By Mark Russell
A Supreme Court judge has refused to release former Bandidos enforcer Toby Mitchell on bail, saying she was worried he could interfere with witnesses - including the man he is accused of punching and threatening to shoot outside a busy South Melbourne cafe.
Justice Betty King said intercepted phone calls from Mr Mitchell when in custody at the Metropolitan Remand Centre revealed he believed he was smarter than the authorities.
Toby Mitchell at a previous court appearance.Credit: Michael Clayton-Jones
The judge said that in one call Mr Mitchell said, "I slapped the c--- in the head ... I won't get extra for the slap to the bloke. I won't get any time for it, a slap on the street."
In refusing Mr Mitchell's bail application on Thursday, Justice King said: "One of the major problems is that the applicant believes, as he states, that he is smarter than the authorities, which demonstrates a belief that he can live outside the law and not be subject to the same rules and laws as all other citizens."
"It is my view that there are currently no [bail] conditions that will ameliorate to an acceptable level the risk of the applicant interfering with witnesses and being involved in other crimes associated with that interference."
The judge said she did not expect Mr Mitchell to interfere with witnesses personally, but he was from "a milieu that don't respect or view the police in the same way as the majority of the community".
She said there were no bail conditions that could control his ability to make arrangements with others who may interfere with witnesses.
"Whilst he is in custody, those matters are to a very large degree under surveillance," she said.
"His calls are recorded, he is not able to mix with many other prisoners and his visits are supervised and controlled."
Mr Mitchell smiled in the dock before being led away.
Defence barrister Christopher Dane had argued that, while Mr Mitchell was a bit of wild boy who admitted punching the victim in the face during the lunchtime confrontation, he had not been armed with a gun.
Four witnesses have given police statements saying they saw Mr Mitchell punch the victim, but no-one saw a gun.
The victim, who had previous convictions for making false reports to police, said Mr Mitchell threatened to kill him and his two-and-a-half month old baby if he was not paid $300,000 during a meeting at the Clarendon Street cafe on January 10.
The victim, who took his child to the meeting for protection, told police that Mr Mitchell punched him in the face and shoved a gun in his stomach while telling him, "I'll shoot you, you c---, if you don't give me the money". The victim told police Mr Mitchell then added: "Take the kid away or I'll shoot it as well".
The man, who had received half of a $2.3 million inheritance, then left with his baby daughter in a pram before going to the police. He claimed Mr Mitchell was laughing as he walked away.
Mr Mitchell, 40, is facing 17 charges including extortion with threats to kill, recklessly and intentionally cause injury and possessing a gun and a belt that had a built-in double-edged dagger.
Mr Dane said it would be unfair to keep Mr Mitchell in custody given the case might not go to trial until some time next year. He said Mr Mitchell would not receive the proper medical treatment he needed for injuries he suffered when shot twice in separate incidents in 2011 and 2013 while in custody.
Justice King said Mr Mitchell had punched the victim in the face, causing blood to gush above his eye.
"He has then casually walked away, sending other people to clean up after him... organising to have the blood removed together with the bottle used by the complainant, containing in all probability his fingerprints or DNA.
"It demonstrates a lack of fear of the consequences of his actions, and a contempt for the societal norms, as well as the person he has hit.
"All of the witnesses have expressed a fear of being involved in a case in which the applicant is the defendant, obviously as a result of his notoriety."
The judge said Mr Mitchell had been shot twice, but refused to co-operate with police over the shootings "demonstrating his compliance to the code of the milieu in which he mixes".
Mr Mitchell is due to appear in Melbourne Magistrates Court on May 6 for a committal mention.