Salnitro v The Queen

[2013] VSC 389

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0102

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by BRODIE SALNITRO

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JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2013
DATE OF JUDGMENT:	18 July 2013
CASE MAY BE CITED AS:	Salnitro v R
MEDIUM NEUTRAL CITATION:	[2013] VSC 389

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CRIMINAL LAW – Bail – Violence-related offences and attempting to pervert the course of justice – Applicant in ‘show cause’ situation – Burden on applicant to show exceptional circumstances – Delay, age of applicant and period of time already spent in custody compelling factors – Bail granted – Strict conditions imposed – Bail Act1977 (Vic) s 4(4)(a) and (c).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G. Traczyk	C Marshall & Associates
For the Respondent	Ms D. Piekusis	Office of Public Prosecutions

HIS HONOUR:

1. The applicant, Brodie Salnitro, was arrested in March 2012 and has been in custody since that time.  He is 22 years of age.  He has some relatively minor prior convictions but has never been in prison before.  He has been charged with a number of serious criminal offences and has been committed for trial on all of them.  His trials are scheduled to be heard in the County Court in February 2014, almost two years since his arrest.

1. The offences upon which Salnitro is to be tried arise out of a series of separate episodes of alleged violence of which he is said to have been the actual perpetrator, or to have been complicit with those who were the actual perpetrators.  Those episodes are said to have occurred on 1 November 2011, mid February 2012, 20 February 2012 and 8 March 2012.  The offences include assaults of varying severities, false imprisonment and kidnapping.  He has also been committed for trial on offences of attempting to pervert the course of justice arising from subsequent alleged attempts through others to intimidate or otherwise influence witnesses.

1. All of these offences are alleged to have been committed whilst Salnitro was on bail awaiting trial on similar allegations.  That trial commenced in May 2013 but was eventually the subject of a notice of discontinuance, filed by the Director of Public Prosecutions on 5 July 2013 before the trial was concluded, after the trial Judge excluded evidence which must have been considered vital to the Crown case.

1. The applicant has made bail applications in the Magistrates’ Court and the County Court at various times, which have been unsuccessful for various reasons which do not need to be examined further at this point.

1. Mr Traczyk, of counsel for the applicant, relied upon the delay, past and future, in bringing the applicant to trial, the relevant weakness of the Crown case in many respects, as well as the alleged lack of evidence as to the applicant being a danger to witnesses, or the ends of justice, if bailed.

1. The offences upon which the applicant is to be tried are complex in their factual foundations.  They are serious.  But upon cursory examination of them, and the evidence relied upon by the Crown in the context of a bail application, it cannot be said that they are strong.  Their success or otherwise will sometimes depend on evidence of witnesses and victims being accepted by the jury in circumstances in which it may not be difficult, in every case, to demonstrate that such witnesses may have an agenda of their own.

1. There may also be difficulties faced by the Crown in proving the applicant’s actual involvement and the extent of it in some cases.  It is unprofitable to pursue this examination further at this stage, although it should be noted that although the applicant has been committed for trial, no indictment by a prosecutor has yet been filed by the Crown. I proceed on the conclusion that although there is a case against the applicant on at least some of the charges upon which he has been committed, it cannot be said that the case is a strong one.

1. As far as the allegations of attempting to pervert the course of justice is concerned, the Crown case largely depends upon the interpretation of sometimes equivocal statements made by the applicant to associates from prison by telephone.  Some of those statements certainly raise serious concerns.  Whether they are sufficient to found an indictment or secure a conviction remains to be seen.

1. When the Crown case is considered in light of the delay involved in this case, together with the age of the accused and the fact that he has already undergone a long period of imprisonment, the case for his being granted bail becomes quite compelling, provided that justifiable concerns of the police investigators can be accommodated by strict conditions, reporting and otherwise.

1. Because the allegations against the applicant include allegations of the use of firearms and offensive weapons, and because the applicant was on bail at the time the offences are alleged to have been committed, the provisions of ss 4(4)(a) and (c) of the Bail Act1977 (Vic) apply to require the applicant to demonstrate that his continued incarceration is not justified in the circumstances.

1. I am satisfied that the legitimate concerns raised by the Crown can be accommodated by strict conditions. Accordingly, I conclude that the applicant’s continued detention is not justified if those conditions are imposed and adhered to.

1. The applicant’s father gave evidence before me to the effect that he would supervise the applicant if he was permitted his freedom and the applicant acceded to conditions which, in effect, would enable his father to exercise close supervision of all his activities.

1. The applicant will be released on bail on his own undertaking on the following conditions:

1.   The said BRODIE SALNITRO reside at [withheld].

2.   The said BRODIE SALNITRO report each Monday, Wednesday and Friday to the Officer in Charge of the Police Station at [withheld] or his nominee between the hours of 07:00 and 21:00.

3.   The said  BRODIE SALNITRO not contact directly or indirectly any witness for the Prosecution except the Informant or his nominee or to cause other persons to contact directly or indirectly any witness for the Prosecution except the Informant or his nominee.

4.   The said BRODIE SALNITRO not associate with or contact directly or indirectly[withheld], such prohibition not to include communication with any such persons by the applicant’s lawyers, in the exercise of their professional obligations, on the applicant’s behalf.

5.   The said BRODIE SALNITRO provide an up-to-date mobile phone contact number and provide details of any change to that number to the informant within 48 hours of acquiring a mobile phone.

6.   The said BRODIE SALNITRO not enter the Shire of Melton otherwise than in the company of his father.

7.   The said BRODIE SALNITRO remain at [withheld] every day between the hours of 21:00 and 06:00 the following day otherwise than in the company of his father.

AND, in compliance with section 4(4)(i) of the Bail Act 1977(Vic) annexes to this order its reasons for granting bail.