S v The State of Western Australia
[2015] WASC 27
•27 JANUARY 2015
S -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 27
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 27 | |
| Case No: | MBA:1/2015 | 16 & 27 JANUARY 2015 | |
| Coram: | MITCHELL J | 27/01/15 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Bail granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | S THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Application for bail Turns on own facts |
Legislation: | Bail Act 1982 (WA) |
Case References: | James v The State of Western Australia [2013] WASC 235 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Quaid v The State of Western Australia [2013] WASC 228 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Application for bail - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Bail granted subject to conditions
Category: B
Representation:
Counsel:
Applicant : Mr P Urquhart
Respondent : Mr A M Dungey
Solicitors:
Applicant : D G Price & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
James v The State of Western Australia [2013] WASC 235
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228
- MITCHELL J:
Application
1 This is an application for the grant of bail for the applicant's appearance before the Magistrates Court on 12 February 2015 for committal mention. The charge against the applicant is that on 30 September 2014 at Ridgewood he, with intent to do harm to a person I shall refer to as the complainant, did grievous bodily harm to the complainant. The applicant was arrested and charged on 12 November 2014, and has been remanded in custody since his first appearance in the Magistrates Court on 13 November 2014. Bail was refused by a magistrate on 5 December 2014.
Evidence
2 The application for bail is supported by:
(a) the affidavit of Gerald Chui Ren Yin sworn 12 January 2015;
(b) Prosecution Notice PE 112101/2014;
(c) a statement of material facts in relation to the offence;
(d) a bundle of character references;
(e) extracts of bank accounts from the ANZ Banking Group website;
(f) a letter from the operations manager of a swimming pool company; and
(g) oral evidence given by the applicant.
3 In opposing the application the State relies on:
(a) the affidavit of Detective Constable Medlock affirmed on 16 January 2015, together with oral evidence given by Detective Constable Medlock;
(b) two statements of the complainant dated 10 October and 2 December 2014; and
(c) a series of photographs extracted from CCTV footage.
Jurisdiction to grant bail
4 The jurisdiction sought to be invoked is that provided for by s 14(1)(a) of the Bail Act 1982 (WA), read with s 13(1) of the Act and cl 2 of pt A of sch 1 to the Act. Clause 2 conferred jurisdiction on the magistrate granting an adjournment of proceedings for an offence, not being a committal, to grant bail for an appearance in the Magistrates Court after that adjournment. Section 14(1)(a) of the Bail Act provides that a judge of this Court may, in accordance with the Act, exercise a power to grant bail which is conferred upon any other judicial officer. Section 14(2) relevantly contemplates that this jurisdiction may be invoked by application made by the accused, and whether or not any other judicial officer has previously refused bail.
5 Section 13(1) of the Bail Act requires that the jurisdiction to grant bail be exercised subject to and in accordance with pt III of the Bail Act and the further provisions in pts B, C and D of sch 1 to the Bail Act.
Mandatory relevant considerations
6 Subject to presently immaterial exceptions, cl 1 in pt C of sch 1 to the Bail Act provides that the grant or refusal bail to the applicant is in my discretion. Clause 1 requires that this discretion be exercised having regard to questions posed by pars (a) to (g) of that clause. The matters specified in those paragraphs are non-exclusive mandatory relevant considerations: Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] - [25], [37]. The discretion is also to be exercised having regard to other questions which I consider to be relevant.
7 In Milenkovski [39] - [41], McLure P noted a number of significant points in the following terms:
First, the matters in pars (a) - (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
8 I then turn to consider each of the matters referred to in pars 1(a) - (g) before turning to the weighing or balancing process inherent in the exercise of a discretionary power.
Paragraphs 1(a) and 1(c) - (e)
9 Paragraph 1(a) requires that I consider:
whether, if the accused is not kept in custody, he may:
(i) fail to appear in court in accordance with his bail undertaking; or
(ii) commit an offence; or
(iii) endanger the safety, welfare, or property of any person; or
(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
10 Paragraph 1(c) requires that I consider grounds put forward by the prosecutor for opposing the grant of bail, which comprise all but par 1(a)(i).
11 Paragraph 1(d) requires that I consider whether there are grounds for believing that, if the applicant is not kept in custody, the proper conduct of the trial may be prejudiced.
12 Paragraph 1(e) relevantly requires me to have regard to whether there is any condition which could reasonably be imposed under pt D of sch 1 to the Bail Act which would sufficiently remove the possibility referred to in par 1(a) or 1(d) or remove the grounds for opposition referred to in par 1(c).
Flight risk
13 In the present case there is no direct evidence or other material suggesting that the applicant will fail to appear in court if he is not kept in custody. The applicant has, in the past, been charged with a number of offences and there is no record of him being convicted of failing to comply with a bail undertaking. The applicant, who is 39 years old, has lived in Perth since he was 4 years old. He owns a house and business in the State and his family, including his two children, reside in the State. He does not have any international connections, and has travelled overseas only for brief holidays. Any flight risk arises only from the serious nature and consequences of the charge.
14 I am satisfied that any flight risk can be addressed by conditions that the applicant surrender his passport, reside at a particular address and regularly report to police. In reaching that conclusion I have had regard to the matters referred to in cl 3 in pt C to sch 1 of the Bail Act in the manner which I will describe. I note that the prosecution does not oppose the grant of bail, subject to conditions, on grounds of flight risk.
Interfere with course of justice
15 The ground on which the prosecution opposes bail is a concern that, if the applicant is released from custody, he may interfere with the complainant by committing offences which will endanger the safety, welfare or property of any person and obstruct the course of justice in relation to the offence with which the applicant has been charged. The prosecution says that there are no conditions by which this possibility could be sufficiently removed, so that bail should be refused.
16 In considering those matters I am required to have regard to the matters referred to in cl 3 in pt C of sch 1 to the Bail Act, as well as to other matters which I consider relevant.
Nature and seriousness of offence
17 One of the matters which I am required to consider is the nature and seriousness of the offence with which the applicant is charged.
18 The offence with which the applicant is charged is provided for by s 294(1) of the Criminal Code (WA). The maximum penalty for that offence is a sentence of imprisonment for 20 years.
19 The circumstances of the offence alleged by the State in its statement of material facts are as follows.
20 The accused is alleged to be a nominee, or prospective member, of the northern suburbs chapter of an organisation which is described by police as the Rebels Outlaw Motorcycle Gang. It is alleged that the applicant was with five members of the gang on 30 September 2014, and that the applicant and those members formed a common intention to assault the complainant.
21 It is alleged that some members of the group armed themselves with baseball bats and travelled to a property in Ridgewood which the complainant had been enticed to attend by a woman (who is also an alleged co-offender). At that property, the complainant was confronted by the group and attacked with baseball bats. The victim was struck repeatedly to the head, torso and limbs. The group then left the complainant on the ground at the location of the assault. The complainant managed to drive home, where he was discovered by his mother who arranged for medical attention. The complainant suffered a fractured skull and related head wound, a broken arm, a broken hand and a broken leg as a result of the assault. The complainant remained in hospital for over three weeks as a result of those injuries.
22 The applicant was arrested on 12 November 2014.
23 These are, of course, merely allegations which are denied by the applicant and have not yet been tested at trial. I shall consider the evidence supporting the allegations when I come to assess the strength of the case against the applicant.
24 If the applicant were convicted of this offence then I consider that a substantial term of immediate imprisonment will almost certainly be imposed.
Character of applicant
25 I am also required to consider the applicant's character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position.
26 The applicant has a not insignificant criminal history. However, there is only one offence involving violence in 1996. In that year he was convicted of assault occasioning bodily harm and fined $3,000. He does have a large number of traffic offences and, since 2008, has incurred five convictions for drug offences involving the use of cannabis and, on one occasion, amphetamine. Only one of the drug charges involved an allegation of intention to sell or supply to another, and in respect of that offence the applicant was subject to a conditional suspended imprisonment order which he successfully completed.
27 There is nothing in the applicant's antecedents which is suggestive of a propensity of the applicant to interfere with witnesses or act in a violent manner towards them. He has also, in the past, demonstrated a capacity to comply with conditions upon which his continued liberty in the community depends.
28 For approximately ten years before his arrest on the current offence, the applicant lived in a house which he is purchasing. He operates a construction business, which is an established business with a stable clientele. The applicant is married and, although separated from his wife with whom he has a 9-year-old daughter, if he is granted bail it is intended that the applicant and his wife will attempt to address the issues in their relationship. The applicant misses his daughter, and his wife has found it difficult raising the child without the applicant's support. The applicant's wife and daughter rely on him for their financial support.
29 The applicant's incarceration significantly impacts on his capacity to support the family and conduct his business. Although an employee has been managing the business while the applicant is in custody, there are a number of aspects of the business which are difficult for the employee to manage and the absence of the applicant limits the nature and amount of work which the applicant's company is able to undertake. It appears that the applicant's business will probably be lost to him if he remains in custody for a significant further period of time. These matters indicate stability in the applicant's residential and employment arrangements and provide an incentive to the applicant to avoid further offending.
30 The applicant has also tendered unsworn character references from the current employee of the applicant's construction company, his mother and former partner and two persons who have known the applicant for a very lengthy period of time who describe his good reputation among those who know him.
31 It is also necessary to consider the applicant's association with the Rebels organisation. The applicant's says that he has known R, who the prosecution has identified as the president of the northern chapter of the Rebels organisation and who is one of his alleged co-offenders, for approximately 14 years. The applicant says that this was well before R became involved with the Rebels. The applicant says that, while he was friends with R, the applicant had no real association with the Rebels, other than perhaps enjoying a drink or partying with members from time to time, until around August/September 2014. The applicant says that at this time, which was after he separated from his wife, he felt lost and says that he found companionship with the club.
32 The applicant says that, in around September 2014, he became a nominee, or prospective member, of the Rebels. The State does not challenge this aspect of the applicant's evidence on the bail application. His position that he became involved with the Rebels organisation only shortly before the commission of the alleged offence is consistent with evidence relied on by the State to establish that involvement. The material which the State refers to as evidence of the applicant's involvement with the organisation comprises his participation in the Rebels 'National Run', which occurred between 19 and 24 October 2014, and the applicant's admission that he was a nominee on 12 November 2014.
33 The applicant says that, following his arrest, he advised R and other senior members of the Rebels that he does not wish to retain his nominee status or have anything to do with the club in the future. The applicant says that this position has been accepted, given his very short term contact anyway. The applicant says that he has not had any external contact (by which I take him to mean contact outside of the confines of prison) with members of the Rebels while in custody. This does not exclude contact with members of the Rebels who are the applicant's alleged co-offenders in custody, or other members or nominees of the Rebels organisation who are currently in custody.
34 The State challenges this aspect of the applicant's evidence. In making that challenge the State adduced evidence of recorded telephone calls between the applicant and his employee between 10 and 12 January 2015. In those recorded discussions the applicant asked various questions about two members of the Rebels organisation obtaining affidavit evidence which he and R hoped to use in their defence. It was evident from those discussions that the applicant was using his employee as an intermediary to arrange for two members of the Rebels organisation to obtain evidence which he hoped to use in the criminal proceedings. The applicant accepted that this is what he had done when he gave his oral evidence.
35 The evidence of the applicant's discussions with his employee casts considerable doubt on the veracity of his statements that he does not want to have anything to do with the Rebels in the future and has not had any external contact with members of the Rebels while in custody. In fact he has used members of the Rebels to obtain evidence for his defence and has communicated with those members through his employee. I also note, from the Bail Assessment Report, that the employee has recently visited R while in custody, in company with other senior members of the Rebels organisation.
36 There are two other aspects of the evidence before me which cause me to have reservations about relying on the applicant's uncorroborated evidence about his ongoing involvement with the Rebels organisation. First, Detective Constable Medlock gave evidence that the applicant cut off his employee during a telephone conversation on 12 January 2015 saying, 'I don't want to talk about that on the phone'. The topic he did not want to talk about is not clear from the evidence. However, the applicant knew that his phone calls from prison were being monitored, as the evidence is that a recorded message to that effect is played at the beginning of each phone call. The inference I draw is that the applicant wanted to keep certain information from the authorities. Secondly, there is evidence, which I will come to, that the applicant lied to police about knowing the complainant during his recorded interview with them. While neither of these matters demonstrates ongoing involvement with the Rebels organisation, they do illustrate the need for caution in simply accepting at face value uncorroborated statements which serve the applicant's own interests.
37 Having regard to all of the evidence, I am left in a state of uncertainty as to whether the applicant has ceased all external contact with the Rebels organisation and would have nothing to do with them if released from custody. It may be that the applicant is telling the truth, but I have a real concern as to whether that is the case.
38 The question of whether the applicant has any continuing association with the Rebels organisation is significant for the assessment of the relevant risk. If I were positively satisfied that he would have no continuing involvement in the organisation, then that would limit the grounds for concern that the applicant may be engaged by or with members of that organisation to interfere with the administration of justice. As I will discuss, the uncertainty as to the veracity of the applicant's evidence about his disassociation with the organisation leads me to conclude that there is a significant possibility that the applicant may act in that manner.
History of previous grants of bail
39 As I have noted, the applicant has been charged with offences on a number of previous occasions. There is nothing in the material before me to indicate that he has not complied with the conditions of bail on those occasions.
Strength of evidence against the applicant
40 The material before me indicates that there is a very strong prosecution case that the complainant was seriously assaulted by a group of men at the Ridgewood property at about midnight on 30 September 2014 in the manner described in the statement of material facts. An important question, from the perspective of assessing the strength of the prosecution case against the applicant, is whether the applicant was a party to that offence.
41 The admissible evidence relied on by the State to establish the appellant's involvement in the alleged offence may be summarised as follows:
(a) The witness statement of the complainant and text messages downloaded from the complainant's mobile phone indicates that C, the alleged female co-offender, invited the complainant to the Ridgewood property, which was her house, for dinner.
(b) Call charge records indicate contact between the mobile phone services used by C and the applicant on the afternoon of 30 September 2014 to 1.00 am on the following morning;
(c) Text messages downloaded from a mobile phone taken from C suggestive of a romantic relationship between the two, and the location of the applicant asleep in bed with C at the time of his arrest;
(d) CCTV footage of a property at Clarkson, which is located approximately 3.1 km from the Ridgewood property, showing the applicant present at that address on the evening of 30 September 2014;
(e) CCTV footage obtained from the Clarkson address which shows the applicant and his alleged co-offenders getting into a black Jeep Cherokee at 11.49 pm and returning 12 minutes later at 12.01 am, in which a baseball bat, not in the possession of the applicant, can be seen.
(f) Records of a 000 call made to police about the incident at 11.52 pm on 30 September 2014.
(g) Data obtained from a mobile phone seized from the applicant which show that, despite denials that he knew the complainant, the applicant's mobile phone included the complainant's first name and telephone number as a saved contact and had been used to make a call to the complainant's mobile phone at 12.26 pm on 30 September 2014;
(h) The complainant's statement that 'a person who I know as [the applicant's first name]', who he has known for years and was the 'best mate' of R, participated in the assault by rushing towards him with other members of the group who attacked him.
42 In combination, the evidence summarised above does, in my view, present a relatively strong case that the applicant was involved in the assault. Of course, that assessment must be qualified by the fact that the above evidence, particularly the statement of the complainant, has not been tested in court. The strength of the prosecution case against the applicant turns to a very large degree on the complainant giving evidence in accordance with his statements in a reliable manner. However, the material before me does indicate that there is substance to the State's case and the applicant faces a real prospect of conviction.
Other matters
43 The character of the Rebels organisation is described by Detective Constable Medlock in the following terms:
Extensive intelligence holdings within Western Australian Police establish the [Rebels organisation] as an international OMCG [outlaw motorcycle gang] with chapters in more than twenty countries. They are Australia's largest OMCG and they are the largest OMCG in WA. They are a recognised criminal syndicate whose members have a history of extreme violence including murder and their illegal activities are known to include assault, theft, drug distribution, extortion and money laundering.
44 The court's evaluation of that statement must be undertaken with some caution. Characterisation of the Rebels organisation as an 'Outlaw Motorcycle Gang' which is a 'recognized criminal syndicate' is a conclusionary statement based on police intelligence holdings which have not been provided to the applicant to enable those conclusions to be tested. That characterisation may well be disputed by members of the organisation. This bail application is not the forum in which to resolve any such dispute.
45 However, I do proceed on the factual basis that the Rebels organisation is a large organisation, comprising a number of chapters spread over a number of countries, and that a significant number of the members of that organisation have a history of committing serious criminal offences which include those of the kind described by Detective Constable Medlock.
46 Of perhaps greater relevance is material which indicates that members of the Rebels organisation undertook what appears to be a planned serious assault on the complainant in retribution for some past act. The motivation for further retribution is presented by the fact that members of the Rebels organisation are now charged with a serious criminal offence, in which the complainant is an important cooperating witness.
47 For the purposes of the bail application, the applicant accepts that he was present when the assault occurred. I have not been offered any innocent explanation for his presence. The fact that no explanation is offered may be explained by a tactical decision by the applicant to 'keep his powder dry' for trial. However, I can only proceed on the material before me, which taken as a whole does establish at least the strong probability that the applicant was an instigator of a serious planned assault on the complainant in retribution for something which he did or said against the interests of the Rebels organisation or R.
Conclusion as to likelihood of reoffending etc
48 The applicant is charged with a serious criminal offence of which he faces a substantial prospect of conviction, and for which he faces a substantial sentence of immediate imprisonment if convicted. Members of the Rebels organisation, including the president of its northern suburbs chapter, are in the same position. The applicant is a close friend of R. There is evidence of long-standing tensions between R and the complainant. There is evidence that the applicant and members of the Rebels organisation have been involved in a planned attack on the complaint and the complainant's cooperation with police provides them with motivation to repeat the attack. Further, if the complainant were unwilling or unable to give evidence at trial then the strength of the prosecution case would be dramatically weakened. These circumstances give rise to a substantial risk of retribution by those associated with the Rebels organisation.
49 On the other hand, the applicant does not have a significant prior history of violent offending or failing to comply with bail conditions. He has a very strong motivation to comply with the conditions of his bail. He claims to have ceased his short relationship with the Rebels organisation, although I am uncertain as to whether the applicant's involvement with the Rebels is in fact at an end.
50 The uncertainty as to the applicant's continued association with the Rebels means that there is a risk that he may take, or be involved in taking, action against the complainant if released.
51 In my view, the question then becomes whether the risk of the applicant reoffending or interfering with the trial process can be managed by the imposition of conditions, which would enable his movements to be monitored and prevent him from contacting or communicating with members of the Rebels organisation. The applicant has proposed conditions which would, in my view, largely remove the prospect of undetected contact by the applicant with the Rebels organisation. These conditions could include a home detention condition which would enable the applicant to continue to operate his business, and a condition that the applicant not contact or communicate with the complainant or any member or nominee of the Rebels organisation.
Paragraph 1(b)
52 There is no evidence or other material to suggest that the applicant needs to be held in custody for his own protection.
Paragraph 1(f)
53 As the applicant has not been charged with any offence that is alleged to have been committed in respect of a child, par 1(f) is not relevant.
Paragraph 1(g)
54 Paragraph 1(g) requires me to have regard to whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
55 Paragraph 1(g) directs attention to the alleged circumstances of the offence rather than the charge or statutory provision which creates the offence which is the subject of the charge. As Edelman J has noted, the mere charging of an accused with a serious offence should not be considered in a vacuum. All information concerning the circumstances of the alleged offence must be considered, including information relating to possible defences: see Quaid v The State of Western Australia [2013] WASC 228 [18] and James v The State of Western Australia [2013] WASC 235 [69].
56 Unlike the other paragraphs of cl 1, par (g) is expressed in terms which, taken literally, suggest an outcome of the exercise of the exercise of my discretion. If the alleged circumstances referred to in par (g) are such as to make a grant of bail inappropriate, then it is difficult to see how the court can then conclude that bail should be granted.
57 Paragraph (g) does not indicate why it must be inappropriate to grant bail. Wrongdoing of a particularly serious nature may be an indicator of flight risk or risk of interference with witnesses (due to the incentives created by the serious consequences of conviction). Wrongdoing of that kind may be an indicator of a risk to public safety. However, those examples are covered by other paragraphs of cl 1. This suggests that the reasons why a grant of bail is inappropriate must extend beyond considerations concerning the risk of flight, reoffending or interference with the administration of justice.
58 In Milenkovski [29], the court quoted the Minister's second reading speech for the Bill which introduced par (g). There the Minister said:
Another important aspect of the Bill is that it will make the granting of bail inappropriate where the alleged circumstances of the offence amount to wrongdoing of a serious nature. While it may be that a person charged with a particularly vicious crime is likely to appear in court in accordance with his or her undertaking, and is unlikely to commit further offences or endanger witnesses or any other person or otherwise obstruct the course of justice, there are clearly times when the sheer seriousness of the circumstances of the crime itself make it inappropriate to release the person on bail.
59 This also suggests that the seriousness of the circumstances of the alleged offending may, quite apart from risks of flight, reoffending or interference with the administration of justice, provide grounds for refusing bail.
60 In the present case I am not satisfied that the circumstances of the alleged offence are so serious as to themselves make it inappropriate to release the applicant on bail. While the offence involves a serious assault in company, it is not uncommon for persons to be charged with serious assault. I am not convinced that the circumstances of the alleged offence are so egregious as themselves to demand that the applicant be kept in custody pending trial.
Other matters
61 It is relevant that the case has not yet reached the committal mention stage, and that both counsel for the State and counsel for the Applicant have indicated that a trial is unlikely to take place this year. If not granted bail the applicant will be required to remain in custody, and will suffer the adverse consequences which I have described, for over a year from today. It seems unlikely that his business will survive his incarceration for that period. The fact that a trial is more than a year away is a powerful consideration in favour of the grant of bail. Refusal of bail would lead to the applicant's incarceration for a time equal to a very substantial portion of the custodial term of any sentence, and his likely financial ruin, regardless of whether or not he was convicted at trial.
62 There is another factor which, in my view, favours the grant of bail. Despite my uncertainty as to the truth of this aspect of his evidence, the applicant may well be currently resolved to disassociate himself with the Rebels organisation. While in custody, he is housed with members and associates of the Rebels organisation, and shares a cell with one of those members. Forcing the applicant to live in close quarters with Rebels members and associates for 12 months while the means of his livelihood is destroyed would have the practical effect of encouraging his continued involvement with the organisation. On the other hand, release on conditions that precluded any contact or communication with Rebels members or associates would tend to facilitate the disassociation. This particular situation goes beyond a general concern that people in custody on remand may associate with criminals, (which would not ordinarily be a matter of any significance on a bail application). I am not satisfied that this concern is a matter which stands outside the object, subject matter or scope of the Bail Act so as to constitute a prohibited consideration on this bail application (as was suggested by the State). I accept the submission by counsel for the applicant that the consideration falls within the scope of cl. 3(b) of pt C of sch 1 to the Bail Act and is, in any event, one of the 'other matters' which I may consider relevant under cl 1 of that Part.
Exercise of discretion
63 Having considered all of the above matters I have concluded, on balance and by a very fine margin, that bail should be granted, subject to strict conditions which will address the risk of the applicant being involved in action against the complainant. Those conditions would involve the following elements:
(a) the applicant provide a personal undertaking in the amount of $100,000;
(b) the applicant secure surety in the amount of $100,000 (the applicant's mother, who owns property, is said to be willing to provide this surety);
(c) the applicant surrender his passport to police and not apply for the issue of a passport;
(d) a protective condition be imposed that the applicant not contact or communicate with in any way, whether directly or indirectly, the complainant, any co-accused or any other witness or potential witness in his trial, except for contact by his legal representatives of any potential witnesses to be called in his defence;
(e) the applicant not contact or communicate with in any way, whether directly or indirectly, any member or nominee member of the Rebels organisation;
(f) the applicant immediately notify Detective Constable Medlock of any attempt by any member or nominee of the Rebels organisation to contact or communicate with him, whether directly or indirectly;
(g) the applicant not visit or take phone calls from any prisoner;
(h) the applicant reside at [identified address] in Clarkson (Residence);
(i) the applicant be subject to a home detention condition referred to in cl 3(3) of pt D of sch 1 to the Bail Act;
(j) the applicant report to the Joondalup Police Station each day while on bail;
(k) on each day while on bail the applicant provide to Detective Constable Medlock a written schedule of any locations, other than his Residence, at which the applicant will engage in gainful employment on the following day, and the approximate times at which the applicant may be at those locations;
(l) the applicant only engage in gainful employment approved by a community corrections officer outside his Residence between 6.00 am and 7.00 pm on any day at locations referred to in the written schedule referred to in the previous condition;
(m) the applicant not be in possession of any offensive weapon;
(n) the applicant not be in possession of or use any illicit substances;
(o) the applicant not to consume alcohol;
(p) the applicant attend for urinalysis as directed by a community corrections officer.
64 In my view, these conditions will enable the applicant to be effectively monitored, particularly in relation to contact with the Rebels organisation, while enabling the applicant to operate his business. The applicant will have a powerful motivation to comply with these conditions. His continued liberty and therefore his contact with his family and viability of his business will depend upon strict compliance with these conditions. The applicant must appreciate that he is being closely monitored and that any contact or communication with members or associates of the Rebels organisation is likely to be detected and will indicate that he in fact has a continuing association with that organisation. I would expect any such contact or communication with the Rebels organisation to lead to the immediate revocation of the applicant's bail.
65 Having considered the report of the community corrections officer, I am satisfied of the matters referred to in cl 3(2) of pt D of sch 1 to the Bail Act, namely that the applicant is suitable to be subject to a home detention condition, that the applicant's residence is a suitable place and that, unless a home detention condition is imposed, the applicant will not be released on bail.
66 In reaching this conclusion, I have considered the decision of Hall J on the bail application of the applicant's alleged co-offender R. Had I been asked to consider that application I, like Hall J, would not have granted R bail. However, in my view the position of the applicant is to be distinguished from that of R in a number of respects. The applicant's criminal history is less serious than that of R. The applicant has greater motivation to comply with bail conditions than R, in particular a business which will be lost if bail conditions are breached. R has a history of personal acrimony with the complainant which the applicant does not. R has a greater and longer involvement with the Rebels organisation than the applicant, and his continued involvement in the organisation is clear. These distinguishing features have led me to decide that a different approach should be adopted in the applicant's case.
67 For the above reasons, I will grant bail subject to the conditions which I have identified, including a home detention condition.
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