JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2024
DATE OF RULING:	5 April 2024
CASE MAY BE CITED AS:	Re Tiburcy
MEDIUM NEUTRAL CITATION:	[2024] VSC 163

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CRIMINAL LAW — Bail — Applicant charged with five counts of trafficking in a large commercial quantity of a drug of dependence — Schedule 1 offences — Requirement to show exceptional circumstances — Very significant delay — Delay constituting exceptional circumstances — Unacceptable risk alleged — Whether applicant an unacceptable risk of endangering the safety or welfare of any person by further offending, and/or failing to answer bail — Availability of strict conditions including electronic monitoring — Unacceptable risk not established — Application granted — Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A, 4D, 4E & 34.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Farrington	City Group Legal
For the Respondent	Mr P Pickering	Office of Public Prosecutions

HER HONOUR:

Introduction

Steven Tiburcy (‘applicant’) applies for bail on the following 12 charges:

(a) Trafficking in a large commercial quantity of a drug of dependence (unspecified) (Charge 1);[1]
[1]Contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71.

(b) Trafficking in a large commercial quantity of MDMA (Charge 4);[2]
[2]Ibid.

(c) Trafficking in a large commercial quantity of cocaine (Charge 5);[3]
[3]Ibid.

(d) Trafficking in a large commercial quantity of methylamphetamine (Charge 6);[4]
[4]Ibid.

(e) Trafficking in a large commercial quantity of ketamine (Charge 7);[5]
[5]Ibid.

(f) Possess ammunition without a licence (Charges 2 and 10);[6]
[6]Contrary to the Firearms Act 1996 (Vic) s 124.

(g) Possess prohibited weapon (Charges 3 and 11);[7]

(h) Possess tablet press (Charges 8 and 9);[8] and

(i) Fail to comply with a direction to assist (Charge 12).[9]

[7]Contrary to the Control of Weapons Act 1990 (Vic) s 5AA.

[8]Contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71C.

[9]Contrary to the Crimes Act 1958 (Vic) s 465AA(9).

It is common ground that the applicant must satisfy the Court that exceptional circumstances exist justifying the grant of bail.[10]
[10]Pursuant to the Bail Act 1977 (Vic) (‘the Act’), the applicant is charged with five sch 1 offences. See sch 1, item 6(a), being an offence against s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

Alleged offending

The charges against the applicant and five co‑accused arise from an extensive Australian Federal Police (‘AFP’) and Federal Bureau of Investigation (‘FBI’) investigation known as Operation Ironside. Operation Ironside covertly investigated serious organised crime activities through the use of a messaging platform known as AN0M, which was marketed as a secure, encrypted mode of communication. In reality, AN0M communications were capable of being monitored, decrypted, recorded and traced by law enforcement agencies. AN0M was only…

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 Tiburcy

Details

AGLC: Re Tiburcy [2024] VSC 163
Case: [2024] VSC 163
Decision Date: 5 April 2024

CaseChat Overview and Summary

In the matter of Re Tiburcy, the applicant was charged with five counts of trafficking in a large commercial quantity of a drug of dependence. The application before the court was for bail under the Bail Act 1977 (Vic). The central issue before the court was whether exceptional circumstances existed that warranted the grant of bail to the applicant, given the seriousness of the charges and the risk factors involved.

The court needed to determine if the significant delay in the matter constituted exceptional circumstances, and whether the applicant posed an unacceptable risk of endangering the safety or welfare of any person by further offending or failing to answer bail. The applicant argued that the delay amounted to exceptional circumstances, and that strict bail conditions, including electronic monitoring, could mitigate any risk. The prosecution contended that the nature of the charges and the risk of re-offending made bail inappropriate.

The court found that the significant delay in the proceedings constituted exceptional circumstances. The court held that the applicant was not an unacceptable risk of endangering the safety or welfare of any person by further offending or failing to answer bail, given that strict bail conditions, including electronic monitoring, could be implemented. The court considered the availability of strict bail conditions as a mitigating factor and determined that the risk could be adequately managed. Consequently, the application for bail was granted.

The orders of the court were that the applicant be released on bail subject to strict conditions, including electronic monitoring, until the disposal of the charges against them. The applicant was also required to comply with a number of other bail conditions.

Orders