Re Tofaris - [2021] VSC 249

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0101

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by NICHOLAS TOFARIS

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2021
DATE OF JUDGMENT:	12 May 2021
CASE MAY BE CITED AS:	Re Tofaris
MEDIUM NEUTRAL CITATION:	[2021] VSC 249

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CRIMINAL LAW – Application for bail – Charges of extortion and false imprisonment – Potential delay of three years – Availability of surety – Health concerns while in custody – Impact of continued incarceration on applicant’s business – Compelling reasons established – Unacceptable risk not demonstrated – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4C, 4D, 4E and 5 – ReCeylan [2018] VSC 361.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Jason Gullaci	Tony Hargraves & Partners
For the Respondent	Ms Jelena Malobabic	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by Nicholas Tofaris (‘the applicant’). On 22 April 2021 he was charged with the offences of:

(a) extortion with a threat to injure;[1]
[1]Contrary to s 27(b) of the Crimes Act 1958 (Vic)

(b) false imprisonment (common law);[2]
[2]Contrary to the common law

(c) recklessly causing injury;[3]
[3]Contrary to s 18 of the Crimes Act 1958 (Vic)

(d) making a threat to inflict serious injury;[4]
[4]Contrary to s 21 of the Crimes Act 1958 (Vic)

(e) making a threat to kill;[5]
[5]Contrary to s 27(b) of the Crimes Act 1958 (Vic)

(f) unlawful assault;[6]

(g) possessing a prohibited weapon without an exemption or approval;[7] and

(h) possessing methylamphetamine.[8]

[6]Contrary to s 23 of the Summary Offences Act 1966 (Vic)

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

[8]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)

The applicant was refused bail on 23 April 2021 at the Melbourne Magistrates’ Court (Bail and Remand Court) on the basis that he failed to show a compelling reason why his detention is not justified. He was also found to be an unacceptable risk of each of the matters set out in s 4E(1)(a) of the Bail Act 1977 (Vic) (the ‘Act’). The matter is next listed on 19 July 2021 at the Melbourne Magistrates’ Court for committal case conference and committal mention.

It is appropriate to mention at this stage that Mr Gullaci of counsel, who appeared for the applicant on the hearing of the application, indicated that the matter may well be capable of resolution and conceded that his client may have to accept some criminal responsibility for aspects of the allegations.

The alleged offending

The complainant in this matter is a former business associate of the applicant. At the time of the alleged offending, the complainant was residing with two of the co-accused, Sama Mirzaagha and Joel Farmer, in an apartment in Southbank. Andrew Garas, a third co-accused,…

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 Tofaris

Details

AGLC: Re Tofaris [2021] VSC 249
Case: [2021] VSC 249
Decision Date: 12 May 2021

CaseChat Overview and Summary

The applicant in this case, Tofaris, sought bail from the County Court of Victoria in relation to charges of extortion and false imprisonment. The applicant's application for bail was opposed by the prosecution due to the seriousness of the charges and concerns regarding flight risk and public safety. The court was required to consider the statutory criteria under the Bail Act 1977 (Vic), including whether the applicant had established compelling reasons for bail and whether there were unacceptable risks associated with granting bail.

The court assessed the evidence and arguments presented by both parties, focusing on the potential delay of three years before the matter could be heard, the availability of a surety, the applicant's health concerns while in custody, and the impact of continued incarceration on the applicant's business. The court found that the applicant had established compelling reasons for bail, as the length of the delay, the applicant's health concerns, and the impact on the applicant's business weighed in favour of granting bail. The court also found that the prosecution had not demonstrated any unacceptable risks associated with granting bail. Consequently, the court granted bail to the applicant with specific conditions, including the requirement to provide a surety and adherence to strict reporting obligations.

The final orders of the court included the release of the applicant on bail, subject to the conditions previously outlined. The applicant was also required to surrender their passport and abide by a curfew. The court emphasised the importance of strict compliance with these conditions to ensure public safety and the proper administration of justice. This decision highlights the importance of balancing the rights of the accused with the need to protect the community when considering bail applications in serious criminal cases.

Orders