45 On 21 November, Maxfield found a message on his mobile telephone to call White. He did so and was told that White had arranged a further meeting with the applicant.

46 Maxfield informed the police of this development. He agreed to wear a covert recording device at the meeting which was take place at 9 pm on that day.

47 According to the applicant, he received a telephone call from White a few days after the meeting of 18 November 2004. White told the applicant that Maxfield was going to disclose the names of others involved in the home invasion.

48 The meeting did take place and it was recorded by the device worn by Maxfield. However, as a result of background noise, much of what was said is inaudible. This is reflected on a transcript of the recording. Having listened to the recording myself, I estimate that only about one-quarter of the conversation is audible.

49 Without going into the detail of what was said by the applicant at the meeting, it is clear that he repeatedly urged Maxfield to plead guilty at his trial which was due to commence on the following day. The reason for the applicant's insistence that Maxfield plead guilty was his concern that Mrs Houghton should not give evidence.

50 The transcript is disjointed because of the inaudible sections. However, in my view, the essence of it is clear. The applicant wanted Maxfield to go to the DPP and attempt to reach an agreement with him that on the basis of a plea of guilty and disclosure of information about his co-offenders, he would not be imprisoned.

51 Failing that, Maxfield was to plead guilty at the trial and serve a prison sentence. In those circumstances the applicant would make financial provision for him. However, if Maxfield pleaded not guilty and was convicted, he would be "a pincushion" when in prison. Finally, if Maxfield pleaded not guilty and was acquitted he would be killed before he could leave the Supreme Court Gardens.

52 It is not entirely clear whether the threats were made directly by the applicant or whether he was relaying threats made by White and others. There are suggestions that both Maxfield and the applicant were in a situation which was beyond their control. However, at one stage, the applicant told Maxfield, in relation to a death threat:

"I'll see to it myself if I have to, just for my missus." (page 16 of 53)

Further, when Maxfield asked the applicant if he could actually kill someone, the applicant replied:

"You haven't heard enough about me. I, I use my regimental puppet (inaudible) circles, (inaudible)." (page 48 of 53)

53 Towards the end of the conversation, Maxfield was apparently questioning the way he would be killed, whether by a severe flogging or a bullet. The applicant responded:

"Well, whether it's that or whether it's something else, I don't know."

Maxfield then said: "Either way I'm a fucken dead man". The applicant replied:

54 During the course of the conversation, the applicant made what I understand to have been death threats against the other offenders of 13 November 2000. He also threatened to put Brown into a wheelchair (page 32 of 53).

55 As well as the recording of the conversation between the applicant and Maxfield, there is a statement from Maxfield which contains his account of the meeting. In addition to those matters discernable from the recording, Maxfield alleges that the applicant admitted he had organised a serious assault which had been committed on Maxfield while he was in prison in December 2003. According to Maxfield, the applicant told him the object of the assault was to let him know he was not untouchable, no matter where he was. Maxfield said the applicant told him he paid one of the perpetrators of the assault in cannabis for so doing. The applicant told Maxfield that his daughter had taken the cannabis into prison and given it to the offender.

56 It is clear from the tape recording that Maxfield did refer to the assault in the course of his conversation with the applicant. However, in none of the audible passages did the applicant admit that he was responsible.

57 It is against this background that the bail application must be considered. In so doing, I am required to have regard to the principles governing the grant or refusal of bail as set out in Part C to Schedule 1 of the Bail Act.

58 Relevantly for present purposes, I am required to exercise the discretion having regard to the following questions, as well as to any others which I consider relevant. They are:

"(a) whether, if the [applicant] is not kept in custody he may -

(i) fail to appear in court in accordance with his bail undertaking;

(ii) commit an offence;

(iii) endanger the safety, welfare, or property of any person; or

(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person

(b) ...

(c) whether the prosecutor has put forward grounds for opposing the grant of bail;

(d) ...

(e) whether there is any condition which could reasonably be imposed under Part D of this Schedule which would -

(i) sufficiently remove the possibility referred to in par (a) and par (d);

(ii) obviate the need referred to in par (b) ...

(f) ...

(g) whether the alleged circumstances of the offence or offences amount to wrongdoings of such a serious nature as to make a grant of bail inappropriate."

59 In considering whether the applicant might do any of the things mentioned in cl 1(a) above, I am required by cl 3 to have regard to the following matters, as well as to any others I consider relevant. They are:

"(a) the nature and seriousness of the offence or offences (including any other offence or offences for which (the applicant) is awaiting trial) and the probable method of dealing with the [applicant] for it or them, if he is convicted;

(b) the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the [applicant];

(c) the history of any previous grants of bail to him; and

(d) the strength of the evidence against him."

60 In dealing with those matters, I consider first whether the applicant might fail to appear in court in accordance with his bail undertaking. In my view, the risk is small. In reaching that conclusion, I have had regard to the applicant's affidavit in which he says that although born in England he has been a permanent resident of Australia since 1969. He has lived at his current address for the past 15 years and he is a director of a company which employs him to run a scrap metal yard in the metropolitan area.

61 The applicant has two adult children and eight grandchildren from his first marriage, which ended in 2001. He married Mrs Houghton in 2002. She has two adult children and two grandchildren. The applicant says that his ex-wife is close to Mrs Houghton and himself and he is close to Mrs Houghton's children and grandchildren. All of those children and grandchildren reside in Western Australia.

62 In these circumstances, I think it unlikely that the applicant would flee the jurisdiction. Although he admits that while the search warrant was being executed on his business premises, he said words to the effect "I am going to have to get me and my wife out of this State because of what you are doing", the applicant has explained that in his further affidavit to which I have referred previously.

63 I note the concern expressed by the applicant in his affidavit that as a result of the disclosure of his statement to Maxfield, his safety has been put in jeopardy. However, the applicant goes on to say he feels he would be better able to protect himself in his own home than in prison (affidavit of 2 March 2005 pars 50 - 51). In other words, the applicant is not contemplating flight as a means of avoiding what he perceives to be a risk of harm.

64 I turn to consider whether, if not kept in custody, the applicant might commit an offence. This question is related closely to the question whether the applicant might interfere with witnesses or otherwise obstruct the course of justice. That in turn raises the question of the nature and seriousness of the offences with which the applicant has been charged: the probable disposition if the applicant is convicted and the strength of the evidence against him.

65 It is this aspect of the application which causes me the greatest concern. In considering these matters, I note that the charges against the applicant have been reformulated in an indictment number 46 of 2005 which was presented recently. It bears the obviously incorrect date of 6 April 2005. I assume that to be an erroneous reference to 6 March. The indictment contains two charges. They are as follows:

"(1) On a date unknown between 29 October 2004 and 25 November 2004 at Bayswater KEITH HOUGHTON made a threat to unlawfully kill DARRYL LEE VICTOR MAXFIELD with intent to compel DARRYL LEE VICTOR MAXFIELD to do an act he was lawfully entitle to abstain from doing.

(2) AND FURTHER THAT between 29 October 2004 and 25 November 2004 at Bayswater and elsewhere KEITH HOUGHTON attempted to pervert the course of justice upon the prosecution of DARRYL LEE VICTOR MAXFIELD on charges of burglary, assault occasioning bodily harm, armed robbery, criminal damage and stealing a motor vehicle."

66 Despite the wide timeframe referred to in the indictment, the prosecutor confirmed on the bail application that both charges relate to statements made by the applicant on 21 November 2004.

67 It was submitted by counsel for the applicant that the applicant was simply suggesting to Maxfield that it would be a very good idea to plead guilty. The applicant himself says that he did not threaten Maxfield: he told Maxfield about the threats which had been made by others. Further, there is the point that if the applicant was himself the source of the threats, it is improbable that he would have informed the police that Maxfield was under any threat at all. Such information could only have made it more difficult for the applicant himself to carry his threats into effect. Counsel submitted further that the various threats made by the applicant should be categorised as "... bravado ... big-noting, fast-talking, full of hype ..." (TS58).

68 I am unable to accept the submission that the applicant was merely telling Maxfield that it would be a good idea to plead guilty. In my view, it is clear from the recording of the conversation between the applicant and Maxfield on 21 November, with all its deficiencies, that the applicant was doing his utmost to persuade Maxfield to plead guilty. The applicant made it abundantly clear that he had adopted that position out of a concern for Mrs Houghton's wellbeing. That was apparently a matter of very great importance to him.

69 It is true that the applicant referred to threats made against Maxfield by persons other than himself. However, as I have noted above, he at times made the threats personally. In any event, he made it clear to Maxfield that if he did not plead guilty as the applicant wished him to do he was in fact under threat: he was "a dead man walking".

70 It is impossible to decide in these proceedings whether the threats made against Maxfield were genuine or whether they were made out of bravado. Maxfield appeared to take the threats seriously. However, I do not overlook the fact that Maxfield had every incentive to postpone the trial which was due to commence on the day following the conversation of 21 November 2004. While I am reasonably confident that if the applicant made threats against the DPP, his staff and police officers, he did so out of bravado, I cannot be as confident in relation to the threats made against Maxfield.

71 For these reasons, I conclude that there is strong evidence against the applicant that he attempted to pervert the course of justice by imposing pressure on Maxfield to plead guilty. I consider that the applicant is likely to be convicted of that offence. I consider also that the threat to kill Maxfield - which was undoubtedly made by the applicant - should be regarded as sufficiently serious as to be reasonably likely to result in a conviction for that offence. In forming that view, I have left out of account the threats made by the applicant against others. I accept that evidence may be inadmissible in relation to the offences charged in the indictment. However, that is not a matter for me to decide.

72 These are unquestionably serious offences. The threat to kill carries a maximum penalty of 10 years' imprisonment: an attempt to pervert the course of justice carries a maximum penalty of 7 years' imprisonment. They are offences which strike at the heart of the criminal justice system which is, in turn, fundamental to the operation of the rule of law. It follows, in my view, that if the applicant was convicted, it is likely that a substantial term of imprisonment would be imposed on him.

73 Further, I consider that having regard to the strength of the applicant's concern for the wellbeing of Mrs Houghton, there is a risk that if granted bail, the applicant might interfere with Maxfield (who is himself on bail) or otherwise obstruct the course of justice by seeking to maintain the pressure on Maxfield to plead guilty. That is a risk, which in all the circumstances, I could not properly ignore.

74 I do not think it necessary to form a view as to the risk of the applicant endangering the safety, welfare or property of any other person. Although the applicant undoubtedly expressed a desire to cause serious harm to Brown and others, he has not been charged with any offences in relation to those matters. It is over four years since the offences of 13 November 2000. The applicant himself said that the police had been expecting him to harm Brown for at least that period: and yet he has not done so.

75 I am required to have regard to the applicant's character, previous convictions, antecedents and associations.

76 There is no evidence of the applicant's character beyond that to be inferred from his previous convictions. He was imprisoned for breaking, entering and stealing in 1972. However, in the last 30 years, the applicant's convictions have resulted principally from infringements of the Road Traffic Act. In 1984, he was convicted of possessing a firearm without a licence and possessing a prohibited slot machine. His most recent offences, in 2001, were possessing a prohibited drug and cultivating a prohibited plant. He was fined a total of $550.

77 The applicant's associations apparently include members of the Coffin Cheaters Outlaw motorcycle gang. As I have noted above, the applicant himself identified White as the Sergeant at Arms of the Coffin Cheaters who, he said, is "a powerful figure within the Club".

78 In Nelson's affidavit dated 2 December 2004 to which I have referred above, he said:

"6. Information gathered during the investigation indicated that an extensive re-recorded criminal organisation, the Coffin Cheaters Outlaw motorcycle gang had been contracted to perform the killings.

7. The Coffin Cheaters are well recorded on police databases for their propensity to violence and intimidation."

79 In relation to those matters I refer to the book "Bail Law in Victoria" by Hampel & Gurvich, published by The Federation Press in 2003. The authors say:

"In Smith (William Archibold) (unreported, VSC, 23/3/97), the sole ground of opposition to bail was the unacceptable risk that the applicant would interfere with witnesses or a witness. A police officer gave evidence of such belief principally because the applicant was a member of the Coffin Cheaters motorcycle club. It was the officer's belief that motorcycle gangs have a reputation for interfering with witnesses. In granting bail, Coldrey J remarked:

'Again, whilst it was asserted that the Coffin Cheaters, of which organisation the applicant is a member, have a reputation for interfering with witnesses, this was in fact just an assertion. No evidence was called to that effect. It is worth noting perhaps that the detention of the applicant in custody would not prevent such an organisation interfering with witnesses if that was their modus operandi.'

The court is frequently faced with an assertion of fear of the applicant by victims or witnesses or police that a risk of interference with witnesses exists. Because the onus of proving an unacceptable risk is on the prosecution, the court cannot act on subjective assertions or beliefs. There must be some evidence to support the assertions that is capable of a proper inference that the risk exists and that it is unacceptable. A theoretical risk may always exist, but that is not enough. Sometimes a real risk may be capable of being removed or diminished by the imposition of conditions of bail."

80 I make the same observations in the present case. If the applicant's association with members of the Coffin Cheaters motorcycle gang was the only matter relied on in opposition to a grant of bail, I doubt whether I would have regarded Nelson's evidence as sufficient to discharge the relevant onus of proof.

81 A further matter to be considered in relation to cl 1(a) of Pt C to Sch 1 of the Bail Act (as made relevant by cl 3) is the history of any previous grants of bail to the applicant.

82 The applicant says, and it has not been contested, that he has answered to his bail on every previous occasion when bail has been granted to him. I accept that to be the case.

83 I turn next to consider the applicant's health. In his affidavit of 1 December 2004, the applicant contends that he is "in very poor health" having been diagnosed with emphysema.

84 In his further affidavit of 2 March 2005, the applicant says that since his incarceration his medical condition has worsened. Because of a condition which results in his stomach having only about 10 per cent of the usual capacity, it is difficult for the applicant to keep his food down. He says he is able to eat only in small quantities and that it is difficult for him to get appropriate treatment in prison.

85 In his latest affidavit, the applicant complains of the lack of proper medical attention while in prison and the fact that he is subsisting on jam sandwiches because the special diet which he requires has not been approved by the prison doctor. Further, the applicant contends that he has been bleeding from his rectum, that he has a low blood count (as tested by the prison doctor) and that he has been losing weight. The applicant says he was told by the prison doctor that he was "possibly bleeding internally".

86 The applicant exhibited to his previous affidavit some reports produced by the Victoria Street Radiology Clinic in June, July and August 2004. These reports referred to "moderately severe and widespread but upper lobe predominant centrilobular emphysema". An abdominal ultrasound carried out to investigate an unexplained increase in abdominal circumference appeared to show that the applicant's internal organs were normal. Although the prostrate was enlarged, it did not indent the bladder base.

87 The applicant was taken to Armadale Hospital on or about 14 February 2005 to have a CAT scan. This did not take place, apparently because the applicant refused to be shackled, particularly as he was already handcuffed to an AIMS officer. The applicant contends that he was later asked by the prison authorities to sign a waiver to the effect that he had refused the CAT scan. The applicant declined to sign the waiver. He said that he had not refused the CAT scan, he had refused only to be shackled.

88 The applicant is now 61 years of age. I accept that he is in need of medical attention. However, he should be able to receive such attention as he requires while in prison.

89 Finally, there is the question of delay. The applicant has been in custody for some four months. There was some disagreement between his counsel and the prosecutor about the likely trial date. However, while I accept that any delay is undesirable, I can see no reason why the applicant's trial should not take place within what is a reasonable time, having regard to the state of the lists generally. There will be questions of admissibility of evidence, and possibly other matters foreshadowed by the applicant's counsel. However, these should be resolved well before the trial.

90 I did discuss with counsel, during the hearing, the possibility of expediting the applicant's trial. I raised the possibility of my speaking to the Chief Judge of the District Court and explaining the situation to her Honour. This was on the basis that the applicant's trial might be expedited so as to take place before the trial of Maxfield.

91 On reflection, I have decided that it would be inappropriate for me to approach the Chief Judge in that way. There are two reasons. First, I consider that in principle it would be inappropriate for me to make any request which might be interpreted as a form of interference with the procedures of the District Court.

92 Secondly, given the nature of the risks I have identified, there may be an argument that it would be preferable to have Maxfield's trial concluded before the applicant's. That is a matter which I think the parties should consider further.

93 Taking all these considerations into account, I have reached the conclusion that I should not grant bail to the applicant. For the reasons given above, I consider that the strength of the case against him is such that, were he to be granted bail, there is an unacceptable risk that he might at least obstruct the course of justice in relation to Maxfield's trial. Put another way, having regard to cl 1(g) of Pt C of Sch 1 to the Bail Act, I consider that the alleged circumstances of the offences with which the applicant has been charged amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. That being so, in my view it would be necessary for the applicant to demonstrate exceptional circumstances before he could be considered eligible for bail. He has not done so. Even if there were exceptional circumstances, it might well be inappropriate to grant bail. As Kellam J pointed out in Belajev v Director of Public Prosecutions (1998) 101 A Crim R 362, at 363 (following an earlier decision of the Full Court) bail would not be granted, despite exceptional circumstances "if there was an unacceptable risk that the accused would commit an offence while on bail". And as Gillard J said in Abbott (1997) A Crim R 19, an unacceptable risk of interfering with witnesses would produce the same result.

94 In reaching these conclusions, I have had regard to the possibility of imposing conditions such as those set out in Pt D to Sch 1 to the Bail Act. However, I have come to the conclusion that even conditions preventing the applicant from contacting Maxfield or any other witness might not be sufficient to avoid the risk.