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Supreme Court 26 April 2019

R v Xie

[2019] NSWSC 486

Sexual offencesDrugsPublic order & justice offences
BAIL SHOW CAUSE REQUIREMENTS INDECENT ASSAULT FLIGHT RISK DELAY BEFORE TRIAL

Citation: R v Xie [2019] NSWSC 486
Court: Supreme Court of New South Wales
Date: 26 April 2019
Judge(s): Lonergan J

Background

The applicant, a 41-year-old businessman, faced multiple charges including indecent assault under s 61L of the Crimes Act 1900 (NSW) (since repealed) and two counts of causing a person to take an intoxicating substance with intent to commit an indictable offence under s 38(b) of the same Act. Those offences carry maximum penalties of 5 years and 25 years imprisonment respectively. The charges arose from two separate incidents in 2017 and 2018, both involving allegations that the applicant drugged and sexually assaulted male complainants at his premises in Russell Lea.

The applicant had been granted bail following the 2017 allegations but was taken back into custody after the second set of offences in September 2018, allegedly committed while on conditional bail. He had been in custody since 23 September 2018.

The bail application was heard with the assistance of a Mandarin interpreter. Because the September 2018 offending occurred while the applicant was on conditional bail, the application was subject to the "show cause" requirement under the Bail Act 2013 (NSW), meaning the applicant bore the onus of establishing that his continued detention was not justified.

  • Whether the applicant had shown cause under s 16A of the Bail Act 2013 (NSW) as to why his detention was not justified
  • Whether, in weighing cause, the court should consider a combination of factors including the strength of the bail proposal, delay before trial, business interests, and community ties
  • Whether the applicant posed an unacceptable flight risk, particularly in light of evidence of fraudulent conduct and use of false identities

Decision

Lonergan J applied the two-step framework confirmed in DPP v Tikomaimaleya [2015] NSWCA 83, requiring separate analyses of the show cause requirement and the unacceptable risk question. Her Honour noted that conflating the two is an error, and dealt with the show cause threshold first.

The applicant's senior counsel submitted a combination of factors in support of bail: a substantial surety of $2 million, agreement to electronic monitoring amounting to effective house arrest, the delay before trial, the need to prepare a defence, and business interests. The Crown case, it was argued, was not strong in respect of the 2017 complaint and raised inconsistencies in relation to the 2018 complaint. Her Honour acknowledged that a powerful combination of factors could satisfy the show cause threshold even in serious matters, and that inevitability of a custodial sentence does not automatically defeat the application.

However, Lonergan J found that the applicant had not shown cause. Central to that conclusion was evidence of the applicant's use of fake identities for leasing property, sexual liaisons, and bank accounts, as well as his willingness to pay for fraudulent outcomes, demonstrated by the content of recorded jail calls. Particularly significant was the fact that the applicant, his wife, and his acting business manager had recently been charged with attempting to pervert the course of justice in connection with procuring fraudulent medical records for an earlier bail application.

The court found that the applicant posed a real flight risk given the potential 25-year maximum penalty, his significant financial resources, offshore business interests, and his demonstrated readiness to resort to deceit. Lonergan J was not persuaded that electronic monitoring or any proposed bail conditions would adequately mitigate that risk. The absence of evidence of actual business losses further weakened the case for release. Bail was refused.

Orders Made

  • Bail refused.

Key Takeaways

  • Refusing bail under the Bail Act 2013 (NSW) where the show cause requirement applies, the Supreme Court confirmed that the two-step analysis, separating the show cause threshold from the unacceptable risk assessment, must be conducted distinctly and not conflated.
  • Under the show cause framework confirmed in Moukhallaletti v DPP [2016] NSWCCA 314, a single powerful factor or a powerful combination of factors may satisfy the threshold; no special or exceptional circumstances are required.
  • Evidence of an applicant's pattern of fraudulent conduct, including use of false identities and attempts to obtain false documents for prior bail applications, can weigh heavily against a finding that continued detention is not justified.
  • A high maximum penalty creates a significant motivation to abscond, and where an applicant has demonstrated both financial means and a willingness to deceive, a court may decline to accept that electronic monitoring or financial sureties will adequately address the flight risk.
  • General assertions about business losses without supporting evidence carry little weight in a show cause application; unsupported submissions that a business will suffer in the founder's absence were not accepted as contributing to cause being shown.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 38(b), 61L
- Bail Act 2013 (NSW), ss 16A, 16B(1)(h)(i), 17, 18, 19

Cases
- DPP v Tikomaimaleya [2015] NSWCA 83
- Moukhallaletti v DPP [2016] NSWCCA 314
- R v Kugor [2015] NSWCCA 14
- DPP v Hing [2017] NSWCCA 325