Re Tafa
[2021] VSC 557
•31 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0327
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by TAATAA TAFA |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 July 2021 & 31 August 2021 |
DATE OF JUDGMENT: | 31 August 2021 |
CASE MAY BE CITED AS: | Re Tafa |
MEDIUM NEUTRAL CITATION: | [2021] VSC 557 |
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CRIMINAL LAW — Application for bail — Charge of murder — Potential delay of trial due to COVID-19 — First time in adult custody— Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) s 1B, s 3AAA, s 4AA, s 4A, s 4D, s 4E — Cases cited: Re Ning [2020] VSC 609; Re Boo [2020] VSC 882; Director of Public Prosecutions (Cth) v Abbott 97 A Crim R 19; Bchinnati v Director of Public Prosecutions (Vic) (No 2) [2017] VSC 620.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D. Sala | Emma Turnbull Lawyers |
| For the Respondent | Mr E. Dober | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 16 June 2020 15-year-old Solomone Taufeulungaki (‘the deceased’) was stabbed once in the chest during a fight involving 11 offenders in the carpark of the Brimbank Shopping Centre. He died a short time later.
Between 17 June and 6 August 2020, Detective Senior Constable Warner charged all 11 alleged offenders with violent disorder and affray. Nine co-accused are children. They were each released on bail either by police or the Children’s Court. Adult co-accused, Soreysa Jibrael, was remanded in custody.
On 21 July 2021, Taataa Tafa (‘the applicant’) was charged with these offences and remanded in custody. He was refused bail in the Melbourne Magistrates’ Court on 28 August 2020.
On 22 October 2020 Detective Senior Constable Gent charged the applicant and each of the other ten accused with murder and unintentional killing pursuant to s 3A of the Crimes Act and all were remanded in custody. As I understand the matter as it presently stands, the alternative form of murder pursuant to s 3A of the Crimes Act is not persisted with.
I have granted bail to each of the nine co-accused between 4 November and 18 December of last year. The applicant’s adult co-accused, Soreysa Jibrael, has not applied for bail and remains on remand.
Background
On 25 November 2020, the applicant was committed to stand trial in this Court via the Supreme Court’s ‘fast-tracking’ procedure. Nine of the co-accused have since also elected to fast-track their matters to this Court. That now, I think, has become the ten co-accused.
At the time of this alleged offending, the applicant on a 12 month good behaviour bond imposed in the Sunshine Magistrates’ Court on 20 January 2020 for offences of recklessly causing injury, intentionally damaging property, theft and committing an indictable offence whilst on bail. In addition he was on summons for charges of affray and behaving in a riotous manner arising from an altercation in company at the Sunshine Railway Station on 26 August 2019 (‘the informant Keenan matter’).
The applicant originally sought a grant of bail by an application dated 24 February, but that application was refused, and he has made a subsequent application for bail, which was previously part-heard and returned to the Court today. At the time of the earlier application, I was particularly concerned about whether the applicant would have a proper employment opportunity available to him because I regarded that as being integral to the possibility of him being prevented from reoffending.
The accommodation then offered was offered by Ms Leleisluao, who was then residing in Hoppers Crossing – it had the advantage of not being in the immediate area where the applicant had offended and where his other gang members habituate. But the address now offered is in St Albans, and I had some reservations about that address and the circumstances of the accommodation, particularly the number of bedrooms that were available in the premises.
But Ms Leleisluao is determined to try and do the right thing by the applicant and has indicated to him the conditions on which he will be able to live at her house and has unhesitatingly given an undertaking to me that she would report any breach of bail. These reasons should be read in conjunction with the reasons that I have provided in a number of other cases.
And I should, in case there be any doubt about the matter, indicate that I have, in relation to three of the child offenders, already revoked their bail, and their prospect at the present time of being readmitted to bail is faint.
Exceptional circumstances
Now, in relation to this present application, without it being conceded, the prosecution accept it would be open to me to find that because of the views I have previously expressed about the strength of the Crown case, and principally because of the questions of delay, that it would be open to find that exceptional circumstances exist, that is the test to be applied because the applicant has been charged with the offence of murder.[1] And I do find that exceptional circumstances do exist.
[1]The Bail Act 1977 (Vic), ss 4AA(1), 4A(1)-(2).
Unacceptable risk
That then leaves open the question of whether he is an unacceptable risk in relation to the grant of bail.[2] And I am satisfied that with provision of appropriate conditions, that a situation which would otherwise unacceptable can be rendered not unacceptable, I would never, in the applicant’s case, go so far as to say that I thought it was acceptable.
[2]Ibid, s 4E(1)(a).
It was argued on behalf of the prosecution that a reasonable analysis of the applicant’s behaviour whilst he has been in custody, as is revealed by the analysis of a number of ARUNTA calls which have been provided by the informant, has been less than satisfactory. The Prosecution say that whilst in custody, he has been involved in a number of alleged assaults involving other prisoners, and that he has, potentially through his co-accused, Jibrael, communicated to his partner, Ms Walker, a number of matters about involvement in gang activity whilst in prison, including involvement with outlaw motorcycle gangs, none of which bodes well for his future.
I am prepared to take some of that material with a grain of salt, being somewhat a matter of bravado and the sort of things young men talk about whilst in prison, but it is still a matter to be borne in mind. If there is any suggestion of any such involvement during the applicant’s period on bail, his bail will be quickly revoked.
The other matters from the point of view of the prosecution were that the accommodation is less than satisfactory, and that the employment is somewhat limited in the way that it has been expressed, but it is employment nonetheless.
I am satisfied that because of the evidence that was given to me by Ms Leleisluao, that the accommodation can be rendered at least not unacceptable, and that at least for the time being, the question of the applicant’s employment can be satisfactorily managed.
The other matter to the applicant’s advantage, which had occurred since the last hearing is that he now has the support of the Youth Junction, and Ms Renae Liddell gave evidence before me today, indicating the supports that could be given to him and it will be a condition of bail that the applicant engage with the Youth Junction. Ms Liddell will provide reports to me of his progress as the matter progresses.
So, all in all, I am satisfied that with the imposition of appropriate conditions, the risk that the applicant plainly represent can be rendered not unacceptable and I will grant bail.
Ruling
The Court is satisfied that exceptional circumstances exist that justify the grant of bail and it has not been shown that the applicant is an unacceptable risk for the reasons announced this day.
I indicate that I received undertakings from Ms Leleisluao and from Ms Liddell that they would report to the Court any breach of bail and I will arrange for both of them to be provided with copies of this bail order. Now Taataa Tafa will be admitted on his own undertaking on the following special conditions:
(a) He attend the Supreme Court of Victoria in Melbourne on 11 October and then surrender himself. He must not depart without the leave of the Court and if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at [redacted] St Albans in Victoria, and not change that address without the leave of the Court.
(c) He remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of bail.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e) He own or possess one mobile phone and provide that phone number to the Informant.
(f) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(g) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
(h) He not contact, directly or indirectly, the co-accused, being VN, IT, DP, NT, CN, JR, AP, AK, ST and Soreysa Jibrael for the duration of the bail period.
(i) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(j) He not contact, directly or indirectly, Rose Walker except as arranged by the Department of Families, Fairness and Housing.
(k) He not be within 200m of Brimbank Shopping Plaza or Deer Park Library.
(l) He not access or use any form of social media.
(m) He not be present in any group of greater than five, except in the presence of an authorised representative of The Youth Junction Inc, or as part of any organised religious or sporting activities.
(n) He not leave the State of Victoria.
(o) He engage with The Youth Junction Inc and obey any lawful directions of Youth Access and Justice case manager, Renae Liddell and undertake any treatment directed by her and attend any appointment arranged by her.
(p) He reappear before the Court for judicial monitoring to review his compliance with this order at 10.15am on 11 October 2021 and any further dates this Court appoints during the course of this order.
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