Re Tafa - [2021] VSC 557

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…

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 Tafa

Details

AGLC: Re Tafa [2021] VSC 557
Case: [2021] VSC 557
Decision Date: 31 August 2021

CaseChat Overview and Summary

In the matter of Re Tafa, the applicant faced charges of murder and was before the Court to apply for bail. The primary issue was whether exceptional circumstances existed to justify bail, given the potential delay in the trial due to the COVID-19 pandemic. The applicant was a first-time offender in adult custody, and the court had to balance the potential impact of the delay against the risk of the applicant absconding or interfering with witnesses.

The legal issues centred on the interpretation and application of the Bail Act 1977 (Vic). The court considered whether the applicant met the criteria for bail under sections 1B, 3AAA, 4AA, 4A, 4D, and 4E, particularly in light of the exceptional circumstances created by the pandemic. The court assessed the risk of unacceptable prejudice to the administration of justice if the trial was delayed, the risk of the applicant failing to appear, and the risk of the applicant interfering with witnesses or obstructing the course of justice.

The court determined that exceptional circumstances existed due to the COVID-19 pandemic, which had the potential to delay the trial significantly. The court found that the applicant had not demonstrated an unacceptable risk of failing to appear or interfering with witnesses. The court concluded that the applicant met the criteria for bail under the Bail Act, considering the exceptional circumstances and the applicant's background. The court granted bail with conditions, including electronic monitoring, a curfew, and restrictions on contact with potential witnesses.

The court made orders for the applicant to be released on bail, subject to the specified conditions. The applicant was to remain under electronic monitoring, observe a curfew, and avoid contact with potential witnesses. The conditions were designed to ensure the applicant's appearance in court and to prevent any interference with the proceedings.

Orders