R v Xi

Delay

1. The applicant was taken into custody on his arrest on 25 May 2015 and has been incarcerated since that time. The case is still before the Local Court and subject to an order that the brief of evidence be served by the prosecution on or before 5 November 2015. It appears that the brief will not be served by that time, and that the police will not comply with the brief service orders. However a letter from the officer in charge of the police investigation suggests that the outstanding parts of the brief will "be served prior to December 2015" and that "three quarters of the brief" has already been served.
2. In view of what is known of the lists in the courts in which the committal proceedings and trial will take place, it is unlikely that the applicant will receive a trial date before the second half of 2016. If bail is refused, the applicant will spend well in excess of one year in custody pending the resolution of these criminal proceedings. It may be that the remand period will approach 18 months or 2 years.
3. That is a significant delay and one which bears upon the question of whether the applicant has shown cause pursuant to section 16A. Nothing in the many reforms to the bail legislation since 2001 changes the force of the remarks of Sperling J in Cain (2001) 121 A Crim R 365: "The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights".
4. See also his Honour's comments in Iskandar [2001] NSWSC 7; 120 A Crim R 302.
5. The delay is also a relevant consideration if I come to consider the bail concerns raised by the Crown and whether those concerns are "unacceptable risks" for the purpose of s 19 of the Bail Act. The length of time that an applicant for bail is to spend in custody is a matter specifically referred to in the exhaustive list of factors to be considered in deciding whether any bail concern identified under s 17 constitutes an unacceptable risk under s 19: see section 18(1)(h) Bail Act.

The applicant's disabled son

1. A significant matter raised on behalf of the applicant concerns the fact that he has a seven-year-old son [Child's name - Redacted] who suffers from severe disabilities resulting from a medical condition known as spastic dystonic quadriplegia cerebral palsy. A body of evidence concerning this matter was tendered at the bail hearing. He also suffers from epilepsy and it seems an intellectual disability. The applicant's father (Zhongyuan Xi) provided an affidavit in which he indicated that the applicant was the "almost exclusive" carer for [Child's name - Redacted]. Mr Xi also deposed that the child's mother "packed up and left for China almost 2 years ago". Before she left she made no secret of the fact that she was not coping with the mounting pressure of looking after [Child's name - Redacted]. There is another son [Child's name - Redacted] who was diagnosed with autism. The applicant's wife took [Child's name - Redacted], but not [Child's name - Redacted], with her when she left for China.
2. The applicant's father says that the child, in spite of his severe disability, recognises his father and is suffering as a result of his absence. For example, he used to eat very well when fed by the applicant. However he has lost his appetite since the applicant was taken into custody. The applicant's parents are caring full time for [Child's name - Redacted]. They have had some medical issues of their own. The father had a stroke in 2006 and has polyps in his gallbladder and colon. The mother has had a series of medical conditions including hypertension, fainting and palpitations. Medical reports from a Dr Lin describe the applicant as the main carer for his parents. Neither of the applicant's parents has a driver's licence. This makes it difficult to transport [Child's name - Redacted] to the many medical appointments that he is required to attend. Mr Xi says that they have significant problems bathing [Child's name - Redacted] and have to do this together whereas the applicant was able to bathe the child without difficulty on his own. This was a task always undertaken by the applicant prior to his incarceration.
3. The medical records, doctor's reports and Mr Xi's affidavit speak eloquently to the fact of the condition, the difficulties which have attended its treatment and the extremely onerous circumstances thrust upon the applicant's parents since the applicant was arrested.
4. On the hearing of the bail application, the child was present in court in a purpose-built wheelchair. This was presumably done to demonstrate the nature and extent of his disability. This was hardly necessary given the extent of the documentation setting out the detail of his medical condition and his grand-father's affidavit. I trust that bringing [Child's name - Redacted] to the court had no harmful effect on him. I was able to observe that the child is greatly loved by his grandparents. When, at times, he appeared to be in distress, his grandfather was able to settle him, and calm him, in the gentlest way. The child is fortunate to have such loving and devoted grandparents.
5. There are occasions when it is necessary for a tribunal of fact to observe the nature of an injury or disability. This happens, often enough, in personal injury and criminal cases where the nature and extent of the injury or disability is a fact in issue. When this is necessary, the appropriate course is to make it clear and explicit that a demonstration is taking place. This enables a proper record to be kept, ensures procedural fairness and dispels the appearance that an attempt is being made to engender sympathy in the tribunal.
6. The police facts sheet indicated that the applicant travelled to China recently (relative to the date of the charge). This was not challenged and there is no evidence as to whether the child went to China and, if not, who was looking after him during that time. Nor is it clear who was taking care of the child when, on various occasions during late 2014 and early 2015, the applicant was subject to police surveillance.
7. However, there is no doubt that the disability suffered by the child is an extreme one and I accept the evidence of the applicant's father as to the difficulties surrounding the care of the child in the applicant's absence. The child would be far better off if his father were not in custody and if the applicant was available to share what is undoubtedly a heavy burden of caring for a child with such a severe disability.
8. In R v Mawad, Beech-Jones J (with whom Gleeson JA agreed) concluded that cause had been shown because of the "particular vulnerability of his family in [the applicant's] absence". However, bail was refused because the majority considered there to be unacceptable risks of further offending (see para [48]). Adams J (dissenting in the outcome) would have refused the detention application and granted bail largely for the reasons that I gave in granting a release application while sitting in the bail court: see R v Mawad [2015] NSWSC 1237. The family circumstances in the present case are easily as compelling as those that existed in R v Mawad.

The strength of the prosecution case

1. A second factor urged upon me by counsel for the applicant concerned an assessment of the strength of the prosecution case. In that regard the prosecution tendered as part of exhibit A an 18 page statement of facts. I accept the applicant's submission that the extent of the applicant's involvement is not made entirely clear by that statement of facts. However, it is clear (and appears not to be disputed) that he was present from time to time with other persons allegedly involved in the drug transactions.
2. On 27 November 2014, the applicant was observed to drive two other accused men to and from a location where they met with an undercover operative and exchanged a bag containing around 1kg of "ice" for $170,000.
3. In the course of a number of days in January 2015, negotiations were taking place between (at least) two co-accused men and undercover officers concerning the supply of 10kg for $1.6 million. During the course of those discussions, one of the apparent principals was seen at the applicant's home. On 16 January 2015, the co-accused were shown $1.6 million of "pre-recorded buy money" and there was discussion of the possible delivery of the drugs in 5 x 2kg lots. On that day the applicant was seen to carry a bag to a meeting with the co-accused at premises in Bankstown and to leave without the bag. Some time later he returned and left with the bag. The prosecution will ask the jury to infer that he had delivered 2kg of Ice to the co-accused for the purpose of the proposed transaction. It seems those supplying the drugs withdrew from the arrangement and that no actual supplies took place.
4. After his arrest, the applicant's bedroom was searched. There was a backpack containing 1kg of methylamphetamine found in a heat sealed foodsaver bag. There were also electronic scales, a heat sealing device and a "cream wafer tin" said to be "identical" to a tin that had been used back in November 2014 to transport 25 grams of "Ice" provided to a "civilian participant" by a co-accused at the beginning of the series of transactions. Certain pages of the 24-25 May 2014 edition of the Australian Chinese Daily were found - ie pages 3, 4, 5, 6, 7, 8, 13, 14, 15, 16, 17 and 18. On the same day, a search of premises in Balmain uncovered 317.6 grams located in a heat sealed food-saver bag along with pages 9 and 12 of the 24-25 May 2014 edition of the Australian Chinese Daily. The prosecution will ask the tribunal of fact to draw an inference that the applicant supplied the drugs found at Balmain.
5. Mr Lange mounted an argument that it may be possible to raise what is sometimes referred to as a "Carey defence": see, for example, Carey (1990) 20 NSWLR 292; R v Frazer [2002] NSWCCA 59; 128 A Crim R 89. In those cases, it was held that holding drugs with the intention of returning the drugs to their true owner did not meet the description of "supply". I do not understand the applicant ever to have suggested that this was his intention and there is no evidence in the material before me to give rise to such an inference. Even allowing for the onus and burden of proof, these submissions strained credulity. While I accept that there may be a lively issue as to the precise role of the applicant and the extent of his knowledge, I do not accept that the factual material before me gives rise to an argument that the applicant was no more than an innocent holding onto drugs to return to the true owner.
6. However, the fact remains that the applicant is presumed to be innocent and that none of the provisions in the Bail Act does violence to that fundamental premise at the cornerstone of the criminal justice system: see for example JM v R [2015] NSWSC 978 (Garling J) at [34].
7. I accept that the statement of facts may be thought to show that the applicant's involvement was such that arguments could be raised as to the state of his knowledge. However, my assessment of the limited material available is that the prosecution case is a strong one. This is especially so in relation to the drugs found in his room (1 kg) and the drugs found at the premises of Nguyen in Balmain (317.6 grams). It is not as strong in relation to the actual supply (998g) on 27 November 2014 and the proposed supplies totalling 10 kg discussed by the principals between December 2014 and January 2015. However, even in those instances where the prosecution case is less compelling, it could not be described as weak.

Mitigation of the risk of non-appearance

1. The applicant concedes that the seriousness of the charges, strength of the case and the applicant's connection to China give rise to concerns that he will not appear. It is also accepted that this is a very relevant consideration in determining the show cause issue. However, it is contended that a number of factors working together make it likely that he will appear and that this, in combination with the other factors, support the proposition that he has shown cause why his detention is not justified. Further, it is submitted that the strength of the bail conditions that can be imposed mitigate the risk of non-appearance and that (for the purpose of s 19) it is not an unacceptable risk.
2. I re-iterate that in dealing with this matter in this order, I am not falling foul of the Court of Appeal's entreaty that the two tests (show cause under s 16A and unacceptable risk under s 19) not be conflated. An assessment of the likelihood of appearance must form an important part of an assessment as to whether or not an applicant has shown cause why the detention is not justified.
3. The applicant contends that he has strong ties to Australia and specifically refers to the fact that his disabled son and his parents are resident in Australia. The son is under the care of specialist doctors in Australia and is enrolled in a special school designed to meet his needs.
4. Mr Lange submitted that bail conditions could meet the concerns that the applicant may take flight. Those conditions include the surrender of his passport, a curfew condition amounting to house arrest subject to various exceptions, daily reporting conditions, self-surety (without security) of $15,000 and a surety by way of $150,000 cash deposit by an acceptable person.

Electronic monitoring

1. In addition to those conditions, the applicant puts forward the somewhat novel proposition that he be subject to electronic monitoring. The condition proposed was that: "Prior to being admitted to bail, the applicant is to be fitted with an electronic monitoring system."
2. For reasons that I will identify, that is not an available condition under the terms of the Bail Act. However, that is not to say that the concept of electronic monitoring might not, in an appropriate case, form part of the conditions that mitigate the risk of flight.
3. Such technology is not new to this court. Electronic monitoring is often used as part of a court imposed supervision order for serious sex and violent offenders: see Crimes (High Risk Offenders) Act 2006 (NSW) and, for example, State of New South Wales v Anderson [2015] NSWSC 1515 at [40] and [43]. However the nature of the jurisdiction under the Crimes (High Risk Offenders) Act is very different to the jurisdiction exercised under the Bail Act. Further, in the high risk offender cases, the State is the moving party and undertakes the setting up and monitoring of the electronic monitoring equipment. Accordingly, there is no issue surrounding the imposition of conditions on third parties. The Bail Act makes various specific provisions as to the nature of conditions that can be imposed.
4. Nevertheless, under the Bail Act 1978 (NSW), this Court has made bail conditional upon the applicant being subject to electronic monitoring. In R v Medich [2010] NSWSC 1488, Price J included the following conditions: "(n) He is to submit to electronic monitoring to be undertaken by Abakus ElmoTech Pty Limited monitoring device to be fitted by the authorised representative of Abakus ElmoTech Pty Limited prior to accused being released from custody. (o) Abakus ElmoTech is to notify any mobile number or electronic email address nominated by the Office of the DPP of any breaches of bail conditions (c) and (e)."
5. Conditions (c) and (e) included a curfew to his home address and a requirement that he stay within certain geographical boundaries by reference to a map annexed to the conditions.
6. Counsel was unable to take me to any case under the 2013 Act where electronic monitoring was imposed. The restrictions on the imposition of bail conditions in the 1978 Act (see ss 36-37 as they existed in 2010 when R v Medich was decided) are in different terms to those that exist under the current legislation (see ss 20A, 23-30). However, with one exception, there is no prohibition in either statute on the imposition of the kind of condition fashioned by Price J in R v Medich. The one exception is that s 29 of the current Act would not permit the requirement for electronic monitoring to be fitted prior to release. Section 29 permits four specified requirements ("and no other requirements") to be imposed as pre-release requirements. I would also be reluctant to impose a condition such as (o) on a third party and doubt whether such a condition is available under the Act.
7. I was referred to the comments of Beech-Jones J in R v Ebrahimi [2015] NSWSC 335: "31. An unusual aspect of this application is that the applicant puts forward, as a possible bail condition, his preparedness to not only comply with a system of electronic monitoring but to supply that system and meet its cost. Evidence was received from Mr Paul Keen. Mr Keen is a director of a company that is the distributor for an electronic monitoring and tracking system which is specifically designed for the criminal justice system. He explained in some detail the use of the systems in jurisdictions outside of New South Wales. He stated that, if bail was granted and the system was implemented, it would involve one of the representatives of his company attending at the gaol from which the applicant would be released and placing on his ankle or wrist a watch-like device. Under this system the applicant would also be required to carry a device that was effectively a modified mobile phone. 32. Mr Keen explained that the monitoring system can be calibrated so as to set off an alarm if the applicant either moved outside a specified inclusion zone or moved into a specified exclusion zone. Mr Keen explained that, if a so-called violation event occurred, then an electronic message would be automatically generated and sent to an officer of his company as well as any police officer who was listed with this company as responsible for the supervision of the applicant's bail. It was apparent from Mr Keen's evidence that a person who has a monitoring device can easily remove it. However, any attempt to do so or to tamper with the device generates a message of the kind that I just referred to. One potential technical limitation of the device is that the system of monitoring is dependent upon the adequacy of the local mobile phone coverage and GPS satellite system. 33. The Crown tendered a letter from an Assistant Commissioner of Police. The Assistant Commissioner expressed some concerns about the use of untested monitoring devices in bail applications. One matter noted was the lack of any legislative scheme to enable this to occur. The legal context in which this is being considered is, as I have stated, the Bail Act. The Bail Act does not authorise the Court to impose obligations on third parties. However, it is not unknown in bail applications that the Court will make its own assessment as to the willingness and capacity of some third parties to provide supervision of persons on bail. The most obvious example of this is residential rehabilitation services. Otherwise there is nothing in the Bail Act that precludes the Court from concluding, in a particular case, that persons providing electronic monitoring systems are both honest and have the capacity to provide some degree of comfort as to the whereabouts of an applicant for bail and their compliance with bail conditions. 34. In this case, the approach I take is that the electronic monitoring proposal put forward by the applicant mitigates the risk of him absconding. However, it certainly does not eliminate it. 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 as referred to by Mr Keen 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."
8. In the present case (like R v Ebrahimi) evidence was provided by Mr Paul Keen. Mr Keen was previously the Director of Abakus, the company nominated to conduct the electronic monitoring in the case of R v Medich. Mr Keen explained that the cost to the applicant to have the system installed for a 12 month period is $18,000 and explained the way in which the system is installed and the method of monitoring. He explained the nature of the technology available to ensure that a person such as the applicant remains within certain geographical zones. If the applicant was to move outside of those zones, or if he was (for example) to approach within a certain distance of an international point of departure, the electronic tracking system would notify the "central monitoring system" for investigation. If a breach occurs a nominated police officer will be informed. The police would also receive a daily report of the person's movement and compliance in the 24 hour period.
9. Initially, counsel suggested that such electronic monitoring would be or could be a pre-release requirement. This submission is contrary to the limitations in s 29 Bail Act (which articulate four specific conditions that may be imposed as pre-release requirements). The section does not contemplate the attachment of an electronic monitor. Further, at a practical level, it is difficult to see how any order made by a bail authority could require a corrective services facility to allow for such equipment to be brought into a gaol or police station prior to release. Mr Keen's affidavit suggests that this can be done by pre-arrangement and that was what was required in the case of Medich.
10. I agree with the observations of Beech-Jones in R v Ebrahimi. It is open to the Court to accept the integrity of Mr Keen and the intentions of the company. It would certainly do great harm to Mr Keen's business model if the company failed to notify the police if a breach occurred. Mr Keen says that "every client monitored by my company as part of their bail conditions has appeared in Court as required." However, there is no evidence as to how many such clients there have been or the precise terms of the conditions that were imposed in those cases. I accept that conditions might be fashioned as part of a broader set of conditions calculated to ensure that the applicant's risk of flight is ameliorated to as great a degree as possible.
11. Even allowing for the fact that electronic monitoring does not eliminate the risk of flight, I remind myself that no grant of bail is risk free: Williamson v DPP (2001) 1 Qd R 99; Dale v DPP [2009] VSCA 212; Application of Haidy [2004] VSC 247 and R v Lago [2014] NSWSC 660.

Has the applicant shown cause why his detention is not justified?

1. I agreed with the observation of Garling J in JM v R at [40] that "the inclusion of a requirement to show cause does not mean that the legislature has declared an intention that bail will not ordinarily or normally be granted where a show cause requirement exists". Nevertheless, the cases that have been decided by appellate courts show that the show cause requirement establishes a significant hurdle to an applicant seeking bail when s 16A is engaged.
2. I am satisfied that the medical condition, severe disabilities and special needs of the applicant's son, taken in combination with the other matters to which reference has been made, satisfies the show cause requirement. While [Child's name - Redacted]'s grandparents are doing their best, it is clear that they are struggling and that the applicant is the person in the best position to care for the child.
3. In reaching the conclusion that the applicant has shown cause, I have taken into account the strength of the Crown case, the inevitability of a substantial full-time gaol sentence if any of the charges are established and risks that the prosecution has identified in granting the applicant bail.

Is there an unacceptable risk that the applicant will fail to appear or commit serious offences?

1. The prosecutor has only identified one bail concern under s 17, namely the risk that the applicant will fail to appear. The prosecutor submits that this is an unacceptable risk for the purpose of the application of s 19. This submission was based on the seriousness of the charges, the strength of the prosecution case and the high likelihood of a gaol sentence if the applicant is convicted. This combination of factors provides a great incentive for the applicant to flee. Further, the applicant has family ties in China and one of his sons, and his estranged wife, are living in that country.
2. The prosecutor did not submit that any of the other bail concerns identified in s 17 arose or that there was an unacceptable risk of those matters for the purpose of s 19. That is, it was not submitted that there was an unacceptable risk that the applicant would commit a serious offence, endanger the safety of victims, individuals or the community or interfere with witnesses or evidence.
3. Nevertheless, because of the strength of the case indicating the applicant's association with the principals of what appears to be an organised criminal syndicate involved in substantial drug supply, I have concluded that there may be a bail concern under s 17 concerning the risk that the applicant will commit serious offences.
4. I have considered the following matters pursuant to s 18(1): 1. The accused has no criminal history, is from a supportive family and has ties to the Sydney community. He also has ties to China. As the officer in charge of the police investigation contends, this gives rise to risk of flight. 2. The offences are extremely serious and involve the distribution of a notoriously dangerous drug. 3. The Crown case, in relation to some of the charges, is strong. 4. The applicant has no history of violence. 5. The applicant has not previously been on bail or breached bail. 6. There is no history of non-compliance with any form of conditional liberty. 7. The facts of the present offences suggest the accused has criminal associations although the extent of those associations is not known. I gather the co-accused men are in custody but it is likely that others remain in the community. 8. The accused is likely to spend in excess of 1 year and possibly 18 months to 2 years in custody if bail is refused. 9. A custodial sentence is extremely likely, perhaps inevitable, if the applicant is convicted. 10. The applicant is presumed to be innocent and has not been convicted. 11. The applicant has no special vulnerability of the kind contemplated by s 18(1)(k). 12. The applicant has a need to be at liberty to prepare for his defence although this need is no greater than all applicants charged with serious offences. 13. The applicant has a lawful need to be at liberty to care for his severely disabled son. 14. There is no evidence of any conduct by the applicant towards any victim of the crimes with which he stands accused. 15. There is no evidence of the attitude of any victim of the offence. I have considered the views of the officer in charge, insofar as they are relevant: see Mawad at [34]-[39]. 16. The bail conditions that may reasonably be imposed are stringent and comprehensive and mitigate to a substantial degree the risk of flight.
5. Having considered all of those matters, which obviously pull in different directions, I have concluded that the bail concerns that I identify under s 17 (the risk of non-appearance and the risk of the commission of serious offences) are not unacceptable risks for the purpose of s 19.

Conditions

1. Bail is granted on the following conditions: 1. The applicant is to be of good behaviour. 2. The applicant is to appear at the Central Local Court on 12 November 2015 and on such date thereafter as required. 3. The applicant is to report to the [REDACTED] Police Station daily between the hours of 9am and 5pm. 4. The applicant is to live at [REDACTED] with his parents and son. 5. Curfew: The applicant is not to be absent from [REDACTED] except for the following purposes: 1. To attend medical appointments in relation to himself, his parents or his son and on such occasions he must be in the company of his father or his mother. 2. To report to police. 3. To attend conference with his lawyers. 4. To attend Court. 1. Enforcement of curfew condition (s 30 and on the application of the prosecutor): The applicant is to present himself at the front door of the premises at [REDACTED] 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. 2. ** The applicant is to surrender his passport to the Central Local Court prior to his release from custody. 3. The applicant is not to apply for any new passport or travel document. 4. The applicant is not to go within 1 km of any international point of departure from the Commonwealth. 5. The applicant is not to go further than 20 km from [REDACTED] including for the purposes nominated in the curfew condition (condition 5). 6. ** The applicant is to enter into an agreement (without security) under which he agrees to forfeit the sum of $15,000 if he fails to appear in accordance with the bail acknowledgment. 7. ** One acceptable person is to deposit the sum of $150,000 and agree to forfeit it if the applicant fails to appear in accordance with the bail acknowledgment. 8. Electronic monitoring: 1. 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 the curfew condition (5) and conditions 9 and 10. The applicant is to allow access to the premises at [REDACTED] to technicians of 3M Electronic Monitoring 2. The applicant is not to remove the electronic monitoring device except by arrangement with 3M Electronic Monitoring. 3. The applicant is to provide 3M Electronic Monitoring with any mobile telephone numbers or electronic email addresses nominated by the office of the Director of Public Prosecutions which is to be used if it is discovered that the applicant has breached the bail conditions. 4. Within 24 hours of his release, the applicant is to provide evidence to the Office of the DPP or the Officer in Charge of the [REDACTED] Police Station of compliance with this condition. 5. Within 24 hours of his release, the applicant is to provide the office of the DPP with a written undertaking by the director or manager of 3M Electronic Monitoring that they will notify the police and/or DPP of any breach of the bail conditions to which the electronic monitoring relates.
2. Conditions 7, 11 and 12 (marked** with two asterisks) are pre-release requirements under the terms of s 29 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: 26 October 2015