Re Reker
[2019] VSC 81
•15 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2019 0016
S CR 2019 0017
S CR 2019 0019
| IN THE MATTER of an appeal by the Director of Public Prosecutions under s 18A of the Bail Act 1977 against an order granting bail to Brent REKER, Tara EGGLESTONE and Pierce WILLIAMS |
---
JUDGE: | Beale J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14–15 February 2019 | |
DATE OF JUDGMENT: | 15 February 2019 | |
CASE MAY BE CITED AS: | Re Brent Reker, Tara Egglestone and Pierce Williams | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 81 | First revision: 20 February 2019 |
---
CRIMINAL LAW – Appeal by Director of Public Prosecutions against Magistrate’s orders granting bail – Whether reasonably open to Magistrate to find exceptional circumstances – Whether Magistrate should have found that each accused was an unacceptable risk – Failure by Magistrate to give reasons – Discretion re-opened – No exceptional circumstances – Unacceptable risk – Appeal upheld – Bail revoked - s 18A Bail Act 1977.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R Gibson SC | Office of Public Prosecutions |
| For Reker | Mr L Barker | Emma Turnbull Lawyers |
| For Egglestone | Ms C Lloyd | Law and Advocacy Centre for Women |
| For Williams | Mr J Miller | James Dowsley and Associates |
HIS HONOUR:
Introduction
Between September and October 2018, Mr Reker, Ms Egglestone, Mr Martinow and Mr Williams, were arrested and remanded in custody in relation to an aggravated home invasion and other charges. On 18 January 2019 at Melbourne Magistrates’ Court, each of the accused were granted bail on strict conditions. There is to be a committal mention on 6 March 2019 at Melbourne Magistrates’ Court.
The Director of Public Prosecutions has appealed against the magistrate’s orders in relation to each accused. There are three ground of appeal. First, the Director submits that it was no open to the magistrate to find exceptional circumstances. Second, the Director alleges that the magistrate should have found that each accused was an unacceptable risk. Third, the Director submits that there was an error of law on the magistrate’s part, in that he failed to give reasons for his decision in respect of each accused.[1]
[1]The full Grounds of Appeal read as follows:
The Director’s appeal commenced yesterday. Mr Martinow applied for an adjournment, as he had not secured representation. That application was not opposed by the prosecution and the appeal in relation to him will be heard by me on 27 February 2019.
I propose to deal with each accused in turn, but first, I will summarise the alleged facts which gave rise to the various charges. And second, I will refer to relevant legal provisions and principles which must inform my decision.
Summary of alleged offending
In the affidavit of Chloe Badcock in support of the Director’s appeal, there is a helpful summary of the alleged offending at paragraphs [21] to [69]. I will annexe those paragraphs to my written reasons.
That summary commences by alleging that Mr Reker, Mr Martinow and Mr Williams are patched members of the Finks Outlaw Motorcycle Gang. Victoria Police’s Echo Taskforce, which investigates such gangs, commenced electronic monitoring of Mr Reker, pursuant to telephone intercept and listening device warrants, from mid-2018. Communications were intercepted between July and September 2018 which allegedly show Mr Reker’s involvement in the trafficking of crystal methamphetamine, GHB and cocaine. Echo Taskforce continued to monitor Mr Reker.
Ms Egglestone is an associate of Mr Reker. As I understand, it is alleged that she is a close friend of Mr Reker’s brother. On 5 September 2018, a fake Facebook page in the name of Ms Egglestone was created and naked photographs of her were posted on that page for the public to see.
That day, at approximately 12.45 pm, police operatives observed a meeting between Mr Reker and Ms Egglestone at a milk bar in Frankston.
At 3.44 pm that day, Ms Egglestone contacted Mr Reker and provided her phone number to him. At approximately 7.20 pm that day, Mr Reker attended the Finks clubhouse in Cranbourne West. The listening device in his vehicle recorded him saying to others, as he exited the vehicle, that there was a job to be done in respect of one of his brother’s best friends. At 9.18 pm the same day, the listening device in Mr Reker’s vehicle captured conversations between him, Pierce Williams and others about taking baseball bats with them.
Mr Reker referred to one of the victim’s by name, namely ‘Gold’, a name which he spelt out. The prosecution alleges that this was a reference to Nicholas Gold. Mr Reker indicated that a female would do a drive by of the victim’s address and advise them whether the victims were at home. Mr Reker referred to the female by the name, Tara, which is Ms Egglestone’s first name. He also told the others that Tara would be communicating with them using a secure mobile application called Signal.
At 9.44 pm same day, a listening device in Mr Reker’s car picked up one side of a telephone conversation between Mr Reker and a person whom the police alleged was Ms Egglestone. Mr Reker told her that the ‘boys were on the way’ and that she should do a drive past the victims’ home to see if they were present.
Members of Echo Taskforce stationed themselves near the victims’ address wearing uniforms and in a marked police car to deter the expected attack. At 10.18 pm, detectives observed a vehicle registered in Ms Egglestone’s name with a blonde female driving, near the victims’ premises. Sometime after this drive by, Mr Reker received a message, allegedly from Mr Williams, stating “Cops at house, we going to”.
On 7 September, Ms Egglestone reported the fake Facebook account to police. She alleged that a former partner of hers was responsible. The prosecution alleges that she believed Nicholas Gold was also involved in the creation of that fake account with the nude photographs of her.
Also on 7 September, Mr Martinow drove from South Australia in an orange sedan, which he had rented, and met up with Mr Reker.
On 8 September, the listening device in Mr Reker’s vehicle captured a conversation between him and Ms Egglestone. She was crying and saying she had been publicly humiliated. Mr Reker said that the victim would pay for what he had done and also, “He’ll never walk again. He’s going to be in a wheelchair”. He went on to say, “I will have a video showing him penetrating his own arse with a dildo”.
On 9 September at approximately 11.08 am, it is alleged that Mr Reker, Mr Martinow, Mr Williams and another man who has also been charged and is currently remanded in custody, were allegedly captured on CCTV footage at the Karingal shopping centre, entering the orange rental sedan which Mr Martinow had driven across from South Australia. They left the shopping centre in that vehicle.
The prosecution alleged that they drove to Nick Gold’s address in Hampton Park and police observed four males enter that address. They were allegedly wearing their Finks colours or clothing. One of the males assaulted Paul Gold, the elderly and ailing father of Nick Gold, in the entrance of the house. Four men went into the bedroom where Nick Gold was lying in bed with his girlfriend, Emily Phillips.
Mr Reker punched Nick Gold to the face. The other man, who is in custody, struck Mr Gold to the face with a tyre iron. It is alleged that Mr Martinow also punched Gold to the face[2]. Mr Reker then called a person he referred to as Tara. After Mr Reker got off the phone from Tara, Mr Martinow allegedly said, “Let’s just blow his kneecaps out and kill the girl”. Mr Reker said to Nick Gold they would be back to take property from him and Mr Martinow allegedly said, “If you go to the police we will kill your missus and your kids too”. The four men then left. They were seen by police leaving in the orange sedan.
[2] Mr Gold sustained two facial fractures and his jaw was knocked out of alignment in the assault.
Mr Martinow drove back to South Australia. The others remained here. At about 6.07 pm, a listening device in Mr Reker’s car picked up a telephone conversation between him and another person alleged to be Ms Egglestone. She passed on information that her former partner, whom she held at least partly responsible for the fake Facebook page, had called Mr Reker a dog. At about 10.05 pm there was another conversation between Mr Reker and a person alleged to be Ms Egglestone in which Mr Reker said, “These people will lose their arms and legs and their life”.
On 11 September 2018, Mr Gold and his girlfriend, Emily Phillips, saw people pull up outside his home address, one of whom he identified as Mr Reker. He and his girlfriend ran from the premises and escaped after jumping over a rear fence. At 5.29 pm a listening device captured a further conversation between Mr Reker and, allegedly, Ms Egglestone, in which Mr Reker said that Echo Taskforce have people in protection and that they are after him.
On 12 September 2018 police executed a search warrant at Mr Reker’s home. Amongst items seized were:
·a .38 revolver handgun that had the serial numbers removed;
·Finks Outlaw Motorcycle Gang clothing;
·ammunition for a 38-calibre handgun;
·a taser;
·crystal powder believed to be methylamphetamine;
·powder believed to be cocaine; and
·liquid believed to be GHB.
Mr Reker was arrested the same day and placed in custody.
On 25 September 2018, Mr Martinow had come back from South Australia. He visited the Melbourne Assessment Prison to see Mr Reker and was arrested.
On 11 October 2018, police searched Mr William’s home. Amongst items seized were a shotgun and ammunition and other weapons including double-edged knives and a knuckleduster. Police also seized Finks clothing and a tyre iron.
Police also executed a search warrant on 11 October 2018 at Ms Egglestone’s home and seized a mobile phone as well as hard drives.
Investigators took photographs from the Signal app on the phone. One of the messages photographed was a message at 5.15 pm on 27 September 2018, which Ms Egglestone or the user of her phone had sent to someone called “Mexico”. It was a screenshot of a newspaper report regarding the aggravated home invasion with a portion highlighted with an accompanying message, “100 per cent Nick, Emily or his dad have lagged”. A further message sent at 10.03 pm to the same contact, that is Mexico, stated, “Should I go smash this Emily Phillips? I know her whereabouts right now”. Ms Egglestone was arrested the same day, that is, 11 October 2018.
On 15 October 2018, Mr Williams was arrested.
Legal Provisions and Principles
Turning now to the legal provisions and principles which must inform my decision. I have had regard to the following provisions of the Bail Act 1977 (‘the Act’).
Section 1B states:
(1)The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Section 3AAA sets out the ‘surrounding circumstances’ in which a bail decision maker must take into account when making a decision about whether to grant or revoke bail.
Section 3A applies to Ms Egglestone because she is an Aboriginal person:
In making a determination under this Act in relation to an Aboriginal person, a bail decision maker must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including—
(a)the person’s cultural background, including the person’s ties to extended family or place; and
(b)any other relevant cultural issue or obligation.
Section 4AA sets out the relevant bail test. In this case, the exceptional circumstances test applies, as the accused are charged with the offence of Aggravated Home Invasion, which is a ‘schedule 1’ offence.
Section 4A states, relevantly:
(1A)The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
(2)The accused bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances.
(3)In considering whether exceptional circumstances exist, the bail decision maker must take into account the surrounding circumstances.
Section 4D sets out the ‘unacceptable risk test’:
(1)A bail decision maker must apply the unacceptable risk test if—
(a)at step 1 (section 4A) the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail for a person; or
…
(2)For the application of the unacceptable risk test, the prosecutor bears the burden of satisfying the bail decision maker—
(a)as to the existence of a risk of a kind mentioned in section 4E(1)(a); and
(b)that the risk is an unacceptable risk.
Section 4E states that the bail decision maker must refuse bail if satisfied that there is an unacceptable risk the accused would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness or otherwise obstruct the course of justice in any matter or fail to surrender into custody in accordance with the conditions of bail. The prosecutor bears the onus of proof with respect to this section.
Section 12A states that a court must give reasons when granting bail where the exceptional circumstances test applies.
This appeal is brought under s 18A, which allows the Director of Public Prosecutions to appeal in circumstances where:
(a)the Director is satisfied that—
(i)the conditions of bail are insufficient; or
(ii)the decision to grant bail contravenes this Act; and
(b)the Director is satisfied that it is in the public interest to do so.
As well as those provisions, I have also been guided by what the Full Court of the Supreme Court of Victoria said in Beljajev v Director of Public Prosecutions[3] about the restraint a court should exercise when a Director brings an appeal against a grant of bail.
[3]Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 91 at 29–30.
In relation to the test of exceptional circumstances, I note what Kaye J said in the case of Muhaidat.
The question of what are exceptional circumstances has been canvassed before. Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[4]
[4][2004] VSC 17, [13]–[14].
The law which binds me means that, as a threshold matter[5], in order to be entitled to consideration for bail at this stage, the accused have to show exceptional circumstances, as I have endeavoured to explain. It is fair to say that the test of exceptional circumstances, whilst not an impossible one, is a high one.
[5]Assuming that the appellant first persuades me that the Magistrate’s discretion miscarried.
Magistrate’s failure to give reasons
With regard to the Director’s third ground of appeal, namely the failure of the magistrate to give reasons, it was conceded by Mr Reker, Ms Egglestone and Mr Williams that no reasons were given by the magistrate. Mr Reker and Mr Williams also conceded, through their counsel of course, that the failure to give reasons reopened the discretion. In other words, I should conduct the bail hearing as a hearing de novo. Ms Egglestone, through her counsel, made no such concession, characterising the failure as a technicality.
I am mindful of the long court lists in the Magistrates’ Court and the many matters that magistrates have to deal with day in, day out. But it is not expecting too much of magistrates to at least provide brief reasons where the liberty of the subject is in issue. Indeed, providing reasons for such an important decision is an essential part of maintaining public confidence in the decision-making process. In my view, the discretion, as I have called it, is reopened by the magistrate’s failure to provide reasons.
Mr Reker
I will now turn to each accused, beginning with Mr Reker. The charges against Mr Reker include the following:
·conspiring to commit an aggravated home invasion on 5 September 2018 (Charge 23);
·aggravated home invasion on 9 September 2018 (Charge 1);
·intentionally causing injury to Nicholas Gold (Charge 2);
·making a threat to kill (two counts - Charges 3 and 4);
·prohibited person possessing a firearm (Charge 7);
·unlicensed possession of cartridge ammunition (Charge 9);
·trafficking methamphetamine (Charge 11);
·trafficking cocaine (Charge 12);
·possessing a prohibited weapon, namely a conducted energy device or taser (Charge 16);
·possessing a prohibited weapon, namely a Samurai-style sword, (Charge 17); and
·committing an indictable offence whilst on bail (Charges 18, 19 and 20).
Even if I am wrong about the consequences of the magistrate’s failure to give reasons, I consider that it was not reasonably open to the magistrate, on the material before him, to find that exceptional circumstances existed.
In coming to that conclusion, I have, of course, only had regard to the material that was before the magistrate. But having regard to that material and the additional material before me, I am not satisfied that exceptional circumstances exist.
Submissions
Mr Reker, through his counsel, relied on a combination of factors in this court to make out exceptional circumstances. Those factors included:
·being subject to repeated 24 hour lockdown whilst on remand;
·his compliance with the strict bail conditions whilst on bail;
·the availability of ongoing treatment and supervision;
·the fact that he has stable accommodation and the support of his family unit;
·the anticipated delay in this matter coming to trial;
·the fact that the period he spent on remand enabled him to detoxify;
·family hardship,
·the availability of employment; and
·the fact that his son, Saint, (date of birth 14 May 2018) is to undergo surgery on 22 February 2019 for an undescended testicle.
Analysis
No evidence was adduced by Mr Reker regarding the circumstances which resulted in him being locked down for lengthy periods whilst in remand. In the absence of evidence that he was and will be subjected to inhumane conditions whilst in custody, I am not inclined to give this matter significant weight.
His compliance with his bail conditions since 18 January 2019 is certainly a positive, but the period of time that he has been on bail is not of great magnitude.
The availability of ongoing treatment and supervision is nothing out of the ordinary. Nor is the fact that he has stable accommodation and a supportive partner, although that relationship has not been without its difficulties. I note that a family violence order against Mr Reker was taken out on behalf of his partner some time ago.
Mr Reker may have detoxified in prison, but it must be borne in mind that he has a long history of poly-drug use and there is only one urine screen certificate from October 2018 which provides objective evidence regarding abstinence.
As for family hardship, his partner is in receipt of Centrelink payments and the surgery that his son is to undergo is elective surgery. His son is not suffering from a life-threatening condition and his mother will be there to provide care after the operation.
Even if there were exceptional circumstances in Mr Reker’s case, even if I was satisfied of that (and, of course, the onus is on him to satisfy me of that), I consider that he is an unacceptable risk of interfering with witnesses, committing further offences whilst on bail, endangering members of the public and failing to appear.
My reasons for arriving at that conclusion include the following matters.
He is charged with very serious offending, offending which involves violence and threats of violence, as well as drug trafficking and firearm offences. Evidence was given by Detective Rattray that Mr Reker is a fully patched member of the Finks and according to Detective Rattray, a high-ranking member. In cross-examination, Mr Reker’s counsel put to the informant that he had ceased his membership of the Finks. That claim was not accepted by the informant. No evidence was adduced by Mr Reker to show he had terminated his membership of the Finks.
In relation to the offence of aggravated home invasion, it is alleged that Mr Reker and others were wearing clothing associated with the Finks Outlaw Motorcycle Gang when they attended the victims’ home and assaulted and threatened the victims there. If proven, that, in combination with the fact that there were several days of preparation and planning and there were four intruders, makes the alleged offence a serious example of the offence of aggravated home invasion.
The prosecution submitted that it has a strong case against Mr Reker and the others. In relation to the aggravated home invasion, it does not rely merely on the accounts of the victims of that home invasion. Mr Reker was under electronic surveillance for several months beforehand and during the critical period, 5 September 2018 to 9 September 2018. The listening device and telephone intercept material provides support for eye witness accounts. But, having regard to the presumption of innocence and the fact that I do not have all the evidence before me, it is better that I not proffer an opinion regarding the strength of the prosecution case. Suffice to say that the prosecution’s submission that is a strong case against Mr Reker was not seriously challenged by Mr Reker’s counsel, and understandably so.
Mr Reker was on bail at the time of the alleged offending. He was on bail for criminal damage, making threats to kill and possessing a drug of dependence. My understanding is that these charges related to an alleged road rage incident.
Mr Reker has priors for violent offending and drug trafficking. He has two priors for breaching bail, one of failure to appear and one unspecified breach of bail. He has served time in gaol. On 17 February 2012, at Perth District Court he was sentenced to three years’ imprisonment for demanding property by oral threats. On 24 January 2017, at Perth District Court, he was given a suspended sentence, duration one year and four months, which was suspended for 18 months in relation to possession of methylamphetamine with intent to sell or supply.
That suspended sentence expired a relatively short time before the allege aggravated home invasion. Given Mr Reker’s priors and the seriousness of the alleged offending, he will appreciate that if convicted of the current offences, he can expect substantial gaol time. That heightens the risk of interference with witnesses and failing to appear if released on bail.
On the materials before me, it is clear that Mr Reker has a long history of poly-drug abuse. As for objective evidence of abstinence, there is, as I have said, just one urine screen from October 2018. Mr Reker tells clinicians he is clean but he may not be the most reliable of historians. For example, one clinician noted that, based on information provided by Mr Reker, that he has no history of illicit drug use.
Mr Reker also has a history of mental health problems. This, in combination with his history of poly-drug abuse, heightens the risk of committing further offences whilst on bail and endangering members of the public.
Ms Egglestone
I turn now to Ms Egglestone. The charges she is facing include:
·conspiring to commit an aggravated home invasion on 5 September 2008 (Charge 9);
·aggravated home invasion (Charge 1);
·causing injury to Nicholas Gold (Charge 3);
·making threats to kill (Charges 4 and 5); and
·committing an indictable offence whilst on bail (Charge 8).
It is my understanding that she was on bail in relation to driving-related offences at the time of the alleged offences.
It will be appreciated that she is charged as a perpetrator in relation to the conspiracy charge and, in relation to the other charges, the prosecution relies on the doctrine of complicity as codified by the Crimes Act1958. The fact that the prosecution calls in aid the doctrine of complicity does not mean that if convicted of the relevant offences, she would necessarily be viewed as less culpable.
I have already stated that the failure of the magistrate to give reasons reopens my discretion. Even if I am wrong about that, I find that it was not reasonably open to the magistrate to find exceptional circumstances and I find no exceptional circumstances on the material adduced before me either.
Submissions
The exceptional circumstances relied on by Ms Egglestone included:
·the period over three months that she spent in remand and her participation in a number of courses during that time;
·the strictness of the existing bail conditions and her compliance with those bail conditions and further efforts to rehabilitate;
·the availability of ongoing supports and supervision;
·her aboriginality;
·the fact that she is hoping to resume the custody of her children and the hardship for her and them in being separated from one another. Her ten-year-old son, Cruz, is currently living with Ms Egglestone’s sister and her six-year-old daughter, Nakyah, is currently living with her daughter’s father;
·the anticipated delay in the proceedings coming to trial;
·an alleged weak prosecution case against her;
·a limited criminal history, which is made up mainly of dishonesty and driving offences.
Analysis
I do not consider that, taken individually or in combination, that these matters amount to exceptional circumstances. I have already made the point in relation to Mr Reker, that the time spent on bail is not of great magnitude. Whilst her performance on bail is a positive, as is the availability of ongoing supervisions and supports, it has not reached such a level or been so sustained that exceptional circumstances are made out, whether considered individually or in combination with other matters.
As for the separation from her children and the hardship that that may cause for her and them, I note what Andy Young of the Department of Health and Human Services, said in a letter dated 13 February 2019:
At this time, Cruz is currently on an interim accommodation order to his maternal aunt. This placement has been able to offer Cruz a level of safety and stability and it has helped him to become more settled overall. His presentation and attendance at school has improved immensely. He is no longer exposed to ongoing criminal activity, his mother’s associates, or family violence…Nakyah is currently in the care of her biological father and Child Protection. Since Nakyah has been in the care of her father, her overall behaviour, demeanour and development has improved immensely. Nakyah has improved in regards to academic performance and social interactions while at school.
As regards Ms Egglestone’s aboriginality, it is an important consideration. But I agree with the prosecutor’s submission that it does not swamp all other considerations.
As regards her limited criminal history, it is very significant, in my view, that she has nine priors for failing to appear, spread over a period of approximately four years.
As regards the submission that the prosecution has a weak case against her, suffice to say that the communications that Echo Taskforce were able to monitor, between her and Mr Reker, make it difficult to accept that submission. A transcript of one intercepted communication on 8 September 2018 that Ms Egglestone’s counsel took me to this morning, does not assist her position.
Even if I am wrong about the existence of exceptional circumstances, I am satisfied she is an unacceptable risk of failing to appear for the following reasons:
·she was on bail at the time of the alleged offending;
·she has nine priors spread over approximately four years for failing to appear;
·she is charged with serious violent offending. If convicted, she faces the prospect of a substantial gaol term, which is a strong incentive for her not to answer bail. The fact that she is not alleged to have been the perpetrator for the actual home invasion does not mean that if she was convicted, she could expect to receive a light sentence.
Mr Williams
I turn now to Mr Williams. The charges against him include :
·conspiring to commit an aggravated home invasion on 5 September 2019 (Charge 8);
·aggravated home invasion on 9 September 2018 (Charge 1);
·intentionally causing injury to Nicholas Gold (Charge 4);
·making threats to kill (Charges 4 and 5);
·possessing a Category A or B unregistered longarm (Charge 9);
·unlicensed possession of cartridge ammunition (Charge 10);
·possession of a prohibited weapon, namely knuckledusters (Charge 11); and
·possessing a prohibited weapon, namely daggers (Charge 13).
It was sensibly conceded by Mr Miller that the failure of the magistrate to give reasons reopens my discretion. But even if that concession was wrong, I am satisfied that it was not reasonably open to the magistrate to find exceptional circumstances on the material before him. On the more extensive material before me, I am also not satisfied that exceptional circumstances are made out.
Submissions
Mr Williams’ counsel relied on the following matters in combination as constituting exceptional circumstances:
·alleged weaknesses in the prosecution case;
·Mr Williams’ positive performance whilst on strict bail;
·the availability of supports and supervision whilst on bail;
·the likely delay before this matter comes to trial;
·Mr Williams’ limited criminal history;
·his absence of priors for failing to appear or breaching bail;
·the availability of a stable address at his parents’ place and familial supports and his father giving sworn evidence before me that if Mr Williams were to breach his bail conditions, he would notify police; and
·the availability of employment.
Analysis
The compliance with strict bail conditions is certainly a factor in his favour. But as I have said in relation to the other two respondents, the period during which he has been on bail is not of great magnitude. I do not accept that the prosecution case against him is weak. It is bolstered by intercepted communications between him and Mr Reker. Whilst there will be a considerable delay before any trial, the evidence before me at present does not warrant a conclusion that such delay will be inordinate.
Certainly Mr Williams has a more limited criminal history than say, Mr Reker. But his criminal history significantly includes priors for violence. Additionally, in my view his limited criminal history is of less significance because of his membership of an Outlaw Motorcycle Gang. Even if exceptional circumstances were made out, I consider him to be an unacceptable risk of interfering with witnesses, failing to appear, endangering members of the public and committing further offences. He is charged with serious violent offences. I consider the offence of aggravated home invasion to be a serious example of that offence, if proven, especially given the number of intruders and the fact that they were wearing Finks clothing. He will appreciate that if convicted, he is likely to receive a substantial prison term which heightens the risk of him failing to appear and interfering with witnesses. Mr Williams did not dispute the evidence that he is a patched member of the Finks. His father gave evidence that he was aware of his son’s membership of the Finks and tried unsuccessfully to discourage him from continuing that association. There is no evidence before me that he has renounced his membership of the Finks. That association with an Outlaw Motorcycle Gang increases the risk of him committing offences, if released on bail.
At his home, police found a shotgun and ammunition. Combined with his membership of the Finks, the possession of that weapon with ammunition gives great cause for concern and justifies, in combination with other considerations, the conclusion that he is an unacceptable risk to endanger members of the public, even if released on strict bail conditions.
Finally, whilst his priors are not extensive, he does have priors for offences involving violence.
Conclusion
Accordingly, I uphold the appeal of the Director in relation to all three accused before me today. They will be remanded in custody until the committal mention, which is due to take place on 6 March at Melbourne Magistrates’ Court.
Annexure – Affidavit of Chloe Badcock [21]–[69]
21. The Respondents and co-accuseds are patched members of the Finks Outlaw Motorcycle Gang (‘OMCG’), with the exception of the Respondent EGGLESTONE who is an associate of the Respondent REKER.
22. The Echo Taskforce began investigating the criminal activities of the Finks OMCG, in particular, the Respondent REKER. The Respondent REKER relocated from Western Australia to Victoria in late 2017 to manage the re-emergence of the Finks OMCG in Victoria by recruiting members and setting up chapters. The Respondent REKER holds the rank of ‘National’ within the Finks OMCG.
23. On 5 July 2018 warrant number 005127-00 was granted by the Victorian Supreme Court for the lawful intercept of telecommunications service 0409608356 known to be utilised by, and registered in the name of the Respondent REKER. From that date Investigators from the Echo Task Force monitored incoming and outgoing calls and text messages to that service.
24. Between 5 July 2018 and the expiry of warrant D05127-00.on 2 September 2018 evidence was captured in the form of text messages and phone calls that show the Respondent REKER trafficking in drugs of dependence including GHB (1-4Butanediol), Cocaine, and Crystal Methamphetamine.
25. On 3 September 2018 warrant number D05149-00 was granted by the Victorian Supreme Court for the lawful intercept of telecommunications service 0409608356. From that date Investigators from the Echo Task Force monitored incoming and outgoing calls and text messages to that service.
26. Between 3 September 2018 and the expiry of warrant D05149-00 on 12 September 2018 evidence was captured in the form of text messages and phone calls that show the Respondent REKER trafficking in the drugs of dependence including GHB (1-4 Butanediol), Cocaine, and Crystal Methamphetamine.
27. On 24 August 2018 the Supreme Court of Victoria issued Surveillance Device warrant VP 194 7 authorising the use of electronic surveillance devices in the Respondent REKER’s vehicle, a black 2011 Range Rover Sport wagon with registration plate ‘Ink66’. On that same date warrant number VP1946 was issued authorising electronic surveillance devices at the Respondent REKER’s residential address of 65 Karingal Drive, Frankston.
28. Between 24 August 2018 and 12 September 2018 Investigators monitored this listening device. During that time period the device captured conversations relating .to trafficking drugs of dependence and planned home invasions.
29. Between 8 September 2018 and 12 September 2018 Investigators monitored listening devices installed at the Respondent REKER’s residential address of 65 Karingal Drive, Frankston. During that time period the device captured conversations relating to the Respondent REKER trafficking drugs of dependence and planned home invasions.
5 September 2018
30. On 5 September 2018 a Facebook page in the name of ’Tara EGGLESTONE’ was created and naked photographs of the Respondent EGGLESTONE were posted on the page for the public to see.
31. At approximately 12:45pm on 5 September 2018, operatives observed the Respondent EGGLESTONE and the Respondent REKER meet at a milk bar in the vicinity of the Respondent REKER’s mother’s house in Inglenook Crescent in Frankston. At 3:44pm, the Respondent EGGLESTONE contacted the Respondent REKER providing her phone number.
32. At approximately 7:20pm the Respondent REKER attends the Finks OMCG clubhouse in Cranbourne West after arranging a meeting. Surveillance devices installed in the Respondent REKER’S vehicle capture his arrival at the club house and exiting the vehicle saying “Right so this now, this job’s one of my brothers old best friends. Legit, she’s fuckin’ hot, bro’.
33. At 9:18pm further conversations are captured on the Listening Device in the Respondent REKER’s vehicle between the Respondents REKER, WILLIAMS and co-accused W ANAKORE-MOEKE and other associates discussing taking baseball bats, cars with towballs and discuss what they will be taking from the address. The Respondent. REKER names GOLD (believed to be the victim in this matter, Nicholas GOLD) and spells his name to the parties. The Respondent REKER states to an associate: “I’m telling· you a number, so this is the chick bro. She lives around the comer. So on the way in, you’ll ring her and she’ll tell you, she’ll drive past and tell you that they’re there or not. But she just messaged me they’re there” and reads out the Respondent EGGLESTONE’s phone number and then says “She’s on Signal, So call her on Signal. Tara. She’s hot bro”.
34. At 9:44am, the Respondent EGGLESTONE contacts the Respondent REKER who asks her to call him on the secure mobile application ‘Signal’. The Surveillance Device in the Respondent REKER’s vehicle captures the Respondent REKER’s. side of the conversation. He states “If you drive past, just let us know they’re still there. They will call you on Signal and ask you a question and they’ll go do it”. The Respondent REKER further states that she owes him lunch and a cappuccino. The Respondent REKER then informs her that the ‘the boys’ are one their way and directs the Respondent EGGLESTONE to “drop past in 20 minutes, see if they’re there”.
35. Members of the Echo Taskforce believed that an offence was being planned to be committed at the victim’s address at 4 Fulham Close, Hampton Park. Echo Taskforce Members were deployed in uniform in a marked police car and attended the immediate vicinity to create a visible presence and to disrupt any planned action by the Finks OMCG.
36. At approximately 10: 18pm, detectives observed a female with blonde hair drive a white Range Rover Evoque wagon with number plate A TW891 drive into Fulham Close and exit immediately after. The Respondent EGGLESTONE is the registered owner of this vehicle.
37. Telephone intercepts on the Respondent REKER’s phone captures a message from the Respondent WILLIAMS to the Respondent REKER stating “Cops at house we goin too”.
7 September 2018
38. The Respondent EGGLESTONE reported the fake Facebook account to Police on 7 September 2018 and stated that her ex-boyfriend Mason LAMBERT (‘LAMBERT’) was the only person she sent the images to.
39. On 7 September 2018, the Respondent MARTINOW drove to Melbourne from South Australia in an A vis hire vehicle bearing South Australian registration. S614BRY. That vehicle is a burnt orange Holden SV6 sedan that the Respondent MARTINOW hired from the Adelaide airport on 1 September 2018. Sometime after the Respondent MARTINOW arrived he and the Respondent REKER went for a motorbike ride. MARTINOW borrowed a fellow Fink OMCG member’s motorbike for the ride. The Respondent MARTINOW crashed the motorbike during the ride and injured his left leg causing him to limp for days afterward.
8 September 2018
40. At 10:21am on 8 September 2018, the Surveillance Device in the Respondent REKER’s vehicle captures a conversation between the Respondent REKER and the Respondent EGGLESTONE. The Respondent EGGLESTONE is crying on the phone, stating that she has been publically humiliated. The Respondent REKER replies “He is going to pay for this yeah’. ‘The cunt will never walk again, he’s going to be in a wheelchair’ and ‘now hes is fucked, I will have him admitting to everything’. The Respondent REKER continues to reassure the Respondent EGGLESTONE saying “he is going to cop it now, now he’s fucked, I promise you I will have him’ and also ‘I will have him with video of him fucking his own arse with a dildo’. The Respondent EGGLESTONE replies with “It was my ex Mason that done it, but Nick is the one that gave him the information’. Investigators believe that Mason is LAMBERT and Nick is Nicholas GOLD (N.GOLD)- the intended victim of the home invasion on 5th September.
9 September 2018
41. On 9 September 2018 at approximately 11:08am, the Respondents REKER, MARTINOW, WILLIAMS and co-accused WANAKORE-MOEKE were captured on CCTV footage meeting at the Karingal Shopping Centre. CCTV footage depicts all four males entering the orange Holden SV6 (South Australian registration S614BRY) and leaving the shopping centre in that vehicle.
42. The Respondents MARTINOW, REKER, WILLIAMS and co-accused WANAKORE-MOEKE then drove to N.GOLD’S address of 4 Fulham Close, Hampton Park where they are observed arriving at the address in a burnt orange Holden SUV with South Australian registration by a marked Police Unit in the area. Police observed the four males enter the address.
43. Upon entry, one of the males assaulted Paul GOLD (‘P.GOLD’) by striking him/pushing him to the ground. The four men entered the bedroom of N.GOLD where he was lying in bed with his girlfriend Emily PHILLIPS (‘PHILLIPS’). The Respondent REKER asked N.GOLD where ‘Dan’ and ‘Mason’ were, then punched N.GOLD with force to the face and continued asking where ‘Dan’ and ‘Mason’ were. N.GOLD said he didn’t know. WANAKORE-MOEKE charged at N.GOLD and struck him to the face with a tyre iron. The Respondent MARTIN OW then leaned over Emily PHILLIPS and punched N.GOLD to the face before the WANAKORE-MOEKE then kicked him to the face.
44. The victims then heard the Respondent REKER ring a girl named ‘Tara’ and say: “I’ve got Nick here, which one is the worst out of Nick, Mason and Dan?” After the Respondent REKER got off the phone the Respondent MARTINOW said “Let’s just blow his kneecaps out and kill the girl.” The Respondent REKER then said to N.GOLD: “We will be back, with what you owe us and take your bikes too”. The Respondent MARTINOW then said “If you go to the Police we will kill your misses and your kids too.” Two of the males then handled PHILLIPS’ purse and looked at\photographed her licence. All four accused left the address. The burnt orange Holden SV6 was seen leaving the address with four males on board by Police.
45. CCTV footage obtained via warrant in the surrounding area depicts the orange Holden SV6 arriving in the vicinity of Fulham Close at approximately 11:57pm and leaving again at 12:06pm.
46. N.GOLD later attended the Dandenong Hospital, where it was established that he had sustained two facial fractures and his jaw has been knocked out of alignment in the assault.
47. The Respondents REKER, MARTINOW, WILLIAMS and co-accused WANAKORE-MOEK.E then drove to 3/10 Screen Street, Frankston which is 11 the residential address of LAMBERT. Nobody was home at the address at the time. Whilst there the four men damaged property outside the address. The orange Holden SV6 was again captured on CCTV footage in Screen Street and the footage was obtained by Echo Taskforce investigators under warrant.
48. After the incidents at Fulham Close and Screen Street, the Respondent REKER was dropped back at his vehicle by the burnt orange SV6. REKER’S vehicle was parked at Karingal Shopping Centre. The registration to the burnt orange SV6 was obtained by Detective Sergeant Paul ANDERSON of ETF who was awaiting their return. CCTV footage in the area shows the orange Holden SV6 was being driven by the Respondent MARTINOW, with the Respondent WILLIAMS and co-accused WANAKORE-MOEKE also as passengers. Shortly thereafter, the Respondent MARTINOW returned to South Australia in the orange Holden Commodore.
49. Call charge records and cell tower locations corroborate the movements of the Respondents REKER, WILLIAMS and MARTINOW.
50. At 6:07pm after the home invasion committed at GOLD’S address, Surveillance devices installed in the Respondent REKER’S vehicle capture another ‘Signal’ phone conversation between the Respondents EGGLESTONE and REKER. The Respondent EGGLESTONE passes on information and tells the Respondent REKER that ‘Mason’ called the Respondent REKER a dog. She further talks of arranging a meeting for the Respondent REKER between him ‘Mason’ and ‘Tyson’, who is also previously been named as being involved in the creation of the Facebook page in the Respondent EGGLESTONE’S name. She further tells the Respondent REKER that ‘Mason’ was at the house when they went there and agrees to try use ‘Tyson’ to arrange a meeting between the Respondent REKER and ‘Mason’.
51. At 10:05pm another conversation between the Respondents EGGLESTONE and REKER is captured by surveillance devices. The Respondent REKER tells the Respondent EGGLESTONE that he has the ‘boys’ watching her address to ensure her safety. Furthermore, the Respondent REKER stated that he no longer wants their money or bikes and he promises her ‘that these people will lose arms and legs and their life, cos now it’s on”.
52. At approximately 10:05pm the Respondent REKER meets with an identified female who gets into his vehicle. A conversation is captured by surveillance devices installed in the vehicle between the Respondent REKER and this female. The Respondent REKER goes into length, discussing his offending. The Respondent REKER details information of how he “Chop”, “Pierce” and “Corey Kiwi” entered a house and describes the modus operandi as it is alleged by victims N.GOLD, P.GOLD and Emily PHILLIPS. The Respondent REKER describes facts such as: the door and screen door to the premises being unlocked, the presence of the victim’s father, the father being assaulted, that both a female and a male were in bed, and that the father is in poor health. These facts could only be known by those in attendance at the address. The Crown alleges that this conversation corroborates the attendance of the Respondents MARTINOW (‘Chop’), WILLIAMS (‘Pierce’) and co-accused WANAKORE-MOEKE (‘Corey Kiwi’) at 4 Fulham Close, Hampton Park.
53. Other subsequent conversations between the Respondent REKER and his partner Tess SPALDING and the Respondent REKER and his mother Lynette KERSTEN at the home address of 65 Karin gal Drive, Frankston have the Respondent REKER discussing this incident and again nominating the same accused parties as being present.
11 September 2018
54. At approximately 10:00am on 11 September 2018, N.GOLD and PHILLIPS observed two vehicles, a white Ford F250 ute and what they believed to be the same orange Holden SV6 pull up outside his home address. In his statement N.GOLD states he saw the Respondent REKER driving the Ford F250 ute. N.GOLD and PHILLIPS ran from the address and jumped a rear fence to escape. PHILLIPS called Police who then went to the house.
55. At 5:29pm surveillance devices capture a conversation between the Respondents EGGLESTONE and REKER. The Respondent REKER tells the Respondent EGGLESTONE that the Echo Taskforce have people in protection and that they’re after him and that she ‘must not mention this’ or the ‘guys that live around the comer from you’ and to ‘pretend that nothing has happened’ to which the Respondent EGGLESTONE agrees. It is of note that the Respondent EGGLESTONE resides 1.5 kilometres away from N.GOLD’S address.
56. …
Search warrant, arrest and record of interview
57. On 12 September 2018, investigators executed search warrants pursuant to the Drugs, Poison and Controlled Substances Act 1981, the Crimes Act 1958 and the Firearms Act 1996 at the Respondent REKER’s residence of 65 Karingal Drive, Karingal.
58. Numerous items were seized, including:
The Respondent’s black Range Rover registration ‘Ink66’;
A firearm holster;
A .38 Revolver hand gun that had the serial numbers removed;
Finks OMCG clothing;
A black pouch containing a grey container with 7 x rounds of .38 calibre
Handgun cartridge;
Ammunition;
Prohibited weapon;
A taser;
Crystal powder believed to be methyl-amphetamine;
J. Powder believed to be Cocaine;
3 rounds of cartridge ammunition;
Liquid believed to be GHB;Steroids.
59. The Respondent REKER was arrested prior to the execution of the search warrants. He was arrested at Bunnings Warehouse in Frankston in a 2015 Hyundai i30 registration 1KUTQ that belongs to LAMBERT.
60. Following the arrest of the Respondent REKER, a record of interview was conducted. During the record of interview the Respondent REKER became violent and the interview was abandoned.
61. On 25 September 2018, the Respondent MARTINOW visited the Melbourne Assessment Prison where he intended to visit the Respondent REKER and was arrested by members of the Echo Taskforce.
62. Following the arrest of the Respondent MARTINOW, a record of interview was conducted. During the interview, the Respondent MARTINOW confirmed that he was in the State of Victoria on 9 September 2018, however denied being in the Hampton Park area and provided predominantly ‘no comment’ responses to questions surrounding the Aggravated Home Invasion.
63. On 11 October 2018, investigators executed a search warrant pursuant to the Drugs, Poison and Controlled Substances Act 1981 at the Respondent WILLIAMS’ residence of 33 Cockatoo Drive, Carrum Downs. The Respondent WILLIAMS was not at the residence at the time. The following items were seized:
Prohibited weapons including, double edged knives, a slingshot and
knuckle dusters;
1 x tyre iron;
Clothing associated with the Finks OMCG;
1 x shotgun - Serial number A612169;1 x ‘Energiser’ battery tin containing 12 x shotgun cartridges.
64. On the same day, investigators executed a search warrant pursuant to the Drugs, Poison and Controlled Substances Act 1981 at the co-accused WANAKORE-MOEKE’s residence of 89 Dunsterville Crescent, Frankston. WANAKOREMOEKE was present at the time of execution. The following items were seized:
Clothing associated with the Finks OMCG;
Drugs of dependence including powder and steroids;Mobile phones and SIM cards.
65. WANAKORE-MOEKE was arrested and a record of interview was conducted. He made a full ‘no comment’ interview.
66. On the same day, investigators executed a search warrant pursuant to the Crimes Act 1958 at the Respondent EGGLESTONE’s residence of 12 Trawalla Court, Hampton Park. The Respondent EGGLESTONE was at the residence at the time of execution. The following items were seized:
A mobile phone
CCTV hard-drive.
67. The Respondent EGGLESTONE was arrested and a record of interview was conducted. The Respondent EGGLESTONE provided answers to questions put to her during the interview, however her answers are contradicted by the Telephone Intercept and Surveillance Device material.
68. On the mobile phone seized at the Respondent EGGLESTONE’s address, police took photographs from the ‘Signal’ application depicting messages sent to a contact named ‘Mexico’. At 5:15pm on 27 September 2018, the Respondent EGGLESTONE sent a screenshot of a newspaper report regarding the aggravated home invasion with a portion highlighted with an accompanying message “100% nick Emily or his dad have lagged.” A further message sent at 10:03pm to the same contact states “Should I go smash this Emily Philips I know her whereabouts right now”. This demonstrates the Respondent EGGLESTONE’s willingness to threaten and intimidate witnesses. The prosecution alleges that the Respondent EGGLESTONE was aware that the Respondent REKER was already in custody in relation to these matters at this time.
69. On 15 October 2018, the Respondent WILLIAMS was arrested and remanded pursuant to a warrant issued by the Magistrates’ Court on the same day. A record of interview was not recorded on that day and the Respondent WILLIAMS later refused to make a record of interview.
1. THAT pursuant to s4A(l A) of the Bail Act 1977, a decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. On the materials before the Court below, the Respondent failed to discharge the onus of satisfying the court of exceptional circumstances. In considering whether exceptional circumstances exist, the learned Magistrate failed to have proper regard to the surrounding circumstances outlined in s3AAA of the Bail Act 1977.
2. THAT on the material before the Court below, the learned Magistrate should have found that there was an unacceptable risk pursuant to s4(2)(d)(i) of the Bail Act 1977 that the Respondent, if released on bail would:
a. Endanger the welfare of any person;
b. Commit an offence whilst on bail;
c. Interfere with witnesses or otherwise obstruct the course of justice whether in relation to herself or any other person;
d. Fail to surrender into custody in accordance with the conditions of bail.
3. THAT pursuant to s 12A of the Bail Act 1977, the learned Magistrate should have stated reasons for granting bail in circumstances where the exceptional circumstances test applies.