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

v  

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:

1. 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.

1. 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.

1. 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].

1. 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 statements regarding the firearm.  However, on 17 September, subsequent to the swearing of that affidavit, a certificate of analysis in respect of the substance located by police on 11 February has now been served on the applicant.  According to the applicant’s solicitor’s affidavit sworn 22 September 2015, what now remains outstanding is DNA and fingerprint analysis.

1. That said, in an affidavit in opposition to the present application, Detective Senior Constable Ryan Montgomery has deposed that the contested hearing that was scheduled for October of this year ‘was vacated and the matter was adjourned to 14 December 2015 for a further special mention allowing a full DNA report to be made available’.  It seems that currently what is now outstanding is the relevant DNA analysis.

1. While it is asserted that the adjournment to a special mention on 14 December 2015 (and subsequently to a contested hearing in January 2016) ‘does not constitute unusual or inordinate unacceptable delay’, no explanation is given for the failure by the prosecution to produce material that it is required to produce in a timely way, so as to have permitted the applicant’s contested hearing to proceed on the days on which it was listed in October this year.  In the circumstances of the present case, this is  not acceptable.

1. As has been said before, ‘the question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might objectively be the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay’.[3]

   [3]See Mokbel v DPP (No 3) (2002) 133 A Crim R 141, 142-3 (Kellam J). See further, DPP(Cth) v Barbaro (2009) 20 VR 717, 726-728 [33]-[41] (Maxwell P, Vincent and Kellam JJA).

1. There is little doubt that if bail is granted to the applicant then there would be, at least, some risk that the applicant might commit further offences.  In an effort to make that risk (and the risk of the applicant endangering the safety and welfare of members of the public) acceptable, counsel for the applicant has submitted a number of conditions that might be imposed, including conditions as to residence at a suitable facility, and curfew and reporting conditions.  Additionally, a surety in the sum of $175,000 is proposed. 

1. In summary, the applicant relies upon the following matters, in combination, as demonstrating cause to be granted bail, and also that any relevant risk (to which I have already referred) is not an unacceptable one:

(a)       the applicant is relatively young, being aged only 26 years;

(b)although the applicant has a prior criminal history, there is no history of trafficking in a drug of dependence or possessing firearms;

(c)delay (both to date and in the future);

(d)the applicant’s mental health;

(e)the availability of treatment at Recover Oz;  and

(f)the fact that a surety in the amount of $175,000 is available.  

1. While the Court was not persuaded in June of this year that the applicant had shown cause why his detention in custody was not justified, all of the circumstances relied upon by the applicant (and referred to previously) together with the delay that has now eventuated has now led me to conclude that the applicant has now shown cause why his continued detention in custody is not justified.  The circumstances of this case do not justify the applicant’s continued detention in custody while the prosecution takes time to marshal its case.

1. Without saying anything definitive about conclusions that might be reached by the court that hears this matter, or the range of possible outcomes of this case, the prospect of the applicant remaining in custody, while presumed innocent, for a longer period than that for which he might be sentenced if he is found guilty, is not one to be lightly countenanced. Further, and again without in any way seeking to fetter any exercise of any sentencing discretion that may come to be exercised in relation to the present alleged offending, I accept the applicant’s submissions that on any plea made on behalf of the applicant the principles set out in R v Verdins[4] and Boulton v The Queen[5] are likely to loom large.

   [4](2007) 16 VR 269.

   [5][2014] VSCA 342.

1. In the circumstances, and having found that the applicant has shown cause that his continued detention in custody is no longer justified, I propose to grant bail on a surety in the amount of $175,000 together with conditions that the applicant:

(a)   reside at Recover Oz;

(b)   remain at his residential address between the hours of 9:00pm and 6:00am seven days a week;

(c)    report daily to police;

(d)  not leave Recover Oz except in the company of an employee or nominee of Recover Oz or to report to police during curfew hours if requested to do so;

(e)   follow all lawful directions of the Director of Recover Oz or his/her nominees;

(f)     not directly or indirectly contact any witness for the prosecution except the informant;

(g)   surrender any passports and not apply for another passport;  and

(h)   not attend any point of international departure while on bail.

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