JUDGES:	MAXWELL P, VINCENT and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2009
DATE OF JUDGMENT:	3 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 26

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CRIMINAL LAW – Trial – Bail – Anticipated two year delay before trial – Whether exceptional circumstances – Risk of flight overseas – Whether unacceptable risk – Whether proposed wearing of electronic bracelet made risk acceptable – Bail refused – Bail Act 1977 (Vic) s 4(2)(aa), 4(2)(d), 18A.

HUMAN RIGHTS – Right to be brought to trial without unreasonable delay – Bail – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 21(5), 25(2) – Whether enactment of Charter requires modification of approach to delay under Bail Act 1977 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Young	Mathew Sinnett, Director of Public Prosecutions (Cth)
For the Appellant	Mr P G Priest QC with Mr M J Croucher	Acquaro & Co
For the Intervener	Ms J Davidson	Attorney-General

MAXWELL P,
VINCENT JA,
KELLAM JA:

The appellant, Pasquale Barbaro, was charged in August 2008 with very serious offences relating to drug importation and trafficking.[1] He was remanded in custody. On 19 September 2008, a magistrate refused Mr Barbaro’s application for bail. On 19 December 2008, following a further application for bail relying on what were accepted to be new facts and circumstances, the same magistrate granted bail subject to very restrictive conditions.
[1]The charges are: conspiracy to import a commercial quantity of MDMA; trafficking in a commercial quantity of MDMA; importing a commercial quantity of cocaine; conspiracy to import a commercial quantity of a precursor drug; and dealing with the proceeds of crime, being cash in excess of $7.4 million.

The Commonwealth Director of Public Prosecutions, who opposed both applications for bail before the magistrate, appealed to the Trial Division of this Court pursuant to s 18A of the Bail Act 1977 (Vic) (‘Bail Act’) against the decision to grant bail. On 6 February 2009, Forrest J upheld the Director’s appeal. Pursuant to s 18A(6), his Honour quashed the order granting bail and ordered that bail be revoked. Mr Barbaro now appeals against that decision pursuant to s 17(2) of the Supreme Court Act1986 (Vic).

It was common ground before us that the issue raised by the Director’s appeal from the magistrate was the following:

Was it reasonably open to the magistrate on the evidence before him to conclude that Mr Barbaro did not represent an unacceptable risk of flight were he to be granted bail?

His Honour concluded that it was not reasonably open. We respectfully agree with that conclusion. The appeal must therefore be dismissed. Our reasons are as follows.
The applicable test for granting bail

Under s 4(2)(aa) of the Bail Act, the Court must refuse an application for bail by a person…

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 DPP (Cth) v Barbaro

Details

AGLC: DPP (Cth) v Barbaro [2009] VSCA 26
Case: [2009] VSCA 26
Decision Date: 3 March 2009

CaseChat Overview and Summary

In the case of DPP (Cth) v Barbaro, the respondent, Barbaro, applied for bail in the County Court of Victoria. The application arose from a dispute involving criminal charges. The primary issues before the court were whether the anticipated two-year delay before trial constituted exceptional circumstances and whether the proposed bail conditions, including the wearing of an electronic bracelet, sufficiently mitigated the risk of Barbaro fleeing overseas.

The court assessed the circumstances surrounding the potential delay and the risk of flight. It examined the legal framework provided by the Bail Act 1977 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). In particular, the court considered sections 4(2)(aa), 4(2)(d), and 18A of the Bail Act and sections 21(5) and 25(2) of the Charter. The court also weighed the respondent's right to be brought to trial without unreasonable delay against the risk of flight.

The County Court found that the two-year delay was exceptional and that the risk of flight was unacceptable. The proposed bail conditions, including the wearing of an electronic bracelet, were not sufficient to mitigate the risk of flight. The court concluded that the risk of Barbaro leaving the country remained too high, and therefore, bail was refused. The court's decision was based on the balance between the right to a timely trial and the need to prevent flight risk.

The final orders of the court were that Barbaro's application for bail was dismissed. The court determined that the exceptional circumstances and the unacceptable flight risk outweighed the considerations in favour of granting bail. The respondent remained in custody pending the resolution of the criminal charges.

Orders