Hewat v The Queen [2013] VSC 642

2 The charges on which he was admitted to bail relate to two distinct sets of offences. On 28 March 2013 the applicant was arrested and charged with a total of 28 offences. These charges included two attempted aggravated burglaries; intentionally cause injury; stalking; making threats to kill; dishonestly assisting in the retention of goods believing the goods to be stolen; trafficking in a drug of dependence; possessing ammunition without being the holder of a licence or permit issued under the Firearms Act and possession a prohibited weapon without a relevant exemption. These offences are alleged to have occurred between November 2012 and March 2013.

3 The victim of these offences was Glenda Riegelhuth and the offences allegedly escalated out of circumstances where a dog apparently belonging to the applicant or to his wife wandered on to the victim's property. A set of driving offences was severed from the Riegelhuth offences.

4 The applicant was remanded in custody when arrested on 28 March 2013; an application for bail was refused on 11 April 2013. On 5 June 2013 the applicant was charged with three further offences; namely aggravated burglary, extortion and assault. These offences are alleged to have occurred on 26 February 2013. The victim of these offences was Wade Short. These offences allegedly escalated out of a civil dispute over the return of a bond following the termination of a commercial tenancy.

5 On 19 July 2013, the applicant's wife, suffering from bipolar affective disorder was admitted as an inpatient to the Melbourne Clinic.

6 When seeking bail on 2 August 2013, the applicant was required to show cause why his detention in custody was not justified pursuant to s 4(4) of the Bail Act. The application was opposed on two grounds: first, it was submitted that the applicant had not shown why his detention in custody was not justified; and second, it was submitted that the applicant was an unacceptable risk that he would, if released on bail, fail to answer his bail, commit further offences while on bail, endanger the safety or welfare of members of the public, or interfere with witnesses or otherwise obstruct the course of justice.

7 Beach J found, amongst other things, that the applicant had a bad criminal history. His threatening conduct in the past did him no credit, and he was undoubtedly a risk of re-offending and interfering with witnesses if granted bail. He was also a risk of not answering bail. Beach J concluded that cause had been shown. He then said,

the applicant's family and business circumstances are sufficiently unusual and compelling to require close analysis of whether the risks I have referred to can be managed by bail conditions that would in all the circumstances make these risks acceptable. Additionally, while I am not prepared to conclude generally that the Crown case is weak, there are aspects of various charges in this case that may not be entirely straightforward; certainly, there are some parts that are relevantly contestable. Having regard to the matters to which I have referred and the question of delay, I am satisfied that the risks associated with granting bail can be managed by conditions to a point where they are acceptable, and that the applicant has shown cause so that bail may be granted on the conditions I will now pronounce.

8 Accordingly, on 2 August 2013, the applicant was admitted to bail on conditions. The Riegelhuth offences and the Short offences are listed at the Melbourne Magistrates' Court for committal on 26 November 2013. In the case of the Riegelhuth offences, the committal is resuming part heard, and the applicant's bail was extended to that date. The driving offences are listed for contest mention on the same day.

9 On 10 October 2013, the applicant was charged with 17 further offences. The informant for these offences is Detective Senior Constable Kohlon. The offences with which he was charged are: (a) theft of a Kenworth tow truck valued at $150,000; (b) possess drug of dependence, seven syringes of anabolic steroids; (c) possess drug of dependence, one vial of anabolic steroids; (d) retain stolen goods, a motor vehicle engine; (e) retain stolen goods, four HSV wheels; (f), retain stolen goods, two HSV break calliper rotors and pads; (g) retain stolen goods, motor vehicle tail shaft; (h) possess prohibited weapon at Mickleham, a flick knife; (i) possess prohibited weapon at Craigieburn, a flick knife; (j) posses cartridge ammunition and nine rounds, various calibre; (k) deal with properties suspected of being proceeds of crime, $47,000 cash; (l) threat to inflict serious injury against Detective Senior Constable Measham; (m) use threatening words in public, and there were alternative charges for a number of the charges to which I have referred that I will not set out.

10 The applicant has been in custody since 10 October 2013. He was initially held for ten days in the cells at the Metropolitan Magistrates' Court, before being transferred to the Melbourne Reception Centre, where he has been kept in isolation. Several days ago he was moved into the general prison population.

11 There are now two applications before the court. The applicant applied on 1 November 2013 for bail on the Kahlon offences. The Director of Public Prosecutions applied on 12 November 2013, under s 18AE of the Bail Act, to revoke the bail granted to the applicant by Beach J as subsequently varied and extended, on the ground that the applicant has continued to commit further offences while on bail.

12 The applicant has been charged with the Kahlon offences, which include an indictable offence. Those offences are alleged to have been committed while the applicant was at large on bail, awaiting trial for other indictable offences, namely the Riegelhuth offences and the Short offences. The substantive contention of the applicant is that these offences were either not committed by him at all or were not committed while he was on bail between August and October 2013.

13 Under s 4(4) of the Bail Act, I must refuse bail, unless the applicant shows cause why his detention in custody is not justified. Further, I must consider s 4(2)(d) of the Act, which provides that a court shall refuse bail if the court is satisfied that there is an unacceptable risk that the accused, if released on bail, would commit an offence whilst on bail or interfere with witnesses.

14 How s 4(2)(d) and s 4(4) of the Act interrelate was addressed by Maxwell P, sitting at first instance, in Re Asmar.[1] In that case, after referring to an earlier decision of DPP v Harika,[2] the President stated:

In my view, the question - the only question - for the Court on an application to which s 4(4) applies is: 'Has the applicant shown cause why his/her detention in custody is not justified?' Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step.. [...] This does not mean that the "unacceptable risk" issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person's pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person's detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.

15 On these applications, the Director contends that the applicant has not shown cause why his detention in custody is not justified for two reasons. If bail is not revoked or if the applicant is granted further bail, the applicant is an unacceptable risk of committing further offences and an unacceptable risk of interfering with witnesses. The Director alleges new facts and circumstances since Beach J granted bail. Firstly, the Director refers to the circumstances of production of a false document to the court during Mr Hewat's previous bail application. The document was a prescription for testosterone for the applicant's son, Beau. Secondly, the Director relies on the matters revealed when search warrants were executed in October, that resulted in the Kahlon offences. Thirdly, the Director relies on the allegations of threats against the original informant, Detective Senior Constable Measham that form part of the Kahlon offences.

16 The applicant's primary contention is that he is not in a show cause situation because he has not committed further offences whilst on bail. It follows that he is primarily entitled to bail for the Kahlon offences and the bail granted by Beach J should not be revoked. That submission was developed as follows:

(a) The applicant has not been charged in relation to any matter arising out of the new facts and circumstances relating to the prescription.

(b) On 28 March 2013, both properties were searched by a large number of police. That search was either a haphazard or an incompetent search as the applicant contends that all of the items found when the properties were searched again on 10 and 12 October 2013, were on the properties when they were searched in March.

(c) The language constituting the alleged threats properly understood, cannot reasonably be seen as threatening words.

(d) The applicant's son, Beau, resides at the premises with his parents. This contention presumably is limited to his residence at Mickleham, and items found there may very well belong to, or be in the possession of Beau. Moreover, the items found have not yet been analysed.

(e) The applicant suggests that he is targeted by police because he is, apparently, a Sergeant-at-Arms for the East County Chapter of the Hells Angels. This contention is put in two ways. The police are targeting him alone, rather than the other occupants of the premises, his wife and son, for that reason, there being a police crackdown on outlaw motorcycle gangs. Thus, in respect of anything found on the premises that he occupies, whether or not with others, the applicant is charged with the offence because of that association and that membership.

(f) The police have taken precautions against the prospect that the applicant might be granted bail by not recording all items observed at the premises during the search in March, thus the police were in a position, when the applicant was bailed in August, to execute further search warrants in order to make a case that the applicant had committed further offences while on bail. When the applicant was bailed in August, the police returned in October to search again for the purpose of finding a basis to revoke the applicant's bail.

(g) The police do not have a strong case against the applicant. Neither the drugs nor the syringes and vials have been tested. No admissions have been made by any person and there is no forensic evidence, such as fingerprint or DNA evidence, that may link the applicant to the steroids and syringes, other than the fact that they were found in a fridge in a house that he occupies.

17 I begin with four general observations. First, concerning contentions based on the presence of Beau Hewat as an occupier of the Mickleham property, the application for bail is brought on the basis of affidavits sworn by a solicitor, but there is no mention in those affidavits, of Beau Hewat's place of residence. The police dispute that Beau Hewat resides at Mickleham with the applicant and his mother. His place of residence has become a contested fact, but the applicant has neither produced any evidence of Beau Hewat's place of residence, nor sought to cross-examine the police assertions that he does not live there.

18 In an affidavit on the earlier application heard by Beach J, the applicant's solicitor described the Mickleham residence as owned by the applicant's daughter and the place of residence of the applicant's wife. Beau Hewat was not identified as a resident at Mickleham.

19 For the purposes of this application, I am not persuaded that Beau Hewat resides at Mickleham.

20 The second general observation is that I am not persuaded that the police search on 28 March 2013 was either a haphazard or incompetent search, or that the police for tactical reasons that might be thought inappropriate, did not record all items observed at the premises during the search in March. There is simply no basis to be so persuaded.

21 Each of these contentions is inherently improbable, especially when presented by assertion from the Bar table rather than by evidence. Again, such assertions were not advanced, or even hinted at, by Ms Turnbull in the affidavits in support of the application and, before me, and were not the subject of any evidence or cross-examination of those who would deny the fact.

22 For the purposes of this application, I am not persuaded that the police search on 28 March, 2013 was either a haphazard or incompetent search. I am also not persuaded that items were observed and not recorded during the search in March for the ascribed purpose.

23 My third general observation is that most of the offences arising from the October search are possession-based offences and, as such, are continuing offences while the applicant is in possession, if that fact be established. It appears that the applicant has been charged with these possession offences because the police accept that the other occupant of the premises suffers a serious mental impairment. Whether Beau Hewat was also in possession of, or was in exclusive possession of, the subject matter may have some bearing when considering the strength of the prosecution case. Against the assertions being made by the police as the basis for the applicant being in possession, the claims about Beau Hewat appear convenient or opportunistic.

24 My final general observation is that much of what was put to the court for the applicant is properly a matter for ultimate fact finding by a jury or Magistrate. The applicant is required to show cause when charged with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence.

25 Turning to the specific charges relating to the search at Mickleham:

(a) Possession of vials of liquid marked Androgen and Endotrophine and syringes alleged to contain steroids: The applicant does no more than assert that the prosecution has not excluded exclusive possession by the applicant's son. The debate is not one that I can resolve. For the purposes of this application, I am satisfied that the applicant, being the occupier with his wife, of the premises searched, was charged with possession of these items on 10 October 2013 while on bail. It is premature to assess the strength of the prosecution case in respect of these charges.

(b) Possession of car parts from a Holden sedan, ZIB 569, including a 6.2 litre engine, wheels, brake parts and a tail shaft: The police assert that the car was stolen in September, 2013. The fact that these parts were found in the back of a Prime Mover tip truck that had been at the applicant's residence for quite a while, does not persuade me that the applicant has been charged with an offence that he has been committing since 28 March 2013. Rather, the applicant's submissions about the quality of the search on 28 March 2013 and the police tactics, cannot stand against the fact that this vehicle was not stolen until September 2013. Pressed with this inconsistency, the applicant's counsel suggested that if it is the case that these are parts from a car stolen in September 2013, they may well sheet home to Beau Hewat, not the applicant. I am not persuaded by that suggestion.

(c) A flick knife in a pouch was located in a barn area: As I have stated, I am not persuaded by a bald assertion from the Bar table that a search by a large number of police would have missed, or left, this item of this description.

(d) $47,000 in cash: It was submitted that this cash was the legitimate proceeds of trading the applicant's business. I was referred in support of this proposition to a sheet of paper apparently drawn up, according to Ms Turnbull, by an accountant, Ms Eleanor Beard of Brown Baldwin Accountants. For the purposes of this application I do not accept this document. I am not satisfied as to the provenance or reliability of the exhibit to Ms Turnbull's affidavit. Even if I were, I doubt that I would act upon it. Neither the solicitor nor the accountant identifies either the source of the information presented or any connection between the trading receipts of the applicant's business and the cash found. This is a matter for trial. It does not show that the prosecution case in respect of the possession of that money, whatever that case may be, is weak.

26 Turning to the specific charges relating to the search at Craigieburn:

A. A Kenworth T604 Heavy Haulage tow truck: I am satisfied that this truck was at the premises during the March search. Forensic examination now demonstrates that it may have been reconstructed with parts from another truck and re-registered as ZPZ-115. But it is unclear when that occurred. For the purposes of this application, I am not persuaded that the prime mover was stolen between August and October this year, but that is only one of the charges. The applicant is also charged with undertaking in the retention of stolen goods, and if that be the case, he was doing so on 10 October 2013.

B. A 1995 VS Holden Commodore: The circumstances surrounding this vehicle are complicated by a statement from its apparent owner made to the police that the vehicle was stolen, returned to him and then sold to "a bloke named Chris". I am not persuaded by this statement to accept the proposition that the applicant could not have undertaken the retention of stolen goods while on bail. I am not in a position to assess the strength of the prosecution's case in respect of it. The charge of possession of cartridge ammunition relates to what was found in this car.

C. A Taut Liner semi-trailer and Taut Liner red A trailer: These items were devoid of identification marks and allegedly found in the possession of the applicant. There may be defences available to the applicant, but they were not revealed. I am satisfied that the applicant, being the occupier of the premises searched, was charged with possession of these items on 10 October 2013 while on bail. It is premature to assess the strength of the prosecution case in respect of these charges.

D. A flick knife located in an office drawer: As I have stated, I am not persuaded by the Bar table assertion that was made that a search by a large number of police would have missed or left this item.

E. Stamps for restamping engine numbers: I propose to disregard this matter.

27 The third category of matters relate to threatening a police officer. That police officer is a prosecution witness, the informant in the Riegelhuth and Short offences. I do not accept the characterisation by the applicant's counsel of the language used. The language is capable of being found to be threatening. This conclusion will not simply follow on textual analysis. I was urged to regard the victim as a fairly robust individual. Although the point of that submission escapes me, the words are said to be, "I believe families are now on the line and fair go, Measham, that little cunt, from what I hear takes it both ways. I've lived a good life, let's see who else has". In the context of the nature of the offences for which Measham is informant, the nature of applicant's extensive prior criminal history, and his present circumstances (Sergeant-at-Arms), this confrontation is open to be regarded as more than frustration on the applicant's part. For the purposes of this application, I am persuaded that there is a risk that the applicant would not hesitate to intimidate witnesses.

28 The applicant relies on a number of other matters in support of his application, and in resisting the Director's application that his bail on the Riegelhuth and Short offences be revoked.

A. The applicant was until two days ago on 23 hour lock-down at the Metropolitan Reception Centre, which is said to be a punishment. I am not persuaded that I have been sufficiently informed of the circumstances of, and reasons for, his conditions in custody to regard this factor as anything other than neutral on these applications.

B. The Office of Corrections may be unable to reliably produce the applicant to court for required appearances. As topical as this issue may be, it is not suggested that bail be refused because the applicant will not appear. An attempt was made to relate this to a claim of delay, but there is no evidence of any unsatisfactory delay at this stage.

C. The applicant has obeyed all of his conditions of bail; he has done what he is supposed to do. This submission is mostly not contested. However, the submission refers to reporting and like conditions, while the crux of the Director's allegations relate to risks concerning interfering with witnesses and committing further offences.

D. Although the primary focus of Ms Turnbull's affidavits in support of bail was to other matters, particularly the health of the applicant's wife and the circumstances of his business, no submission was directed to me on these matters. They were live issues in the application before Beach J, and the material in respect of them has not been updated since that application. I have considered the matters deposed to by Ms Turnbull and read the reports obtained from Dr Mishra and Mr Watson-Munro. There is no current evidence in respect of these matters and I would expect that circumstances concerning the applicant's wife and his business have changed between August and October, when the applicant was on bail. No explanation was offered. I am not persuaded that these matters are other than neutral factors on these applications.

29 Turning then to the question of whether the applicant has shown cause as to why his detention in custody is not justified, I am persuaded to the requisite standard that: (a) the applicant is charged with 19 further offences, most of which were being committed on 10 October 2013, while the applicant was on bail; (b) I am unable to assess the strength of the prosecution case in respect of every charge; (c) I am satisfied that the applicant has been charged with indictable offences that are alleged to have been committed while he was on bail and I reject the applicant's contentions to the contrary, which I find unpersuasive. In all of the circumstances, I am persuaded that the applicant is an unacceptable risk that, if released on bail, he would commit a further offence whilst on bail. Perhaps more significantly, I am satisfied that the applicant has been charged with threatening a prosecution witness and that having regard to that incident, in conjunction with the applicant's prior criminal history, his position as Sergeant-at-Arms for the East County Chapter of the Hell's Angels, and the circumstances of each of the Riegelhuth and Short offences, there is an unacceptable risk that the applicant, if released on bail, would interfere with witnesses.

30 Section 4(4) of the Bail Act, provides that I shall refuse bail in relation to this applicant, unless he can show cause why his detention in custody is not justified. I am not persuaded that he has done so. There is a significant risk that he will commit further offences if released on bail and interfere with witnesses or otherwise obstruct the course of justice. Those risks are, in my view, unacceptable, notwithstanding the consequences a refusal of bail will have for his family and his business.

31 That being the case, the applicant has not shown cause why his detention is not justified and the Act requires me to refuse bail. I will also revoke the bail granted by Beach J on 2 August 2013.

[1] [2005] VSC 487.

[2] [2001] VSC 237.