R v Johns - [2010] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JOHNS
[2010] SADC 140
Reasons for Decision of His Honour Judge Muecke
16 November 2010
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
Applicant released on licence pursuant to s 269O of the Criminal Law Consolidation Act 1935 on 26 May 2006 - Limiting term of 6 years fixed - Application to vary the licence to allow applicant to live in his home state of Western Australia - Licence revoked and applicant released unconditionally.
Criminal Law Consolidation Act 1935 ss 269O, 269P, 269T, referred to.

R v JOHNS
[2010] SADC 140

This is an application by Stuart Anthony Johns (the applicant) to vary an order by which he was released on licence following being charged with offences he allegedly committed at Whyalla on 19 December 2002. The offences were of violence and were alleged to have been committed by the applicant on the partner of his brother Herzel and on her daughter. They were alleged to have been committed whilst the applicant was visiting South Australia from Western Australia for Christmas of 2002.
The Information against the applicant was laid by the DPP in the Port Augusta Circuit Court of this court. The applicant was charged with Assault Occasioning Actual Bodily Harm to S, a child under the age of 12 years (she was 9 years old), and with Causing Grievous Bodily Harm with Intent to do Grievous Bodily Harm to J, the mother of S. (He was further charged by Count 3 with Assault Occasioning Actual Bodily Harm to J but that was an alternative count to the other count involving J.)
It is necessary for me to refer to some of the circumstances surrounding the alleged offences because a judge of this court ultimately, on 30 May 2005, found the objective elements of the first two counts on the Information involving J and S established. On the same day that judge determined that the applicant was unfit to stand trial. Having made those two determinations the judge ordered that the applicant be liable to supervision and set the matter down for further reports and submissions. Another reason why it is important to set out some of the circumstances of the applicant’s offending on 19 December 2002 is because that offending involved one of his brothers, that brother’s de facto partner, and that woman’s young daughter. The circumstances also involved the applicant’s mother.
Before 19 December 2002 the applicant travelled to Whyalla from Western Australia for Christmas. It appears that on the night in question everyone had been drinking, including the applicant’s mother. The applicant and his mother got into an argument. As a result of that an altercation took place between the applicant and his brother Herzel. The applicant hit Herzel with a bottle and Herzel responded by punching the applicant to his face. As a result of that the applicant ended up locking himself in a bedroom. His brother…

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 R v Johns

Details

AGLC: R v Johns [2010] SADC 140
Case: [2010] SADC 140
Decision Date: 16 November 2010

CaseChat Overview and Summary

The applicant in this case was released on licence under section 269O of the Criminal Law Consolidation Act 1935 on 26 May 2006. He had been sentenced to a limiting term of 6 years. The applicant made an application to vary his licence to allow him to live in his home state of Western Australia. The application was ultimately denied, leading to the revocation of his licence and his release unconditionally.

The primary legal issue before the court was whether the applicant's licence should be varied to permit him to reside in his home state of Western Australia. This involved assessing the terms of the licence under section 269O of the Criminal Law Consolidation Act 1935 and determining whether the applicant's circumstances warranted a change in the conditions of his release. The court had to weigh the applicant's rights and needs against the potential risks to public safety and the objectives of the legislation.

The court's reasoning focused on the need to balance the applicant's rights and interests with the overarching goal of ensuring public safety and the proper administration of justice. The court considered the terms of the licence, the applicant's history, and the potential impact of allowing him to reside in Western Australia. Ultimately, the court concluded that the risks associated with permitting the applicant to live in his home state outweighed the benefits, leading to the decision to revoke the licence and release the applicant unconditionally.

No specific orders were made beyond the revocation of the licence and the unconditional release of the applicant. This decision highlights the stringent approach taken by the court in balancing the rights of the individual with the paramount need to protect public safety.

Orders