R v Serrano (No 5) - [2007] VSC 209

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1494 of 2006

THE QUEEN

APOLONIO SERRANO

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2007
DATE OF RULING:	6 June 2007
CASE MAY BE CITED AS:	R v Serrano (Ruling No. 5)
MEDIUM NEUTRAL CITATION:	[2007] VSC 209

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CRIMINAL LAW – Murder trial – Accused man absconded – Counsel for accused have withdrawn from case – Fundamental principle that trial for indictable offence be conducted in presence of accused – Rule not absolute or inflexible – Discretion of trial judge to continue trial in absence of accused – Accused has consciously, wilfully and deliberately absented himself – Accused would suffer little prejudice if trial continued in his absence – Powerful public policy reasons for continuing trial – Trial to continue in absence of accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	Office of Public Prosecutions
For the Accused	Mr M. Rochford with Mr D. Hallowes	Victoria Legal Aid

HIS HONOUR:

The accused man, Apolonio ‘Tony’ Serrano, has been charged with the murder of Milicia Trailovic at Endeavour Hills on or about 26 December 2003. He was charged with Ms Trailovic's murder on 7 October 2005. In June 2006 a committal proceeding was heard at the Melbourne Magistrates' Court, at the conclusion of which he was committed for trial.

On 8 August 2006 the accused applied to Bongiorno, J for an order that he be released on bail. His Honour acceded to that application and made an order that the accused be admitted to bail on his own undertaking with one surety in the sum of $40,000. A number of conditions were stipulated by His Honour in the order granting bail, including a condition that the accused report daily to the officer‑in‑charge of the police station at Dandenong between the hours of 8 a.m. and 6 p.m.

The trial was listed for Monday, 21 May 2007.

On Friday, 18 May I conducted a preliminary directions hearing in the trial. At that hearing an application was made on behalf of the accused man that his bail be extended until further order. The Crown did not oppose that application and accordingly I made an order extending the bail of the accused man on the same terms and conditions as that fixed by Bongiorno, J.

The trial commenced on Monday 21 May. After two days of legal argument and rulings, the jury was empanelled on Wednesday 23 May. The evidence in the trial then proceeded until Friday 1 June. At that stage police witnesses were giving evidence in relation to records of interview which had been conducted with the accused man. By the end of 1 June it was estimated that the Crown case would conclude either on the following Monday or early on the next Tuesday.

On Monday, 4 June the accused man failed to attend and answer his bail. Accordingly, I revoked his bail and issued a warrant for…

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 R v Serrano (No 5)

Details

AGLC: R v Serrano (No 5) [2007] VSC 209
Case: [2007] VSC 209
Decision Date: 6 June 2007

CaseChat Overview and Summary

The appellant, Serrano, faced trial for the murder of his wife. The case was heard in the Supreme Court of Victoria. The accused absconded before the commencement of the trial, leading to the withdrawal of his legal counsel. The court was required to determine whether the trial should proceed in the absence of the accused and whether such a decision was in accordance with legal principles and public policy considerations.

The central legal issue was whether the trial for an indictable offence could proceed in the absence of the accused, who had wilfully and deliberately absented himself. The court examined the fundamental principle that trials for indictable offences should be conducted in the presence of the accused but acknowledged that this principle was not absolute. The court also considered the discretion of the trial judge in such circumstances and the potential prejudice to the accused if the trial were to proceed in his absence, alongside the public policy implications of allowing the trial to continue.

In its reasoning, the court held that while the presence of the accused was a fundamental principle, it was not inflexible. The court found that the accused had consciously and deliberately chosen to abscond, which mitigated any potential prejudice he might suffer if the trial proceeded without him. Additionally, the court recognised significant public policy reasons for continuing the trial, including the need to bring closure to the victim's family and to uphold the rule of law. Consequently, the court exercised its discretion to allow the trial to continue in the absence of the accused.

The final orders of the court were that the trial would proceed in the absence of the appellant, recognising the discretionary powers of the trial judge under the circumstances presented.

Orders