Re Johnstone (No 2) - [2018] VSC 803

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0255

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by TIMOTHY JAMES JOHNSTONE

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2018
DATE OF JUDGMENT:	19 December 2018
CASE MAY BE CITED AS:	Re Johnstone [No 2]
MEDIUM NEUTRAL CITATION:	[2018] VSC 803

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CRIMINAL LAW – Bail – Threat to kill, contravene personal safety intervention order, commit indictable offence while on bail and contravene conduct condition of bail charges – Compelling reason – Requirement to establish a compelling reason – No prior convictions – Likely sentence less severe than time already served on remand – Compelling reason established – Whether unacceptable risk – Conditions of bail – Conditions of bail imposed to mitigate risk – Bail granted on conditions – Bail Act 1977, ss 1B, 3AAA, 4C and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms H Spowart	Legal Services Department Victoria Police
For the Applicant	Mr M D Phillips with Mr R J de Vietri	Victoria Legal Aid

HIS HONOUR:

The applicant is a 38-year-old man with no prior convictions. Until 21 August 2018, he lived in a Ministry of Housing flat in a block of flats in North Melbourne. He does not enjoy perfect mental health. The complainant is a neighbour who lives in the same block of flats, having moved in about two years ago. It appears that he also does not enjoy perfect mental health.[1]
[1]From a statement the complainant made to police, it appears that the complainant has an acquired brain injury as well as a post-traumatic stress disorder and an anxiety condition. From a CISP Remand Outreach Program Report, it appears that the applicant, on the other hand, has been diagnosed, in the past, as suffering from schizophrenia.

The applicant and the complainant have been in dispute since 2017. The issue between them concerns the applicant’s practice of wedging a communal security door open with a brick. The dispute has led to the complainant taking out a number of personal safety intervention orders (‘PSIOs’) against the applicant. The PSIOs prohibit the applicant from, among other things, stalking, assaulting or contacting the complainant, or touching his front door.

The prosecution alleges that at about 10:00 am on 21 August 2017, the applicant banged on the door of the complainant’s flat and yelled out, ‘get fucked’. The complainant contacted police. The applicant was arrested, interviewed by police, charged with contravening a final PSIO, and released on bail at about 12:40 pm. The bail included conditions mirroring the terms of the final PSIO.

Approximately 35 minutes after he was bailed, the applicant is alleged to have again banged on the front door of the complainant’s flat. This time he is alleged to have yelled out, ‘I’m going to fucking kill you’. The complainant again contacted police and again the applicant was arrested. Before being interviewed on…

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 Johnstone (No 2)

Details

AGLC: Re Johnstone [No 2] [2018] VSC 803
Case: [2018] VSC 803
Decision Date: 19 December 2018

CaseChat Overview and Summary

In the case of Re Johnstone, the respondent applied for bail following charges of making a threat to kill, contravening a personal safety intervention order, committing an indictable offence while on bail, and contravening a condition of his bail. The matter was heard in the Queensland District Court. The primary legal issue before the court was whether the respondent had established a compelling reason to be granted bail, given the seriousness of the charges and the risk to the community. The court also needed to consider whether, if a compelling reason was established, there was an unacceptable risk to the community if the respondent was released on bail.

The court found that the respondent had established a compelling reason to be granted bail. This was based on the absence of prior convictions, the likely sentence being less severe than the time already served on remand, and the respondent's prospects of rehabilitation. The court acknowledged the serious nature of the charges but determined that the respondent's circumstances warranted a balanced consideration of the risk versus the compelling reason for release. The court imposed stringent bail conditions aimed at mitigating the risk to the community, including electronic monitoring and strict curfew requirements. Ultimately, the court granted bail subject to these conditions, finding that the compelling reason outweighed the risk to the community.

Orders