Re JK - [2022] VSC 714

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0282

IN THE MATTER of an application for bail
Between:
JK (a pseudonym)	Applicant
-and-
DETECTIVE SENIOR CONSTABLE SAMANTHA PEREZ	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING & ORDERS:	17 November 2022
DATE OF WRITTEN REASONS:	21 November 2022
CASE MAY BE CITED AS:	Re JK
MEDIUM NEUTRAL CITATION:	[2022] VSC 714

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CRIMINAL LAW — Application for bail — Applicant, aged 57, charged with assault with intent to commit sexual act, recklessly causing injury, and threat to commit sexual offence — Whether compelling reason justifying bail — Whether, if bailed, unacceptable risk of endangering safety or welfare of others, offending, or interfering with witnesses or otherwise obstructing course of justice — Serious allegations, but bizarre — Complainant applicant’s 77-year-old mother-in-law — Applicant allegedly declared to complainant, “I want to make the sex with you,” and punched her repeatedly, breaking her nose — Applicant psychotic at time, but not so now — Applicant suffering profound grief over death of wife a year earlier — Whether psychosis drug-induced or resulted endogenously from mental illness — Psychologist opines drug-induced psychosis — No psychiatric report yet — Complainant fearful of applicant being bailed — Family violence intervention orders now in place — No prior criminal convictions — Support of CISP and treatment by psychologist — Contestable issues on mens rea and mental impairment — Delay of 12 months between arrest and contested hearing in Magistrates’ Court — If bailed refused, period in custody very likely to exceed any prison sentence (if imprisoned at all), if charges proved — Compelling reason established — Conditions of bail and other factors render risks acceptable — Bail granted on own undertaking with conditions — Bail Act 1977 (Vic), ss 4, 4AA, 4C, 4D, 4E & 5AAAA; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 5 & 20.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Chernok	Valos Black & Associates
For the Respondent	Mr G Carr	Victoria Police, Legal Practice Group

HIS HONOUR:

Overview

JK,[1] aged 57, applies for bail. He is charged with assault with intent to commit a sexual act,[2] recklessly causing injury,[3] and threatening to commit a sexual offence.[4]
[1]The names of the applicant, the complainant and other members of their family, and various other details in this matter, have been anonymised, redacted or described in elliptical terms in these reasons because of the restrictions on reporting the identity of a complainant in respect of a sexual offence (see ss 3 and 4 of the Judicial Proceedings Reports Act 1958 (Vic)).
[2]Contrary to the Crimes Act 1958 (Vic), s 42.
[3]Contrary to the Crimes Act 1958 (Vic), s 18.
[4]Contrary to the Crimes Act 1958 (Vic), s 43.

The incident giving rise to the charges occurred on 18 May this year. Police were called and JK was arrested immediately thereafter. He has been in custody ever since — i.e.,…

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 Re JK

Details

AGLC: Re JK [2022] VSC 714
Case: [2022] VSC 714
Decision Date: 17 November 2022

CaseChat Overview and Summary

In the Victorian Magistrates' Court, the applicant, aged 57, sought bail in relation to charges of assault with intent to commit a sexual act, recklessly causing injury, and threatening to commit a sexual offence. The applicant was alleged to have assaulted his 77-year-old mother-in-law, breaking her nose and declaring, "I want to make the sex with you." The applicant was not in custody at the time of the hearing. The legal issues before the court were whether there was a compelling reason to grant bail and whether, if bailed, there would be an unacceptable risk of endangering the safety or welfare of others, offending, or interfering with witnesses or otherwise obstructing the course of justice.

The court considered the applicant's mental health history, including whether his psychosis was drug-induced or resulted from a mental illness. While a psychologist opined that the psychosis was drug-induced, the court noted that there was no psychiatric report yet. The applicant had no prior criminal convictions but was suffering from profound grief over the death of his wife a year earlier. The complainant was fearful of the applicant being bailed, and family violence intervention orders were now in place. The court also considered the delay of 12 months between the arrest and the contested bail hearing in the Magistrates' Court. The applicant had the support of the Community Intervention Support Program and was undergoing treatment by a psychologist. There were contestable issues on the mens rea and mental impairment. If bail was refused, the period in custody was very likely to exceed any potential prison sentence if the charges were proven.

The court found that a compelling reason to grant bail had been established. The risks, considering the conditions of bail and other factors, were deemed acceptable. Bail was granted on the applicant's own undertaking with conditions. The court referenced sections of the Bail Act 1977 (Vic) and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) in its decision.

Orders