Re application for bail by Tiba [2021] VSC 429 (29 July 2021)

2 The applicant has been remanded in custody since 21 October 2020 and has not previously applied for bail. Tahmid Rahman and Ammair Fahal are both on bail; Rahman having been granted bail by me on 21 May 2021,[1] and Fahal having been granted bail in the Melbourne Magistrates' Court on 22 March 2021. Abdullah Hammoud remains on remand.

3 On 22 March 2021, each of the accused were committed to stand trial in this Court by way of the 'fast-track' procedure adopted in response to the COVID-19 pandemic. The matter is next listed for pre-trial cross-examination of prosecution witnesses, commencing in this Court on 21 September 2021.

4 On 6 July 2021 the matter came before me as an application for bail. I refused the application and indicated that I would publish my written reasons. These are those reasons.

5 The circumstances of the alleged offending were set out in detail in my published reasons Re application for bail by Rahman [2020] VSC 748 and are repeated here.[2]

6 At 11.30pm on 23 June 2020, Lorenzo Tigani and Dimitrios Pramatias attended Lakeside Drive in Roxburgh Park to purchase two pounds of cannabis from the co-accused the applicant and Mr Hammoud. Mr Pramatias requested to see the cannabis and the applicant then produced a .22 sawn-off rifle, which he pointed at Mr Tigani. A scuffle ensued, during the course of which stab wounds were inflicted on both the applicant and Mr Hammoud. Mr Tigani took possession of the rifle.

7 The applicant and Mr Hammoud fled from the scene and presented at the Emergency Department of the Northern Hospital. The applicant was treated for a puncture wound to his back, whilst Mr Hammoud was treated for two puncture wounds to his right calf. Both men refused to cooperate with the police, except to indicate that there had been an incident in Roxburgh Park.

8 Cell tower evidence is relied upon to demonstrate that mobile phones registered to the applicant and Mr Hammoud were in the vicinity of Lakeside Drive in Roxburgh Park between 11.20pm and 11.40pm on 23 June 2020.

9 It is the prosecution case that the aforementioned events resulted in the applicant and Mr Hammoud seeking revenge against Mr Tigani and Mr Pramatias, which lead to the shooting death of Adrian Pacione the following month.

10 At 9.00pm on 18 July 2020, Mr Pacione visited the home of father and son, Mario and Christian Rubini, at Unit 2 of 2 Ella Court in Lalor. They were present at home, together with Mr Tigani.

11 At 10.35pm, a vehicle was heard arriving in the driveway of the residence, followed by a knock on the front door. Mr C Rubini answered the door and observed three males near the entrance, one of whom was wearing a black hooded jumper with black material over his face and conversing in muffled tones with the others. The prosecution asserts that the three males were Mr Rahman, Mr Hammoud and the applicant.

12 It is alleged the first male produced a semi-automatic handgun and advanced towards the front door of the residence. Mr Tigani observed the firearm and heard a 'click noise' which he believed to be the firearm misfiring. The first male attempted to enter the residence but all three occupants rushed towards the door and managed to force it closed.

13 Almost immediately, four shots were discharged into the residence through the window adjacent to the front door. Three of the four shots penetrated a plaster wall separating the dining and lounge areas, before exiting through the lounge room window. The remaining shot hit Mr Pacione in the head as he was seated on a couch in the lounge room. The bullet entered and exited through the top of his head, causing significant brain injuries.

14 Mr Rahman, Mr Hammoud and the applicant immediately departed the residence in an unidentified vehicle. The prosecution has not identified which of the three accused is responsible for discharging the firearm. It is conceded that there is no eyewitness evidence identifying the applicant as being present at the scene.

15 Mr Pacione was subsequently transported to the Royal Melbourne Hospital with life threatening injuries. He was placed in an induced coma before having his life support turned off on 20 July 2020. He died that day from a gunshot wound to the head. He was 20 years old.

16 Mr M Rubini informed police that Mr C Rubini and his friends were selling drugs. He stated further that Mr C Rubini, Mr Tigani and 'Taki' (Mr Pramatias) met with, assaulted and stabbed a drug-dealer in the Roxburgh Park area in or around June 2020. It was Mr M Rubini's belief that the 'drug rip-off and assault' was the reason for the shooting. A search warrant executed at the residence located approximately 12 ounces (340 grams) of cannabis. Police allege that the residence was being used for the preparation and sale of cannabis.

17 Cell tower evidence relating to mobile phones registered to the applicant and Mr Hammoud places those phones in the vicinity of the shooting at the relevant time.

18 Sometime during the course of the investigation, Mr Rahman was identified as a person of interest. He had earlier come to the attention of the Australia Security Intelligence Organisation ('ASIO') as it was thought that he may hold similar beliefs to his brother who had died fighting for the Islamic State in Iraq and the Levant ('ISIL') some years earlier. As a result, ASIO had access to telephone intercept material that could be shared with investigators in the present matter.

19 After reviewing the material, investigators identified the following information as relevant to the investigation into Mr Pacione's death:

• At 12.59pm on 18 July 2020, Mr Rahman called an associate by the name of Mohamed Hamdan and arranged a meeting.
• At 7.05pm, Mr Rahman called an associate by the name of Amair Fahal, told him that they were, 'going to do that thing... about those cunts who got Adam' and arranged to meet. This exchange is relied upon as evidence of Mr Rahman being involved in a plan to retaliate against persons involved in the applicant's stabbing.
• At 7.12pm, Mr Rahman called Mr Fahal and told him to come as quickly as possible because 'Adam' wants to meet at 7.30pm. When asked who else was coming, the applicant responded 'Adam' and that he '[couldn't] be fucked saying the other names.'
• At 7.25pm, Mr Rahman called an associate by the name of Abdirahman Mohamed and told him that they were, 'going to get those cunts... Adam's, remember those dogs?'. Mr Mohamed said that he was on his way from Geelong but was advised by the applicant that he probably would make it in time.
• At 7.37pm, Mr Rahman called the applicant and asked if he was going to 'Abz' Hammoud's house, referring to Mr Hammoud. The applicant told Mr Rahman not to 'fucking talk over the phone'. This exchange is again relied upon as evidence of the applicant being involved in a plan to retaliate against persons involved in the applicant's and Mr Hammoud's stabbing.
• At 7.40pm, Mr Rahman received a phone call from an unknown male asking what was happening with Adam and where they were meeting. Mr Rahman said that he would send through the address and stated further that they were going to 'wreck those cunts who hit him'. This exchange is relied upon as evidence of an intention to commit a violent act against those involved in the applicant's stabbing.
• At 7.45pm, Mr Rahman called Mr Fahal and told him that he was at the end of the street and advised him to take a U-turn. It is alleged that this call suggests that Mr Rahman and Mr Fahal were meeting one another.
• At 7.48pm, the applicant called Mr Rahman and advised that he was five minutes away.
• At 8.47pm, Mr Hamdan called the applicant and asked where he was and who he was with, to which Mr Rahman responded that he was in Mickleham with 'Abz and Adam.' This exchange is relied upon to demonstrate that Mr Rahman was in company with both of the co-accused in the lead up to Mr Pacione's murder.
• At 9.09pm, Mr Rahman called Mr Fahal. During the course of the conversation, Mr Fahal said that he was parked in a side street in Thomastown with Mr Hamdan. This exchange is relied upon as evidence that Mr Fahal and Mr Hamdan were in company with one another.
• At 9.15pm, Mr Rahman called Mr Fahal and said that he would be sending the address of 'those cunts' so that Mr Fahal could 'sus out if they are home.' This exchange is relied upon to show that Mr Rahman provided Mr Fahal with the address of the Ella Court residence so that Mr Fahal could conduct reconnaissance and establish whether anyone was home.
• At 9.23pm, Mr Fahal called Mr Rahman and said that there was only one house which looked like it had people present inside. The applicant said to Mr Fahal, '...it's not the front house... you turn into Ella Court, there's like four or five houses down... there's a unit... it's orange bricks.' Mr Fahal said that he had left the street but asked the applicant if he should return, to which Mr Rahman responded that there was a big driveway and he should look out for the house at the end of the driveway. Mr Fahal responded, 'We will go and sus it out.' This exchange is relied upon to show that the applicant was directing Mr Fahal to the Ella Court residence to ascertain whether the occupants were present, and further to establish that Mr Fahal was in company and referring to Mr Hamdan when he said 'we will go and sus it out'.
• At 9.26pm, Mr Fahal called Mr Rahman and said that the only house with the lights on was the house at the back. The applicant responded, 'That's the one.' This exchange is relied upon to show that the applicant, the applicant and Mr Fahal were liaising about the location and activities of the Ella Court residence.
• At 9.35pm, Mr Rahman's mobile phone was pinging off the Lalor West telecommunications tower, which is in the immediate vicinity of the Ella Court residence. It is believed that, in the lead up to the alleged offending, there was a tacit understanding between the applicant and the co-accused that they would commit an aggravated burglary at the Ella Court residence and assault the occupants.
• Between 10.30pm and 10.40pm, it is alleged that the applicant, the applicant and Mr Hammoud attended the Ella Court residence and murdered Mr Pacione.
• At 11.03pm, Mr Rahman called Mr Fahal and advised him that he was with 'Adam and Abz'. This exchange is relied upon to demonstrate that the applicant was in company with the co-accused shortly after Mr Pacione was killed.
• At 11.15pm, the applicant called Mr Rahman and they arranged to meet.
• At 2.16pm on 19 July 2020, an unknown male called Mr Rahman and told him that he was coming to pick him up. Mr Rahman said that they would, 'go and see Adam'. When asked whether Adam was coming, Mr Rahman said, 'Apparently this cunts [sic] bailing, I don't want to call him again'. The unknown male responded, 'Fuck'. This exchange is relied upon to show that Mr Rahman and the unknown male intended to visit the applicant, and, further, that the applicant had knowledge that Mr Pacione was, at that time, in a critical condition.

20 On 21 October 2020, Mr Rahman, Mr Hammoud and the applicant were arrested and charged with Mr Pacione's murder. They each provided a 'no comment' record of interview. It is not clear whether any charges have or are intended to be laid against Mr Fahal, Mr Hamdan or Mr Abdirahman based on their respective roles in the alleged offending.

21 The applicant is 22 years old. Prior to his remand, he resided with his family in Greenvale and was undertaking a Bachelor of Business at La Trobe University. He was also enrolled in a Certificate IV in Building and Construction through the International College of Victoria at that time and was an active member of his local soccer club, Hume City, playing regular matches and coaching younger teams. While on remand, he has completed several short courses through the Box Hill Institute and has engaged in employment undertaking billet duties.

22 The applicant has a history of substance use. During his period of remand, he has engaged in individual drug and alcohol counselling with a Caraniche clinician, and has submitted four urine drug screens, each returning negative results for illicit substances.

23 The applicant has a criminal history comprising a single finding of guilt without conviction recorded for driving whilst his licence was suspended in 2020.

24 Murder is a Schedule 1 offence within the meaning of the Bail Act 1977 ('the Act').[3] It follows that bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[4] In determining whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those prescribed in s 3AAA(1) of the Act.[5]

25 The phrase 'exceptional circumstances' is not defined in the Act, although has been the subject of much judicial commentary over the years. In short, the totality of the circumstances relied upon by the applicant must take the case out of the ordinary such that bail is justified.[6]

26 In referencing a number of common factors relied upon to reach this threshold, the Court of Appeal in Roberts v The Queen[7] observed:

What appears to underpin the judicial recognition of these different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending ...

It is the perceived need to avert or mitigate such injustice which justifies the grant of bail - provided always that the circumstances can properly be characterised as exceptional.[8]

27 If satisfied that exceptional circumstances exist, the Court must apply the 'unacceptable risk test'.[9] That is, bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk. In considering whether any relevant risk is unacceptable, the Court must again have regard to the 'surrounding circumstances' contained in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[10]

28 Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[11]

29 It was submitted by Mr Philip Dunn QC, who with Ms Julia Kretzenbacher appeared for the applicant, that exceptional circumstances could be shown by demonstrating that the Crown case against the applicant was relatively weak. It was also put that the applicant was entitled to rely upon the principles of parity in relation to his co-accused Rahman, that he had a relatively stable and supportive home background, that a significant surety was available, that he could return to his studies and that he had employment available to him.

30 The respondent submitted that even having regard to those matters, exceptional circumstances could not be made out. It was further submitted that in any event, the applicant was an unacceptable risk of committing offences whilst on bail and/or interfering with witnesses.

31 As the case stands against the applicant, the alleged victim ('the witness') purports to identify the applicant as having been involved in the incident where the applicant was attempting to rob the witness of money in a transaction in which the witness had agreed to purchase drugs from the applicant. The witness says that he stabbed and wounded the applicant when defending himself from that attempted robbery in which he says the applicant was armed with a firearm. In relation to the present matter, the witness says that he saw the applicant holding a weapon outside the relevant premises immediately before the front door was closed and the shots fired which lead to the death of Adrian Pacione.

32 Mr Dunn QC submitted that this evidence is open to criticism because the witness did not include any purported identification in his first statement and that the witness says he established the 'name' of the applicant by reference to social media. They are matters which may be put to him when he gives evidence at the 198B Hearing which is listed in this Court on 21 September 2021. The evidence which shows that the applicant was injured in an attack at the time suggested by the witness. In relation to that attack, the applicant has declined to cooperate with the police. There is evidence from which the inference could be made that the present offence was committed in retaliation for that earlier incident. Although it did result in death, it was not the death of the intended victim. The witness is now the most significant witness against the applicant in relation to both incidents.

33 Although I accept that there are matters the applicant will put in his defence, I do not accept that the case can be characterised as weak.

34 I made it clear that when I released co-accused Rahman on bail that that decision should not be regarded as a basis for bail for any of the other accused on the basis of parity.[12] I regarded the matters important to the grant of bail for Rahman as being largely personal to him. As I said in argument, I regard the principles of parity as being relevant to bail in only very limited circumstances. The alleged role and motivation of the applicant is central to the prosecution case and that allegation has some objective support. The role of Rahman, although an active one, is necessarily subservient to that of the applicant. Although there are similarities between a number of the matters the applicant and Rahman put in support of exceptional circumstances, I regard this difference in circumstance as being sufficient to mean that parity reasoning cannot be used in support of the applicant.

35 The matters involving age, criminal history, family support, availability of further education and CISP support are relatively similar to those of Rahman. It should be noted that I was particularly impressed with the evidence of Rahman's mother and with the amount and nature of the surety offered.

36 Questions of delay and difficulties in custody arising from the COVID-19 pandemic are apparent although, since the case has been fast-tracked to this Court, the delay in this case may well prove to be not much out of the ordinary for a murder case.

37 The argument in favour of exceptional circumstances is put on the basis of the combination of the matters set out. It has long been accepted in this Court that exceptional circumstances can be made out in that way.

38 I am obliged in any event to have regard to the surrounding circumstances as set out in the Act and I have done in considering both exceptional circumstances and unacceptable risk.

39 I regard this as a serious example of the crime of murder carried out for revenge, although the 'wrong' victim was killed. I regard the applicant as being at the heart of the offending. The alleged grievance against the intended victim was that of the applicant.

40 I am not satisfied than any of the matters put individually or in combination amount to exceptional circumstances.

41 Although I did not need to consider the question of unacceptable risk, in case it might be thought that I am wrong in my analysis of exceptional circumstances I add these remarks.

42 The prosecution case is that the applicant sought out the witness to seek revenge. That plot failed. The witness is now the principal witness for the murder. The risk to him, if the applicant is at large, is both patent and unacceptable. I am not satisfied that I could impose conditions which would make the risk not unacceptable.

43 The risk is that of committing a further offence whilst on bail and interfering with witnesses.

44 I did observe and repeat that it may be that the applicant's position will be different after evidence has been tested at the 198B Hearing.

[1] Re application for bail by Rahman [2021] VSC 402.

[2] Re application for bail by Rahman [2020] VSC 748, [6]-[20].

[6] See, for example, Re KE [2021] VSC 175 [50] (Kaye JA); Re Brown [2019] VSC 751 [65]-[66] (Lasry J); Re Sam [2017] VSC 91 [22] (Beach JA).

[7] [2021] VSCA 28 (Maxwell P, Niall and Emerton JJA).

[8] [2021] VSCA 28 (Maxwell P, Niall and Emerton JJA), [47]-[48].

[12] Re Rahman [2021] VSC 402, [3].