JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2017
DATE OF ORDERS:	10 October 2017
DATE OF REASONS:	11 October 2017
CASE MAY BE CITED AS:	DPP v Molinaro
MEDIUM NEUTRAL CITATION:	[2017] VSC 624	1^st Revision: 12 October 2017 Paras [50], [52] & [56]

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CRIMINAL LAW – Bail – Director’s appeal against magistrate’s grant of bail – Respondent charged with 35 offences relating to possession and trafficking drug of dependence, trafficking commercial quantity of drug of dependence, weapons charges and driving whilst disqualified – Whether grant of bail ‘reasonably open’ to magistrate – Error to have granted bail – Appeal allowed – Order granting bail set aside – Fresh application for bail on new material refused – Circumstances not exceptional – Respondent unacceptable risk of committing further offences while on bail – Bail Act 1977 s 18A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms J Warren	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr M P Allen	Grigor Lawyers

HIS HONOUR:

This is an appeal by the Director of Public Prosecutions (‘Director’) against an order made in the Melbourne Magistrates’ Court on 21 August 2017 granting bail to the respondent, Francesco Molinaro.

On 11 December 2016, the respondent was arrested and charged with a large number of offences. These included charges of possession and trafficking a drug of dependence, trafficking a commercial quantity of a drug of dependence, and a number of weapons charges. The respondent was also charged with driving whilst disqualified. There were 35 charges in total.

Subsequently, the respondent was granted bail on his own undertaking and with a $200,000 surety. Conditions of bail included daily reporting, and participation in a residential drug rehabilitation program, known as Recover Oz. Participation in that programme required the respondent not to possess or use a telephone except in the presence of a staff member, and not to have access to a computer or the like. It also required the respondent to provide weekly urine analysis results to the informant, upon request.

The Director relies upon the following grounds in support of this appeal:

1.That the learned Magistrate erred in granting bail to the Respondent in that it was not reasonably open to the learned Magistrate to conclude that the Respondent had demonstrated to the Court that he had established that he was entitled to be admitted to Bail because of the presence of ‘exceptional circumstances’ pursuant to s 13 of the Bail Act 1977;
2.That the learned Magistrate erred in granting bail to the Respondent in that it was not reasonably open to the learned Magistrate to conclude that the Respondent did not represent an unacceptable risk of committing an…

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 v Molinaro

Details

AGLC: Director of Public Prosecutions v Molinaro [2017] VSC 624
Case: [2017] VSC 624
Decision Date: 11 October 2017

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (Queensland) versus Molinaro, the Queensland Court of Appeal reviewed the decision of a magistrate to grant bail to the respondent, who faced multiple charges including possession and trafficking of drugs, trafficking of a commercial quantity of drugs, weapons charges, and driving while disqualified. The Director of Public Prosecutions had appealed the magistrate's decision, arguing that the grant of bail was not reasonably open due to the nature and seriousness of the charges, as well as the risk posed by the respondent if released. The court was tasked with determining whether the magistrate had erred in granting bail and if the appeal should be upheld.

The primary legal issues before the court were whether the magistrate had made an error in granting bail to the respondent and if the appeal should be allowed. The court examined the criteria under the Bail Act 1977, particularly section 18A, to assess whether the magistrate's decision was correct. The court considered the nature and seriousness of the charges, the respondent's criminal history, and the risk of reoffending if granted bail. The court also examined whether the magistrate had taken into account all relevant factors and whether the grant of bail was reasonably open.

The Court of Appeal found that the magistrate had erred in granting bail, as the decision was not reasonably open given the nature and seriousness of the charges and the risk of reoffending. The court concluded that the respondent posed an unacceptable risk of committing further offences while on bail. The appeal was allowed, and the order granting bail was set aside. The court also refused the respondent's fresh application for bail on the basis that the circumstances were not exceptional, and the risk of reoffending remained. The court held that the respondent continued to present an unacceptable risk to the community if released on bail.

Orders