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Matauaina v DPP[2019] QDC 59

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Matauaina v DPP [2019] QDC 59

PARTIES:

MATAUAINA SONNY MATAUAINA

(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS

(Respondent)

FILE NO/S:

2138/18

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2019

JUDGE:

Smith DCJA

ORDER:

The application for bail is dismissed.

CATCHWORDS:

CRIMINAL LAW – BAIL – whether change of circumstance such that bail should be granted – whether risk of the commission of an offence – whether risk of flight

Bail Act 1980 (Q) s 16

Ex Parte Edwards [1989] 1 Qd R 139

Lacey v DPP (Qld) [2007] QCA 413

SCT v DPP [2017] QCA 131

COUNSEL:

Solicitors for the applicant

Ms S Farrelly for the crown

SOLICITORS:

Nyst Lawyers for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    This is an application by the defendant for bail pending his trial which is due to commence in September 2019.

Charges

  1. [2]
    The defendant is charged conjointly with Talatonu Matauaina with one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence; one count of kidnapping; one count of deprivation of liberty; one count of grievous bodily harm; two counts of assault occasioning bodily harm in company; one count of robbery with personal violence; and one count of arson.
  1. [3]
    The offences are alleged to have occurred on or about 7 and 8 June 2017.

Evidence

  1. [4]
    Rin Liang has provided a statement dated 25 June 2017.[1]  In this statement he says that on 8 June 2017 he was staying at the Summit Apartments in Spring Hill with his girlfriend, Summa Palliaer.  He got there between 2 to 3 pm on 7 June 2017.  On the morning of Thursday 8 June 2017 he and Summa went to get something to eat.  As they got back to the Summit Apartments at about 11am there were three men standing at the front entrance.  He was confronted by one of the men and there was an argument about his nephew being owed some money.  He was a bit blurry about what they were wearing because he later got punched in the head.  Man number three was an Islander, very big, in his twenties or thirties, 163cm tall with a bit of a “tummy”.  At some stage he saw one of the three men had tattoos on his thighs.  They were wrap around tribal style tattoos on both thighs which were black.  This man was very big, looked like an Islander, was about twenty to thirty years of age and about 180cm tall. 
  1. [5]
    Man number three grabbed the complainant around his chest with both arms and he was pulled into a utility. Summa tried to help him but was unsuccessful. Male number two pulled out a knife and cut him on the leg with the knife near the ankle area. It felt like the knife hit the bone - slashing his leg very deeply. Male number one was in the driver’s seat, did not say much and was an Islander with a lot of facial hair in his late twenties or early thirties. He was very large as well.
  1. [6]
    He was then driven off from the Summit Apartments. He noticed a white four door Mitsubishi Lancer Sedan travelling behind him. He remembered trying to get out of the back seat but man number two pulled his hands away from the door. He later saw there were two Islander men in the Mitsubishi. He recalled they went on the highway from the city towards the Gold Coast. He recalled losing a lot of blood from his leg and felt very dizzy. He recalled male number three punching him a number of times.
  1. [7]
    When they reached the first house, male number three used his hooded jacket to cover Mr Liang’s eyes. He was detained at the first house. He was later carried to a blue ute. He was very tired and in a lot of pain at that stage. He recognised a car park as being near the Lucky Star Tavern. He saw male number two using his telephone.
  1. [8]
    He was then driven to Blue Range Drive and was detained in that house. He was then taken to a black Commodore and dropped off near the Caltex petrol station. An ambulance was called and he was taken to hospital.
  1. [9]
    On 25 June 2017 he undertook a photo board interview with Constable Andrew Koo at the Brisbane City Police Station. He thought photo number seven looked very much like one of the three males who took him from the Summit Apartments.
  1. [10]
    In the transcript of photo board interview with Rin Liang dated 25 June 2017, Mr Liang was shown the photo board and was told that the people who committed the offence may or may not be in the photographs. He was also told he did not have to select anybody if he did not recognise anybody. He did not recognise anybody from the first photo board. He was then shown a second photo board and did not recognise anybody from that. He then asked to look at the first photo board again and pointed to number seven stating “yeah number 7 is very look like it but, I can’t I don’t know they – the hat is, they got the hat in there, they got the hat in there but that’s why I think it’s this one it’s very look like.”[2]  He said “it’s very look like that person, but I can’t know I’m not really 100%.”[3]  Mr Liang also said “[h]e’s the one that very look like him. This one is very, very look like him.”[4]
  1. [11]
    Photograph number seven depicts the defendant.
  1. [12]
    Summa Palliaer has provided a statement dated 8 June 2017.[5]  She confirms in that statement that she was living with the complainant.  On 7 June 2017 she had come into the city for a court appearance and as a result a room was booked at the Summit Apartments.
  1. [13]
    On the morning of Thursday 8 June 2017 she confirms that when they returned to the summit apartments at about 11am she noticed two men get out of a ute which was parked at the bottom of the driveway. The registration was 111VFC or similar. Two of the males walked up the driveway, one of whom was Jay, a male that she and the complainant had met at lunch at Sunnybank. The complainant was placed into the ute with physical force. The male who ran up the driveway with Jay looked like Jay – was of Kiwi appearance, dark skinned, same size, aged in his thirties or forties.
  1. [14]
    Ms Palliaer underwent a photo board interview on 22 June 2017. She was also told that the person who allegedly committed the offence may or may not be in the photographs. She was also told she was not obliged to select anybody. She picked number eight who was the accused. She said “he looks very, very similar – I am not entirely – I am not 100% sure – but he looks similar to the guy that was in the car that day that grabbed Michael. He looks very similar.”[6]
  1. [15]
    Photograph number eight depicts the defendant.
  1. [16]
    Aside from these purported photo board identifications, there is the following evidence:
  • The complainant alleged that one of the offenders had “tribal tattoos” on his thighs.  The defendant has tattoos on his thighs which could be described as “tribal tattoos”. 
  • The defendant was overheard talking about a person “Michael” owing money.[7]  Michael is the complainant’s nickname and he gives evidence he owed one of the offenders money for a gambling debt.
  • The defendant drives a black Holden Commodore.  The complainant said he was driven to and from the second house in a black Commodore. 
  • The defendant’s physical appearance is similar to one of the offenders who can be seen on the CCTV footage at the time of the abduction. 
  • The complainant’s DNA was located on tan work boots located at the defendant’s house.  The tan work boots look similar to those worn by an offender in the CCTV footage. 
  • A hi-vis jacket similar to clothing worn by the offender on the CCTV footage was located at the defendant’s house.  This jacket had stains which tested positive to TMB and indicated that blood was present. 
  • Call charge records from the defendant’s mobile phone show routes consistent with that described by the complainant in his kidnapping.
  • The defendant’s house contained a number of features which are similar to the features of the second house described the complainant.  For example the driveway, a round wooden table and vertical blinds. 
  • The complainant recalled the second house wasn’t far from Blue Range Drive.  This is consistent with the location of the defendant’s house at Mount Barney Crescent which runs off Blue Range Drive. 

Challenges to the evidence

  1. [17]
    I note that the defendant has a pre-trial hearing listed, seeking exclusion of the following evidence:[8]
  1. (a)
    Photo board identification evidence by Ren Liang;
  1. (b)
    Photo board identification evidence by Summa Palliaer;
  1. (c)
    Evidence by Ren Liang that one of the offenders had tribal tattoos around his thighs;
  1. (d)
    Evidence relating to a Versace bathrobe;
  1. (e)
    Evidence relating to a shoe box and receipt found in the defendant’s car;
  1. (f)
    All evidence given by a witness Ebony Huni;
  1. (g)
    All evidence regarding call charge records and network switch records of the defendant’s telephone.
  1. [18]
    I do not express any views about the merits or otherwise of these applications. The parties agreed I should proceed on this basis. I note the crown has conceded (d) and (e).
  1. [19]
    I also note the crown has indicated by correspondence that the crown has been unable to obtain a further statement from Ms Huni and may not be able to produce further statements from the service provider.[9]

History of the matter

  1. [20]
    The matter is presently listed for trial as trial number 1 in the week commencing 2 September 2019. The matter is also the subject of a part heard s 590AA hearing before me. This is listed for 17 June 2019.
  1. [21]
    The defendant was charged with the present offences in June 2017. He was granted bail on these charges in the Magistrates Court at Brisbane on the following conditions:
  1. (a)
    He appear before the Magistrates Court at Brisbane on 17 July 2017.
  1. (b)
    He not depart from the court unless further bail.
  1. (c)
    He provide one surety in the sum of $5,000 or two sureties each in the sum of $2,500.
  1. (d)
    He reside at Mount Barney Crescent, Algester.
  1. (e)
    He report to the officer in charge at the Woodridge Police Station each Monday and Friday between 7.00 am and 7.00 pm.
  1. (f)
    He surrender his passport.
  1. (g)
    He have no contact directly or indirectly with the complainant.
  1. [22]
    He was released on bail on these conditions.
  1. [23]
    However on 25 May 2018 the defendant was charged with the following further offences:
  1. (a)
    Entering a dwelling with intent at night;
  1. (b)
    Deprivation of liberty;
  1. (c)
    Robbery with actual violence/ armed/ in company/ wounded/ used personal violence;
  1. (d)
    Assault occasioning bodily harm whilst armed/ in company;
  1. (e)
    Unlawful wounding;
  1. (f)
    Common assault;
  1. (g)
    Unlawful use of a motor vehicle.
  1. [24]
    The defendant was refused bail on the 2018 charges and was remanded in custody.
  1. [25]
    The 2018 offences involve a home invasion whilst one of the offenders was armed with a gun. Another was armed with a knife. It is alleged threats were made regarding contact with police and the offenders interfered with the CCTV system.
  1. [26]
    I note that there will be a challenge to the photo board identification evidence which the defence alleges is the substantial evidence against the defendant.[10]
  1. [27]
    On 30 August 2018 the defendant was committed for trial to the District Court at Brisbane in respect of the 2017 charges. Whilst bail was granted to him on that occasion, because no bail undertaking was entered into, he was remanded in custody on the 2017 charges on 19 September 2018 when the matter was first mentioned in the District Court at Brisbane.
  1. [28]
    The 2017 charges were listed for a trial commencing 23 April 2019. This was adjourned after there was a change in the defendant’s legal representation.
  1. [29]
    On 29 November 2018 the defendant was granted bail on the 2018 charges on the following conditions:
  1. (a)
    A surety in the sum of $10,000.
  1. (b)
    The defendant have no contact with his co-accused or any prosecution witness.
  1. (c)
    He reside at 20 Stewart Street, Woodridge.
  1. (d)
    A curfew.
  1. (e)
    He not leave Queensland without permission.
  1. (f)
    He not apply for a passport.
  1. (g)
    He surrender any passport and not approach any place of international departure.
  1. (h)
    He report daily between the hours of 8.00 am and 6.00 pm to the officer in charge of the Logan Central Police Station commencing 30 November 2018.
  1. [30]
    It is common ground the magistrate proceeded on an incorrect basis when granting bail as she incorrectly believed the 2017 charges had been discontinued.[11]
  1. [31]
    The defendant applied for bail on the 2017 charges before Wilson J in the Supreme Court on 7 December 2018. Wilson J refused the bail application. In her ex tempore reasons for judgment her Honour referred to a brief summary of the facts.  She noted that the Magistrate who granted bail to the defendant on the 2018 charges on 29 November 2018 acted on a false premise thinking that the 2017 offences had been discontinued.[12]  Her Honour noted that the defendant was in a show cause situation.  She noted that the crown opposed bail particularly due to risk of reoffending; the risk of interfering with witnesses and members of the public.  Her Honour found in all of the circumstances that cause was not shown.

Submissions

  1. [32]
    The defence submits that there has been a change of circumstance in that the trial which was originally listed for April 2019 has now been listed for September 2019. It is submitted that it is therefore a change of circumstance because of the extra length of time that will be required to serve in custody.
  1. [33]
    The defence further submits that the case concerning the 2018 charges is a weak one. The defence further submits that the case concerning the 2017 charges is a weak one. It is submitted that there is little risk of reoffending whilst on bail and the conditions proposed ameliorate any such risk. It is further submitted there is no risk of interference with the crown witnesses and the defendant has previously not breached bail.
  1. [34]
    The crown on the other hand submits that the case on the 2017 charges is a reasonable one. It also submits there is a circumstantial case on the 2018 charges. The crown submits that for the 2017 charges if convicted there would be a range of penalty between 6 and 8 years imprisonment as a head sentence to serve at least 50 per cent. The crown submits that the eight months or so the defendant has served on remand is nowhere near what he might have to serve if convicted.
  1. [35]
    The crown also submits there is no change of circumstance because the trial has only been delayed by a period of some five months.

Discussion

  1. [36]
    In considering bail I need to have regard to the following factors under s 16(1) of the Bail Act 1980 (Q). That is, if admitted to bail whether the person would:
  1. (a)
    Commit further offences;
  1. (b)
    Interfere with witnesses or otherwise obstruct the course of justice;
  1. (c)
    Fail to appear and surrender into custody;
  1. (d)
    Endanger the safety or welfare of other victims or others; or
  1. (e)
    Be at risk such that detention in custody would be justified by the need for his own protection.
  1. [37]
    Section 16(2) of the Bail Act provides:

“(2) In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court or police officer shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant—

  1. (a)
    the nature and seriousness of the offence;
  1. (b)
    the character, antecedents, associations, home environment, employment and background of the defendant;
  1. (c)
    the history of any previous grants of bail to the defendant;
  1. (d)
    the strength of the evidence against the defendant;
  1. (e)
    if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—
  1. (i)
    the defendant’s relationship to the defendant’s community; or
  1. (ii)
    any cultural considerations; or
  1. (iii)
    any considerations relating to programs and services in which the community justice group participates;
  1. (f)
    if the defendant is charged with a domestic violence offence or an offence against the Domestic and Family Violence Protection Act 2012, section 177(2)—the risk of further domestic violence or associated domestic violence, under the Domestic and Family Violence Protection Act 2012, being committed by the defendant.”
  1. [38]
    It is common ground that the defendant is in a show cause provision by reason of s 16(3) because it is alleged that a weapon was involved.
  1. [39]
    I firstly turn to the nature and seriousness of the offence and the strength of the evidence against the defendant.
  1. [40]
    I appreciate that the evidence concerning the 2017 charges is challenged and is subject to an application to exclude parts of the evidence under s 590AA of the Criminal Code.  With those caveats in mind the parties submitted I could accept the crown evidence for the purposes of this application.
  1. [41]
    There are arguments concerning the admissibility of various pieces of evidence and the photo board identification. Having said that, in my view, at this stage, the case against the defendant is a circumstantial case to be answered.
  1. [42]
    There is also no doubt that the offences are serious. I agree with the parties that a head sentence might be in the order of 6 to 8 years imprisonment if the defendant is convicted. After a trial he will have to serve at least 50 per cent of that, noting that the crown may submit for the imposition of a serious violent offence declaration.
  1. [43]
    Turning to the 2018 offences, I do not consider I need to determine in detail the strength of the case here. At this point the reality is the defendant has been charged with serious offences which are alleged to have occurred in 2018; there is a photo board identification;[13] there is some circumstantial evidence to support this in the sense that a vehicle with which he is associated with was linked to the offending; he was found with the co-accused shortly after the commission of the offence and the defendant has a facial tattoo which matches the offender.  The offences are serious and it is of concern he was charged with these whilst on bail for the 2017 offences.
  1. [44]
    I do note that in the complainant’s statement it is not alleged that he was cut with a knife held by the defendant,[14] contrary to the allegation made in the police objection to bail.[15] I also note the prospective challenge to the photo board evidence.
  1. [45]
    There is no prohibition on a defendant making successive bail applications but usually a material change of circumstances must be shown if bail has been refused previously.[16] 
  1. [46]
    It is also the case that delay is a relevant consideration and may in some circumstances constitute a material change in circumstance.[17] Where the period of time in custody on remand will likely exceed any custodial sentence imposed this may well outweigh other factors.
  1. [47]
    However, in my respectful opinion there has not been established before me a sufficient change of circumstance to enable the defendant to be granted bail. The case against the defendant on the 2017 charges has not changed. It seems to me that the trial has only been adjourned for five months and if the defendant is convicted there is no risk of him serving additional time beyond that which he would receive after conviction.[18] I do not consider this to be a material change.
  1. [48]
    For this reason I dismiss the bail application.
  1. [49]
    But even if I considered there was material change of circumstance, I would still be disposed to dismiss the application.
  1. [50]
    Of course I weigh into the equation the possibility the defendant may be acquitted.[19] In this regard I take into account the legal arguments available to the defendant.
  1. [51]
    I also weigh into the equation his relatively minor criminal history; his personal circumstances;[20] the fact he has ties to the jurisdiction; the fact he has a supportive family; and the surety offered by his father and the strict conditions proposed.[21]
  1. [52]
    In this regard I have also taken into account the affidavits of Leafaitulagi Matauaina and Iopu Matauaina.
  1. [53]
    However there are other factors to be weighed into the equation.
  1. [54]
    I consider the 2017 offences are serious ones and in light of the allegations concerning the 2018 offences, I consider there is a risk of the commission of further offences if he was released on bail.
  1. [55]
    In this regard I note that he committed the offence of affray on 1 October 2017 and the offence of possessing dangerous drugs on 15 May 2018 whilst on bail for the 2017 offences.[22] This is of concern.
  1. [56]
    The affray concerned a brawl at a nightclub in the Valley at 2.15 am.
  1. [57]
    I note that when he applied for bail before Flanagan J on 11 September 2018 on the 2018 offences, it was alleged that false documentation was relied on by the defendant concerning the bail application.[23] I do place less weight on this issue because the defendant has not been charged with any offence related to this false material but I am informed investigations are ongoing.[24] 
  1. [58]
    There is also the issue of flight. Notwithstanding he has no previous convictions for breaches of bail, I consider there is a risk he would not appear in light of the serious consequences if convicted of the 2017 offences, particularly bearing in mind he is charged with the 2018 offences.
  1. [59]
    Police information suggests that the house where the defendant intends to reside is populated by people who in the past have been convicted of criminal offences.[25] 
  1. [60]
    In all of the circumstances I am satisfied the defendant has not shown cause that his continued detention in custody is not justified. I am not satisfied there is a significant material change in circumstances since the matter was before Wilson J on 7 December 2018.
  1. [61]
    In the circumstances I have determined to dismiss the application.
  1. [62]
    My formal order is the application for bail is dismissed.

Footnotes

[1]  The statement is contained in exhibit 1.

[2]  Transcript of Photoboard Interview: Liang dated 25 June 2017 at 62 referred to in Affidavit of Natasha Dawson pp 58-59.

[3]  Transcript of Photoboard Interview: Liang dated 25 June 2017 at 78 referred to in Affidavit of Natasha Dawson pp 58-59.

[4]  Transcript of Photoboard Interview: Liang dated 25 June 2017 at 86 referred to in Affidavit of Natasha Dawson pp 58-59. 

[5]  Also in exhibit 1.

[6]  Transcript of Photoboard Interview: Palliaer (No 2) dated 22 June 2017 at 44 referred to in Affidavit of Natasha Dawson p 59. 

[7]  Statement of Ms Ebony Huni at 15.

[8]  Exhibit NLD3 to Affidavit of Natasha Dawson paragraph 19.

[9]  Exhibit NLD4 to Affidavit of Natasha Dawson paragraph 20.

[10]  Affidavit of Natasha Dawson paragraph 24.

[11]  The reasons of the Magistrate are in the affidavit of Bridget McMahon page 72.

[12]  Reasons for judgment page 4.37.

[13]  I note this will be challenged.

[14]  Exhibit 2.

[15]  Affidavit of Bridget McMahon page 93, para 89.

[16] Ex Parte Edwards [1989] 1 Qd R 139 at p 142.22-55.

[17] Lacey v DPP (Qld) [2007] QCA 413 at [13].

[18]  He will have spent 382 days in pre-sentence custody by 1 September 2019- see Affidavit of Bridget McMahon page 2. Presently he has spent 243 days in pre-sentence custody- see Affidavit of Bridget McMahon page 4.

[19] SCT v DPP [2017] QCA 131 at [16].

[20]  Defendant’s Submissions paragraph 4.2.

[21]  Defendant’s Submissions paragraph 7.1; and proposed draft order.

[22]  Affidavit of Bridget McMahon page 7.

[23]  See reasons of Flanagan J- Affidavit of Bridget McMahon pages 69-70.

[24]  I note the defendant and his parents claim they know nothing of the provenance of those documents- Affidavit of Natasha Dawson paragraphs 12-13.

[25]  Affidavit of Bridget McMahon pages 5, 8-12

Close

Editorial Notes

  • Published Case Name:

    Matauaina v DPP

  • Shortened Case Name:

    Matauaina v DPP

  • MNC:

    [2019] QDC 59

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    26 Apr 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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