R v Choi (No 3)

[2020] NSWSC 1877

Supreme Court

New South Wales

Medium Neutral Citation:	R v Choi (No 3) [2020] NSWSC 1877
Hearing dates:	18 December 2020
Decision date:	18 December 2020
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	Bail conditions varied
Catchwords:	CRIME — Bail — Variation application
Legislation Cited:	Bail Act 2013 (NSW)
Cases Cited:	R v Choi [2020] NSWSC 1586
Category:	Procedural and other rulings
Parties:	Regina Chan Han Choi (Applicant)
Representation:	Counsel: I Jamal (Applicant) J Single SC (Crown) Solicitors: Abbas & Co Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2017/380546

Judgment (EX TEMPORE)

1. Mr Choi applied for bail in November 2020. Bail was granted on very strict conditions on 11 November 2020: R v Choi [2020] NSWSC 1586. In substance, the bail was granted in order to provide the applicant with an opportunity to prepare for his trial which is listed to commence before me and a jury in February 2021. The applicant now applies for a variation of some of the conditions of bail. Mr Jamal, who appears on his behalf, has sought four variations.

2. First, condition (4) provides that he must report twice daily. Mr Jamal seeks that this be reduced to once daily. Secondly, Mr Jamal urges that the applicant should have at least one day off a week from reporting, and urges that that would not significantly increase the risk that he would fail to appear. The third proposed variation is to permit the applicant to access YouTube. The fourth proposed variation is that instead of condition (5) (which provides that the applicant must not be absent from the property, except for certain nominated purposes), the applicant ought be allowed to go anywhere within a 10 kilometre radius from the residence at which he is required to live for his bail.

3. The Crown opposes all variations to the conditions and reiterates the submissions it made on the last occasion in opposition to the application for bail. It particularly relied on that occasion on what it submitted was the substantial risk of flight which was thought to come about, in part, because of the nature of the alleged crimes and the possibility that a foreign government would be prepared to provide Mr Choi with a false passport, thereby enabling him to leave the country without being detected. The basis on which bail was granted was, as I have said, to safeguard the administration of justice, maintain the trial date and to make sure that the applicant was in a position to prepare for his trial.

4. Dealing with the four proposed variations, I am satisfied that, the applicant having complied with his bail conditions for the last five weeks, it is appropriate to reduce the regularity with which the applicant must report from twice a day to once a day. I am also satisfied that the applicant should have at least one day when he does not need to report for bail, and I propose that that day be a Sunday.

5. As to the question of whether he should be permitted to access YouTube on the internet, Madam Crown has submitted that the evidence in the Crown case shows that the applicant was accessing YouTube to see North Korean propaganda material including videos of missile technology. She said that some of that material was contained in the tender bundle. She argued that it would be antithetical to the purposes of bail to permit the applicant to access YouTube to see any future propaganda material. Madam Crown has, however, noted that because of the carve-out which entitles the applicant to use the internet for the purposes of trial preparation, he would be permitted to see such videos on YouTube as would assist him in the trial preparation.

6. Mr Jamal has spoken of the difficulties for the applicant in being alone for long periods. Although he has a flatmate, who is his surety, the flatmate works for quite long hours and those hours are irregular. It was submitted by Mr Jamal that being able to watch YouTube would also be a way of providing himself with some diversion or entertainment.

7. There are difficulties in defining any carve-out for YouTube for the purposes of entertainment in that one person's entertainment is another person's propaganda. Because of the difficulties of formulating an appropriately enforceable condition relating to the use of YouTube, I decline to make that variation.

8. The next variation, as I have said, is that the applicant be permitted to go anywhere within a 10 kilometre radius of his home. The purposes of this include to maintain his mental health, for exercise, and also to enable him to get a haircut, go to the bank, and buy provisions. Also, it may at times be necessary for him to attend job search providers for the purposes of his maintaining his entitlement to Centrelink benefits.

9. Mr Jamal has spoken of the possibility that the applicant could obtain employment. That is not a purpose which I would endorse. The reason for bail being granted was to give the applicant an opportunity to prepare for his trial. That would not be consistent with having employment because of the demands of preparing such a trial which, as I have said, is listed for hearing in February 2021.

Orders

10. For these reasons, I am satisfied that I should vary the bail conditions as follows:

1. vary condition 4 to remove the words "twice daily" and insert the words "every day apart from Sunday"; and delete the words "and 12pm, and again between 6pm”;

2. vary condition (5):

1. to add the words "and (6A)" after "subject to (6)" at the commencement of condition (5);

2. add to condition (5) the following subparagraphs:

“(e)   attending such job search providers as necessary for the purposes of maintaining his entitlement to Centrelink benefits;

(f)   attending the Chester Hill shopping centre while in that vicinity for the purposes of complying with his reporting obligations in condition (4); or

(g)   attending a Service NSW centre for the purpose of renewing his driver's licence”.

3. Insert condition 6A:

"For the avoidance of doubt, the applicant is entitled to attend the Chester Hill Shopping Centre when en route to or from the Bass Hill Police Station for fulfilling the reporting requirements.”

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Decision last updated: 18 December 2020