Re Application for Bail by Biba - [2020] VSC 536

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0267

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an Application for Bail by Albert BIBA

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 & 21 August 2020
DATE OF JUDGMENT:	21 August 2020
DATE OF WRITTEN REASONS:	26 August 2020
CASE MAY BE CITED AS:	Re Application for Bail by Biba
MEDIUM NEUTRAL CITATION:	[2020] VSC 536

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CRIMINAL LAW — Application for bail — Applicant charged with murder and cultivating commercial quantity of cannabis — Applicant required to establish exceptional circumstances — Exceptional circumstances established but applicant an unacceptable risk of absconding whilst on bail — Bail refused — Barbaro v CDPP (2009) 20 VR 717; [2009] VSCA 26 – Bail Act 1977 (Vic), ss 3AAA, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Richter QC with Ms V Drago	Melasecca, Kelly & Zalyer
For the Respondent	Ms A Ellis with Ms B Goding	Office of Public Prosecutions

HIS HONOUR:

BACKGROUND

On 20 and 21 August 2020, I heard a bail application by Albert Biba (AB) who is charged with murder and cultivating a commercial quantity of cannabis.

AB’s bail proposal was that he reside with his brother Diego Biba (DB) at premises recently leased by DB in Greenvale and that he wear an Electronic Monitoring Device (EMD) supplied by a company called Attenti Australia Pty Ltd (Attenti).[1] A surety in the amount of approximately $470,000 was offered and AB was willing to abide by a strict curfew.
[1]DB would bear the cost of the EMD (approximately $25,000 for 12 months).

At the conclusion of submissions, I found that exceptional circumstances[2] existed but refused to grant bail because I was satisfied by the prosecution that AB was an unacceptable risk[3] of absconding on bail. I gave brief oral reasons for my decision, saying I would provide written reasons later, which I do now.
[2]Bail Act 1977, ss 4AA, 4A.
[3]Bail Act 1977, s 4D.

The Alleged Offences

In the early hours of 17 April 2018, Andrew Toumayan and Francesco Vigneto burgled a house in Ringwood, intending to steal cannabis that was being cultivated there allegedly by AB and Armando Delia (Delia). The burglars unwittingly set off a silent alarm, which sent a text message to a mobile phone used by Delia. The prosecution alleges that Delia contacted AB, who was living in Box Hill at the time, and that AB travelled in his rented Prado to Ringwood, parked the vehicle some distance away from the crop house, proceeded there on foot and shot Toumayan fatally as he came out of the driveway of the crop house. The prosecution also allege that Delia travelled to Ringwood and collected AB a short distance from the crop house not long after the shooting and gave AB a lift back to the Prado.

Police found cannabis inside the crop…

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 Re Application for Bail by Biba

Details

AGLC: Re Application for Bail by Biba [2020] VSC 536
Case: [2020] VSC 536
Decision Date: 21 August 2020

CaseChat Overview and Summary

The applicant in this case was charged with murder and cultivating a commercial quantity of cannabis. The case was heard in the County Court of Victoria. The applicant sought bail pending the determination of his charges. The legal issues the court was required to decide included whether the applicant had established exceptional circumstances warranting bail, as required by the Bail Act 1977 (Vic), and whether the applicant posed an unacceptable risk of absconding while on bail. The court considered the seriousness of the charges, the applicant's criminal history, and the likelihood of the applicant complying with bail conditions. The court found that while the applicant had established exceptional circumstances, he was still an unacceptable risk of absconding. Therefore, the application for bail was refused.

The court noted that the applicant's criminal history and the seriousness of the charges against him were significant factors in its decision. The court also considered the risk of the applicant reoffending while on bail. The court found that the applicant's criminal history, including previous convictions for drug offences and violence, indicated a likelihood of reoffending. Additionally, the court found that the applicant's potential for absconding was high due to his lack of ties to the community and his history of failing to appear in court. The court concluded that the risk of the applicant absconding while on bail outweighed any exceptional circumstances that may have warranted bail. As a result, the application for bail was refused.

Orders