In the Matter of an application for bail by Ryan Leigh Johns [2002] VSC 436 (10 October 2002)

Supreme Court of Victoria|2002-10-10|Before: Nettle J

Solicitor for Public Prosecution for the State of Victoria

This is an application for bail made on notice dated 20 September 2002 and supported by affidavits of the applicant's solicitor, Paul Thomas Galbally, sworn 20 September 2002, and the applicant's mother, Margaret Mary Johns, sworn 24 September 2002. I have also heard viva voce evidence from Mrs Johns this morning.

The application is opposed, and an affidavit of Zargi Kozaroff sworn 7 October 2002 and a statement of Detective Senior Constable Ian Maher made 25 September 2002 have been tendered as providing the basis of opposition.

The applicant, Ryan Leigh Johns, is remanded in custody, charged with one count of intentionally causing serious injury and one count of murder. The offences are alleged to have occurred in the early hours of Saturday 1 June 2002 outside the Village Green Hotel in Springvale Road, Mulgrave, shortly after closing time.

The applicant was then 19 years of age and the victim, one Aaron John Liskins, deceased, was a young man of 18 years of age. It appears that as the hotel closed and patrons began to depart, a series of skirmishes broke out at various places in the forecourt of the hotel. It is alleged that at one point during that activity the applicant delivered a deliberate, flying, tae kwon do style of kick to the head of the victim as he stood close by to the applicant.

According to the evidence to be adduced by the Crown, the precision and power of the kick were such as actually to lift the victim off his feet and to impel him literally head first into the pavement. The victim there passed into unconsciousness from which he was never to recover. The victim was taken by friends almost immediately to the Monash Medical Centre, where he underwent emergency neurosurgery and later intensive care, but, without ever recovering consciousness, he died at 1.15 pm on Monday 3 June 2002. A post mortem examination revealed, as one might expect, that the cause of death was head injury.

When the applicant was first interviewed by police at the Glen Waverley Criminal Investigation Unit on 1 June 2002 he stated that he had nothing to say, except that he had acted in self-defence. Acting upon legal advice, he refused to answer any further questions, responding to each with the words "No comment". He was at that time charged with intentionally causing serious injury and remanded in custody to appear at the Melbourne Magistrates' Court on 3 June 2002. He made no application for bail.

Following the death of the victim on 3 June 2002, the applicant was charged with murder of the victim and further remanded in custody to appear at the Melbourne Magistrates' Court on 23 September 2002. At a scheduling hearing before the Melbourne Magistrates' Court on 23 September 2002 the applicant was further remanded in custody to appear before the Melbourne Magistrates' Court for a contested committal hearing, which is listed for hearing on 31 March 2003, having been set down upon an estimate of duration of between seven to ten days.

Section 13 of the Bail Act 1977 directs that bail shall not be granted to a person charged with murder unless the court be satisfied that exceptional circumstances exist which justify the making of the order.

The circumstances which are said to be exceptional in this case are, first, the age of the applicant and his personal circumstances; secondly, what is said to be the lack of strength in the Crown case; and, thirdly, the lengthy period of time which the applicant would otherwise spend in custody before the committal hearing. It is submitted, moreover, that it is not just each of those things individually but the totality constituted of them which need to be borne in mind.

As I have already observed, the applicant was 19 years of age when the offences are alleged to have been committed and he will be only 20 years of age by the time of the committal hearing. It is tragic that someone as young as the applicant should now stand charged with murder. But it is equally tragic that a victim of only 18 years of age should have lost his life and with it all chance to experience the enjoyment which it might have brought. Taking age as an individual circumstance, I do not regard it as constituting a special circumstance in this case.

The personal circumstances of the applicant are that at the time of the alleged offences he was living with his widowed mother and his two sisters at his mother's home in Rowville, and he held two part-time positions. If released on bail it is said that he would again live with his mother and sisters, and there is evidence that, while the two part-time positions which he previously held are no longer available, there would be a position available for him as a factory trade assistant with the Knight Building Group, which is owned or operated by the applicant's uncle and nephew. Taken individually, I do not consider that to be exceptional.

Nor, I think I should say, do I consider that the intent to live with his mother and to work with Knights' provides any assurance that further offences would not occur. It is significant, I think, that the applicant was living with his mother and was employed when he committed earlier offences of recklessly causing injury, assault by kicking and assault in company, of which he was found guilty by the Ringwood Magistrates' Court on 19 July 2001. Indeed, at the time of the alleged offences in June 2002, the applicant was still bound by undertaking to the Magistrates' Court at Ringwood to be of good behaviour in respect of those earlier offences. There is also evidence of some further uncharged offences of serious assault alleged to have occurred on 14 October 2001, at which time, of course, the applicant was also living with his mother and his sisters and was employed.

As to the strength of the Crown case it is unnecessary and I think undesirable that I say a great deal. The applicant has the benefit of the presumption of innocence, and nothing which I say should be taken to trench upon it. But the applicant has put the strength of the Crown case in issue for the purposes of the application, and I have therefore read the whole of the prosecution brief of evidence, including all of the witness statements, in order to judge the issue. I have also taken into account submissions put to me this morning by Mr Richter of Her Majesty's Counsel on behalf of the applicant.

When one looks to the totality of the witness statements, and in particular the statements of the four witnesses, Tyrone Beck, Matthew Studd, Laif Vumebarker and Jahid Zamani, who are said to have observed the applicant deliver the fatal blow and the circumstances and manner in which he did, I am unable to discern any apparent weakness in the strength of the case for the Crown.

That is not to say that there may not be weaknesses of the kind upon which I have been addressed this morning by Mr Richter. But it is to say that in the position in which I find myself, on the basis of a limited amount and comprehension of the evidence, I do not regard the strength of the Crown case, as I perceive it for the present, as constituting a special circumstance.

That leaves the period for which the applicant would remain in custody before the committal hearing if bail is not granted. That period of time is regrettable, as is any period of incarceration for a man who is presumed to be innocent of the offence with which he is charged. But in a case of this kind I do not consider it to be exceptional.

That is not to say that, if after the committal hearing he is further remanded in custody, the circumstance of the period of incarceration might not then be regarded as exceptional, or at least, together with other factors, as capable of constituting exceptional circumstances. But it is to say that, for the present, I do not consider that the period of delay which will elapse before the committal hearing is an exceptional circumstance.

In my opinion, none of the three considerations identified, whether taken individually or with each other constitutes circumstances sufficiently exceptional to warrant the grant of bail.

In the result, and for those reasons, the application for bail is refused.

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)