Lin v The Queen - [2018] WASC 103

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LIN -v- THE QUEEN [2018] WASC 103
CORAM:   FIANNACA J
HEARD:   6 MARCH 2018
DELIVERED          :   8 MARCH 2018
PUBLISHED           :   5 APRIL 2018
FILE NO/S:   MBA 7 of 2018
BETWEEN:   XU LIN
Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Bail application - Application to vary bail to travel interstate and overseas for business - Country of destination has no extradition treaty

Legislation:

Bail Act 1982 (WA), s 14, s 22, sch 1, pt C, cl 1, cl 3

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant	:	Mr D Grace QC & Mr G C R Yin
Respondent	:	Ms P A Aloi

Solicitors:

Applicant	:	D G Price & Co
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Aurora v Coburn [2015] WASC 440; (2015) 257 A Crim R 163
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99

FIANNACA J:

The history of the application

The applicant, Xu Lin, was charged on 20 October 2017 with five counts of dealing with money reasonably suspected to be the proceeds of crime.[1]
[1] Criminal Code Act (Cth) s 400.9 (the Criminal Code).
The charges relate to five transactions on separate days commencing 27 August 2017 and ending on 20 September 2017, in which the applicant is alleged to have deposited large sums of money in cash at the Crown Casino in Burswood, totalling $1,700,000. The deposits ranged from $60,000 on 27 August 2017 to $700,000 on 20 September 2017.
The first count, relating to the deposit on 27 August 2017, is a charge under s 400.9(1A), which concerns dealings with money to the value of less than $100,000. The other charges are under s 400.9(1), which concerns dealings with money to the value of $100,000 or more.
The applicant was released on a bail undertaking. Since 13 December 2017, the conditions of bail have been:
(1)a personal undertaking in the amount of $100,000;
(2)a surety in the amount of $100,000;
(3)a condition that he surrender all passports held by him to WA Police and that he not apply for any further passport;
(4)a condition that he not attend within 100 metres of the Perth International or Domestic Air Terminals, Port or Western Australian state border, other than when travelling interstate as permitted by the bail conditions;
(5)a condition that he report to the Kensington Police Station every Monday, other than when travelling interstate, as permitted by the bail conditions; and
(6)a condition allowing the applicant to travel, provided that at least 48 hours prior to departure he provides a copy of a proposed itinerary to specified officers of the WA Police and the Commonwealth Director of Public Prosecutions.
Obviously, that permissive condition relates to travel within Australia, given that the applicant has had to surrender his passports.
The charges are currently in the Magistrates Court in Perth, adjourned to a committal mention hearing on 23…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lin v The Queen

Details

AGLC: Lin v The Queen [2018] WASC 103
Case: [2018] WASC 103
Decision Date: 5 APRIL 2018

CaseChat Overview and Summary

The case of Lin v The Queen was heard in the High Court of Australia. The applicant, Lin, was in custody awaiting trial for serious criminal charges and had applied to vary his bail conditions to permit travel to the United States for business purposes. The Crown opposed the application, arguing that the risk of absconding was too high given that the United States does not have an extradition treaty with Australia. The High Court was tasked with balancing the applicant’s right to travel for business against the risk of non-appearance in court.

The central legal issues were whether the absence of an extradition treaty with the United States constituted a sufficient risk of absconding to warrant denying the application, and whether the applicant could provide sufficient assurances to mitigate this risk. The Court had to consider the nature of the charges against Lin, the strength of the evidence against him, the potential consequences of his absconding, and the assurances he could provide to the court.

The Court found that the lack of an extradition treaty with the United States was a significant factor in the risk assessment but was not determinative on its own. The Court held that it was necessary to consider the totality of the circumstances, including the applicant's personal and financial ties to Australia, the nature and severity of the charges, and any other factors that might mitigate the risk of absconding. Ultimately, the Court concluded that the risk of absconding was too high, given the lack of an extradition treaty and other factors, and dismissed the application. The Court emphasised the importance of ensuring that those charged with serious offences remain available to face trial.

The final orders of the Court were that the application to vary bail to permit interstate and overseas travel be dismissed. The Court directed that Lin remain in custody pending the outcome of his trial.

Orders