Hoddy v Hawes [2003] WASC 22

Bail Act 1982, s 14, s 22, Sch 1 Pt C cl 1 and cl 3

Misuse of Drugs Act 1981

1 HASLUCK J: This is an application for bail made by the applicant, Leslie Thomas Hoddy, pending the hearing of certain charges under the Criminal Code.

2 The application comes before me pursuant to s 14 of the Bail Act 1982 which provides that a Judge of the Supreme Court may exercise the power to grant bail which is conferred upon any other judicial officer and to revoke or vary any bail previously granted.

3 The applicant has filed an affidavit in support of the application for bail, sworn by his solicitor, Vesna Amidzic, on 23 January 2003 (the "first Amidzic affidavit"). Exhibited to the affidavit is a statement of material facts prepared by the police service and the transcript of a hearing before the Court of Petty Sessions at Perth on 16 December 2002, on which occasion evidence was led from Superintendent David Caporn.

4 The applicant relies also upon two affidavits sworn by himself on 28 and 29 January 2003 respectively; upon the affidavit of Robert Darren Stupar sworn 24 January 2003; the affidavit of Kristian Mark Flatman sworn 24 January 2003, and the further affidavit of Vesna Amidzic sworn 30 January 2003 (the "second Amidzic affidavit").

5 At the hearing before me, the Crown opposed the application for bail and relied upon verbal submissions to that effect. It relied also upon the affidavit of Peter Ross Halliday sworn 30 January 2003 and cross-examination of the applicant on his affidavits at the hearing.

6 Section 22 of the Bail Act allows a judicial officer to receive and take into account such information as he thinks fit, whether or not the same would be normally admissible in a court of law. It was on this basis that I received further information at the hearing and was prepared to take account of the evidence previously given by Superintendent Caporn concerning certain threats allegedly made by the applicant and other matters, notwithstanding that much of the evidence in that regard was based on hearsay. A good deal of this evidence was substantiated by signed statements of police officers exhibited to the Halliday affidavit. I took account also of the signed statement of Sidney Reid dated 20 September 2002.

7 In the course of the hearing, I also received information as to the likely time before trial in the event of the applicant being remanded in custody. It is said, in par 40 of the first Amidzic affidavit, that the charges are unlikely to be tried before late in the year 2004. The Crown said that the trial will probably be listed during the first half of 2004.

8 The applicant was arrested on Tuesday, 10 December 2002.

9 He came before the Court of Petty Sessions at Perth on the afternoon of 10 December 2002 and was in custody at the time of his court appearance.

10 The applicant was charged with three counts that between 5 and 6 November 2000 at Ora Banda he wilfully and unlawfully caused explosions likely to cause serious injury to property contrary to s 454 of the Criminal Code, namely, injury to a house, the Ora Banda State Battery and the Old Ora Banda Inn.

11 I pause to observe that, by s 454 of the Criminal Code, any person who wilfully and unlawfully causes by any explosive substance, an explosion of a nature likely to cause serious injury to property, whether any injury to property has been actually caused or not, is guilty of a crime, and is liable to imprisonment for 20 years.

12 The charges were adjourned to 16 December 2002 for further mention. On that date, a solicitor (Mr Milner) appeared for the applicant and applied for bail in respect of the instant charges. The application was refused by the presiding Magistrate, Mr Calder. As I have noted, a copy of the transcript is before me. It includes the evidence given by Superintendent Caporn and the reasons provided by the learned Magistrate for refusing bail. I understand that the applicant did not give or lead any evidence on that occasion, having regard to the legal advice he received at that time.

13 Broadly described, the allegations underlying the relevant charges arise out of certain incidents at Ora Banda which are now matters of notoriety.

14 The Crown alleges that, on Sunday, 1 October 2000, William Grierson, a member of the Gypsy Jokers motorcycle club, was fatally shot by an unknown person while seated with other members of the club around a campfire at Ora Banda.

15 Some weeks later, on 31 October 2000, at Ora Banda, the residence of a former senior police officer, Don Hancock, who owned or was in control of licensed premises at Ora Banda, was damaged by fire.

16 A few days after that, on 5 November 2000, the Hancock residence at Ora Banda was destroyed by an explosive device. It is a matter of common knowledge that 10 months later, on 1 September 2001, Hancock was killed outside his residence in Perth by an explosive device attached to his vehicle.

17 It appears from the materials before me that, as a consequence of these events, a police operation known as Operation Zircon was established to investigate the car bombing deaths of Hancock and his companion, Lawrence Lewis. The commander of Operation Zircon is Superintendent Caporn.

18 The Crown case concerning the charges to which the present application for bail relates is that the applicant, Leslie Hoddy, was allegedly in the vicinity of Ora Banda on 5 November 2000 - that is to say, at the time of the second of the two incidents at Ora Banda - and was a party to the offences the subject of the charges.

19 It appears from the materials before me that the Crown will allege that certain members of the Gypsy Jokers club were of the opinion that Hancock was responsible for the death of Grierson and that this opinion had a bearing upon subsequent events. The Crown will allege that the applicant is a member of the Gypsy Jokers club and committed the alleged offences with four other persons, namely, Samuels, Stupar, White and Reid.

20 The Halliday affidavit has this to say about the matter:

"4. It will be alleged that on the 5th day of November 2000 HODDY, SAMUELS, STUPAR, WHITE and Sidney John REID (REID) travelled to Ora Banda and placed explosive devices at the Inn, gold battery and the unoccupied residence of Donald Leslie HANCOCK (HANCOCK). They subsequently exploded these devices causing considerable damage to the Inn and battery and the total destruction of the residence.

5. It will further be alleged that earlier on this date Graeme SLATER had constructed the explosive devices knowing it was intended to use the devices to destroy these buildings in Ora Banda."

21 It appears from the Reid signed statement that he will give evidence to the effect that both he and the applicant were at the scene of the alleged offences at the material time.

22 The first Amidzic affidavit confirms that the applicant has been a member of the Gypsy Jokers club for 30 years and has never sought to conceal his membership. He has not held any leadership role within the club since 1988.

23 The Amidzic affidavit has this to say about the charges and the prosecution case:

"37. In the event of conviction the applicant would almost inevitably be sentenced to a substantial jail term, irrespective of his antecedents however the same is true of Stupar and Samuels both of whom are on bail.

38. To the best of my knowledge the prosecution case is largely based on the allegations of the uncharged offender Reid.

39. The applicant vehemently denies any involvement in the Ora Banda bombings the subject of the charges and intends to defend the charges at every stage."

24 The affidavit indicates that the defendant White is in custody awaiting trial on a charge of murder. The DPP consented to bail on behalf of Samuels and Stupar in the Perth Court of Petty Sessions on 10 December 2002, when all three defendants appeared for the first time. Bail conditions were imposed to the effect that Stupar and Samuels were to provide personal undertakings and sureties each in the sum of $20,000 and abide by conditions whereby they would report twice weekly to the police, not contact prosecution witnesses, not attend Kalgoorlie or Ora Banda and not associate with members of the Gypsy Jokers club, except in the presence of a legal practitioner.

25 It is apparent from the materials before me, that bail was refused in the case of the applicant owing to the nature and seriousness of the charges, and evidence that, in mid-2002, he had made various threats to harm members of the police force. These threats are said to have been made principally on 2 July 2002 in the course of a seizure of assets belonging to the applicant pursuant to confiscation legislation. Further threats were said to have been made on 15 July, 8 August and 20 September 2002. The learned Magistrate was of the view that the threats had a real potential to interfere with the proper administration of justice as to both the proper investigation of the matter and the giving of evidence by witnesses if the matter proceeds to trial.

26 In dealing with an application for bail, the court is called upon to balance the interests of the accused and the public interest in the trial proceeding. A court must weigh up the presumption of innocence of an accused person against the need to ensure that the accused will be present at the hearing of the charges and that the integrity of the trial process is preserved. This is never an easy task.

27 Section 13 of the Bail Act provides that the jurisdiction to grant bail should be exercised subject to, and in accordance with, related provisions and the factors set out in Pt C of Sch 1 of the Act.

28 Clause 1 and cl 3 of Pt C cover applications for bail before conviction. The criteria are well-known and I will not repeat them in full. By cl 1(a), the questions to be considered include whether the defendant may fail to appear, commit an offence, endanger the welfare of others or interfere with witnesses. In addressing these questions, the judicial officer shall have regard to the nature and seriousness of the offences, the probable method of dealing with the defendant if he is convicted, the antecedents and previous convictions of the defendant, the history of any previous grants of bail to him, and the strength of the evidence against him.

29 The judicial officer is also obliged to take account of the prosecutor's position and whether the circumstances of the offence are of such a serious nature that a grant of bail would be inappropriate.

30 The decided cases show that common law principles may be considered in conjunction with the principles reflected in the Bail Act. Prima facie, an accused person should be allowed his liberty pursuant to the presumption of innocence and in order to prepare his case, provided there is a reasonable likelihood he will appear at the hearing of the charge. The three main tests of the probability of the accused appearing can be summarised as the nature of the crime charged, the probability of a conviction and the severity of the punishment which may be imposed.

31 The onus is usually on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. It seems, however, that under the Bail Act all matters referred to in cl 1 of Pt C to the Schedule are to be taken into account before the court exercises its discretion. In cases of murder or otherwise where the charges fall into the "extremely serious" class the applicant must show exceptional circumstances to justify bail because the gravity of the crime is thought to increase the risk of a failure to appear. WCVB v The Queen (1989) 1 WAR 279; Jemielita v The Queen (1994) 12 WAR 362.

32 These principles were affirmed in Fawcett v The Queen [2002] WASC 285, although in that case it was noted that in some cases there could be reasons such as inordinate delay which would justify the grant of bail. In Outman v The Queen [2001] WASC 162, Roberts-Smith J noted at par 44 that there can be a point at which delay in bringing an accused to trial amounts to exceptional circumstances. There are observations to similar effect in Pinkstone v The Queen (2000) 119 A Crim R 462.

33 Counsel for the Crown in the present case accepted that where the Crown relies upon particular facts as a ground for the refusal of bail, then the burden lies upon the Crown to establish those facts, notwithstanding that, overall, the applicant must show exceptional circumstances before bail is granted.

34 I note in passing that, in Pinkstone v The Queen (supra), charges under the Misuse of Drugs Act 1981 (WA) with a maximum statutory penalty of 25 years' imprisonment, or a fine of $100,000, were characterised as extremely serious. It was held that, where the strength of the prosecution case was such as to give rise to a real prospect of conviction, such prospect could be viewed as a powerful incentive to abscond. In that case, the learned Judge could envisage no conditions, no matter how strict, short of remanding the applicant in custody, which would reduce the risk that he might abscond to an acceptable level.

35 Further, the various factors before the court in that case outweighed the prospect that, by the time the applicant came to trial, he would have spent something like 2 years in custody. The application for bail in that case was refused, but the Judge said at par 81 that incarceration in the order of 2 years pending trial would, in almost all cases, mandate a grant of bail.

36 It appears from this review of the Bail Act and related legal principles, that I am obliged to give consideration to all the factors mentioned in Pt C of Sch 1 of the Bail Act. In my view, the charges in the present case should be characterised as extremely serious, with the result that the applicant must identify exceptional circumstances in order to obtain bail.

37 It appears from the materials before me that the applicant was born at Perth on 5 September 1948 and is 54 years of age. He is somewhat older than his co-accused. It is said in the first Amidzic affidavit that he has been in gainful employment in the trucking and allied industries and has a permanent place of abode in this State. He can obtain a surety at least as large as that provided by Stupar and Samuels and has assets, though they are at present subject to freezing orders.

38 In his own affidavits, the applicant gives his address as 25 Wildon Street, Bellevue, in this State. I was told that he currently resides at 30 Adisham Street, Maddington, being a property under his control. He says that he has four adult children and nine grandchildren. He has separated from the mother of his children, but remains on friendly terms with her, and they both provide support to the youngest son who has learning difficulties. He has been involved in trucking since 1986 and at the time the police froze his property in mid-2002 he had his own yard and two trucks at Bellevue. He says that all his assets were acquired through lawful means.

39 The applicant says that he is not guilty of the subject charges and intends to defend them. His next court appearance on the charges is 19 February 2003 for a committal mention.

40 It is contended in the first Amidzic affidavit that the applicant's preparation of his defence to the instant charges will be made considerably more difficult if he were to remain incarcerated for the sort of time period likely to pass before a trial date is fixed. Since the freezing of his assets, he has attended the Supreme Court for the purposes of examination, met with relevant officers of the DPP regarding the security and return of his assets and generally gone about dealing with the proceedings in a proper and lawful way.

41 The applicant disputes the evidence of Superintendent Caporn insofar as it characterises him as a violent man, with a personal vendetta against the police and attributes to the applicant indiscriminate threats of violence and similar conduct. The applicant has not done anything during the period since the freezing orders were put in place to make good the threats now attributed to him. Reference was made to the fact that the various threats against the police attributed to the applicant were never the subject of any criminal charge or other formal action.

42 The first Amidzic affidavit has exhibited to it a true copy of the applicant's criminal history. It is a lengthy record, including convictions for stealing, receiving, false pretences, threatening words or behaviour, and various traffic offences. However, it was submitted on his behalf that the record does not contain serious offences or reveal a propensity to violence.

43 The applicant in his affidavits explains the circumstances of the various offences and observes that, apart from the matters detailed in his observations, he has no convictions for threats or violent behaviour. He affirms that he has no convictions for breaching bail or committing offences whilst on bail. He says that he cannot fight the asset confiscation proceedings or properly defend the subject charges while he is in custody.

44 The applicant places reliance upon the prima facie position at common law that bail should be allowed to an accused person pursuant to the presumption of innocence and so that he can prepare his defence. He acknowledges that he has some prior convictions, but submits that they do not reflect a significant record of wrongdoing, or suggest that he is not likely to comply with bail conditions. He says that there are factors in his employment, financial and family situation which justify a grant of bail.

45 He appears to accept that special orders are required to ensure his appearance and has indicated by counsel that he is willing to comply with the same. He submits that conditions and orders of the kind applied to the co-accused will be sufficient to ensure his attendance at the hearing of the charges. He says, further, that it would be unjust for him to be refused bail in circumstances where bail had been allowed to at least two of his co-accused.

46 In his affidavits, the applicant deals at some length with the nature of the case against him and the allegation that he made threats against the police. I will not traverse his evidence in that regard in detail. He notes that the principal Crown witness, Sidney Reid, was arrested and charged with the murder of Hancock and Lewis on 14 February 2002. Reid went into police custody at that time and therefore, according to the applicant, is in no position to say whether the applicant has made threats against the police of the kind alleged because the applicant's first contact with Operation Zircon, or any of its officers, occurred after that date. He challenges the reliability of Reid as a witness and says that he has never had a close association with him.

47 The applicant concedes that he became abusive towards the police when his assets were seized on 2 July 2002 and on some other occasions. This was because he was angry and frustrated. However, he says that he did not make the sort of threats described by Superintendent Caporn in his evidence at the prior hearing. He says that the police allegations are an exaggerated account of what took place. He denies that he has "targeted" any police officers and denies that he has made the threats of harm alleged against him.

48 The second Amidzic affidavit has exhibited to it 27 references that speak well of the applicant and have been provided in support of his application for bail.

49 The Crown continues to oppose any grant of bail and underlines its position by relying upon contentions of the kind that were endorsed by the learned Magistrate when bail was applied for in the Court of Petty Sessions on 16 December 2002.

50 The Crown contends that the charges in question are extremely serious and that the applicant has failed to discharge the onus upon him of demonstrating that there are exceptional circumstances justifying a grant of bail.

51 To the limited extent that it is necessary for me to form an opinion as to the strength of the Crown case, I must take account of the contention that the Crown can rely upon the evidence of the Crown witness, Reid, who is said to have played a central and active role in the incidents at Ora Banda giving rise to the present charges. I noted earlier that Reid claims to have been at the scene of the alleged offences with the applicant and others in the group.

52 The applicant is not obliged to give evidence concerning such matters, and is entitled to remain silent. Nonetheless, his counsel has raised a challenge to the reliability of the principal Crown witness, Sidney Reid. I am obliged to take account of the fact that Reid was apparently involved in the events giving rise to the subject charges as an accomplice, and thus, his evidence must be treated with caution. His sentence has been discounted as a consequence of his assistance to the police. I have not been referred to any admissions made by the applicant or other features of the Crown case that weigh against the applicant decisively. The second Amidzic affidavit contains passages directed to the evidence of Reid which suggest that Reid had only indirect knowledge about the degree of the applicant's alleged involvement in the events connected with the death of Hancock.

53 As to the alleged threats, I have before me many detailed statements from police officers concerning the nature of the threats allegedly made by the applicant, and concerning the alleged involvement of the applicant's friend and/or employee, Kristian Flatman, in the video filming of the movements of police officers from a window of the Mad Cat Backpackers hostel which overlooks a carpark at the rear of police premises at Curtin House. Flatman has pleaded not guilty to a charge concerning this incident. The applicant has denied being involved with Flatman in that regard, although there is evidence before me that the applicant's fingerprint was found on a window in Flatman's room at the hotel.

54 I have some evidence before me from the applicant's side that tends to refute or qualify the evidence given by Superintendent Caporn and the other police witnesses that the threats relied on by the Crown were made as alleged in 2002. These are the threats allegedly made by the applicant which are said to demonstrate a risk that the investigation of the matter may be impeded and the trial process interfered with.

55 The Crown submits that it is the making of these threats which principally serves to distinguish the situation of the applicant from the circumstances bearing upon a grant of bail in regard to his co-accused, Stupar and Samuels. It is the multiplicity of the threats which justifies a refusal of bail.

56 In a case of this kind, where acts of violence have occurred concerning a former police officer, namely, Hancock, I must give very careful consideration to the question of whether a release on bail is likely to have any adverse effect upon the integrity of the trial process and the evidence to be given by other witnesses. I must also give proper weight to the seriousness of the charges and the likelihood that, if convicted, the applicant would undoubtedly face a substantial term of imprisonment.

57 I have already noted that the applicant is obliged to demonstrate exceptional circumstances in order to justify a grant of bail. He is undoubtedly entitled to place an emphasis upon presumption of innocence and the length of time that is likely to elapse before the matter proceeds to trial. For present purposes, I will accept that the trial is not likely to take place until 2004, that is to say, for at least 12 months. The delay could be as long as 18 months or 2 years.

58 For the purpose of this application, and having regard to s 22 of the Bail Act, I give weight to the evidence of Superintendent Caporn that the threats described in the Caporn evidence were made. To my mind, the making and the presence of these threats weighs against the applicant and could lead to an inference that the trial process might be prejudiced. Further, the contempt for legal process inherent in such threats raises a further concern as to whether the applicant would answer to his bail undertaking and appear on the prescribed date, although that point has not been the subject of any particular emphasis by the Crown.

59 On the other hand, I am obliged to take account of the applicant's contention and related evidence that the presence of the alleged threats has been over-emphasised. He has said that there is an explanation for his conduct. He has said that he will defend the subject charges and has raised issues concerning the strength of the Crown case. He points to the likelihood that he will not be brought to trial for at least 12 months and possibly longer. He raised a persuasive challenge to the prosecution case which, at this stage, on the materials before me appears to depend principally on the evidence of the witness Reid, whose evidence as an accomplice must be treated with caution.

60 In effect, the applicant says that there will be a substantial delay until the trial date. It is unfair and will give rise to an unjustified sense of grievance if the applicant is denied bail when the two co-accused, Stupar and Samuels are on bail. It is said that the so-called threats were not accompanied by acts of violence and, save for the Flatman incident which is unproven, there is no evidence of steps taken to carry the threats into effect. The applicant's ties are to this State and he has no ties to any other State or place.

61 When I draw the various considerations together, it is apparent to me that, when the matter of delay is considered in conjunction with the other matters relied upon by the applicant, it could be said that they amount to exceptional circumstances sufficient to justify a grant of bail. I give considerable weight to the fact that two of his co-accused have been released to bail without opposition from the Crown. Ultimately, the application turns on the weight to be accorded to the threats allegedly made by the applicant and the degree of risk that the integrity of the trial process will be prejudiced.

62 At the end of the day, I am of the view that risks of this kind are not sufficient to outweigh the matters raised in support of the application. I accept that the applicant made some abusive comments about the police when his assets were seized and thereafter, but I am not satisfied that they were of the extreme kind as alleged. They reflected the applicant's state of frustration and annoyance at the seizure of his assets and what he perceived to be harassment. His comments were in bad taste and inexcusable. However, I am not convinced that they reflected an intention or a plan of action to endanger the safety of persons or property. I consider that if bail conditions of the kind applied to the co-accused are imposed, the risk in question can be alleviated. Put shortly, I consider that the applicant has established exceptional circumstances justifying a grant of bail and that bail should be allowed, subject to conditions of the kind that I will now discuss.

63 The conditions I impose are broadly consistent with the memorandum handed up by counsel for the applicant which, in turn, is said to reflect conditions applicable to the co-accused. I consider that the amount of the personal undertaking and surety in this case should be raised to $30,000. The memorandum, as amended, reads as follows:

1. The applicant be released to bail in respect of Petty Sessions complaint numbers 49395/02, 49396/02 and 49397/02 on condition that he is -

(a) To enter into a personal bail undertaking in the sum of $30,000 with a surety in the same amount;

(b) Not to contact any of the prosecution witnesses either directly or indirectly, with a list of such witnesses to be provided to the applicant upon entering into his undertaking;

(c) To report to the Midland police station on Mondays and Fridays;

(d) Not to attend Kalgoorlie or Ora Banda in the State of Western Australia;

(e) Not to attend within 200 metres of any police station or complex, except for the purpose of reporting under (c) above; and

(f) Not to contact any member of the Gypsy Jokers Outlaw Motorcycle Club directly or indirectly or attend Gypsy Jokers' Club House at 10 Lower Park Road, Maddington, subject to the following exceptions -

(i) the applicant may contact his surety in connection with matters concerning his bail during the continuation of the surety undertaking even when the surety is a member of the Gypsy Jokers Outlaw Motorcycle Club; and

(ii) the applicant may communicate with other members of the Gypsy Jokers Motorcycle Club in the presence of his legal representative(s) for the purpose of the conduct of his defence or incident associated matters.

(g) The applicant is to reside at 30 Adisham Street, Maddington while on bail.