Re Rapisarda
[2022] VSC 192
•14 April 2022
| 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 relation to the lender’s intention to issue a default notice. APS spoke to the deceased and told him the loan was $1060.09 in arrears, and that they intended to issue a letter of demand. Both the deceased and Owen communicated these matters to the applicant via text message. At this time, the applicant also owed debts to Alinta Energy, South East Water, Fines Victoria, Padua College, Westpac, Bank of Melbourne and Right Road Finance.
On the morning of 16 September, the applicant’s wife and daughter left for work. The applicant and deceased remained at the property. The deceased was drinking beer. At one point, they spoke in the driveway for approximately five minutes, and their conversation appeared to be heated, as the deceased repeatedly gestured and shook his head. This was captured on CCTV.
Around 9:30am, the deceased carried a rifle bag from the house to the garage, and began firing the rifle at a target on a tree. Shortly before 10:00am, the applicant went out briefly to buy petrol. When he returned, he joined the deceased and inspected the target.
CCTV footage shows the deceased entering the garage at 10:32am, followed by the applicant at 10:39am. There was no CCTV inside the garage. The prosecution allege that whilst in the garage, the applicant shot the deceased once in the back of the head.
The applicant exited the garage at 10.55 am and called ‘000’. Ambulance paramedics arrived. The applicant led them to the garage, where the deceased’s body was found in the rear left corner, propped up against some wood offcuts. The rifle was on a workbench approximately 1.5 metres from the deceased. At 11:15am the deceased was pronounced dead.
On 17 September a post mortem examination was conducted. The cause of death was determined to be a single gunshot wound to the head, which entered behind the deceased’s left ear. The report noted that there was no muzzle imprint, stippling or soot at the wound site; that the deceased’s arm reach was 75cm (relevant to the possibility of whether he could have shot himself), and that the deceased had a blood alcohol reading of 0.05 gm/100ml at the time of death.
The applicant participated in two records of interview on 16 and 17 September 2017. He told police initially he did not touch the rifle, but later said he had inspected it and fired one shot into the target. He said he had a financial agreement with the deceased and that he was the sole beneficiary of the deceased’s estate. He was also the deceased’s primary carer. He was released without charge pending further inquiries.
Police obtained an expert report from Professor Marcus Pandy, who considered whether it was physically possible for the deceased to have inflicted the wound, using his left hand. The deceased was right handed, although had a history of right hand pain and swelling, due to a decade-old injury. It was Professor Pandy’s expert opinion that, “while it may have been possible for the deceased Mr Dennis Pollock to have shot himself, it is unlikely for this to have occurred given the information available”.
On 5 March 2022, the applicant was arrested at the Baxter property and taken to Frankston Police Station, where he was charged with murder and remanded into custody.
The legislation
Pursuant to s 4A(2) of the Act, the applicant bears the burden of satisfying the Court that exceptional circumstances exist that justify the grant of bail.
I am required to take into account the guiding principles in s 1B(1) when applying and interpreting the Act. In considering whether exceptional circumstances exist, I must take into account the surrounding circumstances, including, but not limited to, the matters set out in s 3AAA(1) of the Act.
If I am satisfied that exceptional circumstances exist that justify the grant of bail, I must then apply the unacceptable risk test.[1] I must again take into account the surrounding circumstances, including, but not limited to, the matters set out in s 3AAA(1) of the Act.[2] I must refuse bail if I am satisfied that there is an unacceptable risk of the kind set out in s 4E(1)(a) of the Act.[3] The prosecution bears the burden of proving both the existence of the risk, and that the risk is unacceptable.[4]
[1]The Act, s 4D(1)(a).
[2]Ibid, s 4E(3).
[3]Ibid, s 4D(3).
[4]Ibid, s 4D(2).
The applicant
The applicant is 49 years old. He was born in Italy and emigrated to Australia in 2005. He is a permanent resident of Australia and an Italian citizen. He has been married to his wife, Maria Rapisarda, for 16 years, and they have a 19 year old daughter.
The applicant is said to have maintained full time employment since his arrival in Australia, and worked as an assistant manager for Coolibah Herbs in Pearcedale prior to his arrest. The applicant is the registered proprietor of the Baxter property, where he has continued to reside with his family following the deceased’s death and up until his recent remand.
The applicant has no prior convictions and no other outstanding matters.
The viva voce evidence
The informant gave evidence that the delay between the incident and charging the applicant with murder, was due to a combination of factors; expert reports were needed; there was a telephone intercept placed on the applicant’s phone in 2018, and much of the product required translating from Italian; there were resourcing issues and delays due to COVID-19. The investigation is now complete and the matter ready for trial. He was cross-examined about aspects of the brief, relevant to the strength of the prosecution case.
The applicant’s wife, Maria Rapisarda, gave evidence that they have been married since 2006, and if bailed, the applicant will reside with her and their daughter at the Baxter property. Her extended family live in Australia. The applicant has never been violent in any way, he does not drink and does not use drugs. He just lost his job due to being on remand, but has always found employment. She works, and her income is sufficient to support them if he were not working. She gave an undertaking to the Court that she would notify the informant if she became aware of any breaches of bail by the applicant.
Maria Sita gave evidence that she was prepared to post a surety of $75,000, which is money she has in her savings account. She is aware that if the applicant breaches his bail, she will lose her money. She has known the applicant around 15 years, and he was always very kind to her husband.
The applicant’s submissions
The applicant relies on a combination of factors to establish exceptional circumstances.
The applicant submits that the prosecution case is circumstantial, relying upon him entering the garage at around the time the deceased was shot. However, the applicant lived at the property, and his explanation that he found the deceased at this time and tried to revive him, before calling an ambulance, is plausible. Gunshot residue was not found on the applicant’s hands or skin. The applicant points to the expert evidence of Professor Pandy, whose expertise will be challenged, but whose opinion also permits of the possibility that the deceased could have shot himself. The applicant intends to call expert evidence at the trial to say that it was possible the deceased could have fired the fatal shot himself. There are triable issues between the parties, and it is not a strong case.
The applicant notes the delay of over four years between the alleged offence and his arrest. During this period, and despite being aware he was a suspect, the applicant has not left the jurisdiction. His solicitor has made inquiries of the informant “on numerous occasions” as to the state of the investigation.
The applicant was in full time employment at the time of his remand. As a result of being imprisoned, he has lost that employment, but has a positive work history and intends to regain employment as soon as he is able.
The applicant has been married for 16 years, his wife is employed and his young adult daughter is in second year of University. His own family reside in Italy, but he has significant ties to the jurisdiction through his wife, wife’s extended family and daughter. He and his wife pay the monthly mortgage on the Baxter property, and he has stable accommodation available at that property.
There is a suitable surety available in the amount of $75,000.
The delay between charge and trial is likely to be approximately two years. This delay, alone, would not constitute exceptional circumstances, however in combination, it is a relevant and important factor.
Finally, the applicant submits that the fact the respondent concedes he is not an unacceptable risk of the kind set out in the Act, is a matter that can be taken into account in the applicant’s favour when deciding whether he has demonstrated exceptional circumstances.
The respondent’s submissions
The respondent submits it is not a weak prosecution case, but there are “issues” and ultimately it is a matter for a jury. It is a “middle of the road position in terms of strength of the case”, and is not a factor which affects whether exceptional circumstances have been shown.
The respondent submits that there are features which the Court could rely upon to find exceptional circumstances, but on balance, the test has not been met.
The victims, being the relatives of the deceased, oppose bail.
The informant assessed the risk factors applicable to the applicant, were he to be released on bail, and concluded he could not assert that the applicant would present an unacceptable risk, based on the surrounding circumstances of the applicant and the case.
Analysis
Exceptional circumstances
The Act does not define what may amount to exceptional circumstances. For the circumstances to be exceptional, the circumstances relied upon must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail. The threshold is high, but it is not an impossible standard. Exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[5]
[5]See, eg, Re CT [2018] VSC 559 at [64]–[66] and the cases referred to therein.
I acknowledge the applicant contests the charge and the allegations are unproven. However, I am required to take into account the nature and seriousness of the alleged offending, including whether it is a serious example of the offence. Murder is the most serious offence, and this is a reasonably serious example. The prosecution case is that the deceased was shot in the head, in his own garage, and the applicant’s killing was motivated by a desire to alleviate his own financial problems.
In my view, the prosecution case is not overwhelming, but it is certainly not weak. On the available expert evidence, it is possible but unlikely for the deceased to have shot himself. There is evidence of motive, and the applicant profited from the deceased’s death. Of course, at this early stage, Professor Pandy’s qualifications and opinion have not been tested. The defence have foreshadowed that they will obtain their own expert evidence. Having considered the arguments made by the applicant as to the strength of the prosecution case, I agree with the respondent that the strength of the prosecution case is not a factor that assists the applicant. However, nor is it a factor that makes his task very difficult or almost insurmountable. I regard this factor as neutral.
The applicant has no prior convictions and nothing pending. He has stable accommodation, ties to the jurisdiction and strong family support. He was working prior to his remand, and according to his wife, has always found work.
The brief of evidence in this matter is complete. The trial will take place in this Court, and while there is some backlog resulting from the pandemic, the delays are not of the magnitude seen in the lower courts. Assuming the matter is not “fast tracked”, and there is a contested committal, it is likely the trial will take place in early 2024, meaning a delay of approximately two years. This factor alone would not establish exceptional circumstances, but it is nonetheless significant. No question arises here as to any period on remand exceeding any time the applicant might receive by way of sentence, if convicted of this offence.
Conditions in custody continue to be more onerous due to COVID-19. Restrictions may have eased at times, but overall conditions on remand remain adversely impacted by COVID-19, and prisoners must endure less freedom within the prison system, and less access to friends and family.
The respondent concedes that the applicant does not present an unacceptable risk if released on bail with conditions. In my view, the absence of the matters detailed in s 4E constituting unacceptable risk, is to be taken into consideration when determining whether exceptional circumstances have been established.[6]
[6]Re Application for Bail by MICHAEL PICKERSGILL [2013] VSC 715, [18] (Dixon J).
The alleged crime occurred in September 2017. An unusual feature of this application is that the applicant has remained in Victoria, living at the same address, for the past four and a half years. During that period, he knew the police investigation was continuing; that he was a suspect; and that he might eventually be charged with murder. Nonetheless, he did not leave the jurisdiction or do anything to impede the investigation. He continued to work, and his solicitor made regular inquiries as to the progress of the investigation.
Finally, there is an available surety of $75,000. Whilst this a relatively modest amount, it is nonetheless an additional factor in the applicant’s favour.
Pursuant to s 4 of the Act, a person accused of an offence is entitled to bail unless the Act requires the bail decision maker to refuse bail. The applicant is presumed innocent. The respondent does not assert he presents a risk to the safety of the community, if released on bail.
Taken in isolation, no factor establishes exceptional circumstances. However when assessed in combination, the matters I have outlined, particularly the four and a half year delay between the incident and charge, and the applicant’s unremarkable and lawful conduct during that period, satisfy me that exceptional circumstances have been demonstrated justifying the applicant’s release on bail.
Unacceptable risk
Pursuant to the legislation, I must next apply the unacceptable risk test.[7]
[7]The Act, s 4D(1)(a).
Here, the respondent does not allege there is any unacceptable risk if the applicant is released on bail with conditions. There is no evidence before me that would allow me to find otherwise. It follows that I am not satisfied that the applicant represents an unacceptable risk of the kind set out in s 4E of the Act.
Conclusion
The applicant will be admitted to bail on his own undertaking with a single surety of $75,000 on the following special conditions:
1.He attend the Melbourne Magistrates’ Court on 22 April 2022 at 9:30am and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
2.He reside at 21 Station Street, Baxter, Victoria.
3.He not contact or associate with, directly or indirectly, including electronically, any witness for the prosecution except the informant and Maria Rapisarda.
4.He not leave the State of Victoria.
5.He not attend any points of international departure.
6.He surrender any passports or other travel documents to the informant within 24 hours of release and not obtain or apply for others.
7.He report to the officer in charge, or their nominee, at the Frankston Police Station every Monday, Wednesday and Friday between the hours of 6:00am and 8:00pm, commencing Friday, 15 April 2022.
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