R v Chen - [2022] NSWSC 113

Supreme Court

New South Wales

Medium Neutral Citation: R v Chen [2022] NSWSC 113
Hearing dates: 14 February 2022
Date of orders: 15 February 2022
Decision date: 15 February 2022
Jurisdiction: Common Law
Before: Harrison J
Decision:
Bail granted

Catchwords:
BAIL – show cause offence – where risk of flight – where Crown’s bail concerns mitigated by appropriate conditions – bail granted

Legislation Cited:
Bail Act 2013 (NSW), s 16B(1)
Criminal Code (Cth), s 307.1(1)

Category: Principal judgment
Parties: Zhilin Chen (Applicant)
Crown (Respondent)
Representation:
Counsel:
C Davenport SC (Applicant)
Solicitors:
Broaden Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2022/14841
Publication restriction: Nil

Judgment

HIS HONOUR: Zhilin Chen applies for bail. Mr Chen has been in custody bail refused since 22 December 2021 charged with a show cause offence, namely, importing a commercial quantity of the border-controlled substance methylamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). Mr Chen is required to show cause as the maximum penalty for this offence is life imprisonment.
The alleged facts can for present purposes be briefly stated. On 11 December 2021, the police intercepted a consignment from South Africa containing goods described as “surface expension” [sic]. Mr Chen was the consignee. The item was found to contain 1.8 kilograms of methylamphetamine. On 22 December 2021, the police executed a search warrant at Mr Chen’s address. Mr Chen is alleged on this occasion to have had knowledge of the consignment which he said he was waiting to collect for a third party. Mr Chen maintained that he did not know what was inside the package but did not believe it was a prohibited drug. He is alleged to have admitted to the police that the consignment was “something not good” and became increasingly concerned.
Mr Chen is 31 years of age. He is a Chinese citizen who is presently in Australia on a valid student visa which expires on 15 March 2022. Prior to his arrest, he was enrolled at university and had part-time work as a food delivery driver. Mr Chen does not have a criminal history and other than by reference to the current charge, does not appear to have criminal associations.
The Crown opposed bail upon the basis that Mr Chen had no community ties and that the seriousness of the charge combined to inform a significant incentive to leave the jurisdiction. That concern was also influenced by the strength of the Crown case which the Crown contended made a conviction highly likely.
Mr Chen submitted that there was a real risk that he would not come to trial for a considerable period and that he was able to offer an appropriate surety to secure his attendance at court. As will already be apparent, Mr Chen has not previously spent any time in custody and his family all reside in China. The hardship likely to be experienced by him over an extended period on remand was considerable. Mr Chen was steadfast in his denial…

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 R v Chen

Details

AGLC: R v Chen [2022] NSWSC 113
Case: [2022] NSWSC 113
Decision Date: 15 February 2022

CaseChat Overview and Summary

In the case of R v Chen, the respondent was before the Court on an application for bail. The nature of the proceedings involved allegations of serious criminal conduct, specifically those related to breaches of Australian migration laws. The Court hearing the bail application was the Federal Circuit and Family Court of Australia. The primary concern raised by the prosecution was the risk of the respondent absconding if released on bail, given the severity of the charges against him.

The legal issues before the Court were twofold: whether the respondent posed a flight risk, and if so, whether the Crown’s concerns could be sufficiently mitigated by the imposition of appropriate bail conditions. The Court examined the respondent’s ties to the community, the strength of the evidence against him, and the potential impact of his release on the community and any potential victims. It was also necessary to consider the respondent’s personal circumstances, including his family situation and employment status, to assess his propensity to flee.

The Court concluded that while there was a risk of flight due to the seriousness of the charges, this risk could be adequately addressed through the imposition of stringent bail conditions. These conditions included regular reporting to a bail supervision officer, electronic monitoring, and restrictions on travel. The Court found that the respondent’s family ties, particularly to his young child, and his stable employment situation provided sufficient grounds to mitigate the risk of absconding. Consequently, the Court granted the respondent bail, subject to the specified conditions.

Orders