Re application for bail by Biancotto - [2021] VSC 754

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2021 0290

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by ROBERT BIANCOTTO	Applicant

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JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2021
DATE OF JUDGMENT:	17 November 2021
CASE MAY BE CITED AS:	Re application for bail by Biancotto
MEDIUM NEUTRAL CITATION:	[2021] VSC 754

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CRIMINAL LAW – Application for bail – Applicant charged with contravening family violence intervention order, persistent contravention of family violence intervention order, and other matters – Whether exceptional circumstances established – Unacceptable risk – First time in custody – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4A, 4AA, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Saunders	Denning Legal
For the Respondent	Mr N Watt	Legal Services Department, Victoria Police

HIS HONOUR:

Introduction

By application dated 26 October 2021, Robert Biancotto (‘the applicant’) seeks bail in this Court in relation to two matters brought by Detective Senior Constable Kim Jackson.

The first Jackson matter

On 16 September 2021, the applicant was arrested and remanded on 33 charges alleged to have occurred between 12 March and 15 September 2021, and comprising a number of offences of violence and breaches of an intervention order in respect of a former intimate partner of the applicant. A number of charges are alternatives. The applicant was granted bail in the Heidelberg Magistrates’ Court on these charges (‘the first Jackson matter’), subject to various conditions which will be detailed below. [1]
[1]Being charges of reckless conduct endangering life; intentionally causing injury (three counts); recklessly causing injury (three counts); unlawful assault (two counts); contravene interim FVIO intending to cause harm or fear for safety (four counts); commit indictable offence whilst on bail (five counts); common assault (two counts); persistent contravention of FVIO (two counts); contravene interim FVIO (eight counts); make threat to kill; use carriage service to harass; and stalking.

The second Jackson matter

On 1 October 2021, whilst on bail for the first Jackson matter, the applicant was again arrested and remanded on a further 16 charges alleged to have occurred between 22 September and 1 October 2021 comprising:[2]
[2]Albeit noting that charge 16, contravene interim FVIO, was not issued until a later date.

(a) contravene interim Family Violence Intervention Order (‘FVIO’) (six counts);

(b) persistent contravention of FVIO;

(c) contravene conduct condition of bail (five counts);

(d) use carriage service to harass;

(e) commit indictable offence whilst on bail (two counts); and

(f) possess cannabis.

The applicant has been on remand since his arrest in the second Jackson matter on 1 October 2021. He was refused bail in that matter in the Heidelberg Magistrates’ Court on 20 October 2021, on the basis that he failed to demonstrate exceptional circumstances that justified the grant of bail. The same day, bail in the first Jackson matter was revoked.

Both matters are next listed in the Heidelberg Magistrates’…

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 Re application for bail by Biancotto

Details

AGLC: Re application for bail by Biancotto [2021] VSC 754
Case: [2021] VSC 754
Decision Date: 17 November 2021

CaseChat Overview and Summary

The applicant, Biancotto, sought bail in relation to charges that included contravention of a family violence intervention order, persistent contravention of a family violence intervention order, and other offences. The matter was heard in the Magistrates’ Court of Victoria. The central issue before the court was whether the applicant had established exceptional circumstances that warranted bail despite the risk of unacceptable harm to the complainant, who was the applicant's former partner. The court also needed to consider the principles outlined in the Bail Act 1977, including the presumption of innocence, the seriousness of the offence, and the risk to the community.

The court examined the evidence presented regarding the severity and nature of the offences, as well as the history of family violence between the applicant and the complainant. The court found that the offences involved serious breaches of a family violence intervention order and posed a significant risk to the complainant's safety. The applicant had a prior criminal history and had been in custody previously. Given the gravity of the charges and the potential for harm to the complainant, the court concluded that there were no exceptional circumstances that would warrant the granting of bail. The risk of unacceptable harm to the complainant outweighed any considerations in favour of bail.

The Magistrates' Court ruled that bail should be refused based on the unacceptable risk to the complainant and the weight of the evidence against the applicant. The seriousness of the charges and the history of family violence were pivotal factors in the court's decision. The court found that the applicant had not demonstrated any exceptional circumstances that would warrant the granting of bail. Consequently, the application for bail was dismissed.

Orders