CRIMINAL LAW - Application for bail - Applicant charged with murder and cultivating commercial quantity of cannabis - Applicant required to establish exceptional circumstances - Exceptional circumstances established but applicant an unacceptable risk of absconding whilst on bail - Bail refused - Barbaro v CDPP

1 On 20 and 21 August 2020, I heard a bail application by Albert Biba (AB) who is charged with murder and cultivating a commercial quantity of cannabis.

2 AB's bail proposal was that he reside with his brother Diego Biba (DB) at premises recently leased by DB in Greenvale and that he wear an Electronic Monitoring Device (EMD) supplied by a company called Attenti Australia Pty Ltd (Attenti).[1] A surety in the amount of approximately $470,000 was offered and AB was willing to abide by a strict curfew.

3 At the conclusion of submissions, I found that exceptional circumstances[2] existed but refused to grant bail because I was satisfied by the prosecution that AB was an unacceptable risk[3] of absconding on bail. I gave brief oral reasons for my decision, saying I would provide written reasons later, which I do now.

4 In the early hours of 17 April 2018, Andrew Toumayan and Francesco Vigneto burgled a house in Ringwood, intending to steal cannabis that was being cultivated there allegedly by AB and Armando Delia (Delia). The burglars unwittingly set off a silent alarm, which sent a text message to a mobile phone used by Delia. The prosecution alleges that Delia contacted AB, who was living in Box Hill at the time, and that AB travelled in his rented Prado to Ringwood, parked the vehicle some distance away from the crop house, proceeded there on foot and shot Toumayan fatally as he came out of the driveway of the crop house. The prosecution also allege that Delia travelled to Ringwood and collected AB a short distance from the crop house not long after the shooting and gave AB a lift back to the Prado.

5 Police found cannabis inside the crop house, as well as copious DNA and fingerprints matching AB and Delia. The cannabis weighed approximately three times the weight for a commercial quantity.

6 On 31 August 2018, AB was arrested, charged and remanded in custody. He has been in custody ever since and has not previously applied for bail.

7 On 5 December 2019, AB was committed to stand trial. His trial was listed to commence in July 2020.

8 Because of COVID-19 restrictions, the trial was adjourned to 31 August 2020 and then to 12 April 2021.

9 AB was born in Albania on 29 October 1988. His parents and some of his siblings still live there and he keeps in contact with them. He is still an Albanian citizen.

10 He came to Australia on a false passport in 2013, as did his brother DB in 2012.

11 AB claims to have left Albania because there was a vendetta against him by the family of a woman with whom he was in a relationship.

12 AB married another woman, Shana Ruffat, in 2014. They are now estranged. She has made a statement which strongly suggests that the marriage was a sham to enable AB to stay in Australia. AB currently holds a Bridging Visa whilst an appeal against rejection of his application for a Partner's Visa proceeds in the AAT.

13 AB has no criminal antecedents and no bail history.

14 In addition to affidavit material filed by both parties, oral evidence was given by:

• Detective Jodie Stoll, the Informant;
• Amal Fanous, the proposed surety; and
• Philipp Schluter, a representative of Attenti, the company which supplies the EMDs.

15 The Informant gave evidence, inter alia, that she considered AB a flight risk. International flights are still operating despite the pandemic. AB is an Albanian citizen and has family in Albania. Australia does not have an extradition treaty with Albania. Even if AB was fitted with an EMD, and the technology functioned perfectly, police may not be able to respond quickly enough to an EMD alert to prevent AB absconding.

16 The Informant also expressed concern about AB's proposal to reside with his brother DB. As mentioned, DB also entered Australia on a false passport in 2012. On 31 August 2018, police found a loaded .32 handgun at the Box Hill premises where AB had been staying and which DB would visit from time to time. DNA matching DB's DNA was found on the weapon. It was 43,000 times more likely that DB was the source of the DNA than a person chosen at random. A charge in relation to that firearm is pending.[4] In December 2019, DB sent police a copy of a passport, asserting that the person named in the passport, Mario Solak, had been driving his vehicle when it sped off from police on 2 December 2019. Inquiries with Home Affairs indicated that no person by that name had travelled to Australia, or applied to travel to Australia, in the past 20 years. On 29 July 2020, when police intercepted DB for driving erratically, he declined to answer police questions about the passport. DB is on bail for several charges of criminal damage. He has had multiple changes of address since being bailed. Inquiries with the real estate agent indicate that DB does not have permission from the landlord for AB to also reside at the nominated address in Greenvale.

17 Ms Fanous, the proposed surety, gave evidence that she had never met or spoken to AB but that she had known DB for two years through a poker playing group. Based on her friendship with and regard for DB, she was prepared to provide a surety of approximately half a million dollars, being the equity she has in two business premises.

18 The prosecutor cross-examined Ms Fanous about a letter she had signed in support of an aborted bail application by AB in 2019, when he was represented by different lawyers. The letter, which took her current lawyers by surprise, said, inter alia:

I have known Albert Biba for 4 years now, he is an extremely close friend of the family and from my experience, a very decent human being.

19 Ms Fanous confirmed that she had signed the letter which had been prepared by AB's previous lawyers, but she had not read it carefully before signing it. She said the reference to AB should have been a reference to DB, even though that did not fit either because, prior to being cross-examined about the letter, she testified that she had known DB for only two years.

20 Mr Schluter said Attenti has been supplying EMDs for many years, including to the Department of Justice. He explained that if the wearer cuts off the device, which is secured around the ankle, an alert is sent both to Attenti and the Informant (and/or a number nominated by the Informant)[5] within 20 seconds. He explained how the device could be programmed to transmit alerts if the wearer left an inclusion zone (eg, the wearer's residence) or approached an exclusion zone (eg, an international point of departure). Mr Schluter said only one person had ever absconded when fitted with an EMD as part of their bail program; that person had cut off the EMD which had generated an alert but police failed to respond for a few days.

21 In submissions about exceptional circumstances, AB emphasised delay. If the trial proceeds on 12 April 2021, there would be a delay from arrest to trial of approximately 2 years and 7 months. There was no certainty that the trial would proceed in April next year.

22 AB further submitted that there is a significant risk that he will spend more time on remand than any sentence he is likely to receive if convicted. He acknowledges that that would not be the case if he is convicted of murder or manslaughter but submits that the prosecution has a weak case on murder. The identity of the perpetrator is the central issue and he submits that, even if the jury accepted the prosecution's case that he travelled to the crop house in the early hours of 17 April 2018 in his rented Prado, it cannot exclude the possibility that someone else accompanied him and that they, not AB, shot the deceased and that AB was not complicit in the shooting.

23 AB conceded that the prosecution have a strong case in relation to the charge of cultivating a commercial quantity of cannabis but submitted, that if found guilty of that charge, he may not receive a sentence as long as time spent on remand.

24 As regards unacceptable risk, AB stressed the utility of the EMD and that, according to Mr Schluter, only one person fitted with an EMD had ever absconded whilst on bail.

25 AB submitted that it would not be possible for him to leave the country and return to Albania during the pandemic and that he would not want to go there anyway because of the vendetta which caused him to leave Albania in the first place.

26 The applicant submitted that the EMD would eliminate the risk of flight or reduce that risk sufficiently to make it an acceptable risk.

27 AB also relied on evidence given by the Informant that between 17 April 2018 and 31 August 2018, he had been under surveillance and had made no attempt to flee the jurisdiction.

28 The prosecution submitted that the delay between arrest and trial does not amount to inordinate delay and that its case on murder, though circumstantial, is not weak. It submitted that the evidence that Delia picked up AB near the crop house soon after the shooting and gave him a lift back to his Prado is inconsistent with somebody else having been the shooter.

29 The prosecution submitted that the prospect of conviction and a lengthy sentence for murder constitutes a powerful motive for AB to abscond and that, even if the EMD functioned properly, the time between it sending an alert and the police attending could afford AB sufficient time to disappear.

30 The prosecution submitted that AB would have the capacity to abscond to regional Victoria, interstate and even overseas to Albania. International flights have not been suspended altogether. AB could leave the country on false documentation. Both AB and his brother came from Albania to Australia on false passports, and DB may have recently utilised a false passport when nominating another person as the driver of his vehicle when it sped off from police. The prosecution highlighted the fact that Australia does not have an extradition treaty with Albania.

31 The anticipated delay from arrest to trial is at best approximately 2 years and 7 months. Whether COVID-19 will be sufficiently under control to allow the trial to commence in April 2021 is guesswork.

32 In my view, this amounts to inordinate delay and of itself constitutes exceptional circumstances.[6]

33 It was conceded by AB that the prosecution case regarding the commercial cultivation of cannabis was strong. If convicted on that charge after a trial, the minimum term could be substantially longer than the time spent on remand to date (almost two years), even though AB has no criminal antecedents. The possible sentence on Charge 2 alone is a strong motive to abscond.

34 Even if the prosecution case on murder is weak, which is debatable, there is still the possibility of AB being convicted of murder or manslaughter and receiving a sentence of many years' imprisonment. I consider that possibility gives AB a powerful motive to abscond.

35 The surety proposal does nothing to allay my concerns. In fact, it magnifies them. I found Ms Fanous to be an extremely unimpressive witness. I infer that DB was behind the surety proposal and it adds to my misgivings about AB residing with DB.

36 As for the EMD, even if it functions as it is supposed to, there could be a considerable delay between the electronic alert and police responding. It would take very little time for AB to cut off the device and disappear. He could make his way to regional Victoria or interstate. From there, with false documentation, there is a risk that he could leave the country and make his way to Albania. Both he and his brother came into this country on false passports. AB is an Albanian citizen who has family in Albania and there is no extradition treaty between Australia and that country. This magnifies the risk. In Barbaro v CDPP,[7] where the Supreme Court overturned a magistrate's decision granting bail on condition that the accused wear an EMD, the Court of Appeal said this:

And it is relevant that the risk under consideration is a risk of flight overseas. Objectively, that is a graver risk than in the typical case where the applicant for bail would have no capacity for flight beyond (say) country Victoria. First, the prospects of recapture are greatly reduced in the case of a person who might be anywhere in the world. Secondly, the cost and complexity of a worldwide search is far greater. These matters are properly brought to account in the assessment of (un)acceptable risk.[8]

37 I am satisfied that the risk of AB absconding is unacceptable and consequently refuse bail.

[1] DB would bear the cost of the EMD (approximately $25,000 for 12 months).

[2] Bail Act 1977, ss 4AA, 4A.

[3] Bail Act 1977, s 4D.

[4] A DNA reference sample suitable for court purposes was obtained from DB when he was arrested recently on other matters.

[5] Such as a police duty phone manned 24 hours a day.

[6] Cf Barbaro v CDPP (2009) 20 VR 717; [2009] VSCA 26, where the Court of Appeal considered that a delay of two years between arrest and trial constituted exceptional circumstances.

[7] (2009) 20 VR 717; [2009] VSCA 26.