The State of Western Australia v Herbert [No 4]
[2016] WASC 362
•9 NOVEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HERBERT [No 4] [2016] WASC 362
CORAM: HALL J
HEARD: 2 NOVEMBER 2016
DELIVERED : 9 NOVEMBER 2016
FILE NO/S: INS 135 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
ROCKY RAY HERBERT
Defence
Catchwords:
Criminal law - Bail - Turns on own facts
Legislation:
Nil
Result:
Application for bail refused
Category: B
Representation:
Counsel:
Prosecution : Mr J C Whalley
Defence: Mr B C Tyers
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Ben Tyers Barrister & Solicitor
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
HALL J: This is an application for bail.
Rocky Ray Herbert has been joined in an indictment that also charges Kodey Ray Seaton Hebert and Tracey Christine Hepburn. To avoid any confusion I will hereafter refer to Rocky Ray Herbert as the applicant. The charges on the indictment are as follows:
(1)on 2 January 2014 at South Hedland, Kodey Ray Seaton Herbert wilfully and unlawfully destroyed a motor vehicle and that the motor vehicle was destroyed by fire;
(2)between 5 November 2014 and 1 May 2016 at South Hedland and elsewhere, Kodey Ray Seaton Herbert, Tracey Christine Hepburn and Rocky Ray Herbert attempted to pervert the course of justice upon the prosecution of Kodey Ray Seaton Herbert on a charge of criminal damage by fire by causing Francis Graham Bodey to swear an affidavit withdrawing his statement dated 6 November 2014;
(3)on or about 1 February 2016 at South Hedland, Kodey Ray Seaton Herbert and Rocky Ray Herbert were armed with an offensive weapon, namely a baseball bat, in circumstances likely to cause fear to Francis Graham Bodey;
(4)on 14 February 2016 at South Hedland, Kodey Ray Seaton Herbert made a threat to unlawfully kill Francis Graham Bodey;
(5)on the same date and at the same place as count 4, Kodey Ray Seaton Herbert was armed with an offensive weapon, namely a wooden stick, in circumstances likely to cause fear to Francis Graham Bodey;
(6)on the same date and at the same place as count 4, Kodey Ray Seaton Herbert made a threat to unlawfully injure Hayley Tamara Herbert;
(7)on 30 April 2016 at South Hedland, Rocky Ray Herbert with intent to harm Francis Graham Bodey did an act as a result of which the life, health or safety of Francis Graham Bodey was, or was likely to be, endangered.
There have been three indictments filed in this matter. The first indictment was filed on 16 February 2016 and contained only the first two counts. The State then became aware of allegations of additional criminal conduct engaged in by Kodey Herbert which resulted in a second indictment being filed on 28 April 2016 which contained counts 1 to 6. Further allegations were then raised that resulted in a new indictment being filed on 17 June 2016 which contained counts 1 to 7.
Counts 2 to 7 on the indictment arise out of a series of acts alleged to have been engaged in by various members of the Herbert family in an attempt to stop the complainant, Francis Bodey, from giving evidence against Kodey Herbert on the charge of arson that constitutes count 1.
The relationship between the accused is as follows. Tracey Hepburn and the applicant are partners. They have three children, Kodey Herbert, Hayley Herbert and Levi Herbert. Francis Bodey is in a relationship with Hayley Herbert and they have a child together.
Prosecution case
The State's case is that sometime between 6.00 pm on 1 January 2014 and 9.30 am on 2 January 2014, a Toyota Prado motor vehicle was stolen from the front yard of a house in South Hedland. Sometime in the early morning of 2 January 2014, Kodey Herbert arrived at the home of Francis Bodey in South Hedland. Kodey Herbert was driving the stolen Toyota Prado. He told Bodey that the vehicle belonged to a man who wanted it wrecked. Bodey got into the vehicle and Kodey Herbert drove it around for a while until it was driven into a storm drain. They both got out of the vehicle and obtained some fuel which they tipped inside the vehicle and ignited a fire.
At approximately 9.30 am on 2 January 2014, a number of local residents saw the burning vehicle. One of them called the police. As this witness was speaking to police, Kodey Herbert and Bodey ran from the burning vehicle towards where he and another witness were standing. The witness who made the call subsequently identified Bodey from a digiboard.
On 6 November 2014, Bodey was arrested and charged with arson. He participated in an interview and then provided a signed statement to police admitting his own participation in the arson and also implicating Kodey Herbert. He was then released on bail. Later the same day Kodey Herbert was arrested and charged with arson. He declined to participate in an interview and was remanded in custody.
In the middle of November 2014, Levi Herbert went to his mother, Tracey Hepburn's, house where he saw a number of people, including the applicant, seated around a computer. Levi Herbert could see a scanned copy of an affidavit on the screen. Someone in the room passed a copy of the affidavit to Levi Herbert who read it and passed it back. The affidavit said something to the effect that Bodey was affected by drugs.
On 11 November 2014, the applicant telephoned Kodey Herbert in prison and said that he had gone to see 'that fella' and told him to 'change it'. The State alleges that this was a reference to Bodey withdrawing or changing his original statement.
On 14 November 2014, Tracey Hepburn spoke to Kodey Herbert in a recorded prison call. Tracey Hepburn said that she was making 'him' do an affidavit to change his story. She said that she would do it that afternoon, take it to the courthouse and get it signed by a JP, send one to his lawyer and drop the other one at the police station. The State alleges that this was a reference to Bodey completing an affidavit to change his story.
On 20 November 2014, Bodey signed a typed affidavit in which he stated that he had signed the statement implicating Kodey Herbert because the police threatened him and induced him to do so. The affidavit also states that Kodey Herbert was not involved in the arson. Later that day a copy of the affidavit was delivered to the South Hedland police station.
On 21 November 2014, in a recorded prison call to Kodey Herbert, Tracey Hepburn said that she was 'doing that thing for you today'. Another woman then came on the telephone and told Kodey Herbert that she had got 'him', which the State says is a reference to Bodey, to sign it. One of the women then said that she was going down to the library in 10 minutes to fax it. In a later telephone call the same day, Kodey Herbert stated that his lawyer had 'got all that shit' and was stoked. His lawyer had told him that there would now be a bail application. The following day Kodey Herbert said in a recorded prison call that things were looking positive for his bail application. He was released on bail on the arson charge on or about 24 November 2014.
On 11 December 2014, Kodey Herbert and Tracey Hepburn were arrested and charged with attempting to pervert the course of justice. A search of Tracey Hepburn's house was conducted and two copies of Bodey's affidavit, one unsigned, were found. A computer was also seized and later found to contain a draft of the affidavit.
On 2 March 2015, the applicant was arrested and charged with attempting to pervert the course of justice. This charge also related to the creation of the allegedly false affidavit. He was released on bail.
On 7 May 2015, Bodey pleaded guilty to one count of arson. He was sentenced to 2 years' imprisonment conditionally suspended for 18 months with programme and supervision requirements. Cooperation with the police was taken into account in his sentencing. That cooperation included providing the police with a statement on 15 January 2016. In that statement he confirmed that his original police statement of 6 November 2014 which implicated Kodey Herbert in the arson was true. He stated that the affidavit of 20 November 2014 was false and was not prepared by him. He said that the reason he swore the affidavit was because Tracey Hepburn and the applicant told him that he had to withdraw his original statement. He said that the applicant said that if he did not withdraw his statement he, the applicant, was going to come through Bodey's bus, smash up the bus and smash Bodey up.
Bodey's new statement was served on the defence on or about 1 February 2016. On or about the same day it is alleged that Bodey and Hayley Herbert were approached by Kodey Herbert and the applicant. Kodey Herbert yelled 'you put a statement in on me you dog'. The applicant tried to hit Bodey with a baseball bat. Bodey escaped over the back fence. During this incident it is alleged that Hayley Herbert was hit with the baseball bat and bodily harm was caused to her. This incident is the basis of count 3 on the indictment.
On 14 February 2016, Bodey was at the house of a friend when Kodey Herbert arrived armed with a wooden stick. He confronted Bodey and said 'I am going to kill you Buster'. Buster is a nickname used by Bodey. Bodey ran away and escaped over a fence. Kodey Herbert also threatened to harm Hayley Herbert. Hayley Herbert ran off and called 000. Later that day Kodey Herbert was located by police hiding in the roof space of his house. He was arrested and charged with counts 3, 4, 5 and 6.
On 30 April 2016, Bodey received a text message inviting him to the home of an acquaintance. On arrival Bodey walked into the unit and the door was slammed shut behind him. He was then hit by a metal pole which caused him to fall backwards. It is alleged that this pole was being wielded by the applicant. Another man, Clinton Foley, was also present. Both the applicant and Clinton Foley continued to hit Bodey. Two other men are also said to have been present at this time. The assault came to an end when Bodey managed to run out of the house and jump over a balcony into the yard below. When Bodey arrived home he told his partner, Hayley Herbert. Hayley Herbert went to confront her father, the applicant. The applicant told Hayley Herbert that 'he gets what he deserves. Every dog has his day. He had his coming'. Bodey attended at the Port Hedland hospital. His injuries included lacerations above and below his left eye, blurred vision in his left eye, a dislocated right finger, abrasions under his right arm and bruising to his back.
On or about 9 June 2016, the applicant was charged by police with count 7 on the indictment. He has been in custody since that date and has made no application for bail until this time.
Other factors
On 16 June 2016, the State applied for Kodey Herbert's bail to be revoked. That application was based on concerns that if not kept in custody he may endanger the safety or welfare of Bodey, may interfere with witnesses (in particular Bodey) or otherwise obstruct the course of justice. On 20 June 2016, Simmonds J granted the application and issued an arrest warrant for Kodey Herbert. Subsequently, a trial that was listed to commence in South Hedland on 5 September 2016 for 10 days was vacated. This was because Kodey Herbert remained at large at that time.
Provisional trial dates have since been set for 4 to 15 September 2017. However, earlier dates have become available and it is likely that the trial will take place in June 2017. This is dependent on Kodey Herbert being apprehended (which has recently occurred). I should note at this point that an application by Kodey Herbert and Tracey Hepburn for a separate trial has been dismissed.
The State advise that Mr Bodey is no longer residing in Port Hedland. However, he remains in a relationship with Hayley Herbert and there is therefore a realistic risk that his location could become known to the applicant if he was released on bail.
The application is supported by an affidavit sworn by the applicant's solicitor, Mr Tyers. The affidavit states that the applicant is desirous of bail due to the significant delay in this matter, which has occurred through no fault of his own. A concern is also raised that a number of others are said to have been present at the incident on 30 April 2016 and that either charging or obtaining statements from these people may result in further delay.
The prosecution accept that delay can reach a point where it becomes a significant factor in favour of bail. If the trial did not take place until September 2017, the applicant would have been in custody approximately 14 months. However in light of the availability of earlier dates in June, the prosecution opposes bail. Whilst the difference is only a matter of three months, the State submits that there are reasonable concerns that if released on bail the applicant would pose a risk to the safety and wellbeing of Mr Bodey, that there may be further attempts to pervert the course of justice and that this may involve the commission of offences.
Relevant principles
The matters specified in sch 1 pt C cl 1 of the Bail Act 1982 (WA) are non‑exclusive mandatory relevant considerations when considering bail: Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99. The discretion is also to be exercised having regard to such other matters as are considered to be relevant.
In Milenkovski, McLure P made the following points regarding pt C cl 1:
There remains the proper construction of the general provision in cl 1 of pt C. It contains no express statutory presumption for or against bail. Rather, the grant or refusal of bail is at the discretion of the person invested with jurisdiction who is required to have regard to the questions in pars (a) ‑ (g) and to any other questions which the decision-maker considers relevant. However, the correct approach to the exercise of the discretion is sourced in and guided by the matters in pars (a) - (g). There are a number of significant points to note. First, the matters in pars (a) ‑ (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail [39] ‑ [41].
Merits of the application
Having regard to the considerations in pt C cl 1 of sch 1 of the Bail Act, I have come to the following conclusions.
If not kept in custody there is some risk that the applicant may not appear in court in accordance with his bail undertaking (cl 1(a)(i)). That conclusion is supported by the following factors. The offences with which he has been charged are serious in their nature and of their type. If convicted, the applicant is likely to be sentenced to a term of immediate imprisonment. As opposed to that, it would appear that the applicant is a long‑term resident of Port Hedland and has extended family there. Conditions could be put in place that would reduce the risk of absconding (cl 1(e)).
More significantly, there is a real risk that if not kept in custody the applicant will commit offences. Whilst I accept that the applicant is presently presumed to be innocent, and that he denies the charges, there is evidence that over several months he has sought to threaten and intimidate Mr Bodey. It is alleged that the most recent such offence occurred whilst the applicant was on bail. This did not result in him falling under cl 3A of sch 1 (because the offence with which he was then charged and for which he was on bail did not fall within the definition of a serious offence - see sch 2 of the Bail Act). Nonetheless, the fact that he is alleged to have committed a further offence of a similar type whilst on bail suggests that bail conditions are unlikely in themselves to sufficiently guard against this possibility. Even strict conditions, including reporting and a curfew, could not prevent attacks or intimidation on Mr Bodey if there was sufficient determination to do so.
There are good grounds for believing that the safety or welfare of Mr Bodey, and possibly also Hayley Herbert, would be in danger if the applicant was released on bail. The prosecution case is that the threats and intimidation in respect of Mr Bodey increased over time until he was the subject of an organised and serious assault. Whilst Mr Bodey has moved away from Port Hedland, he remains in a relationship with the applicant's daughter, Hayley Herbert. It is likely that in these circumstances the applicant would be able to determine Mr Bodey's current location. The alleged assault on 30 April 2016 was of a very serious nature. I do not believe that any conditions could sufficiently obviate the risk of a further assault of this nature occurring.
There is also a risk of interference with witnesses or obstruction of the course of justice in some other way (cl 1(a)(iv)). The alleged threats, intimidation and assault are all said to be focused on the evidence that Mr Bodey can give against Kodey Herbert in relation to the arson and other members of the family in relation to attempts to pervert the course of justice. Mr Bodey is a critical witness in this regard and the prosecution case would likely be prejudiced if interference were to recur. The fact that the evidence suggests that the conduct in relation to Mr Bodey has continued over several months and involved increasing levels of intimidation makes it unlikely that any conditions, however strict, could sufficiently obviate the risk that he would be interfered with.
Conclusion
In summary, there is some possibility that the applicant would not appear in court if granted bail. The offences are serious and the prosecution case appears to be strong. The prosecution alleges a course of conduct over several months which, if proved, is likely to result in a term of imprisonment to be immediately served. There is a significant possibility that, if released on bail, the applicant would commit an offence, endanger the safety or welfare of Mr Bodey, or interfere with witnesses or otherwise obstruct the course of justice. There are no conditions that could be imposed that would reduce these latter risks to an acceptable level. There will be a delay to trial, but bearing in mind the availability of dates in June 2017, I am not satisfied that that delay outweighs the other considerations I have referred to.
For those reasons the application for bail is refused.
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