Serrano v The Queen
[2005] VSC 500
•9 December 2005
| 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 accept, if on a proper analysis of the evidence before the court the applicant has established that he has good prospects of a verdict less than guilty of murder, then it may be that exceptional circumstances are made out. The question then becomes whether, on an application of this kind, the applicant has established good prospects of such a verdict. That is a necessarily difficult exercise in very many cases, as it is in this. One thing I think is established on the authorities, and that is that it is for the applicant to persuade the court, albeit on the balance of probabilities, that his prospects are, in the sense adverted to, "good". The burden, I think, necessarily falls upon the applicant because the court must be satisfied that exceptional circumstances exist; and it is clearly not for the Crown to seek to satisfy the court that that conclusion is the appropriate conclusion.
I have considered carefully the materials and submissions put before me by both sides and, as a result of that consideration, have not reached the conclusion that for present purposes the applicant has established that he has good prospects of a verdict less than guilty of murder.
It is true that this is a circumstantial case. It is also true, in my opinion, that the circumstantial evidence, when looked at in total, is sufficiently strong to prevent the applicant, on the evidence before me, from satisfying me that he has good prospects of a verdict less than guilty. I do not mean to suggest, of course, that the outcome of any trial is probable one way or the other. It is not for me to reach any conclusion of that kind. It is also not for me to deal in detail with the circumstantial evidence one way or the other. I say simply that there is a deal of circumstantial evidence and on the basis of it I am not satisfied in the terms propounded by, among others, Gillard, J. in the case of Memery to which I have already referred.
There are other considerations to be taken into account in this as, generally, in other cases. The applicant's age is one such circumstance. He is 65 and an application for bail must be looked at in the light of the fact that the applicant is now an elderly man. His health, to an extent at least, reflects his age. He suffers from osteoporosis. That is a factor which I also take into account, although, as I understand it, his condition is not one which is not susceptible of appropriate treatment while the applicant is incarcerated.
Another consideration is the question of delay between the applicant's arrest in October this year and the likely disposition of this case. In referring to the applicant's arrest in October, I do not put aside the fact that he was earlier arrested, indeed as early as March last year, but allowed after that arrest to remain in the community until taken into custody in October this year. The fact that he has been in custody for now, I think, a month and a half or thereabouts, and that his committal is unlikely to be heard before May next year and may not be heard until July, is a factor to be taken into account in his favour. It was submitted by Mr Southey that, overall, if the committal does take place in May and a trial follows either at the end of next year or early in 2007, it could not be said that the delay was such as to amount to an exceptional circumstance.
Prospective delay is necessarily somewhat difficult to evaluate. It is, however, unlikely, it seems to me, that, assuming that the applicant is committed for trial, the trial will take place next year. These days that apparently is not a delay of such proportions as would amount to an exceptional circumstance, at least given the relative good health of the applicant. Speaking from this position, I think the proper view is that any delay much beyond early 2007 would be disproportionate and might amount to an exceptional circumstance and may well, if there is the likelihood of such a delay, indicate that a further application for bail were appropriate. For the present, however, I have concluded that the delay, prospective as it is, is not of itself an exceptional circumstance within the meaning of s.4 of the Act.
Mr Hill put other matters before me which I have also taken into account. The applicant has no prior criminal history, apart from the suggestion of a conviction in Spain, but I do not take that suggestion into account. I deal with him as a person without a criminal record. He has lived in Australia since 1972 and, as far as is known, has not travelled outside Australia since his arrival here. He was in employment until he was retrenched in 1995 and he is now on a disability pension. Mr Hill submits that he is not a "flight risk" and I accept that there is no evidence that the applicant is such.
On the other hand, these matters are not matters which can of themselves, in my view, at least in the present circumstances, be said to amount to the exceptional circumstances that must be shown if the application is to succeed.
There is one final matter that I should mention. There is some suggestion in the Crown case that the applicant has threatened a witness. The evidence before me does not support that submission and I do not take that into account in coming to my conclusion.
In the end, however, I am not satisfied that exceptional circumstances exist which would justify the allowing of the application. Accordingly, the application is refused.
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