Davies J, Blackmore AJ, Hulme J, Garling J, Wilson J
Source
Original judgment source is linked above.
Judgment (3 paragraphs)
[1]
Solicitors:
Ross Hill & Associates (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2018/77609
[2]
Judgment
On 26 June 2014 the applicant was arrested and charged with the following offences:
(1) Three offences of sexual intercourse without consent in 2008 with the victim known as RG contrary to s 61I of the Crimes Act 1900 (NSW);
(2) One offence of attempted sexual intercourse without consent in 2013 with the victim known as SG contrary to s 61I of the Crimes Act;
(3) One offence of sexual intercourse without consent in 2013 with the victim known as AD contrary to s 61I of the Crimes Act; and
(4) Three offences of knowingly using a listening device to record a private conversation in 2013 contrary to s 7(1)(b) of the Surveillance Devices Act 2007 (NSW).
The applicant was taken into custody on 27 June 2014 but he served the non-parole period of an existing sentence of imprisonment until 26 September 2015. He has been in custody with respect to the offences charged since that time.
The matters have been fixed for trial on 31 August 2015, 27 June 2016, 9 October 2017, 6 November 2017 and 5 February 2018. All of those trial dates have been vacated on defence applications. The trial of the matters charged has now been fixed for 30 July 2018 in the District Court.
On 20 November 2014 the applicant made a bail application in this Court but it was refused on that day by Blackmore AJ.
On 24 August 2015 the applicant again applied for bail before R A Hulme J. His Honour refused bail: Liristis v Director of Public Prosecutions (NSW) [2015] NSWSC 1258.
On 24 March 2016 the applicant made a further bail application before Garling J. Bail was refused: R v Tony Liristis [2016] NSWSC 380.
On 2 May 2017 the applicant made a further application for bail before Wilson J. Bail was refused: (Unrep. Sup Ct NSW, Wilson J, 2 May 2017).
A useful summary of the circumstances giving rise to the offences is set out in the judgment of R A Hulme J as follows:
[5] 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.
[6] 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.
[7] 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.
[8] 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.
[9] 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.
[10] 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.
[11] 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.
[12] 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.
[13] 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.
[14] 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.
[15] 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.
Justice Hulme noted also at [16] that the Crown case also includes the evidence of five witnesses, all women, who had applied for jobs with the applicant in the period 2008 to 2013. These women say that the applicant behaved inappropriately towards them as persons seeking employment. He offered them massages, asked for him to be able to take nude photographs or photographs wearing lingerie, and he made offers of escort work in Dubai. There was reference to locked gates and doors, to the women feeling trapped, and also reference to the women later being sent numerous texts that were abusive and harassing.
The present application was given a special fixture because it was estimated to take three hours, and was therefore unsuitable for being placed in the Bail List in the ordinary course. It had previously been specially fixed before Adamson J but had, at the applicant's instigation, been vacated and specially fixed today. Despite directions being made by the Registrar on 7 June 2018 that material to be relied upon was to be filed by 4pm on Monday 25 June, the applicant did not serve material until 6:30pm on 26 June 2018. He continued to serve further material up to the afternoon of 27 June 2018. This was despite the fact that four of the affidavits were sworn by him on 1st, 2nd, 3rd and 4th June 2018.
The material served by the applicant was voluminous. He read affidavits sworn 1st, 2nd, 3rd and 24th June, the last being in substitution for the earlier served affidavit of 4 June 2018. Three of those affidavits each consisted of hundreds of paragraphs with much of the material being repetitive, and lengthy annexures including days of transcript. The affidavits repeatedly made scurrilous and what would otherwise be defamatory allegations against the informant police officer, the Office of the Director of Public Prosecutions, counsel appearing for the DPP and a number of judges. It was asserted that evidence had been suppressed, destroyed and deleted from various forms of electronic storage.
Much of the material in the affidavits was given over to a close analysis by the applicant of the evidence of the three complainants with detailed attacks on their credibility being made based on inconsistencies and what were described by the applicant as exculpatory evidence.
The first matter to consider is whether the applicant overcomes the hurdle of s 74 of the Bail Act 2013 (NSW) by demonstrating one of the matters set out in s 74(3). The applicant relies on s 74(3)(c), that is, that circumstances relevant to the grant of bail have changed since the previous application was made. Four matters were initially put forward. The first is a statement by Vassili Anastasis dated 21 February 2018. That witness provided a statement on 21 February 2018 in relation to the complainant known as SG. At the time of the offences charged with respect to SG Mr Anastasis says that he was in a relationship with her.
Mr Anastasis says that he received a phone call from the applicant on either the day of or the day after SG's interview with the applicant. The applicant told him that Mr Anastasis' relationship with SG was no more, and that he was to cease and desist all contact with her. Mr Anastasis said that he subsequently spoke with SG who told him she was going to make an allegation about the applicant having sexually assaulted her. Subsequently he said this:
15. I called her and she told me certain things about the allegations she had made whilst at Nowra Police Station. I asked her, "What has been going on?"
Sarah said, "I am angry about the situation. Tony lied to me so now I am going to teach him a lesson. I have made an allegation that he sexually assaulted me".
I asked, "Did that happen?" I also told her things that Tony had told me.
She said, "It is bullshit. It's a lie. There was no rape".
I did not ask why she was making such an allegation because by this time I really did not care.
However; I could tell that Sarah was also angry with me and I presumed it was because of the enquiries I had been making about her and what she had been doing during those days.
Secondly, the applicant says that he needs to be at liberty in order to prepare his upcoming trial notwithstanding that he was given access to a laptop computer whilst in prison pursuant to the judgment of Schmidt J in Liristis v State of New South Wales [2018] NSWSC 39. He says there is support from a computer expert from the Data Recovery Centre for the need of the applicant to be at liberty to assist in the laboratories with accessing relevant encrypted data contained on the hard drives.
Thirdly, the applicant's parents are prepared to provide security being the entire equity in a property they own in Lakemba and, fourthly, he needs to be at liberty to assist his parents who are elderly and in ill health.
At 10.15 this morning the Court of Appeal handed down its judgment from the decision of Schmidt J to allow the applicant to have a laptop computer in gaol. Schmidt J's decision has now been set aside. The result is that the applicant may not be permitted to retain the computer he has been using. On one view that is a changed circumstance although at the time of the previous bail decision (Wilson J) the applicant did not have a computer in custody.
In my view the applicant establishes an exception to the s 74 prohibition. He appeared for himself at the application before Wilson J. That alone is sufficient under subs (3)(a). I consider, nevertheless, that both the statement of Mr Anastasis and what has been found by the applicant by accessing 2 of the hard drives whilst in custody mean that there has been sufficient change of circumstances for the purposes of subs (3)(c).
The offence against AD of sexual intercourse without consent is a serious indictable offence. At the time it was committed, the applicant was on bail pending the hearing of an appeal in relation to an offence of larceny as a bailee. Accordingly, the applicant needs to show cause why his continued detention is unjustified.
In his decision refusing bail, R A Hulme J said this about the applicant showing cause:
[51] 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.
[52] 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.
Justice Garling also considered whether the applicant had shown cause in the application made to him. His Honour made an assessment of the strength of the Crown case, noting that it was a relevant although not determinative factor in considering whether an applicant has shown cause. His Honour referred to the principles in JM v R [2015] NSWSC 978. His Honour said this:
[35] Weighing up all of the material, I am satisfied that the Crown case is strong. The offences charged disclose a similar modus operandi. The evidence of the five other women to be called by the Crown will provide significant corroboration of the accounts of the complainants. As well, the applicant's contention that two of the three complainants, within less than 24 hours of meeting him in the circumstances I have previously described (namely as applicants for a job), had consented to sexual intercourse with him has an air of unreality about it. In short, I simply do not accept it.
[36] The applicant is confronted, in my assessment, with a strong Crown case on serious offences. If convicted, the applicant will inevitably serve a significant term of imprisonment.
His Honour then noted that the applicant would spend about nine months in custody solely related to the current charges bearing in mind the trial date that had then been fixed. His Honour said he was not satisfied that the applicant had shown cause why his detention was not justified.
Acting Justice Blackmore did not consider whether the applicant had shown cause but he made the following assessment of the strength of the Crown case:
In my view, the Crown case here is strong. I accept that each of the allegations made by the individual complainants, if they stood alone, would not be particularly strong but when taken in combination they make out a strong case against the applicant.
Justice Wilson determined that the applicant had not overcome the hurdle in s 74 of the Bail Act and she did not, therefore, need to consider whether he had shown cause.
The applicant seeks to show cause on the basis that the Crown case is not a strong one, by the need for the applicant to be at liberty to prepare for his trial, by reason of the security his parents are offering and for the need for him to be at liberty to assist his parents.
The evidence in relation to the ill health of his parents is sparse. It consists of assertions by the applicant that his father is going through cancer treatment amongst other serious health issues and that his mother's dementia is getting much worse. No medical evidence was put forward but I am prepared to accept that each suffers from the condition asserted. However, I know nothing else particularly about why the applicant's release is needed to look after them when he has been in custody since 2014.
The offer of the security of the parents' house is simply an aspect of the proposed conditions of bail. In my opinion, although I consider that there are some unacceptable risks that need to be addressed in this matter, the appearance of the applicant at trial is not one of those risks. In that way the offer of security is not relevant.
The applicant points to the weakness of the Crown case in relation to the offences concerning AD by a recording or recordings which tend to show that what happened was consensual, as a result of the impact on the strength of the Crown case in respect of SG by the service of the statement of Mr Anastasis, and by the uncertainty surrounding the evidence of RG.
I accept, on the face of the applicant's analysis, there will be credit matters in relation to AD's evidence and allegations. In the same way, I accept that, in the light of the statement of Mr Anastasis, credit issues arise in relation to the complainant SG. Whilst RG demonstrates some uncertainty surrounding the incidents the subject of the first two charges, her evidence is clear on the third count of sexual intercourse.
However, credit was always going to be an issue with regard to the three complainants. Independently of the material now referred to by the applicant, he had always asserted that the events that took place between him and the complainants was consensual.
The applicant relies on what Blackmore AJ said about the weakness of the case if each complainant was considered separately. It is suggested that there may be an application to separate the trials and, in any event, the Crown had to show that tendency evidence could be used, both from each of the complainants and the other women to be called. The Crown has a motion to rely on tendency evidence.
I have to work on the basis that the trial of all three complainants will take place together. That is the present position. On balance it seems likely that the Crown will be able to use the evidence of each against the other.
Whilst I accept that the Crown case in relation to AD and SG is not as strong as it previously appeared, I am of the opinion that, taking into account the three individual complainants and the other evidence upon which the Crown intends to rely, particularly the evidence of the five other women who provide corroborating evidence in the sense that the applicant behaved inappropriately towards them when they applied for jobs with him, the Crown case remains a moderately strong case.
As far as the need for the applicant to be at liberty to prepare for the trial is concerned, the applicant relies on a letter from Dilip Samji who is the technical director of DRC Australia Pty Ltd dated 15 March 2018. In that letter Mr Samji relevantly says this:
We have been instructed by Ross Hill & Associate Solicitors to conduct the digital forensics services and access a number of encrypted 'Hard Disk Drives' that were supplied by the NSW Police which we have been advised are copies of 'Hard Disk Drives' of Mr Tony Liristis.
…
On or around 24th of February we were given 14 Pages of encrypted keys consisting of Bitlocker encrypted Keys and other metadata information to decrypt and access the data.
…
Our digital forensics team was unable to read the data, despite spending several weeks using different techniques and have applied different algorithms to decrypt the 'Hard Disk Drives' (HDD).
In order to expedite the data recovery process, our digital forensics team would appreciate the assistance of Mr. Tony Liristis in our lab, to unlock the Bitlocker key that he is familiar with these seized HDD disks.
The applicant relies also on another letter from Mr Samji of 22 June 2018 which says:
We advised Mr Miller and Mr Norrie that accessing the .flk encrypted folders without the assistance of Mr Liristis is "impossible"….
As can be seen, Mr Samji does not explain how the applicant could provide assistance. I endeavoured to obtain assistance from the applicant and his counsel about how it is that the applicant would be able to provide assistance in person that he could not provide by giving information to those at DRC. Explanations were given by the applicant, and I was taken to a passage from the transcript before Schmidt J, referred to in the judgment of White JA in Commissioner of Corrective Services v Liristis [2018] NSWCA 143 at [182]:
He explained the difficulty of access further as follows:
"Q. Can I understand a couple of things that flow from that. First, have you explained to DRC what you did to get that access?
A. I have put in writing to them, as best as I can, to give them a step by step. They can't access the drives. They haven't accessed one drive. The reason why they can't access that drive is because the algorithm that is associated with the drives forms part of my data of my business. Now they can't obtain access to my business records and, therefore, they can't obtain access to the algorithm that we use. Everybody has different algorithms. As I said, it's not a password where I can contact Data Recovery and say, 'Oh, yes, it's "John Peters 1"'. This is an algorithm of 128-bit, which is bitlocked. The drives are bitlocked; they are not password-protected.
Q. Have you taken steps to give DRC access to your business records with the algorithm?
A. Legal Aid have paid something - I think it was $1,600 for Data Recovery Service to come out to Long Bay Correctional Centre with Mr Greg Shumer and Mr Miller to come out and we spent all day and it was difficult for them to even bypass one of the algorithms.
The process is not just a matter of gaining the algorithms; the process - they have to gain access to my laptop and to gain access to my laptop, there's a number of encryptions that we use for our business, in other words, for my company Mercedes McLaren Racing, that is not publicly made available and Data Recovery can't access the drives because there are a number of algorithms before you access the drives.
Q. Have you taken steps to make those algorithms available to DRC?
A. yes, I have taken steps - yes, even Data Recovery Centre has come into custody with me and tried to work with me to try and gain access. They haven't obtained access. I'm the one who's obtained access to the drives and the only reason I obtained access is because of connecting it, as the State Evidence Electronic Branch states, the only way you can do that is by entering the BIOS, BIOS, bypassing the hard drive and accessing the hard drives, the external hard drives directly. That is the only way that you can do that.
Q. Can you help her Honour understand why DRC is not able to do that?
A. Certain experts can't - certain - how can I put it - there's certain people that can and can't obtain access to digital media. Everybody's got different ways of obtaining. I've been an investigator for 32 years; I know my system."
In my opinion the applicant has not demonstrated how his actual presence at DRC would make a difference to what has to be done. Nor do the letters from DRC provide that information. Moreover, it is clear that the majority of information on the hard drives is irrelevant to the issues in the trial. This is because it consists of recordings of many days other than when the complainants were with the applicant at his premises.
I agree with the Crown's submission that there is too much speculation attached to this issue including whether the hard drives will be able to be de-encrypted, when that might be able to be achieved, how long before any relevant information could be accessed, and whether and how much of it will be at all relevant. I am dependent on the applicant's statements that it will be relevant and exculpatory. I have some hesitation in accepting the applicant's evidence without corroboration in the light of convictions he has for dishonesty offences, recent custodial punishments for providing false information, and from his intemperate accusations of criminality against the people I mentioned dealing with evidence tampering.
There was evidence from the applicant about how long it had taken both to open the two hard drives that have been successfully unlocked, and how long it took to access the information on them. If that is accepted, it suggest that the de-encrypting and accessing tasks will take far longer than the time available to the trial.
In all of those circumstances, I am not satisfied that the applicant demonstrates that either his presence at the laboratory will sufficiently make a difference, or that any de-encrypted material, if it is obtained, will have any appreciable impact on the evidence to be led at the trial.
While I am not bound by the assessments made by RA Hulme J and Garling J about whether the applicant has shown cause, those determinations need to be given some weight because the offences charged have not changed. I accept that I must make the assessment based on the material I have which is, to some small extent, different from what those judges had.
In my view the Crown case is still a strong one and the period the applicant will remain in custody until his trial is quite short. I am not satisfied that it is necessary for the applicant to be released to provide assistance in relation to the encrypted material. The material I have discloses very considerable evidence available to the applicant to mount a defence to the charges based on exculpatory matters related to no lack of consent. I do not consider that the applicant shows cause why his continued detention is not justified.
Even if I had considered that the applicant showed cause I would have had serious concerns that if released he would continue to commit serious offences and that he might interfere with witnesses. In that regard, I note the Crown's allegations concerning text messages the applicant is said to have sent to the complainant RG after she left the applicant at the time of the offending, and the text messages and phone calls made to the complainant SG. I also have regard to the judgment of R A Hulme J at [34]-[36].
I note that the applicant has been twice convicted of using a carriage service to menace and has been convicted three times of stalk and intimidate. Finally, I have regard to what is contained in the letter the applicant wrote to the new witness, Mr Anastasis, on 18 October 2017 and amended on 4 January 2018. Statements such as it, "depends on what you say in court is how bad it's going to be for you" and "it's time for you to start telling the truth otherwise Vassili it's not going to be good for you and please don't take that as a threat" in my opinion constitute a threat and a pressure to the witness.
Counsel for the applicant submitted that, whilst not accepting that any abusive messages had been sent, there was no evidence that any had been sent after the applicant had been arrested and interviewed in October 2013. So much may be accepted. However, the trial is imminent. Both the applicant's affidavits and his demeanour at the bail application demonstrate that he is impassioned and emotional about what he sees to be false allegations against him. The letter to Mr Anastasis concerns me in that regard. As RA Hulme J noted at [26]-[28] of his judgment, at the time the applicant was on bonds/or bail for offences involving stalking and intimidating or using a carriage service to menace, he committed further offences of the same type. Counsel submitted that these offences were committed years ago, but they are sufficiently recent (2008 to 2013, bearing in mind he has been in custody since June 2014) and during the period of the present alleged offending, to cause concern that the applicant may similarly offend notwithstanding he is given bail.
In my opinion these risks cannot be met by bail conditions and amount to unacceptable risks.
For all of these reasons, bail is refused.
[3]
Amendments
11 February 2019 - Publication restriction removed.
06 September 2023 - Publication restriction lifted om 6 September 2023
06 September 2023 - Publication restriction lifted on 6 September 2023
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Decision last updated: 06 September 2023