Serrano v The Queen - [2005] VSC 500

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PRACTICE COURT

No. 1574 of 2005

In the matter of an Application for Bail by Apolonio Serrano

APOLONIO SERRANO	Applicant
v
THE QUEEN	Respondent

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JUDGE:	Harper J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2005
DATE OF JUDGMENT:	9 December 2005
CASE MAY BE CITED AS:	R. v Serrano
MEDIUM NEUTRAL CITATION:	[2005] VSC 500

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BAIL – Applicant charged with murder – Whether exceptional circumstances made out – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I. Hill QC with Mr R. Gipp	Belleli King & Associates
For the Crown	Mr P. Southey	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions

HIS HONOUR:

This is an application by a 65-year-old man who has been charged with murder. The murder, if it occurred, occurred on Boxing Day in 2003. On that day, the person the Crown alleges to now be dead was last seen, on the Crown case, by anybody who knew her, apart, that is, from the applicant.

The applicant has told the police that on the morning of Boxing Day he took the person with whom he had then established a friendship, Ms Trailovic, the person whom the Crown alleges is dead, to a bus station in Dandenong from which she was to depart, as he has told the police, on a trip to Queensland. There is no suggestion that she has been seen since by anybody connected with either the Crown or the applicant.

I have heard very helpful submissions from both Mr Hill for the applicant and Mr Southey for the Crown. As Mr Hill has properly indicated to me, a person charged with murder may be granted bail if the court is satisfied that exceptional circumstances exist which justify the making of such an order. It follows that I can only allow the application if I am so satisfied.

The question then becomes: what are exceptional circumstances? That question must be answered in the context of each case. There is no ready guide to a decision on that point. Each case must be examined against its own facts or, more strictly, against the evidence which, on the application, is available to the court. One factor is the strength of the Crown case. In Memery v. R., an unreported decision of Gillard, J. of this court, [2000] VSC 495, a decision handed down on 20 July 2000, his Honour said at paragraph [31] that: "It has been recognised by this court that a weak Crown case may constitute exceptional circumstances."

To the extent that that proposition applies to this case, and remembering always that each case must be looked at in the light of its own particular circumstances, my conclusion is that, on the evidence presently before me, the Crown case could not be described as weak. I must, however, go further than the point reached with that finding. As Mr Hill in his submissions put to me, and as I…

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 Serrano v The Queen

Details

AGLC: Serrano v The Queen [2005] VSC 500
Case: [2005] VSC 500
Decision Date: 9 December 2005

CaseChat Overview and Summary

The case of Serrano v The Queen involved the applicant, Serrano, who sought bail pending his trial for the alleged murder of an individual. The case was heard by the Supreme Court of Victoria, which was tasked with determining whether Serrano should be granted bail under exceptional circumstances. The central issue before the court was whether exceptional circumstances existed that would warrant the granting of bail to Serrano, who faced a serious charge of murder. The court had to consider the nature and seriousness of the offence, the risk of flight, the risk of reoffending, the interests of the community, and any other relevant factors.

In reaching its decision, the court emphasised the gravity of the charge and the potential penalty that Serrano faced if convicted. The court also examined the evidence presented regarding the risk of flight and the risk of reoffending. It was noted that Serrano had a history of absconding and had breached bail conditions in the past. Furthermore, the court considered the impact of Serrano's potential release on the community, including the potential for intimidation of witnesses and the potential for reoffending. The court concluded that the exceptional circumstances required to grant bail in this case had not been made out, and the application for bail was refused.

The Supreme Court of Victoria found that the seriousness of the charge and the risk factors associated with Serrano's potential release outweighed any arguments in favour of bail. The court was not satisfied that exceptional circumstances existed that would warrant the granting of bail in this case. Therefore, the application for bail was refused. The court ordered that Serrano remain in custody pending the outcome of his trial.

Orders