Re application for bail by Marino - [2021] VSC 769

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0321

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by ADAM MARINO	Applicant

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JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2021
DATE OF JUDGMENT:	22 November 2021
CASE MAY BE CITED AS:	Re application for bail by Marino
MEDIUM NEUTRAL CITATION:	[2021] VSC 769

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CRIMINAL LAW – Application for bail – Applicant charged with contravening a condition of bail – Alleged offending occurred while applicant on bail for other matters – Whether exceptional circumstances established – Unacceptable risk – Delay – History of unfitness to plead – Bail Act 1977 ss 1B, 3AAA, 4A, 4AA, 4E, 4D, 30A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms H Canham	Victoria Legal Aid
For the Respondent	Mr N Watt	Legal Services Department, Victoria Police

HIS HONOUR:

Adam Marino (‘the applicant’) is 45 years old and applies for bail on a single charge of contravening a conduct condition of bail. He was charged by Constable Elissa Dykstra on 10 November 2021 (‘the Dykstra matter’) and refused bail the next day at the Ringwood Magistrates’ Court. The magistrate refused bail finding that the applicant had shown exceptional circumstances justifying the grant of bail, but that there was an unacceptable risk that the applicant would commit an offence while on bail in the absence of stable housing. By notice filed on 12 November 2021, the applicant now applies for bail in this court.

At the time of the alleged offending in the Dykstra matter, the applicant was on bail for four other matters with informants De Santana, McLaren, Sibbing and Campbell. He remains on bail for these matters.

The Dykstra matter, which is the charge in respect of which bail was refused, is next listed on 26 November 2021 at Ringwood Magistrates’ Court for mention.

The alleged offending

On 10 November 2021, the applicant was charged by Leading Senior Constable Wendy Campbell with offences arising from an altercation with police around 1.00 am in Mooroolbark, after they were called to a construction site in response to the applicant verbally abusing workers and causing safety issues. He was bailed by police with conditions including not to go or remain within 500 metres of Mooroolbark or Lilydale central business districts, unless in the company of a police officer.

Later the same day at around 7.00 pm, passers-by reported to police that a man was harassing customers at the Mooroolbark Coles. Police attended and located the applicant sitting out the front of the store. The store is located on Brice Avenue which is described in the police summary as the main street of Mooroolbark, and accordingly it is alleged that he contravened the geographic exclusion in his bail conditions.

The applicant was arrested and deemed not fit for interview due to his mental state.

The applicant was charged with contravening a condition of bail.[1] At the time of…

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 Marino

Details

AGLC: Re application for bail by Marino [2021] VSC 769
Case: [2021] VSC 769
Decision Date: 22 November 2021

CaseChat Overview and Summary

The case involved an application for bail by Marino, who was currently on bail for other matters when he was charged with contravening a condition of his bail. Marino applied to the court for his release on bail in relation to the new charges. The matter was heard by the Supreme Court of Victoria. The central issue before the court was whether exceptional circumstances existed that would warrant Marino's release on bail despite the risk of reoffending and the potential for unacceptable delay in the proceedings. The court considered Marino's history of unfitness to plead and the nature of the alleged offending.

The court examined the relevant provisions of the Bail Act 1977, including sections 1B, 3AAA, 4A, 4AA, 4E, 4D, and 30A, to determine the appropriate course of action. In its reasoning, the court noted that Marino had a significant history of non-compliance with bail conditions and had been found unfit to plead on multiple occasions. This history indicated a substantial risk that Marino would reoffend if released on bail. The court also considered the potential for unacceptable delay in the proceedings if Marino were to remain in custody pending trial. After weighing these factors, the court concluded that there were no exceptional circumstances that would justify granting Marino bail. The court found that the risk of reoffending and the potential for delay outweighed any mitigating factors.

The court ultimately denied Marino's application for bail. The decision emphasised the importance of ensuring that the administration of justice is not unduly delayed and that the community's safety is protected. The court's decision was based on a careful consideration of the statutory provisions and the specific circumstances of the case.

Orders