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and has been charged with various counts of indecent assault pursuant to s 61L of the Crimes Act 1900 (NSW) (repealed) and two counts of cause to take intoxicating substance with intent to commit indictable offence (s 38(b) of the Crimes Act).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. Applicant's submissions 1. The applicant, represented by Mr Smith SC, contends that a combination of factors satisfy the show cause requirement of s 16A. As correctly pointed out in the written submissions, the basic principles which apply to show cause were outlined in Moukhallaletti v DPP [2016] NSWCCA 314 at [50] to [56]. In short, Button J with whom the other members of the Court agreed held that the requirements of showing cause are not enumerated in the Bail Act, there is substantial overlap between factors on show cause and those that address unacceptable risk, a single powerful factor or a powerful combination of factors may show cause, one should refrain from placing a gloss on the words in the Bail Act and there is no need to show special or exceptional circumstances in order to show cause and decisions of other single judges in other circumstances do not have precedential value unless they contain a discussion of the legal principles. 2. Mr Smith SC emphasised the common law presumption of innocence and the general right to be at liberty and that there should be caution exercised to ensure there is not punishment before a conviction. Mr Smith SC also made the point that being in custody on remand is different in nature from being part of the general prison population and there are some limits associated with that, including having to mix with some of the more serious criminals in custody. 3. It was submitted that even in a strong prosecution case, inevitability of a jail sentence does not automatically render cause incapable of being shown (R v Kugor [2015] NSWCCA 14). 4. It was submitted that here a combination of factors result in cause being shown. First is the strong bail proposal which includes the applicant's agreement to subject himself to electronic surveillance, the offering of a $2 million surety ($500,000 by way of a caveat over a property owned by a friend, Mr Song, and $1.5 million of the applicant's own money), and a series of stringent conditions which in effect amount to house arrest. 5. It was submitted that the applicant needed to be free to prepare his defence, in particular to listen to the tapes of the jail calls that would be tendered by the prosecution and to properly give instructions. 6. As a businessman, the applicant needs to be free to pursue his businesses and as a matter of logic, if the founder of the business is not available, it is likely the business would suffer although no evidence in relation to actual loss to the applicant's business was tendered. Mr Smith SC frankly noted that this evidence was to be led from the applicant's acting business manager – "Lindsey" – (Yanlin Liu) but she was charged recently with attempt to pervert the course of justice, together with the applicant and his wife, for her role in attempting to secure fraudulent medical records to assist the applicant's bail application for this offending in January 2019. 7. Mr Smith SC submitted that the Crown case was not strong in respect of the 2017 complaint. The complainant was severely intoxicated and there would be a challenge made to his recollection. In respect of the 2018 allegations, the acts were consensual, the account given by the complainant, particularly relating to climbing over a balcony whilst "unable to move", simply does not make sense. There is also an issue that the complainant's blood and urine tests revealed only methamphetamine, which would have the opposite effect to making him unable to move. No other drugs of the kind found in the 2017 incident were detected. 8. Evidence was relied upon from Mr and Mrs Song to the effect that Mr Song was prepared to put up $500,000 by way of caveat on his home and Mrs Song was prepared to stay at home and supervise the applicant as a form of house arrest. 9. It was submitted that I must take into account the delay before trial which will be at least one year from now. As stated in R v Kugor [2015] NSWCCA 14 at [35] "…It is a very serious matter to deprive a citizen of liberty for such a long period of time when he has not been convicted of any offence...". (In that case I observe the period was a further nine months to be served in protection, noted by the CCA as "more onerous" conditions than the normal prison population). 10. In terms of s 18 matters, considerations relevant to cause being shown and directed to flight risk, it was submitted that the applicant has strong community ties, he is very close to his mother (as evidenced by a letter from his sister), he is married with two children aged six and three and is a businessman and company director of a company Delux International Pty Ltd. He has immediate family and employees' families depending on him for their livelihood. (The number of employees involved was not the subject of any evidence). The offences were conceded to be serious. In respect of the strength of the prosecution case, in addition to the matters already raised, the submission was made that guilt or innocence depends upon the assessment the jury makes of the complainants, and, potentially the applicant's own evidence. 11. It was submitted, correctly, that there is no history of violence and no previous criminal record. It was submitted that the Court can be satisfied that there would be no contact or conduct interfering with the victims and no risk to them or the community and that the surrender of the applicant's passport will remove any concern regarding flight risk. 12. Overall, it was submitted that the applicant's family ties, business and social connections, responsibilities to his staff and the long delay before trial, the very large surety, his willingness to be subject to a curfew and wear an electronic monitoring apparatus, are in combination sufficient to show cause that his continued detention is not justified. The proposed conditions would alleviate any bail concerns. The Crown's position 1. The Crown opposed bail. The Crown submitted that I should hold a significant concern that the applicant is a flight risk because of the evidence in the Crown material that he adopts and uses a number of fake identities to sign lease documents, conduct mobile phone accounts and internet correspondence and to attract individuals via Tinder. 2. The Crown submits that the evidence demonstrates that the applicant is a person who will do and pay anything to achieve the outcome he wants. On that issue the Crown tendered a bundle of material, including a court attendance notice for a charge of knowingly commissioning the production of a fraudulent doctor's certificate to be used at the applicant's bail application at Burwood Local Court on 23 January 2019, intending thereby to pervert the cause of justice. In the police facts provided in support of that charge, extracts from jail calls between the applicant, his current acting business manager and the applicant's wife reveal a bold and detailed plan to organise and pay for fake medical records to support the applicant having a serious eye condition requiring urgent surgery. It is evident in context that this plan was directed at duping a court into releasing him. 3. Whilst as correctly submitted by Mr Smith SC I am not required to determine the strength of the attempting to pervert the course of justice charge and the likelihood or otherwise of the Crown making out its case in respect of it, I am required, and I do take into account the contents of those recorded conversations. Section 31(1) of the Bail Act provides: 31 Rules of evidence do not apply (1) A bail authority may, for the purpose of exercising any of its functions in relation to bail, take into account any evidence or information that the bail authority considers credible or trustworthy in the circumstances and is not bound by the principles or rules of law regarding the admission of evidence. 1. I conclude that the call transcripts extracted plainly demonstrate that a concerted effort was being made to commission and pay for a set of false medical records to claim the applicant had a tumour under or below his eye that required emergency treatment, to manipulate the Burwood Local Court into granting bail in January 2019. 2. In a conversation recorded on 16 January 2019 with Lindsey extracted in the Crown material this exchange occurs: Lindsey: "Detailed diagnostic and examination records. These things well, you will definitely have to spend a lot of money to create a full set of false records from way back in the past. Applicant: "Pay. Pay". 1. The Crown submitted that the cross-examination of Mr and Mrs Song indicates that their evidence about providing surety and being prepared to supervise the applicant in their home should be disregarded because they are people who are prepared to be manipulated and vouch for the applicant, indicated by the applicant's wife commissioning a valuation of the Song's house to support an earlier bail application. 2. The Crown tendered two pages of information explained to be a collection of details extracted from records relating to sim cards that had been extracted from mobile phones found at the Lyons Road premises, one of which was used as the account from which "Lily" operated to entice the complainant to Lyons Road in September 2018 for a "massage". 3. Mr Smith SC advised the Court that his instructions were that those sim cards had been given to the applicant by friends who had gone overseas and that that is why he had them. Mr Smith also advised that an identity "Peter Lee", for whom the Lyons Road premises were leased was an identity that had been "made up" by the applicant. 4. In essence the Crown submitted that what the recorded calls show is the lengths to which the applicant will go to secure release on bail, evidenced by his cynical instructions to and discussions with his wife and acting business manager and his instruction to pay in effect whatever it costs to get that outcome. It also shows that he will engage other people to pursue subterfuge. 5. The decision of DPP v Hing [2017] NSWCCA 325 was tendered in support of the submission that whilst delay leading up to trial is regrettable, it cannot be said to be out of the ordinary and whilst the prospective delay is concerning, it is a matter that has to be balanced against the all the other circumstances of the case: "65 Mr Turnbull SC correctly, with respect, referred to the presumption of innocence. Reference was also made to the observation of Hoeben CJ at CL in R v Kugor at [35] where the prospective delay was 15 months on the most optimistic estimate, that "[i]t is a very serious matter to deprive a citizen of liberty for such a long period of time when he has not been convicted of any offence". 66 We were of the view that the prospective delay in this matter is most concerning. However it is a matter that was required to be balanced against all of the other circumstances of the case." 1. The principal thrust of the Crown submission is that the applicant has demonstrated that he has access to and is willing to enlist people and strategies to falsify his identity and to falsify documents. In addition to the pursuit and involvement in seeking to obtain fake medical records the subject of the pervert the cause of justice charge, the applicant was found to have in his possession a driver's license in the name "Keikei Mai". He produced this to sign a tenancy agreement for the premises where the alleged offences were committed. He also has a falsified bank account using that name. 2. The Crown relies on the admissions in the applicant's ERISP as extracted in the Crown material that the applicant created accounts on Tinder using false details. Electronic monitoring is fallible and the "house arrest" under supervision of Mrs Song, unpersuasive. 3. There is also a concern held by the Crown that the applicant has extensive ties to China, although now an Australian citizen. He has numerous businesses in China and has travelled extensively to China. He has extensive financial means and access to large funds including being able to put up $1.5 million surety. There is also a bank account he discussed with "Lindsey" in the jail calls which contains $710,000 as well as a property he owns at Breakfast Point. 4. The Crown submitted that the Crown case is very strong, with immediate complaint in both instances and similar accusations of being lured to the premises under false pretences. There is video footage of the 2018 incident taken on the complainant's phone. There is corroborating evidence from a third person who was lured to the premises in similar circumstances, although in that case that person had consensual intercourse. 5. Regarding the 2017 complaint, there is DNA evidence consistent with the applicant's found on the complainant during SAIK examination. There is commonality between the drugs found in the blood and urine samples from the complainant namely methamphetamine, hyoscine and dexmedetomidine and the liquid in a plastic cup found at the premises on police investigation after the first complainant. That complainant gave an account of being given a drink by the applicant and feeling weird and things becoming cloudy and losing consciousness and then waking up whilst being sexually assaulted by the applicant. 6. The Crown facts state that dexmedetomidine is used for sedation. It is a clear solution and induces a state of unconsciousness similar to sleep. Hyosine is used as a pre-anaesthetic and can cause drowsiness. 7. In respect of the second complainant, a SAIK test indicated that the applicant's saliva was present on the complainant's penis. There were physical signs present on examination consistent with his description of anal assault. The applicant made admissions to being present and his explanations and denials should be put to one side. There was a convoluted back story provided to police about the second complainant being a drug dealer which is to an extent potentially undermined by the recording of discussion in jail calls where the applicant appears to be concocting this account with his wife. Decision 1. In my view the assessment offered by Mr Smith SC that the Crown case was "not weak but not strong" underplays the strength of the Crown case. Although it is true that the determination of the applicant's guilt will be entirely a matter for the jury, I am of the view the Crown case is reasonably strong. 2. Whilst there is no statutory test specific as to how a court ought to determine whether cause has been shown, it is clear I can and should consider matters such as strength of the Crown case. Obviously at this stage I have limited information. I do not have the statements of the complainants or the applicant's ERISP, nor should I be running a type of preliminary trial by assessing that material. 3. In reaching my view as to whether cause has been shown I have taken into particular account the evidence and material that indicates that the applicant is prepared to manipulate, lie and cheat, including enlisting others to do so on his behalf, to achieve release and/or a desired outcome to suit his purposes. In my view, in assessing whether cause has been shown and whether the ongoing detention of the applicant is not justified, I must take into account the prospect, a real one in this case, that despite stringent bail conditions, the applicant will fail to appear. 4. Material tendered on the application demonstrates the uses of fake identities for multiple purposes including leasing property, sexual liaisons and bank accounts. The tone and content of the telephone calls reveals that the applicant has a cynical willingness to "pay" for fraudulent outcomes. 5. The offences are serious, materially similar and indicate subterfuge and manipulation as a favoured practice. That, combined with the tone and content of the jail calls extracted in the Crown material reinforces my concerns. I am not persuaded that the applicant has established on the factors raised, that his ongoing detention is not justified. 6. The more serious charges, if found proven, attract a potential maximum penalty of 25 years. This provides a significant motivation to avoid appearing at the proceedings, despite the applicant's wife and children currently living in Sydney. He has significant money at his disposal. I accept entirely the submission made by the Crown that the applicant seems to be someone who is prepared to go to significant lengths to avoid remaining in custody. I have no confidence that electronic monitoring or the proposed bail conditions will remove or mitigate that risk. 7. There is no evidence tendered that shows that there is any financial loss to his businesses. The details of those businesses, their operational requirements and what they require of him are not at all clear. Relevantly, they seem to be located "off-shore" in China. A number of the recorded conversations in the Crown material with his acting manager Lindsey indicate the applicant discussing deliveries and payments and matters apparently relating to his businesses whilst in custody. I have no evidence at all to show losses are being incurred. The general submission that loss necessarily follows in a business where the applicant is the "front man" is not a submission I am prepared to accept at face value without more. Nor is it a factor that in combination with others amounts to cause being shown, given the absence of evidence demonstrating that is the case. 8. Cause has not been shown and bail is refused. ********** 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: 02 July 2019