Re Bloomfield[2014] QSC 115

SUPREME COURT OF QUEENSLAND

[1] Wilson J:  Mr Bloomfield, 23, has been custody since his arrest on 12 May 2014.  He is charged with four offences: extortion, assault occasioning bodily harm in company, being knowingly present in a public place with participants in a criminal organisation, and the theft of a jumper.

[2] The application is brought under the Bail Act 1980 (Qld).  There is a presumed entitlement to bail under s 9, but that presumption is rebutted if the court is satisfied, under s 16(1), that there is an unacceptable risk that the defendant if released on bail would fail to appear and surrender into custody or would, while released on bail, commit an offence, or endanger the safety or welfare of a person who is claiming to be the victim of an offence, or interfere with witnesses or otherwise obstruct the course of justice.

[3] The burden of establishing that there is an unacceptable risk ordinarily falls upon the Crown but, under ss 16(3) and 16(3A), that burden shifts in certain circumstances to the applicant, who must be refused bail if he or she cannot show cause that detention in custody is not justified. 

[4] Mr Bloomfield’s application is caught by these provisions, for two reasons: he is alleged to have threatened to use a firearm in the course of committing the offence of extortion (s 16(3)(c)); and, he is alleged to be or have been a member of the Hells Angels Motorcycle Club which has been declared to be a criminal organisation[1] and a vicious lawless association.[2]  These strictures apply even if, as he alleges, he renounced any membership of the Hells Angels in October 2013.[3]

[5] The fact this burden is now placed upon Mr Bloomfield does not, however, alter the question to be asked and answered under the Bail Act – namely, whether is an unacceptable risk of his failing to answer bail, committing further offences while on bail, endangering the safety of any person, or interfering with witnesses.[4]

[6] The first factor upon which s 16(2) focuses is the nature and seriousness of the offences charged.  According to the DPP submissions, the charges had their genesis in a drug sale and an unpaid debt for drugs.  The complainant – who was not, it appears, the debtor but a person who instigated or was involved in the drug transaction – was allegedly assaulted by Mr Bloomfield and another person.  The charge of extortion involves, as I understand it, an alleged text message from the applicant’s mobile phone to the complainant which includes threats to kill members of his family if the debt is not repaid.  Mr Bloomfield denies he sent the message.  There is nothing to suggest the threats contained in it were executed, or attempted.  These things are said to have happened in the course of activity by a criminal group.  On any view the charges are serious, but not of an order which compels the conclusion that their very nature makes the applicant an unacceptable risk.

[7] As to his character and antecedents, Mr Bloomfield has a relatively minor criminal history.  It does include a conviction for a breach of bail involving a failure to appear in court, but nothing in his history has otherwise attracted anything more than a fine and, indeed, that has been the most significant penalty imposed upon him.  He was not on bail when any of these offences were allegedly committed. 

[8] He suffered a severe injury which cut short a promising professional sports career. He has made a slow recovery and that, it is said, explains much of his recent history.  He claims to have strong support within a large immediate family, and has been in a de facto relationship for two years.  There is evidence that, if released, he would have immediate employment in a general labouring position.

[9] The third factor focuses precisely upon the history of any previous grants of bail.  In 2010 he failed to appear in accordance with an undertaking and says that happened because he was unaware he had to go to court.  No conviction was recorded and he suffered no further punishment on that occasion.  Much the same thing happened again in 2012, and he says that he most likely forgot the court date. 

[10] Unsurprisingly perhaps the Crown and Mr Bloomfield are at arms length about the strength of the evidence against him.  The Crown says that it has a strong case, supported by a digital recording.  Mr Bloomfield is not however a party to or a participant in that recording.  It is reasonably clear that the prosecution case relies primarily on the evidence of a single witness whose credibility is likely to be strongly challenged. 

[11] As to his participation in a criminal organisation he alleges, again that he renounced his association with the Hells Angels in October 2013 and the key issue on the charge will be whether or not he was a participant.  The offence was alleged to have occurred between 20 October 2013 and 14 May 2014 at a gym in Robina but there is nothing in the police material indicating how a charge over such a wide period is to be proved. 

[12] Some other matters are relevant, and should be considered.  There will necessarily be significant delays until trial.  Under two of the charges, if Mr Bloomfield is found to have been a vicious lawless associate he will face a 15 year mandatory term, in addition to any term imposed on primary offences.  It is difficult to predict the outcome of the trial and much will depend on the evidence adduced and, it seems likely, matters of credit.  It cannot be said that the prosecution is assured of success.  The limited evidence available in the police brief does suggest the extortion and assault charges involved a complainant who may, himself, have been connected with a criminal enterprise.  It is not unforeseeable that the credit of the complainant might be effectively challenged to one degree or another.  It can only be said that the case presents as fairly arguable.

[13] Nothing in Mr Bloomfield’s criminal history supports the conclusion that he is unacceptable risk of failing to appear and surrender into custody.  Any risk of that kind may, in any event, be addressed by appropriate conditions.

[14] The Crown strongly presses the proposition that the nature of the offending indicates a risk that Mr Bloomfield would interfere with witnesses.  Again, save for the present charges, nothing in his history indicates a propensity towards that kind of misconduct and any risk may, again, be addressed by appropriate conditions.  He has also now, of course, spent time in custody and has an incentive not to return.

[15] The court is required to conduct a balancing exercise, doing its best to measure the risk and determine whether or not it is unacceptable.  As Keane JA (as his Honour then was) has observed, the determination relies on an assessment as to the likely course of human behaviour and is, inevitably, a matter of impression and degree.[5]  An examination of the factors set out in s 16(2) (and other relevant matters) does not point, with any compulsion, to the existence of an unacceptable risk. The point pressed by the Crown with greatest vigour – the risk of interference with witnesses – cannot be said to give rise to a risk of that kind when there is no history of it, only the one offence is charged, and it can be addressed with a plain, stringent condition. 

[16] An order incorporating appropriate conditions, in terms of the draft provided for Mr Bloomfield and amended, by consent, by the DPP will be made.