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Supreme Court 1 May 2020

R v Zhang

[2020] NSWSC 478

Fraud & dishonesty

Citation: R v Zhang [2020] NSWSC 478
Court: Supreme Court of New South Wales
Date: 1 May 2020
Judge(s): N Adams J

Background

The applicant, an Australian citizen and former property developer, was charged with two counts of conspiracy to dishonestly cause a loss to the Australian Taxation Office (ATO) under the Criminal Code Act 1995 (Cth). The charges alleged that he conspired with others to submit false Business Activity Statements and claim inflated GST refunds and input tax credits totalling approximately $19 million across two development projects. The alleged conduct occurred between 2004 and 2008.

Following the execution of search warrants in April 2009, the applicant departed Australia for Hong Kong, ostensibly on a two-week holiday. He did not return voluntarily. He spent approximately ten years moving between Hong Kong, China, and eventually New Zealand before being arrested in New Zealand in April 2019 and extradited to Australia in September 2019, where he has remained in custody on refused bail.

The applicant chose to represent himself, having declined the assistance of both private solicitors and Legal Aid-funded counsel. He applied for release under s 49 of the Bail Act 2013 (NSW), and the Commonwealth Director of Public Prosecutions (CDPP) opposed release on the ground that he posed an unacceptable risk of failing to appear.

  • Whether the applicant posed an unacceptable risk of failing to appear at proceedings if released, within the meaning of ss 17, 18(1), and 19 of the Bail Act 2013 (NSW)
  • Whether the proposed bail conditions, including financial sureties, electronic monitoring, daily reporting, and residence conditions, were sufficient to address that risk
  • Whether the applicant's need to access and review a very large Crown brief (reportedly 220 volumes) while self-represented provided grounds for release

Decision

Adams J assessed the application under the "unacceptable risk" framework in the Bail Act 2013 (NSW). The sole bail concern advanced by the CDPP was the risk of the applicant failing to appear. The court was not required to apply the "show cause" threshold under ss 16A/16B, as the charges did not fall within that category.

The court identified the applicant's conduct over the preceding decade as the most powerful evidence of flight risk. He had left Australia within days of search warrants being executed, remained absent for over ten years, and departed Hong Kong for China on the day after a co-accused was arrested by the AFP in 2014. Australia has no extradition relationship with China, and the court drew an adverse inference from the timing of that departure.

The proposed bail conditions were considered and rejected as insufficient. The financial surety offered by the applicant's sister was undermined by concerns about the source and adequacy of her funds, her documented involvement in the applicant's business affairs at the time of the alleged offending, and her apparent willingness to act at her brother's direction without scrutiny. The court found that her close association with the applicant reduced the weight of her proposed surety. Reporting conditions, including daily reporting, were assessed as inadequate without stronger financial conditions.

The applicant's argument that he needed liberty to review a Crown brief of approximately 220 volumes as a self-represented accused was addressed but did not alter the outcome. The court acknowledged the volume of material and the genuine difficulty this posed, noting that access to a laptop in custody was crucial for the applicant to read the brief. However, the court observed that this need could be addressed through custody arrangements and encouraged any application for laptop access to be dealt with promptly by the relevant authorities.

Orders Made

  • The release application was refused.

Key Takeaways

  • Refusing bail, the Supreme Court found that a pattern of deliberate flight, including departing Australia shortly after search warrants were executed and then departing Hong Kong immediately after a co-accused's arrest, constituted compelling evidence of an unacceptable risk of non-appearance.
  • A proposed surety's close personal association with an accused, and evidence of a history of acting at the accused's direction, can significantly diminish the weight given to that surety in a bail assessment.
  • Under the Bail Act 2013 (NSW), where the "show cause" provisions do not apply, bail refusal turns on whether one or more of the concerns in s 17(2) amounts to an unacceptable risk under s 19, assessed against the mandatory factors in s 18(1).
  • The practical difficulty of a self-represented accused reviewing a very large Crown brief in custody does not, of itself, displace a finding of unacceptable flight risk, though the court noted the importance of facilitating adequate computer access in custody.
  • Reporting conditions, even at a daily frequency, were treated as insufficient on their own to address flight risk where the surety conditions proposed were inadequate.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18(1), 19, 49, 74(3)(a)
- Criminal Code Act 1995 (Cth), Schedule, s 135.4(3)
- Criminal Procedure Act 1986 (NSW), ss 55(a), 55(c), 91

Cases:
No cases were cited in the judgment.