Venditti v The Queen [2008] VSC 604

2 The Crown case against Venditti is that Kallipolitis was actually killed by one Andrew Veniamin who shot him a number of times with a weapon which has not been found. When he did so he was accompanied by another man who is implicated in the murder. The Crown alleges that the applicant contracted with Veniamin and the other man to kill Kallipolitis for a fee.

3 The Crown says that in about August of 2002 the deceased became involved in a dispute involving the applicant concerning a car yard in South Melbourne. The dispute arose over the alleged failure of a customer to pay for cars that he had bought. A complex series of transactions eventually resulted in the deceased being involved in collecting or attempting to collect outstanding debts from the applicant. These events are said by the Crown to have led to animosity between the deceased and the applicant.

4 On 26 and 27 September 2002, the deceased sent the applicant three text messages which, the Crown says, demonstrate the existence of that animosity. Two were abusive and one was apologetic. It should be observed at this point that the interpretation the Crown contends for is by no means compelled by the words used in those messages although that interpretation may well be open.

5 The Crown case is that shortly after this the applicant tried to get in touch with Veniamin a number of times and eventually had a meeting with him somewhere in St Kilda at about 5:50 pm on 9 October 2002. There, says the Crown, Veniamin and the other man were contracted to murder Kallipolitis. That murder appears to have been carried out about 10:00 pm three days later, on 12 October. The extent to which the inferences relied upon by the Crown to prove these facts are properly available may well be a matter of argument at committal and/or trial.

6 The applicant has now been in custody since 29 July and applies for bail pending his committal proceeding which is fixed for 30 March 2009. Because of the charge he faces, s 13(2)(b) of the Bail Act 1977 requires that he demonstrate exceptional circumstances in order to be granted bail.

7 The applicant's counsel, Mr Shirrefs of Senior Counsel, put the case for bail by arguing that the weakness of the Crown case against the applicant satisfied the exceptional circumstance required by s 13. This was particularly so, he argued, when combined with a number of other matters such as the probable delay before he will be tried, and his extreme conditions of incarceration.

8 The conditions under which the applicant is presently detained in the Melaleuca Unit at Her Majesty's Prison, Barwon, involve 18 hours per day in his cell. Not only is this oppressive in itself, it is also said to cause difficulty for him in properly monitoring his diabetic condition. Thus the conditions of his incarceration are extremely onerous - a significant consideration in respect of a prisoner who is on remand. Mr Shirrefs also pointed to the applicant's strong family ties within the jurisdiction and similar matters.

9 That a combination of factors can amount to exceptional circumstances for the purposes of s 13(2)(b) is well accepted. There is no reason to exclude the weakness of the Crown case as being a contributor to that combination. Indeed, if, as Mr Shirrefs argued, the Crown case could not succeed on the material before the court, this would, of itself, constitute an exceptional circumstance.

10 For obvious reasons, it is usually not appropriate to canvass the merits of a Crown case on a bail application other than as absolutely necessary. A bail court has engaged in only an interlocutory examination of the case: no witnesses to the facts are called, no evidence is tested, argument is, of necessity, brief, and in this case, as the police informant has conceded, the Crown case may not be in its final form. However, it is necessary to refer briefly to one aspect of the Crown case which, Mr Shirrefs submitted, demonstrates that it cannot succeed.

11 His argument was that it was an essential element of the Crown case that Veniamin shot Kallipolitis and that this element could not be proved on the available evidence admissible against the applicant. Ms Cannon for the Crown pointed to admissions made by Veniamin to a witness, Witness B, before he, Veniamin, was himself shot and killed. Initially she argued that such an admission, if made, could be held against the applicant. However, on reflection, she eventually, and quite properly, withdrew that submission as she recognised that it was unsustainable. However, she suggested no other way in which the lacuna in the Crown case left by the removal of this evidence could be filled. She relied instead on a general submission that all the circumstances of the case have to be taken into account.

12 Even if the necessary connection between the applicant and Veniamin could be established, the case is deficient at least to the extent that the alleged confession of Veniamin will not be able to be used. Mr Shirrefs says this deficiency is fatal. Mr Cannon does not concede that that is so.

13 Whilst Mr Shirrefs' position is extreme, it is not without merit, and it is not necessary for this court at this time to say anything other than that the Crown case on this aspect of the matter is certainly not strong. Faced with this exposed weakness in the Crown case Ms Cannon then argued more generally that the applicant would constitute an unacceptable risk of flight, of interfering with witnesses, and of committing offences if he was on bail.

14 In support of this submission the police informant gave evidence designed to demonstrate an unacceptable risk. He pointed to the applicant's prior convictions and his associates who, it was said, were generally undesirable, some of them being known criminals. He also referred to his numerous large debts, his alleged involvement with drugs and those who use them, and his attempts to circumvent lawful restrictions on his telephone use whilst in prison.

15 Mr Shirrefs conceded the prior convictions alleged but pointed out that they included none for failing to answer bail, or for violence. He gave satisfactory explanations for the large debts (if such were needed) and pointed out as far as the risk of flight is concerned that the applicant had not left the jurisdiction after being interviewed when released in early July this year, although of course he could have, as indeed he could have at any time in the five years which elapsed between Kallipolitis' death and his first being interviewed.

16 When asked whether he thought the committal date of 30 March 2009 could be maintained, the police informant told the court that the police still had about 50,000 telephone intercepts to review before it could be said that the brief was complete. This review had commenced about three weeks ago and was still proceeding. It will be a remarkable achievement if that task can be completed before 30 March. Then the committal may well be delayed, although, of course, it may not be necessary for the whole review to have occurred before the committal takes place.

17 Absent bail, the applicant may spend in custody perhaps another six months or so before committal, and perhaps a further nine months to a year before trial, in very harsh conditions. A combination of all of these matters, but particularly the weakness of the Crown case, establishes the necessary pre-requisites for a grant of bail in this case.

18 Exceptional circumstances exist to justify bail and risks of flight, et cetera, can be accommodated by the imposition of strict bail conditions and adequate sureties. The applicant will be released on bail on his own undertaking with sureties, Antonio and Giuseppina Venditti in the sum of $350,000.00, and Mina Venditti in the sum of $50,000.00.