Judgment Suppressed
[2013] WASC 338
•6 SEPTEMBER 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL |
| CITATION | : | STAGNO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASC 338 |
| CORAM | : CORBOY J | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN | : PAOLO NUNZIO STAGNO |
First Applicant
DANIELLE KOVAC
Second Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Whether accused charged with murder should be granted bail due to delay in bringing the indictment to trial - No new principles
Legislation:
Bail Act 1982 (WA), cl 1 and cl 3C, pt C, sch 1
Result:
Bail granted
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Category: B
Representation:
Counsel:
| First Applicant | : | No appearance |
| Second Applicant | : | Mr S Rafferty |
| Respondent | : | Mr N Cogin |
Solicitors:
| First Applicant | : | No appearance |
| Second Applicant | : | Seamus Rafferty |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Brown v The State of Western Australia [2008] WASCA 173
Fazzari v The State of Western Australia [2004] WASC 71
Goodwyn v The State of Western Australia [2011] WASC 328
Hedgeland v The State of Western Australia [2011] WASC 181
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42
WAR 99
The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A
Crim R 34
Tieleman v The Queen [2004] WASCA 285; 149 A Crim R 303
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CORBOY J
CORBOY J:
The application and the result
1 This is an application for bail made by Danielle Kovac. She has
been jointly charged with Paolo Nunzio Stagno, that on 25 September
2011 at Nollamara she murdered Mite Naumovski.
I determined on 2 September 2013 that Ms Kovac should be granted bail on the following conditions:
(a) personal undertaking in the sum of $50,000; (b) surety undertaking in the sum of $75,000; (c) to reside at 97 Steerforth Drive, Coodanup, and to be at that address between 7 pm and 7 am each day; (d) not to apply for a passport; (e) not to approach within 100 m radius any domestic or international departure point; (f) to report to the officer in charge of the Mandurah police daily between 8.30 am and 12 pm; (g) not to contact or attempt to contact, directly or indirectly, any State witness or co-accused; (h) to submit to any urinalysis test required by a community corrections officer and not to return a sample positive for any illicit drug.
These are my reasons for granting bail to Ms Kovac on those
conditions.
The proceedings
Mr Stagno and Ms Kovac were first arrested on 6 October 2011. Mr Stagno was charged with murder and Ms Kovac was charged with being an accessory after the fact to murder.
Mr Stagno and Ms Kovac were again arrested on 20 October 2011 and charged with further offences under the Firearms Act 1973 (WA) and the Misuse of Drugs Act 1981 (WA). Ms Kovac was granted bail on being charged with those various offences. However, on 17 November
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2011 she was charged with the murder of Mr Naumovski. On the following day she was remanded in custody to appear in the Stirling Gardens Magistrate Court. She has remained in custody on remand since 17 November 2011.
6 An indictment alleging murder was filed on 23 August 2012 and
shortly afterwards, the matter was listed for a trial commencing on
13 May 2013. Mr Stagno and Ms Kovac were joined in the indictment.7 On 4 April 2013, Mr Stagno applied for an order that he be tried
separately to Ms Kovac. He contended that the State proposed to adduce evidence of out of court statements made by Ms Kovac that were only admissible in the case against her but which were, nevertheless, prejudicial to him. The application was heard on 16 April 2013. The decision on the application was reserved.
8 On 23 April 2013, Ms Kovac applied to vacate the trial listing. The
application was supported by an affidavit made by Mr Prior who had, at that time, been retained to appear for Ms Kovac. Mr Prior stated that, in his opinion, it was not possible to properly prepare Ms Kovac's defence in the time available due to a combination of the timing of a grant of legal aid and his subsequent engagement as counsel, the size of the prosecution brief and the amount of further material that had been disclosed by the State.
9 On 3 May 2013, Mr Stagno gave notice of an alibi. The notice raised
possible difficulties for the representation of Mr Stagno and Ms Kovac and it altered the circumstances that were relevant to the determination of Mr Stagno's application for a separate trial. The trial listing was vacated at this time without new dates being allocated given the uncertainty created by Mr Stagno's alibi notice.
10 Mr Stagno subsequently withdrew his notice of alibi and the reserved
decision on Mr Stagno's application for a separate trial was delivered on 15 May 2013. The application was refused and Mr Stagno commenced an appeal. Nevertheless, the indictment was listed for trial commencing on 19 August 2013. Mr Stagno subsequently discontinued his appeal and the trial commenced on 19 August 2013.
11 The prosecutor opened the State's case against Ms Kovac on the
basis that she was a party to the offence allegedly committed by Mr Stagno pursuant to either s 7 or s 8 of the Criminal Code. Mr Levy SC made an opening statement on behalf of Mr Stagno during the afternoon of the first day of the trial. Mr Urquhart indicated that he
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intended to make an opening statement on behalf of Ms Kovac on the
second day of the trial.12 The prosecutor informed the court on the second morning of the trial
that the State proposed to confine its case against Ms Kovac to an allegation that she had aided Mr Stagno to murder the deceased. The prosecutor then applied to discharge the jury and adjourn the prosecution on the ground that the State had not obtained, but required, expert ballistic evidence on a particular facet of its case.
13 It is not necessary to explore why that evidence had not been
obtained prior to the trial - there appears to have been a misunderstanding about the position of, at least, Mr Stagno in relation to the subject matter of the proposed evidence. It is sufficient to note three matters about the application: the State accepted responsibility for not having obtained the evidence in advance of the trial; the State further accepted that Mr Stagno and Ms Kovac would be prejudiced by the evidence being admitted without the trial being adjourned and the evidence sought to be obtained was characterised as being 'crucial' to the State's case.
14 It was held that the application to discharge the jury and adjourn the
prosecution was premature as the evidence was yet to be obtained; the question of whether the prosecution should be adjourned in fairness to Mr Stagno and Ms Kovac should be determined if and when the State sought to adduce expert evidence that had only been obtained and disclosed during the trial. Accordingly, the trial proceeded during the afternoon of the second day.
15 Some time after proceedings on the second day of the trial, the State
advised those representing Mr Stagno and Ms Kovac that it proposed to lead evidence of various text messages. That advice resulted in Mr Stagno applying to have the jury discharged and the prosecution adjourned on the third morning of the trial.
16 The ground for the application was that forensic decisions had been
made about the conduct of Mr Stagno's case based on an understanding that the State did not propose to rely on the text messages. Mr Levy advised that those decisions were reflected in the way in which he had opened Mr Stagno's case, including the choice of 'defences' that the jury would be asked to consider in determining whether the State had proved Mr Stagno's guilt. Mr Levy also indicated that he would have required the prosecution to summons additional witnesses and he would have pursued
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other lines of inquiry had the State indicated earlier that it proposed to rely
on the text messages. Mr Stagno's application was granted.
The trial of the indictment has now been listed for four weeks commencing on 5 February 2014.
The grounds for the application
18 Ms Kovac applied for bail on the ground of delay in bringing the
indictment to trial. It was submitted that, 'a delay of 27 months prior to the resolution of a criminal matter is entirely unacceptable and constitutes an exceptional circumstance enlivening the discretion to consider and grant bail' (submissions dated 23 August 2013, par 14).
19 Ms Kovac conceded in making her application that the State had a
strong case that she was an accessory after the fact of the killing of the deceased and had, accordingly, committed an offence under s 562 of the Criminal Code. Indeed, she had previously offered to plead guilty of that offence. That concession, made for the purpose of this application, was consistent with Mr Urquhart's opening statement to the jury prior to the trial being abandoned.
20 The State opposed Ms Kovac's application. It submitted, in
summary, that it has a strong case that Ms Kovac aided Mr Stagno to murder the deceased; that, in any event, the State's case that Ms Kovac was an accessory after the fact was so strong that it is unlikely that the time that she had spent in custody would be found to have been unjustified; that Ms Kovac was likely to be found guilty of the other charges that have been alleged against her; that she was a flight risk; that there was an unacceptable risk that she would seek to interfere with prosecution witnesses and/or that she might commit further offences having regard to her history of substance abuse.
The relevant principles
21 The principles to be applied in determining an application for bail are
well known and were identified by the Court of Appeal in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99. In summary:
(a)
The Bail Act 1982 (WA) was intended to contain a comprehensive code on the subject of bail.
(b)
The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may be properly granted
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having regard to the provisions of cl 1 and cl 3 of pt C sch 1 to the
Act.
(c)
Clause 1 of pt C contains no express statutory presumption for or against the grant of bail. Rather, the judicial officer is required to exercise the discretion having regard to the questions in pars (a) to (g) and to any other question that the decision-maker considers relevant; that is, the correct approach to the exercise of the discretion is sourced in and guided by the matters referred to in pars (a) to (g) of cl 1. That must be read subject to the provisions of cl 3C of sch 1 in this instance.
(d)
The court is required to consider and answer the mandatory questions before commencing the balancing process inherent in the exercise of the discretionary power to grant bail. The answers to the mandatory and other relevant questions provide the factual basis for the exercise of the discretion.
(e)
All of the mandatory questions with the exception of par (e) are directed to whether there are positive grounds for refusing bail. The matters in par (e) go to the question of whether it is possible to neutralise wholly or sufficiently positive grounds for refusing bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
(f)
The Act does not place a legal onus on any party to the application. However, the structure of cl 1 is such that bail will be granted if there is no material before the court providing a proper foundation for refusing bail. Consequently it will often be for the State to furnish the material required to provide a proper foundation for refusing bail. The word 'may' in pars (a) and (d) of cl 1 means the possibility of the event occurring. So, for example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility that he or she would fail to appear in court in compliance with his bail undertaking.
(g)
It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused upon conviction are sufficient to enable the court to conclude that the accused may fail to appear in court in compliance with his or her bail undertaking and the existence
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and extent of that possibility may, having regard to the answers to all the other mandatory questions in cl 1, require or justify the refusal of bail. However, the common law presumptive approach for or against bail is inconsistent with the approach required under the Bail Act.
That summary must be read subject to cl 3C of sch 1 to the Bail Act. That clause provides that:
The judicial officer in whom jurisdiction is vested shall refuse to grant bail for the offence unless the judicial officer is satisfied that -
…
(c) there are exceptional reasons why the accused should not be kept in custody; and (d) bail may properly be granted having regard to the provisions of clauses 1 and 3 …
23 The Court of Appeal recognised in Milenkovski that cl 3C provided for a rebuttable statutory presumption against the grant of bail. McLure P observed that:
Only cll 3A, 3C and 4A of Pt C Sch 1 of the Bail Act provide for a (rebuttable) statutory presumption against the grant of bail. That is indicated by the statutory expression that the judicial officer 'shall refuse to grant bail for the offence' unless satisfied of the specified matters.
The statutory presumptions against the grant of bail in cll 3A, 3C and 4A require that the judicial officer be satisfied of two matters. The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may properly be granted having regard to the provisions of cll 1 and 3. In addition the judicial officer must be satisfied that there are exceptional reasons why the accused should not be kept in custody. If the judicial officer is not satisfied that bail may properly be granted under the general provisions in cll 1 and 3, it is not necessary to consider whether there are relevant exceptional reasons. This structure reflects the possibility that the exceptional reasons may not be relevant to or inform the answers to the mandatory questions in cl 1(a) to (g). There is no scope for the application of an exceptional reasons or circumstances test beyond those statutorily specified in cll 3A, 3C and 4A [36] - [ 37].
A review of the authorities to which the court was referred in this application indicates that the following considerations are also relevant:
(a)
The reference in cl 3C to 'exceptional reasons' denotes that the reasons justifying a grant of bail where the applicant is charged
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with murder must be unusual and out of the ordinary; in some way special or an exception to the general run of cases: Hedgeland v The State of Western Australia [2011] WASC 181 and Goodwyn v The State of Western Australia [2011] WASC 328 applying Tieleman v The Queen [2004] WASCA 285; 149 A Crim R 303.
(b)
The requirement for exceptional reasons reflect the strong inference that a person would be likely to abscond or fail to appear in accordance with his or her bail undertaking when facing the severity of the sentence of imprisonment likely to be imposed if guilt is proven: Fazzari v The State of Western Australia [2004] WASC 71, McLure J [13] and see the comments of E M Heenan J in The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34 and the authorities to which his Honour referred.
(c)
What constitutes exceptional reasons will depend on the particular circumstances of the case. A single matter or combination of matters may constitute exceptional reasons: Goodwyn [28].
(d)
Delay with or without other matters may constitute exceptional reasons: Goodwyn [30] (that proposition was expressly accepted by the State at the hearing of this application).
The State's case
25 The State's case against Ms Kovac, as opened at the trial that was
abandoned, was that Ms Kovac aided Mr Stagno to murder the deceased by luring him to the house at which she and Mr Stagno resided and at which, on the State's case, Mr Stagno waited armed with a gun. The State identified two acts of assistance by Ms Kovac. First, she was alleged to have sent a text message to the deceased that, in the context of other messages, suggested that Mr Stagno had smashed up the interior of the house; that she was in the house alone and that she wanted the deceased to come to the house because she 'really need[ed] a cuddle'. Second, she was alleged to have opened the front door of the house to let the deceased in knowing that Mr Stagno was waiting inside and that in doing so, she had engaged the deceased in 'ordinary' conversation so that he was not alerted to the presence of Mr Stagno and the danger that he presented.
The elements of the offence alleged by the State against Ms Kovac
are that:
(a) Mr Stagno murdered the deceased - that is, that Mr Stagno:
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(i) unlawfully caused the deceased's death; and
(ii) Mr Stagno intended to cause the deceased's death or that he intended to cause a bodily injury to the deceased of such a nature as to endanger, or be likely to endanger, the deceased's life;
(b) Ms Kovac aided Mr Stagno to murder the deceased; (c) Ms Kovac assisted Mr Stagno with the intention of aiding him to murder the deceased; and (d) at the time that she aided Mr Stagno, Ms Kovac knew that Mr Stagno intended to cause the deceased's death or that he intended to cause a bodily injury to the deceased of such a nature as to endanger, or be likely to endanger, the deceased's life.
It is apparently common ground between all parties that:
(a) there was a history of animosity between Mr Stagno and the deceased arising out of a drug debt; (b) Mr Stagno had driven past the deceased's house earlier in the day on which the deceased was killed and had fired shots at the house and the deceased's motor vehicle standing in the driveway; (c) the deceased was angered by the drive-by shooting. 28 The State alleged that Ms Kovac knew of those matters and that she
admitted to the police that she had seen Mr Stagno with a handgun and that she knew that he intended to shoot at the deceased. The State relied on those matters to allege that Ms Kovac intentionally aided Mr Stagno by luring the deceased to her house with knowledge of Mr Stagno's intent. The State also relied on Ms Kovac's conduct following the death of the deceased as being consistent with her guilt.
29 Mr Levy submitted to the jury in his opening statement that
Mr Stagno shot the deceased in self-defence. The deceased believed that Mr Stagno owed him money. He was enraged by Mr Stagno's drive-by shooting and he went to the house occupied by Mr Stagno and Ms Kovac armed with a tomahawk, a Taser gun and handcuffs. He cut a cable to a CCTV camera located outside the entrance to the house and smashed his way through the front door. He was wearing a balaclava.
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30 The effect of Mr Levy's opening was to assert that Mr Stagno
believed that it was necessary to shoot the deceased to defend himself and Ms Kovac. Mr Levy identified for the jury the circumstances that it would be submitted Mr Stagno believed existed at the time that he shot the deceased (see s 248(4) of the Criminal Code). The State, of course, carries the onus of proving that Mr Stagno did not act in self-defence.
31 Mr Urquhart built on Mr Levy's submissions in his opening
statement to the jury. He emphasised that the deceased did not apparently come to the house to give Ms Kovac a 'cuddle'. He was armed and disguised, indicating that he was looking for Mr Stagno. He cut the CCTV cable indicating that he did not want his arrival recorded. Consequently, the inference was that he was not lured to the house by any message sent by Ms Kovac. Accordingly, she had not actually assisted Mr Stagno. Further, she had not opened the door to let the deceased into the house - he had smashed his way in using a tomahawk.
Clause 1 of pt C
32 As has been noted, the State contended that if Ms Kovac was not
kept in custody, she might fail to appear in court in accordance with her bail undertaking and/or interfere with witnesses or otherwise obstruct the course of justice and/or commit further offences. In considering that contention and the matters referred to in cl 1(a) of pt C of sch 1, the court is to have regard to the following matters (as well as any other matters that are considered to be relevant):
(a) the nature and seriousness of the offence or offences alleged against the accused applicant (including any other offence or offences for which the accused is awaiting trial) and the probable method of dealing with the accused applicant if convicted; (b) the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the accused applicant; (c) the history of any previous grants of bail to the accused; and (d) the strength of the evidence against the accused. (See cl 3 of the Bail Act.)
33 The State's contention that Ms Kovac was a flight risk was based
solely on the seriousness of the offence with which she has been charged. The contention that she might interfere with witnesses was based
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statements made in a witness statement provided by Ms Renee Arrigo. Ms Arrigo recanted on statements she had made in an earlier witness statement, saying that she had been asked by Ms Kovac to tell the police that the two of them had been together at Ms Kovac's house during the afternoon of the day on which the deceased had been shot.
34 The State's concern that Ms Kovac might commit offences if released
from custody was based on information supplied by Ms Sally Chadwick as part of an oral home detention report provided to the court. I will return to that report and the information provided by Ms Chadwick.
The alleged offence
35 The seriousness of the offence with which Ms Kovac has been
charged is obvious and is reflected in the provisions of cl 3C, pt C. It is, however, necessary to briefly comment on how she might be sentenced if she was found guilty of the alternative offence of being an accessory after the fact.
36 In Brown v The State of Western Australia [2008] WASCA 173, the appellant was convicted of being an accessory after the fact of what was described by Steytler P as a 'brutal murder' [2]. She was sentenced to a term of imprisonment of 4 years 8 months - a sentence that Steytler P characterised as being 'undoubtedly justified' when her role as an accessory after the fact was viewed in isolation [2]. However, the Court of Appeal held that the sentence was manifestly excessive, having regard to various mitigating factors. The sentence imposed was quashed and a sentence of 3 years 8 months' imprisonment was substituted.
37 The appellant in Brown suffered from significant psychological problems that left her vulnerable to being manipulated by others. There was also evidence that she had been in a very abusive domestic relationship with her co-offender. There is no evidence of that kind in this application, although Ms Kovac alleged in one interview conducted with the police that she had acted immediately before the deceased was killed under significant duress from Mr Stagno.
38 Miller JA (with whom Wheeler JA agreed) reviewed sentences that
had been imposed in other cases for the offence of acting as an accessory after the fact of murder. As has been noted, the trial of the indictment is listed to commence in February 2014 - approximately two years, three months after Ms Kovac was first remanded in custody. The review of sentencing outcomes undertaken by Miller JA in Brown and the result in that appeal suggest the range of sentences that could be imposed if
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Ms Kovac was found guilty of being an accessory after the fact of murder might commence at around four years. It is most likely that Ms Kovac would be made eligible for parole.
39 In addition, it is possible on the material contained in the prosecution
brief that Mr Stagno could be found not guilty of murder or manslaughter, either because the jury was not satisfied that he possessed the intent prescribed by s 279 of the Criminal Code or because the jury found that his response was not reasonable in circumstances where he otherwise acted to defend himself and/or Ms Kovac from the deceased (see s 248(3) of the Criminal Code).
40 Ms Kovac's sentencing would necessarily reflect that finding if she
was found guilty of being an accessory after the fact of an unlawful killing
committed in those circumstances.
Ms Kovac's personal circumstances
41 Ms Kovac is aged 28 years. Ms Kovac was first convicted of an
offence in December 2004: hindering police and resisting arrest. She was convicted of traffic offences in November 2005, September 2007 and October 2009. She was convicted of possessing stolen property, obstructing a public officer and possessing a firearm in September 2011. She was fined a total of $1,400 for those offences. She has no record of having breached any bail undertaking that she has been given in the past.
42 Her family remain supportive and she proposed to reside with her
brother if released from custody on bail. Her parents live close by. She intended to work with her father. He was willing to enter into a significant surety undertaking.
43 A home detention report was ordered as part of Ms Kovac's
application. A reason (but not the only reason) for ordering the report was that the State initially advised that the charges pending against Ms Kovac for offences allegedly committed under the Misuse of Drugs Act involved an allegation that she had been in possession of approximately 120 grams of methamphetamine. Plainly, that was a significant matter in that Ms Kovac could have expected to be sentenced to a substantial term of imprisonment if convicted, the term being most likely at least partly accumulated with any term of imprisonment imposed in this matter subject to considerations of totality. However, the State subsequently advised that an error had occurred and the relevant charge would be amended to allege that Ms Kovac had possessed 3 grams of cocaine.
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44 The home detention report was generally favourable to Ms Kovac's
application. In particular, there was no adverse report concerning Ms Kovac's brother, with whom she proposed to reside. The one adverse matter disclosed by Ms Chadwick was that Ms Kovac had been found to have taken amphetamine while in custody in September 2012. However, there had been no other adverse reports regarding her conduct while in custody.
45 There is material in the prosecution brief indicating that Ms Kovac
may have been regularly smoking quantities of methamphetamine at the time that the deceased was killed. The State submitted that there was a concern arising out of Ms Chadwick's report that Ms Kovac may be still susceptible to abusing illicit drugs and if so, she could be at risk of offending if released from custody. It is to be noted that Ms Chadwick's report referred to an instance that occurred a year ago but a condition concerning urinalysis testing has been imposed on the grant of Ms Kovac's bail.
The strength of the evidence against Ms Kovac
46 It is not proposed to analyse in detail the strength of the State's case
against Ms Kovac. As is to be expected, the prosecution brief is extensive. It includes lengthy interviews between Ms Kovac and the police.
47 The opening statements made at the trial that was abandoned have
already been briefly summarised. They indicated that there are significant differences between the State's case and the case of each of Ms Kovac and Mr Stagno about the circumstances in which the jury will be asked to decide whether the State has proved that Ms Kovac did, in fact, aid Mr Stagno with knowledge of what the State alleges was Ms Stagno intent. A number of the witnesses to be called by the State were associates of Mr Stagno and Ms Kovac and the State is yet to obtain forensic evidence that could be significant in its case against Mr Stagno. Ms Kovac cannot be found guilty of murder pursuant to s 7 of the Criminal Code unless Mr Stagno is also found guilty of that offence. A significant forensic aspect of Ms Kovac's case is that she will admit to being an accessory after the fact of the deceased's killing. Another forensic aspect is that much of the State's case against Ms Kovac will require the jury to draw inferences concerning her state of mind.
48 It is sufficient in those circumstances to observe that the State's case
against Ms Kovac does not appear to be so overwhelming that her
application for bail must be denied.
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Conditions on which bail might be granted
49 In my view, the conditions imposed on Ms Kovac's bail sufficiently
remove the possibility that Ms Kovac will fail to honour her bail undertaking or that she will attempt to interfere with the State's witnesses or that she might commit further offences.
Extraordinary reasons
50 As has been noted, the State accepts that delay can constitute an
extraordinary reason for the purpose of cl 3C, sch 1. In my view, there are extraordinary reasons that justify the grant of bail in this instance. The State accepts that Ms Kovac played no part in the events resulting in the prosecution of the charge against her being adjourned last month. Her application to vacate the trial listing in May 2013 was, in my view, properly made on grounds that were confirmed on oath by counsel who had then been retained to appear for her at trial. She would have been detained in custody on remand for 2 years 3 months by February 2014. That is an extraordinary period to be detained in custody pending trial.
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