Spiteri v Director of Public Prosecutions

[2014] VSC 566

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0159

JACOB JOSEPH SPITERI	Applicant
v
THE DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Bongiorno JA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2014
DATE OF JUDGMENT:	10 November 2014
CASE MAY BE CITED AS:	Spiteri v DPP
MEDIUM NEUTRAL CITATION:	[2014] VSC 566

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CRIMINAL LAW – Application for bail – Application refused – Bail Act 1977, s 4(4)(c)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P D’Arcy	Office of Public Prosecutions
For the Accused	Ms L Ristivojevic	Tricarico Lawyers

HIS HONOUR:

1. Jacob Spiteri was charged on 25 July 2014 with conspiracy to murder.  He was remanded in custody.  He now seeks bail.

1. The facts surrounding the conspiracy include his being in possession of a gun and a ‘speedloader’ in a motor vehicle with another man in the vicinity of the home of the alleged intended victim.  There is also considerable other evidence linking him to the offence which need not be elaborated here.

1. The applicant’s counsel conceded that there is a case to answer on the conspiracy charge. However, she also contended that, despite the ominous presence of the gun and its accessory, Mr Spiteri is prima facie entitled to bail. She argued that s 4(4)(c) of the Bail Act 1977 does not apply, because the accused’s possession of the gun, whilst potentially highly probative of the alleged conspiracy, occurred only after the alleged conspiracy was completed.  Counsel for the Crown submitted in response that the firearm was part of the whole plan and agreement to commit murder; its use was therefore ‘in the course of committing’ the conspiracy to murder.

1. I accept the accused’s contention on this point.  The alleged offence of conspiracy to murder is complete upon the agreement being reached.  Carrying the firearm was in pursuance of that agreement, and, logically, highly probative of it.  So, whilst the possession of the gun does not put the accused in a ‘show cause’ situation as to bail, it indicates the strength of the Crown case and is still extremely damaging to his prospects of success on this application.

1. Mr Spiteri is no stranger to the courts even if, as his counsel said, he has never been incarcerated before.  His record for one so young is not impressive.  He is only 23 years of age but has quite a number of convictions for violent offences, including aggravated burglary.  More importantly, on two prior occasions he has failed to answer his bail and on those occasions he was facing significantly less serious charges than those which he now faces.  Further, on a prior occasion, when he was on conditional bail, he breached a serious condition of that bail, namely, that he not associate with a co-accused.

1. I have carefully considered Mr Spiteri’s counsel’s eloquent advocacy on his behalf and I have read the affidavit in the material filed by his solicitor.  I note that he is able to offer a significant surety ($200,000) to ensure his attendance at court when required.

1. Mr Spiteri is also on remand in respect of a charge of attempting to pervert the course of justice.  Initially I thought that, as the matter of his conspiracy charge was before the Court today, it would be convenient to deal with an application for bail in respect of the attempt to pervert the course of justice charge as well.  However, as I have decided to refuse bail on the conspiracy charge, I will not determine the question of bail on the attempt to pervert the course of justice charge.  That can be dealt with elsewhere when and if appropriate.  I only indicate that, if I had granted bail on the conspiracy charge, I would also have granted bail on the attempt to pervert the course of justice charge.

1. Bail is refused on the conspiracy to murder charge.  I consider that the applicant would be an unacceptable risk of committing offences if he were granted bail and would be at an unacceptable risk of failing to answer his bail regardless of any surety he might put up.  The application is refused.

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