In the matter of an application for bail by Mario Rocco Condello
[2004] VSC 409
•20 October 2004
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1489 of 2004
| IN THE MATTER of an Application for Bail by Mario Rocco Condello |
---
JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30 September, 1 October 2004 | |
DATE OF JUDGMENT: | 20 October 2004 | |
CASE MAY BE CITED AS: | In the matter of an application for bail by Mario Rocco Condello | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 409 | |
---
Criminal Law – Bail – Charges of Conspiracy to murder and Incitement to murder – Unacceptable risk assessments – Bail refused
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Horgan SC | Office of Public Prosecutions |
| For the Applicant | Mr A. Howard QC | Galbally Rolfe |
HIS HONOUR:
These are my reasons for dismissing an application for bail made by Mario Condello. The applicant is facing three charges. One is of conspiracy to murder Carl Williams, George Williams and another unnamed person. The second is of incitement to murder those persons. The third is of possession of a handgun. The main charges arise out of discussions between the applicant and two other men between March and June 2004. The applicant was arrested and charged on 17 June 2004. Also arrested on that day and charged with conspiracy to murder and incitement to murder was one of the two men, George Defteros, a solicitor. The third man was a registered police informer. I shall refer to him as 166.
A previous application for bail was made to a magistrate on 17 June 2004. Bail was then refused. A further application was made in August 2004. Later, when an application was made to withdraw that application for bail, a different magistrate permitted withdrawal, but on the basis that if a further application was made, it was to be made to her. The brief was served on 30 August 2004. I heard the application over three days commencing 29 September 2004, and reserved my decision. The applicant was then due to appear with respect to the charges at a committal mention hearing on 11 October 2004. By way of written submission that I have read earlier today, I am now aware that, on that date, a committal hearing date was fixed for 24 January 2005.
Each of the applicant (born April 1952), Defteros (born April 1956) and 166 (born February 1967) had had dealings with each other before 2004. The applicant practised as a solicitor for some years, until struck off the roll. Defteros acted as solicitor at times for each of the applicant and 166. In October 2003, 166 was arrested in South Australia. He was charged with attempting to purchase illegal firearms. 166 claims that it was an activity in which he was involved with the applicant. 166 says that, at the suggestion of the applicant, he consulted Defteros. That led to some social contact between Defteros and 166. 166 lived in the Daylesford-Hepburn Springs area. Defteros had a holiday home in the area.
On occasions from early March 2004 at Daylesford, Defteros and 166 had discussed the information and speculation in the media about a series of what I will call “underworld killings” of persons who had a criminal past or had criminal associations. Those discussions led to 166 agreeing to covertly record, as from 30 April 2004, conversations that 166 had with Defteros and the applicant. Several such conversations between Defteros and 166 were recorded between 30 April and 11 June. On five days (12, 13, 14, 21 and 28 May) conversations between the applicant and 166 were recorded. The two main charges against the applicant are substantially based on what was said during those recorded conversations, supported by what 166 says as to the background to, and the interpretation of, what was recorded. The firearm possession charge arose out of the finding of a handgun in the city unit where he was residing at the time of his arrest. The covertly recorded conversations are much related to underworld killings and other events involving persons with criminal associations.
The hearing of the bail application before me extended over three days. Mr Howard and Mr Horgan, both Senior Counsel, appeared for the applicant and the Director of Public Prosecutions respectively. The materials that were before me included: two affidavits of the applicant’s solicitor, Mr Rolfe, sworn 17 and 29 September 2004; a copy of the hand up brief, which included statements of 166 and transcripts of the covertly recorded conversations; a transcript of what was said, and other documents produced, at the 17 June bail application hearing; criminal history sheets of each of the applicant, Defteros and 166; several newspaper articles; and a miscellany of papers relating to the applicant’s financial position. The only witness called before me was the informant, Detective Senior Constable Grande.
There was no issue as to the applicable law. The Bail Act 1977 (“the Act”) applies. The applicant is not in a show cause situation. Under s.4(2)(d) of the Act, a court shall refuse bail if the court is satisfied that there is an unacceptable risk of certain eventualities if the person was released on bail. The onus of showing unacceptable risk is on the prosecution. Mr Horgan argued that there were, Mr Howard argued that there were not, reasons why I should be satisfied that there was an unacceptable risk as to the applicant on one or more of: his failing to surrender himself into custody; committing further offences whilst on bail; endangering the safety or welfare of members of public; and, interfering with witnesses. Of course, there are other applicable provisions in the Act, including as to evidence and as to the making of further applications. As noted in Beljajev & anor v DPP (Victorian Full Court, unreported 8 August 1991), bail applications are of a special kind. When making an assessment of the evidence on such an application, there are good reasons for not applying the same safeguards that are applicable when assessing admissible evidence on a criminal trial. An applicant can make an initial application on short notice and in a relatively informal way. By reason of s.18 of the Act, an applicant can make a fresh application if there is a change in circumstances. By reason of s.8, the decision-maker is entitled to act upon material of an informal nature. Hence, the situation of a person on remand is one subject to constant variation.
Under s. 4(3) of the Act, I am to have regard to all matters appearing to be relevant. Matters specifically nominated by the Act include the nature and seriousness of the offence, the character, antecedents, associations, home environment and background of the applicant, the history of any previous grants of bail to the accused person, and the strength of the evidence against the accused person. On any view, the offences of conspiracy to murder and incitement to murder are very serious. The applicant has no history of failing to answer bail. Those matters are clear cut. The position as to other matters is not so obvious.
I would make three further comments as to the process bearing in mind that much of what I had before me was information on matters that often would not satisfy the usual trial evidentiary standards. The first is that, in assessing the “non-acceptability” of certain eventualities, I have to assess the level of risk of certain future possibilities. I must come close to speculating as to the future in drawing inferences as to the present level of risk. In drawing those inferences, I have to evaluate the evidence of past events and performance as the most reliable indicator of future events and performance. The second is that I must also have regard to the level of frankness of the accused as to what has been disclosed to the court as to the past. A matter put before me as impacting on the level of a certain risk may be seen to be the more significant if it is not explained at all, or if the response is implausible. Both a failure to explain such a matter, and an unconvincing attempt to explain such a matter, may be taken into account appropriately so as to warrant drawing an adverse inference. The third is that there are some considerations that are not irrelevant, but that would be much more relatively important if there had been a show cause situation. These include considerations of delay, of the health of the applicant, of the prison conditions of the applicant, and of the strength of the evidence against him.
As to delay, I would expect that a trial of these charges would be held in 2005. My assessment is based in part on the recent established capacity of judges of this Court to hear trials on a date fixed about seven months after the committal hearing. Longer delays can result, mainly by reason of the unavailability of counsel for the accused. The average time in recent months from charge to trial for proceedings progressing relatively normally has recently been of the order of fifteen months. The underworld killings are expected to add to the workload. Steps have been taken to increase the availability of trial judges to deal with that added workload. As to health, the applicant does have special difficulties, but they are not in the exceptional category. As to the prison conditions in which the applicant is presently kept, they are unacceptable. The particular difficulty in communicating with lawyers is particularly to be condemned. If the situation does not improve well prior to 24 January 2005, a mention of the matter before the senior available Criminal Division judge may help to achieve a better outcome.
The applicant has no history of not appearing after previous grants of bail. That is the more significant because he has had several appearances before the courts. In 1982, the applicant was convicted on two counts of conspiring to traffick cannabis and sentenced to 6 years in prison. He was also convicted and sentenced to terms in prison, in 1983 on two counts of arson, in 1984 on a count of conspiracy to defraud, and in 1986 on a different count of conspiracy to defraud. He has been fined after court appearances in 1993, 1997 and 2003. The convictions in 2003 were for possession of firearms.
The strength of the case against the applicant was the subject of detailed submissions from each of Messrs Howard and Horgan. Each made a careful selection of material in the hand up brief. Mr Howard went to considerable length to illustrate how the credibility of 166 was capable of being undermined. Mr Horgan was more concerned to focus on the words actually spoken by the applicant during the covertly recorded conversations. I am not disposed, on a necessarily limited review of the brief of over 600 pages, to evaluate the prosecution case as very strong or as very weak. It is somewhere in the grey area in between. There is no doubt that the credibility of the main prosecution witness is bound to come under strong attack. The recorded conversations are susceptible of interpretation variously. Many of the references to people and incidents, sometimes apparently coded could be made to present as strongly probative through other evidence providing appropriate context.
I am not satisfied that there is an unacceptable risk of the applicant interfering with witnesses. There is really only one key witness, 166. I have inadequate information as to his current whereabouts and activities to make a realistic assessment of the prospect of his being interfered with. I am not satisfied that there is an unacceptable risk of endangering the safety or welfare of members of the public. I am not persuaded that the occasional comment made by the applicant in the covertly recorded conversations as to members of the Williams family frequenting a hotel much used by other members of the public can be treated as a basis for inferring an unacceptable level of risk.
I turn to the other two risks. I have major reservations as to whether the applicant has openly and frankly exposed his position before me. My assessment is that I have been told only a limited part of the story as to several matters that I will later refer to. The areas of concern are many rather than few and are major rather than minor. There are significant failures to provide explanations. There are significant implausible explanations. The occasional gap and implausible explanation may be allowed for. In the end there were far too many gaps and implausible explanations. I am well satisfied on the material before me that there is an unacceptable risk of the applicant committing further offences while on bail, and of absconding.
I list most of the matters that, taken together, meant that the application could not be dismissed out of hand. The applicant is aged 52. He does not enjoy good health. He will face a delay of the order of 18 months in this matter coming to trial. The conditions under which he is held on remand are clearly unsatisfactory. There is no evidence before me of his being engaged shortly before his arrest in any illegal drug trafficking or other criminal activity. The more serious of his convictions relate to actions on his part that occurred of the order of twenty years ago. No conviction is for an act of violence or for obtaining a false passport for himself. He has not got any history of failing to answer bail. He has significant ties to the jurisdiction. He is prepared to accept bail with stringent conditions. The strength of the case against him is unquestionably less because of the considerable bases for undermining the credibility of 166, and the fact of non-payment of any money to 166.
I next list three matters that I treated as operating effectively neutrally. The information before me was ambivalent, and thus not to be used for or against the applicant. The first is that bail was granted to Mr Defteros. However, there were some obvious differences in the relative positions of Mr Defteros and the applicant as to matters including as to the strength of the prosecution evidence, antecedents, financial position and ties to the jurisdiction. The second is that I am unable to properly assess the allegations made against the applicant as to being involved in firearm offences with 166 in South Australia, and as to having made threats against and having assaulted a Phillipe Barros. The third is that I am unable to satisfactorily assess the applicant’s gaming habits. The diary notes of the applicant contain entries suggestive of considerable time spent at “Crown”, inferentially the Crown Casino, in early 2004, with wins of up to 15K and losses of up to 7.3K (inferentially “K” is an abbreviation for one thousand dollars). Without more, I cannot see that I can assess how that impacts on the relevant risks.
I next list the matters, that taken together and not necessarily in the order listed, have led to my concluding that there is an unacceptable risk of absconding and of further offences. I put them together, although some more clearly relate to one area, rather than both. I stress that they are to be viewed cumulatively. As to more than one, if it was to be viewed separately, it would not necessarily be of great moment. First, the offences charged are very serious. Further, the convictions of the applicant, although for events a considerable time ago, involved deception on a very large scale, and some of the events took place overseas. Further, in the recorded conversations with 166, the applicant several times expresses considerable interest in the obtaining of false passports. Further, in those recorded conversations, the applicant several times expresses animosity to Carl Williams and his father and other associates. Further, the price put upon their heads is $150,000 each. Further, the applicant for a considerable period of time has used another name, namely Michael Oliver. Further, he has sought to give that name a degree of legitimacy by adopting the name by deed poll, but has variously chosen to use both names, not with there being any pattern for doing so either apparent, or explained, to me. Further, for official records, as with the records of his company Michealangelo Pty Ltd (sic), he has ascribed to Michael Oliver not only a false date of birth, but a different address and an apparent relative. Further, the applicant, on more than one occasion, has chosen to equip himself with one or more firearms. Further, the applicant has accrued substantial assets. The most substantial revealed to me was a debt of over $3 million. I was given only a hint or two as to how that asset accrued. I was given evidence, informally and without elaboration, that apparently sound evidence of another asset of $1 million, a debt owed by Mr Farrugia, was really only for $250,000. Further, the applicant has accrued at least one substantial asset overseas, and has negotiated for one more. It is not clear when the unit in Nice on the Riviera was acquired by the applicant, but it seems that well over 100,000 Euros has been spent on renovating it. Further, the position as to the applicant’s income source or sources is opaque. He has chosen to describe himself, or he has been described by counsel variously as a funeral director, a conveyancer, a lender and an investor. Added to the problem of there being no satisfying end explanation was the troubling way in which the different descriptions emerged. And there was no satisfying explanation as to how the small amounts declared for income tax purposes could be reconciled with large amounts passing through bank accounts for the applicant and his associated corporate entities, other than that he did have such entities. Their income and the character of the association were not revealed.
I would also note that I have taken into account other matters that I have not accorded the same degree of relative seriousness. I found unconvincing the explanation given for the applicant having said certain things to 166. In short, the applicant was said to have been playing out a charade in order to extract what information he could from 166 as to possible threats to his life and as to the gun possession charges against 166 in South Australia. I also found some apparent conflicts in the evidence as to the applicant’s family ties. On the one hand, it seems that the wife of the applicant has volunteered the equity in the Brighton home registered in her name as surety. However, there were scarcely other indicia of strong family ties, and there more than scant indicators the other way.
I come back to the matters that I adverted to, when referring to what was said by the Full Court in Beljajev, as to the right to apply afresh. The situation of the applicant is subject to constant variation. Many of the matters that have troubled me to such an extent that I found it relatively easy to conclude that there were unacceptable risks, might well be susceptible of explanation or of a more plausible explanation. They could become more important if certain positions were to change. For example, there might be greater delay. There might be reasons for significantly reassessing the strength of the prosecution case. More significantly, there might be a much more satisfactory disclosure to the court of material relevant to the assessment of the risks of not answering bail and of committing further offences while on bail. That result might come about if the applicant were to choose to be more revealing about his associations and his activities, his assets and his income. He would not have to give evidence himself. He could seek to introduce evidence from persons like his accountant, one or more members of his family, or one or more others who could explain unexplained activities, associations, income and assets, here and overseas.
0