SMQ v The State of Western Australia
[2015] WASC 407
•9 OCTOBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SMQ -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 407
CORAM: MARTINO J
HEARD: 9 OCTOBER 2015
DELIVERED : 9 OCTOBER 2015
FILE NO/S: MBA 34 of 2015
BETWEEN: SMQ
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Ms B J Lonsdale
Respondent: Mr J C Whalley
Solicitors:
Applicant: Kate King Legal
Respondent: Director of Public Prosecutions (WA)
Cases referred to in judgment:
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
MARTINO J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
The applicant applies under s 14 of the Bail Act 1982 (WA) for bail for his appearance in the Magistrates Court on 23 December 2015. I am required to consider the application in accordance with the provisions of sch 1 of that Act. Clause 1 of pt C of sch 1 requires me to exercise the jurisdiction to grant bail, having regards to the following questions, as well as any others which I consider relevant:
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d); or
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
(f)[not relevant]
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Clause 3 of pt C of sch 1 provides:
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant ‑
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; and
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The applicant applied for bail in the Magistrates Court on 26 June 2015. Bail was refused. The applicant does not need to demonstrate that there has been error in the Magistrates Court in refusing bail. This is a fresh hearing of the application for bail, which I am required to determine in accordance with the provisions of the Bail Act.
As McLure P said in Milenkovski v The State of Western Australia:[1]
The Bail Act does not in terms place any legal onus on any party to a bail application. However ... as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [41] (McLure P).
The State opposes the application for bail. The applicant is in custody on five charges. Charge PE257636 of 2015 is a charge of deprivation of liberty with intent to gain a benefit. Charge PE25737 of 2015 is a charge of causing bodily harm with intent to harm. Charge PE25738 of 2015 is a charge of being armed with a dangerous weapon in circumstances likely to cause fear. Charge PE25739 of 2015 is a charge of possession of a prohibited drug, namely testosterone.
The application for bail made on 26 June 2015 was made on those four charges. Since that hearing, the applicant has been charged with charge PE33595 of 2015, which is a charge of assault causing bodily harm. Although that charge was laid after the refusal of bail, it does not give rise to any need for the applicant to demonstrate exceptional circumstances to be successful in this application.
The facts alleged by the prosecution in charges PE257636 of 2015, PE25737 of 2015, and PE25738 of 2015 are that the complainant, DWB, owed a drug debt of approximately $57,500 to a motorcycle gang. At approximately midnight on the night of 21 to 22 May 2015, a co-accused, MS, went to the house in Forrestdale at which DWB was staying. MS entered the room of DWB and his partner. He pointed a handgun at DWB and demanded that he stay at the location.
MS then contacted another co-accused, MF, who is the president of the motorcycle gang. The applicant went with MF, another co-accused, RR, and another person to the address at which DWB was staying. DWB was assaulted at that address. The applicant, MS and RR, joined in the assault, is the State's case. The State's case is that DWB was taken to a car. He ran off. He was pursued. He was eventually recaptured by the offenders and placed in a handcuff and led to a car. The car was driven to an address in Canning Vale and then to an address in Southern River.
The State's case is that the applicant and MF followed in separate vehicles. The State's case is that, at the address in Southern River, the applicant assaulted DWB, at one point jumping on him and, in his statement, DWB has said that the applicant lost it and was acting 'like a madman'. DWB was driven back to the house in Forrestdale. Police attended. MF and MS were located inside the house and arrested.
The facts alleged by the prosecution in charge PE25739 of 2015 are that, at approximately 6.30 am on 27 May 2015, the applicant was arrested at Perth airport where he was to board a flight to a mine site. He was arrested in relation to the matters the subject of the charges PE257636 of 2015, PE25737 of 2015, and PE25738 of 2015. Police officers searched the applicant's luggage and found a quantity of prescription medication related to body building and a vial containing approximately 5 ml of a substance that contained the prohibited drug testosterone. The applicant was interviewed on video. He denied knowledge of the items found by police.
The facts alleged by the prosecution in charge PE33595 of 2015 are that, on 19 March 2015, before May 2015, the applicant was in a car park outside a bar in Leederville. The complainant in that matter, DLC, and a group of his friends, were packing musical equipment into the back of a utility. The applicant approached DLC and his friends and started speaking aggressively towards them. DLC and his friends tried to placate the applicant, but were not successful. Without warning, the applicant punched DLC once in the face. As a result of the punch, one of DLC's front teeth was broken, and he suffered cuts to both his lips.
The applicant has sworn an affidavit in support of his application for bail. He intends to plead not guilty to all of the charges. He has deposed that he knows MF well. He also knows MS, RR and DWB, but he does not know them well. The applicant knows that MF is a member of the motorcycle gang, but he does not believe that MF is the president of that gang. In approximately May 2015, the applicant knew that MF and DWB were not getting along and that MF believed that DWB had stolen property from him.
The applicant was not aware of a drug debt in excess of $50,000. The applicant has been a nominee of the gang, but had ceased being a nominee a few months before May 2015.
At approximately 10.30 pm on 21 May 2015, the applicant was at a gym in Canning Vale. He received a telephone call from MF, wanting the applicant to go somewhere with MF. The applicant wanted to continue training and was not interested in going. MF then went to the gym and spoke to the applicant. MF mentioned something about girls and, for that reason, the applicant agreed to go. He followed MF to the address in Forrestdale. The applicant assumed that there would be a party at that address.
Police officers have intercepted a telephone call from MF to the applicant, in which he told the applicant that he had to cut his work hours out now, that MF would be out the front in two minutes, and that they were going somewhere where there would be hot girls.
The applicant denies assaulting DWB at any time. The applicant denies seeing DWB in handcuffs. The applicant has deposed that he had no knowledge that DWB had been taken to any location that evening against his will. The applicant does not depose as to what he saw or did when he was at the address in Forrestdale, or whether he went to the address in Southern River. The applicant also deposed that he does not know DC and he denies assaulting him.
The applicant is 26 years old. He was employed by Rio Tinto as a crane operator at the time of his arrest, and had been so employed for approximately three years. He has been offered employment by a business in the Perth metropolitan area if he is granted bail. The general manager of that business is his stepfather. His stepfather has said that the business intends to have the applicant complete a five-day training course, which would enable him to carry out open training courses to local clients of the business.
The applicant has been in custody since he was arrested in May 2015. The earliest that the prosecution could be committed for trial to the District Court is at the hearing on 23 December 2015. If that were to occur, a trial would not take place until around July or August 2016.
The applicant has been convicted of offences for which he has received fines. On 3 June 2014 he was convicted of an offence of criminal damage and an offence of disorderly behaviour. On 11 January 2013 and 28 July 2010 he was convicted of offences of disorderly behaviour. On 16 December 2009 he was convicted of an offence of damaging property. On 27 July 2009 he was convicted of an offence of assault. He has also been convicted of an offence of driving with a blood alcohol content in excess of .08%; an offence of refusing a breath test; two offences of driving with a blood alcohol content in excess of .05%; and an offence of driving without a valid motor drivers licence.
There are two earlier matters for which the applicant has received spent conviction orders, which are not relevant to my consideration of his application for bail.
The applicant attributes his past offending to problems with alcohol when he was drinking spirits. He stopped drinking spirits shortly after his last offence and has attended Alcoholics Anonymous meetings and group counselling sessions. He has also telephoned alcohol hotlines. These activities have cemented his resolve to stop drinking spirits.
The applicant has a mortgage on his home and has recently contracted to purchase an investment property. He is unable to service his debts if he does not work and if he remains in prison he will lose both his home and the investment property he has agreed to purchase. The applicant's family live in Western Australia and are supportive of him. His application for bail is supported by references from his mother, his stepfather, his sisters, his partner and friends.
The State opposes bail on the grounds that, if released on bail, the applicant may commit an offence, may endanger the safety, welfare, or property of any person, or interfere with witnesses, or otherwise obstruct the course of justice. It submits that there are no bail conditions that could reasonably be imposed which would reduce that risk to an acceptable level.
The State submits that the applicant has downplayed his involvement with the motorcycle gang. In addition, to the alleged offending behaviour on the night of 21, 22 May 2015, the State points to a tick list obtained from MF's car. It submits that there was a likelihood that all members of the motorcycle gang are in custody because there have not been incidents involving the gang since May 2015 reported to police.
The State submits that the members of the gang will want to obtain money to pay for their legal fees, and that it is likely that if a member of the gang is released on bail, that member will take steps to recover money from persons who owe money for drug debts to the gang. The State also points to the applicant's record of offending, the statement of DWB that the applicant acted like a madman, the allegation that the applicant was found in possession of testosterone, the likelihood that he will face a lengthy term of imprisonment if convicted, and the evidence from the night of 21 and 22 May and submits that the applicant is willing to do the bidding of MF. The State also points to evidence that MF has written to another person in which MF has expressed in desperate terms the need to reduce the strength of the prosecution case by approaching witnesses.
The applicant points to the fact that DWB has a criminal past and has admitted involvement in drug dealing. He also points to his evidence that the applicant ceased being a nominee of the motorcycle gang a few months before May 2015.
The offending alleged by the prosecution in PE257636 of 2015, PE25737 of 2015, and PE25738 of 2015 is serious. The allegation is that the applicant took part in sustained violence against an individual by a group of men.
The prosecution case against the applicant is strong. While the credibility of DWB will be assessed having regard to his criminal activity and his use of drugs the prosecution case does not depend solely on DWB's evidence. The applicant admits that he was at the house in Forrestdale on the night. In addition, the prosecution has CCTV evidence that shows the applicant accompanying MF and MS as they move DWB around the house and while MS is carrying a handgun. The applicant is also shown on CCTV footage searching the backyard of the house and leaving with the group when it appears that DWB was being dragged from the house handcuffed to RR.
Even if at trial there were to be a reasonable doubt that the applicant went to the address in Forrestdale because he thought that there would be a party with girls there, once the applicant arrived at the address it seems clear there was no party. There was a sustained assault on DWB. It also seems clear that at the very least the applicant did not leave or dissociate himself from that violence. The evidence of DWB and the CCTV footage is that he took part in the violence.
It seems to me that the applicant's evidence that he ceased being a nominee of the motorcycle gang a few months before May 2015 is not of any significance. Even if it were true, the evidence to which I have referred demonstrates that not only did the applicant maintain contact with the members of the gang, he was also willing, at least, to be present when violence was being inflicted on a person at that person's home.
In these circumstances, I have concluded that, if the applicant were to be released to bail, there would be a strong incentive for the applicant to seek to weaken the prosecution case against himself and the co-accused by endangering the safety and welfare of DWB and his partner and so interfering with them as witnesses. There would also be a strong incentive for the applicant to endeavour to obtain funds for himself and the co-accused by seeking to collect moneys owed to the motorcycle gang.
The applicant proposes significant restrictions on bail, including that he not contact any witnesses, that he not contact any co-accused, that he not contact any member of the motorcycle gang, or any motorcycle gang and, if necessary, that I obtain a home detention bail report so that he could be subject to home detention bail, if that were to be appropriate. However, for reasons directly associated with the matters to which I have just referred, it is my view that no conditions could be imposed that would sufficiently remove the risks to which I have identified.
By reason of the applicant's actions, in concert with the co-accused including MF on the night of 21 to 22 May, I believe that there is a strong risk that at some stage while on bail the applicant would engage in the conduct to which I have referred. I conclude therefore there is no condition which could reasonably be imposed under pt D of sch 1 which would sufficiently remove the risks to which I have referred.
I refuse the application for bail.
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