R v Xie

The Crown

1. At the hearing of the application the Crown and the applicant tendered a compendium of material.
2. The index to the Crown's folder of material includes the judgments of each of the judicial officers who have considered the question of bail commencing with the judgment of Price J on 5 April 2012 and concluding with my judgment delivered on 13 October 2014. It also included a statement of Detective Sergeant Maree dated 4 December 2015, a statement of Brenda Lin dated 3 December 2015 and statements of Brenda's grandparents dated 2 October 2014. The folder also included a transcript of the evidence of Mr Szancer, a forensic accountant who gave evidence at the trial; a document headed "Summary of the accused's evidence about his financial links to China" tendered by the accused at his trial; and a transcript of intercepted telephone calls passing between the applicant and his sister (a resident of China) dated 12 May 2010 and 31 May 2010.
3. Mr Szancer's evidence, the document tendered in the applicant's case at trial and the intercepted telephone calls are relied upon by the Crown as evidencing the applicant's financial position as at the date of his arrest in May 2011.
4. In Detective Sergeant Maree's statement of 4 December 2015 he reported that inquiries conducted through AUSTRAC between May 2011 (the date of the applicant's arrest) and November 2015 (it would appear whilst the jury were in deliberations) have revealed that 128 international money transfers (including both incoming and outgoing transactions) have been recorded under names and/or addresses linked to the accused and his family in China, Hong Kong and/or Australia. Of the 128 transactions, 18 were outgoing money transfers in an amount totalling A$827,000. There is no evidence before me as to the provenance of those monies and there are no dates associated with any of the transfers. The remaining 110 transactions related to monies coming from China and/or Hong Kong to Australia in a total amount of A$4.15 million. The applicant's name is recorded in 20 of those transactions totalling A$915,000. The applicant's wife is not recorded in any of the transactions. The applicant's sister is recorded in respect of three transactions.
5. In the course of submissions, the Crown accepted that with the evidence in that state, and with no clarifying questions asked of Detective Sergeant Maree by either counsel, the A$3 million traced to incoming money transfers in some way linked to the applicant's family or his address, does no more than to show a "very close business association" between the applicant and his sister (a proposition which is not sought to be contradicted by the applicant) and that the extent of their financial relationship also does no more than to evidence the extent of his financial links with his family in China extending up to November of this year.
6. There was no evidence on the application before me as to whether all or any of the incoming monies were invested or expended in other ways, including for the payment of the applicant's legal fees. Further, there is no evidence on the application as to the regularity of the 110 incoming international transfers, or whether they were concentrated in any particular timeframe between May 2011 and November 2015 or whether they were in similar or different discrete amounts over that timeframe.
7. Detective Sergeant Maree also notified his intention to lay criminal charges against the applicant in relation to the sexual abuse allegations of which Brenda Lin gave evidence at trial, limited in that forum to the issue of motive. Detective Sergeant Maree expresses the belief that, if granted bail, the applicant would be "free to either directly or indirectly threaten, intimidate, coerce or influence Brenda in relation to the evidence she will give in future proceedings against the accused". He went on to express the belief that the applicant exercises considerable influence over his wife and his belief that a non-association bail condition would not prevent the applicant using his influence over his wife to have her attempt to influence Brenda "and the evidence she will give in future proceedings against the accused". Since this bail application is concerned only with the show cause offences of murder, I can only assume that Detective Sergeant Maree is expressing a concern that, if the applicant is at his liberty, he would seek to influence the course of the pending trial proceedings for murder by threatening, intimidating, coercing or influencing Brenda in some improper way. Self-evidently, the fact that criminal charges may be laid at some future date in relation to the sexual abuse allegations is not a matter that has any bearing on the bail that is sought in respect of each of the charges of murder.
8. Detective Sergeant Maree also refers to the statement from Brenda Lin included in the materials relied upon by the Crown in which she expresses fears for her own safety and that of her grandparents were the applicant released to bail. Detective Sergeant Maree invites the Court to refuse bail for their protection and welfare for that reason. In Brenda's statement, she says she understands the applicant knows where her grandparents live but is unaware whether he knows of her current residential address. I am satisfied that this evidence satisfies the requirement of s 18(1)(o) to the extent that is has a relevant bearing on the evaluative process engaged in the risk assessment test under Div 2 of the Bail Act 2013 (see Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [34] confirming the approach of Garling J in JM v R [2015] NSWSC 978 at [48]).

The Applicant

1. The applicant relies upon an affidavit of his solicitor, Ms Greiner, affirmed on 7 December 2015, and an earlier affidavit affirmed by her on 7 October 2014 relied upon in the previous bail application. A current certificate of title was also annexed, together with a current valuation of the Beck Street premises held by the applicant and his wife as joint tenants, in the range of A$1.3-$1.5 million. That property is offered as security for a grant of conditional bail. According to Ms Greiner's information, it is the only asset held by the applicant or his wife. In her most recent affidavit, Ms Greiner advises that the applicant has liquidated all his overseas assets, including shares, monies held in overseas bank accounts and offshore property, to fund his defence. She also advises that his legal fees were supplemented by monies (in an unspecified amount) from his sister and brother, both Chinese nationals living in China. She further advises that, upon meeting with them both in Australia in recent weeks, she has been advised that they will not be able to fund the applicant's representation at his retrial and that an application for legal aid is in the process of being lodged for that reason.
2. Ms Greiner's most recent affidavit sets out the conditions of the applicant's current remand, a state of affairs that has remained largely unchanged since he was placed in a non-association section of the Metropolitan Remand and Reception Centre at Silverwater in May 2014. It is accepted that the security provided to inmates in that section of the prison is at the highest level of security for the protection of the inmates assessed as deserving of it.
3. For the last 19 months, the applicant has been remanded in custody subject to the following conditions: 1. He occupies a single cell into which he is locked 24-hours a day only being permitted to leave the cell for legal and personal visits and for medical appointments; 2. He is not permitted to attend any of the facilities where he may find himself in association with other prisoners. Accordingly, he cannot attend the library, any group courses or group activity and is unable to obtain any employment. He is not permitted to exercise in the prison yard and has no access to the gymnasium. The only communion he has is with his wife, his lawyer and Corrective Service officers. He is allowed one visit during the week and one visit on the weekend. Visits are not permitted to extend longer than an hour. During the course of the trial he was only permitted one weekend visit; 3. Ms Greiner advises that, as a result of limitations imposed on all prisoners in the high security wing, the applicant was denied access to a foreign language dictionary because hardcover books are not permitted; and 4. His telephone calls are limited to one a day with access being restricted as a result of what Ms Greiner was advised are almost weekly "lockdowns".
4. Ms Greiner also annexes to her most recent affidavit a report of Mr Sam Borenstein, a consultant clinical psychologist, dated 3 December 2015. Mr Borenstein attached to that report his report of 1 October 2014, in which he set out his previous contacts with the applicant in March 2012, March 2013, June 2013 and April 2014. Mr Borenstein also reported that as at October 2014, the applicant suffered a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood with features of Major Depression.
5. Much of what Mr Borenstein reported in the course of his assessments of the applicant in October 2014 and over proceeding periods, was repeated in his most current report. However, the extent to which the applicant's cognitive and mental functioning has diminished and the extent to which his symptoms of stress, anxiety and depression have been exacerbated by the course of the trial, including in particular being woken at 5am to be transported to court before being returned to prison between 6pm and 9pm, was fresh material. In his report Mr Borenstein said as follows: Mr Xie reports sleep disturbance resulting in exhaustion, fatigue and malaise. Mr Xie says his concentration remains poor, as does his memory. Mr Xie estimates he cannot concentrate for longer than 20 minutes, saying "I try my best. My mind cannot stay on track".
6. Mr Borenstein went on to note that the applicant averages no more than three hours sleep a night, with his sleep disturbance defined by initial and intermittent insomnia and early morning wakening, a state of affairs which, in Mr Borenstein's assessment, is directly related to the applicant's reported tiredness and exhaustion during the day and the interference this has occasioned to his concentration, attention and memory.
7. Mr Borenstein also reports that the applicant is fearful and anxious, and that he is vigilant and wary of a recurrence of an assault he suffered when struck on the head by a fellow prisoner in June 2014. In that assault the applicant sustained head injuries. He has experienced ongoing and intermittent headaches as a result.
8. The applicant also suffers from gastrointestinal symptoms, including nausea, stomach cramps and diarrhoea, both symptomatic, in Mr Borenstein's opinion, of the applicant's stress levels and his reaction to a prison diet. I note that during the course of the trial it was necessary for me to direct that the applicant be provided with lunch of the same standard enjoyed by the jury, after satisfying myself that the food provided to him in the court cells was unpalatable. The applicant has suffered further weight loss over the course of the trial.
9. A variety of psychometric tests were administered by Mr Borenstein for the purposes of his most recent report, each of which confirmed extremely severe symptoms of depressions, extremely severe symptoms of anxiety (including associated physiological symptoms) and extremely severe symptoms of stress.
10. Of critical significance on this application is Mr Borenstein's revised diagnosis. In his opinion, the applicant now suffers from a Major Depressive Disorder which requires ongoing psychiatric and psychological assistance delivered outside the prison environment. Mr Borenstein notes that the applicant is currently treated with an anti-depressant and a major tranquiliser, and that his mental health is subject to regular monitoring in the prison environment, inclusive of assessment by a psychiatrist on at least three occasions during the course of his most current remand. In Mr Borenstein's opinion, however, the applicant's mental and psychological state would improve if he were reunited with his family and housed within a domestic environment with improved access to his legal advisors and the opportunity to consult with new trial counsel pending his retrial. Mr Borenstein said: I remain of the view as Mr Xie remains in custody his mental state would deteriorate further as appears to have occurred since September 2014. Mr Xie is less able to attend to his legal affairs due to the effect of incarceration, contributing to his Major Depressive Disorder… In my opinion, Mr Xie's ability to instruct legal counsel will be compromised during a fourth trial if he remains in prison.
11. Ms Greiner's most recent affidavit details the difficulties she has encountered in obtaining instructions from the applicant (not the least because of her limited access to him during Court sitting hours, including at the commencement and end of each sitting day), but also because the applicant reported to her that he was frequently too tired to speak with her at length and that he found it difficult to concentrate. Ms Greiner's concerns about her client's mental health erupted at a point in the course of the trial, necessitating a request by her that he be assessed by the Justice and Forensic Mental Health Team as a matter of urgency and an adjournment of the proceedings to allow that to occur. In her affidavit she advises that the Deputy Clinical Director of Custodial Mental Health wished to have the applicant medicated on a higher dose of seroquel, an anti-anxiety medication, to assist him to sleep, but that as a result of the impact of the medication on his ability to participate in his trial, the applicant declined to accept the increased dosage.
12. In Ms Greiner's view, a view which is not sought to be contradicted or tested in any way by the Crown, "the quality and the quantity" of her client's instructions was dramatically reduced during the trial when compared with her first engagement in him during the committal hearing in August 2012.
13. Neither party objected to the tender of any of the material summarised above as irrelevant to the need for the applicant to show cause why his continued detention is not justified, as provided for in s 16A(1) of the Bail Act 2013 (murder being a "show cause offence" as defined in s 16B of the Act) and, if cause is shown, as irrelevant to the question whether any of the bail concerns identified in s 17(1) of the Act are raised on the application and, if they are, whether the risk of those concerns materialising is unacceptable such that bail must be refused as provided for in s 19 of the Act, or whether any such risk as is identified can be satisfactorily mitigated by the imposition of bail conditions in accordance with s 20A, thereby allowing for a grant of conditional bail.
14. None of the deponents of any of the affidavits were required to attend for cross-examination. No questions were sought to be asked of Detective Sergeant Maree concerning any of the matters canvassed by him in his recent statement.
15. In submissions in reply, the Crown did invite me to assess the weight of Mr Borenstein's report and his opinion as to the applicant's current psychological and cognitive functioning, in light of the fact that the Crown had not had the applicant assessed by a psychologist. Although Mr Borenstein's updated report was only served on the morning of the hearing, since his reports have been relied upon on previous applications for bail, Including before me in October 2014, in my view, the Crown should reasonably have anticipated the applicant would rely upon an updated report for the purposes of this application. If the Crown were in any doubt about that, they could and should have made an enquiry of the applicant's solicitor in order that arrangements might be made to have the applicant further assessed if the Crown considered that appropriate and, if necessary, to seek to have the proceedings adjourned to allow that to occur. When the updated report was served, the Crown did not seek an adjournment. In the course of argument, the Crown advanced no submission directed to the substance of Mr Borenstein's report or the reliability of the opinions expressed therein.
16. In those circumstances I do not propose to diminish the weight of Mr Borenstein's reports on the basis of nothing more than a theoretical possibility that further psychological testing and assessment might result in a different diagnosis or different assessment of the applicant's mental functioning.

The approach mandated by the Act

1. While it is essential that the two stage decision making process provided in the Act is strictly adhered to, this Court has recognised that matters material to the application of the "show cause test" in s 16A of the Act may also find expression in the exhaustive list of matters the bail authority is required to consider in s 18(1) when undertaking its evaluative assessment of bail concerns (Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83), although a finding of cause per se is not relevant to the application of the test to be applied at the second stage.
2. On this application there are matters that are material to the evaluative exercise involved in applying both tests and some matters that are exclusive to the show cause test only. In my view, the conditions under which the applicant is currently detained and the conditions to which he will continue to be subject were bail refused are plainly relevant to the question whether his detention is justified, as is the inordinate length of his remand to date, but neither find categorical expression in s 18(1) of the Act. Section 18(1)(h) is directed to the length of an applicant's remand viewed prospectively not retrospectively, while the conditions of an applicant's custody as a remand prisoner do not find expression in s 18 at all.
3. Similarly, the current and deteriorating state of the applicant's mental and physical health as detailed in Mr Borenstein's most recent report, while also deserving very considerable weight on the show cause test, do not find unequivocal expression in the prescriptive list of factors I am required to consider in assessing whether there is an unacceptable risk of a bail concern materialising. That said, for the purposes of this application, and for reasons I will come to presently, I am prepared to see them as bearing upon s 18(1)(m).
4. The Crown submitted that the length of the applicant's remand, from his arrest in May 2011 to date - a period of 4 years, 7 months and 3 days - coupled with the delays occasioned by two aborted trials in 2014 and a fourth trial to be convened in 2016, was regrettable. The Crown also submitted that, while the conditions of the applicant's custody and his deteriorating mental state was also regrettable, when regard is had to all the circumstances, including that multiple counts of murder are charged, the circumstances in which the Crown alleges those offences were committed and the inevitability of life sentences upon conviction, the applicant had failed to show cause as to why his continued detention is not justified and, that being the case, in the Crown's submission, bail should be refused without the need to consider the separate question of the unacceptable risk test.
5. To the extent that the applicant has satisfied the show cause test as the first of the two-staged process in the determination of an application for bail, the Crown identified the bail concerns in s 17 as: the risk of the applicant not appearing at his retrial (s 17(2)(a)); and the risk of him seeking to interfere with Brenda and the evidence to be led against him (s 17(2)(e)). In the Crown's submission, these bail concerns were of such overwhelming weight, and the risks associated with each of them materialising of such magnitude, they were insusceptible to mitigation by any of the bail conditions that the applicant proposes or that the Court might see fit to impose.
6. Of the matters prescribed by s 18(1) as informing the evaluative exercise engaged in the assessment of risk, the Crown relied upon the following: 1. The applicant's relative lack of community ties to Australia having migrated in 1999 and his close family and financial ties with China (s 18(1)(a)). 2. The seriousness of the offence which is reflected in the indictment charging five counts of murder committed which, on the Crown case, were committed by the applicant in a family home and where each of the deceased was a family member or an extended family member (s 18(1)(b)). 3. With regard to the strength of the Crown case (s 18(1)(c)), the Crown described the prosecution case as "a most powerful, potent and cogent Crown case". Mr Turnbull submitted that, viewed in its totality, the Crown case is weak as evidenced by the Crown's inability to satisfy a jury (or a sufficient number of jurors) of the applicant's guilt. In Mr Turnbull's submission, what he described as the significant difficulties the Crown is confronted with in proving its case, radically transforms the application for bail mounted at this time. 4. In the Crown's submission, after allowing for incoming defence counsel to prepare the case for trial over a period of 2-3 months, and the Crown's expectation that the retrial will extend over a maximum period of 4-5 months, a further 9 month remand is not unacceptable or of such a length as should overwhelm the weight of other considerations in the evaluative exercise required by s 18. In the Crown's submission, the delay that has been occasioned to date in the ultimate disposition of the matters charged on indictment, is not as a result of neglect or inattention on the part of the Crown, such that despite what the Crown described as the regrettable length of pre-trial custody, the overwhelming and unmitigated risk of flight and interference with Crown witnesses/evidence were overwhelming factors outweighing other factors which might favour a grant of bail (s 18(1)(h)). 5. The Crown placed significant weight on the inevitability of a custodial sentence of life imprisonment being imposed in the event of a jury returning verdicts of guilty (s 18(1)(i)). 6. In Mr Turnbull's submission, the evidence of the applicant's diminished or deteriorating cognitive and mental health renders him "specially vulnerable" were his remand in its current conditions to continue (s 18(1)(k)). The Crown advanced no submission to meet that aspect of the applicant's case save as to submit that his deterioration in functioning was "regrettable". 7. The Crown submitted there was no demonstrated need for the applicant to be at his liberty to prepare for his trial in circumstances where his third trial was conducted to completion with every issue litigated, and every question bearing upon the admissibility of evidence resolved in the course of interlocutory judgments delivered pre-trial and during the course of the trial. In substantial reliance upon Ms Greiner's affidavit and Mr Borenstein's most recent report, Mr Turnbull submitted that the applicant will need to instruct fresh trial counsel and, in his current custodial environment, with his deteriorating impact on his capacity to instruct counsel, his unqualified right to a fair trial is compromised (s 18(1)(l)). 8. The Crown relied upon the applicant's conduct towards Brenda as a family member of the deceased family after the murders (s 18(1)(n)), and Brenda's views as reported to Detective Sergeant Maree engaging his concerns that the applicant could, if at his liberty, endanger her safety and that of her grandparents (s 18(1)(o)). 9. To the extent that the Crown submits that a non-association condition will not provide an acceptable level of protection against the risk of the applicant interfering with Crown witnesses or Crown evidence, a consideration put against the risk of that kind materialising, is what I consider to be the virtual certainty that Brenda and/or her grandparents would immediately notify police were they approached by the applicant, or his wife on his behalf, such as to result in the applicant's immediate arrest and the revocation of his bail. 10. I also note that it is the Crown's intention at the pending trial to utilise the video record of Brenda's evidence (either edited or unedited) as her evidence at trial and the video record of her grandparents' evidence for similar purpose. 11. Even allowing for the possibility that one or more of these three witnesses might prefer to give their evidence in the ordinary way, any pressure by the applicant, subtle or unsubtle, direct or indirect, for them to change their evidence in some way that might benefit the applicant will doubtless be met by an application under s 38 of the Evidence Act. 12. Whilst I do not doubt the genuineness of the fears that Brenda and her grandparents hold that the applicant might retaliate against them in some physical way as a reprisal for having giving evidence against him at his trial, in my judgment there are conditions which might be imposed which militate against any of those persons being in actual danger of any physical or psychological harm at the applicant's hand (s 18(1)(p)). 13. Finally, in the Crown's submission, despite the offer of security in the form of the unencumbered property at Beck Street and the cash to be lodged by an acceptable person, on a "cost benefit analysis" the applicant has a powerful incentive to leave the jurisdiction. In the Crown's submission, there remains an unacceptable risk that he will secure access to a false passport and plan a permanent departure from the jurisdiction, either from intra-state points of departure or interstate points of departure in the windows of opportunity afforded the applicant between periods of reporting to police. The Crown further submitted that the monitoring device, if disabled by the applicant tampering with it, provided no assurance of a response time sufficient to prevent his flight.

Has the applicant shown cause?

1. Notwithstanding the seriousness of the charges the applicant will face at his retrial, and despite what I regard as sufficient residual cohesion in the case the Crown seeks to make against him, despite the challenges that were mounted at his trial to the sufficiency of the Crown case in the way it was conducted by defence counsel on his behalf, I am well satisfied that, in all the circumstances, the applicant has shown cause as to why his detention is not justified.
2. It is not appropriate that I express any further view as to the strength of the Crown case on the show cause or unacceptable risk tests, suffice to say that I reject the submissions of both counsel. In my view, the best way to describe the strength of the Crown case is as a case with residual cohesion. What cannot be ignored is that the jury did not regard the Crown case as of such overwhelming strength as to attract unanimous or majority verdicts of guilty, a result which must diminish the probative force of the Crown case despite the Crown's submissions to the contrary.
3. The conditions under which the applicant is currently remanded for his own protection in a custodial environment where he is deemed at risk, and the direct impact this has had on his psychological and cognitive functioning in the past and its predicted impact on his capacity to participate in his forthcoming trial, also, in my view, dictates a finding that cause has been shown such that consideration should now be given to whether the Crown has established, on this application, the existence of an unacceptable risk or risks of a kind that cannot be satisfactorily mitigated by a grant of conditional bail.
4. Before turning to that question, I wish to express my unqualified endorsement of the detailed consideration given by Garling J in JM v R to the fundamental common law principles that underpin the operation of the Bail Act (see [32]-[43]). Without repeating, in terms, his Honour's careful and considered identification of a number of primary principles, it is clear that they are each enshrined in the presumption of innocence and the general right of an accused to be at his or her liberty, pending a finding by a competent court that guilt has been proved beyond reasonable doubt. They are also reflected in the common law principle that if an accused is detained in custody pending trial that the period of pre-trial custody is not so prolonged that a refusal of bail becomes a punishment in itself. Irrespective of the nature of the charges and what might be considered to be a case probative of guilt, for an accused person to be detained in custody (as this applicant would be for a period approaching five years after his arrest before his trial is convened) is impossible to view as commensurate with a fair and just criminal process.
5. In the result, I am satisfied that the risk of the applicant's flight from the jurisdiction by illegal means, whilst neither fanciful nor remote, can be mitigated by a grant of conditional bail where he is effectively under "house arrest". I am also satisfied that any risk of the applicant interfering with evidence or Crown witnesses in advance of his retrial (again neither so remote as to be discounted given his proven disposition to interfere with the course of justice in his dealings with Witness A) is also capable of being mitigated by the conditions I will impose and by the fact that any misconduct on the applicant's part will undoubtedly come to the attention of police resulting in his immediate arrest.
6. I propose conditional bail be granted.

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: 28 February 2017