R v Serrano (Ruling no 6) - [2007] VSC 359

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1494 of 2006

IN THE MATTER OF an application pursuant to s.6(1) of the Crown Proceedings Act1958

THE QUEEN

APOLONIO SERRANO

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JUDGE:	Kaye J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2007
DATE OF RULING:	22 June 2007
CASE MAY BE CITED AS:	R v Serrano (Ruling No. 6)
MEDIUM NEUTRAL CITATION:	[2007] VSC 359

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Criminal Law – Application by Crown pursuant to s.6(1) Crown Proceedings Act 1958 – Murder trial – Accused man deliberately absconded and failed to observe conditions of bail – Declaration that bail be forfeited – Declaration that amount undertaken to be paid by surety already paid to proper officer.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson	Office of Public Prosecutions
For the Prisoner	No appearance by or on behalf of the Prisoner.
For the Surety, Ms Marija Stojanovic	The Surety appeared in person.

HIS HONOUR:

This is an application by the Crown in the right of the State for a declaration that the bail granted to the prisoner be forfeited. Originally the application also was for an order that the amount undertaken by the surety be paid to the Court forthwith.

The prisoner, Apolonio ‘Tony’ Serrano, was arrested on 7 October 2005 and charged with the murder of Milica Trailovic at Endeavour Hills on or about 26 December 2003. Upon his arrest, he was remanded into custody. In August 2006, Serrano made an application for bail. That application came before Bongiorno J on 8 August 2006. On that date, His Honour made an order granting the prisoner bail on his own undertaking with a surety in the sum of $40,000 and on a number of conditions which are contained in that order. The conditions included that he reside at his home address in Hallam; that he report daily to the officer in charge of the Dandenong police station between 8.00 a.m. and 6.00 p.m.; that he give

48 hours notice to the informant or his nominee of any proposed change of address; that he not contact directly or indirectly any witness for the Crown except the informant; that he not apply for any passport; and that he not attend at any point of international departure during the period of bail. Pursuant to that order, the surety, Marija Stojanovic, stood surety for the prisoner in the sum of $40,000 and signed the appropriate undertaking to that effect.

On 18 May 2007, I held a final directions hearing which the prisoner attended. 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 I made an order extending the bail of the prisoner on the same terms and conditions as that stated by Bongiorno J.

The trial commenced on Monday 21 May 2007. After two days of legal argument and rulings, the jury was empanelled on Wednesday 23…

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 (Ruling no 6)

Details

AGLC: R v Serrano (Ruling no 6) [2007] VSC 359
Case: [2007] VSC 359
Decision Date: 22 June 2007

CaseChat Overview and Summary

In the case of R v Serrano, the accused was charged with murder and had been released on bail. The Crown subsequently applied to the court under section 6(1) of the Crown Proceedings Act 1958, seeking a declaration that the bail be forfeited due to the accused's failure to observe the conditions of bail by deliberately absconding. The application also sought a declaration that any amount undertaken to be paid by the surety had already been paid to the proper officer. The case came before the relevant court for determination.

The primary legal issue before the court was whether the Crown could successfully obtain a declaration that the bail be forfeited and that any amount paid by the surety be recognised as having been paid to the proper officer. The court had to consider the statutory provisions of the Crown Proceedings Act 1958 and the circumstances surrounding the accused's failure to comply with the bail conditions. The court needed to determine whether the absconding of the accused constituted a breach severe enough to warrant the forfeiture of bail and if the surety's payment could be acknowledged as having been properly remitted.

The court found that the accused had indeed deliberately absconded, thereby breaching the conditions of the bail. The court was satisfied that the absconding constituted a significant breach warranting the forfeiture of bail. Furthermore, the court accepted that the amount paid by the surety had been remitted to the proper officer. As such, the court granted the Crown's application, declaring that the bail be forfeited and that the amount paid by the surety was already paid to the proper officer.

The court's final orders were that the bail be forfeited and that the amount paid by the surety be recognised as having been paid to the proper officer. The court's decision was based on the clear breach of bail conditions by the accused and the proper remittance of funds by the surety. The ruling ensures that the legal process is upheld and that the court's authority is maintained in the face of non-compliance with bail conditions.

Orders