Solicitors:
Office of the Director of Public Prosecutions
File Number(s): 2014/190130; 2015/234460
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Judgment
HIS HONOUR: A short time ago I gave judgment sitting as a Judge of Appeal referring a bail application brought by Tony Liristis ("the applicant") concerning two matters to the Common Law Division of the Supreme Court: see Liristis v Director of Public Prosecutions (NSW) [2015] NSWCA 261.
I will deal first with the matter that is pending in the District Court and is listed for trial on 31 August 2015 ("the sexual assault matter"). (The other matter concerns an offence of larceny as a bailee for which proceedings are pending in the Court of Appeal.) There are nine counts in the proposed indictment. Counts 1, 2 and 3 concern alleged sexual offences said to have been committed against a complainant who I will refer to as RG on 18 August 2008 at Kingsgrove. Counts 4 and 5 allege sexual offences committed against a complainant who I will refer to as SG on 2 March 2013 at Revesby. Counts 6 to 9 allege a sexual offence committed against a complainant I will refer to as AD and unauthorised use of listening device offences said to have been committed in October 2013 at Revesby.
The offences alleged to have been committed in October 2013 (count 6 to 9) are each serious indictable offences and the applicant was, at that time, on bail pending the hearing of the appeal in the second matter that is before me. That matter involves an application for bail pending judicial review in the Court of Appeal in respect of the dismissal of an appeal from the Local Court to the District Court against conviction and sentence ("the judicial review matter"). Accordingly, it is necessary for the applicant to show cause why his detention is not justified: s 16B(1)(h)(i) of the Bail Act 2013 (NSW).
The applicant made an application for bail in the Supreme Court in respect of the sexual assault matter which was heard and determined by Blackmore AJ on 20 November 2014. His Honour refused bail. By s 74 of the Bail Act, a court that refuses a bail release application is to refuse to hear another release application made by the accused person for the same offence unless there are grounds for a further release application. The grounds for further release applications are listed in s 74(3). In the present case the applicant identified a number of items of what he asserted were new material (s 74(3)(b)). I am satisfied that one of the matters that he mentioned, at least, amounted to new material, namely recordings of things said by the complainant of the October 2013 alleged offences that he only received on 10 August 2015. Accordingly, I am not required to refused to hear the application.
As briefly as I can state them, the facts of the matter, according to the Crown in relation to the offences alleged concerning the first complainant, are that in August 2008 she applied for a job as a personal assistant or secretary at Mercedes McLaren Racing, having responded to an advertisement on Gumtree. She attended the applicant's business premises, supposedly for an interview. It is alleged that he massaged her and then committed various forms of sexual assault without her consent. The complainant rang a friend on her journey home and complained. She says that she later received texts from the applicant threatening her not to say what happened. That night she rang the police. She was medically examined. From material derived during that examination, it was found that DNA from the applicant was confirmatory of the sexual contact.
On 10 December 2008, the complainant said that she did not wish to pursue the matter as she was overwhelmed. She asked the police not to pursue an investigation and prosecution. On 31 October 2013, she made a further statement in which she indicated that she was now willing to proceed. The applicant was interviewed by police on 26 June 2014 in the course of which he denied knowing the complainant and denied the offences.
In relation to counts 4 and 5 which concern the complainant SG, she too responded to an advertisement for a position as a personal assistant with Mercedes McLaren Racing. She attended an interview and was told to return the next day, but she did some research in the interim about the applicant and became concerned. She did not return. There followed a number of texts and phone calls from the applicant and he convinced her to return. She did return that evening but she was accompanied by a friend. Nothing of relevance seems to have occurred on that evening. The following day, she sent text messages to the applicant seeking work. She went to his business address. He is said to have somehow managed to persuade her to sleep at the premises.
Over the course of the night or the next morning, it is alleged that he attempted to have sexual intercourse with her without her consent and indecently assaulted her. After she left the premises, she complained to a friend, including saying that the applicant had locked her in his workshop and attempted to have sex with her. She says that she then received a number of phone calls from him which were abusive and he threatened to ruin her life. She also received abusive text messages. There was also apparently an abusive message by way of Facebook.
On 26 August 2013, the applicant participated in a police interview. He admitted knowing the complainant, albeit by a different surname, and claimed that there was sexual contact but that it was consensual. He accused the complainant of being a drug supplier, a thief and a pathological liar.
The final group of offences which are said to have occurred in October 2013 involve one count of sexual intercourse without consent and three counts of using a listening device to record a private conversation. The Crown case is that a 16 year old female applied for a modelling position with a company called Corporate Models Inc which was advertised on Gumtree. She was persuaded to send her resume and some photographs. Ultimately, she attended the applicant's premises at Revesby for an interview. Without going into the detail, at some stage on 18 October 2013 when she was at the applicant's premises, she claimed that he committed various forms of sexual assault. He told her that she enjoyed it, but she protested it was like having sex with her father. The applicant drove her home and threatened her and said he had a recording and some footage of all conversations at the premises and in the car.
The applicant persuaded the complainant somehow to leave her bag and her phone in his car. She recovered the bag and the phone the following day. On that day she also reported the matter to police and was taken to hospital for a medical examination.
The applicant was arrested on 21 October 2013. He told police that his company, Mercedes McLaren Racing, was not operating currently and was to be "launched" on 1 January 2014. He denied sexually assaulting the complainant. He referred to her as a "woman scorned". He claimed she initiated sex and then they had various forms of consensual sex. He denied knowing she was 16. He played to police recordings of conversations with the complainant in which she said, in effect, that she was not raped.
The police took possession of the applicant's phone and he was released without charge. Upon examination of the phone, police found a text purportedly sent from the complainant's phone at 10.11am on 19 October 2013 that is, when the phone was in the applicant's possession, in which the complainant purportedly said how much she enjoyed having sex with him; she wanted to leave her boyfriend; and she expressed her love for him. The police note that the complainant's phone from which the message had been sent had had the message deleted.
On 2 January 2014, the complainant was further interviewed and she produced to the police a number of emails. The police played to her the phone recordings made by the applicant and she offered an explanation to the effect that just after the assault she was scared and suffering panic attacks. She only told the applicant that he had not raped her to appease him and she had done certain other things wanting him to believe that there was no trouble and to persuade him to take her home as soon as possible.
The statement of facts notes that at the time of the offence all the gates and doors were locked and the complainant would not get out unless he let her. There is also reference to a DNA match on a high vaginal swab.
The Crown case apparently also includes the evidence of five witnesses, all women who had applied for jobs with the applicant in the period 2008 to 2013, or in 2008 and 2013, it is unclear which. But all of them apparently say that the applicant behaved inappropriately towards them as persons seeking employment with him. He offered them massages, asked for him to be able to take nude photographs or photographs wearing lingerie, and there were offers of escort work in Dubai. There is reference to locked gates and doors and feeling trapped and also reference to the women later being sent numerous texts that were abusive and harassing.
The facts allege that there was no evidence of any legitimate business operating from the applicant's premises. There is reference to Fair Trading having checked the companys' websites and they did not appear to perform any work and existed in name only. Apparently McLaren Racing in England have advised that the applicant did not have permission from them to use their name. The Australian Taxation Office did not have any record of employees of the companies. The contention of the Crown is that the applicant created the companies to advertise positions to lure female applicants with the intent to have sex with them. Finally, there is reference to the police having seized certain computer equipment from the applicant but which they found could not be examined because of encryption upon the devices.
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.
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.
The defence case, in summary, is that the businesses were legitimate. In relation to the second and third complainants, the sexual activity was entirely consensual. It is, in effect, that the women in those matters, who were at the time aged 22 and 16 respectively, were so taken with the man who was about twice their age, almost three times in the last case, that they willingly engaged in sexual intercourse with him after having only just met him.
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.
Of course the applicant's position is that the Crown case is not strong at all and lengthy submissions, both in writing and orally, have been made, somewhat repetitively, seeking to show that each of the complainants' credibility is suspect. They had each, on various occasions, said things that are quite inconsistent with them having been sexually assaulted as they allege. It will be the defence case at trial that the jury would not accept the word of any of the complainants. As a consequence, it is contended that the prosecution case is weak and would not satisfy any jury beyond reasonable doubt of his guilt.
The Crown contends, on the other hand, as seems to have been accepted by Blackmore AJ, that the strength of the Crown case more lies in the combination of the evidence of three complainants, who did not know each other, all complaining about sexual assaults carried out in very similar ways by the same man.
The applicant has a record which is lengthy but needs to be closely analysed because it is not as bad as it first appears. He was first charged with a criminal offence in 1988 when he was 23 years old. He is now 51 I think. Notable entries on the record include an attempt to obtain a financial advantage by deception, which was dealt with in 1990 with a three year recognisance. There was an assault occasioning actual bodily harm in 2002 which brought a three year bond. It appears to have been domestic violence related, given the conditions attaching to the bond.
The applicant committed the offence of perjury in 1999, which involved him swearing a false affidavit in relation to a costs dispute with a solicitor. A retrial was ordered by the Court of Criminal Appeal in 2004 but he was convicted of the offence in 2005. I do not know whether that followed a plea or a verdict, but he was sentenced to four months' imprisonment which was suspended upon him entering into a bond.
There was a group of offences committed on 28 October 2008: use carriage service to menace, harass or offend, publish indecent article and stalk/intimidate, for which he was sentenced on 23 July 2010 to imprisonment. On appeal, on 6 December 2011, the sentences were quashed and replaced by two s 9 bonds for three years and one s 12 bond for one year. I note that the three s 9 bonds were current at the time of the offences allegedly committed in March and October 2013.
A fortnight later, that is on 13 November 2008, the applicant committed offences of the very same nature. He was sentenced on 23 July 2010 to imprisonment which on appeal, on 6 December 2011, was quashed and he was placed on three s 12 bonds; that is suspended sentences of imprisonment for one year, two years and two years respectively. I note that those bonds were also current at the time of the March and October 2013 alleged offences.
Then on 10 June 2009, he committed another offence of stalk/intimidate for which he was sentenced to community service for 100 hours. An appeal against that was dismissed. I note that he was on bail for the previous two groups of matters at the time of committing that offence.
There was an assault committed on 18 November 2009, for which he did not appear in Court. On 18 May 2010 an arrest warrant was issued. On 21 July 2011, he was placed on a s 9 bond for four months and a subsequent appeal was dismissed.
Six days after being placed on that bond, that is on 27 July 2011, he was charged with two matters of drive whilst disqualified and one matter of stating a false name. On 21 March 2012 he was given fines and disqualification and on appeal on 20 June 2013 he was given a s 10 dismissal.
On 8 December 2011, he was charged with the larceny as a bailee matter, which is said to have occurred between 5 November 2009 and 10 January 2010.
Finally, the applicant has another outstanding matter, which is listed for hearing at the Bankstown Local Court on 2 October 2015. He is not on bail in respect of those matters. They are offences alleged to have occurred in August and October 2013, that is when he was the subject of s 9 and s 12 bonds and was on appeals bail in respect of the larceny as a bailee matter.
Apart from the above mentioned breaches of bail and bonds and not being before the Court, I note also that his record discloses that he was placed before the Court for being in breach of bail on five occasions in 2004, 5, 6, 8 and 9.
In relation to the applicant's claim that he would not interfere with witnesses or, in particular, the complainants in the sexual assault matters, I note particularly the matters that occurred in October and November 2008. He was on bail in respect of the first of those two groups of matters with a condition that he have no contact, et cetera, with the complainant. Previously when the police had executed a search warrant, they had seized sexually explicit videos and still images of the complainant, that is on 21 August 2008. The police were required to return a copy of those by some order of the Supreme Court on 19 September 2008 and when the applicant complained that he didn't have a copy of the material, the police provided him with another copy on 28 October 2008. Three days later, on 1 November, he went into a post office and bought a money order with a false name and address but his image was captured on CCTV. Three days later he bought the website, "www.[complainant's name].com", using the same false name and address. He uploaded the sexually explicit videos and pictures of the complainant and, on 8 November, sent her a text message from a phone subscribed with a false identity telling her to "Check out your new website, you fucken slut". She did and she found the items and alerted police.
The applicant was arrested on 13 November and interviewed. He denied knowledge of the matter and claimed he did not even know how to obtain a money order. He was confronted with the CCTV footage and then said he "now remembered" that he went into a post office to buy some envelopes. After the interview, he apparently told police that he was forced by offenders from an armed robbery to go into the post office and get the money order. He was placed before court for a breach of bail as well as being charged with the second group of offences.
That matter raises a very real concern about the capacity of the applicant to be vindictive to the extent of interfering with the victim of an offence committed by him.
In support of his application today, the applicant, at considerable length, has sought to make a number of points and, without being exhaustive, they include that he is not shown to have interfered with any of the three complainants in fairly lengthy periods at which he has been at liberty and aware of the nature of their allegations. He notes that there are allegations that he had sent threatening text messages to complainants after the alleged commission of offences but none had been served upon him by the prosecution.
Reference was made to evidence given in other proceedings in which there was inconsistent evidence given by at least one of the complainants, I think more. So, in effect, his case is, on this application, that the prosecution case is not strong; each of the complainants have serious credibility issues such that they would not be believed.
The applicant referred to diagnoses made by two psychiatrists that he suffers from post-traumatic stress disorder, anxiety and adjustment disorders.
Reference was made to his business premises in respect of which rent has not been paid for a considerable period of time and he has a large amount of property stored in the premises. The landlord has been exceedingly patient in relation to the unpaid rent situation, but he has been given to understand that if he does not get bail and remove the items from the premises in the very near future, the items will be taken off and sold at auction. There was much evidence given about what needs to be done in order to remove the property and what, if any, attempts he had been making or not making to get other people to do it for him, but I am not going to recite the detail of it.
Reference has been made to the difficult circumstances that attend the transport arrangements for travel between Parklea Correctional Centre and the courts.
The applicant relies upon asserted damage to his business if he is not granted bail, including the situation I mentioned a moment ago, and also the inability for him to engage with other legal proceedings in which he is a party.
It is difficult for him in custody to prepare for his various legal cases, in having access to equipment and he has complaints about deletion of files from a USB stick, which had stored upon it a quite detailed analysis of various legal documents.
The applicant referred to his asserted mental, psychological and emotional distress of being in custody, which accelerates his conditions diagnosed by the psychiatrists and other aspects of the circumstances of his custody, such as being housed in a cell with a paedophile, and he himself having been assaulted as a result of untrue accusations that he too was a paedophile.
He complains that he has not received medication for his mental conditions for almost a year; nor has he seen a psychiatrist as has been recommended by a nurse. He referred to having in recent weeks a cold or perhaps bronchitis and a nurse had told him he needed to see a doctor, but he has not. He had not received ear plugs that he sought because his cellmate snores.
I have listened carefully to his lengthy evidence and reviewed the documents that he has provided, but I think that suffices to describe the nature of the case he has sought to advance.
There are a number of difficulties in accepting some aspects of the applicant's evidence. He does appear to be somewhat reckless on occasions in answering questions. Early in his evidence he was reading to me what he claimed and confirmed was a court transcript, but when he tendered the document it was clear that the document was not a court transcript at all but a document he had prepared which purported to contain his typed extracts from a transcript, the accuracy of which I am not able to assess.
I raised with him the question of claim he made quite stridently before Blackmore AJ last year that he had never been put before a Court for breach of bail on any occasion. He repeated that a number of times in those proceedings in terms which were not qualified at all. When that was raised with him today he qualified it by saying, "not that I recall".
The applicant's credibility is also attended by a question mark, having regard to the perjury conviction to which I have referred. His explanation to the police about the money order in November 2008 also raises questions about his veracity.
The DPP has submitted that there is no cause shown why the applicant's detention is not justified, and even if it is shown in the applicant's favour, it is contended that there are unacceptable risks, particularly in relation to the commission of further serious offences or the endangering of the safety of victims, individuals or the community, or in the interference with witnesses or evidence: ss 19(2)(b), (c), (d).
I am doubtful that cause has been shown, notwithstanding the submissions that have been made by the applicant, and I bear in mind that he was representing himself. The overall impression given by the evidence is that the applicant is a manipulative and vindictive person whose credibility is, at times, questionable. Whilst I am doubtful that cause has been shown I have gone on to assess whether there are unacceptable risks. In short that involves an assessment of bail concerns and a consideration of the matters specifically mentioned in s 18 of the Act, particularly in the light of the conditions that could reasonably be imposed that might address the bail concerns.
As to the accused's personal circumstances I understand, from the evidence, that he has family ties including his parents who are old and of ill health. He also has children, three of them, and another aspect of his personal circumstances is his criminal history which I have been through. The nature and seriousness of the offences is obvious from what I have said thus far in relation to the sexual assault and listening device matters. My view is, as I have indicated earlier, that the prosecution case is quite a viable one.
The accused does have a history of violence but it is relevantly insignificant, being confined to an assault in 2002. He has previously committed at least one offence whilst on bail, although whether that amounts to a serious offence I am doubtful; it is a matter of stalk/intimidate in June 2009. I will err on the side of caution in relation to that in his favour.
He does have a history of non-compliance with conditional liberty that I set out earlier in my review of his history.
The length of time that he would be in custody if bail is refused in respect of the sexual assault matters is less than seven days until his trial is due to start. The trial will take some time. That means that the period is not at all lengthy. If, for some reason, the trial does not proceed and it is to be deferred for some lengthy period of time the matter might need to be reviewed.
The applicant claims that he has a need to be free to prepare for his appearance in Court and no doubt to engage with his lawyers. I note that he has legal representation in relation to his trial matter, although he claims that he has only just been allocated a solicitor and counsel is yet to be briefed. That seems somewhat surprising given the trial date.
He also has a need to be free for other lawful reasons he asserts, particularly in relation to the removal of material from his business premises which he says he needs to attend to personally, although he acknowledges that he cannot do it by himself.
The police attitude towards his conduct towards the complainants is such that they have concern that he has demonstrated a tendency to intimidate victims and witnesses including in the past by obtaining ADOs and PVOs against them. The November 2008 incident shows an attempt to intimidate a victim. The text message which he purported to send to himself from the complainant's phone in 2013 also is a matter of concern.
I am left in a position where, even if cause has been shown, notwithstanding the sort of conditions I have in mind that could be imposed and notwithstanding the relatively short period of time until his trial, that there is an unacceptable risk of the applicant committing a serious offence or interfering with witnesses or the evidence and perhaps even endangering the safety of individuals given the seriousness and nature of the offences that are alleged against him and in the light of his history.
In relation to the sexual assault matter my conclusion is that bail must be refused.
In relation to the larceny as a bailee matter, I have mentioned that it is said to have occurred in November 2009 to January 2010. It was alleged that the applicant was the bailee of a Mercedes S350 sedan which was the property of a Mr Peter White. The vehicle broke down and the applicant apparently agreed to take it and get it repaired. A dispute arose; the applicant was not a licensed repairer. He refused to return the car. He ultimately raised what he called a repairer's lien and/or a claim of right. The claims were rejected by both the magistrate and the judge presiding in the District Court. Both of those judicial officers, in rejecting his claim, were critical of the applicant's credibility.
Judicial review in the Court of Appeal is sought on grounds including that the District Court judge in dismissing his appeal against conviction disregarded an element of the offence, that is that the taking of the property needed to be fraudulent. There are also sundry other asserted errors.
Because of the limited material placed before me it is difficult to reach a definitive view about the applicant's prospect of success although there is some force in the submission by Mr Kell on behalf of the Director for Public Prosecutions that there have been two judicial determinations against the applicant in relation to the issue and I accept, on my reading of the judgment of Finnane DCJ that whilst he might not have used the term fraudulently explicitly, it is implicit in the conclusions he reached that he accepted that the applicant's behaviour was fraudulent.
I note that the non-parole period of the sentence for this matter is to expire in about a month's time but then the applicant is in custody in relation to the sexual assault matter so there is no utility in referring further to this matter.
Bail is refused in respect of the larceny as a bailee matter as well.
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Decision last updated: 09 September 2015