R v Xie [2019] NSWSC 486

Supreme Court New South Wales

Medium Neutral Citation: R v Xie [2019] NSWSC 486 Hearing dates: 24 April 2019 Date of orders: 26 April 2019 Decision date: 26 April 2019 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: Bail is refused Catchwords: BAIL – show cause requirements – cause to take intoxicating substance with intent to commit indictable offence – indecent assault – flight risk – delay before trial Legislation Cited: Crimes Act 1900 (NSW) Bail Act 2013 (NSW) Cases Cited: DPP v Hing [2017] NSWCCA 325 DPP v Tikomaimaleya [2015] NSWCA 83 Moukhallaletti v DPP [2016] NSWCCA 314 R v Kugor [2015] NSWCCA 14 Category: Principal judgment Parties: Regina (Crown) Raymond Xie (Applicant) Representation: Counsel: D Mansour (Crown) G Smith SC (Applicant)

Solicitors: Crown Solicitor's Office (Crown) Ren Zhou Lawyers (Applicant) File Number(s): 2019/34735 Publication restriction: Nil

Judgment 1. The applicant is a 41 year old businessman and has been charged with various counts of indecent assault pursuant to s 61L of the Crimes Act 1900 (NSW) (repealed) and two counts of cause to take intoxicating substance with intent to commit indictable offence (s 38(b) of the Crimes Act). These charges have a potential maximum penalty of 5 years and 25 years respectively. The charges involve two separate complainants. The applicant has been in custody since 23 September 2018. 2. A Chinese Mandarin interpreter was requested and provided for the hearing. The evidence led and submissions made were translated for the benefit of the applicant. 3. The Crown case is that on 6 August 2017, the applicant met the complainant, a young male visiting Sydney, at about 1.30am having approached him in the carpark offering to help him with getting back to his hotel and to charge his phone. The complainant was lost and intoxicated. The Crown case is that on arrival at the applicant's unit in Lyons Road, Russell Lea, the applicant drugged the complainant and sexually assaulted him. 4. The complainant was rescued by his girlfriend. He underwent a SAIK examination. Analysis of liquid found in a plastic cup on the sink at the premises at Russell Lea was consistent with substances found on testing of the complainant's blood and urine. 5. The second set of offences were said to have been committed on 23 September 2018 involving three counts of sexual intercourse without consent, cause to take intoxicating substance with intent to commit indictable offence, four counts of indecent assault, common assault and two counts of possess drug. 6. The circumstances of this offending on the Crown case was that the complainant used the dating app Tinder stating that he was a heterosexual male looking to meet a woman. He was matched with a person named "Lily" who set up an arrangement for him to attend premises at Lyons Road for a massage. There he was met by the applicant. The complainant says he was given an open beer by the applicant whilst waiting for "Lily" and that the applicant also offered him what he called "Japanese tobacco". When he tasted it, it felt like liquid going down his throat and he felt as if he had been drugged. The accused massaged him and then sexually assaulted him whilst he was incapacitated. The complainant said that he was physically unable to prevent the sexual assault due to the effects of drug intoxication. The sexual assault included the applicant inserting his finger into the complainant's anus. 7. The complainant says that he was trying to message his girlfriend and sent her a video of the attack and messages on his phone including "I cannot move, help come quick" and "RAPE". 8. The applicant was interviewed by police in respect of both complaints shortly after they occurred. He gave an innocent explanation of assistance in respect of the first complaint and denied any sexual contact. 9. He also denied any wrongdoing in respect of the second incident and claimed that all acts were consensual. The applicant had been granted bail in respect of the August 2017 offences but bail was revoked after the 23 September 2018 complaint. 10. The application is subject to the requirement that cause be shown because the applicant was on conditional bail at the time of the September 2018 offending and s 16B1(h)(i) of the Bail Act 2013 (NSW) provides that the show cause requirements of the Act apply. 11. It is common ground that the onus lies upon the applicant to show cause as to why his detention is not justified. The application must be refused unless the applicant shows cause. Whether that burden has been met is in issue. 12. Determination of the application requires a two-step process. This is a requirement despite the fact that matters relevant to show cause are also relevant to the question of bail concerns which the applicant poses and the unacceptable risk test which must be considered in accordance with ss 17, 18 and 19 of the Bail Act if cause is shown. It is important that I do not conflate the two distinct analyses required (DPP v Tikomaimaleya [2015] NSWCA 83) and so I deal first and separately with the show cause arguments.