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Supreme Court 8 December 2015

R v Xie

[2015] NSWSC 1833

Homicide
CRIMINAL LAW BAIL APPLICATION

Citation: R v Xie [2015] NSWSC 1833
Court: Supreme Court of NSW
Date: 8 December 2015
Judge(s): Fullerton J

Background

The accused faced five counts of murder. By the time of this bail application, he had been through three trials: two before Johnson J in 2014 (both aborted without verdict for reasons unrelated to either party), and a third before Fullerton J that ran for more than 177 hearing days before a jury was discharged on 1 December 2015, having been unable to reach unanimous or majority verdicts.

Following the discharge of the jury, the Director of Public Prosecutions announced the accused would face a fourth trial at the earliest opportunity in 2016. The Crown sought the accused's remand in custody. Senior counsel for the accused applied for bail on conditions similar to those proposed in three previous unsuccessful applications, all refused under either the Bail Act 1978 (now repealed) or the Bail Act 2013.

The accused had been in custody since his arrest in May 2011, meaning that by the time any retrial could be convened, he would have spent approximately five years on remand.

  • Whether the changed circumstances since the last bail refusal (in October 2014) were sufficient to justify entertaining a further application under the Bail Act 2013
  • Whether the accused, charged with "show cause" offences (murder), could demonstrate cause why his continued detention was not justified under the Act
  • Whether identified risks, particularly flight from the jurisdiction and interference with Crown witnesses, could be satisfactorily mitigated by conditions of bail

Decision

Fullerton J accepted that the discharge of the jury after 177 hearing days, without any verdict, constituted a sufficient change in circumstances to warrant a fresh bail application. The Crown did not contest this threshold question.

On the "show cause" requirement, the court found that the extended and continuing period of pre-trial custody weighed significantly in the accused's favour. Fullerton J invoked fundamental common law principles, endorsed in detail by Garling J in JM v R, that pre-trial custody must not become so prolonged that a refusal of bail amounts to punishment in itself. Detention approaching five years before a retrial was, in the court's view, impossible to reconcile with a fair and just criminal process. The accused's compromised psychological and cognitive functioning in custody, and its predicted impact on his capacity to participate in the forthcoming trial, further supported a finding that cause had been shown.

On the risk of flight, the court accepted that the risk was neither fanciful nor remote, given the accused's financial links to China and prior conduct. However, the court was satisfied the risk could be adequately mitigated by conditions amounting to effective house arrest. On the risk of witness interference, noting the accused's proven disposition toward interfering with the course of justice in dealings with one witness, the court nonetheless found that this risk could also be addressed through strict conditions, combined with the likelihood that any breach would quickly come to police attention.

The court also addressed concerns raised by the Crown about the safety of a key witness, Brenda Lin, and her grandparents, treating those concerns as relevant to the risk assessment under Division 2 of the Bail Act 2013. Ultimately, the court was satisfied those risks could be managed through the proposed conditions.

Orders Made

• Conditional bail be granted

The judgment concludes that conditional bail was to be granted, with conditions described as amounting to effective house arrest, though the specific conditions are not reproduced in the available text.

Key Takeaways

  • Pre-trial custody approaching five years, arising from multiple trials none of which resulted in a verdict through fault of either party, constituted a powerful factor in favour of bail, consistent with the principle that prolonged remand must not become punishment in disguise.
  • Under the Bail Act 2013, a material change in circumstances since a previous refusal, such as the discharge of a jury after a lengthy trial, is sufficient to warrant entertaining a fresh bail application.
  • Risks of flight and witness interference, even where not fanciful, can satisfy the threshold for conditional bail where sufficiently stringent conditions can mitigate those risks to an acceptable level.
  • Fullerton J expressly endorsed Garling J's analysis in JM v R of the fundamental common law principles underpinning the Bail Act 2013, including the presumption of innocence and the general right to liberty pending trial.
  • Evidence of a witness's safety concerns, and those of her family, is capable of satisfying s 18(1)(o) of the Bail Act 2013 and is a relevant consideration in the statutory risk assessment, as confirmed by the Court of Criminal Appeal in DPP v Mawad.

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW) (repealed)
- Bail Act 2013 (NSW), ss 18(1)(o), 74; Div 2
- Evidence Act 1995 (NSW)
- Jury Act 1977 (NSW), ss 19(2), 56

Cases
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
- JM v R [2015] NSWSC 978