R v Zhao
[2016] ACTSC 284
•21 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Zhao |
Citation: | [2016] ACTSC 284 |
Hearing Date(s): | 21 September 2016 |
DecisionDate: | 21 September 2016 |
Before: | Elkaim J |
Decision: | Bail is refused |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – bail application – s 20C Bail Act 2002 (ACT) – risk of flight – extra security |
Legislation Cited: | Bail Act 1992 (ACT), s 20C Confiscation of Criminal Assets Act 2003 (ACT) |
Parties: | The Queen (Crown) Lei Zhao (Accused) |
Representation: | Counsel Mr M Fernandez (Crown) Mr K Archer (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Number: | SCC 213 of 2016 |
ELKAIM J:
This is an application for bail made under s 20C of the Bail Act 1992 (ACT). The application is supported by an affidavit of Mr Kukulies-Smith affirmed on 19 September 2016.
The applicant was arrested on 14 July 2016. The next day he was charged with two offences of trafficking in a controlled drug. He denies the charges.
The applicant has been in custody since his arrest. The applicant has previously sought bail in the Magistrates Court. On 1 September 2016, bail was refused by Magistrate Campbell.
On 9 September 2016, the applicant sought a bail review before Magistrate Theakston. The learned Magistrate reserved his decision and then, on 15 September 2016, refused the application. The Magistrate’s major concerns were the risk of reoffending, the risk of flight, the strength of the prosecution case and the inadequacy of the proposed surety of $100,000.
The applicant is now 38 years of age. He is married and has two young daughters. He has lived in Australia since 2005. He receives financial support from both his parents and his wife’s parents, all of whom reside in China. The house in which he resides is owned by his wife (subject to a mortgage).
The applicant has said that he would accept a number of stringent conditions on any bail granted to him. These include reporting conditions, residential conditions, the surrender of his passport, limits on his travel and the provision of a cash surety of $100,000 and also security in the form the equity in his wife’s residence.
The application is opposed by the Crown. The Crown makes the points identified by Magistrate Theakston as set out above.
The accused is facing two charges of trafficking in controlled drugs other than cannabis. The monetary amounts are substantial. The “general information” provided by the Australian Federal Police indicates that the prosecution case is derived from inspection and analysis of a residential unit followed by telephone intercepts with a number of people indicating the sale of illegal drugs. The meetings identified through the telephone intercepts began on 30 April 2016 and continued at a steady pace until the arrest on 14 July 2016. Following the arrest, a search of the residential unit located a number of items associated with trading in illegal drugs.
Other than admitting to being an occasional user of methylamphetamines, the accused, in a record of interview, denied dealing with the drug.
The application today falls under s 20C of the Bail Act 1992 (ACT). Under this section, the court may only consider the application if it is satisfied that there has been a change of circumstances since the last application, or that there is fresh evidence that was unavailable at the last application.
In addition, there is no presumption in favour of bail.
Dealing first with whether there has been a change of circumstances, the applicant says the change is the now availability of security in the form of the equity in the house owned by his wife in McKellar. The bank records contained in Exhibit A indicate that there is an outstanding loan on this property of $500,000. The property is worth in the order of $660,000. Accordingly, says the applicant, there is extra security of about $160,000.
There are a number of concerns surrounding this asserted change of circumstances. Firstly, although the point was not taken by the Crown, I am not convinced that a potential extra condition of bail is a change of circumstances of the type envisaged by s 20C. However, as the Crown did not take this point, I will proceed on the basis that there has been a change of circumstances.
The second concern is that the Crown informed me that proceedings are underway under the Confiscation of Criminal Assets Act 2003 (ACT) for the police to obtain a restraining order in respect of any equity in the property. Although the Crown was not able to provide any specific evidence about the stage of this process has reached, I do accept that the process is underway. Any restraining order would immediately negate the validity of the surety.
The next concern arises from the bank records. It can be seen that from January to June of this year, payments out from the redraw loan substantially exceed payments in. The loan has now reached the stage of having travelled from a debt of $250,000 to the maximum redraw of $500,000. Clearly, more money is being taken out than put in. There has been no explanation. I note all of the transactions I have referred to occurred before the applicant was arrested.
In my view, both because of the transaction history and the application under the Confiscation of Criminal Assets Act 2008 (ACT), that the extra surety is far from reliable.
It was submitted on behalf of the applicant that two of the Crown’s principal concerns regarding bail are capable of being surmounted. The first of these is the likelihood of reoffending. The applicant has pointed out that this possibility is no more than speculation. The fact that the applicant may have debts does not necessarily mean that he will re-offend. The difficulty with the submission is that, based on the police case, the applicant has made a business out of his drug dealing and not out of his concreting.
There is no evidence to suggest that he is capable of reducing his debts through any honest work.
The next concern is the possibility of flight. The accused points out that he only has an Australian passport, which has already been surrendered, and the bail conditions, in particular those requiring frequent reporting, are likely to ensure he does not travel very far.
In addition it is pointed out that the applicant returned from China knowing that the police were interested in his activities, there having been a search warrant executed at his home.
I do not think the applicant’s return from China assists him. Notwithstanding his knowledge of police interest, the police case, which must be described as strong, demonstrates him engaging in continuing illegal activity following his return from China.
In addition I note his alleged statement to the police: “It’s okay. I’m careful and if there’s any trouble I’ll just go to China”. In the course of the hearing today, the applicant indicated through the interpreter that he denied making this statement. That should be taken into account, but the evidence also reveals a statement by the applicant on one of the intercepted phone calls that “if he was ever caught by the police selling drugs that it was his intention to flee to China.” (page 34 of the transcript of proceedings on 1 September 2016).
Another point made by the applicant was that he is unlikely to flee and leave behind his wife and two young children. This is generally a powerful point but is somewhat lessened in this case by the evidence that when his wife was away, the applicant invited a sex worker to reside at his home, which she did.
In my view the nature of the offences, the applicant’s close ties to China, his history of frequent travel to China, his lack of financial connection to Australia and his statements about his intentions all combine to make the risk of flight very real. I note here, as stated above, that the applicant’s home is entirely owned, subject to the mortgage, by his wife.
Taken with my comments about the lack of any real value in the extra security I think the result must be that the application is refused.
Accordingly the order of the Court is that the application for bail made in this court is refused.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: V Wei Date: 21 September 2016 |
0
0
2