R v Condello

[2011] VSC 91

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1489 of 2007

IN THE MATTER of an application by the Victims of Crime Assistance Tribunal to vary a non-publication order made on 7 February 2006 in R v Mario Rocco Condello

THE QUEEN

v

MARIO ROCCO CONDELLO

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2011
DATE OF RULING:	18 March 2011
CASE MAY BE CITED AS:	R v Condello
MEDIUM NEUTRAL CITATION:	[2011] VSC 91

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PRACTICE AND PROCEDURE – Application to vary non-publication order. 

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms K Walker	Victorian Government Solicitor’s Office
For the Prosecution	Ms H Fatouros	Craig Hyland, Solicitor for Public Prosecutions

HIS HONOUR:

1. The Victims of Crime Assistance Tribunal (‘VOCAT’) seeks orders from the Court which vary suppression orders made by me in February 2006, upon the criminal trial of Mario Rocco Condello, for incitement to murder.  As is a matter of public notoriety, Mr Condello was shot dead at his home during the first week of the trial.  Members of his family have made application to VOCAT for compensation, pursuant to the Victims of Crime Assistance Act 1996 (‘VOCAT Act’). Section 54 of the VOCAT Act provides that in determining whether or not to make an award of assistance, or the amount of assistance to award, the Tribunal must have regard to the character or behaviour (including past criminal activity and the number and nature of any findings of guilt or convictions) of the deceased primary victim of the act of violence.

1. In turn, VOCAT has sought the production to it of material from the prosecution file relating to the deceased. The VOCAT Act provides for the Registrar to obtain information pursuant to s 40. It specifically provides that notice may be given under that section to a government department, or the Chief Commissioner of Police. Although some time has passed since the trial of Mr Condello commenced before me, I have a clear recollection of the substance of much of the material that was put to me.

1. The pre-trial application which is referred to in para 2 of the current suppression order was one for the evidence of Witness 166 to be heard by video link.  My recollection of that material is sufficient to persuade me that the material now in issue does in all probability remain highly sensitive.  Nevertheless, it is apparent that for the purposes of the proper discharge of its function, VOCAT is in principle, entitled to reasonable access to it. 

1. The Office of Public Prosecutions (‘OPP’) does not oppose the variation of orders sought, and subject to one qualification I would be prepared to make them.  The qualification arises out of procedural concerns expressed by the OPP.  The OPP has taken the view that the current application should not result in orders unless notice has been given to the applicants to VOCAT, the Herald & Weekly Times and the Victoria Police.  I am satisfied that the applicants to VOCAT will be properly provided for by the terms of the order, and that if subsequent refinement of that order is sought by them, then a further application can be made to the Court. 

1. Insofar as the Herald & Weekly Times is concerned I note that Mr Quill appeared on their behalf at the time of the non-publication order that I originally made.  Today's application was a matter of public notice in the court list, and members of the media were present in the Court for the bulk of this morning's hearing.  What has occurred has been an application for variation of an order by way of relaxation.  The order itself was originally opposed by the Herald & Weekly Times and there is no sensible basis in my view on which they could be regarded as a contradictor to its relaxation. 

1. I come then to the Victoria Police.   I am troubled by the fact that the OPP is not in effect prepared to take ownership of the security implications of the orders sought without notice to the Victoria Police.  I propose to order that this morning's application be the subject of notice to the Chief Commissioner of Police on or before 4:30 on Monday and that this morning's application be adjourned to Monday 4 April 2011.  If I receive a further written consent from the OPP and the Chief Commissioner of Police prior to that date, then I will be prepared to make the orders on the papers. 

1. I should lastly refer to the precise terms of the orders.  The orders I would be prepared to make, subject to any further submission of the Chief Commissioner of Police, are orders in the form of para 1 of the application dated 9 March 2011, and in the form of para 2, but modified to refer to any part of the contents of the documents referred to. 

1. Order 2 should read, ‘Any documents produced to the Tribunal and any legal practitioner pursuant to this order, and any part of the contents thereof, not be published or produced to any other person, including the applicants for assistance in the VOCAT proceedings and their legal representatives, including their counsel’. 

1. In summary, I will make an order for notice to the Chief Commissioner for Police.  I will adjourn the matter 14 days from Monday next, and for completeness, I will reserve liberty to apply.