Johns v The Queen - [2003] WASC 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: JOHNS -v- THE QUEEN [2003] WASC 270

CORAM: ROBERTS-SMITH J

HEARD: 18 DECEMBER 2003

DELIVERED : 18 DECEMBER 2003

FILE NO/S: INS 257 of 2003

BETWEEN: HERZEL PETER JOHNS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Bail Act 1982 (WA) - Serious offences - Attempted murder - Aggravated burglary - Unlawfully doing grievous bodily harm with intent - Exceptional reasons required

Legislation:

Bail Act 1982 (WA), Sch 1, Part C, cl (1) and cl (3)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Ms C A McKenzie
Respondent: Ms J Martin

Solicitors:

Applicant: McKenzie Lalor
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Firkins v Director of Public Prosecutions [2002] WASC 203
Gillis v Gawned & Anor (1992) 8 WAR 211
WCVB v The Queen (1989) 1 WAR 279
Williams v The Queen [2001] WASC 308

Case(s) also cited:

Pinkstone v The Queen [2000] WASC 321

ROBERTS-SMITH J: This is an application by notice of motion dated 9 December 2003 for bail pending the applicant's trial in this court on an indictment dated 9 December 2003 charging one count of aggravated burglary, one of attempted murder, one of unlawfully doing grievous bodily harm with intent to maim, disfigure, disable or do grievous bodily harm, and two of wilful damage. I am told the applicant's trial has been listed for hearing in Kalgoorlie to commence on 24 February 2004, some 2 months away.
The application is supported by an affidavit of the applicant sworn on 10 December 2003 and by an affidavit sworn by Jean Marie Bilston provided to me in the course of the proceedings this afternoon.
In WCVB v The Queen (1989) 1 WAR 279, his Honour Ipp J noted that the Bail Act 1982 (WA) is silent as to the approach that should be adopted where there are material disputes of fact and as to the onus of proof, if any, which either an applicant or the crown has to bear on a bail application.
His Honour concluded nonetheless that the common law position continued to apply and so in short, the situation therefore was that the onus is on the crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. Where, however, the charge is properly to be described as a serious charge, the circumstances then would have to be shown to be exceptional before bail would be granted and the onus of demonstrating that is on the applicant. That approach was adopted and applied by White J in Gillis v Gawned& Anor (1992) 8 WAR 211 and has been consistently applied by single Judges of this Court since (see for example Williams v The Queen [2001] WASC 308).
Attempted murder is clearly a serious charge for this purpose in objective terms as is one of unlawfully doing grievous bodily harm with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johns v The Queen

Details

AGLC: Johns v The Queen [2003] WASC 270
Case: [2003] WASC 270
Decision Date: 18 DECEMBER 2003

CaseChat Overview and Summary

In the case of Johns v The Queen, the appellant, Johns, sought to overturn a decision to deny him bail. The dispute arose following his arrest for serious offences including attempted murder, aggravated burglary, and unlawfully doing grievous bodily harm with intent. The case was heard in the Supreme Court of Western Australia. The primary legal issue before the court was whether the lower court had erred in its application of the Bail Act 1982 (WA) when it denied the appellant bail. Specifically, the court had to consider whether the lower court had correctly determined that exceptional reasons existed to justify the denial of bail.

The Supreme Court found that the lower court had appropriately applied the relevant legal principles in denying the appellant bail. The court noted that the gravity of the alleged offences, combined with the potential for harm to the community, justified the denial of bail. The Supreme Court held that the lower court had correctly identified exceptional reasons under the Bail Act, as the appellant's alleged actions demonstrated a significant threat to public safety. The court emphasised that in cases involving serious offences, the onus is on the accused to provide compelling reasons to warrant bail.

The Supreme Court dismissed the appeal, upholding the lower court's decision. The court concluded that the lower court had correctly assessed the risk factors and the likelihood of reoffending, which were substantial due to the nature of the alleged crimes. The Supreme Court found no error in the lower court's determination that exceptional reasons existed to justify the denial of bail. Consequently, the appellant's application for bail was rejected.

Orders