WILLIAMS v Hadley - [2025] WASC 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WILLIAMS -v- HADLEY [2025] WASC 1
CORAM:   COBBY J
HEARD:   2 JANUARY 2025
DELIVERED          :   6 JANUARY 2025
FILE NO/S:   MBA 60 of 2024
BETWEEN:   SAM WILLIAMS
Applicant
AND
GLYNN HADLEY
Respondent

Catchwords:

Application to vary bail conditions - Accused 'not to associate with any nominees, associates or members of any outlaw motorcycle gangs' - Alleged condition unnecessary or too onerous - Alleged condition not in the public interest due to adverse consequences for accused

Legislation:

Bail Act 1982 (WA), s 17(2), cl 2(2) of pt D to sch 1
Criminal Code (WA), s 563A(1)(b)

Result:

Application granted in part
Conditions varied

Category: B

Representation:

Counsel:

Applicant	:	M Bevk
Respondent	:	S D Packham

Solicitors:

Applicant	:	Scerri Legal
Respondent	:	Director of Public Prosecutions (WA)

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

McKinnon v Secretary; Department of Treasury [2006] HCA 45
YSN v The State of Western Australia [2017] WASCA 155

COBBY J:

By an application filed 20 December 2024, the applicant applies for the variation of his bail by deleting two bail conditions imposed by police pursuant to s 14(1)(b) of the Bail Act 1982 (WA).
The applicant was charged with one count of having received, possessed, concealed, disposed of or dealt with money or other property that is the proceeds of an offence, contrary to s 563A(1)(b) of the Criminal Code (WA), on 5 December 2024. The date of the alleged offence is 28 March 2024.
The conditions which the applicant seeks be removed are that he 'not to associate with any nominees, associates or members of any outlaw motorcycle gangs' and that he is not 'not to communicate or attempt to communicate with Lewis DOLIN'.
Mr Dolin is a co‑accused, and there is evidence that he is a member of the Gypsy Jokers motorcycle club.
The applicant contends that neither condition is justified because, he submits, when considering conditions relating to the risk of offending while on bail, the risk or possibility must be actual or real, as distinct from theoretical or hypothetical. He submits that his antecedents should not cause the court any concern of any real risk or apprehension of his further offending, such that the conditions are unnecessary.
In particular, he submits that his behaviour since the culmination of the police investigation in March 2024 does not make it apparent that there is any criminal behaviour which would justify the non‑association condition.
Section 17 of the Act provides:
(1)A judicial officer or authorised officer may impose conditions on a grant of bail only to the extent that he is authorised to do so by clause 2(3)(c) of Part C and Part D of Schedule 1.
(2)Conditions imposed on a grant of bail shall not be any more onerous on the accused than the judicial officer or authorised officer considers is required in the public interest having regard to the nature of the offence for which the accused is in custody and the circumstances of the accused.
The applicant submits that it is not enough to point to one facet of the public interest when making a determination of whether to impose a condition as to bail, with any determination regarding public interest requiring a multi‑faceted approach where all arguments in relation to the public interest must be duly considered, citing McKinnon v Secretary; Department of Treasury.[1]
[1] McKinnon v Secretary; Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [16].
In particular, the applicant submits that the words 'shall not be more onerous' in s 17(2) of the Act requires that each condition must be framed only to the extent that it is 'necessitous'.
The applicant filed an affidavit in support of his application. He deposes that he carries on business as a sole trader under the business names 'Espial Panel and Paint', 'Espial Fitness' and 'Lil Tow'. His main business is the panel and paint business, which mainly carries out the customised airbrushing of motorcycles. According to the applicant, that business is a niche one, with the applicant performing the majority of his work for outlaw motorcycle gang (OMCG) members and associates. He submits that each of his businesses are indelibly linked with OMCG members and/or associates, such that he would not be able to meet his financial obligations if he is unable to generate income from his business dealings with them.
The applicant's evidence is that he lives 'week to week' with a buffer of only a few thousand dollars, but there was no documentary evidence to support that claim. There is evidence that the applicant makes a weekly mortgage payment in relation to his home address. An incomplete copy of a home loan statement as at 8 October 2024 was attached to his affidavit in support of the application, which did not show the state of the account as at that date, but did show that the applicant made the weekly payments timeously over the period 12 July to 20 September 2024. The terms of the loan agreement and mortgage are not in evidence.
The applicant asserts that he does not have the financial capacity to employ staff, but it is not possible to assess that opinion, as his evidence did not extend to his income from any of the businesses or their profitability. Nor did the applicant's evidence identify what proportion of the income of each business is derived from members of the Gypsy Jokers motorcycle club or their associates.
On the evidence, it is not possible to assess the financial risks posed to the applicant if some less wide‑ranging bail condition were to be imposed, or, for that matter, the extent of the risks imposed by the existing conditions.
The applicant's counsel submitted that the delay between 28 March 2024 and 5 December 2024 suggested both that the strength of the prosecution case was weak and that the risks of the applicant offending while on bail and interfering with witnesses was reduced due to the passage of time.
I consider that the explanation for the delay in charging the applicant has been sufficiently explained for present purposes.
In respect of the latter submissions, I understood them to be that the risk of the applicant reoffending could be taken to be low because there was no suggestion that the applicant had committed a further offence since 28 March 2024, and that the risk of the applicant interfering with the course of justice could be regarded as being reduced because the applicant had known that he was under investigation since not long after 28 March 2024 and had therefore had ample opportunity to confer with Mr Dolin before the imposition of the bail conditions.
The statement of material facts in relation to the offence with which the applicant is charged is as follows:
On 25 January 2024 at 5.15pm, as a result of an ongoing Gang Crime Squad operation, Undercover Police Operatives purchased 28 grams of methylamphetamine using $6500 from a co‑accused, a member of the Gypsey Joker Outlaw Motorcycle Gang (OMCG), outside of the Gypsy Joker Club House, 10 Lower Park Road, Maddington.
The $6500 utilised had been previously scanned and recorded to document the serial numbers of each note used. Following this interaction, Police maintained observations of the co‑accused.
At 6.35pm, the co‑accused attended 4 Tassell Place, Stoneville, the home address of the accused, the President of the Gypsy Joker OMCG.
At 7.04pm, a black Ford Ranger bearing registration GJ16WA was observed departing the address. The accused was identified as the driver, with a male occupant in the passenger seat.
At 7.15pm, GJ16WA was observed attending 270 Mildura Road, Mount Helena.
On 28 March 2024 at 7.50am, Gang Crime Squad executed a Misuse of Drugs Act Search Warrant at 270 Mildura Road, Mount Helena. During the course of the search, Police located a safe in a converted garage area of the property.
Upon examination of the sale, the following was located:
•A clip seal bag containing $135100
•A clip seal bag containing $135050
•A clip seal bag, with '135, Banking, Lil Tow, Espial P+P and Espial fitness' written on it, containing $135000
•A white tub containing $8530
•White envelopes containing $11000, $14,000 and $5000
•Yellow envelop containing $6650
•Orange tub containing $9700
The amount seized from the safe totalled $460,030.
An examination of the seized cash was subsequently conducted. This examination showed that cash which had been exchanged by Undercover Police Operatives on 25 January 2024 with the aforementioned co‑accused, was present in the seized $460,030.
On 5 December 2024 at 8.15am, the accused presented at Gang Crime Squad, Perth where he was subsequently arrested. The accused declined to participate in an audio-visual record of interview.
The accused was processed and released to bail with the present charge preferred.
Explanation: None given.
There is evidence that the property known as 270 Mildura Road, Mount Helena is owned by the applicant's parents.
It can be seen from the statement of material facts that it is alleged that on 25 January 2024 one or more undercover police operatives purchased 28 grams of methamphetamine from Mr Dolin at 5.15 pm for $6,500 in cash.
An hour and 20 minutes later, Mr Dolin attended the applicant's home address. Less than half an hour after that, a black Ford Ranger vehicle was seen departing that address being driven by the applicant, with a male occupant in the passenger seat. Eleven minutes later, that vehicle was observed attending 270 Mildura Road, Mount Helena.
The $6,500 in cash given to Mr Dolin on 25 January 2024 by police was part of the $460,030 found at that address on 28 March 2024.
Counsel for the applicant emphasised that the statement of material facts does not say that the applicant was still driving the vehicle when it arrived at 270 Mildura Road, Mount Helena. In the absence of any further information, including how long it might take to drive from the applicant's home to his parents' home, it is open to infer that the applicant remained the driver of the vehicle for the 11 minutes between it leaving his home and arriving at 270 Mildura Road, Mount Helena.
It can reasonably be inferred from the clip seal bag containing the $135,000 with '135, Banking, Lil Tow, Espial P+P and Espial fitness' written upon it that a presently unidentified person intended that amount, at least, be paid to the applicant. The size of that amount is inconsistent with the applicant's evidence as to his financial position, suggesting that the amount was not generated in the course of the applicant's businesses.
In addition, on 28 May 2024 the applicant was charged with an offence relating to $11,000 in cash found by police on top of the refrigerator in the applicant's home. The applicant declined to give any explanation in relation to that amount, and the charge was subsequently discontinued by police.
Although the applicant's counsel emphasised that there was no DNA evidence suggesting that the applicant had any connection to the cash found at his parents' house, there was evidence to the effect that the police did not request that evidence before 14 June 2024, and that no results would be obtained by the police for a minimum of 28 weeks from the making of the request.
On that basis, the police were unlikely to receive the results of any DNA examination before 27 December 2024. The application was heard on 2 January 2024. Given the time of year, I do not consider that the absence of DNA evidence tying the applicant to the cash found at his parents' house should presently be given the significance the applicant suggests.
I note in this regard that there was no objection by the respondent to the cross‑examination of the deponent of the affidavit filed in opposition to the application, but ultimately counsel for the applicant did not seek to do so.
The evidence in opposition to the application included that telephone intercepts indicated that the applicant, on his own statements, was performing the role of 'president' of the Gypsy Jokers motorcycle club over the period 14 February to 1 April 2024 and that he was engaged with other members of the gang on club business during that time.
In addition, it is said that telephone intercept evidence suggests that on 24 February 2024 Mr Dolin spoke with 'Sam' regarding the sale of a half kilogram of methylamphetamine, and that 'Sam' had an issue with letting Mr Dolin do 'tick' as he (Mr Dolin) had recently given multiple ounces to some persons who had then lost the drugs. Further, telephone intercept evidence suggests that Mr Dolin spoke at some time over the period 24 January to 31 March 2024 with another person or persons regarding the collection of money after he had met with the applicant.
The respondent also relied on the fact that Parliament has identified the Gypsy Jokers motorcycle gang as an OMCG, being a motorcycle club whose members use the club, its reputation or its membership for criminal activity.
The evidence before me indicates that Mr Dolin and another member of the Gypsy Jokers sold prohibited drugs to undercover police officers, and that $6,500 in cash used to purchase drugs from Mr Dolin was found in the possession of the applicant's father approximately two months after Mr Dolin attended the applicant's home.
In YSN v State of Western Australia the Court of Appeal identified the general purpose of the Act is to secure the integrity of the criminal justice process and community protection.[2]
[2] YSN v State of Western Australia [2017] WASCA 155 (YSN) [14].
The applicant submits, and the State appeared to accept, that the principles summarised in YSN are applicable, at least by analogy, to the consideration of whether conditions should be imposed under pt D of sch 1 to the Bail Act.
In YSN, the Court of Appeal said:[3]
The question posed by cl 1(a) does not ask whether, if the accused is not kept in custody, the accused will engage in conduct such as committing an offence or interfering with witnesses. Rather, the question is whether, if he or she is not kept in custody, the accused may engage in such conduct. The use of the word 'may' indicates that, in answering that question, the judicial officer or authorised officer is concerned with whether there is a risk that the accused might engage in the relevant conduct if not kept in custody. That sense of the word 'may' is indicated by cl 1(e)(i), which speaks of the 'possibility referred to in paragraphs (a) and (d)'. That confirms that the subject of the question posed by cl 1(a) is the existence of a risk or possibility that the accused may engage in the relevant conduct. However, cl 1(a) is not concerned with a risk or possibility that is merely theoretical or hypothetical and would consequently apply to anyone and everyone charged with an offence. The risk or possibility must be actual or real, as distinct from theoretical or hypothetical, and assessed having regard to the matters set out in cl 3(a) ‑ (d) and any other matters the judicial officer or authorised officer considers relevant.
Clause 1(e)(i) directs the judicial officer or authorised officer to consider whether there is any condition which could reasonably be imposed under pt D which would 'sufficiently remove the possibility referred to' in cl 1(a). Ordinarily, a reference to removing something (here a possibility) is to take the thing away. The context in which the words 'the possibility' appear in cl 1(e)(i) (in particular, the qualifying words 'sufficiently remove') indicates that this is not the meaning which Parliament objectively intended. The possibility that a person not kept in custody may commit an offence can never be entirely removed. If a judicial officer or authorised officer granting bail had to be satisfied that there was no risk that a person would engage in conduct of the kind referred to in cl 1(a) before granting bail, bail would never be granted. It is always possible that an accused person who is on bail may breach one or more of the conditions of bail.
[3] YSN [17] ‑ [18].
The subject of cl 1(a) of pt C of sch 1 to the Act is, as the Court of Appeal identified, the existence of an actual or real risk or possibility that the accused may engage in the relevant conduct.
Clause 2 of pt D to sch 1 of the Act relevantly provides that a judicial officer or authorised officer may impose conditions as to the accused's conduct while on bail where that officer considers that it is desirable for any purpose mentioned in cl 2(2), cl 2(2b), cl 2(3) or cl 2(4).
Clause 2(2)(b) of pt D provides that any condition may be imposed under cl 2(1) 'to ensure that an accused' does not commit an offence while on bail (emphasis added). Given the parties' apparent agreement that the principles identified in YSN are applicable to the present application, it is not presently necessary to determine whether there is any inconsistency between the consideration required by cl 1(e) of pt C of sch 1, which is concerned with the question whether the imposition of any bail condition will 'remove the possibility' that the accused may commit an offence while on bail in the sense explained by the Court of Appeal, and that required by cl 2(2)(b).
In my view, the applicant's focus on the matters identified by him as to the strength of the prosecution case and what inferences should be drawn from his conduct over the period 28 March 2024 to 5 December 2024 is too narrow, and does not take into account the whole of the available evidence. I do not accept the submission that, because the applicant did not commit an offence between 28 March 2024 and 5 December 2024, the risk that he would not do so if he was not subject to a bail condition is theoretical or remote. An alternative explanation for the applicant's conduct over that period is that he knew, on his own admission, that he was under police investigation over that time, so that it would be unwise to engage in further offending prior to his being charged, since that might never have eventuated.
Having regard to the matters outlined above, I consider that an inference can be drawn on the available evidence that the applicant has received funds from the sale of prohibited drugs by members of the Gypsy Jokers motorcycle club, and that there is a sufficient basis for considering that the applicant may engage in further offences, specifically the receipt of funds derived from the sale of prohibited drugs by members of the Gypsy Jokers, if he is not prevented from communicating with those persons.
It is therefore appropriate, in my view, to impose bail conditions that prevent the applicant from contacting or otherwise communicating with the members of that club, and persons who are in the process of applying for membership.
I consider, however, that there is insufficient evidence that the applicant might interfere with witnesses were he to be permitted to continue to communicate with members of the Gypsy Jokers.
I therefore do not base the making of any condition on the risk that the applicant might interfere with witnesses or otherwise pervert the course of justice in relation to the matter with which he is charged.
As to whether it is in the public interest to impose a condition on the applicant whilst he is on bail, having regard to its consequences for the applicant, I am satisfied that it is appropriate to do so. However, I consider that the extension of the conditions to all persons who are 'nominees, associates or members' of outlaw motorcycle gangs is too wide. There is nothing to suggest that the applicant has engaged or may be involved in any illicit dealings with any member of another club.
Accordingly, I consider that it is appropriate to restrict the applicant's dealings with members of the Gypsy Jokers alone.
That being so, there is essentially no evidence which demonstrates that the applicant might suffer undue hardship from the imposition of such a condition. As to any suggestion that the applicant's business will suffer greatly if he is prohibited from dealing with only members of the Gypsy Jokers, that is presently speculation for two reasons.

The first is that, although the applicant asserts that he does not have the financial means to employ a person in the business, it is impossible to assess that assertion on the basis of the evidence before the court.
The second reason is that the impact of restricting the applicant's communications with members of the Gypsy Jokers club alone has not been addressed. Presumably, that will be lesser in scope than a blanket prohibition on the applicant associating with nominees, associates and members of all outlaw motorcycle gangs, as required by the present condition.
I also consider that the terms in which the present non‑association condition is framed are ambiguous, such that it may well be difficult for the applicant to understand what conduct is prohibited by the condition, as well as the classes of persons with whom he is not to have contact.
For those reasons, and subject to hearing from counsel, I propose to vary the conditions on the applicant's bail so that he is not to come within 50 metres of any applicant for membership or member of any type of the Gypsy Jokers motorcycle club, and that he is not to communicate or attempt to communicate with any such person.
I will hear from counsel as to the precise wording of the conditions and the form of the orders to give effect to that intention.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
7 JANUARY 2025