Re Wilio - [2020] VSC 677

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0212

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by NORDEN WILIO

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2020
DATE OF JUDGMENT:	14 October 2020
CASE MAY BE CITED AS:	Re Wilio
MEDIUM NEUTRAL CITATION:	[2020] VSC 677

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CRIMINAL LAW – Bail - Murder of two men by the use of a double-barrelled shotgun from close range – In context of a planned armed robbery – Eye witness would implicate accused – Some supporting evidence - Case of reasonable strength – Delay not excessive – COVID-19 issues - Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Desmond	Emma Turnbull Lawyers
For the Respondent	Mr R Gibson QC with Mr G Hayward	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applies for bail on charges he faces of the attempted armed robbery and murder of one man, and the murder of his co-offender in the attempted armed robbery. The alleged offending took place on 4 March 2019.

Murder is a Schedule 1 offence under the Bail Act 1977 (‘the Act’). As a result, I am required to refuse bail unless the applicant satisfies me that exceptional circumstances exist that justify the grant of bail.

Procedural history

The applicant has been in custody since his arrest on 26 March 2019. This is his first application for bail.

Between 14 May 2019 and 30 November 2019, the applicant served sentences imposed upon him by the Magistrates’ Court for unrelated offending.

The applicant was committed for trial following a contested committal on 4 October 2019. The original trial date of 4 May 2020 was vacated due to the effects of the COVID-19 pandemic. Preliminary argument is listed to commence before me on 7 December 2020. The trial is listed for 17 May 2021. By that time, taking into account the period of remand during which the applicant was serving sentence, he will have been in custody solely on remand for these charges for 582 days.

The alleged offending

The applicant is charged with the murder of one of his associates, Ali Ali (‘Ali’), and of Deniz Hasan (‘Hasan’), who was the target of an attempted armed robbery by the applicant and Ali.

The applicant is alleged to have intentionally shot and killed Hasan, and to have accidentally shot Ali while trying to shoot Hasan. In relation to the death of Ali, the applicant is charged with common law murder (relying on the doctrine of transferred malice) and, in the alternative, statutory murder occurring in the course or furtherance of the attempted armed robbery of Hasan. He is charged with common law murder in respect of Hasan.

It is alleged that on the afternoon…

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 Wilio

Details

AGLC: Re Wilio [2020] VSC 677
Case: [2020] VSC 677
Decision Date: 14 October 2020

CaseChat Overview and Summary

The case of Re Wilio involved the application for bail by the defendant, who was charged with the murder of two men using a double-barrelled shotgun at close range. The murders occurred in the context of a planned armed robbery. An eyewitness claimed to have seen the accused and would likely implicate him. The court had to determine whether the evidence was of sufficient strength to warrant bail and whether any delays in processing the bail application were excessive, especially considering the impact of COVID-19. The accused's arguments for bail were weighed against the risk to the community and the likelihood of the accused attending court if released.

The primary legal issues before the court were whether the evidence presented constituted a case of reasonable strength and whether the delay in processing the bail application was excessive. The court examined the strength of the evidence, which included eyewitness testimony and some supporting evidence. It also considered whether any delays in the bail application process were justified, particularly in light of the ongoing COVID-19 pandemic. Additionally, the court had to assess whether the exceptional circumstances existed to warrant bail despite the risk to the community.

The court found that the evidence presented constituted a case of reasonable strength, with an eyewitness willing to implicate the accused and some supporting evidence. However, the court held that the delay in processing the bail application was not excessive, considering the circumstances, including the impact of COVID-19. The court further determined that exceptional circumstances had not been established, and the risk to the community was unacceptable. Consequently, the application for bail was refused.

The court ordered that the accused remain in custody pending the outcome of the criminal proceedings against him. The court's decision was grounded in the need to protect the community and ensure the accused's attendance at future court hearings.

Orders