The State of Western Australia v Balestra - [2018] WASC 83

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BALESTRA [2018] WASC 83

CORAM: DERRICK J

HEARD: 15 MARCH 2018

DELIVERED : 20 MARCH 2018

FILE NO/S: INS 226 of 2017

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JARRAD BALESTRA
Accused

Catchwords:

Criminal law - Application for bail - Remanded for retrial - Lengthy period of pretrial imprisonment - On bail for serious offence - Exceptional reasons

Legislation:

Bail Act 1982 (WA), cl 1 pt C sch 1, cl 3 pt C sch 1, cl 3A(1) pt C sch 1, sch 2

Result:

Application allowed

Category: B

Representation:

Counsel:

Prosecution : Mr B F Stanwix & Mr L N Gabriel
Accused: Mr C J Henderson

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Marilyn Loveday

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

Firkins v Director of Public Prosecutions [2002] WASC 203
The State of Western Australia v Sturgeon [2005] WASC 256
YSN v The State of Western Australia [2017] WASCA 155
DERRICK J:
(This judgment was delivered orally and has been edited from the transcript.)

Introduction

The accused is currently charged on an indictment dated 22 August 2017 with one offence of stealing a motor vehicle (count 7), one offence of stealing a trailer (count 8), one offence of aggravated burglary (count 9), one offence of stealing a sum of money (count 10), and one offence of criminal damage by fire (count 11). He is alleged to have committed all of the offences on 11 August 2016. He is charged with committing all of the offences jointly with Darryl Raymond Sidney Kitto and Kevin Wayne O'Brien.
The accused now makes an application for home detention bail.
The accused has not filed any affidavit material in support of his application.
The State opposes the application. The State has filed in opposition to the application an affidavit sworn by Mr Benjamin Stanwix on 15 March 2018. Mr Stanwix is a senior State prosecutor employed at the Office of the Director of Public Prosecutions.
I have before me a bail assessment report dated 6 March 2018.

Background to the application

The background to the bringing of the application is as follows.
On 16 November 2016 the accused was arrested and charged in relation to the matters which are the subject of the charges on the indictment. At the time of his arrest he was charged with the offences that he currently faces on the indictment and as well as two further charges, a charge of attempting to steal a motor vehicle and a charge of criminal damage by fire.
At the time of his arrest and charging on 16 November 2016 the accused was already facing a charge of stealing a motor vehicle. He was alleged to have committed this offence on 26 June 2016 and was charged with the offence on that date. He was on bail for the steal motor vehicle offence at the time that he was alleged to have committed the offences the subject of the indictment for which he was arrested and charged on 16 November 2016.
The offence of stealing a motor vehicle and at least some of the offences with which the accused was charged on 16 November 2016 are 'serious offences' listed in sch 2 of the Bail Act 1982 (WA) (the Act). Accordingly, when the accused was charged with the offences on 16 November 2016 he fell within the terms of cl 3A(1) of pt C of sch 1 of the Act. That is, he was what is commonly referred to as a schedule 2 offender. The result was that he was remanded in custody by the Magistrates Court.
On 14 December 2016 the accused pleaded guilty to a charge of possessing stolen or unlawfully obtained property in satisfaction of the charge of stealing a motor vehicle. He was fined $500 for the offence. Accordingly, the accused ceased to be a person on bail for a 'serious offence' as from 14 December 2016.
Ultimately the accused was committed to stand trial in this court.
The indictment was filed in August 2017. It reflected the charges that had been laid against the accused in the Magistrates Court. That is, it contained the two additional charges of attempting to steal a motor vehicle and criminal damage by fire. These charges were counts 6 and 12 respectively. The accused was charged with committing these two offences jointly with Kitto and O'Brien. Kitto and O'Brien were also charged on the indictment with offences in addition to those with which they were charged as having committed with the accused.
The trial of the accused, Kitto and O'Brien commenced before Corboy J on 6 February 2018. One of the witnesses called by the State at the trial was a Mr Andrew Clarke. Clarke had previously provided a statement to the police dated 14 November 2016 in which he described his involvement, together with the accused, Kitto and O'Brien, in the commission of the offences the subject of counts 6 to 12 on the indictment. In other words his evidence, if given in accordance with the contents of his statement, would have directly implicated the accused in the commission of the offences with which he was charged. Clarke was therefore a crucial witness in the State's case against the accused.
Clarke was called to give evidence by the State on 8 February 2018. When he was called he initially refused to answer any of the questions asked of him by the prosecutor. He was asked by the prosecutor why he did not want to 'do it', that is, answer questions and responded by saying, 'Because why would I put my - try and - you know, put my life at risk potentially for doing this?' (ts 241). When the prosecutor asked him if he had been threatened, Clarke responded 'you've obviously not listened to - to what I'm saying' (ts 241).
After Clarke's initial refusal to answer questions there was a discussion between Corboy J and counsel in the absence of the jury in relation to the issue of Clarke being declared a hostile witness. After this discussion Clarke was recalled and directed by Corboy J to answer all questions asked of him. From this point on Clarke did answer the questions asked of him by the prosecutor albeit in a way which Corboy J subsequently described as 'self‑evident lies, obfuscation and non‑cooperation' (ts 1634). In any event Clarke, in answering questions, did not give any evidence implicating the accused, Kitto or O'Brien in the commission of the charged offences. Clarke was not cross‑examined by counsel for the accused, Kitto or O'Brien.
On 26 February 2018 Corboy J found that the accused, Kitto and O'Brien did not have a case to answer on counts 6 and 12. His Honour also held that Kitto and O'Brien did not have a case to answer on the remaining counts on the indictment concerning them, namely counts 1 to 5 and counts 13 to 16. It is clear from reading his Honour's reasons for finding that the accused had no case to answer on counts 6 and 12, and for finding that Kitto and O'Brien had no case to answer on the other counts on the indictment, that Clarke's failure to give evidence implicating any one of them was the primary reason for his Honour holding that there was no case to answer on the counts in question.
Having made his no case to answer decision Corboy J also decided to discharge the jury from determining the counts that remained on foot, that is, counts 7 to 11 (ts 1627 ‑ 1631, ts 1634 ‑ 1637). One of the reasons that his Honour identified as providing the basis for his decision to discharge the jury was that it would be obvious to the jury that the reasons why counts 1 to 6 were being withdrawn from them was due to Clarke's lack of co‑operation as a witness, and that this might result in the jury inferring that the counts left for their consideration had his imprimatur as being the charges that might seriously be asserted against the accused (ts 1630). In short, it is clear that Clarke's behaviour in the witness box and his failure to give evidence in a truthful and co‑operative way played a material role in his Honour's decision to discharge the jury.
At the conclusion of the trial the accused was remanded in custody.
On 8 March 2018 the matter came before Hall J. The prosecutor who appeared on that occasion informed Hall J that the State was in the process of considering whether it was going to appeal the no case to answer ruling made by Corboy J. Hall J provisionally listed the retrial of the accused, Kitto and O'Brien for three weeks commencing on 15 October 2018, and remanded all three to appear at a further status conference on 5 April 2018 so that the State could inform him of its decision in relation to the issue of the appeal against the no case ruling.
At the hearing of the accused's bail application I was informed by the prosecutor that the State has lodged an appeal against the ruling that the accused had no case to answer on count 12 on the indictment.
Given that the appeal is yet to be determined I will approach the bail application on the basis that the accused's retrial will be on counts 7 to 11 on the indictment only.

Requirement to show exceptional reasons

As I have already pointed out the accused, at the time he was remanded in custody for the offences with which he is currently charged, was a schedule 2 offender and therefore fell within cl 3A(1) of the Act.
It is clear on the authorities that the fact that the accused, on 14 December 2016, ceased to be a person on bail for a 'serious offence' within the meaning of cl 3A(1) does not alter the requirement that I determine his present application in accordance with that clause. It is the fact that the accused was charged with the indictable offences, which are 'serious offences', while on bail for an alleged earlier 'serious offence' which invokes the operation of cl 3A(1). The fact that he was ultimately convicted of the offence of possessing stolen or unlawfully obtained property, which is not a 'serious offence' within the meaning of cl 3A(1), is not to the point: Firkins v Director of Public Prosecutions [2002] WASC 203 [5]; The State of Western Australia v Sturgeon [2005] WASC 256 [11] ‑ [15]. It follows that I must judge the accused's application on the basis that bail should not be granted to him unless I am satisfied that there are exceptional reasons why the accused should not be kept in custody, and am also satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Act: cl 3A(1)(c) and (1)(d).

Are there exceptional reasons?

I turn to the question whether there are exceptional reasons for not keeping the accused in custody pending his retrial.
As is apparent from my outline of the background to the accused's application, if the accused is not granted bail he will, by the time of his retrial, have spent approximately one year and 11 months in custody as an unconvicted person. On behalf of the accused it is submitted that this fact of itself constitutes an exceptional reason for not keeping him in custody. It is submitted that although it is not uncommon for accused persons charged with offences in this court to spend significant periods of time in custody as unconvicted persons prior to their trial, a period of one year and 11 months is truly inordinate and exceptional.
On behalf of the State it is accepted that in most circumstances the period of time which the accused will spend in custody as an unconvicted person prior to his retrial if he is not granted bail would constitute an exceptional reason within the meaning of cl 3A(1). However, it is submitted that in the circumstances of this particular case the time that the accused will spend in custody as an unconvicted person if he is not granted bail does not constitute an exceptional reason because the delay between him being charged and his retrial is largely if not solely his own fault. The State's argument in this regard is, in essence, as follows. On 23, 24 and 27 November 2016 the accused made a number of phone calls from prison in which he arranged for another person or persons to contact Clarke with a view to making Clarke retract his statement to the police and/or not give evidence in accordance with his statement to the police, that as a result of these contacts Clarke did ultimately refuse at the accused's trial to give evidence in accordance with his statement, that Clarke's failure to give evidence in accordance with his statement was the basis for Corboy J's decision that the accused had no case to answer on counts 6 and 12 and that Kitto and O'Brien had no case to answer on these counts and the other counts on the indictment, and that it was as a consequence of the no case to answer decision that Corboy J further decided that the trial could not proceed.
As is apparent from the State's argument as I have just outlined it, the assertion that underpins the argument is that the conduct of the accused in making the phone calls to which I have referred was a cause, even if not the sole cause, of Clarke's decision to refrain from giving evidence at trial in accordance with his statement. The State submits that I should, on what is before me, be at least satisfied on the balance of probabilities of this fact.
In order to deal with this assertion by the State it is necessary for me to make some further reference to the phone calls and also what occurred shortly before the trial when prosecutors visited Clarke in prison.
Transcripts of the relevant phone calls are annexed to the affidavit of Mr Stanwix. Also annexed to the affidavit is a disc containing the audio recording of the phone calls which I have listened to.
As I have already mentioned, the relevant phone calls were made by the accused from prison to various persons on 23 November 2016, 24 November 2016 and 27 November 2016. There were five calls in total.
I do not propose to detail the contents of the phone calls. It is not necessary for me to do so. It suffices for me to say that having listened to the calls aided by the transcripts I am satisfied of the following:
1.During a phone call with a Ms Jessica Savage which took place at 3.16 pm on 23 November 2016 (call ID number 508947) the accused asked Ms Savage to tell Clarke that he needed to retract everything that he had said (a request which she expressly refused to comply with during the conversation) (affidavit of Mr Stanwix, page 11);
2.During a phone call with a woman called Kelsey which took place at 5.11 pm on 23 November 2016 (call ID number 510059) the accused told Kelsey to ask a man called Ano, who was at the time in the same prison as Clarke, to tell Clarke that Clarke should either retract the statement that he had given to the police or 'zip it', and that if Ano did this he and O'Brien would look after Ano (affidavit of Mr Stanwix, pages 14 ‑ 15);
3.During a phone call with an unidentified male which took place at 5.06 pm on 24 November 2016 (call ID number 515228) the accused told the male that if Ano could 'get' Clarke to retract his statement he and O'Brien would provide Ano with a reward in the form of an 'Oscar' and a spend account that was full (affidavit of Mr Stanwix, page 19); and
4.During the same phone call with the unidentified male the accused told the male that he, that is, the male, should make sure that he told Clarke that the accused and O'Brien would 'hook him up hard' and that Clarke needed to retract his statement (affidavit of Mr Stanwix, page 21).
I note in relation to the phone calls that it is not in dispute between the parties that the references made by the accused in the conversations to the person 'sixty - twenty five' were references to Clarke.
I move now to what occurred shortly before the trial when prosecutors visited Clarke in prison. As is revealed by Mr Stanwix's affidavit, on 19 January 2018, approximately 14 months after the above referred to telephone conversations had taken place, and in preparation for the trial of the accused, Kitto and O'Brien, prosecutors met Clarke in prison. At the meeting Clarke told the prosecutors that he would not be giving evidence. He also signed a handwritten statement, a copy of which is annexed to Mr Stanwix's affidavit, in which he said, among other things, that what he had said in his statement to the police was true, that he did not want to give evidence in the accused's trial, that the reason he did not want to give evidence is that he was in 'fear for his life and wellbeing and that of relatives' and that specific threats had been made to him. Clarke also said in his signed statement that he understood that when he was sentenced for his offences he was given a one‑third discount from his sentence for his undertaking to give evidence at the accused's trial and that if he did not do so the one third would be added back onto his sentence.
I pause here to point out that Clarke entered fast track pleas of guilty to counts 1 to 12 on a separate indictment, these being all of the charges faced by him, and was on 8 May 2017 sentenced by Corboy J to 5 years and 2 months imprisonment. In sentencing Clarke Corboy J indicated that the starting point for the sentence was 10 years and 6 months, but that he was giving Clarke a 25% discount for his guilty pleas and a further 33% discount for his undertaking to give evidence for the State at the trial of the accused, Kitto and O'Brien.
So, having referred to the phone calls and what happened on 19 January 2018, I come back to the State's argument as to why the time that the accused will spend in custody if he is not granted bail is not exceptional.
It follows from my stated findings in relation to the phone calls that I am satisfied that on 23 and 24 November 2016 the accused took steps to arrange for three persons, Ms Savage, Ano and the unidentified male, to cause Clarke to either retract his statement to the police or to not repeat what he had said in his statement to the police. Further, there is no question, as is apparent from what I have already said in outlining the background to the application, that Clarke's failure to give evidence in accordance with his statement played a pivotal role in Corboy J's decision to not only find that there was no case to answer on counts 1 to 6 and 12 to 16 on the indictment, but also to discharge the jury from returning verdicts on the remaining counts.
What I am not, however, satisfied of is that the conduct of the accused during the phone calls in taking steps to arrange for three persons, Ms Savage, Ano and the unidentified male, to cause Clarke to either retract his statement to the police or not to repeat what he had said in his statement to the police, was the cause or even a cause of Clarke's decision some 14 months later to refrain from giving evidence at trial in accordance with his statement. Assuming in the State's favour that contact was at around the time of the phone calls made with Clarke by Ano and/or the unidentified male and/or anyone else - a proposition for which statements made by the unidentified male during the phone call on 24 November 2016 and the woman Kelsey in a phone call on 27 November 2016 (call ID number 527514) provide support - approximately 14 months had passed between the contact with Clarke and his advice to the prosecutors that he did not want to give evidence. This is a lengthy period of time during which any number of things could have happened. Further, and again assuming in the State's favour that one or more of Ano or the unidentified male or some other person did do as was requested by the accused at around the time of the phone calls, the contact that was made with Clarke was not at that point in time sufficient to prevent him from giving the undertaking at the time that he was sentenced in May 2017 to give evidence against the accused, Kitto and O'Brien at their trial. If contact was made with Clarke following on from the accused's phone calls in an attempt to make Clarke retract his statement or not repeat what he had said in his statement, and it was this contact that was the cause of Clarke refusing to give evidence in accordance with his statement, it seems somewhat odd that in May 2017 he undertook to give evidence at the trial of the accused, Kitto and O'Brien in return for a reduction in his sentence knowing that if he did not make good on the undertaking the reduction would be reversed.

As Corboy J acknowledged in stating his reasons for discharging the jury at the trial (ts 1630), it might have been the contact undertaken at the instigation of the accused that was the cause of Clarke refraining from giving the evidence contained in his statement, assuming some contact was made. However, for the reasons I have stated, I cannot satisfy myself to the necessary degree, that is, on the balance of probabilities, that any contact made with Clarke as a result of the accused's requests made during the phone calls was the sole or even a material cause of Clarke informing the prosecutors that he did not want to give evidence and then effectively refraining from giving evidence which implicated the accused at the trial. In summary, I do not, for the purposes of dealing with the accused's application, make the finding contended for by the State, namely that it is a result of the accused's own conduct that he will, by the time of his retrial, have spent approximately one year and 11 months in custody as an unconvicted person if he is not granted bail.
Given the conclusion that I have just expressed, I now come back to the question whether the period that the accused will spend in custody prior to his retrial if he is not released on bail does constitute an exceptional reason within the meaning of cl 3A(1)(c).
There is no fixed definition of what constitutes 'exceptional reasons' within the meaning of cl 3A(1)(c). What amounts to exceptional reasons depends on the facts of a particular case. However, a long delay before an applicant for bail can be tried has, in a number of cases, either by itself or in combination with other factors, been regarded as amounting to an exceptional reason for granting bail: The State of Western Australia v Sturgeon [50].
As I have already acknowledged, accused persons in this court will on occasions spend relatively significant amounts of time in custody as an unconvicted person prior to their trial. However, in my view a period of one year and 11 months is an inordinately lengthy period of time for an unconvicted accused person to be in custody prior to their trial. I am therefore satisfied that the time that the accused will spend in custody in this case as an unconvicted person prior to his retrial if he is not granted bail does constitute an exceptional reason for not keeping him in custody within the meaning of cl 3A(1)(c).

Should bail be granted having regard to cl 1 and cl 3?

The fact that I have found that there is an exceptional reason why the accused should not be kept in custody is not, of course, the end of the matter. By cl 3A(1)(d) I must also be satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Act. This requires me to have regard to the questions specified in cl 1 and also any other matters that I consider to be relevant. I propose to deal with each of the questions specified in cl 1 to the extent that they are relevant in turn.
I note that in dealing with the questions I have had regard to, and will apply, the relevant statements of principle made by the Court of Appeal in YSN v The State of Western Australia [2017] WASCA 155.
The first question specified in cl 1(a) of pt C is whether, if the accused is not kept in custody, he may fail to appear in court in accordance with his bail undertaking, or commit an offence, or endanger the safety, welfare or property of any person, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. Further, by cl 3 of pt C I am required, in considering whether the accused may do any of the things mentioned in cl 1(a), to have regard to a number of matters as well as to any other matters which I consider to be relevant, namely:
1.The nature or seriousness of the offence or offences and the probable method of dealing with the accused for them if he is convicted;
2.The character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the accused;
3.The history of any previous grants of bail to the accused; and
4.The strength of the evidence against him.
As to the first of the matters specified in cl 3, the alleged facts of the charged offences the subject of counts 7 to 11 on the indictment are set out in the relevant portions of the prosecutor's opening address at the discontinued trial, and also in an Amended Statement of Material Facts filed by the State at my request dated 16 March 2018.
I do not propose to recite the alleged facts of the charged offences in detail. It is not necessary for me to do so. It suffices for present purposes to say that the charges faced by the accused arise out of his alleged involvement in a ram raid carried out at the Greenwood Village Shopping Centre on the night of 11 August 2016 during which a stolen vehicle and a stolen trailer were used in the theft of a free standing automatic teller machine which contained approximately $275,100.
As is apparent from the alleged facts as I have stated them, the offences with which the accused is charged in counts 7 to 11 on the indictment are serious. There is no question that if the accused is convicted of the charged offences he will be sentenced to a term of immediate imprisonment.
During the hearing of the application the accused's counsel submitted that if the accused is not released on bail he will, if he is ultimately convicted of the charged offences, already have served much if not all of the non‑parole period of the sentence that is likely to be imposed on him. I do not accept this submission. While it is not necessary or appropriate for me to at this point express any view as to the precise length of sentence that the accused is likely to receive if he is convicted of the charged offences, I will say that in my opinion any such sentence will require him to serve a significantly longer period than one year and 11 months in custody before becoming eligible for parole.
The prospect for the accused of a relatively lengthy immediate term of imprisonment if he is convicted of the charged offences is something that might be said to carry with it some risk that he will not appear in court in answer to his bail if released on bail.
I turn to the second and third of the matters specified in cl 3.
The accused is now 33 years old.
Between 2004 and June 2016 the accused's prior record as an adult consisted of traffic‑related matters including an offence of failing to stop when called upon of which he was convicted in December 2010. However, in January 2016 he was convicted of one offence of breaching a violence restraining order and three offences of breach of bail. His breach of violence restraining order offence was committed on 12 August 2015 and related to his ex‑partner. The offence involved him sending two texts to his ex‑partner one after the other within seven days of having been served with the final violence restraining order. The breach of bail offences were all constituted by the accused failing to appear in court on the required date. The offences were committed on three separate days, specifically 21 October 2015, 2 February 2016 and 31 March 2016. In each case the accused, having missed his court date, failed to surrender himself to the authorities and was brought before the court on an arrest warrant.
On 16 November 2016 the accused was convicted of an offence of possessing drug paraphernalia.
On 4 December 2016 the accused was convicted of the offence of possessing stolen or unlawfully obtained property to which I have already referred.
During his submissions the accused's counsel outlined to me the accused's explanation for his breach of bail offences. The explanation was, in essence, that the accused was going through a difficult time in his personal life. More specifically, his son had been removed from his shared custody, he was living a transient lifestyle and his drug use had escalated. The consequence of these factors was that he was unable to keep track of his court dates.
Even if one puts to one side the risk of non‑appearance that might be said to accompany the prospect faced by the accused of an immediate term of imprisonment if he is convicted of the charged offences, I am satisfied, given the accused's prior history of breaching his bail by failing to appear, that there is a material risk that if the accused is not kept in custody he may fail to appear in court when required. The accused's proffered explanation for his poor performance on bail does nothing to alter my view in this regard.
I am also satisfied, in light of the accused's prior record, that there is some risk of him committing further offences if he is released on bail.
Before leaving the second and third of the matters referred to in cl 3 I do need to make brief reference to a submission made by the prosecutor during the hearing of the application.
During the phone call made by the accused from prison on 27 November 2016 (call ID number 527514) the woman Kelsey made a comment to the accused to the effect that Ano might have got moved from where he was being held in custody because of what Ano had got someone else to say to Clarke, and that Ano had got 'someone from the Cs to say something' (affidavit of Mr Stanwix, pages 23 ‑ 24). In light of this exchange the prosecutor submitted that I should find that the accused had an association with an outlaw motorcycle club, namely the Commancheros. I do not accept this submission. Even if it is accepted that Kelsey's reference to 'the Cs' is a reference to the Commancheros, and it may be, I am not satisfied on the basis of her statement that the accused, as opposed to Ano, had any particular association with that club. In arriving at this conclusion I have not overlooked the statements made by the accused earlier in the conversation to a man called Gazza having 'another circle who's also got my back … which is the opposite club' (affidavit of Mr Stanwix, page 22).
As to the fourth of the matters specified in cl 3, namely the strength of the evidence against the accused, there is no question that the State's case against the accused is, in the absence of Clarke's evidence, significantly weakened. As was stated by the accused's counsel during the hearing of the application, it was the anticipated evidence of Clarke that gave all the other circumstantial evidence relied upon by the State its cogency and which made the State's case a relatively strong one. I note in this context that the prosecutor during the hearing of the application, while stating that the decision as to whether Clarke will be called by the State at the retrial was not one for him to make and was not one that had yet been made, accepted that it was difficult to see how the State could, as things currently stood, properly call him at the retrial. In my view it is inherently unlikely that the State, given what occurred at the first trial and in the absence of some dramatic change of attitude by Clarke, will be in a position to call Clarke at the accused's retrial.
During the hearing of the application the accused's counsel usefully identified, without disagreement by the prosecutor, the main aspects of the circumstantial evidence that the State will rely upon at the retrial in the absence of Clarke's evidence to prove its case against the accused. It is not necessary for me to refer to the evidence in question. Rather, so far as the issue of the strength of the State's case is concerned, it suffices for me to say that in my opinion the State's case, in the absence of Clarke's evidence, is neither a particularly strong case nor a particularly weak case. In short, the strength of the State's case as it stands in the absence of Clarke's evidence is not something which in my view has any significant bearing, one way or the other, on the determination of the accused's application.
So that deals with the four matters specified in cl 3 which I am required to take into account in determining the question posed by cl 1(a). However, before leaving the question specified in cl 1(a) I need to address more directly the question whether the accused, if not kept in custody, may interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. I need to do so because the State's position on the accused's application is that it is the risk that the accused will engage in such conduct which is of primary concern. The State submits, in essence, that although given that Clarke is now unlikely to be called as a witness it might be said that there is not any real risk that the accused will, if released on bail, interfere with witnesses, there is still a real risk that he will obstruct the course of justice in some other way. The State submits that in the case of a person like the accused, who has in the past shown a willingness to not only take steps to prevent a witness from giving evidence but also to disregard court orders and conditions of bail, there is a real risk that he will, if released on bail, obstruct the course of justice connected with his retrial.
During the course of the hearing I asked the prosecutor to specify for me the ways in which the State envisaged that the accused may, if not kept in custody, obstruct the course of justice. In response to my question the prosecutor, although stating that there are many ways in which the course of justice may be interfered with, which is of course true, was able to identify only two specific risks, namely the risk of the accused colluding with his co‑accused Kitto and O'Brien and the risk of the accused suborning a witness to come to court and give false testimony that exonerates him.
In my view the risk of the accused attempting to make further contact with Clarke, either directly or indirectly, would appear to be remote given the unlikelihood that Clarke will be called as a witness at his retrial. As I have already indicated, the State did not really attempt to suggest otherwise. Moreover, and as the accused's counsel pointed out, none of the other witnesses who are to be called by the State at the retrial give any evidence which directly implicates the accused in the commission of the charged offences. They are all police witnesses or witnesses who need to be called to enable the State to prove the various circumstances from which it will ultimately ask the jury to infer the accused's guilt. For these reasons I am not satisfied that there is any real possibility of the accused, if he is released on bail, attempting to interfere with witnesses. Further, if contrary to my view such a risk does exist, then to the extent that the risk exists it can be addressed by the imposition of appropriate non‑contact conditions.
As to the risk that the accused may, if he is not kept in custody, obstruct the course of justice, I do not think that the accused's past conduct comprised of the phone calls and his performance while on bail and while under court orders, makes it inherently more likely to any material extent that he, as opposed to any other accused person, will, if he is released on bail, collude with his alleged co‑offenders.
As to the suggestion that the accused may attempt to suborn a witness to give false evidence, it does seem to me that the suggestion is somewhat speculative and I note in this regard that the State did not attempt to point to any particular witness or category of witness to whom the accused may direct such attempts. Moreover, there is of course a difference between attempting to dissuade a witness from giving evidence and suborning a witness to give false exculpatory evidence. Further, the prosecutor did not really attempt to explain to me how the risk of the accused engaging in such conduct will be materially increased if he is released on bail, although I am willing to accept that it would probably be easier for the accused to do so if he is on bail, even bail subject to the strict conditions of home detention. In short, although I accept that the accused's past conduct in making the phone calls in relation to Clarke means that the possibility of the accused suborning a witness to give false exculpatory evidence cannot be positively discounted, the risk of this occurring is in my view not of any great magnitude.
I turn now to the second of the questions posed in cl 1, which is specified in cl 1(b), namely whether the accused needs to be held in custody for his own protection. There is nothing before me to suggest that the accused does need to be held in custody for his own protection.
The third question which I must consider, which is specified in cl 1(c), is whether the prosecutor has put forward grounds for opposing the grant of bail. I have already, in dealing with the question posed by cl 1(a), identified and addressed the grounds put forward by the State for opposing the accused's application.
The fourth question for my consideration, which is specified in cl 1(d), is whether, as regards to 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. The comments that I have made in dealing with the question whether the accused, if he is not kept in custody, may interfere with witnesses or otherwise obstruct the course of justice, apply equally to this question. There is nothing further I need to add in this regard.
The fifth question for my consideration, which is specified in cl 1(e) is, so far as is relevant in the present context, whether there is any condition which could reasonably be imposed under pt D of sch 1 which would sufficiently remove the possibility of the accused failing to appear in answer to his bail, or committing any further offence or offences, or obstructing the course of justice. I will return to this question in a moment.
The final relevant question, which is specified in cl 1(g), is whether the alleged circumstances of the offences with which the accused is charged amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. The offences, as I have stated, are clearly serious. However, in my view they are not of such a serious nature as to of themselves make a grant of bail inappropriate.
I come back now to the question whether there are any conditions which can reasonably be imposed which will sufficiently remove the risks of the accused failing to appear in answer to his bail, or committing any further offence or offences, or obstructing the course of justice to the extent that these risks exist in the present case. The possibility of the accused engaging in the conduct to which I have just referred will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. As was stated by the court in YSN [20] this construction of cl 1(e) recognises that before bail is refused the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
The bail assessment report is in relatively positive terms. The report reveals the following.
If the accused is released on home detention bail he will be living with his mother at 41 Comito Bend in Alkimos. An accommodation assessment was completed at this address on 6 March 2018. There are no current issues relating to communication or network reception or access at that address.
The accused's mother resides at the property by herself.
The accused will have his own room at the property.
The accused's mother has expressed no concerns about the accused residing at the property. She has informed officers from the Department of Corrective Services that she will not tolerate any drug use or negative peers attending the property and will make contact with police or the Department should any issues or concerns arise. She is willing to act as a surety.

The accused was interviewed for the purposes of the preparation of the report at which time the requirements of home detention bail were explained to him. He confirmed his understanding of the requirements and agreed to comply with the requirements. He signified his agreement by signing a form containing the conditions of home detention.
The accused informed the writer of the report that he has been abstinent from alcohol and illicit substances since being remanded in custody on 6 May 2017, that he is now having contact with his 7‑year‑old son which is a motivating factor for him to remain abstinent, and that if released he would pursue employment with his father who is an electrician.
The writer of the report recommends that if the accused is released on home detention bail the following conditions be imposed to allow for appropriate monitoring of the accused and for the transportation and installation of home detention equipment:
1.The accused is not to be released until home detention electronic monitoring equipment is available and able to be installed;
2.The accused is not to possess or use illicit substances;
3.The accused is not to possess or consume alcohol;
4.The accused is to comply with all lawful directions of a community corrections officer; and
5.The accused is to attend counselling programmes as directed by a community corrections officer.
During the hearing of the application the accused's counsel told me that the accused's mother had the ability to provide a surety of up to $10,000.
As I have indicated, I am satisfied that there is a material risk that if the accused is not kept in custody he will fail to appear in court when required, that there is some risk that if the accused is not kept in custody he will commit a further offence or offences, and that there is some, albeit limited, risk that if the accused is not kept in custody he will obstruct the course of justice, not by interfering with witnesses but by suborning a witness to give false exculpatory evidence. Nonetheless, based on the material before me, and bearing in mind the time that the accused has already spent in custody and will continue to spend in custody prior to his trial if he is not released on bail, I am satisfied that it is appropriate to grant the application for home detention bail. More specifically, I am satisfied that the imposition of a home detention condition and any appropriate non‑contact conditions as part of the accused's bail will sufficiently remove the risks that I have identified, to the extent that they exist. To put the matter another way, when I take into account how long the accused will be required to spend in custody as an unconvicted person prior to his retrial if he is not granted bail, I am of the view that the possibility of the accused engaging in the conduct to which I have referred (and for that matter also any risk that the accused will engage in conduct constituting an obstruction of the course of justice in some way other than the ways specifically postulated by the prosecutor), will be sufficiently removed by home detention conditions such that the remaining risk no longer constitutes a proper ground for refusing bail. I am also satisfied that the preconditions for the granting of home detention bail specified in cl 3(2) of pt D of sch 1 to the Act are met. I therefore propose to grant the application on at least the following conditions:
1.The accused is to be released on a personal undertaking with no monetary amount affixed;
2.There is to be a surety in the amount of $10,000;
3.The accused is to reside at 41 Comito Bend in Alkimos on home detention and is to be subject to, and is to comply with, all of the home detention conditions that are specified in cl 3(3) of pt D of sch 1 to the Bail Act and the conditions annexed to the report which was signed by the accused on 28 February 2018;
4.The accused is not to be released until home detention electronic monitoring equipment is available, able to be installed and is installed;
5.The accused is not to possess or use illicit substances;
6.The accused is not to possess or consume alcohol;
7.The accused is to subject himself to urinalysis testing as directed by adult community corrections and is to provide a valid sample for analysis for all illicit substances and is not to test positive for illicit substances;
8.The accused is to comply with all lawful directions of a community corrections officer; and
9.The accused is to attend counselling and/or programmes as directed by a community corrections officer.
I will hear the parties in relation to the question whether any other conditions should be imposed.