In the matter of an application for bail

[2002] VSC 205

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

IN THE MATTER OF THE BAIL ACT 1977

and

IN THE MATTER OF AN APPLICATION FOR BAIL BY BENITO MACCIA

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 MAY 2002
DATE OF JUDGMENT:	3 JUNE 2002
CASE MAY BE CITED AS:	IN THE MATTER OF AN APPLICATION FOR BAIL BY BENITO MACCIA
MEDIUM NEUTRAL CITATION:	[2002] VSC 205

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CATCHWORDS:      Bail – Onus on applicant to show detention in custody not justified – Failure to satisfy onus.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. C. Heliotis QC	Galbally & O'Bryan
For the Director of Public Prosecutions	Mr. S. Cooper	Solicitor for Public Prosecutions

HIS HONOUR:

1. I have before me an application for bail on behalf of Benito Maccia.

1. The applicant is presently aged 62.

1. On 19 June 2001 the applicant was arrested and charged with 27 offences including incitement to commit murder, incitement to commit conduct endangering life, conspiracy to commit aggravated burglary, extortion, stalking and criminal damage.

1. On 20 March 2002 the applicant was committed to stand trial in this Court.

1. The Crown case is that between November 2000 and June 2001 the applicant hired a co-accused named Medini to make threats to the victims who are all members of the one family, for the purpose of extorting money from them.

1. It is alleged that the threats involved the damaging of cars owned by the victims, the arson of one of the victim's cars and the firing of shots into the victims' houses.  A covert police operative was hired by the applicant to kill one of the victims named Slavoljub Taveski and discussions took place between the applicant and the covert police operative concerning the aggravated burglary on a house at St. Albans.

1. Many of the applicant's conversations were secretly recorded including those between the applicant and the covert police operative.

1. The applicant's co-accused Medini has pleaded guilty to the charges brought against him and on 15 February 2002 was sentenced in this Court to a term of four years' imprisonment with a non-parole period of two years.

1. The applicant's co-accused gave evidence against the applicant at the applicant's committal and it is the intention of the Crown to call him as a witness at the applicant's trial.

1. Having regard to the nature of certain of the charges laid against him there is an onus upon the applicant to show cause why his detention in custody is not justified before the Court would be entitled to release him on bail.

1. To date four previous applications for bail made to the Magistrates' Court at Melbourne have failed on the ground that on each of the four occasions in question the applicant had not shown cause.

1. There are three basic matters relied upon by the applicant in support of his application namely:

(a)the applicant's age and personal circumstances including the fact that he has no prior convictions;

(b)the financial deterioration of the applicant's business since he has been in custody;  and

(c)the delay in the provision of evidence by the informant, in particular the provision of transcripts of the various tape recorded conversations which will delay the applicant's trial.

1. In my opinion none of those matters, whether regarded singly or overall, are sufficient to justify releasing the applicant on bail.

1. In the first place the offences with which the applicant has been charged are most serious and the Crown case against him is particularly strong.

1. If the applicant is convicted of the more serious charges, in particular the charge of inciting a person to commit murder, he can be expected to be sentenced to a significant term of imprisonment.

1. Whilst I am mindful of the evidence of the applicant's accountant concerning the effect the applicant's incarceration is having on the applicant's business I do not consider in the circumstances of this case that that factor outweighs those justifying the applicant's continued detention in custody.

1. As to the question of delay the evidence given before me relating to the tapes is that copies of the tapes were made available to the applicant's solicitors on 19 October 2001 and the transcripts of the tapes which have now been prepared and which are presently being proof read, will be made available to the applicant's solicitors in a week's time.  In that situation there is no reason why the applicant's trial cannot proceed in October/November 2002 as anticipated.

1. Further factors militating against the applicant's application for bail is the strong fear held by the police that if the applicant is released on bail he may well interfere with Crown witnesses and their belief that the applicant has been offering a sum of $20,000 to inmates at the Port Phillip Prison to have the co-accused Medini killed.

1. Because of their belief that the applicant has already attempted to induce someone to kill Medini, Medini is serving his prison sentence in protective custody.  That aspect of the matter was referred to by Gillard J in this Court at the time he sentenced Medini.

1. In all the circumstances therefore I am not persuaded that the applicant has satisfied the onus which rests upon him and his application for bail therefore must be refused.

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