Re Johnson
[2021] VSC 800
•3 December 2021
| 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.
The alleged offending
The events of 21 August 2021 relied upon by the prosecution leading to, and including, the alleged murder can be summarised as follows:
(a) at 12:00pm, the applicant sent pictures of himself holding a blunt knife to two friends and asked for help to sharpen it;
(b) sometime after 2:00pm, the applicant told his girlfriend Kerri-Ann Massey-Chase that he was going to see Mr Rouse;
(c) at 5:00pm, the applicant sent a message to his sister saying he was meeting Mr Rouse on Vincent Road and would be back in ten minutes. She asked him if they were ‘all good’, referring to past conflict, and he responded ‘yeah I think [I don’t know]’.
(d) at 5:37pm the deceased and Mr Rouse left an address on Vincent Road and walked towards Scout Park;
(e) at an unknown time, the applicant left his sister’s house in Wangaratta (where he was residing at the time) and walked to Scout Park;
(f) sometime prior to 5:45pm the applicant, the deceased and Mr Rouse were talking on the grass area inside the park fence of Scout Park, near the intersection of Ryan Avenue and Vincent Road, and then a physical altercation broke out;
(g) close to 5:45pm, the applicant stabbed the deceased in the neck with a knife causing him to fall to the ground. The scuffle continued between Mr Rouse and the applicant, before the applicant ran off covered in blood;
(h) at 5:45pm, a witness called 000. A male voice could be heard in the background yelling ‘he stabbed him in the fucking throat out of nowhere’ and ‘Zac Johnson’;
(i) around 5:50pm police and ambulance officers arrived and rendered first aid to the deceased, who was motionless and bleeding from his nose and mouth. Around the same time, Mr Rouse was captured on body worn camera footage telling police that he and the deceased had been out for a walk and that the applicant had appeared out of nowhere and ‘jumped’ them; and
(j) at 6:52pm the deceased was declared dead at the scene.
Post-offence conduct
The applicant made multiple calls to his girlfriend between 5:44pm and 5:51pm, during which she described him as panicked and crying. He stated to her that:
(a) he thought he had killed someone;
(b) he met Mr Rouse on Vincent Road and walked towards the park;
(c) Mr Rouse told him there would be trouble if the applicant kept talking about him;
(d) he turned to go home but the deceased punched him in the back of the head, and then both he and Mr Rouse were on top of him and punching him;
(e) he had a butter knife with him, which he usually carries, and used it to scare Mr Rouse but instead ‘got’ the deceased in the neck accidentally.
At 5:57pm the applicant called his sister saying ‘you were right, it was a setup’. He said that he had accidentally stabbed ‘one of them’ and ‘it’s bad’.
He later tried to call, and then sent a message to, a friend stating he had ‘fucked up’ and needed help. He then sent and deleted several other messages to that friend.
Sometime after 6:00pm, the applicant’s mother attended at his sister’s house and found the applicant in the bathroom. He was placing bloodied clothes, shoes and a knife in a bag, which he told her were ready for police.
Between 6:18 and 6:19pm, the applicant made two calls to Wangaratta Police Station, but hung up on both occasions.
At 6:45pm the applicant told his girlfriend’s parents and his mother that:
(a) he met Mr Rouse on the corner of Smith Street and Vincent Road, and Mr Rouse told him to come to the park to meet the deceased;
(b) he spoke with the deceased for 10 to 15 minutes, approximately 15 metres from the footpath;
(c) he went to leave but Mr Rouse and the deceased both ‘jumped him from behind’ and were on top of him ‘laying into him’; and
(d) he pulled the knife out to scare them, cutting the deceased’s throat by accident.
Arrest and interview
At 6:58pm, the applicant called Wangaratta Police Station and stated that he had accidentally stabbed someone. He then attended the station at 7:20pm with his mother, who left the bag of items from the scene for police. The applicant indicated that he had consumed drugs and was not interviewed at that time.
The following morning the applicant was interviewed and in summary said:
(a) That earlier that year his former girlfriend brought Mr Rouse around to his house, and Mr Rouse ‘smashed [it] up’. Mr Rouse apologised a few days before the stabbing;
(b) That on the day of the stabbing, he had arranged to meet Mr Rouse to buy drugs for an associate. He asked his friends to sharpen a knife so he could take it with him for protection, due to concerns after the earlier incident with Mr Rouse. During the incident, the knife was in his left pocket and he kept his hand on it ‘just in case’;
(c) That in response to being asked why there was an issue between him and Mr Rouse, the applicant said, ‘there wasn’t meant to be, it’s just ‘cause apparently I said shit to this chick about [him], and that’s what started it again’;
(d) That he met Mr Rouse on Vincent Road prior to the incident, and the deceased was behind them. Mr Rouse accused the applicant of ‘talking shit’ about him;
(e) That ‘I went to turn around to walk away, [the deceased] come up and hit me in the back of the head. He got about three hits and then I, like, pulled out the knife, and I, like told him to just, you know, back off. And then he, like, jumped on top of me… I, like, swung my arms… hit him... just felt heaps of blood’
(f) That Mr Rouse was standing about a metre and a half away watching, and then after the stabbing straddled the applicant on the ground and began punching him in the back of the head. He eventually evaded Mr Rouse and ran home to his sister’s house.
The applicant was then photographed with bruising on his forehead, arm and leg, grazing on his arm and knee and approximately 30 small vertical scratches on his left buttock.
Witness evidence
The witness Brody Rouse provided police two statements regarding the events of 21 August 2021, in summary saying:
(a) he was feeling depressed, so he and the deceased went for a walk to clear his head, and as they were walking toward the park he noticed someone behind them and realised it was the applicant;
(b) the meeting was not planned, and was not related to drugs;
(c) he said to the applicant, referring to allegations that the applicant had been talking maliciously about him to peers, ‘look mate I don’t want any more shit’;
(d) he and the deceased went to walk away inside of the fence line of the park, but the applicant punched the deceased so he stood back ‘so they could sort it out’;
(e) the applicant pulled out a ‘curved folding knife with a black handle’ with his right hand and swung it at the deceased. Mr Rouse didn’t see the knife connect but saw the applicant remove it;
(f) he pulled the applicant off the deceased, grabbed the knife by the blade and punched the applicant several times. The applicant ran away.
Two unrelated witnesses who were driving along Ryan Avenue and stopped at Vincent Road saw three males standing and talking near Scout Park. One of them recognised Mr Rouse and observed that he was standing a short distance away from the other two.
Another witness, who was driving west along Vincent Road, saw a male run across the road towards two males wrestling near the fence line inside the park. He turned around and drove past again, observing ‘two guys on top of one guy’ and ‘arms going everywhere’.
Off-duty police officer, Juan Martorana, was walking through the park when he saw and heard three males fighting and ‘moving in a group’ approximately 80-100 metres away. He could not tell who was throwing punches. Mr Martorana yelled at them to stop, but as he ran towards them saw one male step away and fall to the ground. He then yelled at Mr Rouse, who was at that point straddling and punching the applicant, and Mr Rouse turned to him and said, ‘he stabbed him in the throat’. The applicant ran off.
Investigation
Analysis of seized exhibits including blood stained clothing, towels and the mobile phone of the deceased have not been completed. The report from the post-mortem analysis on 22 August 2021 has also not yet been completed.
Police received a screen shot of a since-deleted social media post by Ms Massey-Chase on 22 August 2021 offering an explanation for the incident, stating that the applicant had started seeing Brianna Simpson and had made offensive remarks about Mr Rouse to her. Ms Simpson told police she had told Rouse about the comments.
Outstanding matters
At the time of the offending the applicant was on bail on three matters and on summons on three other matters. Four of these matters relate to offending in New South Wales (‘NSW’). A summary is as follows:
Informant Faitarouni (NSW - summons)
On 16 February 2021 the applicant engaged in an argument with Sharon Hamilton over payment for labour work, damaging an automatic gate on her property. He was charged with one count of damaging property on 16 February 2021 and is on summons to appear at Waverley Local Court on 30 November 2021.
Informant Cleverly (NSW - bail)
On 6 April 2021 the applicant was in an argument with his former girlfriend (‘CH’) and threw a remote control at her. The following morning, he damaged her mobile phone by knocking it from her hand and assaulted her a number of times, squeezing her throat and punching her to the back of the head. During his arrest for this incident, the applicant threatened self-harm and damaged the bonnet of the police vehicle by head-butting it. He was charged with two counts of common assault, damaging property and two counts of choking. He was granted bail on 7 April 2021 and is due to appear in Blacktown Local Court on 22 November 2021.
Informant Henson (NSW - bail)
On 12 April 2021 the applicant was driving dangerously with CH in the passenger seat and threatened to kill her and himself. She attempted to call police but the applicant pulled her toward him by the hair and punched her to the head, refusing to let her out of the car. He was charged with common assault, breaching an apprehended violence order (‘AVO’), stalking and driving dangerously. He was granted bail on 13 April 2021 and is to appear in Blacktown Local Court on 22 November 2021.
Informant Wheeler (NSW - summons)
The applicant contacted CH by phone, in breach of the AVO, and then later that day jumped in front of her car and verbally abused her. He was charged with one count of breaching an AVO and is on summons to appear at Blacktown Local Court on 8 December 2021.
Informant Davey (Victoria - bail)
On 3 May 2021 the applicant was involved in an altercation with an associate, Luke Clark, and began driving his car in Wangaratta whilst Mr Clark was still hanging onto the driver’s door. Mr Clark removed the keys from the ignition, resulting in the steering column locking and the car crashing into a traffic sign. Police attended and the applicant admitted to being the driver of the vehicle, and subsequently threatened to stab Mr Clark. He was arrested and charged with threat to kill, threat to inflict serious injury, drive whilst suspended and drive vehicle not in roadworthy condition before being granted police bail on this date. This matter is next listed for mention on 29 November 2021 in the Wangaratta Magistrates’ Court.
Informant Stephenson (Victoria - summons)
On 25 June 2021 the applicant was stopped in Wodonga by Victorian police who conducted checks on his NSW licence which indicated it has been disqualified. At the time COVID-19 restrictions were in place and the applicant could not provide police with a valid reason for leaving his home. Whilst retrieving items from his car, the applicant threw the keys and they were not able to be located. He was charged with driving unlicensed, hindering an emergency worker and failing to comply with a Chief Health Officer direction, and is on summons to appear at Wangaratta Magistrates’ Court on 5 April 2022.
The applicable legislation
The applicant is charged with murder which is a Schedule 1 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’).[1] Bail must be refused unless he can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2] In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including those prescribed in s 3AAA(1) of the Act.[3]
[1]Bail Act 1977 (Vic) sch 1, item 2.
[2]Ibid ss 4AA(1), 4A(1A) and 4A(2).
[3]Ibid s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[4] In considering this, the Court must take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[5]
[4]Ibid, ss 4D(1)(a) and 4E.
[5]Ibid s 4E(3).
Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[6]
[6]Ibid s 1B(2).
Family violence risks
Section 5AAAA(1) of the Act requires the Court to make inquiries of the prosecutor as to whether there is in force against the applicant a family violence intervention order, family violence safety notice or a recognised domestic violence order. The respondent has confirmed that the applicant is currently subject to an AVO protecting CH, which was made in April 2021 in NSW.
The applicant’s personal circumstances
The applicant is 18 years old and that is, of course, significant. He grew up in regional Victoria. He completed year 10 and has worked casually as a labourer but was unemployed at the time of the alleged offending. He has a history of anxiety, depression and drug use.
Criminal history
The applicant has a limited criminal history comprising of driving offences committed in Victoria and NSW.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Nature and seriousness of the alleged offending
It is conceded that the nature of the allegations against the applicant are serious. It could hardly be otherwise. I prefer the description, extremely serious.
Strength of the prosecution case
The applicant submitted there are significant prospects of acquittal on the grounds of self-defence based on the current evidence. There are issues surrounding the reliability of evidence given by Mr Rouse, which contradicts accounts given by the applicant and independent witness, Mr Martorana. It is early in the process however and difficult to assess the manner in which the evidence will be analysed and used by the eventual jury.[7]
[7]DPP v Jason Ghiller [2000] VSC 435, [43].
Criminal History
The applicant submitted that his limited criminal history of only one court appearance in 2021 for driving offences favours a grant of bail. It is not disputed that he was on bail at the time of the offending, however the charges are denied.
Stable accommodation and family support
If granted bail the applicant proposes to reside with Ms Susan Spargo, a family friend of three years, who has offered accommodation at her home at [redacted], where she resides alone. Ms Spargo gave evidence on the hearing of the application confirming her willingness for the applicant to live with her. [Redacted] is some 25 kilometres from Wangaratta and it is accepted by all that it is in everybody’s interests that the applicant stay out of the greater Wangaratta area. In the course of giving her evidence, Ms Spargo gave an undertaking to the Court that, should the applicant be granted bail and fail to reside at her address as ordered, she would report this to the appropriate authorities.
Youth
In support of the application it was submitted that the applicant’s youth is a relevant consideration particularly given that he has been placed in adult custody. Mr Sala of counsel on behalf of the applicant placed significant weight on the applicant’s youth. The desirability of limiting his exposure to an adult custodial environment was emphasised on his behalf. This is a matter of some consequence. Of course, the reality is that if the applicant is found guilty of either murder or manslaughter the ability to limit his exposure to a custodial environment falls away.
Availability of bail support services
The applicant sought to rely on support in the community through Youth Justice, if granted bail. However, as of 11 November 2021, he was assessed as unsuitable due to Youth Justice requiring further time to assess his proposed residence (which now cannot be with his family in Wangaratta, due to threats from local community members), and make relevant inquiries and referrals with local services.
With an adjournment of the matter to enable the Youth Justice process to be completed, it became clear that they would support supervised bail for the applicant. The evidence is that the Wodonga Youth Justice office have agreed to facilitate case management of the applicant, so he does not need to attend Wangaratta for any supervisory obligation. They can also source drug and alcohol counselling and mental health assistance in Wodonga. The Wodonga staff will actually attend the residence in Markwood to see the applicant to alleviate pressure on him to try to get to that area.
Ms Hanna Meyer of Youth Justice gave evidence on the hearing of this application that Youth Justice have a stringent breach policy. Ms Meyer’s evidence was that if the applicant were to breach conditions of bail or otherwise not engage with Youth Justice, the informant would be notified as soon as possible.
COVID-19 and onerous conditions in custody
Upon being remanded in custody, the applicant was placed in protective quarantine at the Metropolitan Remand Centre where he remained in isolation from 25 August until 8 September 2021. The applicant is said to have then been held in isolation in a transfer unit from 3 November 2021. Between 3 and 6 November 2021 the applicant was permitted 20 minutes outside of his cell daily, however from 7 November he was not allowed out at all. On 12 November 2021, the applicant was transferred to Barwon prison and placed in the Banksia Management Unit. Due to the COVID-19 pandemic, in-person visits and access to services have been restricted with no indication of when this may change. This is the applicant’s first time in adult custody and the three months he has spent on remand to date are said to have had a salutary impact on him and emphasised the importance of complying with conditions of bail.
Delay and likely sentence
This matter is in the early stages and will face delay in reaching trial, which the applicant’s solicitor estimated will be ‘well into 2023’. Upon appropriate enquiries being made with the Supreme Court Criminal Registry it became apparent that this matter would realistically reach trial by late 2022 or early 2023. Although it was conceded on behalf of the applicant that all matters in the higher courts are currently subject to similar delay, it was submitted that this does not render the delay acceptable, especially when considered through the lens of the applicant’s youth and the triable issues favouring the possibility of an acquittal. It was conceded that, if convicted, the applicant will face a significant term of imprisonment.
Unacceptable risk
The applicant concedes that there are risks in this case, but proposes strict conditions of bail to address and manage these, including a fixed residence, reporting to police, curfew, only possessing one phone and providing details to the informant, not contacting witnesses, not leaving Victoria or attending any international departure point, and any other conditions the Court or the informant deem necessary. To the extent that the respondent relies on phone calls from custody as elevating risk, it was submitted that any bravado displayed on the phone is not necessarily a true indication of the applicant’s plans upon release.
The respondent’s contentions
The respondent opposed the application on the basis that the applicant has not demonstrated exceptional circumstances that justify the grant of bail, and further that he poses an unacceptable risk of committing an offence whilst on bail, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody in accordance with conditions of bail.
In response to the applicant’s contentions, the respondent made the following submissions.
Strength of the prosecution case
The respondent does not agree that the prosecution case is weak or that there are strong prospects of acquittal, and in any event submitted that a possible acquittal does not of itself amount to an exceptional circumstance. As to the question of the strength of the charge of murder, as opposed the alternative of manslaughter, Ms Holmes of counsel submitted that if the Crown were to prove murderous intention to cause a really serious injury by virtue of “swinging” what will be alleged to be a hunting knife at the deceased, in circumstances where at least one witness says that during the discussion between the three parties the applicant started assaulting the deceased, it is likely that the charge of murder will be pursued.
The respondent disputes that self-defence is available to the applicant, submitting that his conduct was not necessary and that he could not have believed that he was in danger of death or serious injury. Further, it was noted that the applicant brought the knife, had his hand on it ‘just in case’ and stabbed the deceased because he ‘just wanted him to stop’.
It was conceded that certain elements of the accounts of witnesses Mr Rouse and Mr Martorana are inconsistent, however submitted that this does not render the prosecution case as ‘not strong’ or make an acquittal likely.
Criminal history
The respondent conceded the applicant has a limited criminal history.
Views of the victim’s family members
The informant has spoken with the family and partner of the deceased, who expressed strong opposition to bail. They noted that the applicant was on bail at the time the deceased was killed and expressed concerns that he may be given the opportunity to take someone else’s life.
Delay
The respondent submitted that the delay in this matter is not extraordinary. Further, the pandemic in itself is not exceptional, particularly in the context of this case, where the likely term of imprisonment to which the applicant would be sentenced if found guilty would significantly exceed any period of remand in custody.
COVID-19 and onerous conditions on remand
The respondent submitted that conditions on remand are not exceptional when weighed against the significant term of imprisonment that would be imposed if the applicant is convicted.
The respondent relied on the following statement made by the applicant to his girlfriend, during a recorded telephone call on 15 September 2021, to submit that the applicant does not appear to finding his time in custody difficult:
I’m gonna try and change gaols… this one is fucking putrid. I mean, I like it, I like gaol… but not this one.
Unacceptable risk
Committing an offence
The applicant was on bail and summons across various matters in both NSW and Victoria at the time of the alleged offending, and his compliance with his legal obligations in both states was poor. It was submitted that he has demonstrated that he poses an unacceptable risk of committing offences and has an inability to comply with Court orders. Further, it was submitted that the applicant’s recent history shows a pattern of violence and aggression, including head-butting a police car, breaching an intervention order immediately upon release from custody, making threats to kill in police presence and what is described as serious family violence offending.
In addition, the respondent referred to the following statements, made by the applicant to his girlfriend during a recorded telephone call on 30 October 2021, as evidence that the applicant plans on both trafficking drugs (‘gear’ being a purported reference to methylamphetamine) and obtaining a firearm if granted bail:
You know how [Wangaratta] never has gear, yeah, and it’s always expensive? I got something lined up so I can, like, come in cheaper…
I’ve got [a gun] lined up too, for when I get out.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent referred on the following statement made by the applicant during a recorded telephone phone call with his girlfriend on 29 September 2021:
I’m gonna get all the statements… when I get my brief… and if [persons who have made statements] ever come to gaol, they’re fucked… If I get statements and, like, photocopy them and pass them around, if they ever come to gaol, it’s not, like, me they have to worry about…
In this context the respondent expresses concern that the applicant will seek to obtain retribution against witnesses who have made statements against him.
Failing to surrender into custody in accordance with conditions of bail
The applicant previously failed to answer bail, on 2 August 2021.
Analysis and Conclusion
In a different bail context, the Court of Appeal has recently said that ‘exceptional circumstances’ means circumstances which are ‘truly exceptional’, which may unwittingly highlight the somewhat elusive nature of the test.[8]
[8]Maddeffri v The Queen [2021] VSCA 332, [34] (Emerton and Osborn JJA).
Be that as it may, the first point to note is that the applicant is charged with the offence of murder which is rarely a charge where bail is granted, given its seriousness. The nature and seriousness of the charge is a factor to be taken into account when considering whether the applicant has established the existence of exceptional circumstances. This offending is particularly serious as it is alleged to have been an unprovoked attack on the deceased, though that is likely to be in issue at trial.
This application tests the bail principles to a degree. The prospect of an 18 year old being held in custody for the next 18 months seems to me to be at odds with a volume of jurisprudence about youths in custody and the deleterious effect that has on them and their prospects of rehabilitation.[9] In my view, the sentencing principles pertaining to the rehabilitation of youthful offenders have some relevance in applications such as this. However, it must also be recognised that I am not sentencing the applicant but hearing his application for bail in circumstances where, in about 18 months, it could be very likely that he will be facing a lengthy prison sentence. If the time between now and the hearing of the applicant’s trial can be used to improve his personal circumstances and divert him from any further offending then his overall circumstances will nonetheless be improved.
[9]See R v Mills [1998] 4 VR 235, 241; Azzopardi v The Queen [2011] VSCA 372 [34]–[36].
Mr Sala of counsel made plain that in his submission his client’s age is the most significant feature of this application, which he described as a pressing issue, coupled with the effects on people in custody of the preventative measures taken to avoid the spread of COVID-19 in the prisons.
Ms Holmes of counsel for the respondent argued that exceptional circumstances have not been established and relied to an extent on the perhaps unexpected positive manner that the applicant is coping with custody at Barwon prison. I suspect however that what he sees as positives about his present situation are not at all in his long term interest. The Banksia Management Unit at Barwon prison is hardly a place conducive to the positive development of this 18 year old young man.
Ms Holmes also relied on what she described as the continuous risk where, on the evidence, the applicant would be left to himself for long periods of time each day due to the employment commitments of Ms Spargo and the applicant’s mother. Ms Holmes also noted that, given the nature of the attack said to have been launched by the applicant, the protection of the community was not just a phrase but a real consideration in this case.
Ultimately of course I must resolve the application before me and resist the temptation to speculate about how this matter will resolve. I would have thought that it is most unlikely to result in a complete acquittal of the applicant, though such a result would appear possible on the evidence as it currently is.
In my opinion, though the charge of murder is of the utmost seriousness, I do not regard it as certain by any means that the applicant will be convicted of that offence by a jury. Whatever the fate of the foreshadowed self-defence argument, there will be an issue of substance in relation to proof of the element of intent. In addition, there is the youth of the applicant together with the fact that he is in adult custody at Barwon prison as afflicted by COVID-19 restrictions and the reality of a further 18 months or so of that being the case. Those matters, in combination, establish exceptional circumstances justifying a grant of bail.
The next issue then is the question of risk. There is clearly a risk in releasing the applicant, particularly if he re-establishes contact with his peer group in Wangaratta. I am not persuaded that those who have offered to support the applicant while on bail will be unable to prevent that. However, and is so often the case, the long list of strict conditions and some supervision by this Court is capable of diminishing the risk to an acceptable level. This is a young man with some very serious challenges ahead of him in his immediate future, as well as most of the rest of his life should his contact with the criminal justice system continue. The conditions I will impose are for his benefit and guidance. He can be assured that should they be breached the immediate outcome will be a return to custody.
Bail will be granted and I will make the following orders:
1.Zachary Johnson (‘the applicant’) is admitted to bail upon his own undertaking and with the following conditions:
(a)The applicant reside at [redacted] in the state of Victoria (‘place of residence’);
(b)The applicant not leave his place of residence between the hours of 8:00 pm and 7:00 am;
(c)The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of the Detective Senior Constable Gemin (‘the informant’) or his nominee, being an authorised member of Victoria Police;
(d)The applicant must notify the informant or his nominee at least 14 days in advance of any proposal to change to his place of residence;
(e)The applicant is to report to the Officer in Charge of Beechworth Police Station, or their nominee, every day between the hours of 8:00am and 5:00pm;
(f)The applicant not contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant, Ms Maddison Johnson and Ms Rachael Johnson;
(g)The applicant not possess a controlled weapon within the meaning of the Control of Weapons Act 1990 (Vic) without lawful authorisation under that Act;
(h)The applicant not commit ‘family violence’ within the meaning of the Family Violence Protection Act 2008 (Vic);
(i)The applicant comply with all current Family Violence Intervention Orders and any other nationally recognised Domestic Violence Order in which he is the respondent;
(j)The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
(k)The applicant not consume any alcohol whatsoever;
(l)The applicant provide a sample of his breath or oral fluid for testing upon the reasonable request of the informant or his nominee;
(m)The applicant is not to possess or use more than one mobile phone;
(n)The applicant is to provide the informant or his nominee with the phone number, IMEI number and any password or PIN of the mobile phone he possesses or uses within 24 hours of first having access to that phone and notify the informant or his nominee of any change of password or PIN of that mobile phone within 24 hours of that change;
(o)The applicant is to produce the mobile phone he possesses or uses for inspection upon the reasonable request of the informant or his nominee;
(p)The applicant is to provide any password or PIN for the mobile phone he possesses or uses upon the reasonable request of the informant or his nominee;
(q)The applicant not leave the State of Victoria;
(r)The applicant not attend any points of international departure;
(s)The applicant not attend the city of Wangaratta in the State of Victoria.
(t)The applicant surrender any current passport or travel document in his possession or control to the informant or his nominee within 48 hours of being released on bail;
(u)The applicant is not to apply for any such passport or travel document, whether directly or indirectly, or cause any other person to do so on his behalf;
(v)The applicant engage in treatment with Youth Justice and follow all lawful directions of any member of Youth Justice whilst engaging in such treatment; and
(w)The applicant is to appear at this Court at 10:00 am on 16 December 2021, for Initial Directions Hearing and for the purpose of judicial monitoring, and thereafter as directed by this Court.
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