Appellant v Respondent

1 This is an appeal[1] by the Director of Public Prosecutions against an order of the Magistrates' Court, made on 13 January 2017, granting bail to Stephen Johnstone on very serious driving charges arising out of a police pursuit of a stolen car.

2 On the evidence before him and in light of the conditions he proposed, the magistrate was not satisfied that there was an unacceptable risk that, if granted bail, Mr Johnstone would commit an offence and thereby endanger the safety or welfare of members of the public. Had his Honour been so satisfied, he would have been required to refuse bail.[2]

3 The Director's sole complaint is that, on the evidence before the magistrate, it was not reasonably open to fail to be satisfied that there was an unacceptable risk of that kind, such that bail had to be refused.

4 If I find that his Honour's conclusion was not reasonably open on the evidence before him, I must set aside his order and conduct a fresh bail hearing.[3] If, on the other hand, I find that his conclusion was reasonably open, I must dismiss the appeal, even if I might have come to a different decision on the same evidence.[4]

5 At first blush, his Honour's decision seems difficult to justify. On a closer examination, however, I have determined that it was reasonably open. Accordingly, I must dismiss the appeal.

6 The appeal was heard on 22 February 2017. On 3 March 2017, I made an order dismissing the appeal and gave a summary of reasons for my decision. At that time, I indicated I would publish more detailed reasons shortly. These are those more detailed reasons.

7 I turn first to the evidence before the magistrate. His Honour heard sworn viva voce evidence from the informant Senior Constable Benjamin Vandenberg and Mr Johnstone's grandmother Kaye Johnstone. He also received a report on Mr Johnstone from the Court Integrated Services Programme ("CISP").

8 S/C Vandenberg gave evidence to the following effect.

9 At about 4:50 a.m. on 19 December 2016, while conducting duties in an unmarked police car in Seaford, S/C Vandenberg and S/C Dan Burton noticed Mr Johnstone in what they believed to be a stolen BMW. They followed him covertly for the next 45 minutes. During that period, Mr Johnstone drove the BMW at speeds well in excess of the speed limit on both Eastlink and suburban roads.

10 Then, once the Police Air Wing was in position, S/C Vandenberg and S/C Burton attempted to intercept the BMW in Lilydale, but it evaded them. The pursuit was called off, but the Air Wing continued to follow the car, with S/C Vandenberg and S/C Burton also following at a distance. For the next 30 minutes, Mr Johnstone drove the car dangerously, including through red lights and on the wrong side of the road. At one point, he drove directly at oncoming traffic in an overtaking manoeuvre, which forced other drivers into evasive action. Eventually, Mr Johnstone dumped the BMW in Wantirna and fled on foot.

11 He was arrested nearby in Nottingham Square. Police found a small amount of methylamphetamine in his pocket. Some discarded Xanax tablets and the key to the BMW also were found nearby.

12 Mr Johnstone told police that he went to Seaford to buy drugs. He said that he obtained the BMW from the same people from whom he bought the drugs. He also said that he was aware that a police vehicle was following him from Seaford.

13 He was charged with thirteen offences, including theft of the BMW[5] (which is valued at $5,000), failing to stop when directed to do so by police,[6] dangerous driving while in a police pursuit,[7] reckless conduct endangering life,[8] committing an indictable offence while on bail[9] and possessing methylamphetamine.[10]

14 Mr Johnstone was aged 30 at the time of his arrest. He had been residing in Kilsyth with his de facto partner. He had been employed recently as a tree-lopper, but, as a result of low demand, was not in work now. He told police he had a history of drug use over approximately two years.

15 Mr Johnstone was on two grants of police bail at the time of his arrest. First, on 14 June 2016, he had been bailed from a police station on a charge of dangerous driving while in a police pursuit on 2 June. On 17 November 2016, he was bailed from a police station on charges of failing to stop when directed to do so by police on 12 November, as well as some dishonesty matters. S/C Vandenberg was not able to elaborate on the detail of these allegations.

16 Mr Johnstone was also subject to two community correction orders ("CCOs") at the time of his arrest. The first was a twelve-month order imposed on 11 May 2016 for charges of possession of a gun, possession of a controlled weapon, handling stolen goods and committing an offence while on bail. The second was a twelve-month order imposed on 1 September 2016 for charges of driving while suspended, contravening a conduct condition of bail and committing an offence while on bail.[11]

17 Later on the morning of the arrest, S/C Vandenberg spoke to Mr Johnstone's case manager at Community Corrections. The case manager advised that, contrary to the conditions of the orders, Mr Johnstone had failed to complete any community work, was not engaged in any mental health programmes and had failed to attend his last three appointments.

18 The case manager also told S/C Vandenberg that Mr Johnstone was assessed by the Australian Community Support Organisation ("ACSO") for drug treatment but was found to be unsuitable. When this issue was raised in evidence at the hearing, the magistrate stood the matter down so that the informant could seek further information from the relevant authorities. Upon the resumption, S/C Vandenberg said that the authorities advised him: first, that they had been told by Mr Johnstone that his drug use had commenced in February 2016, after the death of his grandfather; second, that they conceded that, despite the fact that each CCO contained a rehabilitation condition that he undergo drug treatment, Mr Johnstone was not invited to participate in a drug rehabilitation programme on those CCOs, because he was deemed, by them, no longer to require such treatment; and, third, that that decision was taken despite his telling them that he had been using "a point of ice a day" prior to his arrest. S/C Vandenberg agreed with the magistrate's suggestion that, in those circumstances, it could not be said that Mr Johnstone ignored the condition that he undergo drug treatment and rehabilitation.

19 The magistrate also received a report assessing Mr Johnstone as suitable for CISP. Part of that programme would involve supervision by a case manager and further assessment and treatment of his mental health and his drug problem. Mr Johnstone told the author of the report that he had a desire to re-engage in counselling over grief resulting from the sudden death of his grandfather, and was willing to consult his own doctor for a review of his mental health. He also reported using an average of half a gram to a gram of methylamphetamine daily, as a coping mechanism, since the death of his grandfather. The report recommended an episode of drug treatment and that he attend regular appointments with the CISP case manager for review of his progress. Mr Johnstone had never been involved in CISP before.

20 Mrs Johnstone's evidence included the following.

21 Prior to 2016, Mrs Johnstone's grandson was living with her and her husband, held a responsible job with a supermarket chain and did not appear to be using drugs when residing with her. However, by February last year, he had lost his job, had moved out to live with his partner, and his grandfather had died suddenly. Mr Johnstone took the death of his grandfather very hard and, it appears, descended into heavy drug use in the months that followed.

22 Mrs Johnstone was prepared to have her grandson live with her again and supervise and assist him on bail. She spoke to him in custody about drug use and the possibility of living with her if bailed. In her assessment, he was now "completely different" from the way he presented prior to his arrest, "clear in his mind" and "more like his old self". He did not want anything to do with the newer friends he had made, and a lot of his older good friends were wanting to reconnect with him. Further, she was aware that he had also been offered a job in tree-lopping again in the event of his being granted bail.[12]

23 Mrs Johnstone said that she and her sons were willing to drive Mr Johnstone to any necessary appointments to comply with his bail. She had supervised the bail of her brother-in-law many years earlier, who also had a drug problem. She was prepared to give up her current interests to supervise her grandson.

24 Mrs Johnstone also offered to put up $4,000 as surety, which was a substantial amount for her. She understood that, if her grandson failed to comply with his conditions of bail, she could lose that money.

25 Mrs Johnstone also promised that she would report her grandson to police if he failed to comply with bail conditions. In her view, if he did fail to comply, losing his bail "would be for his own good".

26 During the application, the magistrate stood the matter down, twice - once to allow the CISP assessment to be conducted and another time to allow S/C Vandenberg to obtain information regarding the drug treatment condition of the CCOs.

27 After hearing the evidence, during which he asked several of his own questions of the witnesses, and after hearing submissions from the police prosecutor and counsel for Mr Johnstone, the magistrate gave his decision. His Honour said this:

This is an application for bail. The applicant is in a "show case" position by virtue of being on bail on other matters at the time of these alleged offences.

I have had regard to a number of factors in the context of show cause and unacceptable risk.

The nature of the offences: they are very serious motor vehicle offences. Re-reading the summons, they [include] going through multiple red lights [and] going into the path of oncoming traffic whilst being pursued by police. It does not get much worse.

Strength of the evidence: very strong. He was apprehended at the scene [and] he has made admissions to drug use.

Supports: I have heard oral evidence from the applicant's grandmother. [She] strikes me as genuine and committed to providing support and reporting any breaches of bail to the informant. There is also a favourable report from CISP and there is some evidence of proposed employment.

I then turn my mind to whether [the] imposition of conditions would convert an unacceptable risk to an acceptable risk. Obviously, a whole range of conditions are available to me ... [I]t came out in evidence that a number of particular conditions, including a surety of $4,000, together with residential and curfew and reporting and compliance with CISP [conditions], would all be agreed to if I were to impose them.

Priors: it is an interesting profile, a 30-year-old man with nothing until a couple of years ago. It is another tragic case of someone falling into drug use and offending. However, that said, these offences occurred against a backdrop of two bails and two corrections orders, which does not inspire confidence in his capacity to comply with court orders.

Looking at his priors a bit more closely, they are for ... retention of stolen goods, there is a firearms offence, a weapons offence and then possess various drugs [and] go equipped to steal. The only driving matter there is Ringwood Magistrates' Court, 1 September last year, drive while suspended.

So this offending starts in June, driving dangerously. He is put on bail ... and then there are further [matters] - failing to stop offences - so he is put on bail on the [November] matter[s].

I am satisfied [by a] combination of factors that he has shown cause, and they are that: no offending until the age of about 28 and then this spate of offending. But I note due to some bureaucratic problem with Corrections he wasn't put on rehabilitation when he should have been. I am not saying that that is any excuse but I'm just stating it. Also, there is a favourable CISP report and there is family support. I am satisfied a combination of those factors shows cause.

I then turn my mind to whether there is an unacceptable risk of reoffending or failing to appear. That is a balancing act as well. ... [T]hese offences occurred on two bails ... and corrections orders. But I am satisfied that, [by] the imposition of conditions, an otherwise unacceptable risk has been converted to an acceptable risk. For those reasons, bail will be granted.

28 His Honour then granted bail on Mr Johnstone's own undertaking with a surety in the amount of $4,000 and conditions that he: (1) report daily to police; (2) reside at his grandmother's address; (3) not leave that place of residence between 9:00 p.m. and 7:00 a.m.; (4) comply with all requirements of CISP; (5) not drive a motor vehicle; (6) not consume alcohol; and (7) not use a drug of dependence without lawful authorization.

29 After giving his reasons, granting bail and specifying the conditions, his Honour spoke directly to Mr Johnstone. He told him that any failure to comply with these conditions - including any failure to comply with directions by those administering CISP - would be a breach of bail and would "see [him] back in the cells". The magistrate made it very clear that, were that to occur, Mr Johnstone would not get bail again.

30 Mr Boyce SC, who appeared on behalf of the Director in this Court, explained that there is no complaint of specific error in his Honour's reasons and none about his finding that Mr Johnstone had shown cause why his detention in custody was not justified.

31 Rather, as indicated earlier, the Director's sole complaint is that, on the evidence before the magistrate, it was not reasonably open to fail to be satisfied that, if granted bail, there was an unacceptable risk Mr Johnstone would commit an offence and thereby endanger the safety or welfare of members of the public, such that bail should have been refused.

32 Mr Boyce submitted that, given the evidence of the alleged offending, Mr Johnstone's prior criminal history, his admitted drug use and the fact that he was on two sets of bail and two CCOs, the latter of which he was not complying with, the starting point was that there was obviously an unacceptable risk that, if granted bail, he would offend again, and in a serious way.

33 He also submitted that there was nothing in Mrs Johnstone's evidence, or in any of the evidence generally, that demonstrated any material change in the situation that pertained before Mr Johnstone's arrest such that it might be said that the risk of his offending on bail had been ameliorated to an acceptable level. Nor, in his submission, could that evidence, when considered in conjunction with the proposed conditions of bail, be regarded as ameliorating the risk in such a way as to render it acceptable.

34 Mr McGlone, who appeared on behalf of Mr Johnstone in this Court, submitted that there was indeed a significant set of differences between the relevant circumstances at the time of his arrest and those at the time of the application before the magistrate. At the time of his arrest, Mr Johnstone was living in Kilsyth with his partner; was grief-stricken; was taking drugs; and, despite the conditions in the CCOs but because of the decision of those in authority, was not involved in any drug rehabilitation programme. By the time of the bail application, on the other hand, Mr Johnstone had the offer of residence with his grandmother, where he had been until February 2016; he would have the support and supervision of his grandmother and her sons (his uncles); he would be involved in a rehabilitation via CISP, the appointments for which his grandmother and uncles would ensure he attended; he had spent nearly four weeks in custody without drugs; he had the personal resolve and motivation to remain drug-free and offence-free; his grandmother had the additional financial incentive to ensure he complied with bail conditions; and he had the added incentive to comply so that his grandmother's surety and her trust were not put at risk.

35 These factors, submitted Mr McGlone, together with the proposed conditions of bail, allowed the magistrate to conclude that an otherwise unacceptable risk had been rendered acceptable.

36 The principles governing appeals under s 18A are well-settled. They were set out by J Forrest J in the appeal to this Court in DPP (Cth) v Barbaro[13] and also by the Court of Appeal (Maxwell P, Vincent and Kellam JJA), on a further appeal in the same matter, in Barbaro v DPP (Cth).[14] In both judgments, the following passage of the joint judgment of the Full Court in Beljajev v DPP (Vic) & DPP (Cth)[15] was extracted, with approval:[16]

It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this Court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.

In other words, the Director is not, in our opinion, confined to relying upon an error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.

There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first is that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike, appellate Courts have frequently refused to interfere with a primary judge's decision on a matter of practice and procedure.

37 When only the (rather troubling) part of the story is told, the decision to grant bail seems difficult to justify. The driving alleged reached high speeds, was very dangerous to the public, occurred not fleetingly but over a protracted period, and was designed to evade police. It is no exaggeration to say that one or more could have been killed, including Mr Johnstone, as a result of his alleged driving. In the seven months prior to this incident, Mr Johnstone had been released by police on bail, twice, on charges that also alleged respectively a police pursuit and a failure to comply with a police direction to stop. During the same period, he had also been sentenced, twice, on other charges and, on each occasion, was placed on a CCO, at least some of the conditions of which he has failed to fulfil. While Mr Johnstone's prior convictions commence only recently and are relatively few in number, among them are two convictions for failing to comply with the conditions of bail.

38 On that bald summary of facts, and without more, the only finding reasonably open would be that there was an unacceptable risk that, if granted bail, Mr Johnstone would commit a driving offence of a similar kind and thereby endanger the safety and welfare of the public. Having read the transcript of the hearing before the magistrate, my guess is that his Honour's initial thoughts were along those lines. Indeed, if that were the only evidence, I expect his Honour would have refused bail in a heartbeat.

39 But that was not the only evidence. The other evidence and considerations that appeared to shift his Honour's thinking came from at least four sources. First, there was the evidence of S/C Vandenberg to the effect that, as a result of a decision taken by someone administering the CCOs, Mr Johnstone had not been required to engage in drug treatment under those orders. Secondly, there was the favourable CISP report. Thirdly, there was the evidence of Mrs Johnstone, which, obviously, was crucial. Fourthly, there was the possible protective effect of strict conditions of bail, including daily reporting, a curfew, compliance with CISP, prohibitions on driving a car or using drugs or alcohol, and a surety of $4,000.

40 It is apparent, from the transcript of the hearing, that, instead of reacting in a knee-jerk fashion to the bald summary given earlier, his Honour carefully listened to, tested and weighed the further evidence that came from S/C Vandenberg, the CISP report and Mrs Johnstone, as well as the possible effect of strict bail conditions. He stood the matter down so that the CISP assessment could be done. Later, he stood the matter down again so that S/C Vandenberg could make the necessary inquiries concerning the drug treatment condition on the CCOs. His Honour asked his own questions of S/C Vandenberg and of Mrs Johnstone. For example, he asked Mrs Johnstone whether she had discussed with her family the possibility of her grandson living with them. She had. He asked her how she would feel about informing on her grandson if he failed to comply with bail conditions. She said it would be for his own good. He pressed her, and asked whether she was prepared to inform on him knowing that it would mean that he would go back to gaol. She said she was prepared to do so; and added that, when visiting her grandson on remand, she told him that, if he did not do the right thing, she would not be supporting him.

41 His Honour then heard submissions from the police prosecutor and counsel for Mr Johnstone before giving his decision.

42 While his Honour's reasons are not under challenge, in my respectful opinion, they are rather impressive given the time pressures under which magistrates operate, for they addressed all relevant considerations in a clear and balanced manner.

43 It is also apparent that, while a range of factors contributed to the ultimate decision, his Honour would not have concluded that an "otherwise unacceptable risk [was] converted to an acceptable risk", and would not have granted bail, absent the evidence of Mrs Johnstone. For it was Mrs Johnstone who provided the most important and compelling evidence concerning the changes in her grandson's circumstances since his arrest and the regime of support and supervision that would be in place were he to be granted bail.

44 In substance, I accept Mr McGlone's submission. In my view, while it would have been open for his Honour to conclude otherwise, it was open to him to accept that Mrs Johnstone's evidence, when combined with the other evidence he heard and the conditions he proposed, tipped the scales to the point that an otherwise unacceptable risk was converted to an acceptable risk. It was open to his Honour to regard the regime that was proposed for release was quite different from that which had obtained before Mr Johnstone's arrest. Before, he was living with his partner, with no drug rehabilitation in place and without any supervision. Now, having been in custody for nearly four weeks, he appeared drug-free, would be exposed to drug and mental health treatment via CISP and would return to live with his grandmother and uncles, where he would be supervised, taken to appointments and have general support. He knew that, if he failed to comply with any of his strict bail conditions, he would risk both losing his liberty and causing the forfeiture of his grandmother's surety, which she could ill afford. Further, Mrs Johnstone had detected a significant change in her grandson's attitude. These, and other matters, were important in assessing the risk presented by bailing Mr Johnstone.

45 The assessment of whether a risk is unacceptable or not is something about which reasonable minds can differ. The assessment of witnesses who give evidence relevant to such a risk assessment, and the weight of that evidence, is also something about which reasonable minds can differ. Indeed, I expect some, hearing the same case, might have assessed the evidence and the risks differently. That said, when sitting on an appeal, as I am here, I am confined to making what I can of the evidence based on the paper record before me. The magistrate, on the other hand, enjoyed the singular advantage of seeing and hearing Mrs Johnstone's evidence, which, as I have said, must have been crucial to his decision. His Honour was in the best position to assess whether her promises of support and supervision and whether her grandson's resolve, and her belief in him, should be accepted or acted on. His Honour was impressed by her evidence, and he was entitled be.

46 Thus, having regard to the principles set out in Beljajev, including the notion that there is imposed on an appellate court a severe restraint upon interference with orders made in matters of bail at first instance, as well as the fact that the magistrate had the singular benefit of seeing and hearing Mrs Johnstone give evidence, in my view, it was open to his Honour, on the evidence before him and in light of the conditions and surety he proposed, to conclude that he was not satisfied that, if granted bail, there was an unacceptable risk that Mr Johnstone would commit a driving or other offence of a similar kind and thereby endanger the safety and welfare of the public.

49 The affidavit material filed on this appeal on behalf of Mr Johnstone referred to various matters that were not before the magistrate. Among those matters was evidence that Mr Johnstone had been complying with his bail conditions in the interim. Mr Boyce advised that his instructions were that the informant had made his own checks and believed that evidence to be accurate.

50 While that was promising news, Mr Boyce and Mr McGlone both accepted that, in light of the reasoning of the Court of Appeal in Fernandez v DPP,[17] I was not to have regard to that evidence for the purposes of determining whether the magistrate's decision was open. Rather, such evidence would have been material to which I was entitled to have regard only if I came to the conclusion, based on the evidence before the magistrate, that his decision was vitiated by error, and that a fresh application had to be heard.[18] Accordingly, I have ignored that new evidence in coming to my decision.

51 The order of the Court is that the appeal is dismissed.

[1] Pursuant to s 18A of the Bail Act 1977 (Vic).

[2] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).

[3] See s 18A(6) of the Bail Act 1977 (Vic).

[4] See, e.g., Beljajev v DPP (Vic) & DPP (Cth) (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991) at 29-30 (discussed below).

[5] Contrary to s 74 of the Crimes Act 1958 (Vic).

[6] Contrary to s 59(1)(a) of the Road Safety Act 1986 (Vic).

[7] Contrary to s 319AA(1) of the Crimes Act 1958 (Vic).

[8] Contrary to s 22 of the Crimes Act 1958 (Vic).

[9] Contrary to s 30B of the Bail Act 1977 (Vic).

[10] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[11] It is not clear from the LEAP history, but the order (or perhaps another CCO imposed the day before) may also have concerned charges of possessing a weapon, possessing testosterone, possessing methylamphetamine, possessing an unnamed drug and going equipped to steal.

[12] It appears from the transcript that counsel handed up an unsigned document from the potential employer. But the document does not appear to have been tendered and it is not before this Court.

[13] DPP (Cth) v Barbaro [2009] VSC 27 at [2]- [3] & [15]-[18].

[14] Barbaro v DPP (Cth) [2009] VSCA 26 at [9]- [11].

[15] Beljajev v DPP (Vic) & DPP (Cth) (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991) at 29-30.

[16] I should add that, while the terms of s 18A are now different from those that obtained when these decisions were made, I have acted on the basis that the principles discussed in Beljajev are still applicable to appeals under the current version of s 18A.

[17] Fernandez v DPP [2002] VSCA 115; (2002) 5 VR 374 at 378[9], 391[33] & 391-392[35] (per Winneke P, with whom Charles, Batt, Buchanan and Vincent JJA each agreed).

[18] See s 18A(6) of the Bail Act 1977 (Vic). Again, I note that, while the terms of s 18A are now different from those that obtained at the time of that decision, I have acted on the basis that the principles discussed in Fernandez v DPP [2002] VSCA 115; (2002) 5 VR 374 are still applicable to appeals under the current version of s 18A.