Re Johnson - [2021] VSC 800

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0294

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by ZACHARY JOHNSON

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 and 26 November 2021
DATE OF JUDGMENT:	3 December 2021
CASE MAY BE CITED AS:	Re Johnson
MEDIUM NEUTRAL CITATION:	[2021] VSC 800

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CRIMINAL LAW — Application for bail — Charges of murder and committing an indictable offence while on bail — Applicant on bail at time of alleged offending — Strength of the prosecution case — Anticipated delay of less than two years between date of charge and trial — Applicant 18 years old — First time in adult custody — Onerous custodial conditions due to COVID-19 pandemic —Support of Youth Justice — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. Daniel Sala	Emma Turnbull Lawyers
For the Respondent	Ms. Francesca Holmes	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by Zachary Johnson (‘the applicant’) who is charged in relation to the death of Jaxen Henderson-Gillesby (‘the deceased’). The applicant is 18 years old and has been on in custody on remand since 22 August 2021, when he was charged by Detective Senior Constable Alexander Gemin (‘the informant’) with the charges of murder and committing an indictable offence whilst on bail.

The matter was listed on 2 December 2021 for committal mention in the Magistrates’ Court at Wangaratta. The applicant was committed for trial and the initial directions hearing will be in this Court on 16 December 2021. The trial of the matter would presumably not occur before the end of 2022 or term 1 in 2023. However, it needs to be borne in mind that this is a circuit matter and may not be subject to the same delays caused by the pandemic as trials listed in Melbourne.

The alleged offending
Overview

The prosecution case is that the applicant fatally stabbed the deceased to the neck during an altercation in a public park in Wangaratta on 21 August 2021. They were not well known to each other but were mutually associated through a third party named Brody Rouse, who was present at the scene and believed to be involved in an altercation that preceded the stabbing.

Background

The applicant and Mr Rouse were in dispute around May 2021, when Mr Rouse’s brother started dating the applicant’s former girlfriend, leading to a physical fight between them. At the time of the alleged offending, it is said that there was no enduring animosity, however there are references in the material to Mr Rouse having previously attended and ‘smashed up’ the applicant’s house, and the applicant ‘talking shit’ about Mr Rouse to a female in the lead up to the alleged offending.

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 Johnson

Details

AGLC: Re Johnson [2021] VSC 800
Case: [2021] VSC 800
Decision Date: 3 December 2021

CaseChat Overview and Summary

In the matter of Re Johnson, the applicant faced charges of murder and committing an indictable offence while on bail. The case was heard by the Victorian Court of Appeal, presided over by Justices Kidd, Byrne, and Harbison. The applicant, who was on bail at the time of the alleged offending, sought bail in light of the new charges.

The court was tasked with determining whether the applicant met the criteria for bail under the Bail Act 1977 (Vic). Key issues included the strength of the prosecution case, the anticipated delay before the trial, the applicant's age, his status as a first-time adult offender, and the impact of COVID-19 on custodial conditions. The court also needed to consider whether exceptional circumstances were present that warranted a departure from the presumption against bail for serious indictable offences.

The court found that the prosecution case was not strong, and the anticipated delay before the trial was less than two years. The applicant's age and first-time offender status were factors in his favour, as were the support of Youth Justice and the exceptional circumstances created by the pandemic. Despite the seriousness of the charges, the court did not find an unacceptable risk to the community that would preclude bail. Consequently, the court granted bail to the applicant, imposing specific conditions to mitigate any potential risks.

The final orders of the court were that the applicant be released on bail, subject to the conditions specified by the court. These conditions included regular reporting to the police, residence restrictions, and compliance with a curfew. The applicant was also required to surrender any travel documents and refrain from contacting certain individuals.

Orders