Re Tiba (No 2) - [2015] VSC 514

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2015 0132

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an Application for Bail by OMAR TIBA (No 2)

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2015
DATE OF JUDGMENT:	23 September 2015
CASE MAY BE CITED AS:	Re Tiba (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 514

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CRIMINAL LAW – Bail – Show cause situation – Applicant charged with indictable offence alleged to have been committed while applicant at large awaiting trial for another indictable offence – Prior convictions for committing indictable offence while on bail, contravening a conduct condition of bail and failing to answer bail – Whether unacceptable risk – Whether applicant has shown cause – Delay – Adjournment of applicant’s trial – Bail granted with surety and on conditions.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Inspector R Koo	Acting Senior Sergeant S Shearer
For the Accused	Mr M Gumbleton	Tricarico & Marcevski Lawyers

HIS HONOUR:

The background to this application for bail is set out in this Court’s decision delivered on 23 June 2015 (‘the June 2015 bail judgment’).[1] The June 2015 bail judgment sets out the reasons why the applicant was refused bail on 23 June 2015. It also sets out relevant background matters as they were at that time. It is not necessary to rehearse those matters again. This judgment should be read with the June 2015 bail judgment.
[1]Re Tiba [2015] VSC 304.

Since the refusal of the applicant’s bail application in June this year, the applicant has, of course, remained in custody. Evidence tendered on the present application shows that the applicant’s time in custody has been unusually onerous for a period of time due to necessary security arrangements put in place after substantial and major violent disruptions, to which the applicant was not a party, occurred at the Metropolitan Remand Centre. Following these disruptions, and due to a number of cells becoming ‘unserviceable’, the applicant had to be transferred to a high security unit and was ‘placed on a handcuff regime’ for a time.

When bail was refused on 23 June, the applicant’s trial was then listed for a contested hearing at the Melbourne Magistrates Court on 6 October 2015. In dealing with the issue of delay, this Court said:

While delay might be a factor that, in combination with other factors, becomes significant if the applicant’s trial is delayed beyond October this year, it is not such a factor at the moment.[2]

[2]Ibid [17].

On 28 August 2015, the applicant’s contested hearing was adjourned from 6 October 2015 to 13 January 2016. According to the applicant’s solicitors’ affidavit sworn 7 September 2015, ‘to date a full service of the brief has not been served (sic)’. Specifically, according to the applicant, the brief is said not to contain a certificate of analysis as to the substance seized by police or any forensic expert…

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) [2015] VSC 514
Case: [2015] VSC 514
Decision Date: 23 September 2015

CaseChat Overview and Summary

In the matter of Re Tiba, the respondent, a person charged with a serious indictable offence, applied to the court for bail while already at large and awaiting trial for another indictable offence. The applicant had a history of contravening bail conditions and failing to appear in court, raising concerns about the risk posed to the community if granted bail again. The case was heard in the Supreme Court of Queensland. The central legal issues revolved around whether the applicant had demonstrated sufficient cause to rebut the presumption against bail and whether the risk to the community was unacceptable.

The court considered the applicant's history of breaching bail conditions and failing to appear in court, which suggested a pattern of disregarding legal obligations. However, the applicant argued that the delay in the trial of the current charges, due to an adjournment, warranted reconsideration of bail. The court also noted the applicant's personal circumstances, including employment and family ties, which could mitigate the risk of reoffending. After weighing these factors, the court concluded that the applicant had demonstrated sufficient cause to warrant a grant of bail, despite the prior history of non-compliance.

The court granted bail with conditions, including the requirement of a surety, and imposed strict conditions to manage the risk posed by the applicant. The decision highlighted the importance of the applicant's history and the need for stringent bail conditions to protect the community. The court's ruling was grounded in the balance between the presumption against bail for serious offences and the applicant's demonstrated cause, along with the specific conditions imposed to mitigate risk.

Orders