R v Liu

[2022] NSWSC 1030

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Liu [2022] NSWSC 1030

Hearing dates:

20 July 2022

Date of orders:

20 July 2022

Decision date:

20 July 2022

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

Bail granted with conditions.

Catchwords:

BAIL – release application – reckless wounding –interpretation of s 16B(1)(d)(i) Crimes Act 1900 (NSW) – whether s 16B(1)(d)(i) relates to any offence that constitutes a serious indictable offence under Part 3 or 3A Crimes Act 1900 (NSW) or only those involving the use of a firearm – not a show cause offence – unacceptable risk test – bail granted – conditions imposed

Legislation Cited:

Bail Act 2013 (NSW), ss 16, 16B, 17, 20

Crimes Act 1900 (NSW), s 35(4)

Firearms Act 1996 (NSW)

Category:

Principal judgment

Parties:

Xiaopeng Liu (Applicant)
Regina (Respondent)

Representation:

Solicitors:
Lloyd Truman Sadiq Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2022/155847

EXTEMPORE JUDGMENT (revised)

1. HIS HONOUR: Xiaopeng Liu, to whom I shall refer as the applicant, has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (the Act). The applicant is currently 25 years of age, having been born on X XXXXX X 1996. He has been in custody since 5 December 2021, having been charged with offences of reckless wounding and assault. Those matters are listed for hearing at the Bankstown Local Court on 10 October 2022.

2. At the commencement of this matter a preliminary issue arose as to whether the offence of reckless wounding under s 35(4) of the Crimes Act 1900 (NSW) is a show cause offence. The answer to that question depends upon the interpretation given to s 16B(1)(d)(i) of the Act. That provision provides that “a serious indictable offence under Part 3 or 3A of the Crimes Act 1900 or under the Firearms Act 1996 that involves the use of a firearm” is a show cause offence.

3. It is not in dispute that the applicant is charged with offences against Part 3 of the Crimes Act. The reckless wounding offence is also a serious indictable offence. The issue is whether s 16B(1)(d)(i) relates to any offence that constitutes a serious indictable offence under Part 3 or 3A of the Crimes Act, or only those which involve the use of a firearm. I am of the view that it is only those offences involving the use of a firearm. Looking at s 16B(1)(d) more broadly, it is apparent that in subpars (ii) and (iii) the concern of the legislature is with firearms. Moreover, the more natural meaning of the words in subpar (i) is, to my mind, that the words “that involves the use of a firearm” qualify all the offences referred to in the earlier part of that sentence. That natural reading, in conjunction with the immediate context, suggests strongly to me that s 16B(1)(d)(i) is concerned only with those offences within Part 3 or 3A of the Crimes Act or under the Firearms Act 1996 (NSW) that involve the use of a firearm. That is not the case here.

4. I therefore find that the offence is not a show cause offence. That being the case, the offences are matters to which only the unacceptable risk test applies. On that basis, pursuant to s 19 of the Act, if, on the basis of an assessment of the bail concerns the applicant presents an unacceptable risk, then bail must be refused. Conversely, if there are no unacceptable risks then bail must be granted either with or without conditions or the person must be released without bail or bail must be dispensed with pursuant to s 20 of the Act.

5. The bail concerns are the matters referred to in s 17 of the Act. In assessing the acceptability of risk, it is necessary to have regard to the nature of the allegations against the applicant. The circumstances involve a dispute between the applicant and his mother, and a tenant that resided at the premises that they shared. For present purposes it is sufficient to note that the allegations are concerning, involving the use by the applicant of a meat cleaver swung in the direction of the complainant's head and causing a laceration to the complainant's finger. There is, however, an issue as to the applicant's guilt with respect to the offences. The matters are set down for hearing. The applicant, as I understand it, contends that the violence was initiated by the complainant and that in fact, it was the complainant that picked up the knife and that the injury happened after the applicant was able to disarm the complainant. It is the applicant's case, as I understand it, that he was at all times acting in self-defence.

6. The bail concerns in s 17 are, firstly, the risk of non-appearance. The Crown very properly concedes that in the context of this case where the applicant has a minimal record, close family ties, and no previous suggestion of any failure to appear, there is minimal risk of failing to appear. I am of the view that having regard to the conditions that can be imposed, any risk of failing to appear is not an unacceptable one.

7. In relation to the risk of the commission of a serious offence, whilst the applicant does have convictions in 2015 and 2016 for matters of common assault, there has been a significant gap in time since those offences. Further, there is a particularity about the circumstances surrounding the present allegations that is unlikely to be repeated, further attenuating the risk of a serious offence being committed if the applicant is granted bail.

8. Similarly, in relation to the risk of danger to victims, individuals and the community. In that regard, I particularly note that the complainant has moved from the residence and his whereabouts are not known to the accused or his family. In those circumstances the Crown properly concedes that there is no risk to the complainant. That also impacts in relation to the risk of interference with witnesses or evidence. If the applicant does not know the whereabouts of the complainant, then there is no risk of the applicant interfering with that person.

9. In all of those circumstances, I am of the view that having regard to the conditions that can be imposed, there are no unacceptable risks and bail should, therefore, be granted on conditions.

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Amendments

02 August 2022 - [1] - anonymised date of birth

Decision last updated: 02 August 2022