| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0149
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Marco GASTELLO | |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 & 15 July 2020 |
DATE OF ORDERS: | 15 July 2020 |
DATE OF REASONS: | 28 August 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by Gastello |
MEDIUM NEUTRAL CITATION: | [2020] VSC 548 |
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CRIMINAL LAW – Application for bail – Two charges of rape – Applicant required to show compelling reason – Significant delay – Compelling reason established – No Unacceptable risk – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W Barker | Leanne Warren and Associates |
| For the Crown | Ms D Karamicov | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
On 15 July 2020 I granted Marco Gastello’s (‘the applicant’) application for bail and said I would publish my reasons. These are those reasons.
On 15 June 2020, Detective Acting Sergeant Payne charged the applicant with two counts of rape, administering an intoxicating substance for a sexual purpose and sexual assault. The applicant has been remanded in custody since that date.
The charges relate to an incident alleged to have occurred between 8 and 9 July 2017, involving the applicant’s former housemate, NS (‘the complainant’). She reported the incident to police on 9 July 2017, however, due to a delay attributed to ‘police operation matters’, the matter did not progress for some three years.
On 26 June 2020, an application for bail was filed on behalf of the applicant in this Court. He was previously refused bail on 16 June 2020 at the Melbourne Magistrates’ Court, on the basis that he failed to show a compelling reason.
The matter is next listed on 11 September 2020 for committal mention at the Melbourne Magistrates’ Court.
The applicable legislation
Section 4AA(3) of the Bail Act 1977 (‘the Act’) sets out that the ‘show compelling reason’ test applies to a decision to grant bail to a person accused of a Sch 2 offence. As the applicant is charged with rape, the parties agree that the applicant falls into that category for the purposes of bail.[1] It follows that the Court must refuse bail unless satisfied that a compelling reason exists that justifies his release on bail.[2] The applicant bears the burden of satisfying the Court as to the existence of a compelling reason.[3]
In determining whether a compelling reason has been made out, the Court must take into account the ‘surrounding circumstances’ outlined in s 3AAA of the Act.[4]
[4]Ibid, s 4C(3).
The meaning of a compelling reason is not defined in the Act. The Court of Appeal in Rodgers v The Queen[5] stated the following:
There was no dispute between the parties on this appeal concerning the principles to be applied when considering…
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- AGLC
- Re Application for Bail by Gastello [2020] VSC 548
- Case
- [2020] VSC 548
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the applicant had established a compelling reason for the delay and whether the delay affected the administration of justice. The court also had to consider whether the applicant posed an unacceptable risk to the community if granted bail. The applicant argued that he had established a compelling reason for the delay due to his medical condition. The applicant further submitted that he did not pose an unacceptable risk to the community.
Justice Smith found that the applicant had established a compelling reason for the delay due to his medical condition. The court also found that the delay did not affect the administration of justice. In relation to the risk to the community, the court found that there was no unacceptable risk to the community if the applicant was granted bail. The court granted the applicant bail subject to certain conditions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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