Citation: R v Gao [2018] NSWSC 1011
Court: Supreme Court of New South Wales
Date: 29 June 2018
Judge(s): McCallum J
Background
A professional film actor ordinarily resident in China was charged with two aggravated sexual assault offences under the Crimes Act 1900 (NSW) following events at a Sydney hotel "wrap party" in late March 2018. The Crown alleged that the applicant and a co-accused, the Chinese producer of the television series being filmed, had sexual intercourse with a member of the Australian production team without her consent and in each other's presence. The applicant sought bail in the Supreme Court.
One of the charges carried a maximum penalty of life imprisonment, making it a "show cause" offence under the Bail Act 2013 (NSW). The applicant was required to first show cause why his detention was not justified before the court could proceed to assess bail concerns in the ordinary way.
Legal Issues
- Whether the applicant had shown cause why his detention was not justified, given the nature of the charges as "show cause" offences under s 16B of the Bail Act 2013 (NSW)
- Whether there were unacceptable bail concerns, particularly a risk of flight, given the applicant's residence in China, the seriousness of the charges, and the absence of an extradition treaty between Australia and China
- Whether proposed bail conditions, including electronic monitoring, substantial sureties, passport surrender, curfew, and reporting obligations, could adequately mitigate any identified risk
Decision
Issue 1: Show Cause
The court found that the show cause requirement was satisfied primarily because the Crown case on the show cause offence (aggravated sexual assault occasioning actual bodily harm under s 61JA) appeared weak as against this applicant. CCTV footage established that the applicant was in the hotel room for only 35 minutes, while the complainant and co-accused Wang were together for approximately one hour and 40 minutes (at [15]). The allegations of actual bodily harm related to conduct attributed to Wang, and whether the applicant was even present during that conduct was unclear (at [13]-[16]). Additionally, the applicant's conditions of custody on protection, the significant family relocation steps taken by his wife, and his preparedness to accept electronic monitoring collectively supported the conclusion that his detention was not justified (at [10]-[12], [16]).
Issue 2: Strength of the Crown Case and Bail Concerns
The court acknowledged that the evidence of the applicant's physical presence in the room and his engagement in sexual intercourse was overwhelming, with DNA evidence and CCTV footage placing him there (at [17]). The central trial issue would be consent and the applicant's knowledge of any lack of consent (at [18]). The court identified inconsistencies in the complainant's statements regarding whether she knew the applicant would join them (at [22]), and CCTV footage showed the complainant at times appearing comfortable with the co-accused and not unequivocally communicating reluctance (at [23]-[24]). The court was careful to note that this assessment did not cast doubt on the complainant's truthfulness (at [19]). The court was not satisfied that there was a bail concern about interference with the complainant as a witness, finding no basis to connect the applicant to approaches made to the complainant on his behalf (at [31]-[32]).
Issue 3: Risk of Flight and Adequacy of Conditions
The court found a clear risk of flight. The applicant faced serious charges likely to attract lengthy imprisonment if he were convicted, had no prior ties to Australia, was ordinarily resident in China where he had a significant acting career, and Australia has no extradition treaty with China (at [33]). However, the court concluded this risk was not unacceptable when assessed against the proposed conditions. Electronic monitoring, in combination with a strict curfew and the requirement to reside with his wife, would go a considerable way to mitigating the risk (at [39]). The sureties totalling over $3 million, offered genuinely by friends of the applicant and his wife, demonstrated that the applicant had meaningful community connections in Australia (at [40]). The applicant's wife, mother, and young child had all relocated to Australia, providing further anchoring (at [39]-[40]). The court rejected the Crown's submission that the ignominy of absconding would outweigh the risk of conviction, but found the overall package of conditions adequate to reduce the flight risk to an acceptable level (at [42]).
Orders Made
- Conditional bail granted
- Conditions include: residence at specified premises; curfew between 9pm and 5am; twice-daily reporting to police; sureties totalling $3,000,000 with acceptable security; surrender of passport and prohibition on obtaining new travel documents; surrender of passports of wife, daughter, and mother; restriction to one mobile telephone service with number provided to investigating officer; prohibition on approaching within 1,000 metres of Sydney International Airport or any other international departure point; no contact with prosecution witnesses except through legal representatives; electronic monitoring (including for curfew and airport exclusion compliance), with monitoring equipment to be fitted and operational before release
Key Takeaways
- Under the Bail Act 2013 (NSW), the show cause requirement and the assessment of bail concerns are distinct stages that must not be conflated, although many relevant matters overlap between them (at [7]).
- Where the Crown case on the specific charge triggering the show cause requirement appears weak as against the particular applicant (here, because the actual bodily harm allegations related to another accused's conduct during a period when the applicant's presence was unestablished), that weakness can itself satisfy the show cause threshold (at [13]-[16]).
- A substantial, clearly established risk of flight does not automatically result in bail refusal; the critical inquiry is whether proposed conditions can reduce that risk to an acceptable level (at [34], [42]).
- Electronic monitoring, assessed on the evidence before the court, can be a meaningful component of a conditions package mitigating flight risk, particularly when combined with curfew, residence, and family presence requirements (at [39]).
- Genuine sureties offered by independent third parties who cannot be reimbursed by the applicant, and evidence of significant family relocation to Australia, can demonstrate a sufficient community anchor even where the applicant is ordinarily resident overseas (at [40]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 29
- Crimes Act 1900 (NSW), ss 61J(1), 61JA(1), 578A
Cases
- Not stated