Lin v Director of Public Prosecutions

Background Facts

1. The following facts are taken from a detailed statement of facts prepared by the Australian Federal Police (the "AFP facts"). The AFP facts includes extracts from intercepted communications.
2. In early January 2016, three freight containers arrived in Sydney. One of the containers (consignment 1), contained 120 bar stools. Within 110 of those bar stools there was discovered just over 91kgs of methyl amphetamine. The second container contained a further 70 bar stools (consignment 2). Secreted inside those bar stools was just under 56kgs of methyl amphetamine. The third container included 15 boxes containing packets labelled as soup powder. Within each of those packets were clear plastic sachets. In total the sachets contained 323kgs of ephedrine.
3. On or about 13 January 2016, Australian Federal Police ("AFP") officers removed the drugs from the consignments and substituted rock salt. From that time, the AFP commenced surveillance of a number of persons who were associated with the importation including Ming Ling Li ("Li") and Evan Wong ("Wong"). Intercepted conversations suggested that the intended recipient of the 70 bar stools from consignment 2 was someone they referred to as "the tall guy".
4. On about 21 January 2016, both Li and Wong were arrested. After his arrest, Wong agreed to participate in a controlled operation whereby two bar stools from consignment 2 would be delivered to "the tall guy". According to the AFP facts, at about 3:27pm on 21 January 2016, Wong used an encrypted telecommunication program to communicate with a person the CDPP contends was Mr Lin. He arranged to meet this person at a hotel at 8:00pm that evening. The AFP facts record that this person indicated he would take delivery of the remaining 68 stools from consignment 2 the following day or over the weekend.
5. At around 8:00pm on 21 January 2016, Wong and the two bar stools in boxes were conveyed to the hotel by AFP officers. Mr Lin did not attend at 8:00pm. Instead, after some further telephone calls, he arrived at 9:00pm as a passenger in a white SUV motor vehicle. Mr Lin alighted from the vehicle and met Wong. Their conversation was recorded. According to the AFP facts, Wong, Mr Lin and the person who drove the SUV vehicle, transferred the two cardboard boxes containing the two stools into the SUV.
6. The AFP facts stated that Mr Lin was recorded as stating that "the rest will be fixed on the weekend". The CDPP contends this is a reference to the collection of the remaining 68 stools. Mr Lin is also said to have stated that "I am thinking of taking all of them out" which the CDPP contends is a reference to cutting the stools and removing the methyl amphetamine. The AFP facts also refer to the following exchange: "WONG: Did you talk to him about raising the price? Lin: Price? yes. WONG: Now they are willing to give you over 7 something … … WONG: It is quite okay to earn over six to seven. Isn't the market price $80,000?
7. The CDPP contends that this is a reference to the market price of methyl amphetamine (and not stools).
8. Counsel for Mr Lin, Mr Korn, indicated that his client's case was that he was not "the tall guy" referred to in the various exchanges between Wong, Li and others. He also pointed to part of a recorded conversation between Wong and Li on 19 January 2016 in which Li stated "I think the tall guy is not the boss, just working for the boss" and Wong replied that the "tall guy" is "in the middle" and "not the boss". Mr Korn submitted that this indicated that, even if it was established beyond reasonable doubt that his client was the "tall guy" and was aware that within the stools there was methyl amphetamine, his role was not that of a principal in the importation or distribution process.
9. Even having regard to the limited material that is available on this application, I accept that there is a reasonably strong evidentiary basis for the CDPP's assertion that Mr Lin took possession of two stools knowing they contained methyl amphetamine and was intending to make arrangements to collect the remaining 68 stools. At this stage it appears that a substantial part of the Crown case will depend upon the evidence of Wong. However, the extracts from the recorded discussions between Wong and Mr Lin set out in the AFP facts appear to implicate Mr Lin.

Bail History and Time to Trial

1. After he met Wong on 21 January 2016, Mr Lin was arrested. He was charged with attempting to possess a commercial quantity of a border controlled drug that had been unlawfully imported (Criminal Code, s 307.5 and s 11.1). The maximum penalty for that offence is life imprisonment. The substance the subject of that charge was the approximately 1.284kg of methyl amphetamine contained within the two stools that were loaded into the SUV vehicle.
2. Mr Lin applied for and was granted bail. The CDPP did not oppose bail. The bail conditions included a night curfew, a daily reporting condition, and also requirements that he surrender his passport, not approach points of international departure and that two persons provide surety in an amount of $12,000.
3. On this application, the solicitor for Mr Lin, Mr Chan, swore an affidavit saying that, just after Mr Lin was charged, he received a copy of the facts sheet for the offence charged. He said that it included extracts from transcripts of conversations indicating that the "tall guy" was the intended recipient of all 70 stools in consignment 2. Mr Chan stated that he had a conference with Mr Lin on 27 January 2016. He told Mr Lin that he expected Wong would provide a statement to police and allege that Mr Lin was the intended recipient of all 70 stools. He said he made Mr Lin aware of the real likelihood that the existing charges against him would be upgraded to include the methyl amphetamine found within the remaining 68 stools.
4. On 9 June 2016, Mr Chan filed and served a subpoena upon the AFP which sought production of interviews or statements made by Wong. The subpoena was returnable at Central Local Court on 29 June 2016.
5. However, on 28 June 2016, Mr Lin was arrested and charged with two further offences which related to the events prior to his arrest in January 2016. In particular, he was charged with attempting to possess a commercial quantity of a border controlled drug which was reasonably suspected of having been unlawfully imported (Criminal Code, s 307.8(1), s 11.2A and s 11.1). This charge related to the methyl amphetamine contained within all 70 stools. He was also charged with attempting to import a commercial quantity of a border controlled drug, namely methyl amphetamine (Criminal Code, s 307.1(1), s 11.2A and s 11.1). This charge also related to all the methyl amphetamine found within the 70 stools. The maximum penalty for both offences is life imprisonment.
6. On 29 June 2016 Mr Lin was refused bail on these charges. He has been in custody since that time. It is not disputed that he complied with all his bail conditions between 21 January 2016 and 28 June 2016. On 29 June 2016, the CDPP withdrew the charge that had been laid on 21 January 2016.
7. On 8 July 2016, Mr Lin made a release application to the Local Court. It was refused. On 24 August 2016, he made a further release application which was also refused.
8. On 22 September 2016, in this Court, Wilson J denied Mr Lin's application for bail in relation to the two charges that had been laid on 28 June 2016. Her Honour was not satisfied that cause had been shown.
9. On 12 December 2016, two different charges were laid against Mr Lin. The first was the same charge that had been laid on 21 January 2016 and then withdrawn in June 2016, namely, attempting to possess a commercial quantity of a border controlled drug that was unlawfully imported, being the methyl amphetamine contained within the two stools loaded into the SUV on 21 January 2016. The second charge alleged that Mr Lin conspired with Wong and others to possess a commercial quantity of a border controlled drug that was unlawfully imported, namely methyl amphetamine (Criminal Code, s 307.5(1) and s 11.5(1)). Again, the maximum penalty for this offence is life imprisonment. This charge related to the entirety of the methyl amphetamine found within the 70 stools.
10. On this application the CDPP advised this Court that the two charges laid on 28 June 2016 would be withdrawn on the next occasion that the matter was before the Local Court. Thus, this bail application only concerns the charges laid on 12 December 2016. A detention application in relation to those charges was heard in the Local Court on 21 March 2017. Bail was refused. The refusal of that application enables this Court to hear this release application (Bail Act, s 66(1)). Further, s 74 of the Bail Act is not engaged by the decision of Wilson J on 22 September 2016 as this application does not concern the "same offence(s)" as those considered by her Honour.
11. Mr Lin's committal hearing was initially listed for hearing on 5 April 2017. Mr Wong is due to be called to give oral evidence at that hearing (Criminal Procedure Act 1986, s 91). However, as events have transpired, Mr Wong is due to be sentenced in the District Court on 5 April 2017. As a consequence, the parties will be applying to vacate the hearing date for the committal proceedings. They expect to obtain another committal hearing within two to three months of 5 April 2017.
12. Mr Korn estimated that the trial would occupy four weeks. The solicitor for the CDPP accepted that as an accurate estimate. Mr Korn submitted that it was not likely that his client would obtain a trial date in the District Court before April or May 2018. I accept that estimate. In the end result the applicant has served some nine months in pre-trial custody. If he is refused bail, he can expect to serve another 12 to 14 months in custody before his trial.

Electronic Monitoring and the AFP

1. One part of Mr Lin's bail proposal is that he is willing to submit himself to, and pay for, a system of electronic monitoring. To that end, two affidavits were sworn by Mr Philip Schluter, the Business Development Manager of 3 M Australia Pty Ltd ("3M"), an electronic monitoring company.
2. In his first affidavit sworn 28 February 2017, Mr Schluter explained that in 2010 and 2012, 3M acquired an electronic monitoring business previously conducted by two other companies, Elmotech and Abakus. Mr Schluter stated that 3M's technology is used to monitor, throughout Australia, persons on bail, home detention, work release, parole and extended supervision orders. In relation to bail, Mr Schluter stated that 3M monitors clients charged with both State and Commonwealth offences.
3. Mr Schluter also stated that, if a person is subject to a bail condition that requires electronic monitoring, the monitoring equipment is fitted to the person in the reception area of the relevant prison or remand centre prior to their release. A device is fitted to the monitored person's ankle or wrist. This device makes radio contact with what is effectively a modified mobile phone carried by the monitored person. That device then transmits data about the person's location and movements to 3M who in turn provides information to a designated police officer.
4. In his first affidavit, Mr Schluter recorded his understanding that Mr Lin's bail proposal involved him being subject to a curfew and not approaching international points of departure. Mr Schluter explained that 3M's system can specify "inclusion zones" being areas that the person monitored must stay within, including by reference to a time period, as well as "exclusion zones" such as zones around airports, sea ports and marine facilities.
5. Mr Schluter explained that, if no violation event has occurred, the unit fitted to the monitored person would report on a predetermined schedule which is currently set at every thirty minutes. He also stated that, if a violation event such as tampering with the monitoring equipment or the movement out of an inclusion zone occurred, then 3M would receive an immediate notification and in turn the nominated police officer would receive an email or an SMS message within twenty seconds. Mr Schluter explained that 3M would provide comprehensive briefings to the nominated responsible officer and that officer would receive a daily report of the person's movement and compliance with bail conditions.
6. In his second affidavit sworn 21 March 2017, Mr Schluter explained that, if no reception was available, the device would not transmit. He also stated that, if the device remains out of reception for an extended period, currently set at ninety minutes, then an alert will be generated. Mr Schluter stated that two hundred people in Australia were currently being monitored by 3M. Thirteen of these persons are in New South Wales. They are all on bail.
7. In relation to the AFP, Mr Schluter stated as follows: "The AFP works with 3M on many levels and across a great spectrum of products and applications. Specifically for [electronic monitoring] we currently have no direct commercial relationship with the AFP in that we are not contracted by the AFP to supply support or otherwise provide [electronic monitoring] products or services to the AFP. However 3M currently monitors bail clients and sends alerts and daily reports to officers employed by the AFP which would indicate there is a working relationship albeit non-commercial."
8. Mr Schluter's evidence was not challenged on this application.
9. In R v Ebrahimi [2015] NSWSC 335 at [33] ("Ebrahimi"), I rejected a submission that electronic monitoring should not be considered as part of a bail proposal because the Bail Act 2013 did not provide a mechanism for imposing obligations on third parties such as 3M. I noted that the scheme of the Bail Act contemplated that, in some circumstances, the Court would make an assessment as to the willingness and capacity of third parties to provide some form of supervision of persons on parole, the most obvious example of which are residential rehabilitation centres (id). I held that there was nothing in the Bail Act that precluded the Court from finding "that persons providing electronic monitoring systems are both honest and have a capacity to provide some degree of comfort as to the whereabouts of an applicant for bail and their compliance with bail conditions" (at [33]). These aspects of Ebrahimi were accepted by Hamill J in R v Xi [2015] NSWSC 1575 at [41] ("Xi").
10. In Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33] ("Zaiter"), RA Hulme J (with whom Hoeben CJ at CL and Wilson J agreed), noted that decisions of first-instance judges of this Court concerning bail applications published on caselaw have no greater precedent value than any other judgments at first instance. His Honour also stated that discretionary value judgments made in first instance judgments on bail applications do not establish any precedent as the doctrine of precedent is confined to decisions on points of law only (at [32] to [33]). Those observations apply with equal force to bail decisions of the Court of Criminal Appeal, including the outcome in Zaiter itself. Thus, for example, in Zaiter it was found that the likely period of pre-trial custody in that case was not sufficient to demonstrate that cause had been shown (see [41] to [44] and [55]). Zaiter is not authority for the proposition that the likelihood that an accused person will face an extended period in custody prior to trial could never constitute cause. However, the rejection in Ebrahimi of the proposition that the Bail Act does not contemplate that consideration be given to the willingness and capacity of third persons to monitor bail conditions, was a finding on a matter of law and therefore has precedent value.
11. In considering this application, I will proceed on the basis that 3M is both willing and capable of providing a system of electronic monitoring consistent with what Mr Schluter stated in his affidavits. Nevertheless, I am not proceeding on the basis that any such system is foolproof. There are technological constraints including difficulties in obtaining a signal in tunnels and buildings. Further, as I stated in Ebrahimi (at [34]) "if a person on bail was determined to abscond and had the means to arrange it, then the delay between the notification of any violation event … and action being taken by the relevant members of the police force to apprehend them is such that they might be able to leave the jurisdiction" in the meantime.
12. The CDPP read an affidavit from Michael Sheehan, a commander of the AFP, outlining the AFP's objection to the use of electronic monitoring. Mr Sheehan stated that should Mr Lin be released on bail and subject to a condition of electronic monitoring, the AFP would have to rely on 3M, a private company, for information concerning Mr Lin's compliance with his bail conditions. I have already addressed that concern above (at [34] to [36]).
13. Mr Sheehan also asserts that the AFP does not have the "capacity" to nominate AFP members to carry responsibility for monitoring data from electronic monitoring devices and, even if it did, the persons so nominated might be reassigned to other duties, or go on leave. Further, Mr Sheehan stated: "…if Mr Lin was released subject to [electronic monitoring conditions], the AFP would need to redirect members from other tasks for the purpose of monitoring the [3M device] and responding to genuine alleged breaches and temporary malfunctions. If the AFP were to redirect its resources it would have fewer members available to respond to referrals conduct investigations and prepare briefs for trial. If it were not possible to redirect resources and those competing demands the AFP might not be in a position to respond immediately to a notified breach. The AFP does not have a general duties policing function in New South Wales nor a local area command structure such as the New South Wales Police Force operates. In NSW the AFP's physical resources are primarily concentrated at its Sydney office headquarters. As the AFP does not have a wide spread physical presence in NSW it cannot guarantee a prompt response to suspected contraventions of bail conditions even when notified. This increases the risk that Mr Lin would have the chance to leave the jurisdiction before the AFP could respond to an apparent violation."
14. I do not accept that these assertions should carry any weight on this application.
15. A contention that a different approach should be adopted to bail applications in respect of federal offences compared to state offences because of limitations on the resources available to the AFP is inconsistent with the statutory scheme governing this application. Subsection 68(1) of the Judiciary Act 1903 (Cth) provides, inter alia, that the "laws" of New South Wales "respecting ... the procedure for ... holding accused persons to bail" are applicable to persons charged with federal offences in this State. That provision also confers jurisdiction on the courts of this State to hear and determine bail applications for persons charged with federal offences. In enacting that provision, the Commonwealth Parliament made a deliberate choice to invoke the statutory regime for bail in New South Wales that is in force from time to time when prosecutions are pending in New South Wales courts for a Federal offence. Save where express provision is made by Commonwealth legislation (see for example, Crimes Act 1914 (Cth), s 15AA(1)), it follows that the CDPP and the AFP stand in no different position to any State prosecuting or investigatory body invoking those provisions. To accept the contention that the AFP does not have the resources to allocate someone to receive information about the electronic monitoring of an offender, in circumstances where the State police can do so, would result in persons charged with Federal offences in this State not receiving equal treatment under the law. In such circumstances a person charged with a State offence that is equivalent to the Federal offence could be released on bail and subject to electronic monitoring whereas a person charged with a comparable Federal offence would not, even though their circumstances were not relevantly different and both bail decisions were being made under the same legislative provisions.
16. Further, the assertion that to impose the burden of receiving data from electronic monitoring would redirect resources from "competing demands" of the AFP fails to appreciate that monitoring compliance with bail conditions is part of the obligations that an investigative body assumes when it causes charges to be laid in this State. Every day, bail conditions are specified that impose costs and burdens on police forces, such as reporting and curfew requirements. Presumably those costs are lower than the marginal cost incurred by the State in incarcerating a person who is refused bail but they are nevertheless resources that could be allocated elsewhere. To state that the imposition of electronic monitoring conditions means that police resources have to be allocated differently than if the person had been detained in custody, only begs the question as to why the contingency of dealing with electronic monitoring was not considered in the first place.
17. The judgment in Ebrahimi was published two years ago and concerned a Federal offence. At least as far back as 2010 bail decisions of this Court included conditions providing for electronic monitoring (see Xi at [35]). Thus for a long period the AFP and the CDPP have been on notice of the possibility that bail conditions could extend to electronic monitoring. The AFP has had more than sufficient time to prepare for such a contingency. The potential cost of dealing with the receipt of such information is, and has been for a long period, a potential "cost" of conducting an investigation and then initiating a prosecution in this State.
18. Otherwise, the fact that the AFP does not have a physical presence outside of Sydney does not take the matter further, at least in this case. Mr Lin resides in Campsie and has not demonstrated any need to access areas outside the greater Sydney area. The task of monitoring Mr Lin's compliance with his bail conditions will be made easier for the AFP by electronic monitoring, rather than more difficult.
19. Other parts of Mr Sheehan's affidavits deal with the technical issues and limitations surrounding electronic monitoring, including: the risk of delay between a violation event and notification to the AFP; the potential for delay between the time the AFP is notified and its response; and the risk of various technical errors. These can be accepted and are reflected in the finding noted at [36] above, namely, that electronic monitoring does not eliminate the risk of Mr Lin absconding.

Mr Lin's Personal Circumstances

1. Mr Lin is 27 years old. He is a Chinese citizen and an Australian permanent resident. He has been living in Australia for almost ten years. No evidence was put forward concerning his work history or occupation although Mr Korn told the Court that he conducted a business of fitting "add ons for luxury cars". He has one previous conviction which was for driving a motor vehicle with a prescribed concentration of alcohol in his blood.
2. On 31 August 2013, Mr Lin married his wife, Mei Mei Lin, who is an Australian citizen. Ms Lin had two children from a previous relationship, a daughter now aged 7½ and a son aged 6½. The uncontested evidence of Ms Lin and a number of other persons, is that those children consider Mr Lin to be their father, and Mr Lin considers them to be his children.
3. A medical report from a paediatric clinic describes Ms Lin's daughter as having a "profound intellectual disability" and "autism spectrum disorder". Her mother states that she requires "constant supervision" as she often tries to place objects in her mouth or to engage in other hazardous behaviour. She is unable to toilet herself and instead uses diapers, which require changing every two to three hours. At present, Ms Lin must undertake all the supervision of her daughter, in addition to looking after her son.
4. In May 2016, Ms Lin's daughter underwent an operation on her bowel for a perforated stomach. This has caused ongoing difficulties. She was readmitted to hospital in August 2016 with a bowel blockage. In her affidavit, Ms Lin describes the difficulties she is experiencing in looking after her children while receiving only social security payments and no assistance from Mr Lin.
5. I accept Ms Lin's evidence.

Sureties

1. An affidavit sworn by Qun Qun Zheng was read on behalf of Mr Lin. Mr Zheng is a gyprocker who describes himself as a close friend of Mr Lin. Mr Zheng states that he owns his own house and has $250,000 in equity. He states he is willing to put up the entire amount as surety for Mr Lin. In addition, Mr Lin has nominated five other persons who are willing to put up substantial sureties over their own homes. The total amount proffered as surety is $1,050,000.

Criteria for Assessing Bail Concerns

1. As part of the case that cause has been shown concerns the strength of the bail proposal, I will first address the criteria in s 18(1) of the Bail Act. These criteria are being addressed in the context of the CDPP's contention that the bail concerns are whether Mr Lin will fail to appear at the hearing of the charges against him (s 17(2)(a)) and commit a serious offence (s 17(2)(b) and that the bail proposal involves the provision of substantial sureties, daily reporting, either a curfew or house arrest and electronic monitoring (s 18(1)(p) and s 20A).
2. The first criteria in s 18(1) is the accused person's background including criminal history, circumstances and community ties (s 18(1)(a); see also s 18(1)(d)). These have already been addressed. These matters point in favour of a grant of bail.
3. The second and third criteria are the nature and seriousness of the offences charged (s 18(1)(b)) and the strength of the prosecution case (s 18(1)(c)). It follows from [13] that I consider that the CDPP's case is reasonably strong although it has experienced difficulties in formulating the correct charge. Needless to say the charges are very serious. Subsection 18(1)(i) specifies that the Court must consider the likelihood of a custodial sentence being imposed if the accused person is convicted. If Mr Lin is convicted of any offence relating to the methyl amphetamine found within the 70 stools then he can expect to receive a very long custodial sentence. Even if he is only convicted of an offence relating to the methyl amphetamine found in the two stools he is likely to receive a substantial custodial sentence.
4. Subsection 18(1)(g) refers to whether a person seeking bail has "criminal associations". The above conclusion about the strength of the Crown case supports the suggestion that Mr Lin has associations of that kind. On the CDPP case he is likely to have been in contact with the overseas organisers of the importation as well as the persons to whom the methyl amphetamine would eventually be supplied.
5. These factors all combine to provide Mr Lin with a strong incentive to leave the jurisdiction. They also suggest that he may commit further offences.
6. The next relevant criteria is Mr Lin's history of compliance or non‑compliance with bail conditions (s 18(1)(f)(ii)). In this respect his compliance with his bail conditions during the period January to June 2016 is particularly significant. Throughout that period Mr Lin was on notice of the likelihood that he would be charged with an offence relating to the methyl amphetamine found in the 70 stools. At the time he was subject to bail conditions that are less strict than what is presently proposed. There is a reasonable possibility that he was subject to surveillance by the AFP during that period to ascertain if he would attempt to contact others whom the AFP suspect were involved in distributing the methyl amphetamine. If Mr Lin was determined to abscond then it is likely he would have attempted to do so during that period.
7. Subsection 18(1)(h) directs attention to the length of time that Mr Lin is likely to spend in custody if bail is refused. Subsection 18(1)(l) refers to the need for the accused person to be free to prepare for his attendance in court. Subsection 18(1)(m) refers to the need for the accused person to be free for "any other lawful reason". The period that Mr Lin is likely to spend in custody if bail is refused has been addressed above. It was not suggested that the preparation of Mr Lin's defence would be unduly hampered if he is refused bail. However it follows from [46] to [48] that he has strong "other lawful reasons" for being released.

Has Cause been Shown?

1. In submitting that his client had shown cause, Mr Korn relied on the combined effect of three matters, namely, the circumstance of Mr Lin's family, the likely period of pre-trial custody and the strength of the bail proposal.
2. In relation to the first matter, I have outlined the particular vulnerability of Mr Lin's family, especially his daughter, above. His wife and daughter have a compelling need for his presence. The existence of such compelling family circumstances can demonstrate cause (Mawad at [44]).
3. In this case, the period that Mr Lin is likely to spend from this point until the time of his trial, namely just over 12 months, is not of itself a matter that would justify a conclusion that cause has been shown especially given the seriousness of the charge that he faces and the strength of the CDPP's case. However that should be considered in the light of the events from January 2016 to this time. He was first released on bail for a period of 5 months and complied with his bail conditions. Otherwise the CDPP appears to have struggled to have identified the appropriate charge notwithstanding that the laying of more serious charges was the matter that lead to a change in Mr Lin's bail status.
4. Mr Lin's compliance with the terms of his bail during the period January to June 2016 is of particular significance to a consideration of the strength of his bail proposal. His actions during this time appreciably reduce what would otherwise be a significant risk of his absconding. When that is considered with the level of oversight provided by the proposed bail conditions it follows that his bail proposal is strong.
5. Of itself, the likely period of pre-trial custody that Mr Lin will serve does not establish cause. However I accept that his family circumstances combined with the strength of the bail proposal, when considered in light of the events of 2016, warrant a conclusion that he has shown cause why his detention for a period likely to exceed 12 months until his trial is not justified.

Bail Concerns and Bail Conditions

1. As cause has been shown it is necessary to address the bail concerns. It follows from the above that, if he is released on bail, there is a concern that Mr Lin will fail to appear and will commit a serious offence. It also follows that I consider that those risks can be reduced below a level that is unacceptable by the imposition of bail conditions.
2. One matter that was debated during the application was the interaction between any curfew or house arrest conditions and the operation of the electronic monitoring. As noted, the electronic monitoring can be configured so as to trigger a violation event alert if Mr Lin leaves a designated area. During specified times this can be reduced to the area around his residence. The difficulty in doing so in this case is that most curfew or house arrest conditions have exceptions allowing an accused person to leave the house to report to police stations, attend court or medical appointments and the like. Electronic monitoring will not be able to distinguish between a journey for these purposes and a breach of the curfew. It would be cumbersome to have violation events triggered simply because the applicant left his home for one of those reasons. This is particularly relevant to this application as a significant part of the case concerns Mr Lin providing assistance to his wife in caring for their children and it can be expected that this will include taking his daughter to numerous medical appointments.
3. The bail conditions will address this by imposing an evening curfew on Mr Lin with an exemption for family medical appointments, placing an overall restriction on Mr Lin travelling outside a 25km radius from his home and precluding him from entering within 1km of any international point of departure. The electronic monitoring can be configured to detect violations of the latter two conditions. The first condition will be subject to a usual enforcement condition which can be carried out by the AFP or local police. The evidence suggests that any medical appointments and Court hearings Mr Lin must attend to are within the 25km radius of his home. The AFP headquarters in Sydney are within that area. As noted, there was no evidence put forward concerning his work commitments.
4. Accordingly, in respect of the charges laid against Mr Lin on 12 December 2016, bail is granted on the following conditions: (1) The applicant is to be of good behaviour. (2) The applicant is to appear at Court as required. (3) The applicant is to report to Campsie Police Station daily between the hours of 7 am and 8 pm. (4) The applicant is to live at X XXX XXX, Campsie. (5) The applicant is not to be absent from X XXX XXX, Campsie between 8pm and 7am except in the presence of Mei Mei Lin and for the purpose of seeking medical assistance for himself, his wife or his children. (6) The applicant is to present himself at the front door of the premises at X XXX XXX, Campsie to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy. (7) The applicant is not to apply for any new passport or travel document or seek the return of his existing passport. (8) The applicant is not to go within 1 km of any international point of departure from the Commonwealth of Australia. (9) The applicant is not to travel further than 25 km from X XXX XXX, Campsie. (10) The applicant is to have possession of no more than one mobile telephone and one SIM card and is to notify the Officer in Charge of Campsie Police Station of the telephone number associated with that SIM card within 4 hours of receiving it. (11) **That an acceptable person enter into an agreement to forfeit $250,000 if the applicant fails to appear in accordance with the bail acknowledgment and that acceptable security be deposited as security for the payment of that amount. Pursuant to s 26(4)(b) of the Bail Act the Court deems Ms Lanfang Chen to be an acceptable person. (12) **That an acceptable person enter into an agreement to forfeit $250,000 if the applicant fails to appear in accordance with the bail acknowledgment and that acceptable security be deposited as security for the payment of that amount. Pursuant to s 26(4)(b) of the Bail Act the Court deems Mr QunQun Zheng to be an acceptable person. (13) **That an acceptable person enter into an agreement to forfeit $100,000 if the applicant fails to appear in accordance with the bail acknowledgment and that acceptable security be deposited as security for the payment of that amount. Pursuant to s 26(4)(b) of the Bail Act the Court deems Ms Jie Fu to be an acceptable person. (14) **That an acceptable person enter into an agreement to forfeit $100,000 if the applicant fails to appear in accordance with the bail acknowledgment and that acceptable security be deposited as security for the payment of that amount. Pursuant to s 26(4)(b) of the Bail Act the Court deems Mr Ashim Sunil Ranadive to be an acceptable person. (15) **That an acceptable person enter into an agreement to forfeit $100,000 if the applicant fails to appear in accordance with the bail acknowledgment and that acceptable security be deposited as security for the payment of that amount. Pursuant to s 26(4)(b) of the Bail Act the Court deems Mr Heshan Rasita Thiyambarawatter to be an acceptable person. (16) **That an acceptable person enter into an agreement to forfeit $250,000 if the applicant fails to appear in accordance with the bail acknowledgment and that acceptable security be deposited as security for the payment of that amount. Pursuant to s 26(4)(b) of the Bail Act the Court deems Mr Steven Lee to be an acceptable person. (17) Electronic monitoring: (a) Within 6 hours of his release and at his own expense, the applicant is to be fitted with an electronic monitoring system by 3M Electronic Monitoring calibrated to monitor his compliance with conditions 8 and 9. The applicant is to allow access to the premises at X XXX XXX, Campsie to technicians of 3M Electronic Monitoring. (b) The applicant is not to remove the electronic monitoring device except by arrangement with 3M Electronic Monitoring. (c) The applicant is to provide 3M Electronic Monitoring with any mobile telephone numbers or electronic email addresses nominated by the Office of the Commonwealth Director of Public Prosecutions which are to be used if it is discovered that the applicant has breached the bail conditions. (d) Within 48 hours of his release, the applicant is to provide evidence to the Office of the Commonwealth Director of Public Prosecutions of compliance with this condition. (18) Conditions 11 to 16 (marked ** with an asterisk) are designated as pre‑release requirements under the terms of s 29 of the Bail Act.

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: 31 March 2017