R v Xie [2012] NSWSC 330

Supreme Court New South Wales

Medium Neutral Citation: R v Xie [2012] NSWSC 330 Hearing dates: 29 March 2012 Decision date: 05 April 2012 Jurisdiction: Common Law Before: Price J Decision: Bail refused Catchwords: CRIMINAL LAW Bail - murder-whether exceptional circumstances exist Legislation Cited: Bail Act 1978 s 9C, s 32, s 32(1)(a) s 32(1)(b), s 32(7) Cases Cited: Memery v R [2000] VSC 945 R v Connelly (Supreme Court of New South Wales, Hoeben J, 16 February 2006, unreported) R v Jacobs [2008] NSWSC 417 R v Pirini (Supreme Court of New South Wales, James J, 20 April 2010, unreported) R v Young [2006] NSWSC 1499 Category: Procedural rulings Parties: Lian Bin XIE Crown Representation: Mr G Turnbull SC (Applicant) Ms K Shead (Crown) File Number(s): 2011/147183

JUDGMENT - Application for bail 1. 1HIS HONOUR: Lian Bin Xie ("the applicant") applies for bail. The Crown opposes the application. He is charged with five counts of murder. Apart from the provisions of s 32 Bail Act 1978 which apply to all bail applications, the Bail Act makes special provision for murder. Section 9C Bail Act provides: "An authorised officer or court is not to grant bail to a person in respect of an offence of murder unless the authorised officer or court is satisfied that exceptional circumstances justify the grant of bail." 1. Section 32(7) Bail Act provides that matters beyond those identified in s 32 which the court accepts as relevant may be considered when determining an application for bail to which s 9C applies. 2. The applicant submits that the court would find that there are exceptional circumstances and would grant him conditional bail on the terms that are as follows: 1. He is to reside at xx Beck Street, North Epping. 2. He is not to be absent from xx Beck Street, North Epping between the hours of 9 pm. and 6 am. and is to present himself at the front door of the premises in the event of a police curfew check. 3. He is to report to the officer-in-charge of the Eastwood Police Station each day between the hours of 8 am and 8pm. 4. He is to enter into an agreement, and deposit acceptable security, to forfeit three hundred thousand dollars ($300,000.00) if he fails to comply with his bail undertaking. It shall be acceptable security if the applicant executes a Memorandum of Agreement to enter into a mortgage over the land described in the Certificate of Title Lot 2 in Deposited Plan xxxxxx Section 5 deposited with the clerk of the court, in favour of the Crown to secure any debt due by reason of this bail agreement. 5. One acceptable person, for which purposes Chuying Xie is an acceptable person, is to deposit the sum of one hundred thousand dollars ($100,000.00) and is to enter into an agreement to forfeit the amount deposited if the applicant fails to comply with his bail undertaking. 6. He is not to use any mobile telephone number, other than the mobile number xxx xxx xxx. 7. He is not to use any landline telephone number, other than the telephone number xxx xxx xxx. 8.He is not to use any internet connection other than the internet connection connected at the address at xx Beck Street, North Epping. 9. He is not to communicate, directly or indirectly (except through his legal representatives), with any person whom he has received notice is to be called, or is likely to be called, by the Crown at his committal hearing or at his trial. The exceptions to this condition are his wife, Kathy Lin, and his niece, Brenda Lin. 10. He is not to approach within 1 kilometre of any international point of departure from Australia. 11. His passport is to be surrendered to Detective Sergeant Joseph Maree and he is not to apply for any passport or international travel documents whilst at liberty on bail. 12. He is to submit to electronic monitoring by Abakus ElmoTech, with the monitoring device to be fitted by the authorised representative of Abakus ElmoTech before being released from custody. The applicant is to pay the costs of electronic monitoring provided by Abakus ElmoTech. 13. Abakus ElmoTech is to notify any mobile number or electronic email address nominated by the Office of the DPP of any breaches of bail conditions (1), (2) and (10). 14. He is to be of good behaviour throughout the period of his liberty on bail. 15. He is to next appear in the Local Court on the date set by the Court. 16. Bail is to be automatically revoked in the event of breach of any of these conditions and he may thereupon be arrested by any police officer.