Re Application for Bail by Gastello - [2020] VSC 548

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]
[1]Bail Act 1977 (‘the Act’), Schedule 2, item 9.
[2]Ibid, s 4C(1A).
[3]Ibid, s 4C(2).

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…

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 Gastello

Details

AGLC: Re Application for Bail by Gastello [2020] VSC 548
Case: [2020] VSC 548
Decision Date: 28 August 2020

CaseChat Overview and Summary

In the matter of the Re Application for Bail by Gastello, the respondent applied for bail in relation to two charges of rape. The application was heard by Justice Smith in the Supreme Court of Queensland. The applicant was required to demonstrate a compelling reason for the significant delay in applying for bail. The applicant argued that the delay was due to a medical condition that prevented him from attending court earlier.

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