Re application for bail by Russo

[2017] VSC 775

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0333

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for Bail by Angelo Pat RUSSO

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 December 2017
DATE OF JUDGMENT:	21 December 2017 (ex tempore)
CASE MAY BE CITED AS:	Re application for bail by Russo
MEDIUM NEUTRAL CITATION:	[2017] VSC 775

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CRIMINAL LAW – Application for bail – Murder and alternative charges – Direct indictment following discharge at committal – Whether exceptional circumstances justifying grant of bail – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I Hill QC	Galbally & O’Bryan Lawyers
For the Crown	Ms F Dalziel	Mr J Cain, Solicitor for Public Prosecutions

HIS HONOUR:

1. By notice dated 18 December 2017, the applicant, Angelo Pat Russo, makes application for bail.

1. He comes before this Court by an indirect path, whereby he was discharged on a charge of murder at his committal proceeding, the allegation being that he had on 18 February of this year murdered Mr David Calandro.

1. The circumstances may be stated briefly.  It is common ground that Mr Calandro died as a result of a gunshot wound inflicted as a result of the discharge of a shotgun and at the time of the discharge, the gun was in the possession of the applicant.

1. The prosecution case, put simply, is that it was a deliberate discharge of the firearm, carrying with it the inevitable inference that it was with intent to cause death or really serious injury.

1. The applicant’s defence, on the other hand, is that the firearm had discharged accidentally, and he has maintained that position.

1. At the end of the committal proceeding on 27 November, the applicant was discharged in relation to the charge of murder but committed to trial for manslaughter and alternative charges. He was admitted to bail, having satisfied the committing magistrate that he had shown cause why his detention in custody was no longer justified.

1. On 7 December 2017, there was a post-committal directions hearing relating to the manslaughter charge, and a trial was fixed for 7 May 2018. Subsequently, on 18 December, a direct indictment was filed in the Supreme Court and as a result the applicant was remanded in custody.  It is those circumstances which give rise to this application.

1. It is accepted that the applicant can only be admitted to bail if exceptional circumstances justifying that course be shown.  He puts forward a number of matters which were set out in the affidavit in support of bail and relied upon to varying degrees by Mr Hill, one of Her Majesty's counsel, who appears on behalf of the applicant, and they are these:  the applicant has no prior convictions; the charge of murder is doomed to fail and the applicant has a realistic chance on the remaining charges; the applicant will lose his Tatura East farm if he cannot manage it; the applicant assists with the care of his seriously ill elderly father; the applicant has already spent 10 months in custody; the applicant complied in full with the onerous bail conditions between his release on 30 November 2017 and remand in custody ­­— that is for 17 days; the applicant has a satisfactory address at which he was residing during the earlier period of bail; that he can provide a surety; and that he is not an unacceptable risk.

1. In addition to the way those matters were put, it was submitted that the discharge at the committal hearing of itself, or coupled with the applicant’s subsequent release on bail, might be regarded as an exceptional circumstance.  I expressed the view in discussion that that was not so, but it is one of the matters to be taken into account.  It is simply a fact in this case that the applicant was given the opportunity to be on bail.  He availed himself of that opportunity and satisfactorily complied with his bail conditions during that period.

1. It follows, therefore, that the application is put on the basis that that matter in combination with the other matters that I have set out are capable of and do amount to exceptional circumstances.

1. It was submitted on behalf of the respondent that those matters do not amount, either separately or in combination, to exceptional circumstances. While accepting that this would be a triable case, it was submitted that there are reasonable prospects of conviction.  It had been noted in the affidavit in opposition to the application for bail, and in the submissions made by Ms Dalziel, who appeared for the respondent, that there were serious questions about the discharge at the committal hearing on the basis that the magistrate had failed to deal with the case at its highest and that he had not had proper regard to the post‑offence conduct alleged by the prosecution which, it was submitted, threw significant light upon the question of whether, without reversing the onus, the defence of accident could be made out.

1. I have had regard to all the material that has been put before me on behalf of both the applicant and the respondent. In all of the circumstances of the case, I am not satisfied that exceptional circumstances have been made out and the application will be refused.

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