The State of Western Australia v Herbert - [2016] WASC 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- HERBERT [2016] WASC 189

CORAM: SIMMONDS J

HEARD: 16 & 20 JUNE 2016

DELIVERED : 20 JUNE 2016

PUBLISHED : 23 JUNE 2016

FILE NO/S: INS 135 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KODEY RAY SEATON HERBERT
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for revocation of bail under Bail Act 1982 (WA) s 14(1)(b) - Making order allowing application not supported by affidavit - Whether s 14(1)(b) displaced by Bail Act s 34(e) - Whether s 14(1)(b) inapplicable to bail granted by another Supreme Court judge - Proper approach to be adopted under s 14(1)(b) - Whether Bail Act s 22 applicable - Relevance of approach to grant or refusal of bail under Bail Act s 14(1)(a) - Answers to questions in sch 1 pt C cl 1(a)(iii) and (iv) read with cl 3 and question in cl 1(e) - Exercise of discretion after questions answered

Legislation:

Bail Act 1982 (WA), s 14(1)(a), s 14(1)(b), s 14(4)(b)(i), s 22, s 34, s 55, sch 1 pt C cl 1(a)(iii), (iv), cl 3
Criminal Code (WA), s 68(1), s 143, s 330B, s 338B, s 444(1)(a)
Criminal Procedure Rules 2005 (WA), r 25

Result:

Application for revocation granted

Category: A

Representation:

Counsel:

Applicant: Mr C J Henderson
Respondent: Mr A E Monisse

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Not applicable

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

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228
R v Singh [2013] WASC 478
Va v The State of Western Australia [2014] WASC 74
SIMMONDS J:
(This judgment was delivered extemporaneously on 20 June 2016 and has been edited from the transcript.)

Introduction

This is an application (the present application) for the revocation of bail.
The hearing of the present application was adjourned to permit the applicant to prepare a listing of the particular matters on which it relied in support and then again, administratively, to permit counsel for the respondent to properly prepare for the hearing on that listing. This was given counsel for the respondent's other trial commitment at the time of these hearings.
I have written submissions for the applicant dated 7 June 2016. I also have an email of 16 June 2016, 4.43 pm (the email of 16 June 2016), listing the matters, for the most part from the prosecution brief for the offending in respect of which the respondent had bail, on which the applicant relies and indicating in what respect it relies on them.
I have and email from the respondent dated 15 June 2016, 1.48 pm, outlining the respondent's submissions.

Background

In what follows, I draw on the written submissions and the prosecution brief accordingly. I did not understand there to be any contest as to any of the matter, as opposed to the allegations.
On 6 November 2014 the respondent was charged with criminal damage by fire (the arson offence). This was in relation to an allegation that on 2 January 2014 he set fire to a Toyota Prado motor vehicle (the fire setting). A Mr FB was alleged to be a co‑offender. On the same day Mr FB signed a statement implicating the respondent in the fire setting (Mr FB's statement of 6 November 2014).
On 20 November 2014 Mr FB swore an affidavit which essentially retracted Mr FB's statement of 6 November 2014 so far as it implicated the respondent in the fire setting (Mr FB's affidavit of 20 November 2014).
On 24 November 2014 Magistrate Potter in the South Hedland Magistrates Court granted the respondent bail for the arson offence (the bail).
The conditions of the bail, in summary form, included:
•Personal undertaking of $5,000;
•Surety of $5,000;
•To report to the officer in charge of South Hedland Police Station each Tuesday and Thursday between 8.00 am and 4.00 pm or otherwise as directed by the officer in charge of that Station; and
•Not to contact or associate with Mr FB and three other named persons.
On 12 December 2014 the respondent was charged with conspiracy to defeat justice (the conspiracy offence). This was in relation to allegations that the respondent, acting with his mother, Ms T Hepburn, and subsequently acting with the respondent's father, Mr R Herbert, had made Mr FB retract Mr FB's statement of 6 November 2014, to the extent that statement implicated the respondent in the fire setting. That retraction was by Mr FB's affidavit of 20 November 2014.
On 16 July 2015 the applicant signed an indictment in the Supreme Court against the respondent that included a count of the arson offence.
On 20 July 2015 the respondent had his first appearance in the Supreme Court. At that time the bail was renewed on the same terms as previously outlined.
On 4 January 2016 the applicant signed an indictment in the Supreme Court against the respondent and Ms T Hepburn. It added an ex‑officio count against both of them of an offence of attempt to pervert the course of justice (the offence of attempt to pervert the course of justice). The count of an offence of attempt to pervert the course of justice appears to have arisen out of the same circumstances that gave rise to the charge of the conspiracy offence.
On 16 January 2016 Mr FB signed a further statement (Mr FB's statement of 16 January 2016) to the effect that Mr FB's statement of 6 November 2014 was true and that he had sworn Mr FB's affidavit of 20 November 2014 under pressure from Ms T Hepburn and Mr R Herbert.
On 1 February 2016 the applicant disclosed Mr FB's statement of 16 January 2016 to counsel for the respondent.
On or about 1 February 2016 Mr FB was at the back of a property on Yarrunga Crescent in South Hedland. The respondent and Mr R Herbert confronted him there with a baseball bat. The respondent accused Mr FB of being 'a dog'. Mr R Herbert swung at him with the baseball bat (the being armed in a way to cause fear). Mr FB was able to escape by running and jumping over a back fence.
The applicant further alleges that on 14 February 2016 Mr FB and his partner, Ms H Herbert, the sister of the respondent, were at a house in Wambiri Street in South Hedland. There they were confronted by the respondent. The respondent had a stick and was yelling that he was going to kill Mr FB and also made threats to harm Ms H Herbert (the threat to kill and the threat to injure or harm). Mr FB managed to escape by running and jumping over a back fence.
On the same date, the respondent was charged with a number of offences arising out of the alleged incidents on that day as just described. Those offences were an offence of threat to kill (the threat to kill offence); an offence of threats to injure or harm (the threats to injure or harm offence); and an offence of obstruct police officers (the obstruct public officers offence).
On 15 February 2016 South Hedland Magistrates Court remanded the respondent in custody in relation to the charges of the threat to kill offence; the threats to injure or harm offence; and the obstruct public officers offence.
On 16 February 2016 the applicant signed an indictment in the Supreme Court which added Mr R Herbert as a party to the offence of attempt to pervert the course of justice.
On 27 April 2016 there was a directions hearing before Corboy J of this court. I have read the transcript of that hearing, which includes references to the count to pervert the course of justice as included in the indictment and Mr R Herbert as having been joined. However, the transcript indicates that there were no further counts in the indictment, although the applicant foreshadowed that there would be such, as indeed transpired.
At the same time, there is no indication in the transcript of the hearing on 27 April 2016 that the matter of bail was addressed. However, the Associate's Record confirms that the respondent had bail, on the conditions previously rehearsed, for an appearance for trial on 5 September 2016. Further, counsel for the applicant's written submissions inform me that at that hearing Corboy J enquired of the applicant whether anything had to be done in relation to bail in the Supreme Court. I was so informed that the applicant did not raise any issues at that stage as the respondent was already remanded in custody because of the charges in the Magistrates Court in South Hedland.
On 28 April 2016 the applicant signed an indictment in the Supreme Court which added ex‑officio counts of the threat to kill offence; the threats to injure or harm offence; and the obstruct public officers offence. That indictment also added an ex-officio count of an offence in relation to the incident on 1 February 2016 involving the being armed in a way to cause fear. No charge had been laid in respect of that incident previously.
On 9 May 2016 the South Hedland Magistrates Court discontinued in that court the charges of the threat to kill offence; being armed in a way that may cause fear offence; and the threats to injure or harm offence.
On 30 May 2016 the respondent applied for and was granted bail in the South Hedland Magistrates Court on the charge of the obstruct public officers offence. He was released from custody where he had been since 15 February 2016.
The current indictment in this matter is dated 28 April 2016 being the last indictment signed by the applicant referred to above. That indictment is against the respondent, Ms T Hepburn and Mr R Herbert. It is to the following effect:
1.Contrary to Criminal Code s 444(1)(a), on 2 January 2014 at South Hedland [the respondent] wilfully and unlawfully destroyed a motor vehicle;
And that the motor vehicle was destroyed by fire.
2.Contrary to Code s 143, between 5 November 2014 and 15 February 2016 at Roebourne [the respondent], [Ms T Hepburn] and [Mr R Herbert] attempted to pervert the course of justice on the prosecution of [the respondent] on a charge of criminal damage by fire by causing [Mr FB] to swear an affidavit withdrawing his statement dated 6 November 2014.
3.Contrary to Code s 68(1), on or about 1 February 2016 at South Hedland [the respondent] and [Mr R Herbert] were armed with an offensive weapon, namely a baseball bat, in circumstances likely to cause fear to [Mr FB].
4.Contrary to Code s 330B, on 14 February 2016 at South Hedland [the respondent] made a threat to unlawfully kill [Mr FB].
5.Contrary to Code s 68(1), on the same date and at the same place as Count (4) [the respondent] was armed with an offensive weapon, namely a wooden stick, in circumstances likely to cause fear to [Mr FB].
6.Contrary to Code s 338B, on the same date and at the same place as in Count (4) [the respondent] made a threat to unlawfully injure [Ms H Herbert].
The present application seeks the revocation of the bail on the basis of past breaches and likely future breaches of the condition in it that the respondent not contact or associate with Mr FB (the protective condition). Those breaches are identified with the matters in relation to which there was the charge of the conspiracy offence and then the count of the offence of attempt to pervert the course of justice; the incidents in relation to which there were the charges and then the counts of the threat to kill offence, the threats to injure or harm offence and the obstruct public officers offence; and the incident in relation to which there was the count of the offence of being armed in a way to cause fear.
Before considering the law applicable to the disposition of the present application on its merits, I need to consider a submission made to me by counsel for the respondent. That submission is that the respondent's bail was 'revoked' when he went into custody on 14 February 2016. On that submission, the present application is misconceived.

Has the respondent's bail already been revoked?

The respondent relies on Bail Act 1982 (WA) s 34(e) in support of his submission. Bail Act s 34 reads as follows:
34.When bail undertaking ceases to have effect
A bail undertaking ceases to have effect -
(a)upon the revocation of bail under section 55;
(b)upon the death of the accused, but only if no order has been made under section 57;
(c)subject to section 31, upon the appearance in court by the accused as required by his bail undertaking;
(d)upon the discharge of the accused according to law from any further proceedings for the offence, or all of the offences, to which the bail undertaking relates;
(e)during any period before the time at which the accused is required to appear in court when he is in custody for any other offence or reason. (emphasis added)
No authority on the provision in the present respect was cited to me. My own research has revealed none.
It will be noted the word 'revoked' or 'revocation' does not appear in the provision. Rather, it lists five situations in which '[a] bail undertaking ceases to have effect'. However, it is not apparent to me that bail without an undertaking in effect is materially different from bail that has been revoked, except as I will indicate.
In my view, applying the ordinary approach to statutory construction, the plain meaning of the words of s 34(e) is against the respondent's submission. I emphasise for the purpose the words 'during any period'. These have no counterpart in s 34(a) ‑ (d).
Whatever the position as to bail undertakings under those other paragraphs, I consider the effect of the condition to the application of s 34(e) is to suspend the operation of the bail undertaking, but only for the period there described. That is the period 'when [the person previously granted bail] is in custody for any other offence or reason'.
I would not accept the submission for the respondent.
This makes it unnecessary for me to determine whether or not I should treat what appears in the Associate's Record for the hearing before Corboy J on 27 April 2016 as recording a fresh grant or at least a renewal of bail, being a grant or renewal to which Bail Act s 34(e) had no application. I am inclined to the view, as I explained at the initial hearing on the present application, that even if that Associate's Record were so viewed the paragraph applied. However, I make no final determination as to the point.
It follows I must now deal with the merits of the present application.

Applicable law: jurisdiction

Prior to the hearing of the present application, counsel for the applicant indicated that it was relying upon the jurisdiction of the court under Bail Act s 14(1)(b).
Bail Act s 14(1) provides as follows:
14.Judges, jurisdiction of
(1)A judge may, in accordance with this Act -
(a)exercise a power to grant bail which is conferred upon any other judicial officer or any authorised officer by this Act; and
(b)revoke or vary any bail previously granted by any other such officer; ... (emphasis added)
I have previously considered the approach that should be taken to the exercise of that jurisdiction in R v Singh [2013] WASC 478. However, Singh was a decision concerned with bail previously granted by a judicial officer whose jurisdiction was inferior to a judge of this court, namely, a magistrate.
It might be suggested that, in view of Bail Act s 14(4)(b)(i), I do not have jurisdiction to revoke bail previously granted by a judge of this court.
Bail Act s 14(4)(b)(i) provides as follows:
In this section -
…
(b)references to any other judicial officer -
(i)in relation to the exercise of powers under this section by a judge, are references to any judicial officer whose jurisdiction in inferior to that of the judge.
However, I consider the reference in Bail Act s 14(1)(b) to 'any bail previously granted by any other such officer', read in its context as reproduced above, is not limited to 'another judicial officer', but includes bail granted or renewed by a judicial officer with jurisdiction under s 14(1)(a). Such a renewal was on 20 July 2015, as I have indicated. Indeed, it may be there was a further renewal or grant of bail, on 27 April 2016 by Corboy J, as I have indicated.
I should add that the present application appeared from the form of it, on Form 1 under Criminal Procedure Rules 2005 (WA), to be rested on Bail Act s 55. However, that provision requires the accused to be in custody. The respondent is not in custody. At the same time I do not consider that that form prevents the applicant proceeding before me as it did.
As to the approach I should take to the revocation of bail, I consider that the applicant must adduce grounds in that regard: see Singh [40].
Beyond that matter, it is not clear whether the approach to be adopted is one that is governed by, or that includes having regard to, Bail Act sch 1 pt C cl 1 read with cl 3: see Singh [37].
However, in my view the approach to Bail Act s 14(1)(b) is one that at the least includes having regard to the answers to the questions in sch 1 pt C cl 1 read with cl 3. That is because a decision whether or not to revoke bail determines whether or not the person on bail continues to have it.
Prior to so proceeding, there is a further matter of relevant background I should consider, namely, the respondent's criminal history. It is relevant by virtue of Bail Act sch 1 pt C cl 3(b). In any event it is relevant to whether there is a risk that the respondent will not comply with the conditions of his bail.

Further aspect of the relevant background: criminal history

I have a criminal history for the respondent compiled 15 June 2016. That history is one appearing to show the most serious offences for the respondent, being the three for which he received sentences of (suspended) imprisonment, were assault occasioning bodily harm, common assault and possess an article with intent to injure (disable). All were committed on 1 January 2012.
However, there are indications from that criminal history that the respondent has had difficulty complying with court orders. There is a breach of bail (failure to appear soon after) on 22 August 2011, and the following further offending: disobey summons on 2 April 2007; three breaches of suspended imprisonment order on 1 January 2012; three breaches of intensive supervision order on 22 January 2014; three breaches of conditional release order on 8 August 2014; and three further breaches of suspended imprisonment order on 1 January 2012.
Counsel for the respondent drew my attention to the fact that all of the breaches referred to, including the breach of bail, attracted fines of only moderate amounts. Further, counsel reminded me that the breach of bail occurred some five years ago.
I accept both matters as going to moderate somewhat the significance to be attributed to the breaches. However, those breaches remain matters of significance, particularly when considered in the context of the matters on which the applicant relies and to which I will come.

Further law applicable to the present application and basis for it

As to the information of which I may take account for the purposes of the present proceedings, I note Bail Act s 22, as follows:
A judicial officer or authorised person may in considering any case for bail receive and take into account such information as he thinks fit whether or not the same would normally be admissible in a court of law.
In Singh I proceeded on the basis that provision applied to proceedings under Bail Act s 14(1)(b): see Singh [60]. I did not there explain the basis for that view. I do so now as counsel for the respondent submitted to me that the provision has no application to proceedings under s 14(1)(b).
I consider that Bail Act s 22 applies to proceedings under s 14(1)(b) as the rejection of the application under the latter provision means that an accused continues to have their bail. I accept that s 14(1)(a) is clearer case for the application of the provision, in view of the presumption of innocence and the evidentiary advantages presumptively possessed by the applicant. However, it has never been suggested that in s 14(1)(a) applications the provision applies only to information adduced by an applicant for bail. Further, the language of s 22 ('case for bail') is in my view readily to be seen as apt for proceedings under both s 14(1)(a) and (b), given that the liberty of the subject is at stake in both, as counsel for the respondent accepted in another court.

However, counsel for the respondent pressed on me that the context to an application for bail was different from the context to a revocation in a material respect. In the former context the legislative policy could be seen to favour the facilitation of an expedited determination of the bail application. Such a policy, counsel submitted, had no parallel in the context of an application for revocation, particularly given that the liberty of the subject was at stake, to be gained in the first context, and liable to be lost in the second.
I do not agree that there is such a difference in context. The present application for revocation is illustrative in that respect. The present application calls for an expedited determination, on the submissions of counsel for the applicant. Further, in my view the legislative policy of the Bail Act in those provisions cannot be reduced to concern simply for the liberty of the subject. See the authorities on the approach to applications for bail to which I will shortly come.
I should note that the applicant did not produce any affidavit sworn as in support of its application, as might be seen to be required by Criminal Procedure Rules 2005 (WA) r 25. However, as that provision indicates the court may order otherwise.
I begin by noting that for the purposes of the present application the applicant relies on witness statements as well as certain other material for the most part in the prosecution brief for the indictment, in the particular respects it listed for the purposes of the adjourned hearing in the email of 16 June 2016.
Counsel for the respondent put to me that nonetheless no order otherwise under Criminal Procedure Rules r 25 should be made. This was given the importance to the present application of material from Mr FB. That material, it was said, should be sworn to in an affidavit under the rule.
However, I note that the material from Mr FB on which the applicant relies is either in witness statement or affidavit form from the prosecution brief. It is not evident to me what a further affidavit from Mr FB would add, other than to confirm there had been no material change. Without denying that such a further affidavit would add some, if not substantial, weight to the matter from Mr FB, I am of the view that the point cannot be put higher than that. Further, it is not apparent to me what affidavit evidence would add in respect of the other material, for the most part in the prosecution brief, relied upon.
Accordingly, I would make an order dispensing with compliance with r 25.
This then takes me to the use to be made of Bail Act sch 1 pt C cl 1 read with cl 3. Any such use should be in accordance with the approach to those provisions set out in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [43] (McLure P, Pullin JA & Hall J agreeing), on which see Va v The State of Western Australia [2014] WASC 74 [27] ‑ [29] (EM Heenan J), adopting the summary in Quaid v The State of Western Australia [2013] WASC 228 [13] ff (Edelman J). I reproduce those paragraphs from Va:
In Milenkovski, at [31] - [45], McLure P set out extensively the now authoritative exposition of the significance of the Bail Act for present applications. I, of course, accept that and apply it accordingly. A summary of the effect of that decision was helpfully made by Edelman J in the recent case of Quaid v The State of Western Australia [2013] WASC 228, where his Honour said, at [13] and following, that the principles concerning the application of Sch 1, Pt C, cl 1 of the Bail Act, which applies by virtue of s 14 of that Act, can be summarised by the following points:
'1.The Bail Act is a Code in a sense that it is intended to displace the common law.
2.In circumstances such as those in this application, the text and purpose of the Bail Act is inconsistent with the common law approach in general and the requirement that the accused establish exceptional circumstances in order to obtain bail.
3.As to the general provision in cl 1 of pt C, that clause contains no express statutory presumption for or against the grant of bail. The only clauses of pt C, sch 1 of the Bail Act which provide for a (rebuttable) statutory presumption against the grant of bail are cl 3A, cl 3C and cl 4A.'
None of those clauses was relevant to the application before Edelman J, and as I have said, none is relevant to the present case. The only situation where there is a rebuttable statutory presumption in favour of bail is clause 2 of part C of schedule 1, which again does not apply:
'4.The Bail Act does not place any legal onus on any party to a bail application. However, in circumstances where a bail application is to be determined and under cl 1, the consequence of the structure of that clause is that bail would be granted if there is no material before the Court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required for provide proper foundation for refusing bail.
5.The grant or refusal of bail is at the discretion of the person vested with jurisdiction who is required to have regard to the questions in paragraphs (a) - (g) and to any other questions which the decision-maker considers relevant. The correct approach to the exercise of the discretion is sourced in and guided by the matters in paragraphs (a) - (g). The mandatory answers to the "questions" in those paragraphs and other relevant questions of findings provided the factual basis for the exercise of the discretion. The Court is required to consider an answer to mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
6.The Court is not required to consider questions directed to whether there are positive grounds for granting bail.
7.Paragraphs (a) and (d) of cl 1(a) are concerned with the possibility of the relevant event occurring. In answering that, and other questions in cl 1(a), the Court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C.
8.The seriousness of the offence does not produce the common law result of requiring the applicant for bail to establish exceptional reasons or circumstances. The Court is required to have regard to all the questions in cl 1 and the matters in (c)(iii) in the exercise of the discretion to grant or refuse bail.'
And finally:
'9. It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the events and the probable consequences if the accused is convicted are sufficient to enable the Court to conclude that the accused may fail to appear in Court in accordance with his bail undertaking. The nature of the potential sentence imposed by the court, having regard to the answers to all the other mandatory questions in cl 1, may require or justify the refusal of bail.' [27] ‑ [29]
The basis for revocation of the bail is in two respects.
One is that if the respondent is not kept in custody he may endanger the safety or welfare of Mr FB.
The other respect is that if the respondent is not kept in custody he may interfere with witnesses, namely Mr FB, or otherwise obstruct the course of justice.
The applicant indicated in the e-mail of 16 June 2016 the particular matters, for the most part in the prosecution brief, relied upon for each respect.
I turn now to consider these respects.

The basis's two respects

I consider the first matter may be related to Bail Act sch 1 pt C cl 1(a)(iii). This is the question whether, if the person who might otherwise have bail is not kept in custody, he 'may' endanger the safety, welfare or property of any person, when regard is had to the matters referred to in cl 3.
I consider the second matter may be related to Bail Act sch 1 pt C cl 1(a)(iv). This is the question whether, if the person who might otherwise have bail is not kept in custody, he 'may' interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
Bail Act sch 1 pt C cl 3 directs the decision maker in relation to an application for bail, in considering whether the respondent may do any of the things mentioned in cl 1(a), to have regard to the matters listed in cl 3(a) (nature and seriousness of offences and probable method of dealing with them), (b) (character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the person who might otherwise have bail), (c) (history of previous grants of bail) and (d) (strength of evidence against the person who might otherwise have bail), as well as to any others that the decision‑maker might consider relevant.
As to cl 3(a), it was not in contest that the charges were serious ones of offending of a serious kind and that the probable method of dealing with them, were the respondent to be convicted of them after trial, would be sentences of immediate imprisonment. In my view, this is relevant to an assessment of what might impel a person in the position of the respondent to act as indicated in cl 1(a)(iii) and (iv).
As to cl 3(b), in respect of the respondent's criminal history, I have previously referred to this. In my view, this is relevant to an assessment of whether a person in the position of the respondent might act as indicated in cl 1(a)(iii) and (iv), notwithstanding the requirements of the law, including any bail conditions.
As to cl 3(c), I note the previous breach of bail in the respondent's criminal history. In my view, this is relevant to the assessment just described.
As to cl 3(d), this takes me to the particular matters, for the most part from the prosecution brief, that are relied upon by the applicant.
The matter in the first respect relied upon by the applicant is nominated paragraphs from a witness statement of Mr FB made 14 February 2016 as to the incidents on 1 February 2016 and 14 February 2016; from a witness statement of Ms H Herbert made the same day as to those incidents; and from a witness statement of Mr FB made on 1 May 2016 as to the latter and his concerns.
I consider that matter, representing direct observations of the witnesses concerned, is strong evidence that those incidents occurred as alleged, where those allegations are of conduct representing a strong indication of a significant possibility of the kind in cl 1(a)(iii).
The matter in the second respect relied upon by the applicant is the same nominated paragraphs as for the first respect; the entirety of the witness statement of Mr FB made on 6 November 2014, being Mr FB's statement of 6 November 2014; nominated portions of an Arunta telephone conversation on 14 November 2014 between the respondent and Ms T Hepburn and three other such conversations on 21 November 2014, as to the respondent's concern for the evidence in the trial of the respondent to support his innocence, including to ensure Mr FB changed his account; a further such conversation on 22 November 2014 indicating the intensity of the respondent's concern; Mr FB's affidavit of 20 November 2014; the transcript of the hearing on 24 November 2014 at which Magistrate Potter granted the respondent bail tending to indicate the significance of the change of Mr FB's account represented by his retraction of Mr FB's statement of 6 November 2014; and nominated paragraphs in the witness statement of Mr FB made on 15 January 2016 as to the circumstances of that retraction.
I consider that matter, being direct accounts of persons involved or a court record, is strong evidence that the retraction occurred as alleged, where those allegations are of conduct representing a strong indication of a significant possibility of the kind in cl 1(a)(iv).
Counsel for the respondent put to me that the material from Mr FB was self‑serving, and was to be considered in the light of the lack of any indication he had moved from South Hedland in response to the concerns he had indicated.
However, it is not apparent to me that I should weigh the matter from Mr FB significantly lower on either account. The self‑serving character might be seen to go to the very concerns in issue. The failure to move may go to connections to the town of a kind represented by his relationship with Ms H Herbert, at least at the times of the incidents in question.

The question in cl 1(e)

This is the question whether there is any condition which could reasonably be imposed under Bail Act sch 1 pt D which would sufficiently remove the possibility referred to in cl 1(a).
Here I note the submissions of counsel for the respondent as to matters counsel put to me would sufficiently remove the possibilities on which the applicant relied. Those matters included the possibility of an increase in the frequency of reporting by the respondent, which would reinforce to him his obligation of compliance. Counsel for the respondent reminded me in that regard of the time in custody the respondent had spent in relation to the offences now the subject of the indictment against him. Counsel for the respondent referred me to further matters, being the possibility of a curfew and of home detention bail, in the latter case after an assessment in that regard, which the trial listed for September would leave sufficient time for.
However, I consider that the matters relied upon by the applicant, in the context of the respondent's criminal history, and weighed as I have indicated, are not sufficiently addressed by conditions of the kind counsel for the respondent refers to. The possibility of conduct of the Bail Act sch 1 pt C cl 1(a)(iii) and (iv) kinds is not sufficiently removed by them. This is especially given the matter pointing to concerns of the respondent to have any eventual trial unburdened by evidence of the kind to which he appears to object.

Other questions, from cl 1, opening words

There were no submissions to me that there were any such questions relevant here. In particular, there was no question here of any delay in trial while the respondent was in custody, in respect of matters in the indictment, especially the arson offence, of a kind which might significantly tend in favour of the grant of bail.

Conclusions

I have now considered and answered the questions applicable in this case in Bail Act sch 1 pt C cl 1 read with cl 3 as well as the matter of any further questions.
In determining how I would exercise my discretion, I have engaged in the weighing or balancing process described in Milenkovski.
I would grant the application to revoke bail, and issue an arrest warrant for the respondent.