JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2021
DATE OF JUDGMENT:	30 September 2021
DATE OF REVISED REASONS:	29 October 2021
CASE MAY BE CITED AS:	Re Tiba (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 716

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CRIMINAL LAW — Application for bail — Charges of murder, attempted armed robbery and possessing a handgun without a licence — New facts and circumstances — Strength of the prosecution case — Parity — Effect of COVID-19 on courts and applicant — Youth — Lack of relevant prior convictions — Bail support services arranged — Surety — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4D, 4E, 18AA, 18; Criminal Procedure Act 2009 (Vic) s 198B — Cases cited: Re Tiba [2021] VSC 429; Re Foxwell (No 2) [2014] VSC 145; Re Abdulrahim [2017] VSC 411; Re Al-Jinavo [2017] VSC 413; Re Mongan (No 2) [2019] VSC 119; Mokbel v DPP [2002] VSC 127; DPP (Cth) v Barbaro [2009] VSC 27; Re Brown [2019] VSC 751; Roberts v The Queen [2021] VSCA 28; Re MJ [2021] VSC 592; Re Oldis [2020] VSC 769; Re: an application by Fadi Haddara [2014] VSC 284; Re Chew [2021] VSC 265; DPP (Cth) v Stephen Zade Abbott [1997] VSC 45; Bchinnati v Director of Public Prosecutions (Vic) (No 2) [2017] VSC 620; Worboyes v The Queen [2021] VSCA 169.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Dermot Dann QC	Melasecca Kelly & Zayler
For the Respondent	Ms Francesca Holmes	The Office of Public Prosecutions

HIS HONOUR:

This is a further application for bail by Adam Tiba (the ‘applicant’). He was previously refused bail by Coghlan JA on 6 July 2021, on the basis that he had failed to establish exceptional circumstances that would justify the grant of bail. His Honour also concluded that if the applicant was granted bail he would be an unacceptable risk of committing an offence or interfering with a witness.[1]
[1]Re Tiba [2021] VSC 429 [40]-[43] (Coghlan JA).

His Honour indicated at the conclusion of the hearing, having announced that bail would be refused, that the applicant’s position might be able to be reviewed depending on the outcome of preliminary hearings under s 198B of the Criminal Procedure Act 2009 (Vic) (‘s 198B hearings’), which were, at that time, yet to be conducted.[2]
[2]Ibid [44].

Between 21 and 23 September 2021, the s 198B hearings proceeded before me. In those hearings a number of witnesses were called to give evidence including several of the witnesses on whom the prosecution may rely to establish that the applicant was the…

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 Tiba (No 2)

Details

AGLC: Re Tiba (No 2) [2021] VSC 716
Case: [2021] VSC 716
Decision Date: 30 September 2021

CaseChat Overview and Summary

The Supreme Court of Victoria was asked to decide on an application for bail from a young man, Tiba, who faced serious charges, including murder, attempted armed robbery and possessing a handgun without a licence. The case was heard by Justice Byrne, building on an earlier decision by the court. The legal issues the court had to determine were whether there were exceptional circumstances warranting bail, and if the risk to the community was acceptable. The court considered the strength of the prosecution case, the impact of COVID-19 on the proceedings and the applicant, and whether the applicant could be adequately supervised and supported if released on bail. Justice Byrne concluded that exceptional circumstances were indeed present, given the applicant's age, lack of prior convictions, and the support services available to him. The risk to the community was deemed acceptable, and bail was granted with specific conditions.

The court examined the evidence presented, including the new facts and circumstances since the previous bail application. It considered the arguments about the strength of the prosecution case and whether the applicant was likely to be found guilty. The court also weighed the effect of COVID-19 on the proceedings and the applicant, as well as the availability of bail support services. The applicant's youth, lack of relevant prior convictions, and the presence of a surety were all factors in the court's decision. The court found that the exceptional circumstances outweighed the risk to the community, and that the applicant could be adequately supervised and supported if released on bail. Therefore, the application for bail was successful, and specific conditions were imposed to ensure the safety of the community and the proper conduct of the applicant.

Orders