Re Rapisarda - [2022] VSC 192

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

Not Restricted

CRIMINAL DIVISION

S ECR 2022 0078

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by BARTOLOMEO RAPISARDA

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JUDGE:	FOX J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2022
DATE OF JUDGMENT:	14 April 2022
CASE MAY BE CITED AS:	Re Rapisarda
MEDIUM NEUTRAL CITATION:	[2022] VSC 192

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CRIMINAL LAW – Bail application – Murder – Exceptional circumstances – Respondent concedes applicant not an unacceptable risk – Four and a half years between incident and charge – Applicant remained living with family and working during that period – Applicant 49 years old – Strong family support – Stable accommodation – No prior convictions – No other charges pending – Modest surety – Delay – Exceptional circumstances established by a combination of factors – Bail granted – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Fitzpatrick	Waters Lawyers
For the Respondent	Mr A Grant	Office of Public Prosecutions

HER HONOUR:

Bartolomeo Rapisarda applies for bail on one charge of murder.

Murder is a Schedule 1 offence and pursuant to s 4AA(1) of the Bail Act 1977 (‘Act’), therefore the applicant must show exceptional circumstances justifying his entry into bail.

The alleged offending

On 16 September 2017, 64 year old Dennis Pollock (‘the deceased’) died from a single gunshot wound to the head. The prosecution allege the applicant shot the deceased in the garage at 21 Station Street, Baxter (‘Baxter property’), where they were both living at the time.

The applicant and the deceased were introduced through the deceased’s former partner, who passed away in March 2015. Soon after, the applicant, together with his wife and daughter, moved in with the deceased at the Baxter property. A Deed of Arrangement was drafted between the applicant and the deceased, which provided that the applicant would undertake renovations at his own expense, and pay the deceased’s mortgage and other expenses. In return, the applicant and his family would live at the property with the deceased, until his death, upon which the property would be transferred to the applicant as provided for in the deceased’s Will dated 15 June 2016. The applicant was named executor and sole beneficiary of the deceased’s residual estate, including the Baxter property.

In January 2017, the applicant tried unsuccessfully to obtain a personal loan through a broker, Mr Owen (‘Owen’). Owen advised that the only way to secure finance was to use his wife and the deceased as loan applicants. The applicant then approached the deceased, who agreed to use the Baxter property as security for the loan. In March 2017, the deceased and the applicant’s wife successfully obtained a loan of $35,000 from APS Benefits Group (‘APS’).

From 12 May 2017, a number of loan repayments failed and the loan fell into arrears. On 15 September 2017, Owen tried unsuccessfully to call the applicant in…

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 Rapisarda

Details

AGLC: Re Rapisarda [2022] VSC 192
Case: [2022] VSC 192
Decision Date: 14 April 2022

CaseChat Overview and Summary

In the matter of Re Rapisarda, the applicant sought bail in relation to a charge of murder. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether exceptional circumstances existed to justify the granting of bail given the applicant's advanced age, the length of time that had elapsed between the incident and the charge, the applicant's ties to family and employment, and the lack of any prior convictions or pending charges.

The court considered the definition of exceptional circumstances under the Bail Act 1977 (Vic) and evaluated the various factors presented by the applicant. The court acknowledged the respondent's concession that the applicant did not pose an unacceptable risk to the community. The court found that the combination of factors, including the four and a half year delay before the charge, the applicant's continued residence with family, employment history, strong family support, stable accommodation, absence of prior convictions, and the proposed modest surety, constituted exceptional circumstances warranting the granting of bail.

Given these findings, the court concluded that the exceptional circumstances test was satisfied and ordered the applicant be granted bail. The court further outlined conditions to be imposed on the bail, ensuring the safety of the community and the likelihood of the applicant's attendance at future court hearings.

Orders