Re Tiba (No 2)
[2021] VSC 716
•30 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2021 0061
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an application for bail by ADAM TIBA |
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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 person who fired the gunshots that killed the deceased. This will be a significant issue at the trial of this matter.
At the conclusion of those hearings I was informed by Mr Dann QC that the applicant’s parents were both severely affected by COVID-19, and that the applicant’s father’s health in particular was in a very dire condition. Mr Dann QC repeated that submission today and the respondent appears to take no issue with it. On 23 September 2021, I indicated that in the circumstances an application for bail could be accommodated on a relatively urgent basis. It followed that, on 27 September 2021, an application for bail was filed on behalf of the applicant and the matter was listed on 30 September 2021.
Background
The procedural history, details of the investigation and prosecution case, co-accused, and matters personal to the applicant, including his criminal history, are summarised in Coghlan JA’s previous reasons in this matter which are a matter of record and I need not repeat them at length in this ruling.[3] I note that Coghlan JA also presided over the application for bail by co-accused Abdullah Hammoud. As I will shortly explain, this is a circumstance of some significance when considering the principle of parity in this application in light of the new facts and circumstances before this Court.
[3]Above n 1.
In summary, on 18 July 2020, P A (the ‘deceased’) was fatally shot whilst visiting friends at a residential property in Lalor. The shooting allegedly occurred in the context of the applicant’s enmity towards a person present at the Lalor residence, who had been involved in a failed drug transaction on 23 June 2020, following which the applicant was hospitalised with stab wounds. It is alleged that the applicant, together with co-accused Tahmid Rahman and Abdullah Hammoud, planned to attend the Lalor residence and carry out an aggravated burglary in retaliation for the incident on 23 June 2020. It is the prosecution case that the applicant, Mr Rahman and Mr Hammoud attended the Lalor residence on that day and, after failing to gain access to the property, discharged a firearm into the front of the property, killing the deceased. At the previous bail application, there was identification evidence relied upon which favoured the theory that the applicant had been the shooter.[4] That evidence was, of course, at that time yet to be formally scrutinised through the s 198B hearings.
[4]Ibid [31]-[32].
On 21 October 2020, following an investigation into the circumstances of the deceased’s death, the applicant was arrested by Detective Senior Constable Jason Antonelli (‘the informant’) and charged with murder,[5] unintentional killing in the furtherance of a crime of violence (namely, aggravated burglary),[6] attempted armed robbery[7] and possessing a handgun without a licence.[8] Mr Rahman and Mr Hammoud were also arrested, charged and remanded that same day. An additional co-accused, Ammair Fahal, was arrested and charged on secondary offences on 12 January 2021. All co-accused, with the obvious exception of the applicant, have since been granted bail.
[5]Contrary to common law.
[6]Contrary to s 3A of the Crimes Act 1958 (Vic).
[7]Contrary to ss 75A, 321M of the Crimes Act 1958 (Vic).
[8]Contrary to s 7(1) of the Firearms Act 1996 (Vic).
The applicant has remained in custody since his arrest on 21 October 2020, a period of 344 days. The matter is next listed before me for a further case management mention on 7 October 2021, with a trial date yet to be fixed. This is a matter of some complexity and there remain significant issues of disclosure to be resolved. I would estimate that the trial would be extremely unlikely to proceed in this Court before the second half of 2022.
The applicable legislation
Guiding principles
This application is governed by the Bail Act 1977 (Vic) (‘the Act’). In interpreting and applying the Act, the Court is required to have regard to the guiding principles set out in s 1B(1).[9]
[9]Bail Act 1977 (Vic) (‘the Act’), s 1B(2).
Preliminary question – new facts or circumstances
Section 18(1) of the Act provides that an accused who has been refused bail may make a further application for bail.[10] That entitlement is limited by s 18AA(1)(a), which sets out that a court must not hear an application under section 18 unless it is satisfied by the applicant that new facts or circumstances have arisen since the last refusal of bail.[11] Against this, s 18AA(2) provides that nothing within that section derogates from the right of a person in custody to apply to the Supreme Court for bail.[12]
[10]Ibid, s 18(1).
[11]Ibid, s 18AA(1).
[12]Ibid, s 18AA(2).
There is differing judicial opinion as to whether, having regard to s 18AA(2), new facts or circumstances need be established as a threshold matter before a further application for bail can be entertained.[13] The phrase itself has been given meaning as new facts or circumstances that “are relevant to bail and justify a conclusion by the Court that reconsideration of the refusal of bail is required”.[14] In DPP (Cth) v Barbaro, J Forrest J said:
26.The words used demonstrate a clear intention to encompass a broad range of matters which may be considered under this rubric. The legislature was, I think, endeavouring to preclude a party from raising a point which had been raised at the previous hearing, but no more than that. If a particular matter had been considered previously by a Court and bail refused, then that would not constitute a new fact or circumstance. On the other hand, if there was no consideration of the issue on the previous application, it was to be regarded as a new circumstance or, depending upon its nature, a new fact. This approach is consistent with the fundamental right of a defendant to be at liberty and the right to be granted bail provided the provisions of the Bail Act are satisfied.
27.Significantly, the legislature did not impose any prescription upon whether the facts or circumstances were known to the applicant at the time that bail was refused. Nor did it attach any condition in relation to reasonable inquiries being made to ascertain such facts or circumstances. Rather, it elected to enact a broad concept, presumably taking into account the fact that the subject matter was the liberty of the subject.[15]
[13]See for example Re Foxwell (No 2) [2014] VSC 145 [2] (John Dixon J); Re Abdulrahim [2017] VSC 411 [33]-[34] (Weinberg AP); Re Al-Jinavo [2017] VSC 413 [5] (Beale J); Re Mongan (No 2) [2019] VSC 119 [4]-[8] (Tinney J).
[14]Mokbel v DPP [2002] VSC 127 [39] (Kellam J).
[15][2009] VSC 27 [26]-[27] (J Forrest J) (citations omitted).
Mr Dann QC addressed the issue of new facts and circumstances in the course of submissions on behalf of the applicant. I did not understand it to be in contention that new facts and circumstances had arisen since the applicant’s previous application for bail before Coghlan JA. I am satisfied that, if it is required, new facts or circumstances would be established based on any developments in the case elucidated through recent s 198B hearings and the evidence concerning the applicant’s parents’ recent health issues.
Step 1 – exceptional circumstances
Because the applicant is accused of committing the Schedule 1 offence of murder,[16] he bears the onus of satisfying the Court that exceptional circumstances exist that justify the grant of bail.[17] Unless he can do so, bail must be refused.[18] In considering whether the test is satisfied, the Court must have regard to the surrounding circumstances.[19]
[16]Above n 9, schedule 1, item 2.
[17]Ibid ss 4A(1) and (2).
[18]Ibid s 4A(1A).
[19]Above n 9, ss 4A(3), 3AAA.
The Act does not define what is meant by ‘exceptional circumstances’. I have previously summarised when circumstances may be taken to have reached the threshold of ‘exceptional’ with reference to earlier judicial commentary:[20]
·The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
·Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
·Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.
[20]Re Brown [2019] VSC 751 [65] (Lasry J) (citations omitted).
More recently, the Court of Appeal in Roberts v The Queen expanded on the concept:[21]
9.A review of bail decisions in ‘exceptional circumstances’ cases reveals certain types of circumstances which recur as justifications for bail in such cases: unreasonable delay before trial; unacceptable adverse impacts of continued pre-trial incarceration (whether on the accused person or on his/her dependants); and the likelihood that time spent on remand will exceed any term of imprisonment which would be imposed in the event of conviction. What these different kinds of circumstances appear to have in common is that they are capable of rendering continued pre-trial incarceration unjust, notwithstanding the statutory prohibition on bail which otherwise applies.
10.The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of ‘unacceptable risk’). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre-trial delay, but what justifies bail is the need to prevent or mitigate future injustice.
[21][2021] VSCA 28 [9]-[10] (Maxwell P, Niall and Emerton JA).
In Re MJ , I endeavoured to further elaborate on the principle by saying:[22]
[22][2021] VSC 592 [22]-[23] (Lasry J).
22.Of course, the need for mitigation of future injustice will often arise from past events but in any event there are degrees of injustice. For example, there is some injustice in any delay of criminal litigation but in the absence of unlimited resources that is an inevitable aspect of the criminal justice system. As the level of delay increases, so the injustice that flows from it magnifies. A significant delay of the order of three years may be strongly argued to be, of itself, an exceptional circumstance. As Incerti J said in Re Shea:
In my view, despite the gravity of the alleged offending and sentence likely to be imposed if the applicant were convicted, it is strongly arguable that a two and a half year delay, let alone three year delay, is one that, in and of itself, amounts to exceptional circumstances justifying bail. As Lasry J said in Re Jiang, ‘a period of pre-trial custody of three years will demonstrate exceptional circumstances in almost every case’.
23.If a significant delay in a given case is coupled with uncertainty (as is now happening because of the effect of the COVID-19 pandemic on the case backlog in the County Court) so that the remand of a prisoner takes on the appearance of an indefinite and unjust pre-trial detention, it is not difficult to conclude, possibly in combination with other factors, that such circumstances are exceptional. However it will always be the particular circumstances of the given case that are important, and there are no generalised rules as to what are and what are not exceptional circumstances. All one can do is endeavour to understand and apply the preceding authorities and apply s 3AAA of the Act (emphasis added).
Step 2 – unacceptable risk
If the applicant discharges the onus of establishing exceptional circumstances that justify the grant of bail, the Court must still refuse bail if satisfied by the respondent that the applicant, if granted bail, would pose an unacceptable risk of any of the matters set out in s 4E(1)(a).[23] The Court must again have regard to the surrounding circumstances in determining the question of unacceptable risk, and consider whether there are any conditions of bail that could be imposed to mitigate any risk so that it is not unacceptable.[24]
[23]Above n 9 ss 4D-4E.
[24]Ibid s 4E(3).
The applicant’s contentions
The applicant relies on a number of matters which Mr Dann QC submitted on his behalf establish exceptional circumstances that justify the grant of bail.
Strength of the prosecution case
The applicant submitted that the prosecution case against him is not ‘overwhelmingly strong’ and contends that his presence at the scene of the shooting is in issue. It was submitted in the written material filed with the Court that in the event that his presence is established, that the following matters will remain in issue:
(a) whether he was the individual armed with a firearm. It is submitted that any identification evidence tending towards the applicant being the person armed with the firearm has been ‘nullified’ by virtue of cross-examination of witnesses at the s 198B hearings;
(b) the nature of his intention at that time, as well as the scope of any agreement he entered into with his co-accused;
(c) if the prosecution cannot establish that he was the person armed with a firearm, whether it can be established that he was aware that one of his co-accused was in possession of a firearm, or of the probability that a firearm would be present at the scene and/or discharged; and
(d) whether aggravated burglary can be a foundational offence for the purposes of the charge of unintentional killing contrary to s 3A of the Crimes Act 1958, and if so, whether that offence was in progress or complete at the time the firearm was discharged.
Mr Dann QC’s submissions pertaining to the strength of the prosecution case related particularly to the evidence of the witness T L. T L made a number of statements to the police after the incident. In the first statement, T L indicated that he was unaware of the identity of the person who fired the shots that killed the deceased. As I understand it, in a later statement T L identified the applicant as the shooter on the basis of information which had been provided to him by another person and by reference to a photograph of the applicant he viewed on Facebook. The circumstances of that identification, as they developed in the course of the s 198B hearings mean that, as I put to Ms Holmes who appeared on behalf of the respondent at the hearing of this application, there is a respectable argument available to the applicant that T L’s identification evidence ought to be excluded. This is perhaps the first of the matters that amount to new facts and circumstances.
Parity
Mr Dann QC submitted that the undermining of the identification evidence against the applicant at the s 198B hearings means that, on the basis of the admissible evidence, there is no evidence from which a nomination or a conclusion as to who fired the gun can be drawn. As such, the prosecution case against the applicant is no stronger than the case against Mr Hammoud. It remains to be seen whether what I have described as a respectable argument to exclude the identification evidence particular to the applicant will mean that evidence is in fact excluded. However, on the basis of the other evidence and their respective personal circumstances it would appear that the applicant and Mr Hammoud are effectively in the same position, aside from some mental health concerns unique to Mr Hammoud. In these circumstances, Mr Dann QC submitted that the principle of parity is now a significant matter in establishing exceptional circumstances that justify the grant of bail.[25]
[25]Above n 9, s 1B1(c); Re Oldis [2020] VSC 769 (Tinney J); Re: an application by Fadi Haddara [2014] VSC 284 (Hollingworth J); Re Chew [2021] VSC 265 (Lasry J); DPP (Commonwealth) v Stephen Zade Abbott [1997] VSC 45 (Gillard J); Bchinnati v Director of Public Prosecutions (Vic) (No 2) [2017] VSC 620 (Croucher J).
Youth and limited criminal history
The applicant is 22 years old and was 21 at the time of the alleged offending. He has no history of failing to comply with court orders or conditions of bail. His current period on remand represents his first time in custody.
Conditions in custody
Mr Dann QC in the course of his submissions highlighted the effect on the applicant of being subject to particularly onerous custodial conditions for the last 12 months throughout the COVID-19 pandemic. The effect of the COVID-19 pandemic on Victoria’s prison population is a matter of some significance. Incarcerated persons are subject to periods in lockdown and personal visits are regularly suspended. COVID-19 has recently made its way into the prison system. Notwithstanding these restrictions, the applicant appears to have used his time productively by engaging in drug and alcohol counselling with a Caraniche clinician, and undertaking various short courses through the Box Hill Institute.
Stable accommodation and family support
The applicant enjoys the support of his family, who have maintained frequent contact with him on remand, including by way of Zoom video calls three times weekly and regular in-person visits during times when this has been permitted. If granted bail, the applicant proposes to reside at the family home located at [redacted].
Family hardship
The evidence indicates that in early September, several of the applicant’s family members contracted COVID-19. His mother, who was present at the hearing of this application via video link, was hospitalised as a result and remains unwell and unable to attend to her usual day-to-day activities, including caring for her younger children. The applicant’s sister, who was also present at the hearing of this application via video link, is now assisting with, and to some degree feeling overwhelmed by, this task.
Most significantly, the applicant’s father was admitted to the Alfred Hospital on 12 September 2021 after contracting COVID-19, where at the time of this application he remains in the intensive care unit in a critical condition. He is currently in a medically induced coma. On 24 September, the day after the s 198B hearings concluded, the applicant’s family was advised that the applicant’s father may soon die and that his condition was being reviewed on an hourly basis. The applicant seeks to return home in order to support his mother through this difficult situation. Clearly the applicant will not be able to visit his father unless and until his father’s health deteriorates to the point where is death is imminent.
Education and employment
If bail is granted, the applicant hopes to resume his Bachelor of Business studies at La Trobe University. As Mr Dann QC frankly advised the Court, it is not clear that this can occur, as the applicant requested that he resume his studies from custody and this was refused. In addition to his tertiary studies, the applicant wishes to pursue a Certificate IV in Building and Construction at the International College of Victoria, which can apparently be accommodated.
The applicant has an offer of full-time employment working for [redacted], which is a business run by his uncle, T H. He proposes to work as an assistant to his uncle, preparing and installing glass and shop fittings under the supervision of his uncle, who will attend all job sites with the applicant. The applicant is close to his uncle and has previously worked in his business. I am informed that at present the business is closed due to the lockdown necessitated by the COVID-19 pandemic, however it is anticipated that the business will resume operations in the near future.
Availability of treatment and bail support services
The applicant has been abstinent from illicit drug use whilst in custody and has engaged in individual drug and alcohol counselling through Caraniche. If released on bail, the applicant proposes to engage with community supervision and supports facilitated through the Court Integrated Services Program (‘CISP’). I received an updated CISP report prior to the hearing of this application confirming such supervision and support can be facilitated.
I have also been provided with a supplementary affidavit in support of bail deposed by the applicant’s solicitor Mr Melasecca, annexed to which is a letter dated 29 September 2021 from a counsellor B N of [redacted]. In this letter B N undertakes to provide the applicant with individualised counselling and case management should he be granted bail, including the organising of supervised urine screens to monitor the use of illicit drugs, and to report any breaches of bail to the relevant authorities.
Also annexed to Mr Melasecca’s affidavit is a letter dated 29 September 2021 from M M, who is the [redacted] of the [redacted]. In this letter M M outlines numerous support services that the [redacted] could provide the applicant should he be granted bail. M M advises that the [redacted] is a mandatory reporting agency that will report any criminal activities it becomes aware of.
Delay
The applicant has been in custody since his arrest on 21 October 2020. Whilst acknowledging that the applicant’s election to progress the matter by way of the Court’s ‘fast-track procedure’ will to some degree expedite these proceedings, it is clear that the delay in this matter finalising will be a period of two or more years from charge. Whether the trial could proceed at this time depends on the unpredictable variables of the COVID-19 pandemic. It is clear we are by no means approaching the end of the pandemic; indeed quite the contrary.
Surety
The applicant’s uncle, T H, proposes to offer a $350,000 surety by way of equity in a property he owns in [redacted]. In an affidavit affirmed on 28 September 2021, T H states that he is aware of the charges against the applicant and the possible consequences to any surety money if the applicant were to be breach any grant of bail. T H deposes that he is willing to provide an undertaking to the court that, were he to become aware of any bail breaches or criminal activity committed by the applicant, he would immediately notify police. As I earlier described, T H has also offered the applicant employment should bail be granted.
Unacceptable risk
With respect to unacceptable risk, Mr Dann QC noted the applicant’s lack of prior criminal convictions, the absence of any allegation that the applicant offended or attempted to interfere with witnesses between the date of the offending in July 2020 and his arrest and remand in October 2020, the applicant’s motivation to remain with his family during this time and the deterrent effect of returning to particularly restrictive custodial conditions should he breach any grant of bail. The issue of parity was also said to be relevant to the assessment of unacceptable risk, on the basis that the unacceptable risk that the prosecution allege against the applicant is the same as was alleged against Mr Hammoud, who was nevertheless granted bail. It was submitted that any risk implicit in releasing the applicant on bail can be made acceptable with the imposition of strict conditions of bail.
The respondent’s contentions
Ms Holmes on behalf of the respondent very fairly acknowledged the changes which have occurred since the previous application, specifically the difficulties that have arisen for the prosecution case as a result of cross-examination of the witnesses at the s 198B hearings and the applicant’s family’s ill health. The respondent however maintains that the applicant has failed to demonstrate exceptional circumstances that justify the grant of bail, and in any event poses an unacceptable risk of committing an offence whilst on bail.
Strength of the prosecution case
The respondent relied on the following as evidence of the strength of the case against the applicant:
(a) telephone intercept material indicating that the applicant was involved in planning the alleged offending and was motivated to do so by a desire to seek retribution for the incident on 23 June 2020;
(b) call charge tower evidence placing his mobile phone in the vicinity of the shooting on 18 July 2020;
(c) identification evidence placing that applicant at the scene of the shooting, and in possession of a firearm immediately prior to the shooting;
(d) telephone intercept evidence indicating that the applicant was in the company of co-accused Mr Hammoud and Mr Rahman prior to, and shortly after, the shooting; and
(e) telephone intercept evidence after the alleged offending said to demonstrate his consciousness of guilt, including the applicant asking Mr Rahman to only use the secure messaging application ‘WhatsApp’ to talk to him.
While conceding that investigators have not been able to identify which accused discharged the firearm, it was submitted that the available evidence establishes that the applicant was in possession of a firearm at the scene of the shooting. This is based upon T L’s observation of the applicant holding a firearm immediately before the shots were fired. As I observed above, in my view there is now a respectable argument for the exclusion of the identification evidence, however whether this evidence is in fact excluded remains to be seen.
Family antecedents
The applicant is part of a large and well-connected extended family, many of whom have criminal histories. On the previous application, the respondent relied in particular on the applicant’s father’s criminal history as a premise to submit that the applicant’s proposed residence at the family home may not be appropriate due to his father also living there. For obvious reasons, this submission has significantly reduced force on this application.
Family hardship
The respondent referred to the applicant’s father’s ill-health, and noted that, even if the applicant were to be granted bail, he would not be permitted to visit his father under any circumstances as is the Alfred Hospital’s policy with respect to visitors on the COVID-19 ward. Further, to the extent that the applicant seeks bail to assist his mother in dealing with their difficult family situation, it was submitted that he would ‘generate minimal care and concern for his mother and family’. This is put on the basis that, if the applicant were to commence working with his uncle, he would not be present at the family home and the arrangement would therefore not be ‘conducive to family care’. However, if the applicant were not to undertake employment opportunities, the respondent submitted that he would not have a sufficiently structured lifestyle to ‘keep him out of trouble’ and he may return to drug use. It is noted that in the months leading to the applicant’s arrest, he was regularly breaching the COVID-19 lockdown curfew as evidenced through telephone intercept material.
Delay
The respondent submitted that there has not been, and that there is not anticipated to be, any exceptional delay in the progression of the matter.
Surety
The proposed surety, T H, has a criminal record. Further, by way of comparison, it was noted that Mr Rahman had on offer a much more significant surety than the applicant, being $500,000.
Unacceptable risk
The respondent contended that the applicant is an unacceptable risk of committing an offence while on bail having regard to:
(a) his apparent ability to source multiple firearms, demonstrated by his alleged possession of firearms at the scene of the attempted armed robbery on 23 June 2020 and the shooting on 18 July 2020;
(b) his demonstrated willingness to commit significant acts of violence whilst in possession of a firearm;
(c) the fact that the firearm used to shoot the deceased has not yet been located; and
(d) the applicant’s history of regular cannabis use, which the respondent contended may affect his judgment and increase his risk of offending.
In a report prepared for the purposes of the previous application, the informant raised concerns that the applicant may continue to seek retribution for the incident on 23 June 2020, and may attempt to interfere with witnesses in this matter.
In neither the written material nor oral submissions did the respondent address why stringent conditions of bail could not ameliorate risk to an acceptable level.
Analysis
When Coghlan JA ruled on this matter on 6 July 2021, he effectively contemplated that this application might be made based on the outcome of the hearings under s 198B of the Criminal Procedure Act 2009 (Vic). So much is clear from his Honour’s revised reasons published on 29 July 2021. Of course, what his Honour had no particular reason to contemplate was the direct effect of COVID-19 on the applicant’s family. Without doubt there are new facts and circumstances arising from both of those matters to the extent that that might be a threshold requirement for this application.
The applicant contends that exceptional circumstances that would justify a grant of bail have been established. In applying the considerations in s 3AAA of the Act, the first thing that is clear is that the nature and seriousness of the crime the applicant is charged with is at the very highest end of the scale. As Coghlan JA noted, it was carried for revenge even though it appears the wrong person was killed.
So far as the strength of the case is concerned, in my opinion there may well be significant evidence that will place the applicant, Mr Hammoud and Mr Rahman at the scene of the killing of the deceased. It is anticipated that additional evidence will be disclosed that will further clarify this aspect of the prosecution case. The real difficulty will be whether there is evidence which properly identifies the applicant as the person who fired the fatal shots. In my view, the evidence identifying the applicant was significantly undermined at the s 198B hearings of this matter. Mr Dann QC correctly submitted that this enlivens the principle of parity in this application.
The applicant is relatively young at only 22 years of age. This is the first time he has been in custody. He has virtually no criminal history but he does have a history of substance use. He does not have any history of bail offending or otherwise breaching court orders. A significant degree of support has been arranged for the applicant should he be granted bail. He will have employment and educational opportunities available to him. His uncle has offered a substantial surety.
This is a case in which the effect of the COVID-19 pandemic both on the courts and on participants in the criminal justice system has been thrown into sharp relief. The pandemic has significantly disrupted the hearing of criminal matters. Trials have stopped, then started, then stopped. Necessary health and safety precautions have meant that those trials that have been conducted in recent times have been significantly more resource intensive and far less efficient than they would ordinarily be. The backlog of pending cases awaiting trial has grown to alarming proportions. As Priest, Kaye and T Forrest JJA noted in the context of sentencing discounts for pleas of guilty in Worboyes v The Queen:[26]
35.As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.
[26][2021] VSCA 169 (Priest, Kaye and T Forrest JJA), [35].
These comments are equally applicable in the context of bail applications. Accused people remanded in custody awaiting trial are facing unprecedented delay and uncertainty. It is unknown when the applicant’s matter will reach trial. All that can be said at this time is the trial will likely take place in late 2022.
The pandemic has also created a significant degree of hardship for people in custody. Prisoners, whether on remand or serving sentence, have been subjected to extremely difficult conditions in the cause of preventing infections. They have lost personal contact with family and friends and been deprived of work and education opportunities. The efforts of the Department of Corrections to stop the virus infiltrating the Victorian prison system have been largely successful until recently. The recent development of COVID-19 appearing in Victorian gaols further burdens incarcerated people. In this application, I am dealing with a remand prisoner who been subject to these difficult custodial conditions whilst also being separated from family members themselves suffering from COVID-19. There is a real prospect that the applicant’s father may succumb to the virus.
In all the circumstances, I am satisfied that the applicant has established that exceptional circumstances exist that justify the grant of bail.
Turning next to the question of whether the respondent has established that the applicant poses an unacceptable risk within the meaning of s 4E(1) of the Act. The alleged offending is extremely serious. The risk the applicant poses of committing acts of violence with a firearm is a weighty consideration in light of the need to maximise the safety of the community. However, it is also the case that the applicant has no relevant prior convictions. He would be highly motivated to stay out of custody should he be granted bail given his parents’ health. Significant supports are available to the applicant. I am also persuaded by Mr Dann QC’s submission that the principle of parity is relevant to an assessment of risk in this case, as the evidence from the s 198B hearings places the applicant in a similar position to Mr Hammoud with regards to risk.
In all the circumstances, I am not satisfied that the risk in releasing the applicant on bail is unacceptable. The imposition of stringent conditions of bail will ameliorate risk to an acceptable level.
Conclusion
I will make the following order:
1.The said Adam Tiba (‘the applicant’) be admitted to bail upon his own undertaking with a surety in the amount of $350,000 by [T H] and with the following conditions:
(a)The applicant reside at [redacted] in the State of Victoria (‘place of residence’);
(b)The applicant not leave his place of residence between the hours of 9:00 pm and 6:00 am (‘curfew hours’) unless he is in the company of his uncle [T H] or his mother [H Y];
(c)The applicant present at the front door of his residence during curfew hours upon the reasonable request of the informant Detective Senior Constable Jason Antonelli or his nominee, being an authorised member of Victoria Police;
(d)Insofar as COVID-19 restrictions permit, the applicant report to the Officer in Charge of Broadmeadows Police Station, or their nominee, every Monday, Wednesday, Friday and Sunday between the hours of 7:00 am and 7:00 pm;
(e)The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic);
(f)The applicant undergo supervised urine screens each Monday and Friday and provide the results of the urine screens to the informant or his nominee;
(g)The applicant provide a sample of oral fluid for testing upon the reasonable request of the informant or his nominee;
(h)The applicant engage with and comply with all lawful directions of [M M] of [redacted] or his nominee;
(i)The applicant engage in treatment and comply with all lawful directions of [B N] of [redacted] or her nominee;
(j)The applicant engage in treatment and comply with all lawful directions of the Court Integrated Services Program;
(k)The applicant not, whether directly or indirectly, contact or associate with any co-accused, that is, Abdullah Hammoud, Ammair Fahal, or Tahmid Rahman;
(l)The applicant not, whether directly or indirectly, contact or associate with any witness for the prosecution other than the informant;
(m)The applicant is not to possess or use more than one mobile phone;
(n)The applicant is to provide the informant or his nominee with the phone number, IMEI number and any password or PIN of the mobile phone he possess or uses within 24 hours of first having access to that phone and notify the informant or his nominee of any change of password or PIN of that mobile phone within 24 hours of that change;
(o)The applicant is to produce the mobile phone he possess or uses for inspection upon the request of the informant or his nominee;
(p)The applicant is to provide any password or PIN for the mobile phone he possess or uses upon the request of the informant or his nominee;
(q)The applicant not leave the State of Victoria;
(r)The applicant not attend any points of international departure;
(s)The applicant surrender any current passport or travel document in his possession or control to the informants or their nominee within 24 hours of being released on bail;
(t)The applicant is not to apply for any such passport or travel document or cause, whether directly or indirectly, any other person to do so on his behalf; and
(u)The applicant appear at this Court at 9:30 am on 7 October 2021 and thereafter as directed this Court.
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