Citation: Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312
Court: Supreme Court of New South Wales
Date: 31 March 2017
Judge(s): Beech-Jones J
Background
The applicant, a Chinese citizen and Australian permanent resident, was arrested in January 2016 after allegedly taking possession of two bar stools concealing methyl amphetamine, part of a larger importation of approximately 56 kilograms hidden within 70 stools. He was initially granted bail and complied fully with its conditions for five months. In June 2016, he was re-arrested and charged with offences relating to the full 70 stools, and bail was refused.
The charges were reformulated on two further occasions. By the time of this application, the applicant faced two remaining charges before the Supreme Court: one for attempting to possess the methyl amphetamine in the two stools collected on 21 January 2016, and one for conspiring with others to possess the methyl amphetamine across all 70 stools. Both carry a maximum penalty of life imprisonment.
The Commonwealth Director of Public Prosecutions (CDPP) opposed bail on the grounds that the applicant posed an unacceptable risk of failing to appear and of committing a further serious offence. The applicant proposed a comprehensive bail package, including substantial sureties totalling over one million dollars and privately funded electronic monitoring through 3M Australia.
Legal Issues
- Whether the applicant had shown cause, under s 16A of the Bail Act 2013, why his continued detention was not justified (the "show cause" test applicable to his charges as federal offences)
- Whether, if cause were shown, any bail concerns remained and could be reduced to an acceptable level by conditions
- Whether electronic monitoring by a private provider could properly be considered as part of a bail proposal under the Bail Act 2013
- Whether the AFP's asserted resource limitations in monitoring electronic compliance data provided a basis for refusing or discounting electronic monitoring as a condition for federal offences
Decision
Issue 1: Show cause
The court found the CDPP's case to be reasonably strong, noting that recorded conversations appeared to implicate the applicant in knowingly taking possession of stools containing methyl amphetamine and intending to arrange collection of the remainder (at [13]). These factors, combined with the serious charges and the prospect of a very long custodial sentence upon conviction, gave the applicant a strong incentive to abscond (at [55]). The court concluded that the likely period of pre-trial custody of just over 12 months, standing alone, was not sufficient to establish cause given the seriousness of the charges (at [60]).
However, the court accepted that the applicant's compelling family circumstances, particularly the needs of his severely disabled stepdaughter and the burden on his wife, could demonstrate cause when assessed alongside other factors (at [59]). Taken together with the strength of the proposed bail conditions and the applicant's demonstrated compliance with bail during January to June 2016 (a period when he was on notice of likely upgraded charges), the court was satisfied that cause had been shown (at [62]).
Issue 2: Bail concerns and unacceptable risk
The court found that concerns about failure to appear and commission of a further serious offence remained, but concluded that the proposed conditions were sufficient to reduce those risks below an unacceptable level (at [63]). The applicant's previous compliance with less stringent conditions, during a period when he had every reason to abscond, appreciably reduced the assessed risk (at [56]).
Issue 3: Electronic monitoring by a private provider
Following his earlier reasoning in R v Ebrahimi [2015] NSWSC 335, the judge reaffirmed that nothing in the Bail Act 2013 prevents a court from finding that a private electronic monitoring company is both honest and capable of providing meaningful oversight of an applicant's compliance with bail conditions (at [34]). The court accepted 3M's evidence as to its capabilities while acknowledging the system was not foolproof, noting that a determined person with means could potentially leave the jurisdiction before police could respond to a violation alert (at [36]).
Issue 4: AFP resource limitations
The court firmly rejected the AFP's submission that it lacked the resources to receive monitoring data from a private company. Under s 68(1) of the Judiciary Act 1903 (Cth), the NSW bail regime applies equally to federal offences, and the CDPP and AFP stand in no different position to their state counterparts (at [40]). Accepting the AFP's contention would create an unacceptable disparity, allowing persons charged with equivalent state offences to be released on electronic monitoring while those charged with federal offences could not be, despite facing the same legislative framework (at [40]). The court also noted that the AFP and CDPP had been on notice since at least 2010 that electronic monitoring could be imposed as a bail condition (at [42]).
Orders Made
- Bail granted on the charges laid on 12 December 2016
- Conditions included daily reporting to Campsie Police Station, residence at a specified address, evening curfew (8pm to 7am) with an exemption for family medical appointments, travel restricted to within 25km of the applicant's home, prohibition on approaching within 1km of any international point of departure, possession limited to one mobile phone and one SIM card, and electronic monitoring by 3M at the applicant's own expense configured to monitor compliance with the travel and departure conditions
- Six sureties accepted totalling $1,050,000 in property security
Key Takeaways
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Under the Bail Act 2013, the show cause and unacceptable risk tests are distinct steps that must not be conflated, though factors relevant to one will often be relevant to the other (at [3]); compelling family circumstances combined with a strong bail proposal and demonstrated compliance history can together satisfy the show cause requirement even where the period of pre-trial custody alone would not (at [62]).
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Rejecting the AFP's resource objection, the Supreme Court confirmed that persons charged with federal offences in New South Wales are entitled to equal treatment under the NSW bail regime, and the AFP's resource constraints do not justify a more restrictive approach to bail conditions than would apply to equivalent state prosecutions (at [40]).
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A prior period of full compliance with bail conditions, maintained while an applicant was on notice of likely upgraded charges, carries significant weight in reducing the assessed risk of absconding when a court evaluates a subsequent bail application (at [56], [61]).
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Private electronic monitoring companies can be considered as part of a bail proposal under the Bail Act 2013; courts may find such providers willing and capable of supplying meaningful oversight without any legislative mechanism needing to impose obligations on them directly, though no electronic monitoring system is treated as foolproof (at [34]-[36]).
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First-instance bail decisions, and the discretionary outcomes of bail decisions by the Court of Criminal Appeal, carry no binding precedent value; only findings on points of law from those decisions attract the operation of the doctrine of precedent (at [35]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013, s 16A, s 16B, s 17, s 18, s 19, s 66, s 74
- Crimes Act 1914, s 15AA
- Criminal Code 1995 (Cth), s 11, s 307
- Criminal Procedure Act 1986, s 91
- Judiciary Act 1903 (Cth), s 68
Cases
- DPP v Mawad [2015] NSWCCA 227
- DPP v Tikomaimaleya [2015] NSWCA 83
- DPP v Zaiter [2016] NSWCCA 247
- R v Ebrahimi [2015] NSWSC 335
- R v Xi [2015] NSWSC 1575