R v Jiao (No 3) [2014] NSWDC 354

District Court New South Wales

Medium Neutral Citation: R v Jiao (No 3) [2014] NSWDC 354 Decision date: 22 December 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Bail refused. Catchwords: CRIMINAL LAW – procedure – bail application – after conviction and sentence – appeal pending – relevant considerations – whether special or exceptional circumstances to justify grant of bail – limited assessment of grounds of appeal – grounds of appeal as expressed not most likely to succeed – possible length of time in custody before appeal is heard – principles of administration of justice Legislation Cited: Bail Act 1978 (NSW), s 30AA Bail Act 2013 (NSW), s 22 Criminal Code 1995 (Cth), s 400.9 Cases Cited: Commonwealth Director of Public Prosecutions v Cassaniti [2006] NSWSC 1103 United Mexican States v Cabal (2002) 209 CLR 165 R v John Kay Jin Khoo [2013] NSWSC 1518 Category: Procedural and other rulings Parties: Regina (Crown) Yi Hua Jiao (Offender) Representation: Counsel: F Santisi (Offender)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2013/23304

Judgment 1. Yi-Hua Jiao was charged before me with a Commonwealth offence I will refer to as money laundering. It was an offence against s 400.9(1) of the Criminal Code 1995 (Cth). Last Tuesday 16 December 2014 the jury returned a verdict of guilty on the charge. I convicted Ms Jiao and stood the case over to Thursday 18 December 2014 to hear any evidence and submissions on sentence. I granted Ms Jiao bail for that purpose. I granted her bail overnight to Friday 19 December 2014. HIS HONOUR: Am I right did I sentence her on the Thursday or the Friday? SANTISI: You sentenced her on the Friday. She was granted bail on Tuesday. On that Friday I sentenced Ms Jiao to six months imprisonment to commence from that day. 1. Mr F Santisi of counsel who appeared for Ms Jiao in the trial and in the sentence proceedings applied for bail pending an appeal. He made available to me a notice of intention to appeal which became exhibit 44 in the proceedings. 2. Ms J Katrib who appeared for the Commonwealth Director of Public Prosecutions on the bail application drew my attention to s 22 of the Bail Act 2013. It is a very significant provision and says as follows - "Despite anything to the contrary in this Act, a Court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision: a) An offence for which an appeal is pending in the Court of Criminal Appeal against i) a conviction on indictment, or ii) a sentence imposed on conviction on indictment, …" 1. Ms Jiao's notice of intention to appeal is both from the conviction and from the sentence. I stood the bail application over to today, Monday 22 December 2014, inviting Mr Santisi to address me on two particular issues as well as any other matters. The first issue concerned the likely time before an appeal would be heard in the Court of Criminal Appeal. I indicated that I would be satisfied with inquiries being made and information provided from the Bar table. The second specific issue was whether there were any authorities on the application of s 22. Mr Santisi provided the information on the first issue and Ms Katrib provided me with relevant authorities on the second issue. 2. Ms Jiao's appeal to the Court of Criminal Appeal needs to be called over by the Registrar of the Court of Criminal Appeal. The next call over date is 29 January 2015. Mr Santisi indicated that because of the intervening holiday period and Court vacation it may well be that the parties are not ready to take a date from the Registrar on 29 January 2015. If they were ready then a date as early as March could be possible. More likely, Mr Santisi suggests, is that the appeal will need to be adjourned to the following call over which he surmised would be in February 2015 and a hearing date accordingly would likely to be in April or May 2015. 3. This contrasts with the sentence of imprisonment which I imposed on Friday which expires on 18 June 2015. His obvious concern is that if the appeal is successful and the conviction set aside and Ms Jiao either acquitted or given a fresh trial then she will have served well over half of her sentence if not two-thirds of her sentence. (Ms Jiao is a middle aged Chinese woman who is a national both of Taiwan and New Zealand.) 4. The authorities which Ms Katrib made available to me make it clear that that factor alone, although obviously important, is not the only consideration. 5. In the Commonwealth Director of Public Prosecutions v Cassaniti [2006] NSWSC 1103, Basten JA was dealing with an application for review of a bail decision pending appeal. The then applicable legislation was s 30AA of the Bail Act 1978 which nobody has suggested is any different in relevant terms to the provision I am applying. His Honour at [25] made reference to the joint judgment of Gleeson CJ and McHugh and Gummow JJ in United Mexican States v Cabal (2002) 209 CLR 165. Basten JA extracted two paragraphs from that judgment of the High Court. They were [39] and [40] and I set them out here - "[39] In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or the appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in ex parte Maher [1986] 1Qd R 303 at 310, to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned: - makes the conviction appear contingent until confirmed; - places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail; - encourages unmeritorious appeal; - undermines respect for the judicial system in having a single 'recently sentenced man walking free'; - undermines the public interest in having convicted persons serve their sentences as soon as is practicable. [40] Consequently, the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances." Basten JA acknowledged that "the principles in the High Court involve no statutory test, but rather an application of the general law". His Honour however observed that that gave rise "to no point of distinction" and that "the insertion of s 30AA was intended to restore the Common Law principles". 1. Basten JA referred to the importance of making some assessment, albeit limited, of any grounds of appeal but went on to observe at [34] that nevertheless "the fact that an appeal cannot be shown to be more than merely 'arguable', and perhaps less in relation to the indirectly affected convictions, diminishes the strength of the present application." His Honour accepted for the purposes of the argument that the reasonable likelihood of success on appeal "was by no means the sole relevant criterion", (see [20-21]) and that it was not "necessary to establish that an appeal is virtually certain to succeed". Nevertheless his Honour went on to observe that "the heavy burden faced by an applicant in these circumstances is not diminished when no attempt is made to demonstrate that the grounds of appeal establish more than an arguable point." 2. In R v John Kay Jin Khoo [2013] NSWSC 1518 Johnson J was dealing with an application for bail pending an appeal to the Court of Criminal Appeal from sentence proceedings. His Honour was dealing with this application under s 30AA of the Bail Act 1978 and made reference to Cassaniti's case as well as other authorities. His Honour too acknowledged at [18] that "the likely hearing date in the Court of Criminal Appeal, and the relationship of that date to the earliest release date, is a factor to be taken into account." His Honour observed at [19] that "the existence of merely arguable grounds is not enough. The grounds must be most likely to succeed." His Honour in that case then went on to consider each of eight grounds of appeal which had been put forward as most likely to succeed in that case. His Honour concluded at [49] "that the grounds of appeal, viewed individually or cumulatively, do not demonstrate that there is a ground or grounds which are most likely to succeed." His Honour declined to recommend to the Registrar that case be given expedition but encouraged the parties to prepare submissions so that they were in a position to proceed when before the Registrar, who would allocate a date. His Honour concluded at [52] that it "cannot be said that the grounds of appeal are such that the period of time in custody until then should lead this Court to grant bail to the Applicant." 3. I should therefore make some assessment, although of course limited, of the likelihood of the success of the appeal. I express it in those terms because no notice of grounds of appeal has been filed. What has been filed is a notice of intention to appeal and a notice of intention to appeal for leave to appeal. The first is in respect of the conviction and the second is in respect of the sentence. No grounds of appeal are set out in that document which became exhibit 44. That is not a criticism because the document makes no provision for such grounds to be articulated as such. 4. What Mr Santisi did was to articulate five matters which he said, subject to the likely advice from senior counsel, may form the basis of grounds of appeal. 5. The first was that the verdict was unreasonable and cannot be supported on the evidence. That point he said is available before even considering the defence evidence. My own opinion is that that is not a strong ground of appeal. The evidence was that Ms Jiao admittedly dealt with cash which had attributes which attracted suspicion. It was a large amount of cash and there was evidence before the jury to the effect that the way it was bound and the condition of the cash constituted attributes which were suspicious. 6. The second matter articulated by Mr Santisi concerns a note which the jury provided to me on Tuesday 16 December 2014. The note is significant here because it was provided at about 3 o'clock and the jury returned with a verdict a little after 4 o'clock. The note became MFI #53 and reads as follows: "'Satisfied beyond reasonable doubt'. Does this mean I need to be 100% sure of the prosecutor's evidence? Or does it mean just over the line ie. 50-60% sure? Please clarify thanks". Mr Santisi argued that the coincidence of the timing of the note and the return of the verdict left a definite sense of unease and a sense of a miscarriage of justice. For what it is worth I do not agree with that. The note is also consistent with the jury - indeed perhaps just one juror, so far as the terms of the note are concerned - wanting to clarify the meaning of beyond reasonable doubt by presenting two extremes. One extreme was 100% sure and the other was 50-60% sure. I gave a direction acceptable to both counsel which discouraged the jury from thinking in terms of percentages and encouraged them to think in terms of beyond reasonable doubt as meaning what those words mean in ordinary parlance. I do not regard that note as being a basis for likely success on appeal. 1. The third point raised by Mr Santisi concerns the circumstantial case presented by the Crown Prosecutor. He singled out two particular aspects. They are the fact that the transaction relevant to the case occurred in the Star Casino here in Sydney and secondly that a part of the prosecution evidence involved the then accused identifying the man with the cash by means of their common knowledge of the serial number on a $5 note. Mr Santisi argued that the jury needed to be satisfied beyond reasonable doubt of those two particular circumstances in a circumstantial case put forward by the Crown which contained a good number of additional components to that. 2. That is not my recollection of how the prosecution urged the jury to consider those two aspects of its case. I did not gain the impression that the prosecution was presenting a circumstantial case part of which was an essential component which required the proof of that essential component beyond reasonable doubt. My recollection is that I did not direct the jury to that effect and neither counsel took exception to my direction. The circumstantial case presented by the prosecution was not, in my opinion, one which depended on proof beyond reasonable doubt of those two components. 3. The fourth argument put forward by Mr Santisi this morning concerned opinions expressed by a witness, a Federal Police Officer named Federal Agent Burnicle. Mr Santisi was concerned that there had been no opinion evidence direction given about that witness' evidence. The witness' evidence was controversial in that I heard argument about it and admitted parts of his evidence. It was admitted, as I recollect, as opinion evidence. He was qualified by the Crown Prosecutor (Mr B Neild) leading evidence from him about his qualifications and experience before expressing opinions about certain matters including the use of serial numbers on low denomination currency. 4. My recollection is that I did not give an opinion evidence direction, despite providing to counsel a list of the topics on which I proposed to direct the jury and inviting them to ensure that the list was comprehensive. I was not asked to include an opinion evidence direction. In retrospect perhaps that should have been included because the witness' evidence did include opinions. But it seems to me that in the atmosphere of the trial it was not obvious to either counsel that such a direction was needed. Perhaps that is because the point made by Mr Santisi in cross-examining the witness and to the jury was less upon his expertise as such and more about Federal Agent Burnicle's familiarity with this particular case. He emphasised a number of times to the jury that that witness could say nothing about the transaction in this particular case. That seemed to me to be the main issue. I do not think that there is a ground of appeal which is likely to succeed regarding that issue. 5. The last possible ground of appeal regarded what Mr Santisi described as an over simplification of the prosecution case presented by Mr Nield as the Crown Prosecutor. It ignored, Mr Santisi argued, the commercial realities of life. This is a fair point in one sense. I say that because there was a good deal of evidence that cash transactions and particularly involving large amounts of cash are not unusual for Taiwanese nationals. Nevertheless I did not regard the case as over simplified. I thought Mr Nield presented the case in a commendably simplified way. He focussed on the dealings of Ms Jiao and those attributes which would attract suspicion about the transaction and he focussed on why Ms Jiao's explanation should be rejected. It was for the defence - and the burden was undertaken appropriately - to provide evidence about matters which could go to raise a doubt about the prosecution case or discharge the defence's own burden which happened to apply in this case. To my mind the presentation of the prosecution case was not such that it would represent a ground of appeal that was most likely to succeed. 6. I am therefore in a position where, on the one hand, I have no grounds of appeal but argued points presented by Mr Santisi this morning, none of which in my opinion reach the level of grounds which may become most likely to succeed. But, on the other hand, I have the prospect that Ms Jiao could spend half to two-thirds or more of her sentence in custody and then find that her appeal succeeds. 7. The relationship between those two is significant. If someone presented an application for bail under s 22 of the Bail Act with an absolutely hopeless ground of appeal as being argued, then despite the sentence being likely to expire before the appeal is heard it would obviously not be appropriate to grant bail. I regard it as appropriate to weigh these two considerations. 8. The strength of the appeal points is a factor to be taken into account. The likely serving of a good part of the sentence is another factor to be taken into account. However also to be taken into account are the very significant considerations advanced by the High Court in Cabal's case and adopted by Judges of the Supreme Court in this State. I must weigh in those considerations about the administration of criminal justice. 9. On balance, given the fact that none of the grounds of appeal could be described as most likely to succeed and the considerations referred to by the High Court, I do not regard this case as one being where special or exceptional circumstances exist justifying a bail decision. 10. Accordingly I refuse the application.