SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 515 of 2009
| PASQUALE BARBARO | |
| Appellant | |
| v | |
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Intervener |
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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 | 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…
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- AGLC
- DPP (Cth) v Barbaro [2009] VSCA 26
- Case
- [2009] VSCA 26
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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