R v Serrano (Ruling no 6)
[2007] VSC 359
•22 June 2007
| 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 |
| v |
| 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 May. The evidence in the trial then proceeded until Friday 1 June 2007. By that stage, some 45 witnesses had been called on behalf of the Crown. It was anticipated that the Crown case would conclude within approximately one day. On the next Monday, 4 June, the accused man failed to attend and answer his bail. Accordingly, I revoked his bail and issued a warrant for his arrest. I then adjourned the hearing of the trial on that day and on the next two succeeding days until 7 June, and on that day the trial resumed. The prisoner still had not attended Court and answered his bail. By that time his counsel had withdrawn from the trial. On 15 June, the jury, after deliberating for approximately one and a half days, returned a verdict a unanimous verdict of guilty of murder.
The Crown has now applied for a declaration and orders under s.6(1) of the Crown Proceedings Act 1958. In R v. Mokbel and Mokbel,[1] Gillard J analysed s.6(1) and s.6(4) of the Crown Proceedings Act. His Honour concluded that under sub-s.(1), once the Court is satisfied than an accused person has failed to observe a condition of bail, the Court is obliged to declare that the bail be forfeited, and the Court must order that the surety pay the amount undertaken and, in default, payment can be exacted by seizing and selling the property of the surety and, in default, in whole or in part, the surety be imprisoned for a term not exceeding two years. Gillard J observed that in effect the undertakings given both by the accused and the surety are self executing, and the Court has no discretion in making the declaration and orders referred to in sub-s.(1).
[1][2006] VSC 158.
On the evidence which has been placed before me this morning, I am well satisfied that the accused man has absconded and has thus failed to comply with the conditions of his bail. On 4 June, after I had issued the warrant for the arrest of the accused, the police attended at his premises. When they entered his flat, they observed that there was no food or drink in the refrigerator and there were no suitcases or baggage in the unit. A quantity of clothing was obviously missing from his wardrobe and a number of his shoes were missing. The power to his unit was turned off at the mains. The shower recess was dry and there were no dirty dishes to be seen. The accused was missing and so too was his motor vehicle. Subsequent inquiries revealed that the accused's neighbours had last seen him on the morning of Saturday 2 June. Checks made by the police with hospitals and psychiatric units disclosed that there was no record of him attending any such institution. He has not come under the notice of the police, and checks with the Immigration Department have indicated that he has not departed from the country.
The accused last reported to the Dandenong police station on 26 May 2007 and has not reported since. It is clear that as about that date he made preparation for the flight which he later effected. On 26 May he hired a vehicle, which he returned to the hire company on 28 May. During the period of the hiring, that vehicle had traversed some 2000 kilometers and the accused had incurred speed fines in the Lara and Little River area.
On 26 May he also withdrew some $4000 from his MasterCard account. On 30 May he hired a van, the rental of which was to last until 29 June, and that van has not been traced. In all those circumstances, I am thoroughly satisfied that the accused man has deliberately absconded and thus that he has failed to observe the condition of his bail. In those circumstances it is appropriate that I declare that the accused man's bail be forfeited.
Inquiries that have been made of the Prothonotary have revealed quite clearly that the surety, Ms Stojanovic, has in fact already paid the sum of $40,000 to the Prothonotary on 8 August 2006. Thus it is not necessary for me to make an order that she pay that amount under sub-s.1, nor to make any default order in relation to that. Rather, it is appropriate that I record by way of declaration that the surety has already made the appropriate payment to the Prothonotary.
I should state that the surety Ms Stojanovic has appeared in person today. She does have access to a solicitor with whom the Crown Solicitor has been in contact. The solicitor for the Crown has been good enough to draw the attention of the surety’s solicitors to the relevant authorities and to the processes which are applicable should Ms Stojanovic seek to avail herself of her right to apply to vary or rescind the order I am about to make under s.6(4) of the Act.
In the circumstances I have outlined, I therefore propose to make the following declarations. Firstly, I declare that the bail of the prisoner Apolonio ‘Tony’ Serrano be forfeited. Secondly, I declare that the amount of $40,000 undertaken to be paid by the surety Marija Stojanovic has already been paid to the proper officer of the Court on 8 August 2006.
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