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[2006] VSC 157
Supreme Court of Victoria
2006-04-26
KING J
Original judgment source is linked above.
1 On the 12th of April 2006 I heard an application for bail by Matthew Johnson ("the Applicant"). I do not propose to grant bail to the Applicant and these are my reasons.
2 The Applicant is charged with numerous offences arising out of three incidents. He was. at the time of the alleged commission of the offences relating to the first two incidents, a serving police officer, and a suspended police officer at the time of the alleged third incident.
3 The offences relating to the first incident are all alleged to have occurred on the 11th of February 2006, being:
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Aggravated burglary;
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Cultivating a narcotic plant;
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Theft of 18 cannabis plants;
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Traffick cannabis;
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Blackmail;
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Bribery as a police officer to fail to perform his duties;
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Wilfully neglecting to enforce the law.
4 The offences relating to the second incident are all alleged to have occurred on the 12th of February 2006, being:
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Extortion;
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Aggravated Burglary with a firearm;
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Blackmail;
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Exceeding his official authority by making demands with menaces.
5 The final offence which relates to the third incident is alleged to have occurred on the 10th March 2006, being:
6 There is no dispute that the Applicant is in a show cause situation and accordingly in those circumstances, section 4(4) of the Bail Act 1977 ("the Act"), requires that "The Court shall refuse bail unless the accused person shows cause why his detention in bail is not justified."
7 The application for bail is opposed. An earlier application for bail in the Magistrates' Court was refused on the 29th March 2006.
8 In the case of a person charged with an offence referred to in section 4(4) of the Act bail must be refused unless the accused person shows cause. The Applicant pursuant to section 4(4)(c) is in a show cause situation.
9 Equally, bail must be refused is the Court is satisfied that there is an unacceptable risk that the accused person, if released on bail, would:
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Fail to surrender himself or herself into custody in answer to their bail;
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Commit an offence whilst on bail;
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Endanger the safety or welfare of members of the public; or
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Interfere with witnesses or otherwise obstruct the course of justice whether in relation himself or herself or any other person.
10 The situation of the interrelationship between the unacceptable risk provisions of s.4(2)(d) and the show cause provisions of s.4(4) has been considered by President Maxwell in the unreported decision of Re Fred Joseph Asmar[1].
11 His Honour examined the question of whether this was a two step process, as stated by Justice Gillard in DPP v Harika[2]. Gillard J stated that the process entails firstly examining the material to ascertain if the Applicant had shown cause, and then if he has, the prosecution then bears the onus of establishing unacceptable risk. His Honour Maxwell P stated at page 5 of Asmar that there is no two step process that is to be undertaken by the Court, and the only question for the Court is "Has the Applicant shown cause why his/her detention in custody is not justified?"
12 The President then continued:
"This does not mean that the 'unacceptable risk' issues identified by s.4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person's pre-trial detention is justified. Parliament has made clear in s.4(2)(d) and in s.5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s.4(4) does) whether the person's detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.
There may, of course, be additional considerations which, in a particular case, might be said to justify the person's continued detention. But the four nominated risks must, as it seems to me, be at the forefront of the Court's consideration of the justification for the person's detention. Put another way, I do not see how the Court could be satisfied - as s.4(4) requires it to be - that the accused person's detention in was not justified, unless the Court was satisfied that there was no unacceptable risk on any of the four grounds."
13 The circumstances relating to the alleged offending cause me to believe that the Applicant is an unacceptable risk in relation to two of the criteria in s.4(2)(d) being that there is an unacceptable risk that the Applicant if released on bail would interfere with witnesses or otherwise obstruct the course of justice, and an unacceptable risk that he would commit further offences whilst on bail, more particularly, offences in respect of the witnesses.
14 The circumstances of alleged offending will undoubtedly be strongly disputed, and the Applicant will be able to call in his favour character evidence of considerable weight, being at the time a serving police officer. The witnesses for the Crown in relation to the alleged offending are equally persons of dubious background and with significant prior criminal histories.
15 It is relatively unusual therefore for alleged offenders of this nature to cause the Court such concern in respect of the potential for interference with witnesses and the obstruction of justice.
16 The offences are alleged to have occurred, in very brief form, in the following circumstances.
THE FIRST ALLEGED INCIDENT
17 The Applicant was a police officer attached to Footscray Police Station and in early February 2006 an unregistered informer supplied him with information about a hydronic crop of cannabis being grown in Thomastown. The Applicant, who was not rostered to work on either the 11th or 12th of February, told his supervisor that he intended to work on correspondence on those days. On the 10th of February 2006 the Applicant told the informer that he was going to get the drugs the next day.
18 On the 11th of February at 7.00 am the Applicant and an alleged co offender, a police officer by the name of Senior Constable Mark Armstrong went to the Thomastown address and identified themselves as police officers, they were armed at the time. They produced what the house owner believed to be a search warrant. A copy was not provided to him. The two police officers seized approximately 13 cannabis plants that had been growing hydroponically in a bedroom of the premises. One of the police officers then demanded money from the house owner to ensure that the matter did not proceed to court and arrangements were made to meet him later that day to obtain the money, the amount agreed was between $5,000 and $8,000. One of the males wrote down the name Matt and a mobile telephone number which corresponds with the mobile number of the Applicant.
19 The Applicant and his partner then attended the informer's premises to inquire about a location to enable them to dry the cannabis plants that they had seized, and the informer took them to premises in Rockbank, which had a house and several sheds on the premises. The cannabis was laid on large brown paper bags, being police exhibit bags, to dry out. The informer was told to go back to the premises the next day to check on the cannabis.
20 At about 6.30 that evening the Applicant rang the house owner and arranged to meet the house owner to receive the money. The Applicant and the co offender have then met the house owner and his wife and received $8000 from them on the Western Ring Road.
21 On the same afternoon the female owner of the Rockbank premises discovered the cannabis in the shed and rang the police at Melton who came and took the plants away as well as other materials such as gloves and paper bags that they found at the premises.
THE SECOND ALLEGED INCIDENT
22 The informer on returning to the premises the next day has found that the cannabis was missing and has called the Applicant and informed him of what had occurred. At the time the ex husband of the owner was on the premises. The Applicant attended at the premises and together with the informer approached the ex husband, the informer had a large black torch and the Applicant had a handgun, they forced the ex-husband to his knees and the Applicant asked for the mans licence which he produced. Both men were demanding to know where the cannabis was. The Applicant demanded the cannabis back or that he produce $35,000 for the missing cannabis and using his firearm threatened to kill the man and his family if he did not comply within 24 hours. They searched the property and the threat was repeated. The man reported this incident to the police.
23 The Applicant and the informer are alleged to have driven to the address on the licence and spoken to the man's estranged wife trying to establish if he lived there.
24 The house owner had not at this stage spoken to the police or complained about what had occurred relating to the theft of the cannabis.
25 An email was circulated throughout Victoria police including identikit compilations of the the alleged two offenders in respect of what occurred at Rockbank, on the 15th of February 2006.
26 On the 26th of February 2006 the Applicant approached his supervisor with a version of what had occurred at Rockbank and identifying himself as the person involved. His version involved it being a search as a result of what an informer had told him, although he had no warrant, and the person with him was not the informer but his co offender Senior Constable Armstrong. He said among other things that he did not report the matter because the cannabis had been stolen and the investigation could not be pursued any further.
27 Det Senior Constable Armstrong made a statement to similar effect on the 27th of February 2006.
28 The Applicant was suspended on pay from duty in late February. He was not charged at that time.
29 There are a number of inconsistencies within the version given by the Applicant and other independent evidence obtained by the investigating police. The case in relation to these matters could not be stated as either being strong or a weak case. It will depend on the totality of the evidence that is available to be presented. The informer and the house owner when originally interviewed both gave false statements relating to the incidents.
THE THIRD ALLEGED INCIDENT
30 On the 8th and 10th of March 2006, at the instigation of the Ethical Standards Department, the informer met with the Applicant. On both occasions the meeting was covertly recorded. On the 10th of March, the Applicant made a number of statements which have been transcribed.
31 Those statements which are made by the Applicant give a very strong indication that he had got, and intended to get, others involved with him to obstruct and pervert the course of justice. The statements recorded indicate clear threats being made about the safety of witnesses both in a physical way and via threats. They contain statements that he has other police officers and friends looking for the witnesses to threaten them about what they have told the police and to ensure that they do not give evidence against either the informer or himself. It includes statements to the effect that he had sent police officers around to the witnesses' premises to "rough him up".
32 All of this occurred whilst the Applicant was a suspended police officer, and threatening to use the resources of the police to check on the information being provided to the police against them, and to threaten, harass and intimidate witnesses. It is one of the clearest cases I have seen of a person attempting to pervert the course of justice and intimidate witnesses.
33 Counsel for the Applicant submitted that the words were mere bravado, and were designed to do no more than provide comfort to the informer who had, at that stage, not been charged with any offences relating to the Rockbank incident. Whilst there may be some small element of that contained within the Applicant's statements, it is my view that the statements are strong compelling evidence of the Applicant's intention to do all within his power to prevent his charging and conviction of the offences to which I have referred.
34 The co offender Det Sen. Constable Armstrong was charged with the same offences relating to incident one as the Applicant, and was granted bail shortly after being charged. He had no involvement in the second incident at Rockbank or with any threats to witnesses.
35 The applicant has no prior criminal history and at the time resided with his partner, also a police officer in premises that he was purchasing together with his partner in Maribrynong.
36 The history in respect of the applicant is that his father is a sergeant of Police stationed in Western Australia, and his mother as a receptionist for a law firm in Western Australia. Both remain supportive of the applicant and have visited him in custody in Victoria. The applicant has an extensive network of relatives within Victoria and ties to the jurisdiction. I have no concerns as to failure to appear.
37 It is clear that in all probability the applicant would have been granted bail if there had not been such disturbing threats in respect of witnesses and perverting the course of justice. That much is clear when you examine his history.
38 The applicant joined the Victoria Police force in May of 2001, and has been stationed at either Sunshine or Footscray Police station since that time.
39 The Applicant is currently being held in custody at a special unit of the Melbourne Assessment Prison, in less than desirable circumstances, which include being in 23 hour a day lockdown. During that one hour not in lockdown he is able to exercise. Material has been placed before me in the affidavit of Eleanor Lisa Coates, dated 7 April 2006 that the applicant is in fear for his safety as he walks through the corridors as he believes that the mainstream prisoners are aware that he is a serving member of Victoria Police. Equally he is concerned that as prisoners are preparing his meals they may attempt to harm him in some manner and he has accordingly lost 25% of his body weight in the past months.
40 I agree that these circumstances are most unfortunate, but equally the correction authorities have dealt with police officers being held in prisons previously and this is not a unique situation. Unfortunately a number of prisoners are held in less than ideal situations due to particular circumstances surrounding their own individual issues in custody, for example some of the persons held in respect of the so called gangland killings are kept in very strict custody, due to problems relating to their safety and the safety of others. I would certainly urge corrections authorities to examine the circumstances in which this applicant is held custody and ensure that he feels safe whilst moving about the prison and eating his food.
41 The other significant issue relates to his diagnosis of depression as referred to in the two reports tendered during this application by Mr. Ian Joblin, forensic psychologist, which were exhibited to the affidavit of Eleanor Lisa Coates. Those reports dated the 28th March 2006 and 31st March 2006 refer to the normal aspects of the Applicant's history including his relationships, and then deal with the issue of the Applicant's depression.
42 Mr. Joblin refers to the applicant having had depressive symptoms for approximately 18 months, and that they were due to issues at his work, he had lost the significant weight to which I referred earlier during that time. He had received treatment from his local GP in the form of anti depressant medication, but did not persist with that treatment as he felt he could not function as a police officer whilst taking the medication.
43 Mr. Joblin stated at page 4 of his report dated the 28th March 2006
"In my opinion Mr. Johnson's psychological state is such that he requires on going mental health attention, not only to address the symptoms of his depression but also to address issues relating to that diagnosis. That means reviewing not only the matters that he considered an issue at the Sunshine police station, but also matters that have been a concern for him over the years. This is a major task and, as indicated, simply will not occur in custody."
44 Mr. Joblin then refers to the problems relating to being in protective custody and concludes with this final paragraph.
"Against that, Mr. Johnson in my opinion is not psychotic. He has a good intellect. It is simply unfortunate that when he recognized the difficulties and attended his GP, he did not comply with the medication or seek further mental health assistance. That is now a matter of some urgency."
45 The further report of Mr. Joblin relates to the staffing number of psychologists, psychiatrists and psychiatric nurses at the Melbourne Assessment Prison. Whilst I agree that the numbers referred to are worrying, there is also evidence before me that the applicant has been able to access psychiatric help at the prison. He had no sought to utilize those services until after the initial refusal of bail, but since that time he has been seen by a member of the prison psychiatric staff on a daily basis, and was due to have a lengthy appoint with the prison psychiatrist the day after the bail application in this Court.
46 Depression is not an uncommon reaction to being arrested and imprisoned and accordingly I have no doubt that the prison authorities, now that they have been alerted to the situation, will be able to respond and deal with the mental health situation of the applicant appropriately.
47 For all of those reasons, whilst I agree that the situation of the applicant in respect of being in lock down for considerable periods of the day is unsatisfactory, and I have no concerns as to his failure to appear, my concerns in respect of his interference with witnesses and the course of justice is such that in my view he has not demonstrated that his detention in custody is not justified.
R
Johnson [2006] VSC 157