R v Lin Fang
[2015] ACTSC 293
•11 September 2015
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v LIN FANG |
Citation: | [2015] ACTSC 293 |
Hearing Date(s): | 11 September 2015 |
DecisionDate: | 11 September 2015 |
Before: | Refshauge J |
Decision: | 1. The bail undertaking of Lin Fang be varied so that it be a condition of his bail that an acceptable person pays to the Territory the sum of $10,000 if Mr Fang fails to attend to appear in accordance with this undertaking. 2. Sen Fang is, for the purposes of s 32 of the Bail Act 1992 (ACT) an acceptable person. 3. The sum of $10,000 paid into court as a cash surety may, on presentation of an authority signed by Sen Fang, directing that it be paid to Paul William Edmonds Legal Trust Practice Account be paid out to Paul William Edmonds Legal Practice Trust Account. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – bail – bail variation – surety – legal representation as a right in criminal proceedings – payment of cash surety into legal practitioner’s trust account |
Legislation Cited: | Bail Act 1992 (ACT), s 32 Human Rights Act 2004 (ACT), s 22(2)(d) and (f) |
Cases Cited: | Dietrich v The Queen (1992) 177 CLR 292 In theMatter of an Application for Bail by Dhaimat (No 1) [2014] ACTSC 42 |
Texts Cited: | International Covenant on Civil and Political Rights 1966,999 UNTS 171 (opened for signature 16 December 1966, entered into force 28 January 1993) |
Parties: | The Queen (Crown) Lin Fang (Defendant) |
Representation: | Counsel Mr A Williamson (Crown) Mr P Edmonds (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Defendant) | |
File Number(s): | SCC 249 of 2014 |
REFSHAUGE J:
In about April 2012, the applicant, Lin Fang, commenced a relationship with the complainant and they married in January 2013. On 13 April 2014, an incident occurred between Mr Fang and the complainant. As a result, Mr Fang was arrested and later charged with a number of assaults and sexual offences committed against the complainant.
Mr Fang is of Chinese extraction and he requires an interpreter to understand English.
Mr Fang was initially remanded in custody, but, on 27 May 2014, was released on bail. A term of the bail was the deposit of the sum of $30,000 in cash by a surety who, it appears, was his brother. On 5 December 2014, I released $20,000 of those funds which were required to pay for Mr Fang's legal fees for the trial. A sum of $10,000 was retained as a cash surety.
The trial was initially listed to commence on 22 June 2015, but, on 17 June 2015 a new date of 3 August 2015 was set. The trial commenced on that day, but on 5 August 2015 the jury was discharged as a member of the jury spoke Mandarin and there was concern that the juror may understand conversations between a witness and the interpreter who was employed for the trial.
A new trial date has been set and the trial is now to commence in the week beginning 23 November 2015. An application has been made for the release of the balance of the cash surety because of the retrial. Mr Fang is not legally aided. His brother is prepared to allow the funds to be used for the legal fees of Mr Fang. Mr Fang's brother is, however, prepared to remain as a surety for the sum of $10,000.
I heard evidence from Mr Fang’s brother’s wife, who is on a tourist visa in Australia. Her evidence was that he is employed full‑time in a logistics company and that he owns a 2011 Toyota Camry motor vehicle which, it appears, is of some reasonable value, probably in excess of the $10,000 proposed as the amount of the surety.
Mr P Edmonds, who acts for Mr Fang, submitted that Mr Fang had been on bail for nearly 17 months now without any breach of bail. He appeared to take his trial in August 2015.
The application was not opposed by the Crown. Very properly, the Crown, represented by Mr A Williamson, submitted that I needed satisfaction that the surety was a man of means and would be able to meet the obligations should Mr Fang not attend his trial.
Consideration
It is important that Mr Fang have a fair trial. While it is not essential for a fair trial that a person be represented, that can depend on a number of matters. Even without taking into consideration the Human Rights Act 2004 (ACT), the absence of counsel in certain circumstances can make a trial unfair, as the High Court held in Dietrich v The Queen (1992) 177 CLR 292. In that case, however, a majority of the court gained support for the need, in an appropriate case, to have counsel in order that a trial be fair and drew support from the International Covenant on Civil and Political Rights 1966,999 UNTS 171 (opened for signature 16 December 1966, entered into force 28 January 1993). The Human Rights Act is based on the Covenant.
Unlike the situation in that case, however, the Human Rights Act is binding on this Court. Thus, the Human Rights Act recognises that legal representation is an appropriate right in criminal proceedings by s 22(2)(d) and (f). See In theMatter of an Application for Bail by Dhaimat (No 1) [2014] ACTSC 42 at [13].
In Dietrich v The Queen at 367, Gaudron J adopted the point that the difficulties of an unrepresented person "may be exacerbated by problems such as illiteracy, language difficulties and class or cultural differences." Considerations of language difficulties and cultural differences loom large in this case. Balance, however, has to be struck with the need to ensure that Mr Fang attends to take his trial.
Sometimes Magistrates record on the bench sheet, when refusing bail, the reason for doing so. That can be very helpful to respond to later applications for bail. Unfortunately, it was not noted in this case. The bail conditions seem to suggest that further offending was a consideration and perhaps interfering with witnesses, as bail conditions required him not to approach certain persons, including the complainant. The condition to surrender his passport and to provide the substantial cash surety suggests a concern for flight and that he may not appear to take his trial. Of course, the charges are very serious and a term of imprisonment is likely if he is convicted.
In my view, the need for legal assistance is more significant now than the risks of flight or further offending, given the bail history and Mr Fang's attendance already to take his trial. Accordingly, I am prepared to grant the request.
Initially I considered that I should ensure that some funds were retained to ensure that Mr Fang takes his trial. I based that on the kind of orders that I made In the Matter of an Application for Bail by Dhaimat (No 2) [2014] ACTSC 60.
Mr Edmonds has pointed out that the arrangements I proposed may breach the Legal Profession Act 2006 (ACT). I am not satisfied that that is so. He further pointed out that for him to retain some portion of the funds in the trust account to be forfeited to the Territory should Mr Fang not attend his trial gave him a stake in the attendance by Mr Fang at his trial, and that was inappropriate. Of course, legal practice does engage in similar activities with the currency of what are colloquially known as "no win no fee" engagements where, in effect, the lawyer has a direct financial interest in the outcome of proceedings.
Nevertheless, on balance, and in view of the attitude adopted by the Crown, given that Mr Fang's brother appears to have sufficient assets to pay the surety if Mr Fang were not to attend his trial, I will not require the retention of funds in Mr Edmonds' trust account.
Accordingly, I order that Mr Fang's bail be varied so that it be a condition of the bail that an acceptable person pays to the Territory the sum of $10,000 if Mr Fang fails to appear to take his trial in accordance with his undertaking and that Sen Fang is, for the purposes of s 32 of the Bail Act 1992 (ACT), an acceptable person for this purpose.
I will direct that the sum of $10,000 paid into court as a cash surety may, on presentation of an authority signed by Sen Fang directing that it be paid to Paul William Edmonds Legal Practice Trust Account, be paid out to Paul William Edmonds Legal Practice Trust Account.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 25 September 2015 |
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