Re Hua
[2019] VSC 637
•19 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0187
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| -and- | |
| IN THE MATTER of an application for bail by MING-RUI HUA | |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 September 2019 |
DATE OF JUDGMENT: | 19 September 2019 |
CASE MAY BE CITED AS: | Re Hua |
MEDIUM NEUTRAL CITATION: | [2019] VSC 637 |
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CRIMINAL LAW — Application for bail — Applicant, aged 24, charged with rape by compelling sexual penetration — Offence charged predates Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) — Whether prima facie entitlement to bail or requirement to show ‘compelling reason’ — Offence not appearing in Schedule 2 of the Bail Act 1977 (Vic) — Whether ‘unacceptable risk’ of surrendering into custody — No prior criminal history — Delay to prospective trial means, if ultimately convicted but not bailed, resulting sentence likely to exceed time in custody — Risk of requesting voluntary removal pursuant to Migration Act 1958 (Cth) s 198(1) — Bail opposed by respondent — Bail granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C A Boston | Emma Turnbull Lawyers |
| For the Respondent | Mr J P Siggins | John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
Overview
This is an application for bail by Ming-Rui Hua.
Mr Hua faces one charge of rape by compelling sexual penetration,[1] alleged to have occurred on 5 June 2015 in the course of massage services provided to the complainant at a store at Highpoint Shopping Centre.
[1]Contrary to the Crimes Act 1958 (Vic) s 38(3), as at 5 June 2015 (the maximum penalty for which was fixed by s 38(1) at two years’ imprisonment).
The applicant was charged on 27 July 2015. However, due to police being unable to locate him for a period of approximately four years, he was not arrested in relation to this matter until 3 July 2019. The applicant has remained in custody since his arrest.
Having been satisfied that the applicant does not pose an unacceptable risk, at the conclusion of the hearing of the application, I released him on bail with conditions of the kind proposed by counsel. I also gave ex tempore reasons for so finding and indicated I would publish more detailed reasons. These are those more detailed reasons.
The alleged offending
The prosecution case is that, at about 5:45 pm on 5 June 2015, the complainant sought massage services from a store at Highpoint Shopping Centre, where the applicant was employed as a masseuse. The complainant sought a neck, shoulder and back massage to assist with a sports injury and selected a 40-minute massage. The complainant alleges that he was then approached by the applicant and asked whether he wanted to upgrade his service to include an oil massage for an additional fee, to which the complainant apparently agreed, and then followed the applicant to the rear corner of the store behind a curtain.
At the applicant’s request, the complainant removed his shirt and jeans, but kept his underwear on. The applicant commenced the massage and, after about 30 minutes, asked the complainant to lie on his back. The applicant then began massaging the complainant’s right hip and stomach area with his left hand. During this time, it is alleged that the applicant leant across the complainant’s body, such that his elbow rubbed against the complainant’s penis several times. It is the complainant’s evidence that he thought this was an accident, so he did not say anything to the applicant.
The applicant is then alleged to have asked the complainant if he wanted an extra 10 minutes of massage time. The complainant apparently said he did not. The applicant continued to massage the complainant’s stomach area, moving his hands lower over the complainant’s abdomen. The applicant is then alleged to have pulled the complainant’s underwear down and taken hold of the complainant’s penis and gently squeezed it before inserting the complainant’s penis into his (the applicant’s) mouth. The complainant’s evidence is that it lasted for about one second before he sat up and said, ‘No’, to which the applicant is alleged to have replied, ‘Sorry’, and then left the room.
The complainant alleges that he then put his clothes on and left the massage room, at which point he was asked for payment in the reception area by another staff member. The complainant refused and informed the staff member that the applicant had tried to perform oral sex on him. It is said that the staff member spoke with the applicant briefly, and they agreed to let the complainant leave the store without paying at about 6:36 pm.
Ten minutes later, the complainant telephoned his housemate (to no avail) and then sent him (the housemate) a number of messages, during the course of which the complainant said, ‘Just got some good and bad news’, followed by, ‘good: I just got lips on my dick’. The complainant then disclosed the incident to the housemate over the telephone.
On 12 June 2015, the complainant went to the Footscray Police Station and provided a signed statement detailing the incident. During the course of the investigation, police obtained a statement from the complainant’s housemate, as well as the closed-circuit television footage from Highpoint Shopping Centre depicting the applicant exiting and entering the store several times following the incident.
On 3 July 2015, a search warrant was executed at the store, which located a notebook verifying that the applicant had worked there on the day of the alleged offending, 5 June 2015. Police also obtained photographs of the store and took statements from four staff members. One of those statements was provided by the manager of the store, who further confirmed that the applicant had worked on 5 June 2015.
Arrest, charge and refusal of bail
On 3 July 2019, the applicant attended the Department of Home Affairs (‘DHA’) office in Melbourne to obtain a bridging visa, which I am told by the applicant’s partner, Benoit Canton — who gave evidence before me on the application — was granted for a period of one week. Police were notified of the applicant’s presence at the DHA office and he was subsequently arrested and conveyed to the Melbourne West Police Station for interview.
During the interview, the applicant stated that he remembered the incident at Highpoint Shopping Centre as the complainant had argued with staff and refused to pay for the massage. The applicant stated that the complainant was wearing loose-fitting underwear and that, during the massage, the complainant’s penis had poked out of the bottom of his underwear such that he may have unintentionally brushed it during the massage. The applicant denied that anything of a sexual nature had occurred, denied that he had intentionally touched the complainant’s penis, and denied that he had placed the complainant’s penis in his mouth.
The applicant also stated in the interview that he was aware that police had been attempting to speak to him since late 2018 and that he had seen his image on the ‘website’ around the time of Christmas 2018.[2] The applicant stated that he had been meaning to speak to police since that time and that he wanted to sort out his visa situation first. He stated that it was his intention to return home to China lawfully so that Mr Canton could visit him and they could sort out their future, and that he was planning on speaking to the police ‘tomorrow’ (i.e. 4 July 2019) to provide his side of the story because he did not want to leave the country with ‘this case hanging up’.[3]
[2]This was a reference to a Crime Stoppers report regarding the alleged offending.
[3]I understood this to be a reference to the idiom ‘hanging over [his] head’.
On 5 July 2019, a filing hearing proceeded in the Magistrates’ Court at Melbourne and the applicant was remanded in custody to a committal mention on 30 August 2019. The matter is due to return before that Court for contested committal hearing on 9 December 2019.
On 16 August 2019, an application for bail was commenced in the Magistrates’ Court at Melbourne. The application was adjourned part-heard and, on 23 August 2019 when the matter returned before that court, the applicant was refused bail on the basis that he was an unacceptable risk of failing to surrender into custody in accordance with conditions of bail.[4]
[4]See Bail Act 1977 (Vic) s 4E(1)(a)(iv).
Mr Hua’s background
The applicant is a 24-year-old Chinese national with no prior criminal history.
In 2012, at the age of 16, he arrived in Australia on a student visa to complete secondary schooling. His visa expired sometime in 2013 or 2014[5] when his father ceased paying school fees, but he remained in Australia unlawfully until his arrest on 3 July 2019. I am told by Mr Canton that the applicant had a passport which he had lost. As I indicated earlier in these reasons, immediately prior to his arrest, the applicant was issued a bridging visa, which visa expired on 11 July 2019.
[5]The evidence before me on this point is divergent. Whereas material filed on behalf of the applicant indicates it occurred in July 2013, material filed on behalf of the respondent indicates that it instead occurred in February 2014. No issue was made of the fact of that inconsistency by counsel on the hearing, and I do not consider it material to my determination of the application.
I understand that the applicant was raised by his grandmother and has no meaningful relationship with his parents back in China.
Prior to being in custody, the applicant has resided with Mr Canton in the Melbourne CBD. Mr Canton gave evidence that they met and commenced a relationship in February 2018 and have been living together for a period of more than 12 months, the applicant having moved in with him a few months after they met. As far as he is concerned, the relationship is a serious and committed one, he is in love with the applicant, and they plan to stay together. Mr Canton has offered a surety in the sum of $5,000 which, to him, is a very significant amount of money.
Some argument arose as to whether Mr Canton’s evidence about the applicant’s intentions is inconsistent with the applicant’s answers to police in his record of interview. It does seem to me that what the applicant said in that interview is at least consistent with him desiring to regularise his position in Australia, although that also seemed to contemplate that, at least at one stage, he would have to return to China to do so.
The application for bail
The applicant is charged with rape by compelling sexual penetration, contrary, as the charges express, to s 38(3) of the Crimes Act1958 (Vic) as at 5 June 2015.[6] At that time, in its entirety, s 38 read:
[6]That is, Authorised Version No. 249C incorporating amendments as at 3 June 2015.
38 Rape
(1)A person must not commit rape.
Penalty: Level 2 imprisonment (25 years maximum).
(2)A person commits rape if—
(a)he or she intentionally sexually penetrates another person without that person’s consent—
(i)while being aware that the person is not consenting or might not be consenting; or
(ii)while not giving any thought to whether the person is not consenting or might not be consenting; or
(b)after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.
(3)A person (the offender) also commits rape if he or she compels a person—
(a)to sexually penetrate the offender or another person, irrespective of whether the person being sexually penetrated consents to the act; or
(b)who has sexually penetrated the offender or another person, not to cease sexually penetrating the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.
(4)For the purposes of subsection (3), a person compels another person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act—
(a)without the victim’s consent; and
(b)while—
(i)being aware that the victim is not consenting or might not be consenting; or
(ii)not giving any thought to whether the victim is not consenting or might not be consenting.
The Crimes Act has since been amended.[7] Those amendments, which commenced operation on 1 July 2015, included repealing the form of s 38 extracted above that was in force at the time of the alleged offending. In its current form, s 38 still criminalises an offence of rape simpliciter, but rape by compelling sexual penetration is now proscribed by s 39(1), rather than the former s 38(3). Sections 38 and 39, in their entirety, now provide:
[7]See Crimes Amendment (Sexual Offences) Act 2016 (Vic). See especially ss 10-11.
38 Rape
(1)A person (A) commits rape if—
(a)A intentionally sexually penetrates another person (B); and
(b)B does not consent to the penetration; and
(c)A does not reasonably believe that B consents to the penetration.
(2)A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
(3)The standard sentence for an offence against subsection (1) is 10 years.
Notes
1.An exception applies to this offence—see section 48A.
2.See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.
3.An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.
39 Rape by compelling sexual penetration
(1)A person (A) commits an offence if—
(a)A intentionally causes another person (B)—
(i)to sexually penetrate A; or
(ii)to sexually penetrate themselves; or
(iii)to sexually penetrate another person (C) or an animal; or
(iv)to be sexually penetrated by C or by an animal; and
(b)B does not consent to the sexual penetration; and
(c) A does not reasonably believe that B consents to the sexual penetration.
(2)A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
Note
An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.
A question of the applicable test
The repealed s 38(3) and the substituted s 39(1) are, obviously, in quite different terms. The applicant’s alleged offending predates the amendments and, for this reason, a preliminary issue arises for determination on this application.
Section 4 of the Bail Act 1977 (Vic) makes plain that the applicant is entitled to be granted bail unless that Act requires the court to refuse bail.
However, the preliminary question arising is as to which category the applicant is in for the purposes of the Bail Act and, therefore, the relevant test for bail which applies to his application. If the applicant is charged with an offence that falls within Schedule 2 of the Act, then he is required to show a compelling reason that justifies a grant of bail.[8] Otherwise, the prima facie entitlement to bail is not displaced.
[8]See Bail Act 1977 (Vic) s 4AA(3).
Submissions
Counsel for the applicant and the respondent both contended that the applicable test for bail is, in accordance with s 4AA(3), one of having to show a compelling reason.
Ms Boston, who appeared for the applicant, submitted that the substantive offence of rape (as at 5 June 2015) was contained in s 38(1) of the Crimes Act, with the definitions constituting that offence then contained in s 38(2) (rape simpliciter) and s 38(3) (rape by compelling sexual penetration). She submitted that, because the applicant is accused of rape — albeit charged under the form of the offence in s 38(3) — the offence itself is nonetheless one against s 38(1). On her submission, because s 38(1) is an offence specified in Schedule 2 of the Bail Act, it follows that the applicable test for bail would be one of showing a compelling reason.
Mr Siggins, who appeared on behalf of the respondent, conceded that the applicant here is charged with an offence against s 38(3) — as stipulated on the charge-sheet. As I understood him, by a similar path of reasoning to that advanced on behalf of the applicant, Mr Siggins submitted that the applicant was charged under s 38(3) as an extension of the substantive offence in s 38(1), and therefore an offence contained in Schedule 2.
Alternatively, he contended that because the offence of rape by compelling sexual penetration is now one proscribed by s 39(1) of the Crimes Act, the legislative pathway that, on his submission, engages Schedule 2 of the Bail Act is therefore via the current s 39(1), rather than the former s 38(3), applied as though Schedule 2 impliedly recognises the prior form of the Crimes Act — that is, the former s 38(3).
Analysis
The applicant is appropriately charged with an offence contrary to the law as it was at the time the offence is alleged to have been committed. Whether he has a prima facie entitlement to bail or is required to show a compelling reason is to be determined by an examination of Schedule 2.
Schedule 2, at the items relevant to this application, contains the following:
…
9.An offence against section 38(1) of the Crimes Act 1958 (rape).
10.An offence against section 39(1) of the Crimes Act 1958 (rape by compelling sexual penetration).
…
As I observed to counsel in the course of submissions, this issue concerns the liberty of the subject. In my view, it is encapsulated in the common law presumption that Parliament does not interfere with fundamental rights without a clear expression of an unmistakable and unambiguous intention to that effect.[9] Accordingly, it seems to me appropriate that Schedule 2 be construed strictly.
[9]See, eg, Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427.
I must reject counsel’s submissions, to the extent they do so, that the offence with which the applicant is charged — namely, s 38(3) of the Crimes Act in force on 5 June 2015 — is, in fact or in effect, an offence against the former s 38(1).
This is a case where the offence charged is plainly one against s 38(3). So much is apparent from the charge-sheet. There is no reference in Schedule 2 to either, in general terms, a s 38(3) or, specifically, to what was s 38(3) as at the time that this offence is alleged to have been committed.
Accordingly, as the section under which the offence is charged does not appear in Schedule 2, the applicant has a prima facie entitlement to bail and is not required to show a compelling reason why bail should be granted.
The alternative path of reasoning
In so finding, it is strictly unnecessary to determine, if an applicant instead were charged with an offence against s 38(1) in force on 5 June 2015 (unlike the present case) but that that charge were still put on the basis of rape by compelling sexual penetration (like the present case), whether that offence would be captured by Schedule 2. I think it is preferable for consideration of that question to await a case in which it is thought to be determinative.
However, because the same considerations equally would apply if I am wrong about the characterisation of the offence with which the applicant here is charged — that is, that an offence against s 38(3) is not, in effect, an offence against s 38(1) — it is appropriate that I go on to consider the balance of counsel’s submissions on this point.
The items of Schedule 2, for the most part, are not couched in general terms, although offences contrary to common law, the penalties for which are fixed by statute, are identified only by their descriptor.[10] By contrast, items 9 and 10, the subject of this application, identify not merely offences of ‘rape’ and ‘rape by compelling sexual penetration’ by descriptor alone, but, specifically, ‘an offence against s 38(1)’ (which is then particularised as rape simpliciter) and ‘an offence against s 39(1)’ (which is then particularised as rape by compelling sexual penetration).
[10]See, eg, Bail Act 1977 (Vic) sch 2 item 2 (manslaughter) and item 3 (child homicide). The same is true of Schedule 1 offences — see, eg, item 1 (treason) and 2 (murder) thereof.
In my view, where an item of Schedule 2 specifies both an offence against a section of an Act and provides a descriptor of that offence (as it does vis-à-vis items 9 and 10), to fall within the purview of that item (and therefore the schedule), the offence charged must reflect both the relevant section of the Act identified and the descriptor of that offence contained in parentheses. The absence of one or other of those features, in my view, would be fatal to engaging the application of the schedule. To conclude otherwise would create a discord that could not have been intended by the drafters of the schedule — namely, that the descriptor of the offence is not reflective of the section nominated by the impugned item and/or the section against which an applicant for bail has been charged (or vice versa).
It could be argued, at least before s 38 was amended, that rape by compelling sexual penetration, strictly, given the former drafting of that section, was a subset of rape. But that is not to the point. The drafters of the amendments to the Crimes Act and of Schedule 2 contemplated a distinct separateness between the offences of rape simpliciter and rape by compelling sexual penetration, which is reflected in the drafting of the legislation. The amendments removed rape by compelling sexual penetration from the former ‘catch‑all’ s 38 and inserted the new s 39(1) offence as a separate provision and a distinct offence. Similarly, that separateness is also reflected in items 9 and 10 of Schedule 2.
The alleged offending here is not an allegation of rape in the form of rape simpliciter. Therefore, even if the applicant’s charge against s 38(3) were instead ought properly to be characterised, by implication, as an offence contrary to s 38(1), it could not be regarded as caught by item 9 of Schedule 2 because the offending, by definition, is rape by compelling sexual penetration.
Additionally, items 9 and 10 do not identify those offences as offences against ss 38 and 39, collectively. Put another way, they are not couched as ‘an offence against s 38 … (rape)’ or ‘an offence against s 39 … (rape by compelling sexual penetration)’. Were that the case, then, in theory, it may have been more arguable for a charge under one of the repealed subsections, like in the present case, to fall within Schedule 2. But, for the first of these two reasons I have given, I do not accept, at least in the case of s 38(3), that that would be open. Section 38(2), on the other hand, may be in a slightly different category, which I shall shortly deal with.
In any event, the fact remains that items 9 and 10 simply do not contemplate that level of generality. Conversely, they identify, specifically, an offence against the respective sub‑s (1) thereof.
Therefore, in my view, item 9 would not extend to an applicant for bail charged with rape by compelling sexual penetration within the meaning of s 38(3) where either:
(a) the offence charged in fact (i.e. reflected on the charge-sheet) was an offence of rape (i.e. in general terms) contrary to s 38(1) with particulars of by compelling sexual penetration within the meaning of s 38(3); or
(b) the offence charged in fact (i.e. reflected on the charge-sheet) was an offence of rape by compelling sexual penetration contrary to s 38(3) (as it is in this case), but, contrary to my view, characterised, by implication, as an offence against s 38(1).
An offence of rape simpliciter against s 38(2) via s 38(1)
I foreshadowed earlier in these reasons that an offence of rape simpliciter, as contained in the former s 38(2), may be in a category distinguishable to the case of s 38(3). This could only be the case if:
(a) the offence charged in fact (i.e. reflected on the charge-sheet) was an offence of rape contrary to s 38(1) with particulars within the meaning of s 38(2); or
(b) the offence charged in fact (i.e. reflected on the charge-sheet) was an offence of rape simpliciter contrary to s 38(2) (analogous to this case), but, again contrary to my view, characterised, by implication, as an offence against s 38(1).
In either of those circumstances, the offence charged, in fact or in effect, would properly reflect both the relevant section of the Crimes Act identified by item 9 (namely, s 38(1)) and the descriptor of that offence. I hasten to note, though, that that is not this case.
The test applied: unacceptable risk
On that basis the applicant has a prima facie entitlement to bail and the question that now arises is whether the respondent has established that releasing the applicant on bail carries an unacceptable risk of the kind contemplated by s 4E of the Bail Act.
The application for bail must be refused if the Court is satisfied that, were the applicant released on bail, there would be an unacceptable risk that, while on bail, he would do any of the things listed in s 4E(1)(a), namely:
(i)endanger the safety and welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
It is only the last sub-paragraph thereof — that is, an unacceptable risk of failing to surrender into custody in accordance with the conditions of bail — which I understand to be in contention on this application. It is the respondent who bears the burden of satisfying me as to the existence of that risk and that that risk is unacceptable.[11]
[11]See Bail Act 1977 (Vic) s 4E(2).
In assessing whether any relevant risk is unacceptable, s 4E(3) requires me to have regard to the ‘surrounding circumstances’ contained in s 3AAA and to consider whether there are any conditions of bail which may be imposed to mitigate the risk so that it is not an unacceptable risk.
Finally, when interpreting the Bail Act, I am also required, by s 1B, to take into account the following ‘guiding principles’:[12]
The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
[12]Bail Act 1977 (Vic) s 1B(1).
State criminal justice stay certificate
The applicant raised, as a matter mitigating the unacceptability of the risk of his release, the availability of a State criminal justice stay certificate to be given so as to prevent his removal or deportation, as an unlawful non-citizen, from Australia. It is convenient, at this point, to set out the provisions of the Migration Act 1958 (Cth) which pertain to State criminal justice stay certificates.[13]
[13]Although not relevant to this application, a similar provision exists for Commonwealth criminal justice stay certificates. See Migration Act 1958 (Cth) s 147.
Section 148 of the Migration Act reads in the following terms:
148State criminal justice stay certificate
(1)If:
(a)an unlawful non-citizen is to be, or is likely to be, removed or deported; and
(b)an authorised official for a State considers that the non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and
(c)that authorised official considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia;
the official may give a certificate that the stay of the non-citizen’s removal or deportation is required for the administration of criminal justice by the State.
(2)For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).
The ‘administration of criminal justice’ is defined expansively in s 142 to mean:
(a)an investigation to find out whether an offence has been committed; or
(b)the prosecution of a person for an offence; or
(c)the punishment by way of imprisonment of a person for the commission of an offence.
For the purposes of s 148, the Minister for Home Affairs may appoint as an ‘authorised official’ the Director of Public Prosecutions for Victoria.[14]
[14]See Migration Act 1957 (Cth) s 144, where the definition of ‘authorised official’, in sub-s (b), includes ‘a person holding an office under a law of the State that is like the office of the Director of Public Prosecutions’.
The effect of a certificate given under s 148 is encapsulated in s 150:
150 Criminal justice stay certificates stay removal or deportation
If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported.
By contrast, s 198 provides, inter alia:
198 Removal from Australia of unlawful non-citizens
Removal on request
(1)An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
…
Whereas s 150 precludes a non-citizen being removed (or deported) from Australia, s 198(1) instead compels their removal upon the request by that non-citizen. Plainly, there is a competing tension between those two sections. However, for s 198 to have an effect, there must first be a request made to the Minister by the unlawful non-citizen which, in this case, can be dealt with by the imposition of a bail condition.
The applicant’s submissions
In addition to the absence of any criminal history, submissions on behalf of the applicant relied principally on four matters that, it was contended, militate against a finding that he is an unacceptable risk of failing to surrender into custody in accordance with conditions of bail.
First, it was submitted that the applicant, despite having become aware of his potential charge in late 2018, has not attempted to leave the jurisdiction at any stage. However, that submission, as Mr Siggins’ noted on behalf of the respondent, must be tempered by the fact that, at least in July 2019 in his record of interview, the applicant had contemplated the possibility of leaving the jurisdiction lawfully so as to resolve his unlawful status in Australia and plan his future with Mr Canton.
Second, Ms Boston submitted that the risk of flight is further lessened by the applicant’s ties to the jurisdiction (namely, his relationship with Mr Canton in Melbourne and the lack of any meaningful relationship with his parents back in China) and that he has not left the jurisdiction since he first arrived in Melbourne in 2012.
Third, it was further submitted that the risk of flight is negligible because:
(a) a passenger analysis clearance and evacuation (‘PACE’) alert would notify the informant of any application for voluntary removal from Australia; and
(b) the applicant’s removal or deportation from Australia could be prevented with a State criminal justice stay certificate given pursuant to the Migration Act. I note that, in this matter, no certificate has been given.
Fourth, counsel noted that enquiries made of the County Court on the applicant’s behalf revealed that, at present, a matter like this one faces a delay of approximately 13 months. Accordingly, it was submitted that, further to the two months already spent in custody since arrest, the applicant faces at least another 15 to 18 months in custody before a trial in that court is reached if bail were refused.
Submissions for the applicant also referred to the decision of Beach JA in Re Alsulayhim[15] as a comparator case in support of the application.
[15][2018] VSC 570.
Mr Alsulayhim, a Saudi Arabian citizen in Australia pursuant to a student visa, was charged with a raft of sexual, and other, offences against the person. He was aged 31 at the time of his application and otherwise had no prior criminal history. His wife, two children, parents and siblings all resided back in Saudi Arabia. Mr Alsulayhim was granted bail on a surety of $200,000 and with stringent conditions of bail.
On this application, it was submitted that Mr Hua ostensibly poses a lesser flight risk than did Mr Alsulayhim. In particular, the applicant contrasted Mr Alsulayhim’s absence of familial ties in Australia and extensive familial ties in Saudi Arabia with, on the other hand, his (Mr Hua’s) strong ties to Australia and limited ties to China.
It was also submitted that, like Mr Hua currently has, Mr Alsulayhim too had a possibility of being removed or deported from Australia before the allegations could be tested by the courts and criminal justice system. The following of Beach JA’s observations, in particular, were referred to:[16]
[32] The respondent contended that the applicant’s release on bail would constitute an unacceptable risk that he would ‘fail to surrender into custody in accordance with the conditions of bail’. Two points were relied upon: first, that the applicant may be deported prior to trial; and secondly, that the applicant would simply flee the jurisdiction.
[33] The informant’s concern that the applicant would be deported prior to trial is without relevant foundation. That concern fails to have regard to the provisions of div 4 of pt 2 of the Migration Act 1958 (Cth) (‘the Migration Act’). Section 148 of the Migration Act provides for the granting of a ‘criminal justice stay certificate’. A criminal justice stay certificate may be granted by an official for the State of Victoria who has been appointed by the relevant Commonwealth minister. If a criminal justice stay certificate is in force, ‘the non-citizen’ cannot be removed or deported. Subject to an appropriate official of the State of Victoria (highest ranking member of the police force, Director of Public Prosecutions or Attorney-General) giving a criminal justice stay certificate, there is no realistic prospect that the applicant could be deported prior to his committal or any subsequent trial.
[34] Turning now to the applicant’s risk of flight, in my view, any such risk can be ameliorated by the imposition of bail conditions as to a surety, residence, curfew, reporting to police, surrendering of passports and travel documents and the like. …
[16]Ibid, [32]-[34] (citations omitted).
Proposed conditions of bail
Counsel for the applicant proposed two sets of bail conditions — framed as alternatives to address any uncertainty presented by the applicant’s location and status in Australia — which the applicant would accept being imposed on him.
In the event that he were bailed and placed into immigration detention, conditions that the applicant undertake not to request voluntary deportation — that is, pursuant to s 198(1) of the Migration Act — and not have contact with any prosecution witness except the informant were proposed.
In the alternative, if a criminal justice stay certificate were ultimately given and the applicant were at large, counsel proposed conditions as to residence, reporting to police as required, surrendering passports and travel documents (including applying for such documents), not attending any international point of departure, and not contacting any prosecution witness except the informant.
The respondent’s submissions
The respondent pointed to the following matters which, it was said, evince an unacceptable risk that cannot be alleviated through the imposition of bail conditions:
(a) With the knowledge that his student visa had been cancelled years earlier and that police were looking to speak with him since late 2018, the applicant neglected to make contact with police and pursued an application in July 2019 to obtain a visa that enabled him to leave the country.
(b) The applicant indicated, in his record of interview, that the delay until July 2019 to arrange a visa was due to his financial situation. It follows, on the respondent’s submission, that the applicant thereby sought to leave the country when he was in a financial position to do so, knowing that, if he had approached police prior thereto, he then would not have been in a position to leave.
(c) Despite the relationship with Mr Canton relied on by the applicant as ostensibly tying him to the jurisdiction, he had indicated a preparedness to leave the jurisdiction without his partner nonetheless.
As to whether a criminal justice stay certificate could operate to ameliorate unacceptability of risk, Mr Siggins submitted that such a certificate would be ineffective.
On the previous application for bail before the magistrate, the respondent tendered written submissions (dated 28 May 2019) filed by the DHA, appearing as amicus curiae, in a matter before the Magistrates’ Court of Queensland. The submissions related, in particular, to the construction of s 150 of the Migration Act and its interplay with s 198(1). The submissions were adopted by the respondent again on this application before me.
In summary, the position of the DHA is described as regarding itself, ‘bound to remove an unlawful non-citizen as soon as reasonably practicable after he or she requests removal in writing under s 198(1) of the [Migration Act]; even if he or she is to stand trial for an offence against a law of a State.’ Accordingly, submitted Mr Siggins, any certificate given under s 148 would not prevent the applicant’s voluntary removal from Australia in the event that he were to make a request pursuant to s 198(1).
On those bases, the application was opposed.
Analysis of risk and conclusions
As I noted earlier in these reasons, the applicant has no prior criminal history. He has stable accommodation available to him and the support of his domestic partner. That support is further demonstrated by Mr Canton’s willingness to provide a surety of $5,000.
Some issue was made by the parties about the strength of the prosecution case. I simply would observe, at this early stage, that this is clearly a case in which there will be a contest between the complaint and the applicant as to what occurred and, in respect of what did occur, the intention with which it occurred. I would not categorise the prosecution case as overwhelmingly strong, but, on the other hand, there is clearly a case to be answered. Ultimately, these will be matters for a jury to determine.
The factor of significant concern on this application is delay. The applicant already has spent in excess of two months in custody since his arrest in July. The committal hearing is not listed until 9 December 2019 and enquires made of the County Court on behalf the applicant indicate a delay of approximately 13 months.
On account of the time before committal in December, if bail were to be refused at this stage, the applicant would, in all likelihood, remain in custody for a period exceeding 12 months and, on counsel’s submission, up to 18 months. Given the circumstances of the case alleged and the absence of criminal history, that, it seems to me, is likely to be far in excess of any sentence that would be imposed on him, were he to be found guilty of this offence.
Criminal justice stay certificate as a mitigating factor
While I am satisfied there is a risk that, if released on bail, the applicant will fail to surrender into custody in accordance with conditions of bail, I am not satisfied that that risk is an unacceptable one in all of the circumstances, including having regard to the conditions proposed.
The respondent, with some justification, expressed concern that, even if a criminal justice stay certificate were given, its effect would be displaced by the operation of s 198(1) of the Migration Act. As Mr Siggins conceded, the only significant concern in releasing the applicant on bail, from the respondent’s point of view, is that it still would be open for him to seek voluntary removal from Australia and return to China, with the practical effect of evading prosecution and, were there ultimately a finding of guilt, punishment.
The reality is that, if I were to grant bail, the applicant, at least for the foreseeable future, would be placed in immigration detention.
It is convenient, at this point, to reproduce the following passage, in particular, from Beach JA’s reasons:[17]
If a criminal justice stay certificate is in force, ‘the non-citizen’ cannot be removed or deported. Subject to an appropriate official of the State of Victoria … giving a criminal justice stay certificate, there is no realistic prospect that the applicant could be deported prior to his committal or any subsequent trial. …
[17]Re Alsulayhim [2018] VSC 570, [33].
While I accept his Honour’s reasoning in principle, the complication in the applicant’s reliance on Re Alsulayhim in this regard is that his Honour does not refer to the provisions of s 198, which compel removal from Australia at a non-citizen’s request. Whether a criminal justice stay certificate would negate such a request for voluntary removal, or whether the mandate in s 198(1) instead would prevail, is a question of statutory interpretation.
The interplay between ss 150 and 198 of the Migration Act is not an issue that, on this application, I need determine. As I observed to counsel in the course of the hearing, this is a risk which, at least in the present case, can adequately be addressed and made acceptable by the imposition of a condition of bail proscribing any request pursuant to s 198.
Orders
In all of the circumstances, given the evidence and the submissions that I have heard, I am satisfied that the imposition of conditions of the kind proposed on behalf of the applicant will alleviate the risk to the point where, although there is a risk, it becomes acceptable.
Accordingly, the application for bail is granted.
The applicant is released on bail with a surety of $5,000 and on the following conditions.
First, the applicant is to appear at the Melbourne Magistrates’ Court on 9 December 2019, and thereafter as directed by that Court.
Second, the applicant is not to make any request for removal from Australia pursuant to s 198 of the Migration Act.
Third, the applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant.
Fourth, in the event that a criminal justice stay certificate is given pursuant to s 148 of the Migration Act and the applicant is at liberty, the applicant will be subject to the following further conditions:
(a) the applicant is to reside at [REDACTED], which place of residence is to be varied only by order of a court;
(b) the applicant is to report to the officer-in-charge of the Melbourne West Police Station each Monday, Wednesday and Friday between 8:00 am and 6:00 pm;
(c) the applicant is to surrender any passport or travel document in his possession to the informant or his nominee within 24 hours of the conditions in these further conditions taking effect, and is not to apply for any other such passport or travel document;
(d) the applicant is not to leave the State of Victoria; and
(e) the applicant is not to attend any international points of departure.
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