R v Xie - [2019] NSWSC 486

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie [2019] NSWSC 486
Hearing dates: 24 April 2019
Date of orders: 26 April 2019
Decision date: 26 April 2019
Jurisdiction: Common Law - Criminal
Before: Lonergan J
Decision:
Bail is refused

Catchwords: BAIL – show cause requirements – cause to take intoxicating substance with intent to commit indictable offence – indecent assault – flight risk – delay before trial
Legislation Cited: Crimes Act 1900 (NSW)
Bail Act 2013 (NSW)
Cases Cited: DPP v Hing [2017] NSWCCA 325
DPP v Tikomaimaleya [2015] NSWCA 83
Moukhallaletti v DPP [2016] NSWCCA 314
R v Kugor [2015] NSWCCA 14
Category: Principal judgment
Parties: Regina (Crown)
Raymond Xie (Applicant)
Representation:
Counsel:
D Mansour (Crown)
G Smith SC (Applicant)
Solicitors:
Crown Solicitor’s Office (Crown)
Ren Zhou Lawyers (Applicant)

File Number(s): 2019/34735
Publication restriction: Nil

Judgment

The applicant is a 41 year old businessman and has been charged with various counts of indecent assault pursuant to s 61L of the Crimes Act 1900 (NSW) (repealed) and two counts of cause to take intoxicating substance with intent to commit indictable offence (s 38(b) of the Crimes Act). These charges have a potential maximum penalty of 5 years and 25 years respectively. The charges involve two separate complainants. The applicant has been in custody since 23 September 2018.
A Chinese Mandarin interpreter was requested and provided for the hearing. The evidence led and submissions made were translated for the benefit of the applicant.
The Crown case is that on 6 August 2017, the applicant met the complainant, a young male visiting Sydney, at about 1.30am having approached him in the carpark offering to help him with getting back to his hotel and to charge his phone. The complainant was lost and intoxicated. The Crown case is that on arrival at the applicant’s unit in Lyons Road, Russell Lea, the applicant drugged the complainant and sexually assaulted him.
The complainant was rescued by his girlfriend. He underwent a SAIK examination. Analysis of liquid found in a plastic cup on the sink at the premises at Russell Lea was consistent with substances found on testing of the complainant’s blood and urine.
The second set of offences were said to have been committed on 23 September 2018 involving three counts of sexual intercourse without consent, cause to take intoxicating substance with intent to commit indictable offence, four counts of indecent assault, common assault and two counts of possess drug.
The circumstances of this offending on the Crown case was that the complainant used the dating app Tinder stating that he was a heterosexual male looking to meet a woman. He was matched with a person named “Lily” who set up an arrangement for him to attend premises at Lyons Road for a massage. There he was met by the applicant. The complainant says he was given an open beer by the applicant whilst waiting for “Lily” and that the applicant also offered him what he called “Japanese tobacco”. When he…

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 Xie

Details

AGLC: R v Xie [2019] NSWSC 486
Case: [2019] NSWSC 486
Decision Date: 26 April 2019

CaseChat Overview and Summary

The case of R v Xie was heard in the Supreme Court of New South Wales. The defendant, Xie, faced charges related to an alleged attempt to commit an indictable offence by taking an intoxicating substance with intent to commit indecent assault. The case revolved around the application for bail, specifically addressing whether Xie should be granted bail considering the gravity of the charges and the risk of flight if released. The court needed to determine if Xie posed a flight risk, the potential impact of delay on the trial, and whether the prosecution had met the requisite show cause requirements to deny bail.

The court was tasked with interpreting the show cause requirements under the Bail Act 2013 (NSW) and balancing the rights of the accused with the need to protect the community. The key legal issues included whether Xie's intent to take an intoxicating substance with the purpose of committing an indictable offence constituted sufficient cause to deny bail, and if the delay before the trial would unduly prejudice Xie's right to a fair trial. The court also considered the risk of Xie fleeing if released on bail, which would impact the administration of justice.

In delivering its judgment, the court examined the seriousness of the charges against Xie, including the potential harm to the alleged victim and the community. The court concluded that Xie's intent to commit an indictable offence by taking an intoxicating substance constituted a significant cause to deny bail, especially given the potential risk to the community. Additionally, the court found that Xie's history of absconding and the delay in the trial process warranted a finding that Xie posed a flight risk. Consequently, the court denied Xie's application for bail.

The final orders of the court were that Xie be remanded in custody pending the outcome of the trial. The court emphasised the need to protect the alleged victim and the broader community from any potential harm Xie might cause if released on bail.

Orders