Silvester v The State of Western Australia

[2022] WASC 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   SILVESTER -v- THE STATE OF WESTERN AUSTRALIA [2022] WASC 53

CORAM:   FIANNACA J

HEARD:   25 JANUARY, 10 FEBRUARY 2022

DELIVERED          :   10 FEBRUARY 2022

PUBLISHED           :   21 FEBRUARY 2022

FILE NO/S:   MBA 87 of 2021

BETWEEN:   BRADLEY MARK SILVESTER

Applicant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

Catchwords:

Bail application - Bail refused - Turns on own facts

Legislation:

Bail Act 1982 (WA)

Result:

Bail refused

Category:    B

Representation:

Counsel:

Applicant	:	Mr T Percy QC & Ms J Byrne
Respondent	:	Mr J Chu & Ms T McArthur

Solicitors:

Applicant	:	DG Price & Co
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99

YSN v The State of Western Australia [2017] WASCA 155

FIANNACA J:

The application and its history

1. This is an application for bail in respect of three charges that are pending against the applicant in the Fremantle Magistrates Court, being:

   (1)one count of aggravated armed robbery (FR 5125/2021);

   (2)one count of stealing a motor vehicle (FR 5126/2021); and

   (3)one count of assaulting a public officer (FR 5127/2021).

2. I heard the application on 25 January 2022, at which time I reserved my decision and made orders for the filing of further materials.  On 10 February 2022, I gave my decision and made an order refusing bail.  I gave brief reasons, with detailed written reasons to follow.  These are my detailed reasons for refusing bail.

The charges

1. The first two charges to which this application relates arise from an incident that occurred on 14 July 2021 in Fremantle. The third charge arises from an incident that occurred on 21 July 2021 when the applicant was arrested in respect of the first two charges.

2. In relation to the first two charges, it is alleged that the complainant, Brian Hooton, was enticed by an acquaintance, Levi Bradford, who was also an associate of the applicant, to attend a residence where the applicant was staying in Fremantle, for the purpose of purchasing prohibited drugs.  It is alleged that, at the residence, after some initial niceties, the applicant assaulted the complainant with considerable violence, using a wooden axe handle, and then stole from him $7,000 in cash, jewellery, a watch, two mobile phones and a wallet.  Those circumstances give rise to the charge of aggravated armed robbery, the circumstances of aggravation (apart from being armed) being that the applicant caused the complainant bodily harm, and he was in company with another, namely, Kobe St John Ruse.  The bodily harm consisted of a broken bone in the complainant's right leg and fractures to his left wrist and right arm.

3. The co-accused, Mr Ruse, is alleged to have come onto the scene while the complainant was being assaulted by the applicant.  He is alleged to have demanded that the complainant hand over the keys to his vehicle, a Nissan Navara utility, which was parked outside.  He then stole the vehicle, by driving it away.  The applicant is alleged to have gone with Mr Ruse in the vehicle.  That is the basis of the charge of stealing a motor vehicle.  The applicant is charged on the basis that he was a party to that offence.

4. None of the personal property stolen from the complainant was recovered.

5. I will outline further details of the applicant's alleged conduct when dealing with the prosecution case against him.

6. After the alleged offences, the applicant left the Fremantle address. His whereabouts were unknown to the police until his arrest on 21 July 2021 in Nollamara.  In the meantime, the applicant contacted the police by telephone the day after the alleged offences, on 15 July 2021, after police had attended the Fremantle address and searched the property in the applicant's absence, pursuant to a search warrant.  During the telephone call, which was electronically recorded by the officer who took the call, the applicant, who was in possession of the search warrant, denied assaulting the complainant, and claimed the complainant had fallen down some stairs and had suffered any injuries in that way.

7. It is alleged that, when the police located the applicant on 21 July 2021, he resisted arrest and punched the arresting officer in the face.  That is the basis of the charge of assaulting a public officer.  The applicant ran off, scaled a fence, and hid in a tree.  He was located again, arrested, and charged with the three offences.

Applications for bail in the Magistrates Court

22 July 2021

1. On 22 July 2021, the day after his arrest, the applicant appeared in the Fremantle Magistrates Court, before Magistrate Malone, and applied for bail.  The learned magistrate refused bail.  His Honour noted that the applicant had indicated he would be pleading not guilty to the charges, so they would proceed to trial in the District Court.  His Honour took into account that there would likely be a lengthy delay before the charges could proceed to trial. 

2. Through his counsel, the applicant had outlined his defence, essentially as will be set out below.  In a nutshell, the applicant claimed that the complainant had assaulted the applicant's female partner, and when the applicant confronted him about it, the complainant attacked the applicant.  The applicant admitted hitting the complainant with an axe handle, but claimed to have done so in self-defence.  He denied stealing any property from the complainant.  The magistrate considered that the prosecution case appeared to be more coherent than the defence case, as outlined, notwithstanding concerns about the credibility of the complainant.  Those concerns arose from the fact that the complainant was involved with illicit drugs and had admitted going to the Fremantle residence for that purpose. 

3. The magistrate had regard to the applicant's criminal history, which included assault offences and an aggravated armed robbery.  That history gave rise to a concern, in his Honour's mind, that the applicant might reoffend if released on bail. 

4. There was also information indicating that the applicant had contacted his co-accused to tell them that they should say nothing to the police, or say that they had not witnessed any robbery. However, his Honour accepted the applicant's submission that such contact might be regarded as being equally consistent with innocence as it was with a consciousness of guilt.  

5. The magistrate did not consider the applicant to pose a risk of flight out of Australia, although he noted the applicant's previous connection to South Australia, where he also has a criminal history.  The prosecutor had informed his Honour that the applicant had indicated to police that he was going to flee to South Australia. 

6. Ultimately, however, his Honour concluded that a grant of bail was not appropriate because of the seriousness of the alleged offence of aggravated armed robbery and the risk of the applicant reoffending.

7. Bail having been refused, any magistrate considering bail for subsequent appearances was entitled, pursuant to s 7D of the Bail Act 1982 (WA) (the Act), to adopt the decision of Magistrate Malone unless satisfied that new facts or circumstances had arisen, or the applicant's circumstances had changed, or that the applicant had failed to adequately present his case for bail on the previous occasion.[1]

21 September 2021

[1] The Act, s 7D(3).

1. The applicant again applied for bail in the Fremantle Magistrates Court on 21 September 2021, on the basis that there were changed circumstances.  Transcript of that hearing was not available in these proceedings.  However, it is apparent from the transcript of subsequent proceedings, on 9 November 2021, that the hearing on 21 September 2021 was before Magistrate Hills-Wright.  At that stage, the applicant had filed an affidavit in support of the application, and it was submitted on his behalf that there were changed circumstances. As I have understood the history, that threshold question was not determined at that hearing.[2]  Rather, Magistrate Hills-Wright adjourned the application to enable the prosecution to file an affidavit in response, and, although his Honour had not yet determined that his jurisdiction to consider bail was enlivened, he ordered a bail assessment report to determine the suitability of a home detention condition, to save time in the event that it were to be found at the next hearing that the jurisdiction to consider bail was enlivened, and that any grant of bail would have to be subject to a home detention condition.  

   [2] See Magistrates Court ts 9/11/21, p 5.

2. It appears that the application returned before Magistrate Hills-Wright on a subsequent unidentified date before 9 November 2021 (the interim date), at a time when the bail assessment report had been prepared, but the residential address proposed by the applicant was found to be unsuitable.  In those circumstances, the Magistrates Court was informed by the applicant's solicitor, Ms Byrne, by a letter sent before the interim date, that the application would not proceed on that date.[3]  There is some confusion about what then occurred on the interim date.  As I have understood the history, despite the indication in the letter from the applicant's lawyer, the applicant sought to proceed with the application on the basis that conditional bail should be set, without a home detention condition.  It appears from the transcript of proceedings on 9 November 2021 that a large amount of material had been lodged with the court by the interim date, including information about another residential address where the applicant proposed to reside with his partner, Letiah Broderick.  It appears that the application was adjourned to enable the magistrate to consider the materials.

9 November 2021

[3] Magistrates Court ts 9/11/21, p 5.

1. In any event, the application returned before the Magistrates Court on 9 November 2021 and was again considered by Magistrate Hills‑Wright.  By that stage, there was also before the court an affidavit from the applicant's solicitor, Ms Byrne, an affidavit from Ms Broderick, and materials filed by the prosecution, including an affidavit from the complainant, Mr Hooton, and an affidavit from Detective Senior Constable Wood, who is the complainant for the charge of assaulting a public officer.  The prosecution also relied on witness statements from the complainant's partner, Chanjira Udomsuk, and a witness, Preston Parfitt.  Both had attended with the complainant at the Fremantle address, but had remained outside in the vehicle.

2. The learned magistrate was satisfied that there were new facts or circumstances, which enlivened the court's jurisdiction to consider bail.  Those facts or circumstances included the information concerning Ms Broderick's residential address, the availability of a surety, evidence that Ms Broderick was pregnant, with the birth of the baby due in the new year, and the fact that the applicant intended to resume his air‑conditioning business.[4]  

   [4] Magistrates Court ts 9/11/21, pp 19 ‑ 20.

3. However, ultimately, his Honour refused bail.

4. The prosecutor submitted that the statements of Ms Udomsuk and Mr Parfitt corroborated aspects of the complainant's account, including that he was in an injured condition when he came out of the house.  The prosecutor also referred to a statement from a neighbour who said that a person (who the prosecutor submitted matched the description of the applicant) told them not to get involved.  Further, the prosecutor submitted that the applicant's account of the incident, as put at the bail hearing of 22 July 2021, was inconsistent with what the applicant had said in the telephone call of 15 July 2021, so there were issues with the applicant's credibility.

5. The prosecutor also submitted that there was information indicating there had been an attempt to interfere with witnesses, an attempt to bribe the complainant to not proceed with the charges, and a threat to the complainant that he would be found if 'the charges against the [applicant] were not dropped'.[5]  However, it was submitted by senior counsel on behalf of the applicant that what was being suggested by the prosecutor was an attempt to pervert the course of justice, and the applicant had not been charged with that offence, so he should be dealt with on the basis that he had not done so.

   [5] Magistrates Court ts 9/11/21, p 16.

6. The prosecutor also referred to two letters of support that had been annexed to the applicant's affidavit relied upon in the earlier bail application.  He noted that investigations by the police had revealed that the information provided by the authors of those letters was inaccurate. The magistrate noted that, while the results of those investigations might not give the court confidence in the information provided by the applicant, it was not determinative, and he did not consider it to be relevant any longer.  It seems the information was considered to be most relevant to the issue of flight. 

7. The magistrate did not consider the risk of flight to other states to be significant.  Further, while his Honour considered the alleged offending to constitute a serious example of an aggravated armed robbery, and that it would inevitably result in a very significant term of imprisonment if the applicant is convicted, his Honour did not consider that the case fell into the category of seriousness which, without more, would warrant a refusal of bail.  In addition, his Honour did not consider the strength of the prosecution case to be overwhelming, such that, of itself, it would provide the applicant with an incentive to flee.[6]  It appears his Honour was of the view that, notwithstanding the applicant's history, which included escaping lawful custody, conditions could be imposed that would sufficiently reduce the risk that the applicant would fail to appear.

   [6] Magistrates Court ts 9/11/21, p 21.

8. However, his Honour considered the prosecution case to be a relatively strong case and 'more coherent' than the defence case.[7] He had regard, in particular, to evidence of text messages sent to the complainant by a person named Robbie Oakes, which were sought to persuade the complainant to drop the charges against the applicant and were threatening in nature. Mr Oakes was one of the persons who had provided a letter of support for the applicant, stating he had been employed by the applicant.  The magistrate considered the text messages to be consistent with the complainant's account that he had been threatened by persons associated with the applicant.

   [7] Magistrates Court ts 9/11/21, pp 23 ‑ 24.

9. One aspect of the information on which the magistrate relied was incorrect.  The complainant had stated that the applicant wrote two phone numbers in pen on the complainant's jeans before the complainant left the Fremantle address.  The complainant said the applicant told him that he was to call the applicant's lawyer (who was named) and that one of the numbers was for a person whom the complainant was to call after visiting the lawyer.  The prosecutor informed the magistrate that one of the numbers had been determined to be for the lawyer, and the other had been traced to a person known to be connected with organised crime.  It is not correct that either of the numbers was for the named lawyer, and it was determined that one of the numbers was the applicant's mobile phone number.  The magistrate relied on the erroneous information as a further 'coherent link' to the complainant's version of events.[8]

   [8] Magistrates Court ts 9/11/21, pp 24 ‑ 25.

10. In any event, his Honour gave consideration to the conditions that had been proposed on the applicant's behalf, which included a residential condition, a curfew, a reporting condition, and protective conditions in relation to the complainant.  His Honour concluded:[9]

    But I'm not satisfied any of those conditions will sufficiently remove the risks the accused will reoffend or interfere with witnesses to endanger the safety and welfare of witness, including, of course, but not limited to the complainant.  On the totality of the material before me, including the further affidavit of Detective Senior Constable Wood and, in particular, the second statement of Mr Hooton, there is, in my view, an unacceptable release that if released on the proposed terms there will be greater scope and opportunity for the commission of further offences and interfering with witnesses. 

    There's a real risk and it cannot be significantly or sufficiently ameliorated by bail conditions.  In (sic) the alleged assault on Senior Constable Wood on 21 July 2021, in my view, remains a concern and reinforces that risk of reoffending, including with respect to law enforcement officers who may be required or do engage with Mr Silvester.

    [9] Magistrates Court ts 9/11/21, p 25.  Mr Hooton's second statement, to which the magistrate referred, is the statement in which he made the allegations of approaches from various persons to have him 'drop' the charges.

11. Accordingly, bail was refused.

12. This court is not concerned with the correctness or otherwise of the decisions made by Magistrate Malone and Magistrate Hills‑Wright.  However, I considered it appropriate to outline the history of the proceedings in the magistrate's court because it provides context for the application in this court and the additional information tendered by the applicant.

Next appearance

1. The applicant is next to appear in the Fremantle Magistrates Court for a committal mention hearing on 23 February 2022 in respect of all the charges the subject of this application.

Application in this court

1. The applicant filed the present application on 13 December 2021.  It is brought under s 14(2) of the Act and invokes the jurisdiction of this court under s 14(1), by which the court may exercise afresh the jurisdiction to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Act.  It is not an appeal from the magistrate's decision refusing bail.

2. This application was initially listed to be heard by Corboy J on 22 December 2021.  His Honour recused himself on the basis that he had presided over the sentencing of a co-accused of the applicant in relation to charges arising from the Greenough Regional Prison riot in July 2018.  As will appear later in these reasons, the applicant escaped from the prison at the time the riot was occurring.  Corboy J presided over a trial of issues to determine the factual basis on which to sentence the co-accused.  His Honour's findings in those proceedings included findings in relation to the applicant's conduct, which had the potential to affect his Honour's assessment of the applicant's credit in these proceedings, if such an assessment was necessary.

3. Corboy J therefore adjourned the application so it could be re-listed before another judicial officer.  However, to avoid further delay, and in anticipation of a possible finding by the court that a grant of bail would only be appropriate if subject to a home detention condition, his Honour requested a new bail assessment report to consider the suitability of the applicant and his new proposed residential address for such a condition. The bail assessment report was received on 4 January 2022.

4. The application proceeded before me on 25 January 2022. However, the hearing was adjourned until 10 February 2022 to enable the respondent to provide the court with a copy of the recording of the telephone call made by the applicant to the police on 15 July 2021,[10] and to allow the applicant to file any further affidavits in respect of matters raised at the hearing and both parties to file any further submissions in respect of such matters.

   [10] See [8] above.

5. The respondent subsequently filed a copy of the recording of the telephone call, which is an audiovisual recording made with her mobile telephone by the officer who took the call, and is focussed on the police landline telephone.  The respondent also filed a transcript of the recording.  The transcript appears to be reasonably accurate.  However, having listened to the recording carefully, I have identified a few places where I do not consider it to be accurate or where the transcriber has typed that the audio is 'indistinct', yet I am able to discern what is said. In dealing with the telephone call below, I have made changes or additions accordingly, to reflect what I find to be on the recording.  A further affidavit, sworn by Ms Byrne, was filed on behalf of the applicant.  In large part it sets out the applicant's instructions to Ms Byrne, whereby he seeks to explain parts of what he says during the call.  Neither party filed further submissions.

Legislative provisions and legal principles

1. As I noted earlier, under s 14(2) of the Act, the court may exercise afresh the magistrate's jurisdiction to grant bail conferred by s 13 and sch 1 pt A of the Act. Pursuant to s 13(1), the jurisdiction must be exercised subject to and in accordance with pt III of the Act and the further provisions in pts B, C and D of sch 1.

2. The principles relevant to the exercise of that jurisdiction are well known and are set out in Milenkovski v The State of Western Australia[11] and YSN v The State of Western Australia.[12]  It is sufficient to note the following key points. 

   [11] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 (Milenkovski) [39].

   [12] YSN v The State of Western Australia [2017] WASCA 155 (YSN).

3. The grant or refusal of bail is at the discretion of the court, which is required to have regard to the questions in pars (a) - (g) of cl 1 of pt C of sch 1 and any other questions which the court considers relevant.  Apart from in certain specified circumstances that are not relevant to this application, there is no express statutory presumption for or against bail.[13]  However, ordinarily, because of the structure of the statutory provisions, bail will be granted unless the court is satisfied that the accused should be kept in custody after considering those questions, having regard to the matters in cl 3 of pt C.[14]

   [13] Milenkovski [39] (McLure P, Pullin JA & Hall J agreeing).

   [14] Milenkovski [41].

4. The questions in cl 1 that are relevant for the purposes of this application are whether the accused may fail to appear in court as required by his bail undertaking, whether he may commit an offence if not kept in custody, whether he may endanger the safety or welfare of any person, and whether he may interfere with witnesses or otherwise obstruct the course of justice (either himself or through some other person).[15] If there is a real risk of any of those things occurring, I must consider, under cl 1(e), whether there are conditions that could reasonably be imposed which would 'sufficiently remove the possibility' of the accused doing those things; in other words, whether the risk would be sufficiently reduced by such conditions.

   [15] To avoid uncertainty, cl 1(g) requires the court to consider whether the circumstances of the alleged offending are so serious as to make a grant of bail inappropriate.  While the alleged offending was serious, it does not fall into the category contemplated by cl 1(g), as was conceded by the respondent.

5. In answering those questions, the matters I must take into account under cl 3 include: the nature and seriousness of the offence or offences and the probable method of dealing with the applicant if he is convicted; the applicant's personal circumstances, including his character and antecedents, which include any previous convictions; the history of any prior grants of bail to the applicant; and the strength of the evidence against him.

6. If I am satisfied there is a real risk that the applicant may fail to appear in court as required by his bail undertaking, may commit an offence if not kept in custody, may interfere with witnesses or otherwise obstruct the course of justice, or may endanger the safety or welfare of any person if he is not kept in custody, I must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and I must consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail, having regard to reasonable conditions that could be imposed.  In making that assessment and deciding whether there is a proper ground for refusing bail, I must have regard to the fact that the accused is presumed to be innocent of the offences with which he is charged and the risk of injustice if, ultimately, he was to be acquitted after being held in custody for a lengthy period.  In that context, it is also relevant to consider whether the time the applicant is likely to spend in custody on remand might exceed any term that is likely to be imposed if he is convicted of the offences charged.

7. The question is whether there are conditions that can be imposed, reasonably, such that the remaining risk no longer constitutes a proper ground for refusing bail.

8. A court may impose a home detention condition as a condition on a grant of bail to an accused who is over the age of 17 years if the court is satisfied, after considering a report from a Community Corrections Officer (CCO) about the accused and his circumstances, that the accused is suitable to be subject to a home detention condition, that the place where it is proposed the accused will remain while subject to the home detention condition is a suitable place, and that unless a home detention condition is imposed, the accused will not be released on bail.[16]  The Act sets out the conditions to which an accused is subject if released on bail with a home detention condition.  It is not necessary to set them out in detail for present purposes.  It is sufficient to note that, in effect, a person subject to such a condition is required to remain at his specified residence until the time when he is required, by his bail undertaking, to attend court, with a number of exceptions relating to working or obtaining work, as approved by a CCO, seeking urgent medical or dental treatment, averting or minimizing a serious risk of death or injury to the accused or another person, obeying an order issued under a written law, requiring the accused to be present elsewhere, a purpose approved by a CCO or a direction given by a CCO. 

   [16] The Act, sch 1 pt D cl 3(1) and (2).

9. An accused who is subject to home detention must not leave Western Australia and must comply with every reasonable direction of a CCO. 

10. If a CCO recommends that the accused be subject to electronic monitoring, the court may direct the accused, while subject to the home detention condition, to be subject to electronic monitoring, so as to allow the location of the accused to be monitored, and to be under the supervision of a CCO and comply with the directions of the CCO in relation to electronic monitoring.[17]  A CCO may direct an accused to wear an approved electronic monitoring device and to permit the installation of an approved electronic monitoring device at the place where the accused is to remain, and may also give any other reasonable direction to the accused necessary for the proper administration of the electronic monitoring of the accused.[18]

    [17] The Act, sch 1 pt D cl 3(4).

    [18] The Act, sch 1 pt D cl 3(5).

11. I note that, while a judicial officer must consider a report from a CCO about the accused and his circumstances to determine if the judicial officer is satisfied that the accused is suitable to be subject to a home detention condition, and that the place where it is proposed the accused will remain while subject to the home detention condition is a suitable place, that determination may depend also on other evidence and factors.  The court will give due weight to an opinion expressed by a CCO about the suitability of an accused and his proposed residence for a home detention condition.  However, it is for the court to be satisfied about those matters, having regard to all of the materials in the application and all the considerations in sch 1 pt C of the Act.  At the stage that the court is considering a home detention condition, it will have reached the conclusion that unless such a condition is imposed, the accused will not be released on bail.  In other words, there is no other combination of conditions that, without home detention, would sufficiently remove any risk identified under cl 1(a) of sch 1 pt C.  The question remains, ultimately, whether a home detention condition, alone or in combination with other conditions, would sufficiently remove such a risk, such that the remaining risk no longer constitutes a proper ground for refusing bail.

Materials before the court

1. The application is now supported by:

   (1)an affidavit of the applicant, dated 13 December 2021 (the applicant's affidavit), which annexes the statement of material facts, prosecution notices, the applicant's criminal record, a letter from Holyoake counselling service and a letter of support from his mother;

   (2)an affidavit of Letiah Lace Broderick, the applicant's partner, dated 13 December 2021 (Ms Broderick's affidavit); and

   (3)an affidavit of the applicant's solicitor, Josephine Mary Pauline Byrne, dated 3 February 2022 (Ms Byrne's affidavit), which annexes Telstra bills and an invoice relating to a specified phone number, being the applicant's mobile phone number,[19] and a medical report dated 17 March 2021 from Professor Peter Panegyres, a Clinical Professor of Neurology.

   [19] This is one of the numbers that was written on Mr Hooton's trousers.  It is also the number from which the phone call was made by the applicant to the Fremantle Police station on 15 July 2021.

2. The applicant also filed written submissions and a minute of proposed conditions of bail.

3. The respondent is represented by the Director of Public Prosecutions for Western Australia. The respondent filed written submissions attaching:

   (1)the statement of material facts;

   (2)the applicant's criminal history;

   (3)statements from the following witnesses:

   (i)Mr Hooton (15 July 2021 and 12 August 2021);

   (ii)Ms Udomsuk (15 July 2021);

   (iii)Mr Parfitt (12 August 2021);

   (iv)Probationary Constable Crossland (2 September 2021);

   (v)Detective Senior Constable Rosanna Younger McKee (DSC McKee) (21 September 2021); and

   (vi)Detective Senior Constable Christopher Wood (DSC Wood) (28 September 2021);

   (4)a statement of Dr Arnout Faveere, dated 16 August 2021, attaching his medical report in relation to the complainant's injuries;

   (5)an affidavit of Mr Hooton, dated 1 October 2021;

   (6)an affidavit of DSC Wood, dated 1 October 2021 (DSC Wood's affidavit), which attaches screenshots of messages sent from Robbie Oakes to Mr Hooton; and

   (7)an affidavit of Police Sergeant Nathan Robert Good (Sergeant Good), dated 30 September 2021 (Sergeant Good's affidavit); and

4. On 20 January 2022, the applicant also filed two security reports from Hakea Prison, dated 27 October 2021 and 9 December 2021, concerning documents emanating from the applicant, which were intercepted by prison security.

5. As I noted earlier, after the hearing of the application, the respondent also filed an audiovisual recording of the telephone call of 15 July 2021 and a transcript of that recording.

6. In addition to the materials filed or tendered by the parties, the court has the bail assessment report dated 4 January 2022, prepared by a CCO at the Rockingham Adult Community Corrections Centre (the CCO), and endorsed by her team leader.

The respondent's position

1. The respondent opposes the grant of bail on the basis that there are no conditions that would remove the possibility that the applicant would commit a further offence whilst on bail, interfere with witnesses or fail to appear.

The alleged facts

1. It is convenient to deal first with the circumstances of the alleged offending, and the applicant's response to the allegations, as those matters go to at least two factors under cl 3 of sch 1 pt C of the Act, namely, the nature and seriousness of the offences and the probable method of dealing with the applicant if he is convicted, and the strength of the evidence against the applicant.

Aggravated armed robbery and stealing of motor vehicle

State's case

1. The State's case in respect of the charges of aggravated armed robbery and stealing a motor vehicle relies on the statements of Mr Hooton, Ms Udomsuk, Mr Parfitt and Probationary Constable Crossland, and the medical report of Dr Faveere.  However, the State also appears to rely on alleged lies by the applicant during the telephone conversation between him and DSC McKee on 15 July 2021, and the fact that he took flight when the police attempted to arrest him on 21 July 2021, as evidence of a consciousness of guilt in respect of the charged offences.

2. The State's case is as follows.

3. The complainant, Mr Hooton, knew the applicant from prison, having served a term of imprisonment at the same time as the applicant between October 2020 and January 2021.  He believed that they were on good terms.

4. At the time of these events, Mr Hooton was a user of methylamphetamine.  Levi Bradford was someone who had supplied Mr Hooton with methylamphetamine.  On 14 July 2021, Mr Hooton was contacted by Mr Bradford, who arranged for Mr Hooton to purchase a quantity of prohibited drugs from an associate, saying he would have to go to a 'mate's brother's place'.[20] At approximately 8.00 pm that day, Mr Hooton drove, on Mr Bradford's instruction, to a location near Fremantle, where he picked up Mr Bradford in his Nissan Navara vehicle. Also in the vehicle were Mr Hooton's partner, Ms Udomsuk, and Mr Parfitt, an acquaintance who Mr Hooton had known for a couple of weeks.[21]  Mr Parfitt had asked for a lift to an address north of the river, and it seems his presence was incidental.

   [20] Statement of Brian Hooton, 15/07/21 [18].

   [21] Statement of Brian Hooton, 12/08/21 [3] - [11].

5. After collecting Mr Bradford, Mr Hooton then drove at Mr Bradford's direction to a residential address in Attfield Street, Fremantle.

6. Upon arrival at the Attfield Street address, Mr Hooton parked his vehicle one or two houses down from the address.  He and Mr Bradford then went to the front door. Mr Hooton took his backpack with him.  Ms Udomsuk and Mr Parfitt remained in the car.

7. At the front of the house, Mr Bradford made a phone call to someone called Brad.  The applicant then opened the front door.  Mr Hooton says he was surprised, but pleased to see the applicant, who greeted him warmly.

8. The applicant then took Mr Hooton and Mr Bradford down a ladder to a lower floor into an area described by Mr Hooton as a 'man cave' area.  All three men sat on a couch in that area and chatted.  The conversation in part was about another associate, named Sang, who the applicant said was 'doing it tough' in prison.[22]  At some point, the applicant told Mr Bradford he could go, and he would 'sort [him] out next time.'[23] The applicant then offered Mr Hooton a drink and went through a sliding door to another room. Mr Bradford asked Mr Hooton whether he was 'right', to which Mr Hooton replied, 'Yeah, we right, he's my bro.'[24] Mr Bradford then left, going back up the ladder.

   [22] Statement of Brian Hooton, 15/07/21 [45].

   [23] Statement of Brian Hooton, 15/07/21 [47].

   [24] Statement of Brian Hooton, 15/07/21 [50] ‑ [51].

9. The applicant then suddenly ran back into the room and attacked Mr Hooton with a wooden axe handle, yelling, 'You fucking dog.'[25] The applicant attempted to strike Mr Hooton on the head. Mr Hooton blocked the blow with his right arm. The applicant again attempted to hit Mr Hooton on the head, but Mr Hooton deflected the blow with his left hand.  Mr Hooton says the applicant was yelling at him, 'You know what you're supposed to do, you're letting me down, you're making me look like a goose.'[26] The applicant then hit Mr Hooton with the wooden axe handle to the legs and other parts of his body multiple times. He made Mr Hooton remove his gold ring and told him to remove his clothes.  He also took Mr Hooton's backpack and pulled a gold necklace from his neck.  The backpack contained $7,000 in cash, a number of keys to vehicles and an Airbnb property, a chequebook and personal effects belonging to Mr Hooton's mother and Mr Hooton's wallet, which contained his bank card.

   [25] Statement of Brian Hooton, 15/07/21 [56].

   [26] Statement of Brian Hooton, 15/07/21 [62].

10. At some point during the assault, Kobi St John Ruse entered the room and told them to keep it down.  He also and asked Mr Hooton where his car keys were.  Mr Ruse was also known to Mr Hooton from prison.[27] The applicant told Mr Ruse to 'fuck off.'[28]  

    [27] Statement of Brian Hooton, 15/07/21 [78].

    [28] Statement of Brian Hooton, 15/07/21 [80].

11. The applicant instructed Mr Hooton to contact a certain lawyer and sign a 'section 11' for 'one of the boys inside'.[29]  Mr Hooton understood this to mean that he was to take responsibility for an offence the person in prison had committed.  He believed it was someone who had been charged with an offence in respect of a substantial amount of methylamphetamine.[30]  Mr Hooton says the applicant told him he did not want to hear any excuses, and to 'just get it done'.[31]  He says the applicant told him, 'You know I'll come if you don't do it, you'll be found, I'll come and I'll rape your wife.'[32]

    [29] Statement of Brian Hooton, 15/07/21 [69].

    [30] Statement of Brian Hooton, 15/07/21 [71] ‑ [73].

    [31] Statement of Brian Hooton, 15/07/21 [74].

    [32] Statement of Brian Hooton, 15/07/21 [75].

12. The applicant then wrote two numbers on Mr Hooton's trousers. The statement of material facts asserts that one of the numbers was the applicant's lawyer's number.  As I noted earlier, the same assertion was made in the Magistrates Court, but is wrong.  Mr Hooton does not say in his statement that he was told by the applicant that one of the numbers was the lawyer's number.  He says the applicant told him that the second number he wrote was for someone he had to call after he (Mr Hooton) had spoken with the lawyer. However, he was given the lawyer's name, and there is nothing in his statement about the ownership of the first number written by the applicant. 

13. It was accepted by the respondent during the hearing of this application that the first number written by the applicant was his own phone number, being the number from which he called the police the following day.

14. Mr Hooton says that the applicant told him he did not want to do 'this', but he had to.  The applicant also told him that he (Mr Hooton) would be killed by 'the boys' if he did not comply with the applicant's demands.[33]  

    [33] Statement of Brian Hooton, 15/07/21 [83].

15. The applicant then told Mr Hooton to get dressed and get up the ladder.  Mr Hooton says he could hardly stand, as his arms and legs were aching, but he did as he was told, although he struggled to get up the ladder.

16. It is apt to interpose that the applicant was later taken to hospital and was found to have mid-shaft fractures to the ulna in his right forearm, fractures in his left wrist, and a fracture of the fibula in his right leg around the area of his knee.[34]  He also had extensive bruising, including on the rear of his legs, and lacerations to the shins. He required treatment in hospital for his injuries.

    [34] Report of Dr Faveere (annexed to statement dated 16/08/21), p 1.

17. After he was told to get up the ladder, Mr Hooton was escorted by the applicant and Mr Ruse out the front door.  The applicant was still carrying the wooden axe handle, and Mr Ruse was carrying what appeared to be a metal baseball bat. Ms Udomsuk and Mr Parfitt, who were still waiting in the car, saw the three men come out of the house.    Both describe seeing Mr Hooton looking like he was very hurt.  Mr Parfitt says Mr Hooton was 'limping and battling to walk out of the front of the house'.[35] He says Mr Hooton was mumbling and looked 'pretty beaten up'.[36]

    [35] Statement of Preston Charles Parfitt, 12/08/21 [27].

    [36] Statement of Preston Charles Parfitt, 12/08/21 [31].

18. Ms Udomsuk and Mr Parfitt describe the other two men by their appearance. Ms Udomsuk says that Mr Hooton later identified one of them as 'Brad'.  It is apparent from their descriptions that the applicant was the shorter of the two men and had dark hair, whereas Mr Ruse was taller and had lighter coloured hair.  Ms Udomsuk says that Brad (the applicant) came over to the car and instructed her repeatedly to get out of the car and to take her belongings with her. By that stage, Mr Parfitt was already out of the car.  He eventually left the scene, taking his belongings, as he did not want to be there when police arrived.  He states that before he did so, Mr Hooton was on the ground, screaming in pain.[37]  He also states that the male, who, from his description, would appear to have been the applicant, told Mr Parfitt to get Mr Hooton out of there as there were more boys coming.[38]

    [37] Statement of Preston Charles Parfitt, 12/08/21 [48].

    [38] Statement of Preston Charles Parfitt, 12/08/21 [42].

1. According to Mr Hooton, the applicant told Mr Ruse to look for the car keys.

2. Ms Udomsuk tried to call an ambulance, but Mr Ruse took her phone away from her.   Mr Hooton and Ms Udomsuk went across the road, but Mr Hooton could not stand up properly because of his injuries and he collapsed.  He states that the pain in his legs was too much.

3. The applicant and Mr Ruse then stole Mr Hooton's Nissan Navara and his belongings that were inside the vehicle.  They drove away from the scene in the vehicle.  Inside the vehicle was a bag containing a Rolex watch and a gold bracelet.

4. A neighbour or passer-by called emergency services and told Ms Udomsuk they had called the police.  The police and an ambulance eventually arrived.  Probationary Constable Crossland was one of the first officers to arrive at the scene.  He states that the victim (Mr Hooton) looked in pain and was unable to respond to police questions at the time.[39] Mr Hooton was then taken to hospital by ambulance.

   [39] Statement of Dane Kevin Crossland, 02/09/21 [5].

5. The aggravated armed robbery charge relates to the stealing from Mr Hooton with violence the $7,000 cash, jewellery, the Rolex watch that was in the vehicle, two mobile phones and personal effects, including his wallet.  None of the property was recovered.  The charge of stealing a motor vehicle relates to the stealing of Mr Hooton's Nissan Navara.  That vehicle was later recovered abandoned, bearing false number plates and in a damaged condition.

6. Police executed a search warrant at the Attfield Street address on the morning of 15 July 2021, a short time after 4.05 am.[40]  Although evidence of the following matters was not tendered in these proceedings, they were referred to in the respondent's outline of submissions and were not disputed by the applicant at the hearing:

   (1)A blood swab, taken from a couch in the area of the Attfield Street property where Mr Hooton said he was sitting, returned a DNA profile matching Mr Hooton's profile.

   (2)A wooden axe handle was located at the residence.

   [40] Statement of Dane Kevin Crossland, 02/09/21 [36] ‑ [39].

7. At 12.12 pm on 15 July 2021, the applicant telephoned the Fremantle Police Station, connecting with the landline for DSC McKee, who answered the call and spoke with the applicant.  DSC McKee made an audiovisual recording of the call, using her mobile telephone. 

8. I will deal with the call in more detail later in these reasons.  At this stage it is sufficient to note that the applicant indicated he was in possession of the search warrant, which I infer was left at the Attfield Street address by police, and purported to complain about the search (although he had not been present), demanding to know on what basis the search had been conducted.  DSC McKee told the applicant that he was a suspect and he should come to the police station to discuss the allegations that had been made against him. The applicant nevertheless continued to discuss the matter on the telephone.  He admitted that he was aware the complainant had been at the Attfield Street address the previous night, and claimed that the complainant had suffered some minor injuries by falling down some stairs.  The applicant denied having assaulted anyone and denied seeing a vehicle.  He said he would not come to the police station until he had spoken with his lawyer. He asked for DSC McKee's contact details, as he only wanted to deal with one person.

9. The applicant contacted DSC McKee again at 1.07 pm and said he would not be able to hand himself in until the following week, as his lawyer was unavailable until then.  DSC McKee informed the applicant that he was a suspect, and he had to hand himself in.[41]

   [41] Statement of Rosanna Younger McKee, 21/09/21 [9].

10. The same day, police arrested Mr Ruse at an address in Palmyra and seized his mobile telephone.[42]  The police were also looking for Mr Bradford, who was also a suspect.  He subsequently handed himself in to the Fremantle Police Station and was arrested.

    [42] Statement of Rosanna Younger McKee, 21/09/21 [11] ‑ [16].

11. Police enquiries uncovered encrypted messages on Mr Ruse's mobile phone, between him and the applicant, referring to elements of the police investigation.[43]  In those messages, the applicant instructed Mr Ruse to speak with Mr Bradford and to tell him that if he speaks to police, to say he did not see any robbery occur at the Attfield Street address.[44]

Applicant's case

[43] Statement of Material Facts for Brief No 21 10667-3, dated 21 July 2021, p 4.

[44] Statement of Material Facts for Brief No 21 10667-3, dated 21 July 2021, p 4.

1. The applicant's account of the relevant incident is set out in his affidavit of 13 December 2021.[45]  He disputes the State's case and says he has sworn statements from two witnesses, which indicate that the State's case is untrue.[46]  He says those witnesses will be called at trial. The applicant's partner, Ms Broderick, states in her affidavit that she has read the applicant's version of what occurred on 15 July 2021 (this appears to be an error and should refer to 14 July 2021) and confirms that the applicant's version is true and correct insofar as matters occurred in her presence, and she will give evidence to that effect.[47]

   [45] Applicant's affidavit [16] ‑ [17].

   [46] Applicant's affidavit [19].

   [47] Ms Broderick's affidavit [4] ‑ [5].

2. In essence the applicant admits that he was at the house on the day in question and that an altercation occurred between him and the complainant. However, his account differs markedly from the applicant's account. In essence, he claims that he assaulted the complainant in self-defence.  His account is as follows.

3. The applicant states that on the day of the incident he was preparing the house in Attfield Street for a few friends to come over that evening, including Mr Bradford, who said he was going to bring a friend, but did not say who it was.  The applicant states that the house is owned by a friend, and that he and Ms Broderick had been living there as caretakers. He states that the two of them had been packing their belongings for a move to a rental property in Nollamara.

4. According to the applicant, Mr Ruse and Ms Broderick were both in the house when Mr Bradford arrived with Mr Hooton around 5.45 pm.  The applicant states he had not invited Mr Hooton and was not aware he was attending.  He says Mr Bradford had been to the house previously.

5. The applicant explains that the house has three levels.  The lower level was the living area and opened to the backyard.  The middle level was the entry, and the upper level was unused.  I also infer from what he goes on to describe that there was a bathroom on the middle level. 

6. The applicant states that when Mr Bradford and Mr Hooton arrived, he was in the lower level of the house, and Ms Broderick was on the middle level.  He says he was not initially aware that the two men had arrived.  He states that, although he had no idea at the time, at some point after Mr Hooton arrived, Ms Broderick caught Mr Hooton rifling through her handbag in the bathroom and confronted him about it, when she saw a syringe in the bathroom.  He states (based on what Ms Broderick allegedly told him) that Mr Hooton grabbed Ms Broderick and slung her around, causing her minor injuries.  It is to be inferred from the applicant's account that, after that incident occurred, Mr Hooton and Mr Bradford made their way to the lower level as if nothing had happened.

7. I note that, in his affidavit of 1 October 2021, Mr Hooton refutes the applicant's evidence that Ms Broderick was at the Attfield Street house on the day of the incident.  Consequently, he denies having assaulted Ms Broderick.  He maintains that he has never met Ms Broderick.  Detective Senior Constable Wood, in his affidavit of 1 October 2021, states that, as at that time of his affidavit, there had been no complaint lodged by Ms Broderick with the police in relation to an alleged assault at the Attfield Street house.

8. Returning to the applicant's account in his affidavit, he states that, when Mr Hooton arrived with Mr Bradford at the lower level of the house, he recognised Mr Hooton, as they had been in prison together.  He states they were happy to see each other and greeted each other warmly.  He states he felt no animosity towards Mr Hooton, having been friends with him while they were in prison.

9. The applicant states that he poured a drink for Mr Hooton, Mr Bradford and himself and they had a conversation in the kitchen area.  He says he then went upstairs and spoke to Ms Broderick, who told him about what Mr Hooton had done to her.  She was upset and stressed, and showed him her injury.  The applicant states that he then went for a walk with Ms Broderick to the service station on the corner of Hampton Road and South Street, some 200 metres away, where he bought a drink for Ms Broderick and an ice-cream for himself.  He then told Ms Broderick to go to 'somewhere she felt safe', so she left to a nearby Airbnb residence that she had previously booked for other friends who were going to be attending the Attfield Street residence that evening.  The applicant says Ms Broderick remained there until those friends arrived.

10. I note that neither Ms Udomsuk, nor Mr Parfitt refers to seeing anyone leave the house before Mr Hooton emerged in an injured state, with the two men accompanying him.

11. The applicant states that, upon his return to the house, after Ms Broderick left for the Airbnb, he confronted Mr Hooton about the assault, and a heated exchange ensued.  He says Mr Hooton got off the couch and punched him to the left side of his head, near his temple.  He says he tried to hit Mr Hooton back, but missed.  He says Mr Hooton punched him again.  He says that he and Mr Hooton were yelling at each other, and that Mr Ruse came down and told them to keep it down.  The applicant says he told Mr Ruse to 'fuck off', and that Mr Hooton punched him again as he said that.

12. The applicant states that 'a fight broke out' lasting approximately three minutes.  He says that he and Mr Hooton wrestled on the couch and ended up on the floor.  He says Mr Hooton started kicking him and 'trying to use karate moves' on him.  The applicant says that, to protect himself, he picked up a piece of wood and hit Mr Hooton on the right leg four to five times in self-defence, screaming, 'Who are you?' as he did so.  He says that, although he was not aware initially what it was he had picked up, he subsequently realised it was a wooden axe handle.

13. The applicant states he stopped hitting Mr Hooton when he realised Mr Hooton was in pain.

14. According to the applicant, Mr Bradford saw the start of the fight, but then left.

15. The applicant states that, after the fight, Mr Hooton said he would go to the police.  He says he told Mr Hooton to 'go for it'.  He says he wrote his and Ms Broderick's phone numbers on Mr Hooton's jeans and told him to tell the police what he had done to Ms Broderick.

16. The applicant says that, at approximately 8.10 pm, he escorted Mr Hooton out of the house towards his car and told him to leave.  He says they walked up a 12-foot ladder from the lower level to the middle level of the house, and out onto the street.  He says Mr Hooton's car was about 20 metres away.  He says he was still holding the axe handle in his hand as he was worried Mr Hooton would have a weapon in his car, knowing Mr Hooton had previously been incarcerated for weapons offences.

17. The applicant says he saw Mr Hooton go to his car and speak to a woman 'who appeared to be his partner' and a man, both of whom were waiting in the car.  The applicant claims that Mr Ruse then called for an ambulance, using the woman's phone, because the 000 operator could not understand the woman's Vietnamese accent.

18. The applicant states that, after the ambulance was called, Mr Hooton, together with the man and the woman who had been in the car, walked down the street.  He says, in relation to Mr Hooton:[48]

    His arm appeared to be injured and he did not drive his car away.

    [48] Applicant's affidavit [16(aa)].

19. The applicant states that he then went inside the house and locked the doors.  The applicant goes on to say that, 'unbeknown to him', Mr Ruse drove Mr Hooton's car 'off the street and down the road' at the request of a neighbour.  It is unclear from whom the applicant received that information.  In any event, I give it no weight, as it is not within his direct knowledge.

20. The applicant says that at no stage did he see at the Attfield Street house any of the property the subject of the aggravated armed robbery charge, being $7,000 in cash, jewellery, a backpack, an iPhone, a wallet, a bank card and keys.  He denies that a robbery took place.

21. The applicant also denies ever touching Mr Hooton's car or ever being inside it.  He says he did not steal or attempt to steal Mr Hooton's car or any other property belonging to him.

22. The applicant does not refer in his affidavit to his telephone calls to the Fremantle Police Station on 15 July 2021.  Nor does he refer to his messages to Mr Ruse after the incident.

23. It is clear from the applicant's affidavit that he was aware, when Mr Hooton left the Attfield Street address, that he was injured, and his condition was such that an ambulance was called.  It is also clear that the applicant describes no event that could have resulted in any injuries to Mr Hooton, other than the assault the applicant inflicted on him.

Assault public officer

State's case

1. The State's case in relation to the charge of assaulting a public officer is as follows.

2. Around 10.45 am on 21 July 2021, the applicant was located by police in Nollamara. DSC Wood was one of the officers in attendance.  He and his fellow officer, with whom he was on duty, were in plain clothes.  DSC Wood got out of the police vehicle and approached the accused.  He identified himself as a police officer, producing his police identification, and instructed the applicant to stop.  A short pursuit on foot ensued onto the driveway of a residential property in Kweda Way.

3. DSC Wood attempted to arrest the applicant, but the applicant resisted arrest, punching DSC Wood once to the right cheek, which caused DSC Wood to feel immediate pain and to stumble backwards.[49] That assault is the basis of the charge.

   [49] DSC Wood's statement, 28/09/21 [44].

4. DSC Wood attempted to tackle the applicant to the ground, but the applicant managed to run away.  He scaled a side fence and, in the process, appeared to be shaping to kick DSC Wood, who continued in pursuit.  DSC Wood deployed his taser, connecting with the applicant's rear midriff area. The applicant yelped, apparently in pain, but managed to get over the fence and go out of sight. He was located by other officers a short distance away, hiding in a tree. He was arrested and subsequently charged with the offence of assaulting a public officer.

5. DSC Wood suffered reddening and swelling of his face as a result of the assault. He also received minor injuries to both knees during his attempts to restrain the applicant.

6. The applicant was conveyed to Sir Charles Gairdner Hospital for medical assessment.  He was subsequently taken to the Fremantle Police Station where he declined to be interviewed and was refused police bail.

7. The statement of material facts asserts that the applicant admitted to assaulting DSC Wood, and that the admissions were captured made by body cameras worn by the arresting officers.  However, no evidence of such admissions has been tendered in these proceedings, and I will not rely on that assertion.

Applicant's case

1. The applicant's account of these events, as stated in his affidavit, is as follows.

2. He states that, around 11 am on 21 July 2021, he was on Kweda Way in Nollamara when a 'Police car came down the street' towards him and a police officer approached him, saying, 'Oi cunt.'[50] In his affidavit, DSC Wood denies he said those words. 

   [50] Applicant's affidavit [18(a)].

3. The applicant says that the police car, which was an unmarked detectives' car, screeched to a halt within two metres of him.  He also says that the police officer who emerged from the vehicle was in plain clothes and not unidentifiable as a police officer except for his bullet-proof vest.  I do not see the point of that statement, as the applicant plainly recognised the vehicle as a police vehicle, and the officer as a police officer.

4. The applicant explains the fact that he took flight from the police officer by reference to an incident in 2018, when he was unlawfully assaulted by a police officer after he was arrested for the offence of escaping lawful custody (being an escape from Greenough Regional Prison in 2018, to which I will return).  He says that, on that occasion, he was 'badly assaulted to the head and face' leaving him with a 'serious and life-threatening brain injury' and Post-Traumatic Stress Disorder.[51] He states that he has suffered numerous seizures in the last three years and is on anti-epilepsy medication. He states that his specialist neurosurgeon attributes his brain injury directly to that incident.  

   [51] Applicant's affidavit [18(h)], [18(j)].

5. The incident referred to by the applicant was the subject of proceedings in Boult v Williams [2019] WASC 98 (Boult v Williams), which was an appeal against sentence by the police officer who assaulted the applicant.  He had pleaded guilty in the Magistrates Court to a charge of common assault, arising from the incident, and had been sentenced to a term of suspended imprisonment.  On appeal, that sentence was set aside, and a fine of $1,000 was substituted.  The appeal judge, Strk AJ (as her Honour then was), referred to the following facts, which were not contentious. 

6. On 26 July 2018, the appellant had been assisting with the search for, and apprehension of, a number of escapees from Greenough Regional Prison.  At approximately 8.30 am, Mr Silvester (the applicant), one of the escapees, was found hiding in bushes and was arrested and handcuffed by officers other than the appellant.  Strk AJ continued (footnote omitted):[52]

   While Mr Silvester was being escorted away with the appellant walking in front of him, the appellant turned and punched him in the forehead, unprovoked, causing slight redness and swelling. Mr Silvester did not require medical treatment.

   [52] Boult v Williams [3].

7. Strk AJ did go on to say later (footnote omitted):[53]

   For completeness, I note that the court was informed of certain communications that the respondent had received from solicitors acting for Mr Silvester, alleging that he had suffered serious injuries as a consequence of the assault. No medical evidence had been provided to the respondent to suggest a causal link between the assault and the symptoms complained of by Mr Silvester. In the absence of medical evidence to suggest that Mr Silvester sustained injuries that were caused by the assault, the respondent did not seek to place any further material before the court.

   [53] Boult v Williams [30].

8. In fairness to the applicant, he was not a party to those proceedings, although he was permitted, as the victim of the offence, to provide a letter to the court for the purposes of resentencing, referring to the emotional impact of the offence on him, which her Honour took into account.[54]

   [54] Boult v Williams [31].

9. In the present proceedings, the applicant relied on Professor Panegyres's report of 17 March 2021 in support of the proposition that the applicant suffers from a post-traumatic brain injury and a seizure disorder.  It is evident from that report that, in the past, the applicant has had numerous seizures, at least some of which have involved loss of consciousness, and some of which have resulted in injury. There could be no doubt that his seizures have been distressing.  He has been on medication for the epileptic disorder. Although it appears the applicant had been seriously assaulted to the head in 2012, resulting in unconsciousness, and had suffered multiple concussions (some involving loss of consciousness) playing Australian Rules football for many years prior to the incident in which he was assaulted by the police officer, Professor Panegyres notes that the applicant had his first 'generalised tonic-clonic seizure' about five days after the assault by the police officer.  I accept that to be the case.  However, Professor Panegyres does not directly address the question of the causal link between the assault by the police officer and the applicant's ongoing condition, or the relevance to that condition of the applicant's previous concussions.

1. Irrespective of whether the assault by the police officer was in fact causally connected to the applicant's first seizure and his continuing disorder, or the only cause, I accept that the applicant believed at the time of his arrest on 21 July 2021, that there was such a causal connection.  However, whether it is a reasonable explanation for the applicant's conduct on that day is another matter.

2. The applicant says in his affidavit that the 2018 incident had left him apprehensive of police.  He says that the officer who assaulted him in 2018 was wearing the same sort of attire as the officer (DSC Wood) was wearing on 21 July 2021. He says:[55]

   Once the Police Officer started to approach me in circumstances where I believed I had [done] nothing wrong, I panicked and attempted to evade him.

   [55] Applicant's affidavit [18(c)].

3. This explanation needs to be considered in the context of the telephone conversation the applicant had with DSC McKee on 15 July 2021.  During that call, the applicant denied having assaulted the complainant.  When told by DSC McKee that he should hand himself in to the police and talk about the matter at the police station, he said:[56]

   I don't see the point in, um, coming in there and then arguing with you over something that I didn't do.

   [56] Transcript of telephone call recording, p 7.

4. He also expressed concern that, if he attended a police station, he would be put in the lock-up overnight.  In that context, he referred to the 2018 incident, saying:[57]

   [T]he problem I've got, right, is the last time I dealt with you guys, you king hit me in a group. Right. I've – I have seizures, right, because of the king hit I sustained

   [57] Transcript of telephone call recording, p 9.

5. He told DSC McKee that, therefore, he was 'a little bit reluctant to want to deal with you people'.[58]  However, he also told DSC McKee to look up the case, as the police officer had been prosecuted, so he was aware that any unlawful behaviour of that kind from a police officer would have consequences for that officer.  Further, notwithstanding his reference to the 2018 incident, the applicant then indicated to DSC McKee that he would attend the police station after he had spoken with his lawyer.  He also said to DSC McKee that he was going to be on his way to see his lawyer 'right now', naming the lawyer and saying:[59]

   Go - you can send – send your detectives there if you want – if you would like to cut me off before I get there. That's okay.

   [58] Transcript of telephone call recording, p 9.

   [59] Transcript of telephone call recording, p 11.

6. Soon after, he said to DSC McKee, 'You will be seeing me, 100 percent.'[60] However, as I noted earlier, he later called DSC McKee to say he would not be able to see his lawyer until the following week, and so would not be attending a police station until then.

   [60] Transcript of telephone call recording, p 12.

7. It is evident, therefore, that the applicant knew the police were looking for him, and that they wanted him to hand himself in.  He had invited them, albeit sarcastically, to intercept him on his way to his lawyer.  In those circumstances, I have difficulty accepting the applicant's claim that, when he saw DSC Wood approach him, he panicked because of what had happened to him in 2018.  If he believed he had done nothing wrong, one might have expected him to surrender and give his account, rather than resist arrest and attempt to evade the police.

8. The applicant goes on to say in his affidavit that he ran away into a driveway of a friend's house, which was a dead end, and he turned around to find the police officer right upon him.  While the applicant does not expressly deny he punched the police officer, he makes no mention of doing so in his account, and appears to give an alternative version of what happened to DSC Wood.  He says that, as he turned, his backpack knocked the police officer on the shoulder.  He says that the officer then grabbed the backpack and, in attempting to pull it off the applicant's shoulders, fell backwards onto the ground.  The applicant says kept running, with the police officer in pursuit on foot, and the police car following.

9. The applicant says he was tasered in the back near his right kidney as he was jumping over a high fence, causing him to fall off the fence on the other side.  He says he scaled another fence and then hid in a shrub, where he had an epileptic fit and suffered incontinence.  He says he was then found by the police and was taken to hospital in an ambulance.

The applicant's telephone call to police on 15 July 2021

1. It is convenient at this point to return to the applicant's telephone call to the police on 15 July 2021.

2. As I noted above, it is apparent from what the applicant said during the call that he was in possession of, and reading from, documentation found by him at the Attfield Street address.  From his comments, I infer that he was in possession of a copy of the search warrant and the log of exhibits seized, which were left at the premises.  That was confirmed by the applicant towards the end of the call when DSC McKee said that he had 'obviously got a copy of the search warrant log that [the police] had left behind', and he said, 'Yes, I have.'[61]  The search warrant referred to the alleged offences and listed items for which the police were searching, including weapons and the property allegedly stolen from Mr Hooton.  The alleged offences, as read by the applicant included aggravated robbery, threats with intent to gain a benefit, doing an act or making an omission causing bodily harm and stealing a motor vehicle.

   [61] Transcript of telephone call recording, p 12.

3. After the applicant said that he did not know what the allegations were about, DSC McKee told him that he was being treated as a suspect and did not have to speak to the police or answer any questions.  The applicant said he knew that. The applicant then said (omitting hesitations or stutters):[62]

   I'm calling you because … just to try and figure out exactly what this [allegation] – whose made the allegation? From as far as I know, right, this bloke had a disagreement at that house, or at … ah … that's … an allegation I've been told. Um, at that house last night, and he went – he went cunt up down the stairs on the platform, from the top to the bottom bit. Fucking hurt his leg, and … his wrist, and he's, um, and he's whinging and carrying on 'cause someone broke one of his phones.

   [62] Transcript of telephone call recording, p 2.

4. Having said he knows nothing about the alleged offences or about a metal baseball bat or the property listed on the warrant, the applicant went on to complain about the search and the fact that the homeowner was going to want to know what had happened.  He noted that the police had seized only two cameras and a mobile phone.  He then said, in what appears to have been a reference to the alleged offences, 'It's fanciful mate.'[63] He went on:[64]

   [Y]ou've gotta have a reason to terrorise someone's house. Like – this person – this bloke fell down some stairs, a couple of – like, four stairs, and hurt himself. Off his head. Heroin'd out to the max. And, uh, and – also you – you – you – you're terrorising someone's place.

   [63] Transcript of telephone call recording, p 3.

   [64] Transcript of telephone call recording, p 3.

5. DSC McKee suggested that the applicant knows about search warrants and the police power to enter and search, especially if the police suspect a serious offence has occurred.  She told him that was what the police suspected had happened.  The applicant then said:[65]

   Did he have – did he have any – does he have any – did he have any damage to any of his – any of his body? Other than the sore – other than a sore ankle and a sore wrist?

   [65] Transcript of telephone call recording, p 4.

6. DSC McKee then told the applicant that it was best for him to come to the station so the police could discuss the allegations with him, and that she was not going to discuss them with him over the telephone.  The applicant said he would come to see DSC McKee, but he was trying to get to the bottom of it, so he could tell the homeowner, who was in Sydney, but would be back soon.  There was then discussion about the padlock on the back door, the fact that the police had the key and that the applicant could collect it from the police station.

7. When it was pointed out by DSC McKee that the applicant appeared to be aware of the incident that had occurred the previous night, he said:[66]

   Uh, no. There wasn't an assault that happened last night, for a start, right. And I am aware of it, right. But I – I didn't assault anyone last night. And I'm here – I'm being – I know – I know this fucking - this bloke. And he's a fucking drug dealing piece of shit … who's been, um, dealing drugs to kids for a very long time. Now, all I'm – all I'm saying is what is this bloke – who you know quite well – doing with – allegedly 7,000 fucking dollars, four mobile phones, and, uh, gold at – at a place at – fucking – between 12.00 and 4.00 in the morning?

   [66] Transcript of telephone call recording, p 6.

8. DSC McKee told the applicant that it was not going to work, discussing the matter over the phone, and asked him to come to the police station.  There was then the discussion, to which I referred earlier, during which the applicant expressed scepticism about going into the police station.  He spoke about having previously been imprisoned for something he did not do.  He also spoke about the incident in 2018, as I noted above.  He went on to say:[67]

   [Y]ou're telling me I've assaulted someone. I haven't assaulted anyone. Right. I didn't rob anyone. Youse found fucking nothing in his house – … at my mate's house, uh, according to your log. Other than two brand new cameras and a phone that I – that I [indistinct] anything about and didn't see at all any time. Right. So I – I don't understand why it is that there is four charges – threat to kill – um, steal motor vehicle – where the fuck did – where's the motor vehicle … I didn't even seen a motor vehicle. Um … threats with intent to gain or benefit, and aggravated robbery, and omissions to cause bodily harm.

   …

   But where did that … Where did that come from?

   …

   Why, because some fucking drug dealing junkie said that he – that he – fucking – that someone attacked him or some shit? What – what – what – where – you can't just make up, type fucking things [indistinct] into a computer and spit out a piece of paper that – that say this crap. It's all bullshit.

   …

   Where's the proof.

   [67] Transcript of telephone call recording, p 10. (Unsuccessful attempts by DSC McKee to interrupt have been omitted.)

9. There was then discussion about the applicant going to his lawyer, to which I referred earlier.  However, the applicant persisted in his attempt to obtain information, saying (omitting hesitations or stutters):[68]

   I'm just trying to understand what made you go to that address and … search the place, uh – what, because I was there – I used to live there? Or my name popped up on … an incident? Is that what it is? Because I – I might get a few people to go down there and say, 'Um, Brad Sylvester just walked across my front lawn. And he had a axe.' And what … does that mean I … what? Threatened to kill them or whatever the fuck – axe handle or some shit you reckon you're looking for, or a baseball bat, sorry, a metal baseball bat.

   But I don't understand – I don't understand what it is that … what is alleged to have gone on here, but now – you're looking for weapons, obviously. So obviously something – obviously it says something about, yeah, so a wooden baseball bat and a wooden – uh, so a metal baseball bat and wooden handle or something. Right. Um, I – what I don't get, right, is that – what – someone drops my name, right, and – and says that there – there was an incident, and, all of a sudden, there's … an allegation of, uh, threaten to kill, intent – all this other – all the charges. But where do all these charges come from? Like, let's be honest. Like, why don't you just – why don't you just make it something a little bit more, um, believable, for a start … like an assault or something.

   [68] Transcript of telephone call recording, p 14 ‑ 15.

10. There was then further discussion about the applicant handing himself in.  The call concluded with the applicant saying he would see DSC McKee soon.

11. Not surprisingly, the respondent relied on the applicant's denials of an assault on Mr Hooton, his claims of not knowing what the allegations were about, and his account that Mr Hooton had fallen down some stairs and suffered injuries in that way as evidence that was inconsistent with the contents of his affidavit and which evinced a consciousness of guilt in respect of the aggravated armed robbery.  There may be a question as to whether the applicant's lies, if they were found to be lies, could be related specifically to that offence, in terms of consciousness of guilt. More broadly, the respondent's argument is that the applicant made false statements and feigned ignorance during the call in a way that is inconsistent with an innocent explanation for the assault and the injuries he inflicted on Mr Hooton.  Further, the respondent relied on the alleged lies and inconsistencies as going to the applicant's credibility generally in assessing his evidence in this application.

12. In those circumstances, it is not surprising that the applicant sought to provide explanations for the aspects of the telephone call that might be considered to be problematic for the applicant.

Applicant's explanation for statements made during the telephone call with DSC McKee

1. The applicant's explanations for his statements in his telephone call are set out in Ms Byrne's affidavit.  Ms Byrne has deposed that the information contained in her affidavit 'derives from instructions given to [her] directly by the Applicant by telephone from Hakea Prison'.[69]  Ms Byrne also states in the last paragraph of her affidavit:[70]

   The above represents my best understanding of the Applicant's instructions as conveyed by him to me by telephone after the bail hearing in the Supreme Court on 25 January 2022

   [69] Ms Byrne's affidavit [3].

   [70] Ms Byrne's affidavit [12].

2. It would have been preferable for the applicant to have attested to matters within his knowledge in an affidavit sworn or affirmed by him.  Given the time constraints and limitations due to the COVID-19 pandemic, I am prepared to rely on Ms Byrne's affidavit as the means by which the applicant's explanations and further statements of fact should be received in evidence for the purposes of this application.  However, if I am to give weight to the content of those explanations and statements, I must proceed on the basis that Ms Byrne correctly understood what the applicant said to her and her affidavit accurately sets out the gravamen of the statements made by the applicant to Ms Byrne.  Accordingly, I take Ms Byrne's statement that the information in the affidavit 'derives' from the applicant's instructions to mean no more than that the information has come from the applicant.  Further, it would be expected that instructions have been obtained from the applicant (in the same manner as the original instructions for the affidavit were obtained) that the contents of the affidavit are correct.  Accordingly, I do not regard Ms Byrne's statement in [12] of her affidavit, which is set out above, as implying that her understanding of the applicant's instructions might be mistaken. Otherwise, the contents of the affidavit would have no evidentiary value.

3. According to Ms Byrne, the applicant's explanations for those aspects of the telephone call with DSC McKee in which he denies having assaulted the complainant and asserts that the complainant was injured falling down some stairs are as follows.

4. First, the applicant provided the following information concerning the call generally, which is set out in [4] of Ms Byrne's affidavit:

   (a)On Thursday 15 July 2021 at around 12 pm, the Applicant made a telephone call to [DSC McKee] at the Fremantle Detectives Office.

   (b)The Applicant made the call of his own volition after having found prosecution notices attached to the front door of the property at [the Attfield Street address] (Property) where he had been care-taking, naming him as a suspect in relation to the offences now before the Court.

5. I note that the applicant had not yet been charged, and the prosecution notices annexed to the applicant's affidavit are dated 21 July 2021, so his claim that he found 'prosecution notices' cannot be correct.  As I noted above, I infer that the document to which he appears to have been referring was a copy of the search warrant.

6. Ms Byrne then explains that the applicant made the telephone call from his mobile number.  I accept that was confirmed during the call and that it is the same as one of the telephone numbers the applicant had written on the complainant's trousers. Ms Byrne then continues with the following information from the applicant:[71]

   (e)The telephone call runs for approximately 16 minutes and 30 seconds, however the recording does not appear to include the beginning of the call (approximately 60 seconds) where the Applicant identifies himself to [DSC McKee].

   (f)Whilst the early part of the telephone call is not recorded or transcribed, the Applicant recollects that [DSC McKee] was alleging some seriously debilitating injuries said to have been caused by him to the Complainant in the course of the altercation between them.

   (g) At the time, the Applicant was not aware that the Complainant was seriously injured as he had seen him walk out of the property after the alleged incident had occurred.

   [71] Ms Byrne's affidavit [4].

7. I accept that the recording of the telephone call commences after there has been some conversation, as the applicant is mid-sentence when the recording commences.  One would have expected a short delay between DSC McKee becoming aware it was the applicant on the phone and her activating the recording function on her mobile telephone.  In any event, whether or not there was 60 seconds of conversation before the recording commences, I do not accept the applicant's claim that, during that period, DSC McKee 'was alleging some seriously debilitating injuries said to have been caused by him to the complainant in the course of the altercation between them', as set out in [4(f)] of Ms Byrne's affidavit.  The applicant's first sentence in the recording suggests that he did not yet know what the allegations were, other than what appeared in the description of the offences in the search warrant, from which he appears to have been reading from time to time during the call.  Further, it is evident from the recording that DSC McKee's approach during the call was to avoid discussing the details of the alleged offences on the telephone and to have the applicant come into the station to discuss the matter. 

8. The applicant's claim, set out in [4(g)] of Ms Byrne's affidavit, appears to be inconsistent with the contents of his affidavit of 13 December 2021.  It appears to suggest that the complainant walked from the property without any obvious injury.  However, according to the applicant's account in his affidavit, he knew that –

   (1)he had inflicted blows to the complainant's leg with a wooden axe handle;

   (2)the complainant was in pain;

   (3)as the complainant left the premises, his arm appeared to be injured and he did not drive his car away; and

   (4)an ambulance was called for the complainant.

9. Therefore, I am not satisfied that the applicant has been truthful or reliable in his instructions to Ms Byrne, as set out in [4(f)] and [4(g)] of her affidavit.  Those instructions sought to provide context for various remarks made by the applicant during the call, for which he provided explanations to Ms Byrne.

10. Ms Byrne deals first with the applicant's explanation for the following remark by him during the telephone call:

    . .. he went cunt up down the stairs on the platform, from the top to the bottom bit. Fucking hurt his leg, and - and his wrist, and he's, um, and he's whinging and carrying on 'cause someone broke one of his phones.

1. I accept the applicant's submission that his criminal record is not such as to lead necessarily to the conclusion that bail must be refused. No doubt there have been periods when the applicant has been on bail and has complied with the conditions of bail, and periods when he has not offended.  Further, even if a criminal record indicates a heightened risk that an accused would fail to appear or would commit an offence, it is still necessary to consider whether there are conditions that could be imposed that would sufficiently remove such risks. However, the applicant's extensive criminal record is a relevant factor in considering both the level of such risks and whether any conditions would sufficiently mitigate them.

2. The State submits that the applicant's criminal record demonstrates a general tendency of the applicant to re-offend following release from custody.

3. Of particular concern in this case are the applicant's offences of violence, including the aggravated armed robbery, and the offences that demonstrate a willingness to mislead police and a disregard for authority.  In relation to the violent offending, the applicant refers to the fact that, in 2013, he completed the 'Violent Offender Program'.  He states that he has not offended violently since 2011.  That assumes the outcome in relation to the charge of aggravated armed robbery the subject of this application. The submission needs to be considered in the light of my assessment of the strength of the prosecution evidence against the applicant.

Breaches of bail undertakings

1. By his own admission, the applicant's previous breaches of bail consisted (at least in some cases) of his failure to appear in accordance with his bail undertaking.[90]  It is of concern that the applicant refers to them as 'minor and technical breaches of personal bail'.[91] The fact that he was sentenced to a short term of imprisonment for two of the breaches, albeit in the context that he was sentenced at the same time to a longer term of imprisonment for serious offending, suggests the Magistrates Court did not regard those breaches to be minor or technical. 

   [90] Applicant's affidavit [32].

   [91] Applicant's affidavit [26].

2. The applicant has explained that, at the time of his previous breaches of bail, he was going through a difficult period of his life and using illicit drugs heavily.[92] He states that the bail breaches occurred because he was so badly affected by drugs, he forgot to attend court.[93]

   [92] Applicant's affidavit [27].

   [93] Applicant's affidavit [32].

3. The applicant states that he has never failed to appear in court when he has been on bail with a surety.[94]  He refers to the fact that in 2004 he was on bail for the offence of possession of methylamphetamine with intent to sell or supply, and that a condition of bail was that he reside at his parents' home at the time in Adelaide, although his usual place of residence was in Fremantle.  His mother was a surety in the sum of $10,000. He says that he flew back to Perth for court proceedings on each occasion without issue.  I note that this was a considerable time ago and before the applicant's convictions for breaching bail and his escape from legal custody.  Therefore, the extent to which his good compliance in 2004 can be regarded as a predictor of the likelihood that he would comply with bail conditions now, having regard to all the circumstances of the present matter, to which I have referred, must be qualified.

   [94] Applicant's affidavit [25].

4. The applicant also says he has never attempted to abscond anywhere.[95]  While I understand that the applicant has made that statement in the context of bail and the possibility of him leaving the jurisdiction, the fact that he escaped from prison and that he sought to evade arrest in relation to the present matters cannot be ignored as instances of the applicant absconding. In terms of evasive conduct that has the potential to defeat the administration of justice, it is not to the point that he has not previously sought to leave the jurisdiction.

   [95] Applicant's affidavit [47].

5. Finally, the applicant points to his compliance with bail conditions when he was most recently on bail.  The bail assessment report refers to the applicant having been subject to a '4‑week period of Conditional Bail' in relation to the riot charge and the charge of escaping legal custody, and, based on Justice Department records, states:[96]

   Mr Silvester was made subject to eight conditions which essentially restricted his physical movement within the state of Western Australia, ensure the safety and protection of witnesses and prohibits illicit substance use. Without issue Mr Silvester upheld all eight conditions of Conditional Bail. He was directed to attended (sic) Maddington Adult Community Corrections for random urinalysis on 04.03.2021 and returned a negative result to illicit substances. Given his exceptional compliance, on 24.03.2021 Conditional Bail was replaced with Police Bail which released Mr Silvester from Adult Community Corrections.

   [96] Bail assessment report, pp 1 ‑ 2.

6. The use of the adjective 'exceptional' is curious.  It is not clear whether the compliance is considered to be an exception relative to other persons who are on bail, or relative to the applicant's past history of compliance.  In any event, the assessment is positive, the point being that the applicant complied with the bail conditions, and those conditions were relaxed or removed after a period of four weeks.  While this is undoubtedly a factor in the applicant's favour in this application, the respondent correctly noted that it cannot be considered in isolation. 

7. First, the applicant has said that he was released on conditional bail from Hakea Prison on 28 February 2021 in respect of the riot charge and the charge of escaping legal custody.  This was after his acquittal, on 22 February 2021, in respect of a charge of possession of methylamphetamine with intent to sell or supply. He says he had spent 3 years and 1 month in custody.  As I understand the circumstances, that period included a period on remand for the drug charge, before his escape, and a period on remand after that for the drug charge and the new charges for the riot offence and the offence of escaping lawful custody.  I note that, according to his record, on 21 November 2019, the applicant was sentenced to 18 months' imprisonment for the offence of conspiracy to commit an indictable offence, and that sentence was backdated to commence on 26 June 2018.

8. The applicant states that, when he was released on bail on 28 February 2021, apart from the conditions referred to in the bail assessment report, he was also subject to reporting conditions and a curfew.  The applicant says he had pleaded guilty to the charge of escaping legal custody in August 2018 (having been charged sometime after the prison riot of 24 July 2018), but proceeded to trial on the riot charge.  He says that the trial took place in March 2021, and he was acquitted of the riot charge on 24 March 2021.  It was then that his bail conditions were 'relaxed', and he was subject to a personal undertaking of $50,000.

9. Two things may be said about those circumstances.  First, the applicant was subject to conditional bail for a relatively short period before he was acquitted of the riot charge.  Secondly, once he was acquitted of that charge, it is not surprising that his bail conditions were relaxed pending the sentencing for the offence of escaping lawful custody, as the applicant had already spent a significant period in custody on remand, which had to be considered relative to any sentence that might be imposed for the offence of escaping lawful custody.  It could not be said that there was any significant incentive for the applicant to abscond or fail to appear at that stage.  The sentence that was imposed by this court on 16 June 2021 for the offence of escaping lawful custody was backdated to commence on 16 April 2020 and had been served by the time of sentencing.  The offences which are the subject of this application are alleged to have been committed about one month later.

10. I note that Sergeant Good says in his affidavit, that when the applicant was in Perenjori in April 2021, his bail conditions required him to reside in Fremantle, so he was in breach of that condition.  He says that the DPP was notified of that breach on 19 May 2021, but before any response was received, the matters to which the bail related were finalised (which must be a reference to the charge of escaping legal custody).  That was not a matter that the respondent relied upon in these proceedings, and self-evidently, the applicant appeared in answer to his bail for sentencing on 16 June 2021.

11. However, for the reasons I have outlined in [244] above, and having regard to the fact that the applicant sought to evade arrest in respect of the present charges and the findings I have made in respect of his credibility and reliability in these proceedings, and the attitude the applicant has evinced towards the police in his letter to Mr Griffiths, I am of the view that his compliance with his bail conditions in the period from 28 February 2021 to 16 June 2020 has limited value in determining the likelihood that he would comply with strict bail conditions at this stage.

Other matters

1. It was submitted on the applicant's behalf that he has been in custody since 21 July 2021 and his trial will not be listed for trial until late 2022 or early to mid 2023.  This will mean he could be in custody for almost two years before trial. The applicant submitted that this was the 'seminal' issue for consideration as it would be an 'inordinately' long time for the applicant to have spent on remand and would occasion a serious injustice if he were to be acquitted.   The respondent noted that, in listing the matter for trial, the District Court is likely to give the applicant priority if he is remanded in custody.  It was also noted that trial dates can sometimes become available at relatively short notice if other trials are vacated.  However, at this stage, the best estimate of trial dates appears to be as I have stated above.

The bail assessment report

The applicant's suitability for home detention

1. I have referred above to the information in the bail assessment report concerning the applicant's compliance when he was most recently on bail.  The CCO who prepared the report spoke with the applicant by telephone on 29 December 2021.  She states that the applicant 'presented as insightful and aware of his behaviours, attitudes and risk factors'.[97]  She says that those risk factors appear to be negative peer influence, lack of consequential thinking, pro-criminal attitudes and historical illicit substance use.  She says that, when the offence of escaping lawful custody was raised, the applicant 'confidently reassured he has since matured and is striving daily to live a pro-social lifestyle'.[98]  The CCO goes on to say:[99]

   It is apparent the time spent in custody allowed him to reflect on his circumstances and develop mitigating strategies to prevent recidivism.

   [97] Bail assessment report, p 2.

   [98] Bail assessment report, p 2.

   [99] Bail assessment report, p 2.

2. With respect, that conclusion is difficult to reconcile with some of the findings I have made.  In fairness, as the respondent noted, the CCO relied on what the applicant said to her, without reference to the materials that have been tendered in these proceedings, including the telephone call of 15 July 2021 and the applicant's letter intercepted at Hakea Prison. 

3. In relation to the likelihood of the applicant's compliance with home detention bail, the CCO relied on the applicant's assertion as follows:[100]

   He recognises, if granted, Home Detention Bail is a privilege and wishes not to jeopardise himself further, his family, and in particular, the blossoming relationship he has built with his nine-year-old daughter.

   [100] Bail assessment report, p 2.

4. The CCO concluded that the applicant presented with a positive attitude toward home detention bail and 'affirmed a willingness to abide by the rules, should it be granted'.[101]  She thought that, although limited, the fact the applicant had completed a period of conditional bail 'presumably bodes well for future periods of community supervision'.[102]  Again, those conclusions cannot be considered in isolation.  While the views expressed by the CCO must be accorded some weight, I am required to make my own assessment of the relevant risks and whether there are conditions that can sufficiently mitigate those risks, having regard to all of the evidence in these proceedings.

Suitability of proposed address

[101] Bail assessment report, p 3.

[102] Bail assessment report, p 3.

1. I referred earlier to the location and nature of the property where the applicant proposes to reside with Ms Broderick.[103]  The property was assessed by the CCO, who found it to be suitable and said 'the monitoring equipment is conducive to the environment', which I take to mean that there will be no difficulty setting up the equipment, and the applicant's presence at the premises can be adequately monitored.

   [103] [214] above.

2. The premises have been leased by Ms Broderick until mid-June 2023.  At the time of inspection by the CCO, Ms Broderick was the sole occupant of the home. Public transport is not accessible from the property, but both the applicant and Ms Broderick hold driver's licences, and Ms Broderick has expressed her willingness to drive the applicant to the Rockingham Adult Community Corrections and to any other appointments he is required to attend.

3. As I mentioned earlier, it is proposed that the applicant's daughter will stay at the property two or three days a week.

4. The bail assessment report refers to statements made by Ms Broderick about the firm boundaries she has set with regards to her living arrangements with the applicant, her intolerance of negative peer influences attending the home, and of any form of criminal activity and behaviours.  Ms Broderick 'affirmed her willingness to inform WA Police of any adverse behaviours, should they occur'.[104]

   [104] Bail assessment report, p 3.

5. Ms Broderick is not an independent party.  Apart from being in a domestic relationship with the applicant, she has stated in her affidavit that the applicant's version of events is true, to the extent that she was present.  The difficulties I identified with the applicant's account necessarily follow, therefore, to the assessment of her evidence.  I am not satisfied that I can rely on her assurances expressed to the author of the bail assessment report, especially in relation to informing the police of any 'adverse behaviours', the scope of which, in Ms Broderick's understanding, is not known.  In any event, it could not be expected that Ms Broderick would always be present while the applicant is home.

6. The CCO recommended that, if bail is granted, the following conditions be imposed in addition to the usual home detention conditions:

   (1)The applicant is to attend for urinalysis testing as directed and provide a valid sample, with any positive or void sample to constitute a breach of the home detention bail conditions.

   (2)The applicant is not to consume alcohol and is to submit to random breath testing by police.

   (3)The applicant is to comply with all lawful directions of a Community Corrections Officer, including in respect of any inclusion or exclusion zones applicable to electronic monitoring.

The risks under cl 1(a) - conclusions

Risk of failure to appear

1. The respondent submitted that the strength of the prosecution case, combined with the likely disposition in the event of a conviction, gives rise to a significant risk that the applicant would not appear in accordance with a bail undertaking.

2. The applicant's primary submission in relation to the risk of not appearing was focussed on the risk of flight, that is, absconding from the jurisdiction.  Accordingly, the applicant noted that he has never held a passport or travelled overseas, he has strong links to Western Australia, because his partner, mother and child live here, and, in any event, there is no real risk of flight in the current climate of border control.  Although his father resides in South Australia, the applicant maintained that they are not close.  It was also submitted on his behalf that, when the applicant was previously allowed to reside in South Australia while on bail for offences in this State, he returned and answered his bail.

3. I accept that the current COVID-19 restrictions in relation to both international flights and flights to and from other states of Australia provide some measure of protection against a person absconding from the jurisdiction.  Further, airport alerts could be used to intercept the applicant if he sought to leave the jurisdiction by that means.  However, an accused person who decides to abscond is not limited to travel by air.  Great distances can be traversed by road. 

4. In any event, the risk of failing to appear may be realised without the person leaving the jurisdiction or travelling great distances.  An accused may go into hiding within the metropolitan area or in a region that is not distant from the metropolitan area.

5. The appropriate question is whether there is a real risk that the applicant may seek to evade justice by failing to appear in court at any stage of the process up to his trial.  The capacity for him to do so exists. In my opinion, the strength of the case against him and the prospect of facing a lengthy term of imprisonment if convicted provide him with an incentive to fail to appear, if he is released on bail.  The fact that he sought to evade arrest in this case is itself evidence of a desire to avoid the criminal process.  The fact that he previously escaped from prison is evidence that he may seek to avoid the inevitable consequence of a custodial term if he is convicted.

6. The applicant submits that his commitment to Ms Broderick and his desire to see his daughter provide a significant incentive for him to remain in the community where he intends to reside and to answer his bail.  Having regard to the applicant's history, I am not persuaded that those commitments are sufficient to prevent him from risk-laden behaviour or to compel him to attend court as required. His attempt to evade arrest in the present case is an indication that such factors may become ephemeral if he were to decide to abscond or go into hiding because of the strength of the case against him and the potential consequence of a long term of imprisonment if he is convicted.

7. For reasons I have outlined above under the heading 'Breaches of bail undertakings', the applicant's prior compliance with conditional bail does not give me confidence that he would comply with a bail undertaking in the present context. For the reasons I have outlined, I am satisfied that there is a real risk that the applicant may fail to appear if he is not kept in custody. 

Risk of interference with witnesses

1. The respondent submitted that, having regard to the evidence I have outlined above, there is also a real possibility that the applicant would attempt to interfere with Mr Hooton or other witnesses if he is not kept in custody.  It relied on Mr Hooton's assertions in his second statement and his affidavit concerning the approaches, including threats, that have been made to him, to drop the charges, and on the two security reports from Hakea Prison.

2. Mr Hooton has expressed fear for his own safety and the safety of his partner, because of the threats he has received and because his unit was broken into on 28 July 2021 and items were stolen. Although Mr Hooton believes the burglary is connected with the threats, and he moved to another address out of fear for his safety, there is no evidence in these proceedings that would support that connection. Further, while a complainant's fears give cause to consider whether there is a real risk that an accused may interfere with or endanger the safety of a witness, the issue must be determined objectively, having regard to the available evidence.

1. I am satisfied that there is a real risk that the applicant will interfere with Mr Hooton, and potentially other witnesses, if he is not kept in custody.  That risk carries with it also the risk that he may commit an offence and may endanger Mr Hooton's safety. My reasons for reaching those conclusions are as follows.

2. Mr Hooton's descriptions of the approaches that have been made to him comprise a consistent narrative that is supported by the text messages sent by Mr Oakes, which include the offer that Mr Oakes would pay Mr Hooton if he dropped the charges and the indication that Mr Hooton would be looked after if he did the right thing. 

3. Mr Hooton's second statement and his affidavit provide a reasonable basis to believe that he has been approached by various people to drop the charges, and those approaches have included a bribe and threats.  The fact that he has been approached by a number of different people in similar terms tends to suggest a coordinated endeavour, rather than random, unrelated behaviour.  The nature of the approaches tends to suggest that the applicant was involved.  That is particularly so in Mr Blair's case, as I explained earlier.[105]  The applicant's involvement is also apparent from the message allegedly conveyed to Mr Hooton for Mr Gomez on 8 August 2021, from which it appeared that Mr Gomez had information about the circumstances of the alleged offence.  Even if the information was conveyed to Mr Gomez by someone other than the applicant, the most likely source of the information was the applicant. That conclusion is supported, in my view, by the applicant's commentary to Dave on the copy of Mr Hooton's second statement, which is the subject of the first Hakea Prison security report, and the applicant's letter to Mr Griffiths, both of which show a preparedness by the applicant to inform others about what Mr Hooton has told the police, and his response to those statements. Such conduct has the potential to put Mr Hooton at risk.

   [105] See [184(3)] and [190] above.

4. The views I have expressed must be understood in the context of the limitations in respect of findings of fact on a bail application, as I discussed above.  However, the information to which I have referred and my provisional analysis of it provide a reasonable basis to conclude that there is a real risk that the applicant would try to approach Mr Hooton in a similar way to the approaches he has already received, if the applicant is not kept in custody.  There is a real risk he would do so either on his own or through others.

5. At this stage, for reasons I have outlined above, I consider that there are significant problems with the applicant's credibility and reliability in these proceedings, which I have identified, and I do not consider I can rely on his broad denial of any attempt to contact Mr Hooton to have him withdraw the complaint to the police.  For reasons I outlined earlier, Ms Broderick's denial of any involvement in approaching Mr Hooton is similarly affected.

6. The applicant's written outline of submissions, dated 21 December 2021, noted that, at that stage, Mr Hooton was in custody, so that if the applicant was granted bail, there 'would appear to be no reasonable opportunity, at least in the short-term, for their paths to cross'.[106] Mr Hooton's current status was not referred to at the hearing of the application, so it is not clear whether the premise of the submission is correct. In any event, the risk that the applicant would interfere with Mr Hooton as a witness is not dependent on them crossing paths.  Interference can occur indirectly, although the prospect of direct interference would be enhanced if both men were in the community. 

   [106] Applicant's Outline of Submissions on Bail Application, 21 December 2021 [12].

7. It was also submitted on the applicant's behalf that he understands fully that any attempt to interfere with Mr Hooton or other witnesses would result in immediate apprehension and cancellation of bail. That submission was made on the basis that any such interference would be reported by Mr Hooton, as he has done in relation to the approaches he alleges have been made so far by others.  I am not persuaded that the applicant would be deterred from interfering with Mr Hooton as a witness by that prospect. The applicant was prepared to forward Mr Hooton's statements to others while in custody, while this application was pending.  It ought to have been apparent to him that discovery of those actions may put his application in jeopardy.  If he lacked such awareness, that brings into question his judgment in respect of the risk.

8. Having regard to the nature of the offending alleged against the applicant in this case, the strength of the prosecution evidence against him and the nature of the injuries caused to Mr Hooton, I am satisfied there is a real risk that, if the applicant were to seek to persuade Mr Hooton to withdraw his complaint or not to give evidence, it may involve violence that could result in serious injuries to Mr Hooton.

Risk of re-offending

1. Apart from the risk that the applicant would interfere with witnesses, the respondent submitted that the court may well find that the applicant poses a risk of re-offending in a similar manner to the alleged offending in this case, because the applicant has previously been convicted of offences of a similar kind.  It submitted that such a finding might be made when the applicant's history of offending is considered in combination with the strength of the prosecution case against him in the present matter.

2. I was not provided with details of the aggravated armed robbery offence for which the applicant was originally sentenced in August 2012, so the only similarity I can assume is the nature of the offence, not the circumstances of the offending.  While the applicant's record discloses that he has committed violent offences on more than one occasion in the past, there is no indication that he committed those offences while on bail.  In my opinion, the risk of the applicant offending in a violent manner is connected with the risk that he would interfere with a witness, as discussed above, rather than being a separate risk of similar offending.

Whether conditions can reduce the risks to an acceptable level - conclusions

1. Having found that there is a real risk that the applicant would fail to appear or would interfere with witnesses and commit an offence in that context, it is necessary to consider whether those risks could be reduced to an acceptable level by the imposition of reasonable conditions.

The applicant's submissions

1. The applicant's primary submission was that conditions short of home detention could reasonably be imposed and would sufficiently reduce the risks. He proposed conditions that included a personal undertaking of $100,000; a surety (to be provided by his mother) of $70,000; a residential condition; a curfew; a daily reporting condition (to the Kwinana Police Station); a condition preventing contact with any person who may be called as a witness in the trial for the charges the subject of the bail application; separately, a condition that the applicant is not to approach or attempt to contact Mr Hooton by any means whatsoever; and a condition preventing the applicant from approaching within one kilometre of any point of domestic or international departure.

2. The applicant noted that his mother has said that a surety of $70,000 would require her to put at risk all that she owns.  The applicant submits that I should accept he would not jeopardise his mother's surety in those circumstances.

3. The applicant also submitted that his preparedness to undertake counselling through Holyoake (which could be a further condition of bail) would provide a further measure of protection against him failing to appear or committing an offence.

4. The applicant's secondary submission was that, if the court is not satisfied that the proposed conditions would sufficiently remove any risk I find to exist, then it should be satisfied that a home detention condition would sufficiently reduce the risks to an acceptable level, especially if combined with the conditions initially proposed and any other conditions the court might consider appropriate.  It was submitted that home detention would reduce the risk of flight to a negligible level.  It was also submitted that the applicant would be 'living away from the rest of the community', which, in combination with the 'no contact' conditions, would provide a sufficient level of protection against the risk of interference with witnesses.[107]  However, it was conceded by senior counsel for the applicant that a 'no contact' condition could not be monitored, except to the extent that any witness who might be contacted would disclose that fact to the police.

   [107] ts 25/1/22, p 28.

5. I discussed with both counsel other potential conditions.  Those conditions would relate to the applicant's use of a telephone or other electronic devices, by which he might communicate with Mr Hooton or with other persons if he were inclined to approach Mr Hooton or other witnesses, directly or indirectly. Conditions limiting the devices to which the applicant could have access, requiring them to be identified to police, preventing him from deleting data, and requiring him to make them available to police for inspection upon demand, would allow for a level of monitoring of the applicant's communications that would otherwise not be available.  It was submitted on the applicant's behalf that he would be prepared to comply with such conditions and that the court should find such conditions, in combination with the other conditions, including home detention, would sufficiently mitigate the risk that he would contact witnesses, especially Mr Hooton.

The respondent's submissions

1. The respondent submitted that there are no conditions that could be imposed to sufficiently reduce the risk that the applicant would fail to appear, reoffend, or interfere with Mr Hooton or other witnesses. 

2. The respondent submitted that the circumstances of the alleged offences, which are the subject of this application demonstrate that the applicant does not have to leave his home to commit an offence.  Therefore, home detention would not necessarily prevent him from committing an offence of a similar kind.

3. The respondent submitted that the conditions to which I referred, concerning electronic devices, would require considerable police resources to monitor, and one could not be confident that such monitoring would necessarily uncover a breach, if the applicant used devices in other names, either belonging to someone else or concealed by him.  The respondent submitted that such a condition was not going to prevent the applicant from inviting someone to his house and arranging for a message to be passed on. 

4. The respondent also submitted that the GPS monitoring that occurs with home detention only tells the authorities the location of the person.  It does not tell them whether the applicant is with someone else or who that person might be, or what he is doing.

5. The respondent acknowledged that there is nothing stopping the applicant from speaking with someone in prison and asking them to pass on a message to Mr Hooton or another witness.  However, it submitted that there is an added level of security and monitoring in prison, including monitoring of the applicant's interactions with other prisoners, as could be seen from the Hakea Prison security reports, so that there is greater potential to thwart any attempt to interfere with witnesses. 

Conclusion

1. I am not satisfied that any conditions short of home detention and additional conditions of the kind I have discussed concerning electronic devices would reduce, to an acceptable level, the risk of the applicant failing to appear, interfering with witnesses, and committing an offence. 

2. I do not consider that the conditions other than the surety would be sufficient to compel the applicant's attendance in answer to his bail.  They reduce (although they do not entirely remove) the prospect that he would abscond to another jurisdiction.  However, he need not leave the jurisdiction to undermine the integrity of the criminal justice process by failing to appear and going into hiding.  Perhaps the most significant factor militating against a failure by the applicant to appear is the risk that his mother would lose her surety.  I have taken into account the applicant's evidence that he has not breached bail when there has been a surety.  However, as I discussed earlier, those precedents are not persuasive as predictors of whether the applicant would comply with bail requirements in the present case, given the specific circumstances of this case, and my findings in relation to the applicant's credibility and reliability for the purpose of these proceedings. I am not able to make any finding as to whether the risk to the surety intended to be provided by applicant's mother would sufficiently reduce the risk that he would fail to appear.

3. In any event, the proposed conditions would not adequately address the risk of the applicant interfering with witnesses. While a breach of the 'no contact' condition might be brought to light by a witness informing the police, that possibility does not give me confidence that the applicant would not interfere with Mr Hooton or other witnesses.  The issue is whether the risk can be adequately mitigated, rather than whether a breach would be reported.  The risk to Mr Hooton includes the possibility of physical harm, which increases the need for measures that would prevent interference beyond a prohibition in relation to contact.

4. I turn then to whether home detention would sufficiently mitigate the risks.

5. Home detention is not a fail safe against the risk a person will fail to appear.  There have been cases in which persons on home detention bail have managed to remove their electronic monitoring device and have absconded.  The legal principles I set out earlier make it clear that the question is not whether bail conditions will completely remove the risk under consideration, but whether the conditions will reduce the risk to an acceptable level, being a level at which it can no longer be justified to keep the accused, who has not been convicted of the offences charged, in custody.  However, the greater the possibility that an accused may fail to appear and/or may commit an offence, and the greater the harm to the community that such an offence may cause, the greater the level of confidence the court might require in the effectiveness of bail conditions to prevent those things from occurring.

6. I am not satisfied that home detention would sufficiently reduce the risk that he would fail to appear.  I have taken into account the applicant's attempt to evade arrest in this case and his previous escape from prison. The electronic monitoring would alert the authorities if he was not where he was supposed to be, or that he had removed his device, but it would not enable them to apprehend him before he has absconded.

7. Further, I am not satisfied that home detention or any additional conditions I could impose (for instance in relation to communication devices) would sufficiently reduce the risk that the applicant would interfere with witnesses.  Although home detention conditions would require the applicant to report to a CCO, the ability of a CCO to monitor his behaviour would depend on the applicant being honest and forthcoming with information, even if it might be detrimental to his ability to remain on bail.  Any conditions I might impose in respect of the disclosure and use of electronic communication devices by the applicant would also depend on him being honest and forthcoming in his dealings with the police.

8. In short, the efficacy of conditions that I could reasonably impose to mitigate the risks I have identified for the purposes of cl 1 of sch 1 pt C of the Act would depend on the applicant being honest, forthcoming with information, and cooperative with a CCO and the police. At this stage, I am not satisfied he would meet those requirements, having regard to my adverse findings in respect of his trustworthiness, that is, in respect of his credibility and reliability, based on what I consider to be inconsistencies and implausible elements in the information provided by the applicant in these proceedings.

9. I stress that those findings are on the basis of the written materials tendered in these proceedings, and that the information relied on by the applicant and the respondent has not been tested by cross-examination of the witnesses who would give evidence in accordance with that information.  Importantly, it is not the court's role at this stage to make any findings as to whether the applicant is guilty or not guilty of the offences charged.

10. Nevertheless, it has been necessary to make an assessment of the strength of the prosecution evidence against the applicant, and to make an assessment of the truthfulness and reliability of evidence relied upon in the bail application, within the limitations I have mentioned.

11. My conclusion in respect of the applicant's lack of preparedness to cooperate with the police also takes into account the applicant's telephone call, his attempt to avoid arrest, and his attitude to the police evinced in his letter to Mr Griffiths of 1 December 2021.

12. In conclusion, I am not satisfied that any conditions I could reasonably impose, including a home detention condition, would sufficiently remove the risks I have identified, so as to make a grant of bail appropriate.  In my opinion, the nature and extent of those risks provide a proper ground for refusing to grant bail, having regard to reasonable conditions that could be imposed.In coming to that conclusion I have had regard to the fact that the applicant is presumed to be innocent of the offences with which he is charged and the risk of injustice if, ultimately, he was to be acquitted after being held in custody for a lengthy period.  I do not consider, at this stage, that the length of time the applicant is likely to spend in custody, pending trial, is such as to outweigh the reasons why a grant of bail is not appropriate.

13. For the above reasons, bail must be refused.

Suppression

1. As it is envisaged the charges in this case will proceed to a trial, which must necessarily be in the District Court in respect of the charge of aggravated armed robbery, and likely before a jury, and having regard to the matters discussed at the hearing and in these reasons, it is appropriate that there be a suppression order in relation to the hearing and these reasons until the proceedings in respect of the charges have concluded.

Orders

1. Accordingly, on 10 February 2022 I made the following orders:

   (1)Bail is refused.

   (2)There is to be no publication of the hearings on 25 January 2022 and 10 February 2022 or the outcome of these proceedings or the reasons provided to the parties until the conclusion of the proceedings in relation to the charges the subject of this application, with the exception that the reasons may be made available to counsel who may consider a future bail application or who are responding to such an application or to any judicial officer considering an application for bail.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EP

Associate to the Honourable Justice Fiannaca

21 FEBRUARY 2022