Ugle v The State of Western Australia - [2015] WASC 7

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: UGLE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 7

CORAM: EDELMAN J

HEARD: 6 JANUARY 2015

DELIVERED : 7 JANUARY 2015

FILE NO/S: MBA 47 of 2014

BETWEEN: TRAVIS SCOTT UGLE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail - Alleged joint criminal enterprise - Strength of prosecution case - Whether offence is continuing or whether discrete offences - Whether imposition of conditions can sufficiently remove adverse possibilities in cl 1, Pt C of sch 1 of the Bail Act 1982 (WA) - Whether home detention condition can be imposed - Whether discretion should be exercised to impose home detention condition

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA), s 304(2), s 397(2)

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: Mr S F Rafferty
Respondent: Mr B F Stanwix

Solicitors:

Applicant: Seamus Rafferty
Respondent: Director of Public Prosecutions (WA)

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

Austin v The Queen [1989] HCA 26; (1989) 166 CLR 669
Berezovsky v Abramovich [2011] EWCA Civ 153
BG v Western Australia [2005] WASCA 45
Delaney v The Queen [2013] NSWCCA 150
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
O (A Child) v R (Unreported, WASCA, Library No 970219, 9 April 1997)
R v Beck [1990] 1 Qd R 30
Santos v The State of Western Australia [No 2] [2013] WASCA 39
EDELMAN J:

Introduction

Mr Ugle is charged with indictable offences of orally demanding property with threats and without reasonable cause,[1] and committing an unlawful act with intent to harm.[2] He is also charged with firearms offences including aggravated possession of a firearm.[3] I will refer generally to the indictable offences as the extortion offence and the firebombing offence. They concern matters that occurred at the Galaxy Lounge in Northbridge. Mr Ugle is a member of the Commanchero Outlaw Motorcycle Gang (described in this application as COMCG). He is alleged to have been one of ten members and associates involved with the extortion of the owner of the Galaxy Lounge and the firebombing of the Galaxy Lounge.
[1] Criminal Code (WA), s 397(2).
[2] Criminal Code (WA), s 304(2).
[3] Firearms Act 1973 (WA), s 19(1ac), s 23(9)(a).
Mr Ugle applied for bail in the Magistrates Court on two occasions in 2014. Both applications were refused, the latter on 15 December 2014. The indictable charges concerning Mr Ugle have been committed for trial in the District Court. The next hearing is on 30 January 2015. Mr Ugle says that he will plead not guilty and the matter will then proceed to trial which is not likely to occur until late in the second half of this year.
Mr Ugle has now applied for bail in this Court. My discretion is exercised afresh based on the information before this Court. For the reasons below, bail is refused.

The relevant legal principles concerning bail

Section 14 of the Bail Act 1982 (WA) provides for the discretionary power for a judge to grant bail. Part C of sch 1 to the Bail Act is concerned with the manner in which the power to grant bail is to be exercised. In cl 1 of that schedule, there are a number of mandatory questions for consideration.
In Milenkovski v The State of Western Australia,[4] the Court of Appeal set out the principles concerning the consideration of these questions. In particular, as they apply in this case, those principles include the following: that there is no statutory 'presumption' for or against the grant of bail; bail will be granted if there is no material before the Court providing a proper foundation for refusing bail;[5] that there is no requirement that the accused establish exceptional circumstances in order to obtain bail;[6] and that as a practical matter, it will often be left to the prosecution to provide the material identifying the matters from sch 1 which have not been satisfied to provide a proper foundation for refusing bail.[7]
[4] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
[5] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 110 [41].
[6] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 110 [44].
[7] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 110 [41].

The information on this application concerning the offences

Section 22 of the Bail Act provides that in considering a case for bail, a judicial officer may take into account such information as he thinks fit whether or not it would normally be admissible in a court of law. The information on this application is as follows.
The Galaxy Lounge is a karaoke bar in Northbridge. There are ten men who are alleged by the prosecution to have been involved in the extortion of money from the Galaxy Lounge. Seven of the ten described by the prosecution, and their asserted positions in the COMCG, are:
(i) Mr Phan (an associate of the COMCG);
(ii)Mr Parr (State Commander of the COMCG);
(iii)Mr Kilinc (an associate of the COMCG);
(iv)Mr Cross (a nominee of the COMCG);
(v)Mr Hopes (a senior member of the COMCG with the title of treasurer or secretary);
(vi)Mr Grantham (State Sergeant‑at‑Arms of the COMCG); and
(vii)Mr Xanthoudakis (senior member of the COMCG).
The eighth is Mr Ugle who the prosecution say is the Sergeant‑at‑Arms of the North Side Chapter of the COMCG.
Mr Tan, a police officer attached to the Gang Crime Squad, has sworn an affidavit asserting that the structure of the COMCG is as follows:[8]
(a)[The COMCG] has a structure whereby the 'State Commander' is the head of the organisation, and 'Senior Members' are designated the role of 'Office Bearers', who are responsible in various capacities for the general running of criminal activities undertaken by the organisation at the direction of the State Commander.
(b)There are 'nominees' who are on a period of probation, prior to their induction as members to the organisation, who perform tasks as directed by the State Commander or Senior Members.
(c)There are 'associates' who are not considered members or nominees but nonetheless work with or perform tasks for the organisation at the direction of the State Commander, Senior Members and nominees of the organisation in pursuit of common criminal interests.
(d)Associates have the prospect of being 'nominated' into the organisation as nominees based on the level of loyalty they demonstrate to the organisation and their willingness to execute tasks set by the State Commander or members of the organisation.
(e)Any criminal activities undertaken by members, nominees or associates have to be sanctioned by the State Commander.
[8] Affidavit of Mr Tan, 30 May 2014, [5].
It is common ground that Mr Ugle is a member of the COMCG.[9] It was also common ground on this application that a vest found at Mr Ugle's home on 23 May 2014 designated him as Sergeant‑at‑Arms of the COMCG. But none of the other information in Mr Tan's affidavit is common ground. In terms of a case at trial, this information in its current form, without any supporting basis for Mr Tan's assertions, is probably inadmissible.
[9] Submissions for Mr Ugle, 31 December 2014, [8].
In addition to Mr Tan, the prosecution case includes proposed evidence from witnesses including Ms Lay (a co‑owner of the Galaxy Lounge), Ms Chan (a full time manager of the Galaxy Lounge), Covert Operative 292, Mr Innerd (a police officer attached to the Gang Crime Squad), Mr Lee (a police constable attached to the Gang Crime Squad), and Operative 385 (a police officer attached to the Surveillance Unit). There are also transcripts and DVDs of covert recordings.
The prosecution brief contains the following.
On 3 April 2013, Mr Phan (known as Baby Hung) telephoned Ms Lay. He told her that he needed to meet with her and her sister to talk about something very important. He said that he would SMS Ms Lay with the place to meet for lunch the next day.
Ms Lay's sister, Ms Chan, was the manager of the Galaxy Lounge. Ms Chan did not attend the meeting.
At the lunch meeting the next day, Mr Phan met with Ms Lay. Mr Phan was accompanied by two other men, who, on the information before me, appear to be Messrs Parr and Kilinc. They were introduced to Ms Lay as Ron[10] and Sal.[11] Mr Parr offered Ms Lay a service to make Ms Lay's business much better. Mr Parr said that the cost of the service was $10,000 per week. He said that everyone in Northbridge will be paying because they control Northbridge. Ms Lay said that she could not make the decision because she was not the boss. She said that she needed to speak to her boss before agreeing to anything. In the conversation, Mr Phan later said that they could give Ms Lay a discount so that she only had to pay $8,000. Mr Phan said that $8,000 a week is cheap because other people are paying more.
[10] See Witness Statement of Ms Lay, 11 March 2014, [34]; Affidavit of Mr Tan, 30 May 2014, [15].
[11] See Witness Statement of Ms Lay, 11 March 2014, [36] - [37]; Affidavit of Mr Tan, 30 May 2014, [15].
In the weeks following the lunch meeting, Mr Phan telephoned Ms Lay several times asking whether Ms Lay had spoken to her boss or asking to meet up. Ms Lay gave excuses and did not meet up with him.
On 30 April 2013, Mr Phan sent Ms Lay as SMS. He asked to catch up. Mr Phan sent another SMS on 7 May 2013 again asking to catch up. Ms Lay did not respond. Mr Phan sent another SMS on 13 May 2013 and telephoned later that day. He again asked Ms Lay whether she had spoken to her boss. She said that she had not done so because she could not find him.
On 5 July 2013, Ms Lay went downstairs in the Galaxy Lounge and saw a group of people wearing black T-shirts and vests with a logo on the left side of the chest. There were between 20 and 30 of those people in various rooms of the Galaxy Lounge. Mr Parr told Ms Lay that she needed to start paying for the services because the opening of the Galaxy Lounge had meant that another business was losing customers and could not afford to pay.
On 7 or 8 July 2013, Mr Phan called Ms Lay and asked Ms Lay if she had made a decision. Ms Lay said that she could not locate her boss but would let Mr Phan know as soon as possible. On 9 July 2013, Mr Phan sent an SMS message to Ms Lay asking to catch up. Ms Lay responded saying that she was unable to pay the money. She did not hear again from Mr Phan.
On 1 March 2014, Mr Kilinc went to the Galaxy Lounge and spoke with Ms Lay. Mr Kilinc was there with four other men. At around 2.00 am, Mr Kilinc and the men met with Ms Lay. Mr Kilinc reiterated a demand for $10,000 a week. He said that Ms Lay had until 6 March 2014.
On 9 March 2014 Ms Lay was at work at the Galaxy Lounge. The Galaxy Lounge was firebombed.
On 20 March 2014, Ms Lay contacted Mr Phan. She told him that her boss was going to be in Perth sometime in the next couple of days. She said that only her boss could make a decision as to the payment of money.
On 24 March 2014, Ms Lay contacted Mr Phan on his mobile phone. She said that her boss was coming tomorrow and suggested that they meet at 1.00 pm.
On 25 March 2014, covert surveillance undertaken on Messrs Phan and Parr showed them meeting with Messrs Grantham, Ugle, Cross, Fitzgerald and others outside a restaurant on William St, Northbridge at 1.32 pm. Messrs Ugle, Grantham and Fitzgerald walked away after two minutes.[12] There is no evidence about the content of any conversation they had.
[12] Affidavit of Mr Tan, 30 May 2014, [76]; Witness statement Operative 385, [8].
On 25 March 2014, at 2.52 pm, Mr Phan texted Ms Lay with the location of the Lido Restaurant.
On 26 March 2014 at around 1.00 pm, Ms Lay and Covert Operative 292 met with Mr Kilinc and Mr Cross at the Lido Restaurant. The Covert Operative was introduced as 'Danny'. He was described as Ms Lay's boss. During that meeting more demands were made for the payment of money from the Galaxy Lounge. The discussions at that meeting were recorded covertly and transcribed.
On 27 March 2014, Covert Operative 292 met with Mr Kilinc at Lido Restaurant. The meeting at the restaurant was again covertly recorded. Shortly afterwards, Covert Operative 292 gave Mr Kilinc $10,000, at the direction of Mr Cross. The conversation concerning the exchange of money was also recorded.
On 16 April 2014, Covert Operative 292 met with Messrs Phan, Kilinc and Hopes at the Lido Restaurant. Again, the meeting was covertly recorded. Messrs Phan and Hopes made threats to Covert Operative 292.
On 29 April 2014, Covert Operative 292 met with Mr Kilinc at the Red Teapot Restaurant. He gave another $10,000 cash to Mr Kilinc.
On 2 May 2014, Mr Tan was conducting covert surveillance of Mr Phan. CCTV footage at around 8.40 pm identified Messrs Hopes, Ugle and Xanthoudakis and about 10 others who the prosecution say are members of the COMCG. The group was walking down Francis Street in the direction of the Galaxy Lounge. They stopped. Ms Lay said that 20 to 30 people she described as 'bikies' were gathered outside a nearby karaoke lounge. Messrs Hopes, Ugle and Xanthoudakis broke from the group and cross the road and entered the Galaxy Lounge. CCTV cameras captured them entering the premises. CCTV cameras also captured Mr Hopes speaking with Ms Chan while Messrs Ugle and Xanthoudakis stood next to him.
Mr Hopes spoke to Ms Chan. Mr Hopes whispered to Ms Chan that he and the two other men with him were 'from the Commancheros and they came as part of a friendly visit to check up on the place'. Messrs Hope, Ugle and Xanthoudakis left, and Messrs Hopes and Ugle later returned for another conversation with Ms Chan about the person who owns the nearby karaoke bar.
On 15 May 2014, Messrs Parr, Kilinc, Phan, Cross and Hopes were all arrested and charged. Each of Messrs Phan, Parr, Hopes, Cross, and Kilinc was refused bail.[13] Mr Parr was later granted bail with a home detention condition.[14] It was not suggested by counsel for Mr Ugle that any parity considerations arise from the grant of bail to Mr Parr. In particular, Mr Parr has not been charged with any firearm offences and he has had no criminal convictions since 2007 (which was a disorderly conduct conviction with a $500 fine).[15]
[13] Affidavit of Mr Tan, 30 May 2014, [273].
[14] ts 7 (23 June 2014).
[15] ts 35 (23 June 2014).
On 15 May 2014, Mr Grantham subsequently contacted Mr Ugle. At 4.12 pm on that day, Mr Ugle told an associate that he had just spoken with the 'old man' and he is going to the 'KB' to deal with 'those other cunts'. That telephone conversation was recorded. It was listened to by a police officer attached to the Australian Federal Police National Anti‑Gang Squad. The police officer says that Mr Grantham was the COMCG State Sergeant‑at‑Arms at that time. The police officer expressed the belief that Mr Ugle's mention of the KB is a reference to the Karaoke Bar[16] and the reference to 'these other cunts' is a reference to the witnesses.
[16] cf ts 22 ‑ 23 (23 June 2014), where Mr Ugle's counsel contests that 'KB' is a reference to a relative of Mr Ugle.
After receiving the telephone call, police tracking of Mr Ugle's mobile showed that Mr Ugle departed from the location where he had received the call for Northbridge. Mr Ugle was in Northbridge within two hours of receiving the telephone call. A significant number of police were mobilised to Northbridge. Mr Ugle was not seen by the police in Northbridge.[17] He did not go to the Galaxy Lounge and his counsel observed that the COMCG headquarters are in Northbridge.
[17] Affidavit of Mr Tan, 30 May 2014, [278] - [282].
Over the next eight days, there is no information that Mr Ugle was in Northbridge, nor that he contacted any relevant person, nor that he committed any offence.
On 23 May 2014, Mr Ugle was arrested and charged and Mr Ugle's home was searched. Police found, and seized, a vest bearing the COMCG insignia and designating Mr Ugle as a 'Sergeant‑at‑Arms' of the COMCG.[18] A gas powered firearm was also found.[19] Police also found an encrypted BlackBerry mobile device.[20] Encrypted BlackBerry mobile devices were also found in searches of Mr Grantham's house,[21] Mr Hopes' house,[22] Mr Parr's house,[23] Mr Xanthoudakis' house,[24] and Mr Phan's house.[25]
[18] Affidavit of Mr Tan, 30 May 2014, [290].
[19] Affidavit of Mr Tan, 30 May 2014, [290].
[20] Affidavit of Mr Tan, 30 May 2014, [292].
[21] Affidavit of Mr Tan, 30 May 2014, [288].
[22] Affidavit of Mr Tan, 30 May 2014, [264].
[23] Affidavit of Mr Tan, 30 May 2014, [260].
[24] Affidavit of Mr Tan, 30 May 2014, [295].
[25] Affidavit of Mr Tan, 30 May 2014, [254].

Consideration of the factors in pt C of sch 1 to the Bail Act

Although I have considered each of the matters in pt C, sch 1, cl 1 to the Bail Act, the prosecution refers, in particular, to two matters.
First, the prosecution refers to cl 1(a)(ii), and cl 1(a)(iii) of pt C of sch 1 to the Bail Act. These are concerned with the possibility that if Mr Ugle is not kept in custody he might (cl 1(a)(ii)) commit an offence, or (cl 1(a)(iii)) endanger the safety, welfare, or property of any person.
In considering these questions, I am required to have regard to matters including the nature and seriousness of the offences, and the probable method of dealing with Mr Ugle, if he is convicted; the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of Mr Ugle; the history of any previous grants of bail to him; and the strength of the evidence against him.
The offences with which Mr Ugle is charged are serious. Counsel for Mr Ugle properly concedes that Mr Ugle will be likely to be imprisoned if he is convicted.
Mr Ugle also has a lengthy criminal record. His convictions, and the date of conviction, include the following: (14 June 2010) 6 months' imprisonment for assault occasioning bodily harm; (25 May 2010) 18 months' imprisonment for unlawful wounding; (30 April 2010) 4 months' imprisonment as head sentence for three offences of aggravated burglary; (12 April 2010) a head sentence of 3 years and 6 months' imprisonment for aggravated armed assault with intent to rob and causing grievous bodily harm. On 6 January 2009, Mr Ugle committed an offence of breaching a protective bail condition. He was fined $200.
The alleged offences which are the subject of this bail application are said to have been committed within two months of Mr Ugle's latest release from imprisonment on 1 February 2013.
As to Mr Ugle's associations, these include association with other members of the COMCG. As I have mentioned, a COMCG vest was found at Mr Ugle's house which is said by the prosecution, and not disputed by Mr Ugle on this application, to designate him as the Sergeant‑at‑Arms of the COMCG (the prosecution said that it was of the COMCG's North Side Chapter, a position said to be subordinate only to the State Commander and the State Sergeant‑at‑Arms).
Mr Ugle's calls in prison were monitored. In September and October 2014, Mr Ugle attempted on many occasions to contact a person who Mr Ugle's counsel accepted was a senior member of COMCG, Mr Fitzgerald, and another man who the prosecution asserts to be the Sergeant‑at‑Arms, Mr Browne. Only three calls were successfully connected to Mr Browne and only 10 were successfully connected to Mr Fitzgerald. Mr Fitzgerald has visited Mr Ugle in prison on a number of occasions.
Affidavit evidence for the prosecution supports the assertion that Mr Ugle has retained his position in the COMCG. In the first successfully connected call to Mr Browne, on 1 September 2014, Mr Ugle pledged his loyalty to the COMCG and told Mr Browne that he was committed to the COMCG 'all the way'. In conversations with Mr Fitzgerald and Mr Browne, Mr Ugle also openly discusses the business and politics of the COMCG and events and incidents within the prison system, and Mr Ugle is apparently involved in the enforcement of club rules and protocols amongst incarcerated COMCG members, nominees and associates.

The mere association of one individual with a group is not a basis for drawing any inferences against that individual. This is particularly the case where there is no information that any member of the group has been convicted of any offences. However, in this case two matters qualify what would otherwise be irrelevant evidence of association with other members of a group.
The first matter is that affidavit evidence on this application also asserts that WA Police investigators for the Gang Crime Squad have received credible evidence about offences with which the COMCG is involved including that:[26]
(i)Mr Ugle has been involved in distribution of a large amount of methylamphetamine and also large amounts of drugs for the COMCG; and
(ii)Mr Ugle and other members of the COMCG were involved in a violent altercation with another group in Geraldton.
[26] Affidavit of Mr Tan, 22 October 2014, [22], [24], [26].
Although this affidavit evidence asserts that it is based on credible evidence, the affidavit evidence is in such general terms, without any specific detail, that it could not be answered by Mr Ugle. The evidence cannot be disregarded but it does not have substantial weight particularly in circumstances in which no charges have been brought for these offences.
The second matter is that the alleged offences in this case are said to have been committed by numerous persons associated with COMCG. At least eight such persons have been charged. All the persons charged are alleged to be involved, in different ways and to different degrees, with the COMCG and the information before the court provides support for this allegation. As I have explained, the case against some of them will rely upon covert recordings which sometimes are quite explicit. In some instances information before the court against some of the persons associated with the COMCG discloses possible offences which are not limited to the firebombing and extortion offences.
The evidence of the involvement in criminal activity by persons associated with the COMCG includes information before this court that Mr Phan and Mr Kilinc, associates of the COMCG, antagonised patrons of the Galaxy Lounge on 11 April 2014, and that Mr Kilinc committed an assault.[27] It also includes information from a transcription of a covert recording between Operative 385 and a person identified as Ron where Ron alludes to others who are paying protection money and says that 'we run the city' and that 'if it's not going to be respected, after we've been respected for this long, it's not a problem for us to shut you down man, really isn't'. On one reading of the information before me,[28] and as submitted by counsel for the prosecution during the hearing of this application, Ron is said to be Mr Cross (but compare [15] above).
[27] Affidavit of Mr Tan, 30 May 2014, [131] - [132].
[28] See Witness Statement of Covert Operative 292, 2 May 2014; Affidavit of Mr Tan, 30 May 2014 [87] - [88]; Transcript in confidence of surveillance recording of 26 March 2014.
Counsel for Mr Ugle submitted that the evidence against him in relation to his alleged offences is 'extremely weak'. It is neither necessary nor appropriate to attempt to reach a final opinion with precision about the strength of the case against Mr Ugle. In assessing the strength of the prosecution case for the purposes of this bail application it suffices to say that I would not characterise the whole of the case against Mr Ugle as extremely weak although there are parts of the prosecution case which, on the information before me and based on an assessment of the information which is admissible evidence, are weak.
In written submissions the prosecution asserted that Mr Ugle could be found guilty (from 'knowledge of' or 'involvement in' the offences) if the jury accepts that:[29]
(i)Mr Ugle is a senior member of the COMCG;
(ii)the acts which are the subject of the alleged extortion offence were done expressly in the name of the COMCG;
(iii)Mr Ugle was present during the 25 March 2014 meeting for all but the final five minutes; and
(iv)the acts done at the meetings on 26 and 27 March 2014 were done by a nominee (Cross) attached to the North Side Chapter, a division over which Mr Ugle exercises authority.
[29] Prosecution submissions in Magistrates Court, 11 November 2014, [9].
One difficulty with this submission is that no detailed submission was made concerning how 'knowledge of' the offences suffices for guilt of the offences. Nor was any submission made concerning the nature of Mr Ugle's alleged 'involvement in' or the extent of his alleged knowledge of the offences which are said to give rise to his guilt. No submission was made concerning whether the prosecution relied upon s 7 or s 8 of the Criminal Code (WA) and there was no particularisation of any such reliance. Nor was there any suggestion that the prosecution relied on the conspiracy provision in s 558 of the Criminal Code.
In oral submissions counsel for the prosecution submitted that the pending indictment against Mr Ugle was still to be precisely formulated. He said that it might be formulated as based on a common law joint criminal enterprise,[30] but that it might also rely on a separate count in relation to the events of 2 May 2014, considered in the entire context of all of the circumstances.
[30] Santos v The State of Western Australia [No 2] [2013] WASCA 39 [62] (McLure P, Buss & Mazza JJA agreeing).
On the information before me, an allegation of joint criminal enterprise based on the four matters outlined by the prosecution suffers from some evidentiary difficulties.
As to (i) and (iv), the information before me about Mr Ugle's position appears to be limited to the insignia on the vest found at his home on 23 May 2014. There was no explanation of that insignia or even a picture of that vest. However, it was not disputed on this application that the vest designates Mr Ugle as Sergeant‑at‑Arms. There was also discussion at a previous bail hearing which involved a statement by Mr Ugle that he intended now to resign his position as Sergeant‑at‑Arms.[31] But although that transcript was provided to the court, no submission was made that this would be relied upon at trial. I do not place any weight on it.
[31] ts 87 (15 December 2014).
There was also no information before me amounting to admissible evidence at trial that Mr Ugle exercises authority over the North Side Chapter and certainly no information sufficient to conclude that the prosecution had a good case to draw an inference that such authority extended to a joint criminal enterprise in relation to the alleged extortion offence or the firebombing offence.
As to (iii), on the information before me Mr Ugle was present only for two minutes of the conversation. There is no information about the content of that conversation. The conversation also went on for another five minutes. Mr Ugle's presence for two minutes of a conversation which continued between persons who were involved directly with the events that occurred more than 24 hours later is a weak basis for an inference of Mr Ugle's involvement in those later events.
The prosecution case against Mr Ugle is clearer in relation to a foreshadowed potential specific and separate count of the indictment concerning demanding property with oral threats. This foreshadowed count was mentioned in oral submissions and it seems that it was the basis of a written submission that the offence was 'still being committed' on 2 May 2014.
The prosecution's reliance upon the events of 2 May 2014 concerns the final day of the period of the alleged offending in the prosecution notice. Although this range of dates might not be the range alleged in the indictment it seems clear that the indictment will allege either a range or a single date with background context beforehand which includes 2 May 2014.
The occasion on 2 May 2014 was when Mr Hopes said to Ms Chan that he and the other two (including Mr Ugle) were 'from the Commancheros and they came as part of a friendly visit to check up on the place'. Counsel for Mr Ugle properly accepted that an objective construction of the words spoken by Mr Hopes, and whether they amounted to a threat, would depend on information not before the court including the CCTV footage of the demeanour of the three men and the manner in which the words were spoken. These matters, and any inference about Mr Ugle's position in the COMCG at the time (based on the vest found at his home 21 days' later), would also affect whether an inference could be drawn that Mr Ugle knew of the nature of the words being spoken.
This is a circumstance where much depends on context. As Longmore LJ said in Berezovsky v Abramovich[32] the words '[i]f you want to stay healthy, get out of London' would 'probably be construed as a threat if uttered by a Mafia mobster whereas it could hardly be so construed if said to a patient by his doctor'.
[32] Berezovsky v Abramovich [2011] EWCA Civ 153 [81].
On the information before the court it cannot be said that the prosecution case in relation to the alleged extortion offence is weak in relation to whether the words spoken by Mr Hopes constituted a threat.
Against the background of the matters discussed above, Mr Ugle's presence with Mr Hopes on that occasion, standing next to Mr Hopes and Mr Xanthoudakis (also recorded on CCTV but which footage was not provided to the Court), also cannot be characterised as a weak case for the commission of the extortion offence such as by aiding under s 7 of the Criminal Code. A person can 'aid' the commission of an offence by providing positive encouragement for the commission of the offence. A person's voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding.[33] An example might be if the person's presence is intended to intimidate or to assist in achieving the unlawful result. There is some strength in the prosecution case in this respect.
[33] BG v Western Australia [2005] WASCA 45 [62] (Malcolm CJ, EM Heenan & Simmonds JJ agreeing) citing O (A Child) v R (Unreported, WASCA, Library No 970219, 9 April 1997) 7 (Malcolm CJ, Kennedy & Franklyn JJ agreeing); R v Beck [1990] 1 Qd R 30, 37 (Macrossan CJ, McPherson J agreeing).
The prosecution also relies upon Mr Ugle's remarks in the recorded telephone call on 15 May 2014 which are said to support his knowledge of the persons who needed to be 'dealt with' and an understanding of why the arrests had taken place. Although this conversation occurred two weeks subsequent to the events of 2 May 2014, the prosecution submitted that an inference from it can be drawn that these matters were known to Mr Ugle on 2 May 2014. A competing inference is that the matters (if they demonstrate this knowledge) could be based on newly acquired information.
Counsel for Mr Ugle submitted that Mr Ugle could not have committed any offence on 2 May 2014. His submission was essentially that the prosecution notice against Mr Ugle alleged a continuing offence on dates between 4 April 2013 and 2 May 2014. He said that the information concerning Mr Ugle's involvement prior to 2 May 2014 was almost non-existent and the offence had been completed before 2 May 2014. He relied upon comments made in a joint judgment of the High Court of Australia in Austin v The Queen,[34] where the Court observed:
There are, of course, crimes in which the actus reus is incomplete until certain consequences occur as a result of the offender's conduct. Murder by shooting or poisoning, where death is the consequence of the offender's act, are examples. But where the definition of an offence can be construed either to include or to omit the consequences of the offender's act as an element of the offence, the immediacy of the consequences and their subjection to supervening events or actions are material to the construction to be placed upon the definition. Thus it is appropriate to regard the offence of demanding money with menaces or threats as complete when the demand has been made in circumstances apt to achieve its communication to the person to whom it is directed and with the necessary intent. It is inappropriate to regard actual communication as a necessary part of the offence.
[34] Austin v The Queen [1989] HCA 26; (1989) 166 CLR 669, 675.
This passage was considered by the New South Wales Court of Criminal Appeal in Delaney v The Queen.[35]That was a case also involving a demand of money by threats. The Chief Justice at Common Law (with whom Harrison and Beech‑Jones JJ agreed) considered an appeal ground that alleged that the verdict in the judge-alone trial was unreasonable and could not be supported by the evidence. The submission in support of this ground was that on 'there was no basis in law for the proposition that on every subsequent occasion that the victim paid money to the appellant ... a further offence was committed'.[36] The appellant relied on the same quotation from Austin. He submitted that for a new offence to be committed there was a requirement for a further demand.
[35] Delaney v The Queen [2013] NSWCCA 150.
[36] Delaney v The Queen [2013] NSWCCA 150 [17].
The New South Wales Court of Criminal Appeal rejected the appellant's submission. The court held that a specific, and new, threat does not need to be articulated.[37] The court distinguished the quotation from Austin on the basis that the issue in Austinwas whether, for the offence to be made out, there was a need for there to be an actual payment.
[37] Delaney v The Queen [2013] NSWCCA 150 [20].
There is a lack of clarity in the form of the prosecution case that will not be resolved until the indictment is presented. But, on the information at this application by the prosecutor, it appears that the indictment will allege either a discrete count of the alleged extortion offence on 2 May 2014 (which is not inconsistent with the range of dates for the alleged extortion offence in the prosecution notice) or it will allege a joint criminal enterprise over a range of dates, potentially culminating in alleged offences on a date or dates, perhaps including 2 May 2014. Neither approach is inconsistent with the decision in Austin.
Secondly, the prosecution refers to cl 1(a)(iv) of pt C of sch 1 to the Bail Act which is concerned with the possibility that Mr Ugle will interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
The information concerning Mr Ugle's 15 May 2014 telephone conversation with Mr Grantham supports this possibility even though when Mr Ugle drove to Northbridge after the telephone call he did not perform any acts that his comments might have suggested he intended to perform.
I have considered all of the factors in sch 1, pt C, cl 1 to the Bail Act. I have also taken into account that it is likely that Mr Ugle will not face trial before late 2015 and that he has already been on remand since 23 May 2014.
I consider that there is a likelihood that Mr Ugle will commit an offence, a likelihood that he will endanger the safety, welfare, or property of any person, and a likelihood that he will interfere with witnesses or otherwise obstruct the course of justice. Even taking into account the weaknesses in the prosecution case that I have mentioned as well as the serious concern that the refusal of bail will mean that Mr Ugle will be in prison from 23 May 2014 until later in 2015 when the trial is likely to be held, I consider that bail must be refused unless stringent conditions could sufficiently remove the possibilities to which I have referred.

The imposition of conditions to remove sufficiently the adverse possibilities

I turn to whether there is any condition which could reasonably be imposed (under pt D of sch 1 of the Bail Act) which would sufficiently remove the possibility referred to above.
Mr Ugle has proposed numerous conditions including $20,000 personal undertaking and surety, residential conditions, reporting conditions, prohibition on contacting State witnesses, surrender of his passport, and not to approach within 100 m of any domestic or international departure point. He is prepared to abide by any other condition that I consider to be appropriate.
Although these are strong conditions, I do not consider that any condition which could reasonably be imposed under pt D of sch 1 of the Bail Act would sufficiently remove the possibilities to which I referred above at [73] for bail to be granted.

Home detention

Clause 3 of pt D of sch 1 to the Bail Act has the effect in this case that home detention bail should not be granted unless I am satisfied that:
(i)Mr Ugle is suitable to be subject to a home detention condition;
(ii)the place where Mr Ugle would remain while subject to the home detention condition is a suitable place; and
(iii)unless a home detention condition is imposed, Mr Ugle will not be released on bail.
For reasons explained above, I am satisfied that unless a home detention condition is imposed, Mr Ugle will not be released on bail.
As to the suitability of the place of home detention, in June 2014, prior to a previous bail hearing, Mr Ugle had said that he did not want to reside with his partner. He provided his mother's address but this place was found to be unsuitable in the report. He now says that he would like to reside with his partner and her 12 month old son. She has visited him on remand on a weekly basis and is supportive of him. The author of the home detention report has expressed concern with the extent of Mr Ugle's partner's knowledge of his prior convictions. The author has also questioned the confidence that Mr Ugle's partner has in setting boundaries in relation to reporting any misconduct concerning bail conditions. I take these expressed concerns into account but overall I am satisfied that his partner's address would be a suitable place for home detention.
However, in the circumstances I have discussed above, I do not consider that Mr Ugle is suitable for a home detention order. In particular, I reiterate the nature of the alleged offence and the evidence against Mr Ugle, Mr Ugle's prior convictions, Mr Ugle's position as a Sergeant‑at‑Arms of the COMCG and the information concerning Mr Ugle's comments in his 15 May 2014 telephone call.
In any event, even if Mr Ugle were suitable for home detention I would not exercise my discretion under cl 3(1) of pt D ('may ... impose a home detention condition') to grant bail subject to home detention. Even with stringent conditions put upon any home detention, such as a condition that Mr Ugle not associate with any member of the COMCG, I do not consider that the possibilities I described at [73] could be sufficiently reduced to make a grant of home detention bail appropriate. As counsel for the prosecution submitted, Mr Ugle, even if on home detention, would not be under 24 hour surveillance.
In reaching this final conclusion I have not placed any weight on Mr Ugle's previous breach of a bail condition which led to a $200 fine. The prosecution placed no evidence before me of the nature of that breach despite the issue being raised on a number of previous occasions by the learned Magistrate.

Conclusion

Bail must be refused.