Barbaro v Director of Public Prosecutions

[2004] VSC 404

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1486 of 2004

IN THE MATTER of an Application for Bail by MICHAEL BARBARO

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JUDGE:	Morris J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2004
DATE OF JUDGMENT:	12 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSC 404

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B. Bourke
For the Office of Public Prosecutions	Mr R. Scheid

HIS HONOUR:

1. Michael Barbaro has made application to the Court that he be admitted to bail pending the hearing of a number of charges against him in relation to various alleged offences.

1. Mr Barbaro is charged with an offence of cultivating a narcotic plant, namely cannabis, in a quantity that is not less than a commercial quantity applicable to that narcotic plant.  He is also charged with trafficking cannabis in a quantity that is a commercial quantity.  In addition to those charges there are a miscellany of other charges dealing with possessing various drugs of dependence.  He is also charged with some firearms offences.  He is charged with an offence relating to arson on a motor vehicle; and he is charged with various traffic offences including driving a vehicle whilst disqualified.

1. Section 4(1)(aa) of the Bail Act 1977 has the effect that, for Mr Barbaro to be admitted to bail, the Court must be satisfied that exceptional circumstances exist which justify the grant of bail. This arises by reason of the first two charges: which relate to cultivating and trafficking, in a quantity of cannabis that is a commercial quantity.

1. Mr Bourke, who appeared on behalf of Mr Barbaro, submitted that his client had not been supplied with any evidence that the quantity of the drug alleged to be cultivated or trafficked was of a commercial quantity.  But assuming that there is a paucity of evidence as to whether the quantity of the drug cultivated or trafficked was of a commercial quantity, it does not follow that this would take the matter outside of the reach of s. 4(1)(aa) of the Bail Act 1977 (and hence mean that exceptional circumstances need not be shown) because that section turns on what the person is charged with.  In this case Mr Barbaro is charged with two offences that fall within that provision.

1. However, I do accept that if the evidence before the Court casts significant doubt on the likelihood that a person would be convicted of cultivating or trafficking in a drug of commercial quantity, that would be relevant to whether or not exceptional circumstances exist.  If this were not so the provisions of s. 4(1)(aa) of the Bail Act 1977  could be abused by bringing charges against a person who had cultivated a drug, or had trafficked in a drug, less than a commercial quantity, but specifying in the charge that it was of a commercial quantity in order to trigger a more rigorous test in relation to bail.

1. I have before me a statement from Detective Senior Constable Vohmann of the Organised Crime Squad to the effect that the Victorian Forensic Science Centre, Botany Section has indicated that the weight of the cannabis crop was 32.5 kilograms, which I am informed is a commercial quantity of cannabis.  Bearing in mind that in these proceedings I must make the best of the material before me, I conclude that, in the absence of any evidence to the contrary, there is no basis to query the bona fides of the charges which allege that Mr Barbaro cultivated or trafficked cannabis in a commercial quantity.

1. The test which I am compelled to apply in considering whether to grant bail is a stringent one.  For many offences bail is presumed unless there is some argument against it.  For more serious offences it is necessary for the Court to be satisfied that there is an acceptable risk.  For even more serious offences, including trafficking in drugs in a commercial quantity and murder and treason, it is necessary that the Court be satisfied that “exceptional circumstances” exist.  Thus, by reason of the law, I have a duty to adopt a high hurdle in considering bail in this case.

1. It has been said that exceptional circumstances should not be defined; but, rather, one should examine the facts and see if those facts show circumstances which are exceptional.  This is the approach I propose to take.

1. Mr Bourke, on behalf of Mr Barbaro, put forward a number of factors which he submitted should lead me to be satisfied that exceptional circumstances exist.  I have already dealt with the contention about the quantity of the drugs and I do not regard that as bearing on the subject.

1. I now turn to the other matters.  Mr Bourke raised the issue that a Mr Callaghan, who was said to be involved with Mr Barbaro in at least the cultivation of the drug at a house in Coburg, had been granted bail.  I received no assistance from the Crown in relation to this.  It is a valid principle that where two people are charged with the same offence and their circumstances are the same, what goes for one is relevant as to what goes for the other.  But I simply do not know enough about the Callaghan case to know whether it is applicable to Mr Barbaro.  I do not know whether he was charged with other offences.  I do not know anything of his record.  I do not know of his family circumstances.  So I cannot draw much from the Callaghan situation that would be relevant in this case.

1. Mr Bourke says that the Crown case is not a strong case.  Frankly I find that a difficult submission to assess.  Mr Bourke may be right.  On the other hand, I cannot be satisfied that he is definitely or even probably right.  The serious drug offences relate to a period between June 2003 and October 2003; yet Mr Barbaro was not arrested until July 2004.  It is possible that that is consistent with the Crown case not being a strong case.  Equally, it is possible that as a result of intercept evidence obtained between October 2003 and July 2004 the case against Mr Barbaro strengthened, so as to persuade the police that they had a sufficient case to arrest him.  I do not see anything before me in relation to the strength of the Crown case that is so obvious or compelling as to satisfy me that this is a factor that exceptional circumstances exist.

1. I have before me evidence that Mr Barbaro needs health care in relation to asthma and matters pertaining to the bowel.  It does appear that he is being provided with health care whilst in custody.  I have no doubt that he could receive that health care if he was on bail and it may be superior health care.  But I do not see Mr Barbaro’s health as a factor that justifies me to conclude that his case is exceptional.

1. There is evidence that Mr Barbaro's wife and family are suffering as a result of him being in custody.  I find that evidence easy to accept.  When a person is placed in custody it not only affects that person but it usually has a very significant and substantial impact upon that person’s loved ones and family.  But I cannot be satisfied that that is an “exceptional” circumstance.  Rather, I think that this type of impact upon loved ones and family is a common result of a person being in custody.  I doubt that the Parliament had in mind that this would be embraced within exceptional circumstances.  It may be that family circumstances could sometimes amount to exceptional; but this is not such a case.

1. The other matter that was raised is the question of delay in the hearing of the charges.  Mr Bourke told me that the committal mention was scheduled for January 2005.  He said that the committal itself would be heard most likely in the latter half of 2005, possibly even the latter quarter of 2005.  He told me that a trial might be another 12 months later.  Mr Bourke submitted that the effect of these delays could mean that Mr Barbaro was held in custody for two and a half years, or thereabouts, before a trial was held when he would be either convicted or acquitted.  Obviously if he is acquitted, after two and a half years in custody, that would be a travesty of justice.

1. Mr Schied, who appeared for the Crown, submitted that it was premature to regard delay as sufficient to establish exceptional circumstances.  He argued that if the matter looked likely to be delayed for an unacceptable period, then it could be looked at again.  I have no doubt that it is true that the matter can be looked at again, but it does not follow that a case based upon delay can never succeed if it is brought shortly after a person is placed in custody.  Surely the matter turns on the evidence that is available, and the probabilities.

1. The delays that have been outlined to me seem quite unacceptable in a civilised society, with a modern criminal justice system.  These delays seem to be partly in collating evidence, partly within the various court systems, and partly in the prosecution area.  It is important that all those who have power over the matter do what they can to ensure, not only that persons charged with serious offences are brought to justice, but also that the process of justice is expeditious and fair.  It remains possible that the times set out above might be abbreviated by various actions on the part of those responsible; not just in advancing this case at the expense of other cases; but, indeed, in advancing all cases, so as to promote a more expeditious criminal justice system.

1. I find the resolution of this application a difficult one, because the case advanced by Mr Bourke in relation to delay is a powerful one.  But I am not sufficiently satisfied at this stage that the possible delay in the trial is sufficient to establish exceptional circumstances, which, as I have already indicated, constitutes a high hurdle.  In particular, it is still open for the matter to progress at an acceptable pace.  Only time will tell.

1. I should mention some other factors that are relevant and weigh in the balance, adverse to the application.  Mr Barbaro does not have a long criminal record.  Nonetheless he does have prior convictions, including what would appear to be a fairly serious prior conviction in relation to the possession of amphetamines.

1. Mr Barbaro is charged with more than two serious drug offences.  He is also charged with a string of other offences.  Some of those other alleged offences are serious matters, including the charges relating to firearms, arson, and also driving whilst disqualified.  I regard the driving whilst disqualified as relevant because it goes to the question of Mr Barbaro's respect for the law, and his willingness to comply with the law.

1. In order to grant bail I would need to be satisfied that there was an acceptable risk that, if released on bail, Mr Barbaro would not commit an offence whilst on bail.  I think that the other charges against him, and the material that I have before me in relation to them, casts some doubt on that.

1. Hence I am not satisfied that exceptional circumstances exist, notwithstanding the strong case Mr Bourke has advanced in relation to delay.  If the delay outlined by him is confirmed, or if a worse delay is likely, then consideration will need to be given on another occasion as to whether the high hurdle that is required to be satisfied can be overcome.  The application is refused.