Re Tiburcy [2024] VSC 163 | Case summary

Supreme Court of Victoria|2024-04-05|Before: Fox J

The applicant is to attend the Melbourne Magistrates' Court on 20 May 2024 at 9:30am and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
The applicant is to reside at [redacted], Gisborne in the State of Victoria ('place of residence').
The applicant must report to the Officer in Charge, or their nominee, at the Sunbury Police Station daily between 8:00am and 8:00pm commencing 6 April 2024.
The applicant must not leave the place of residence unless in the company of Tanja Tiburcy and/or Christopher Grech.
The applicant is to present himself at the front door of the place of residence upon the reasonable request of a member of Victoria Police.
The applicant is to remain and be present at the place of residence between the hours of 10:00pm and 6:00am, each day for the duration of the bail.
The applicant is to surrender any passports or other travel documents to the informant within 24 hours of release and must not apply for any other travel documents for the duration of the bail.
The applicant must not leave the state of Victoria.
The applicant must not attend any points of international departure.
The applicant is not to possess or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under the Act.
The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution other than the informant.
The applicant is not to contact or associate with, either directly or indirectly, any other person charged with an offence in relation to Operation Ironside including Adam Currie, Steven Lench, Ross Finnigan, Ryan Crawford, Graeme Lench, Xavier Gavin and Mark Joannou.

[6] Contrary to the Firearms Act 1996 (Vic) s 124.

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

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

[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).

[11] The applicant and his wife are separated, but prior to his arrest were living under the one roof, and will continue to do so if he is granted bail. For convenience, I will continue to refer to her as his wife.

[12] On 14 October 2021, the applicant was refused bail in the Melbourne Magistrates' Court on the basis that he was an unacceptable risk of committing an offence whilst on bail and failing to surrender into custody in accordance with conditions of bail.

[13] On 23 December 2021, the applicant was refused bail in the Melbourne Magistrates' Court on the basis that new facts and circumstances did not exist, and that there was an unacceptable risk of flight and offending whilst on bail.

[19] Pursuant to s 34(22) of the Act, the amendments apply to 'an application made, or an appeal commenced, under this Act on or after [25 March 2024], regardless of when the offence is alleged to have been committed.' The applicant filed a 'Notice of Intention to Make an Application for Bail' ('Notice') on 13 March 2024. The Notice is addressed to the Prothonotary, the respondent ('informant'), and the Director of Public Prosecutions ('Director'). In my view, the Notice serves a number of pragmatic purposes - it alerts the Court that an application will be made; it alerts any other affected person (here, the Director and the informant) of what is to occur; it enables the Court to fix a timetable for filing of affidavits and other material; and it allows the Court to fix a date for the hearing of the application at a time suitable to the parties and the Court. However, the bail application itself is made on the day of the hearing, and not earlier.

[22] It is somewhat unclear whether a smartphone is provided by BailSafe, or the client is expected to have smartphone and download the necessary application.

[23] The applicant referred in particular to Re Kamvissis [2021] VSC 620 (Beale J), Re Zayneh [2023] VSC 470 (Beach J) and Re Jiang [2021] VSC 148 (Lasry J).

[24] Counsel referred to the Explanatory Memorandum of the Bail Amendment Bill 2023 (Vic), p 6-7.

[25] Mr Oppy gave evidence that the cost is $595.00 for the device and then $280.00 per week, and they require payment in advance for a minimum of six months.

[26] Counsel referred in particular to Re Kamvissis [2021] VSC 620 (Beale J) and Re Zayneh [2023] VSC 470 (Beach J).

[27] See Re CT [2018] VSC 559 at [64]-[66] and the cases referred to therein.

[28] Director of Public Prosecutions (Cth) v Abbott (1997) A Crim R 19, 29 (Gillard J). See also, Gray v DPP [2008] VSC 4 (Bongiorno J).

[35] Barbaro v DPP (Cth) & Anor [2009] VSCA 26; (2009) 20 VR 717, 728 [41] (Maxwell P, Vincent and Kellam JJA). See also Zayneh v The King [2023] VSCA 311 [6]-[7] (Walker, Taylor and Boyce JJA).

[36] R v Tiburcy [2006] VSCA 244, [31].

[39] In considering Mr Oppy's evidence, I have had regard to s 30A of the Bail Regulation 2021 (NSW), which sets out the minimum standards required in that state for electronic monitoring.

[40] Dale v DPP [2009] VSCA 212, [58].

[41] Ali El Nasher v DPP [2020] VSCA 144, [51] (Priest, T Forrest and Weinberg JJA).

Poisons and Controlled Substances Act 1981

Re Tiburcy [2024] VSC 163 (5 April 2024)

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