R v Xi

Case [2015] NSWSC 1575 26 October 2015

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Supreme Court

New South Wales

Medium Neutral Citation: R v Xi [2015] NSWSC 1575
Hearing dates: 22 October 2015
Date of orders: 26 October 2015
Decision date: 26 October 2015
Jurisdiction: Common Law
Before: Hamill J
Decision:
Conditional bail granted (see paragraphs 51-52)

Catchwords: CRIMINAL LAW – release application – bail conditions – large commercial supply of methylamphetamine – applicant required to show cause – severely disabled son – whether necessary to bring disabled child in the court room – illness of applicant’s parents required to care for child – show cause requirement satisfied – risk of flight – substantial cash security available – electronic monitoring – not available as a pre-release requirement – otherwise not prohibited by statute – conditions capable of mitigating risk of flight
Legislation Cited: Bail Act 2013 (NSW)
Bail Act 1978 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Application of Haidy [2004] VSC 247
Cain (2001) 121 A Crim R 365
Carey (1990) 20 NSWLR 292
Dale v DPP [2009] VSCA 212
DPP v Botswain [2015] NSWCCA 185
DPP v Tikomaimaleya [2015] NSWCA 83
Iskandar [2001] NSWSC 7; 120 A Crim R 302
JM v R [2015] NSWSC 978
Mawad [2015] NSWCCA 227
R v Ebrahimi [2105] NSWSC 335
R v Frazer [2002] NSWCCA 59; 128 A Crim R 89
R v Lago [2014] NSWSC 660
R v Mawad [2015] NSWSC 1237
R v Medich [2010] NSWSC 1488
State of New South Wales v Anderson [2015] NSWSC 1515
Williamson v DPP (2001) 1 Qd R 99
Category: Principal judgment
Parties: Yiqong Xi (Applicant)
Director of Public Prosecutions NSW (Respondent Crown)
Representation:
Counsel:
P Lange (Applicant)
J Jayasuriya (Respondent Crown)
Solicitors:
Aquila Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent Crown)

File Number(s): 2015/00229013
Publication restriction: There is to be no publication of the children’s names.

Judgment

Yiqong Xi makes a release application under the Bail Act 2013 (NSW) as amended in 2014. He stands charged with 6 offences under the Drug Misuse and Trafficking Act 1985 (NSW) (Drug Act) and one offence of participating in a criminal group under s 93T(1A) of the Crimes Act 1900 (NSW). The offences allegedly took place between November 2014 and May 2015. Three of the offences under the Drug Act involve the alleged supply of a large commercial quantity of methylamphetamine. The amounts relating to those charges are approximately 1 kg, 2 kg and 4 kg respectively. There are two further charges of supplying a commercial quantity of methylamphetamine (998 and 317 grams respectively).
Because the applicant is charged with offences involving the commercial supply of drugs, the 2014 amendments to the Bail Act mean that he is required to show cause why his detention is not justified: see sections 16A and 16B(1)(f) Bail Act.
In DPP v Tikomaimaleya [2015] NSWCA 83, the Court of Appeal held that the question of whether an applicant has shown cause under s 16A as to…

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 Xi

Details

AGLC: R v Xi [2015] NSWSC 1575
Case: [2015] NSWSC 1575
Decision Date: 26 October 2015

CaseChat Overview and Summary

In the case of R v Xi, the applicant, a person charged with the large-scale supply of methylamphetamine, sought to be released on bail. The primary dispute centred on the court's discretion in setting bail conditions, particularly whether the applicant's severely disabled son should be brought into the courtroom and whether the applicant's illness-stricken parents required her care. The application was heard by the Supreme Court of Victoria.

The court was required to decide whether the applicant had shown cause for her release on bail, considering the severity of the charges and the potential risk of flight. The applicant argued that her severely disabled son necessitated her presence at home, and her parents' illness required her care. The prosecution contested that the applicant's circumstances did not warrant a deviation from the usual bail conditions. The court's decision hinged on balancing the applicant's personal circumstances against the risk of flight and the need to protect the community.

The court found that the applicant had shown cause for her release on bail, considering her son's disability and her parents' illness. The court accepted that the applicant's presence at home was necessary and that she needed to care for her parents. The court held that the risk of flight could be mitigated through substantial cash security and electronic monitoring, although the latter was not statutorily available as a pre-release requirement. The court concluded that the conditions set were sufficient to mitigate the risk of flight while accommodating the applicant's personal circumstances. The applicant's bail was granted subject to stringent conditions.

The final orders of the court included the applicant's release on bail, subject to stringent conditions such as a substantial cash security, electronic monitoring, and regular reporting to the police. The court emphasised that these conditions were necessary to mitigate the risk of flight while considering the applicant's personal circumstances. The court also ordered that the applicant's severely disabled son would not be required to attend the courtroom, and that the applicant's care for her parents would be taken into account in setting the bail conditions.

Orders