Supreme Court New South Wales Medium Neutral Citation: R v Tony Liristis [2016] NSWSC 380 Hearing dates: 24 March 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Application dismissed Catchwords: BAIL – multiple bail applications – Bail Act 2013 (NSW) s 74 – whether there are grounds to hear a further bail application BAIL – sexual assault committed while on bail for another offence – show cause offence – whether applicant has shown cause why his detention is not justified Legislation Cited: Bail Act 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Surveillance Devices Act 2007 Cases Cited: JM v R [2015] NSWSC 978 Liristis v Director of Public Prosecutions (NSW) [2015] NSWSC 1258 Texts Cited: Not Applicable Category: Principal judgment Parties: Tony Liristis (Applicant) The Crown Representation: Counsel: In person (Applicant) T Jones (Crown) Solicitors: McGirr (Applicant) NSW DPP (Crown) File Number(s): 2015/319308 Publication restriction: Judgment suppressed until conclusion of applicant's District Court trial. Judgment 1. On 22 October 2015, the solicitor for Mr Tony Liristis, the applicant, filed a Release Application on his client's behalf in this Court. 2. The Release Application was initially fixed for hearing on 14 January 2016. That date was inconvenient to counsel for the applicant, as were subsequent dates offered by the Court. 3. Ultimately, on 14 March 2016, a Notice of Readiness to Proceed was filed and the application was listed for hearing on 24 March 2016. When the application was called for hearing, the Court was informed by counsel for the applicant that he had advised the applicant of "… a certain course of conduct", and that the applicant had chosen to act for himself and dispensed with counsel's assistance. Accordingly, the applicant represented himself for the conduct of his application. 4. At the conclusion of the application, judgment was reserved. Offences 1. On 26 June 2014, the applicant was arrested and charged with the following offences: 1. 3 offences of sexual intercourse without consent in 2008 with a victim known as RG contrary to s 61I of the Crimes Act 1900; 2. 1 offence of attempted sexual intercourse without consent in 2013 with a victim known as SG contrary to s 61I of the Crimes Act; 3. 1 offence of sexual intercourse without consent in 2013 with a victim known as AD contrary to s 61I of the Crimes Act; and 4. 3 offences of knowingly using a listening device to record a private conversation in 2013, contrary to s 7(1)(b) of the Surveillance Devices Act 2007. 1. His trial in respect of these offences is fixed for hearing on 27 June 2016 in the District Court in Sydney. 2. Offences contrary to s 61I and s 61P of the Crimes Act carry a maximum penalty of 14 years imprisonment. A standard non-parole period of 7 years is applicable to an offence against s 61I of the Crimes Act: see s 54A Crimes (Sentencing Procedure) Act 1999. 3. Although he was taken into custody on 27 June 2014, the applicant continued to serve the non-parole period of an existing sentence of imprisonment until 26 September 2015. 4. He has been in custody with respect to these offences since that time. Previous Bail Applications 1. On 20 November 2014, the applicant made a bail application in this Court. On that day Blackmore AJ refused bail. 2. On 24 August 2015, the applicant again applied for bail. His application was heard by R A Hulme J in this Court. For the detailed reasons he expressed, his Honour refused bail: see Liristis v Director of Public Prosecutions (NSW) [2015] NSWSC 1258. Relevant Legislation 1. As the applicant has made two previous release applications, each of which has been dismissed, s 74 of the Bail Act 2013 ("Bail Act") applies to the determination of the present application. It requires this Court to refuse to hear the applicant's present bail application unless "… there are grounds for a further release application": s 74(1) Bail Act. 2. Section 74(3) of the Bail Act specifies those grounds. Relevantly, for the purposes of the present application, they are: "… (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the Court in the previous application; (c) circumstances relevant to the grant of bail have changed since the previous application was made; …" 1. One of the offences with which the applicant is charged, namely that involving the victim AD, is defined as a "show cause offence" by s 16B(1)(h) of the Bail Act, being a serious indictable offence committed by the applicant while on bail for another offence. 2. As a consequence, s 16A of the Bail Act applies. It provides: "Accused person to show cause for certain serious offences 16A Accused person to show cause for certain serious offences (1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified. (2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test-all offences). (3) ..." 1. If both ss 74 and 16A are satisfied, then the Court will proceed to determine the release application in accordance with ss 17 and 18 of the Bail Act. Grounds for Further Application 1. I turn first to the question of whether there are grounds under s 74 of the Bail Act to hear this further release application. 2. The applicant contended that the court should hear the present application because he is to present material information relevant to the grant of bail which was not presented to the Court in his previous bail applications. 3. The first piece of information upon which the applicant relied was a Statement of Claim filed in the Possession List in the Supreme Court of NSW on 17 December 2015, which named the applicant's father as the defendant. The plaintiffs in that case seek an order that they be granted possession of the land known as 81 Violet Street, Revesby, NSW. It appears that the land owners entered into a commercial lease with a company called Prestige & Performance of Australia Pty Ltd under which they leased the property to the company. About 3 months before the lease expired, the tenant was deregistered as a company. The Statement of Claim contends that, from about 15 June 2014, the applicant's father became the occupier of the property. It pleads that an agreement was subsequently entered into with the applicant and his father for them to deliver up vacant possession of the property and remove all their goods and chattels. This agreement was not complied with and, accordingly, the plaintiffs now seek possession of the property. 4. It appears from submissions made by the applicant, and from an affidavit which he swore on 23 March 2016, that there are goods and chattels on the property which need to be removed, including but not limited to five 40 foot shipping containers, machinery, stock, vehicles, and sculptures. He submits that this information is relevant to his bail application because his parents, being elderly and infirm, are unable to remove the material themselves. 5. The second parcel of information to which the applicant referred as being material relevant to his application which had not been put before the Court on his previous applications are Annexures A to Q of his affidavit of 23 March 2016. 6. Most, but not all, of these annexures refer to and demonstrate the existence of, in the applicant's submissions, a legitimate business which he has undertaken in the relevant years. He advances this material to counter the suggestion in the Crown case that he was running a "sham" business. 7. A third parcel of information which the applicant submits is material within the description of s 74(3) of the Bail Act are the contents of paragraphs 35 to 52 of his affidavit and the documents to which he refers in those paragraphs. Putting the matter in summary terms, this material is intended to demonstrate that the Crown case against the applicant in respect of the three victims is not a strong one. 8. It is unnecessary for me to explore at length what material is capable of constituting information of the kind described in s 74(3) of the Bail Act. The second and third parcels of information and material alluded to by the applicant, however they be described, constitutes information which is relevant to the applicant's bail application. I accept that this material was not put before the Court when it heard either of the earlier bail applications. Show Cause 1. As earlier noted, the applicant is obliged to show cause, at least with respect to the charge involving the victim AD, as to why his detention is not justified. 2. I have previously discussed the principles which are applicable in the hearing of an application for bail where an applicant is required to show cause why their detention is not justified. Those principles are described in some detail in JM v R [2015] NSWSC 978. It is unnecessary simply to repeat those principles here, but I will apply them in the consideration of this matter. 3. The strength of the Crown case is a relevant, although not determinative, factor in considering whether an applicant has shown cause why their detention is not justified. Also relevant are the existence of any bail concerns and unacceptable risks flowing from those bail concerns. It is therefore necessary for the Court to consider the strength of the Crown case as well as the applicant's personal position and circumstances. Strength of the Crown Case 1. It is sufficient for the purposes of this third bail application by the applicant in this Court to set out R A Hulme J's summary of the Crown case in his judgment of 24 August 2015. His Honour said: "18. In summary, the Crown case is that on three occasions, once in 2008 and twice in 2013, the applicant lured women to his business premises, businesses which in reality did not exist or at least operate, on the pretence of an offer of employment advertised on the internet. He then took advantage of the women, being alone with him there, by sexually assaulting them. Thereafter he intimidated and harassed them in order to discourage them from reporting the matter or otherwise sought to discredit them. 19. The Crown says that there is a consistent modus operandi when considering the evidence of each of the complainants together and particularly against the background of the evidence proposed to be called from the five other women who have complained of similar activity by the applicant, albeit falling short of any sexual assault being committed. 20. … 21. My observation is that these are serious offences that have been charged. If the Crown evidence is accepted, it would indicate predatory and manipulative behaviour by the applicant, particularly as he lured the complainants to his business premises for sexual gratification under false pretences. There was obviously a degree of planning and premeditation involved. If convicted, the likely outcome is a significant period of imprisonment and it appears, upon the Crown's material, that the applicant made substantial efforts to dissuade the complainants from complaining and also made substantial efforts to discredit them." 1. I agree with the summary of the Crown case and R A Hulme J's observations upon it. 2. The applicant's case at trial will be that each of the complainants ought not to be believed. He submits that he will be able to demonstrate that their credibility is suspect because, according to the applicant, they have on various occasions said things which are inconsistent with their being the victims of the offences with which the applicant is charged. 3. The applicant further seeks to demonstrate that, contrary to the Crown's theory, his businesses were legitimate and that, with respect to two of the three complainants, the true circumstances of the events in question demonstrate that the sexual intercourse which took place was consensual. 4. It is appropriate to note that the evidence of the complainants will, on the Crown case, be supported by the evidence of five women, none of whom is a complainant, who applied for jobs during the relevant period with the applicant. The evidence of those women will be relied upon by the Crown as tendency or coincidence evidence to demonstrate that the applicant regularly engaged in a course of inappropriate conduct with women who had applied for jobs with the applicant in answer to advertisements. 5. It is necessary that I make my own assessment of the Crown case. I do so in circumstances where I have not seen the complainants or the other witnesses give evidence. I will not have the benefit of seeing their evidence tested. 6. In making this assessment it is necessary that I have regard to the sworn evidence of the applicant in his untested affidavit denying these offences. In having regard to that untested affidavit, I bear in mind that the applicant, in September 2005 at the Campbelltown District Court, was convicted of an offence of making a false statement on oath amounting to perjury. As recently as 2013, the applicant was convicted of a significant offence of dishonesty, namely larceny as a bailee of property valued in excess of $15,000, for which he was sentenced to a term of imprisonment comprising a 15 month non-parole period and a 5 month parole period. These convictions necessarily suggest that care must be taken in accepting any untested evidence of the applicant. 7. Weighing up all of the material, I am satisfied that the Crown case is strong. The offences charged disclose a similar modus operandi. The evidence of the five other women to be called by the Crown will provide significant corroboration of the accounts of the complainants. As well, the applicant's contention that two of the three complainants, within less than 24 hours of meeting him in the circumstances I have previously described (namely as applicants for a job), had consented to sexual intercourse with him has an air of unreality about it. In short, I simply do not accept it. 8. The applicant is confronted, in my assessment, with a strong Crown case on serious offences. If convicted, the applicant will inevitably serve a significant term of imprisonment. Present Court Proceedings 1. The applicant has been in custody with respect to these charges since 26 September 2015. Although the proceedings were slow to move through the Court system, they have been fixed for trial on 27 June 2016, that is to say in less than three months' time. 2. I note that the proceedings were previously listed for trial in August and September 2015. That trial date was vacated because the applicant withdrew his solicitor's instructions in the weeks leading up to the commencement of the trial. 3. In short, the applicant will spend about 9 months in custody solely related to the current charges and unrelated to any completion of a term of imprisonment prior to his trial taking place. Discernment 1. The Crown submits that there are a number of unacceptable risks which relate to the bail concerns specified by the Bail Act. However, it is unnecessary for me to address that submission unless I am satisfied that the applicant has shown cause why his detention is not justified. I am not satisfied that he has. 2. The applicant is confronted with a strong Crown case in respect of serious offences against each of the three victims. In light of the strength of the Crown case, and the relatively short period before the commencement of the applicant's trial, I am not satisfied that the applicant's detention is not justified. 3. The applicant's reliance on the need to assist his father with vacating the property at 81 Violet Street and in the proceedings before the NSW Supreme Court cannot rationally be considered as providing a basis for the conclusion that his detention is not justified. 4. Accordingly, the application must be dismissed. Orders 1. The application is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2024