R v Luo

Other Materials

1. Both the Defendant and the Director also relied upon a further document during submissions and argument. That document is entitled 'Summary of Reasons for Bail Decision of Court' and is a document completed by and used by the Judicial Officer during the hearing of the First Release Application ('the Summary').
2. The Summary was obtained by the parties after the office of the Director sent an email to the Registry dated 21 February 2023 requesting a copy, and a copy of the Summary was provided by the Registry on that day.

Section 74

1. Counsel for the Defendant accepts that before the Further Release Application can be heard in this Court the Defendant must satisfy the requirements of s 74 of the Bail Act 2013 (NSW) (the 'Bail Act'). In this instance reliance is placed on s 74(3)(b) that there is 'material information relevant to the grant of bail that was not presented' in the First Release Application as follows: 1. Evidence concerning the Defendant's diagnosis of Hepatitis B and consequent need for medication and regular diagnostic tests; and 2. The availability of an increased surety.
2. Section 74 is, relevantly, in the following terms: '74 Multiple release or detention applications to same court not permitted (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a 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. (2) … (3) For the purposes of this section, the grounds for a further release application are - … (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application …'

Section 74(3)(b) - meaning of 'material information'

1. In R v Fallon (a pseudonym) [2017] NSWSC 1796 ('Fallon'), Campbell J considered the operation of s 74 of the Bail Act and the meaning of the term 'material information' in s 74(3)(b) and (4)(a). His Honour relevantly said: 1. The purpose of s 74 is to limit second and subsequent applications for bail to the same court to those which may be supported only by proper grounds, at [13]; 2. Section 74 is to be interpreted in its context in the Bail Act, and in Part 7 of the Bail Act, at [14]; 3. Sections. 73 and 74 work together to emphasise the restraint with which the court is to approach subsequent applications made to that court, at [14].
2. Concerning the meaning of the word 'material' in s 74(3)(b) his Honour said, at [15]: 'It is also well to emphasise the word 'material' where it appears in the expression 'material information relevant to the grant of bail' in s 74(3)(b) and also in s 74(4)(a), for that matter. The additional information sought to be presented will be material if the applicant satisfies the court that the outcome of the previous application might have been different had the additional information been presented then: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, at 353, by Mason CJ. This is an objective legal standard involving a mixed question of fact and law. It requires an understanding of the reasons for the refusal of bail and an assessment of whether the additional information might have made a difference to that result.'
3. The decision in Fallon was cited with approval by Harrison J in R v Mel [2018] NSWSC 1463, at [3] and [4]. See also R v Pasikala [2018] NSWSC 1458.
4. Counsel for the Defendant has taken me to the decision of Crane v Director of Public Prosecution (Unreported) New South Wales Supreme Court, 20 October 2021. In that case Hamill J was hearing a subsequent release application where s 74 of the Bail Act arose. His Honour referred to the decision in Fallon and set out the quote from paragraph [15] of that decision extracted above. His Honour then said the following, at [11]: 'Insofar as the passage quoted … above, read in isolation, might suggest otherwise, I do not accept that for information to be 'material' for the purpose of sec 74(3(b), needs to be established that the information might have changed the mind of the original decision maker.'
5. The statement of Hamill J set out in the preceding paragraph is an express disapproval of the ratio in Fallon. Counsel for the Defendant therefore submits that this Court should not follow the decision in Fallon for two reasons: 1. The ratio has been rejected by Hamill J in Crane; and 2. Bail decisions of the Supreme Court have no precedential value, and are not binding in this Court, as they are evaluative judgments limited to their own facts.
6. While the latter is true of decisions that are purely determinations applying the Bail Act to a given set of facts and circumstances, it is not the case concerning decisions that contain a discussion of legal principles and determinations of legal questions; Moukhallaletti v DPP [2016] NSWCCA 314, at [56], citing Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33]. The decision of Campbell J in Fallon plainly contains a discussion of, and a determination concerning, the meaning of the words 'material information' in ss 74(3)(b) and 74(4)(a) of the Bail Act, and it therefore binds the Court. In contrast, the decision of Hamill J in Crane contains no reasoning in support of the disapproval of the ratio of Fallon, nor does it contain any alternate meaning or construction. The decision in Crane, properly understood, is therefore a bare disapproval unsupported by a discussion or determination of the relevant legal principle, and it is, consistently with Zaiter and Moukhallaletti, not binding in this Court. For those reasons I am bound to, and will, follow and apply Fallon in the determination of this application.
7. Whilst it is strictly unnecessary to address the further submissions of Counsel for the Defendant concerning the interpretation of s 74(3)(b) if this Court does not follow the decision in Fallon, it is convenient to make the following observations. The submission is that this Court should, both in the determination of the Defendant's Further Release Application, and generally, interpret the phrase 'material information relevant to the grant of bail' in s 74(3)(b) as requiring no more than that there be not insignificant information relevant to the grant of bail that was not presented in the previous application. Counsel developed that submission on the basis that the term 'material information' is not defined in the Bail Act and accordingly should be given its ordinary meaning informed by the purpose of the Bail Act and its context in that Act. Counsel also referred to the Second Reading Speech for the 2014 amendments to s 74 which inserted the word 'material' before the word 'information' in s 74(3)(b) and (4)(a) in support of his submission that the word material is intended to mean 'not insignificant'.
8. A Second Reading Speech is extrinsic material relevant only to the interpretation of a statutory provision for the purposes and within the limits in s 34 of the Interpretation Act 1987 (NSW). Even in circumstances where it is permissible to refer to the Second Reading Speech, it is ultimately unhelpful. The ordinary meaning of the word 'significant' is important. The phrase 'not insignificant' is a tortured expression which offends the grammatical rule against double negation with adjectives and adverbs, by using 'not' before an adjective with a negative prefix. In ordinary usage the meaning becomes affirmative, but the double negation is generally and properly understood as cautionary. For that reason, the words 'not insignificant' would be read as a qualified form of significance or importance, which is an inherently imprecise formulation. The problem is well illustrated by the submission made by Counsel when I asked him during argument how the words 'not insignificant' should be interpreted and understood, and he replied that the words would capture any information that could not be properly characterised as insignificant, and which therefore fall short of actual significance, and of course information that is significant. That proposition need only be stated to recognise that it offers no clear guidance as to what information will be 'material' and that it would be difficult, if not impossible, to apply in practice. Interpreting the word 'material' in that way would not promote the express purpose of s 74 which is to limit second and subsequent applications for bail to the same court to those which may be supported only by proper grounds. With respect, the expression of the Second Reading Speech obscures rather than elucidates the proper meaning of the term 'material information' in s 74(3)(b) and (4)(a).

The First Release Application - Reasons for Refusal

1. The decision in Fallon states that to determine whether the evidence adduced in a further Release Application in the same court is 'material information' within the meaning of s 74(3)(b) requires an understanding of the reasons for the refusal of bail and an assessment of whether the additional information might have made a difference to that result, at [15].
2. Section 38 of the Bail Act requires a bail authority that refuses bail to immediately record the reasons for refusing bail, including, if bail was refused because of an unacceptable risk, the unacceptable risk or risks identified by the bail authority. The Court papers record that the First Release Application was heard in this Court and refused on 8 February 2023. There is however no transcript of the hearing on 8 February available at the hearing of this application nor could one be obtained in a reasonable time.
3. In those circumstances, both parties rely on the Summary, which records the refusal of bail and the unacceptable risks as failure to appear and the interference with witnesses or evidence. It is common ground that one reason for the refusal was a finding of an unacceptable risk of failure to appear, however there is disagreement as to whether there was also a finding of an unacceptable risk that the Defendant would interfere with witnesses or evidence.
4. A document in the form of the Summary is: 1. A document prepared and used by Judicial Officers during the hearing of a release application, and it usually contains notes and other observations made by the Judicial Officer during submissions and argument; and 2. Not an authoritative record of the reasons for decision of the Court, which are to be found in the RSB transcript or, in the case of a written judgment, the published decision.
5. In this instance the Summary was released to the parties by the Registry after a request from the Director and then provided by the Director to the legal representatives of the Defendant. A document in the form of the Summary should not ordinarily be released to the parties to the proceedings. Reliance on a document in the form of the Summary in a subsequent release application is also generally not appropriate as the document often and necessarily contains information and notations beyond the scope of the authoritative record of the reasons for decision of the Court.
6. As is the case here, where what a Judicial Officer has said is in issue, a court should not permit evidence to supplement a transcript unless there is agreement as to what was said and, where a dispute exists, the version of the Judicial Officer must be conclusive; Vakuta v Kelly (1988) 13 NSWLR 502 (CA), at 524 - 525 and 539.
7. In the absence of the transcript of the First Release Application, and in the context of a dispute between the parties concerning the reasons for refusal and identification of the risks found to be unacceptable, the notations made in the Summary are in effect the version of the Judicial Officer and must be conclusive. It follows that this application should be decided on the basis that bail was refused and there was a finding of two unacceptable risks; failure to appear and interference with witnesses or evidence.

Is the Defendant's evidence 'material information' - s 74(3)(b)

1. The evidence upon which the Defendant relies are the three affidavits referred to above, at [4]. Those affidavits concern two issues: 1. Medical information concerning the Defendant's diagnosis of Hepatitis B and the requirement for medication and consequential testing at regular intervals to monitor the Defendant for the development of known complications; and 2. An increase in the surety of $100,000, offered at the First Release Application, to $500,000.
2. Cynthia Chee Wai Yin is the Defendant's spouse, and she has sworn an affidavit on 22 February 2023. Paragraphs [1] to [14] of the affidavit depose to the personal, social, and financial circumstances of the Defendant and his family, and their dependence upon his income to meet financial and other commitments. Paragraphs [14] and [15] refer to the Defendant's health: 1. Paragraph [14] annexes a series of documents dated between August 2018 and November 2022 that report on blood tests and ultrasound examinations of the Defendant concerning his liver and Hepatitis B infection apparently as a screening process for the development of liver cancer. The last of those reports is dated 8 November 2022 and reports that the Defendant's Hepatitis B is 'under control' and suggests the continuation of existing medication and follow up ultrasound examination and blood tests; 2. Paragraph [15] is expressly based on information provided by the Defendant himself and summarises the Defendant's medical condition and requirement for ongoing screening tests.
3. Sunny Li Sheng Yang is the Defendant's brother, and he has also sworn an affidavit on 22 February 2023. The affidavit primarily concerns the provision of an increased surety and offers to deposit the sum of $200,000 as a surety.
4. Kevin Jianbin Luo is also the Defendant's brother, and he has also sworn an affidavit on 22 February 2023. The affidavit primarily concerns the provision of an increased surety and offers a security for the sum of $150,000 as a surety.
5. In placing before the Court the evidence concerning the Defendant's health, the Defendant has expressly relied upon a notation in the Summary made by the Judicial Officer who determined the First Release Application that further information about the Defendant's health could 'potentially satisfy the section 74 test'; submissions, at [11]. It is clear from the Summary that the Defendant's health was a matter raised at the First Release Application and that there was no evidence concerning that matter. The Defendant's reliance of the notation amply demonstrates the problem created, first, by the release of the Summary to the parties and, second, by reliance on a document that does not constitute the authoritative record of the reasons for decision of the Court. While Counsel for the Defendant properly accepted that the notation could not and did not bind the determination by another Judicial Officer hearing a subsequent Release Application concerning s 74, the fact remains that the notation appears to have been a catalyst for the Further Release Application based on the Defendant's health in circumstances where that issue, at least on the information now available, does not form any part of the findings of the unacceptable risks that resulted in the refusal of bail.
6. Applying the principles set out in Fallon, the issue under s 74 is whether the information now relied upon is 'material' for the purposes of s 74(3)(b) because it satisfies the court that the outcome of the previous application might have been different had the additional information been then presented. Logically, and necessarily, that means that the new information might have affected the assessment of the risks that were found to be unacceptable, and lead to the refusal of bail, and potentially have moved the assessment of those risks from unacceptable to acceptable. If it were otherwise, and the new information does not relate to the assessment of the risks found to be unacceptable at the previous application, then it could not be said that the new information might have affected the outcome of the previous application because the assessment of those risks would remain as unacceptable.
7. The evidence concerning the Defendant's health, taken at its highest, establishes only that he suffers from chronic Hepatitis B which has been adequately controlled by medication since at least 2018, and that he is at an increased risk of developing liver cancer for which he is screened at regular intervals. The Defendant does not currently suffer from liver cancer, and whether he will or will not develop it in the future is not known. The management of his current condition requires only that he receive the prescribed medication to control his Hepatitis B and undergo blood tests and ultrasound screening at the required intervals. None of those matters is beyond the scope of the service provided to people in custody by Justice Health, nor do they support conclusions that the Defendant cannot receive adequate care in custody or that he must be in the community on bail to receive his required medical care.
8. It is also not apparent to me how the Defendant's current health needs affect the assessment of the risk that he might fail to appear at court or that he might interfere with witnesses or evidence. Counsel for the Defendant made an oral submission that the Defendant's health needs are relevant to, and affect the assessment of, the risk that he will fail to appear because he requires ongoing treatment and screening, and he would not abandon the medical practitioners who have cared for him since 2018. The main difficulty with that submission is that there is no evidence to that effect, nor is there any evidence from which it might be reasonably inferred. The Defendant did not give evidence in this Application and there is no evidence to that effect in those paragraphs of the Affidavit of Cynthia Chee Wai Yin that concern the Defendant's health.
9. For those reasons, I am not satisfied that the evidence concerning the Defendant's health is 'material' information for the purposes of s 74(3)(b).
10. The remaining issue is whether the increase in the proffered surety from $100,000 to $500,000 is 'material' information because it satisfies the Court that the outcome of the First Release Application might have been different if offered at that time.
11. A surety was offered at the First Release Application and the risk of failure to appear was nevertheless found to be an unacceptable risk, and there is no indication in the material now before the Court that the amount of the proposed surety was the only or a primary factor informing that assessment. Rather, and to the extent that the Summary offers any insight, it seems that the risk of a lengthy custodial sentence if convicted was the persuasive factor.
12. The offences with which the Defendant is charged respectively carry maximum penalties of 25 years imprisonment and 10 years imprisonment. The Statement of Facts describes sophisticated, complex and planned activities to conceal the origin of, and cleanse, significant proceeds of crime that, taken at their highest, would be objectively serious examples of those offences. The possibility of a lengthy full-time custodial sentence imposed on conviction could not be discounted and that matter clearly informs the assessment of the risk of failure to appear and interference with witnesses or evidence.
13. For those reasons, I am also not satisfied that the proposed increase in the amount of the surety is 'material information' for the purposes of s 74(3)(b).

Conclusion

1. As there is no material information relevant to the grant of bail in the Defendant's evidence in support of the Further Release Application, s 74(1) requires that this Court refuse to further hear that Application, which is accordingly refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2023