Angelo Pat Russo is a free man after a magistrate decided there was not strong enough evidence for him to face trial for the murder of David Calandro.
But freedom could be short-lived for the Tatura man, 55, as he faces the lesser charge of manslaughter.
Magistrate Daniel Muling gave his ruling about 11.40am on Thursday after the conclusion of the three-day committal hearing.
In summing up the evidence presented to him, Magistrate Muling said he was of the view that no reasonable jury could convict the accused of murder, but there was significant evidence for manslaughter.
Mr Russo pleaded not guilty to the lesser charge of manslaughter and was bailed under strict conditions.
Dressed in the black suit he wore throughout the committal hearing, he walked free from Shepparton Police Station on Thursday last week after spending most of the year behind bars.
He will next face court for the manslaughter charge at Supreme Court in Melbourne on Thursday this week for a directions hearing.
In the magistrate’s detailed ruling he made pointed to two key pieces of evidence from the investigation, the statement from David Calandro’s son, 13, and the report on the examination of the gun Mr Russo had when he allegedly shot Mr Calandro.
Magistrate Muling found that the evidence from the ballistics expert, Leading Senior Constable Alan Pringle, helped back up the claim of Mr Russo’s innocence.
The report on the gun found there were two major faults in the safety and barrel, which could lead to the weapon firing accidentally.
Mr Russo claimed during the investigation the gun went off when he slipped on an eggplant on the ground.
COMMITTAL HEARING OVERVIEW:
Lack if key witnesses complicates case
A crushed eggplant, a faulty shotgun, and a young boy who saw it all.
A three-day committal hearing into the alleged murder of David Calandro proved to be difficult for prosecutors due to a lack of key witnesses.
When Mr Calandro was shot at Angelo Pat Russo’s Tatura farm on February 18, there were plenty of people on the property.
But the only two who were close enough to be considered direct eyewitnesses were Mr Calandro’s two young sons, who cannot be named for legal reasons.
The eldest son, 13, had the clearest recollection of the moment when his father was shot.
He described Mr Russo as appearing to aim the weapon, and did not remember any moment where Mr Russo supposedly slipped, which was what the accused told police.
The other witnesses at the farm on the day were a distance away from the shooting when it happened, and for prosecution and defence, none proved to be the key to making their case.
Mr Russo’s legal defence, fronted by Ian Hill QC, pushed a version that Mr Russo slipped on an eggplant while holding the shotgun.
Mr Hill said the accused was only holding the gun at the time, because he had needed to put down his pet dog, which had been injured after it was hit with Mr Calandro’s car.
His legal strategy during the three days was to focus on the police investigation and highlight the faults in Mr Russo’s gun.
He went in hard on a Shepparton police officer who did not separate Mr Calandro’s two boys in their first police interview.
He argued this could have potentially tainted the recollection of the two key witnesses.
He questioned why three Malaysian farm workers who were at the farm at the time of the shooting were not interviewed by police until three days after the shooting.
Under cross examination, and through the aid of an interpreter, one of the farm workers said in court the group left the farm when police arrived as they did not want to get involved in whatever was happening.
Prosecutor Fran Dalziel put forward Mr Russo intentionally shot Mr Calandro and then came up with a version of events to tell officers it was an accident.
In her closing submission of the committal hearing, she put forward Mr Russo actually shot his dog after shooting Mr Calandro.
This, she argued, was so Mr Russo could have a legitimate reason for holding a gun when he approached Mr Calandro.
He could then say to officers that he was only holding the gun as he had just put down his dog, and that the slip and shooting was all an accident.
‘‘In this case, I accept there is evidence that backs up what Mr Russo said,’’ Magistrate Muling said.
The statement from Mr Calandro’s son, 13, who was sitting in the car when his father was shot, was described as ‘‘the only real eyewitness’’.
In an interview Magistrate Muling quoted, the son told officers any claim Mr Russo slipped was ‘‘a lie’’.
He also said he did not see the barrel of the shotgun hit the window, further contradicting Mr Russo’s version of innocence.
There was emotional scenes in the courtroom when family and friends of Mr Russo realised he would walk free.
But for the family and friends of Mr Calandro, it could be a long time until they get closure.