DPP (Cth) v Barbaro - [2009] VSC 27

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1454 of 2008

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA	Appellant
v
PASQUALE BARBARO	Respondent

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2009
DATE OF JUDGMENT:	6 February 2009
CASE MAY BE CITED AS:	DPP v Barbaro
MEDIUM NEUTRAL CITATION:	[2009] VSC 27

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APPEAL – Bail – Appeal by DPP (Cth) against grant of bail by a Magistrate pursuant to s 18A of Bail Act – New facts or circumstances under s 18(4) of the Bail Act – Manifest error in granting bail – Bail should be refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B. Young	Director of Public Prosecutions (Cth)
For the Respondent	Mr C. Heliotis QC with Ms N. Gobbo	Acquaro & Co

DRAFT

HIS HONOUR:

Introduction

The Commonwealth Director of Public Prosecutions appeals, pursuant to s 18A of the Bail Act (Vic) 1977 a decision of a Magistrate on 19 December 2008 to grant bail to Mr Pasquale Barbaro, who is the subject of a number of serious criminal charges, all related to drug importation or trafficking in 2007 and 2008.

As this is a Director’s appeal, it is necessary for the Director to demonstrate that there was an error of law in the Magistrate’s decision or, alternatively, that the order is manifestly wrong.

If I am persuaded of either of these matters (upon which the Director bears the onus), then it will be necessary for this Court to determine whether bail should be granted.

Background to the charges

During 2007 and 2008, the Australian Federal Police (“AFP”) conducted extensive investigations and surveillance of a numbers of persons, including Mr Barbaro, primarily centering upon the importation of drugs of varying types into the country.

On 8 August 2008, Mr Barbaro was arrested by members of the AFP and charged with five separate criminal offences:

(a) That between 16 May 2007 and 3 October 2007 at Melbourne in the State of Victoria, he conspired with Saverio Zirilli and others to import a border controlled drug, namely a commercial quantity of MDMA, contrary to subsections 11.5(1) and 307.1(1) of the Criminal Code (Cth) 1995 (“the tomato container charge”).

(b) That between 24 January 2008 and 7 August 2008 at Melbourne in the State of Victoria, he trafficked in a controlled drug, namely a commercial quantity of MDMA, contrary to subsection 302.2(1) of the Criminal Code (Cth) (“the ecstasy trafficking charge”).

(c) That between 6 July 2008 and 7 August 2008 at Melbourne in the State of Victoria, he imported a border controlled drug, namely a commercial quantity of cocaine, contrary to subsection 307.1(1) of the Criminal Code (Cth) (“the cocaine charge”).

(d) That between 14 May 2008 and 7 August 2008 at Melbourne in the State of Victoria, he conspired with Anil Suri and others to import a substance, intending to use, or believing that another person intended to use,…

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] VSC 27
Case: [2009] VSC 27
Decision Date: 6 February 2009

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (Cth) versus Barbaro was heard in the relevant Australian court where the Director appealed the decision of a Magistrate to grant bail to Barbaro under section 18A of the Bail Act. The central issue in this appeal was whether the Magistrate had made a manifest error in granting bail, particularly in light of new facts or circumstances that arose under section 18(4) of the Bail Act. The Director argued that the bail should have been refused due to the significant implications of the new information.

The court had to determine whether the Magistrate's decision to grant bail constituted a manifest error and whether the new facts presented were sufficient to warrant a reconsideration of the bail conditions. The Director contended that the Magistrate had not properly weighed the new circumstances and that the decision to grant bail was therefore incorrect. The court's task was to review the Magistrate's decision to ensure that it was not only legally sound but also appropriately balanced the interests of justice with the rights of the accused.

Upon reviewing the Magistrate's decision, the court found that there had indeed been a manifest error in the granting of bail. The new facts presented a significant risk to the community and to potential witnesses, which the Magistrate had not adequately considered. The court concluded that the appeal should be upheld and that the bail should be revoked, thereby aligning with the Director's submission that the bail should not have been granted in light of the new information. Consequently, the court ordered that the bail be revoked, and Barbaro be remanded in custody pending further proceedings.

Orders