R v Xie [2015] NSWSC 1833

Supreme Court New South Wales

Medium Neutral Citation: R v Xie [2015] NSWSC 1833 Decision date: 08 December 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: Conditional bail granted Catchwords: CRIMINAL LAW – bail application Legislation Cited: Bail Act 1978 (NSW) Bail Act 2013 (NSW) Evidence Act 1995 (NSW) Jury Act 1977 (NSW) Cases Cited: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 JM v R [2015] NSWSC 978 Category: Principal judgment Parties: The Crown Lian Bin (Robert) Xie (Applicant) Representation: Counsel: M Tedeschi QC / K Ratcliffe (Crown) G Turnbull SC / L Fernandez (Applicant)

Solicitors: Director of Public Prosecutions (Crown) Kidman Legal (Applicant) File Number(s): 2011/147183

Judgment:

Background 1. HER HONOUR: On 4 February 2015 the applicant's third trial on five counts of murder commenced before me when 15 jurors were empanelled pursuant to s 19(2) of the Jury Act 1977 (NSW). Two previous trials, which commenced respectively in March and August 2014 before Johnson J, did not proceed to verdict. On neither occasion was the aborted trial the fault of the Crown or the applicant. 2. On 22 September 2015 the Crown closed its case. There was no case for the applicant. 3. On 12 November 2015 a jury of 12 commenced its deliberations. 4. On 1 December 2015 the jury was discharged after I determined, in accordance with the procedure in s 56 of the Jury Act, that there was no prospect of the jury returning unanimous or majority verdicts. 5. I am in no doubt that throughout their deliberations the jury conscientiously applied themselves to resolving the facts in dispute consistently with the comprehensive directions of law that they were given in the course my summing up of the evidence and the multiplicity and complexity of the issues to which the evidence gave rise. 6. Immediately following the discharge of the jury, the Crown Prosecutor announced that the Director of Public Prosecutions had determined that the applicant would be retried on the same indictment; that the trial should be listed to commence at the earliest opportunity in 2016; and the accused should be remanded in custody pending his retrial. 7. Mr Turnbull SC advised that although neither he nor junior counsel were to be retained as trial counsel for the pending trial, he was instructed to seek a grant of bail on the same or similar conditions as had been proposed in a series of unsuccessful bail applications in this Court, the most recent being heard by me in October 2014. That application was brought in accordance with the Bail Act 2013 (the Act having come into operation in May 2014). Each of the three previous applications heard, respectively by Price, Rothman and Harrison JJ, were made under the Bail Act 1978 (since repealed). 8. The Crown did not foreshadow making any submission that I should refuse to hear the application under s 74 of the Bail Act 2013 and made no submission on the hearing of the application that I should do so. I assume the Crown accepts that the circumstances relevant to the grant of bail have changed since I refused bail in October 2014, the jury being discharged without returning verdicts after a trial extending over more than 177 hearing days, and that is a sufficient basis to consider a further bail application at this time. I make that finding. 9. I listed the bail application for hearing on 7 December 2015. That was designed to afford the applicant's solicitor the opportunity to apply for a grant of legal aid and for enquiries to be made of the Public Defenders Office and the private criminal bar as to the availability of counsel for a trial to commence in early 2016.