Re Tiba (No 3)
[2024] VSC 198
•15 April 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0061
S ECR 2023 0217
| IN THE MATTER of the Bail Act 1977 (Vic) |
| AND |
| IN THE MATTER of an application for variation of bail by ADAM TIBA |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 April 2024 |
DATE OF RULING: | 15 April 2024 |
CASE MAY BE CITED AS: | Re Tiba (No 3) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 198 |
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CRIMINAL LAW – Application to vary conditions of bail – Charges of aggravated burglary and attempted armed robbery – Use of firearm – Application to vary residential address and remove curfew and reporting conditions – Multiple breaches of reporting condition while on bail – General compliance with other conditions of bail over approximately 2 and a half years – Residential address, curfew and reporting conditions varied – Bail Act 1977 (Vic), ss 1B, 3AAA, 4E, 5, 5AAA, 18AC, 18AD.
HUMAN RIGHTS – Rights to liberty and freedom of movement – Consideration of Charter provisions on application to vary conditions of bail – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7, 12, 21.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | R Melasecca (solicitor) | Melasecca, Kelly & Zayler Lawyers |
| For the respondent | D Porceddu | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
On 15 March 2024, the applicant, Adam Tiba (“Tiba”), filed an application to vary his conditions of bail pursuant to section 18AC of the Bail Act 1977 (Vic).[1]
[1]Tiba was required to surrender to this court under his bail undertaking: see s 18AC(3)(b) of the Bail Act.
On his application, Tiba sought the removal of his curfew and reporting conditions, as well as a variation of his residential address.
The curfew and reporting conditions will be varied to allow greater liberty and freedom of movement, rather than removed as sought. Further, the residential address will be varied as sought and all other existing conditions of bail shall remain in place.
B. Background
On 30 September 2021, Tiba was granted bail on his own undertaking with conditions, and with a surety, now referred to as a bail guarantee, by Lasry J. Tiba’s conditions of bail included, amongst other conditions, curfew conditions and a reporting condition.
At the time at which bail was granted, the charges against Tiba included:
(1)Murder contrary to common law (which has since been withdrawn).[2]
(2)Aggravated burglary contrary to section 77 of the Crimes Act 1958 (Vic) (to which Tiba pleaded guilty on 29 November 2023).[3]
(3)Attempted armed robbery contrary to sections 75A and 321M of the Crimes Act (which is listed for trial on 15 July 2024).
[2]The charge of murder was withdrawn on 23 May 2023. On 21 September 2023, the remaining charges of aggravated burglary and attempted armed robbery were severed.
[3]The plea hearing is anticipated to proceed after the trial of the attempted armed robbery charge has concluded.
The circumstances of the offending and alleged offending have been summarised elsewhere.[4] It is not necessary to repeat these matters in detail for present purposes. Briefly, in relation to the charge of attempted armed robbery, it is alleged that on 23 June 2020, during the course of a drug deal, Tiba attempted to rob a man of certain property at gunpoint. A physical struggle ensued, during which Tiba and his co-accused, Abdullah Hammoud (“Hammoud”), were stabbed.
[4]Re Tiba (No 2) [2021] VSC 716, [4]-[6] (Lasry J). See also, Re Tiba [2021] VSC 429, [6]-[23] (Coghlan JA).
In relation to the charge of aggravated burglary, it suffices to note that a man was fatally shot at a residential property in Lalor. A person present at the Lalor residence had allegedly been involved in the failed drug transaction on 23 June 2020. It is alleged that Tiba, together with co-accused Hammoud and Tahmid Rahman (“Rahman”), attended the Lalor residence on 18 July 2020 with a plan to carry out an aggravated burglary in retaliation for the incident on 23 June 2020. [5] After the 3 co-accused failed to gain access to the residence, a firearm was discharged several times into the front of the residence. One of the bullets fired struck the deceased, who died of his injuries on 20 July 2020.
[5]A third co-accused, Ammair Fahal (“Fahal”), is specified in the non-association condition of Tiba’s conditions of bail. Fahal was charged with secondary offences relating to the alleged aggravated burglary on 18 July 2020 and pleaded guilty to 1 charge of aggravated burglary on 4 May 2023.
Tiba was 21 years of age at the time of the offending and alleged offending. At that time, he had no prior convictions and no history of failing to comply with court orders or conditions of bail. Tiba was arrested on 21 October 2020 and was remanded in custody for approximately 11 months before being released on bail with conditions and a bail guarantee in the amount of $350,000.
Returning to the procedural history of this matter, on 3 November 2021, Tiba’s conditions of bail were varied by consent to reduce his curfew hours from between 9.00pm and 6.00am each day, to between 9.00pm and 5.00am each day to allow him to fulfil his work commitments. On the court’s own motion, an additional condition of bail was added, requiring Tiba to engage with and comply with all lawful directions of Mukhtar Mohammed of the Islamic Council of Victoria or his nominee.
On 21 March 2022, Tiba’s conditions of bail were further varied to reduce his curfew hours to between 11.00pm and 5.00am each day. An additional condition of bail was added, requiring Tiba to undertake supervised urine screens fortnightly on Mondays and provide the results of the urine screens to the informant or his nominee.
C. Legislative framework
On an application under section 18AC of the Bail Act, the court must take into account the surrounding circumstances, including, but not limited to, those set out in section 3AAA, and may vary the amount of bail or conditions of bail if it appears that it is reasonable to do so having regard to those circumstances.[6] In any other case, the court may dismiss the application.[7]
[6]Bail Act, s 18AD(a).
[7]Ibid, s 18AD(b).
In interpreting and applying the provisions of the Bail Act, including in respect of applications for variation of bail, the court is required to take into account the guiding principles set out in section 1B, including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.[8]
[8]See Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
Any conduct conditions of bail imposed must be no more onerous than is required to reduce the likelihood that the accused will endanger the safety or welfare of any other person, whether by committing an offence or any other means; interfere with a witness or otherwise obstruct the course of justice; or fail to surrender into custody in accordance with the bail undertaking.[9] In addition, any conduct condition must be reasonable, having regard to the nature of the alleged offence or offences and the circumstances of the accused.[10]
[9]Bail Act, s 5AAA(2)(a).
[10]Ibid, s 5AAA(2)(b).
Section 5 of the Bail Act, which concerns bail undertakings, includes notes concerning the relationship between the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the provisions of section 5 of the Bail Act concerning conditions of bail. It includes:
…
Notes
1 Sections 12 and 21 of the Charter of Human Rights and Responsibilities set out a right of freedom of movement and a right to liberty and security of the person.
2 Sections 23 and 25 of the Charter of Human Rights and Responsibilities set out the rights of children in the criminal process and the rights of an adult in criminal proceedings.
3 Section 7(2) of the Charter of Human Rights and Responsibilities sets out how a human right may be limited after taking into account all relevant factors, including any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
These notes to section 5 were introduced by the Bail Amendment Act 2010 (Vic).[11] The explanatory memorandum outlines that the notes were included to:[12]
[E]nsure the Charter provisions are considered when bail conditions are imposed, particularly those that restrict freedom of movement and provide guidance on what may be considered “no more onerous than is required”. The recommendation was also aimed at ensuring Charter provisions are considered when deciding applications to vary conditions and reviewing conditions.
(Emphasis added.)
[11]Bail Amendment Act 2010 (Vic), s 8.
[12]Explanatory Memorandum, Bail Amendment Bill 2010 (Vic), 5.6
As outlined in Woods v Director of Public Prosecutions,[13] the power to impose particular conditions of bail is regulated by provisions in the Bail Act “which are designed to ensure that conditions which violate the human rights of the accused are not imposed”.[14]
[13](2014) 238 A Crim R 84.
[14]Ibid, 108 [84] (Bell J). See also ibid, 107-108 [82]-[83].
D. Submissions and evidence
On this application, Tiba seeks the removal of his curfew and reporting conditions, as well as a variation of his residential address on the basis that:
(1)He has been on bail for a period of time in excess of 2 and a half years, and in that time, he has largely complied with his conditions of bail. However, he accepts that he has failed to comply with his reporting condition on a number of occasions in recent months.[15]
(2)His curfew and reporting conditions interfere with his work. He works approximately 3 days per week in a managerial role at a registered National Disability Insurance Scheme provider. He often works unpredictable hours, as he is required to be on call and respond to the medical needs of his clients who are commonly located in outer metropolitan and regional areas. He also does roofing work approximately 3 days per week. Certain jobs are located far from his residential address. He sometimes has to turn down work due to the travel involved, as he would be unable to comply with his curfew and reporting conditions.
(3)His curfew and reporting conditions interfere with his social life and religious obligations, both of which form a significant part of his rehabilitation. For example, it is said he is unable to attend night classes at his local mosque which is 40 minutes away, he is unable to stay at his partner’s premises late at night and he is unable to attend the gym in the evenings.
(4)The variation of his residential address is required because the address specified in his existing conditions of bail has been sold and he and his family are required to move to another address.
[15]See par 19 below.
Tiba’s uncle and bail guarantor, Haissam Tiba, supports the application.
Tiba submitted that following an interaction with a police officer at Broadmeadows Police Station in early 2024, he had been under the impression that he no longer had an obligation to report. He engaged in intermittent reporting for a period of time until he had a discussion with his solicitors, who directed him to report consistently in accordance with his conditions of bail. Tiba submitted that notwithstanding his recent non-compliance, he has “only failed to report on 50 occasions out of 415 total reporting dates, spanning over some 2 and a half years”.
Tiba also submitted that any conditions of bail must be imposed in accordance with the “least restrictive means principle”.[16] In doing so, he placed reliance on the case of Director of Public Prosecutions v SE.[17] Tiba submitted that he did not pose a risk of failing to appear, as evidenced by his general compliance with his conditions of bail to date. He further submitted that there were numerous other stringent conditions imposed on him, such that the curfew and reporting conditions were not necessary. In the event that the court was minded to retain the curfew conditions, he submitted that the curfew hours should be further reduced to between 12.00 midnight and 5.00am each day.
[16]See Charter of Human Rights and Responsibilities Act, s 7(2)(e).
[17][2017] VSC 13, [37] (Bell J), citing Woods v Director of Public Prosecutions (2014) 238 A Crim R 84, 103-108 [60]-[84] (Bell J).
In addition, Tiba submitted that with respect to the charge of attempted armed robbery which is set down for trial in July 2024, the case against him is weak. The victim who identified Tiba as 1 of the offenders is alleged to have stabbed Tiba during the altercation, which it is contended raises issues as to credit.
The respondent did not oppose the proposed variation of Tiba’s residential address, but did oppose the proposed removal of his curfew and reporting conditions on the basis that:
(1)Tiba faces serious charges of aggravated burglary (to which he has pleaded guilty) and attempted armed robbery, both of which carry maximum penalties of 25 years’ imprisonment. The seriousness of the charges warrants continued monitoring through the curfew and reporting conditions. It was submitted that the removal of the reporting condition would be an “extreme step” in light of the seriousness of the offending and alleged offending.
(2)In respect of the charge of attempted armed robbery which is set down for trial in July 2024, the case against Tiba is strong. The firearm allegedly used during the attempted armed robbery on 23 June 2020 has been recovered by police and the victim has given evidence identifying Tiba as 1 of the alleged offenders. Further, evidence obtained by telephone intercepted calls made by Tiba suggest that the aggravated burglary on 18 July 2020 was “pay back” for the attempted armed robbery that went wrong.
(3)Tiba has breached his reporting condition on numerous occasions between January and March 2024. From 1 January 2024 until 18 March 2024, Tiba failed to report to Broadmeadows Police Station on 12 occasions and reported outside the prescribed reporting hours on a further 8 occasions. In effect, he has only complied with his reporting condition on 6 out of 26 occasions during the relevant period of time. Further, there was no explanation given to the informant prior to the hearing as to why those failures occurred.
(4)The curfew is limited to 6 hours per day, a small impost which permits Tiba to maintain his social and work activities, whilst still enabling Victoria Police to effectively monitor him. The respondent conceded that Tiba had complied with his curfew conditions to date.
(5)Tiba has been charged with 2 further driving offences which are pending before the courts. These consist of a charge of driving 56 kilometres per hour over the legal speed limit and a separate traffic infringement which Tiba is contesting. In relation to the contested traffic infringement, Tiba failed to appear in the Broadmeadows Magistrates’ Court on 13 July 2023 and a warrant for his arrest was issued. The following day, Tiba attended the Broadmeadows Police Station and was granted bail on his own undertaking.
At the hearing, the informant, Detective Acting Sergeant Jason Antonelli (“Antonelli”), gave evidence that he had initially contemplated consenting to the removal of Tiba’s reporting condition. However, upon discovering Tiba’s poor adherence with his reporting condition, his view changed. Antonelli did, however, consent to the variation of Tiba’s reporting hours to conclude at 9.00pm instead of 7.00pm to allow him to report in the evenings after finishing work. He also ultimately consented to the reduction in frequency of Tiba’s required reporting from 4 days per week to 2 days per week.
Antonelli explained that the curfew and reporting conditions were necessary to ensure that Victoria Police would be able to monitor Tiba whilst he was on bail. He outlined that he had previously consented to the reduction of the curfew hours so that the curfew conditions were less taxing on Tiba, but did not consent to the removal of the curfew conditions altogether. He also noted that the 2 further driving offences referred to above both allegedly occurred in the evening.[18] However, it was later accepted that it would be appropriate to limit the curfew to certain days of the week, namely, Friday, Sunday, Monday and Wednesday evenings, to allow Tiba to engage in social and religious activities and stay at his partner’s residence up to 3 nights per week.
[18]See par 22(5) above.
E. Consideration
Pursuant to section 18AD of the Bail Act, the surrounding circumstances must be taken into account, including those set out in section 3AAA. Tiba has no prior convictions, however, I accept the respondent’s submission that the charges against him (1 of which he has pleaded guilty to) are serious. In relation to the charge of attempted armed robbery, the evidence is such that it cannot be accepted that the prosecution case is weak. While Tiba has largely complied with his conditions of bail to date, his non-compliance with his reporting condition in recent months is of some concern. Notwithstanding the fact that there have been 415 occasions on which he had to report, I consider 50 failures to be of some significance. It is also difficult to accept that he believed he had no obligation to report in recent months, based on the attitude of Broadmeadows police, when he nonetheless continued to report intermittently.
In the circumstances of such breaches, I am of the view that some reporting requirements should remain in place, and that a curfew should also remain in place so as to allow Victoria Police to monitor Tiba and mitigate the risks of the kind referred to in section 4E(1)(a) of the Bail Act. However, I accept that in light of the withdrawal of the charge of murder, Tiba’s general compliance with his other conditions of bail, and the attitude of the informant to the reduction of the number of reporting days,[19] it is reasonable to reduce the frequency of Tiba’s reporting requirements. It is also appropriate to extend the reporting hours from reporting at any time between 7.00am and 7.00pm, to any time between 7.00am and 9.00pm.
[19]See par 23 above.
For similar reasons, I accept that it is reasonable to limit Tiba’s curfew from operating every day of the week to only certain days of the week in order to allow him the flexibility to engage in social activities. Balancing the respondent’s stated preference for a weekend curfew against Tiba’s desire to participate in social activities which take place on weekends, in my view it is reasonable to lift Tiba’s curfew on Saturday evenings. In addition, the curfew hours will be further reduced to 11.30pm to 5.00am. Further, consistent with the current conditions of bail, the curfew does not apply when Tiba is in the company of his uncle Haissam Tiba or his mother Yasemin El Hanafy.
Acknowledging the numerous positive matters underlining Tiba’s performance on bail to date, his conditions of bail will be varied as follows:
(1)His residential address is varied to the address of his new family home.
(2)His curfew conditions are varied so that he is not to leave his place of residence between 11.30pm and 5.00am on Friday, Sunday, Monday and Wednesday evenings.
(3)His reporting condition is varied so that he is to report to the officer in charge at Broadmeadows Police Station each Monday and Friday between the hours of 7.00am and 9.00pm.
In arriving at this decision, I have had regard to section 5AAA(2)(a) and (b) of the Bail Act, which outlines that each condition, and the conditions collectively, must be no more onerous than is required and must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused. I have also had regard to the factors set out in section 7(2) of the Charter of Human Rights and Responsibilities Act, in limiting Tiba’s rights to liberty and freedom of movement.[20]
[20]See also ss 12 and 21 of the Charter of Human Rights and Responsibilities Act.
F. Conclusion
Accordingly, Tiba’s conditions of bail will be varied by order of this court and will read as follows:
The applicant is admitted to bail on his own undertaking and with a bail guarantee from Haissam Tiba in the amount of $350,000, on the following conditions, namely that he must:
(1)Reside at [residential address] (“the Residence”).
(2)Not leave the Residence between the hours of 11.30pm and 5.00am every Friday, Sunday, Monday and Wednesday evening (“the Curfew Hours”), unless in the company of his uncle Haissam Tiba or his mother Yasemin El Hanafy.
(3)Present at the front door of the Residence during the Curfew Hours upon the reasonable request of the informant, Detective Senior Constable Jason Antonelli, or his nominee, being an authorised member of Victoria Police.
(4)Report to the officer in charge of the Broadmeadows Police Station, or her or his nominee, every Monday and Friday between the hours of 7.00am and 9.00pm.
(5)Not use or possess any narcotic substance as defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(6)Undergo supervised urine screens fortnightly on Mondays and provide the results of the urine screens to the informant or his nominee.
(7)Provide a sample of oral fluid for testing upon the reasonable request of the informant or his nominee.
(8)Engage with and comply with all lawful directions of Mukhtar Mohammed of the Islamic Council of Victoria or his nominee.
(9)Engage in treatment and comply with all lawful directions of Nadia Barbagallo of Barbagallo Consultancy Pty Ltd or her nominee.
(10)Engage in treatment and comply with all lawful directions of the Court Integrated Services Program.
(11)Not, whether directly or indirectly, contact or associate with any co-accused, that is, [Hammoud], [Fahal] or [Rahman].
(12)Not, whether directly or indirectly, contact or associate with any witness for the prosecution other than the informant.
(13)Not possess or use more than 1 mobile telephone.
(14)Provide the informant or his nominee with the telephone number, International Mobile Equipment Identity (“IMEI”) number and any password or Personal Identification Number (“PIN”) of the mobile telephone he possesses or uses, within 24 hours of first having access to that mobile telephone, and notify the informant or his nominee of any change of password or PIN of that mobile telephone within 24 hours of that change.
(15)Produce the mobile telephone he possesses or uses for inspection upon the request of the informant or his nominee.
(16)Provide any password or PIN for the mobile telephone he possesses or uses upon the request of the informant or his nominee.
(17)Not leave the State of Victoria.
(18)Not attend any points of international departure.
(19)Surrender any current passport or travel document in his possession or control to the informant or his nominee within 24 hours of the date of these orders.
(20)Not apply for any such passport or travel document or cause, whether directly or indirectly, any other person to do so on his behalf.
(21)Attend the Supreme Court of Victoria at 9.30am on 12 June 2024, and there surrender himself, and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.
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