circumstances, it is necessary to first identify the material before Burns J and his Honour’s understanding or interpretation of it.
The first bail application
When the application was heard by Burns J, the applicant was represented by Cullen Lawyers and MWC Harrison of counsel.
In oral submissions, Mr Harrison submitted or conceded that –
(a)the offences were serious;
(b)the applicant was “an associate” of his two co-accused, who were members of an outlaw motorcycle gang (the Rebels); and
(c)it was not at that stage possible to assess the strength of the Crown case against the applicant.
In his written submissions, Mr Harrison said, among other things –
“15 The applicant is clearly alleged to be a section 7 aider/procurer or section 8 participant in an unlawful common purpose.
16 It is submitted that the evidence is unlikely to sustain such a theory and is unlikely to support the allegation of being involved in a “serious organised crime”.
17 It is speculative to suggest that the applicant is likely to be involved in retribution against the complainant or witnesses or commit further offences.”
Those arguments of Mr Harrison about what the evidence was likely or unlikely to sustain in the future were necessarily speculative. As his Honour said more than once, he was required to determine the application on the material placed before him.
The evidence before Burns J included evidence of a text message exchange between members of the “SSC Power 2.0” group, said to have been found on the applicant’s phone – suggesting that the applicant was a member of that group, although he was not an author of any of the messages.
It is reasonable to infer from the content of the messages exchanged by the group that all or some of the participants are members of the Rebels or closely associated with them.
It is reasonable to infer that the “@NicPozzo” member of the group is Nicholas Pozzebon. He tells the group at 6.54 am (on an unknown date) that he has been “raided” and attaches a photo of a warrant which refers to the offences the subject of this application (and another stealing offence). He tells the group that the police found nothing.
Another member of the group says: “So the c*** is a rat? @NicPozzo making up bulls*** stories”. It is reasonable to infer that it is the complainant who is referred to as the “rat”.
“Rebel Ray Sunny Coast” asks whether “@Ranga_13” is “all good”. Other evidence suggests @Ranga_13 is Dyson. @NicPozzo replies, “He is yeah just spoke with him”. It is reasonable to infer that the pursuit of the complainant was known to the members of the group.
There was also before Burns J evidence of a conversation between Dyson and “Rebel Ray Sunny Coast” in which one tells the other that “Matty” (the applicant) has been “grabbed”; to “clear his phone”; and to expect a visit (I assume from police) because the complainant (who was referred to in obscene terms) had “done a statement for sure”. A connection between “Rebel Ray Sunny Coast” and the applicant is apparent from this message.
Also before his Honour were messages between the applicant and “Ranga” in which they discuss the pursuit of the complainant and its aftermath. The applicant tells “Ranga”/Dyson that he feels “proper bad” about what occurred – in the sense of his expressing sympathy to Dyson, not to the complainant.
In refusing bail, his Honour said (my emphasis):
I have spent some time this morning considering the material that has been put before me by the Crown in relation to the alleged offending. As Mr Harrison … quite rightly concedes, if proved, the offending is very serious. And, of course, the sentence, if convicted, will reflect that and be even more condign if the … circumstance of aggravation is made out. It should be appreciated that in determining the application for bail, this must be done by me on what is quite clearly limited material. And I have to assess, amongst other things, the strength of the Crown case on that material.
… my impression from the material … is that the Crown case making out involvement, at least[,] in MrMcKenzie’s case, in the commission of these offences, whether as a counsellor, procurer, or aider, is strong. If convicted of these offences … on that basis, then the Crown will have demonstrated that he was prepared to engage in particularly concerning lawless conduct. I stress, though, that there is a long way to go in this case, and whether or not the Crown can make out his involvement as it is put before me remains to be seen.
However, as the material presently stands, the strength of the Crown case is very much a significant factor in my thinking, because if proved, it demonstrates the extent to which, despite not having any criminal history, the applicant is prepared to behave. The material also supports the conclusion that the relevant risk here of interfering with at least one witness, namely the complainant, or committing an offence or offences against that same person is unacceptably high. The conditions proposed, although wide-ranging, do not have the effect, in my mind at least, of reducing that risk to a level that in all the circumstances could be regarded as reasonable, and for those reasons the application is dismissed.
Clearly his Honour refused bail on the basis that there was strong evidence that it was the applicant who counselled, procured or aided Pozzebon and Dyson to behave as they did – that is, in “particularly concerning lawless conduct”.
I infer from Burns J’s statement, that the strength of the case was significant because it demonstrated the extent to which the applicant was prepared to behave, that his Honour was of the view that the nature of the charged conduct, demonstrated in the strong Crown case, revealed the applicant’s inherent risk of reoffending whilst on bail. That is, by character, he was someone prepared to behave/procure others to behave in a threatening and lawless way. And of course, his Honour considered there also to be an unacceptable risk of interference with at least the complainant. While his Honour did not spell out the evidence or the material he relied upon as satisfying him of that unacceptable risk, it may be inferred from the message exchange; the instruction given to the complainant at the scene; and by the nature of the offences themselves.
His Honour did not refer to the strength of the evidence concerning the serious organised crime circumstance of aggravation in his reasons for refusing bail. As I mentioned above, proof of the circumstance of aggravation is relevant to the penalty which must be imposed upon the applicant if he were convicted of the GBH offence. But, in my view, whether it is ultimately established or not changes nothing about the nature of the criminal conduct alleged against the applicant – which was what his Honour focused on in refusing bail.
Additional evidence relied upon as establishing a change in circumstances
Since the hearing before Burns J, more material has been provided to the applicant (as defendant). It includes witness statements and additional information about the complainant’s injuries. Further, it has now emerged that the applicant was not a member of the SSC Power 2.0 group. The group’s messages were not found on his phone. They were on another phone.
The applicant argues that this new material establishes that some of the factual assumptions made by his Honour were incorrect and that the offending was not as serious as his Honour perceived it to be – therefore, he submits, the relevant bail risks are either at an acceptable level or able to be reduced to an acceptable level by a suitably conditioned bail order.
The prosecution contends that the new material does not alter in any material way the assumptions made by his Honour about the offending and I am therefore precluded from entertaining this repeat application for bail. And even if I did consider the applicant to have demonstrated a material change in circumstances, the relevant bail risks remained unacceptable and unable to be ameliorated to an acceptable level by a suitably conditioned bail order.
I will consider first the additional material concerning the complainant’s injuries.
Injuries
The complainant’s injuries included facial fractures and other bruising and soreness, including soreness in his ribs and back. He developed a spontaneous pneumothorax developing on 3 January 2025 but it is not clear whether that is a result of the alleged offending or not. I proceed on the basis that it is unrelated to the assault.
The applicant submitted that the first bail application proceeded on the basis that the complainant required surgery for treatment of his fractures. I accept that. The additional material reveals that his fractures were managed conservatively, without surgery. Indeed, he discharged himself from hospital against medical advice.
At first, the applicant seemed to suggest that, because the complainant did not require surgery, the Crown would not be able to make out the charge of grievous bodily harm (GBH). But he backed away from that and instead relied upon the fact that there was no explicit proof that the complainant’s injuries amounted to GBH and submitted (in effect) that the complainant sustained “only” bodily harm. The applicant submitted (in effect) that the offending was thus less serious in this regard than Burns J understood it to be.
As I said to the applicant’s King’s Counsel during submissions, I did not understand Justice Burns to have been focused on whether the complainant suffered GBH or “only” bodily harm at the hands of the active offenders. His Honour’s concern was around the dangerous lawless conduct inherent in all of the behaviour. Indeed, it was the dangerous driving at speed, through red lights, ramming into the complainant’s car and deliberately forcing the complainant off the road which carried a high risk of death or serious injury to both the complainant and to innocent members of the public. It was only by way of good fortune that such a risk was not realised.
At this point in time, I can only speculate about the basis upon which the Crown will attempt to prove that the complainant suffered from injuries amounting to grievous bodily harm. It is sometimes argued by the Crown that a particular untreated fracture carries a risk of infection which could endanger life: thus meeting the definition of GBH. But that argument was not made to me.
I am therefore prepared to assume that the Crown does not have strong evidence that the complainant suffered GBH during the assault. And I am prepared to proceed on the basis that that was contrary Burns J’s understanding of things when his Honour refused the applicant bail. But I do not see this “change” as materially bearing upon bail risk
However the injuries are properly categorised under the Criminal Code, the alleged offending concluded with an assault upon the complainant which left him with a fractured face. And the fact that the injuries might be classified as something less than GBH at best only marginally reduces the severity of the alleged offending. Further, an assault occasioning bodily harm in company (which attracts a maximum penalty of 10 years’ imprisonment) is a prescribed offence for the purposes of the “Serious Organised Crime” provisions of the Penalties and Sentences Act 1992.
Additional witness statements
The applicant relied upon several witness statements which were not before Burns J as evincing changed circumstances, including because of what they didn’t reveal.
The applicant submitted that the Crown produced no additional evidence which would support the serious organised crime circumstance of aggravation – and thus, the clarification around the group chat lessened the strength of the evidence relevant to the circumstance of aggravation.
With respect, as will be explained below, it is not accurate to say that the Crown produced no additional evidence in support of the circumstance of aggravation. And, in my view, it cannot be said that the additional evidence, and the clarification of the true position in relation to the group chat, changes anything at all about the strength of the Crown case on the circumstance of aggravation. In my view, against the backdrop of all of the material available to me, the clarification of the true position in relation to the group chat is offset by the information contained in the statement of BW (see below).
Referring to the “new” witnesses by their initials, relevant parts of their evidence appears below.
LH saw the complainant’s car become airborne. She called triple 0. She saw Pozzebon and Dyson (who were not known to her) “reef by force” the complainant from his car. Then they disappeared out of her view. She later saw Pozzebon and Dyson and the applicant walk with the complainant towards the road and sit him down in the gutter (just as the complainant described). She inferred that the complainant “wasn’t happy” to be with “the other guys”. She described the arrival of other people, police and tow trucks to the scene.
KF saw the pursuit of the complainant. She saw dust and smoke and thought the three cars had crashed. She walked towards the “smoke” and called triple 0. She saw where the cars ended up. She said five people gathered around the scene. She saw Pozzebon, Dyson, the applicant and the complainant in the gutter. She said one of the men had their arm in a cast. She described the arrival of police.
LO was working in the culverts about 50 metres away from where the complainant’s car and the RAM landed. He saw the RAM leave the road at speed; air borne. He saw it crash through a fence and into a grass gulley. He saw two persons in the RAM and one in the Dodge. I infer that the applicant was the second person in the RAM. He exited from the passenger side of the RAM. Other evidence implies that he was not driving. LO saw the plaster cast on the applicant’s arm. He saw the injuries to the complainant.
The statements also establish that those coming to the aid of the complainant, the applicant and Pozzebon and Dyson were told not to contact the police or the ambulance.
BW is the complainant’s business partner. He explained his business connection to the applicant. It seems that he was the one who enticed the applicant to invest in WSI. He said the applicant had mentioned to him, in person, that he was “involved in a bikie gang” but provided no other details to BW. He said (broadly consistently with the evidence of the complainant) that the applicant wanted to pull his money out of WSI which took the complainant some time. This angered the applicant who sent a threat to BW in these terms on 21 May 2024: “you might want to get my money sorted as you are involved with this and I told you from day one that if this shit turned bad it would get bad for everyone”. It was followed by another text to BW which said, “Or give me [the complainant’s] address and you and I are even”. The concerning aspects of that last text message are obvious.
One of the applicant’s arguments was that Burns J proceeded on the basis that the applicant acted as a “lookout” whilst Pozzebon and Dyson assaulted the complainant yet the new evidence demonstrated that that characterisation of the applicant as a lookout was wrong. The argument went that there were people around and the (implicitly culpable) role of lookout was redundant. Therefore the applicant’s role had been wrongly characterised.
The complainant described the applicant as turning away from the complainant’s car as Pozzebon and Dyson approached the complainant. He did not say a word. The complainant said, “I would describe his actions as being that of a look out. By this I mean we were obscured by the embankment and he was looking around the surroundings”.
In my respectful view, the applicant’s “he was not a lookout” argument is a very weak one. The new evidence shows that there was no one in the immediate vicinity of the crash. And the final resting place of the complainant’s car was not seen immediately by any of the onlookers because of the terrain. It came into view when they approached. But more importantly, the applicant’s behaviour at the scene has to be viewed in the light of all of the other evidence of his procuring/counselling/aiding in the dangerous pursuit of the complainant which ended as it did. What he did at the scene was of minimal importance in the assessment of the seriousness of the applicant’s role in the offending.
In my view, two matters of significance arise out of these additional statements. First, the applicant made an admission (vague though it may be) to being “involved in a bikie gang” to BW. Secondly, there is now more evidence of the applicant’s hostile disposition towards the complainant (in his messages with BW).
The applicant’s admission to BW about being involved in a bikie gang, which strengthened the evidence relevant to the circumstance of aggravation, offset the clarification about the group chat which lessened it. Thus, the strength of the evidence relevant the circumstance of aggravation was essentially unchanged.
The additional evidence about the applicant’s hostile disposition towards the complainant strengthened the already strong inference that he counselled or procured or aided Pozzebon and Dyson in their behaviour towards the complainant.
I acknowledge that the fact that he was not a participant in the group chat means there is no evidence of his attitude towards the complainant after he gave a statement. But in my view, the strength of the evidence that he procured et cetera Pozzebon and Dyson’s unlawful and dangerous conduct is enough to inherently raise an unacceptable risk that he would attempt to interfere with, or harm, the complainant if he were to be granted bail.
In support of an argument that there was not an unacceptable risk that the applicant would interfere with the complainant, the applicant argued that the Rebels have not ceased to exist, yet no harm has come to the complainant. I did not find that argument persuasive. The applicant has been remanded in custody because of the risk that, if he were on bail, the complainant might be interfered with. There might in fact be no correlation between the applicant’s being in prison and the complainant not yet being harmed by the Rebels – I simply do not know. But nothing in the evidence allows me to reasonably conclude that the complainant would be as safe were the applicant released on bail as he has been whilst the applicant has been in custody. I consider the risk to him, if the applicant were released on bail, to be unacceptable.
Conclusion
The new material does not favour an order granting bail to the applicant. I am as concerned as his Honour Justice Burns was about the risks inherent in this serious offending. I dismiss the application.
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