Re Liang

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0147

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by Yingda LIANG

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2024
DATE OF RULING:	8 July 2024
DATE OF REASONS:	15 July 2024
CASE MAY BE CITED AS:	Re Liang
MEDIUM NEUTRAL CITATION:	[2024] VSC 416

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CRIMINAL LAW – Bail – Charges of aggravated burglary and persistent contravention of family violence notices and intervention orders – Schedule 2 offences – Requirement to show compelling reason – Nature and seriousness of alleged offending – Strength of prosecution case – Anticipated delay – Whether time spent on remand likely to outweigh any term of imprisonment – No criminal history – Availability of stable accommodation – Bail guarantee – Recent history of family violence – Family violence risks – Complainant presently outside the jurisdiction – Compelling reason established – Unacceptable risk not established – Bail granted for a limited period – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4C, 4D, 4E, 5AAAA, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the applicant	J Willee	Vstar Lawyers and Consultants
For the respondent	S Thomas	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

On 21 May 2024, the applicant, Yingda Liang (“Liang”), was charged with the following offences:
(1)Wilful entry of a private place without authority, contrary to section 9(1)(e) of the Summary Offences Act1966 (Vic) on 3 May 2024.
(2)Persistent contravention of notices and orders, contrary to section 125A(1) of the Family Violence Protection Act 2008 (Vic) between 8 May 2024 and 19 May 2024.
(3)Aggravated burglary, contrary to section 77(1) of the Crimes Act 1958 (Vic) on 19 May 2024.
(4)Assault, contrary to common law on 19 May 2024.
(5)Common assault, contrary to section 23 of the Summary Offences Act on 19 May 2024.
(6)Contravention of a family violence intervention order, contrary to section 123(2) of the Family Violence Protection Act on 19 May 2024.
(7)Contravention of an order intending to cause harm or fear for safety, contrary to section 123A(2) of the Family Violence Protection Act on 19 May 2024.
(8)Reckless conduct endangering life, contrary to section 22 of the Crimes Act on 19 May 2024.
The matter is next listed in the Magistrates’ Court at Melbourne on 14 August 2024 for a committal case conference and committal mention.
Liang has previously made 2 unsuccessful applications for bail in the Magistrates’ Court of Victoria. Liang first applied for bail in the Magistrates’ Court at Melbourne on 22 May 2024. The application was refused on the basis that the prosecution had established that Liang posed an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice.
Liang made a further application for bail in the Magistrates’ Court at Melbourne on 14 June 2024. The application was adjourned to 18 June 2024 to allow Liang to provide the court with further supporting documentation regarding his proposed bail guarantee. On 18 June 2024, Liang’s application was refused, again on the basis that the prosecution had established that Liang posed an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice.
On 25 June 2024, Liang filed a notice of intention to make an application for bail in this court.
In support of his application for bail in this court, Liang relied on a number of factors said in combination to establish the existence of a compelling reason justifying the grant of bail. These included triable issues with the prosecution case, delay and the length of time likely to be spent on remand if bail were refused, his lack of criminal history, his personal circumstances, including the dependence of his unwell father on him for care, the availability of stable accommodation and the availability of a bail guarantee.
Liang’s application was opposed by the prosecution on the basis that a compelling reason had not been established, but that in any event, Liang would present an unacceptable risk of endangering the safety of the complainant, interfering with her as a witness or otherwise obstructing the course of justice if he were to be released on bail.
At the conclusion of the hearing on 8 July 2024, orders were made granting Liang bail on his own undertaking and subject to certain conditions until 10.00am on 19 July 2024. At the time of making those orders, I informed the parties that reasons would be provided in due course. Those reasons are set out below.

B. Background

B.1 Liang’s personal circumstances

Liang is 24 years of age and is a Chinese citizen. He resides in Australia on a permanent resident visa.
Liang lives in the eastern suburbs of Melbourne with his father, who is retired. His mother lives in China and works for a family business.
Prior to his arrest, Liang worked from home as a music composer and sold music products online.
In around October or November 2023, Liang commenced an intimate relationship with the complainant in this matter, who is 18 years old and is also a Chinese citizen.
The relationship between Liang and the complainant ended in around April 2024.
During the course of their relationship, the complainant leased an apartment owned by Liang in Melbourne’s central business district. The complainant lived alone at the apartment.

B.2 Alleged offending

The following account is based on the prosecution case and comprises allegations only.
It is alleged that on the evening of 2 May 2024, at approximately 10.41pm, Liang, without forewarning to the complainant or receiving permission from her to do so, used his building key fob to gain access to the complainant’s building and then his apartment key to enter her apartment while she was out. He then allegedly used the complainant’s iPad to access her private messages and discovered that she appeared to have contacted another male 2 or 3 days prior.
Liang allegedly remained at the apartment until the complainant arrived home at approximately 3.50am the next morning in the company of a friend. It is alleged that Liang, who appeared to be intoxicated, then confronted the complainant about their recent break-up and the fact she had blocked his phone number. He also allegedly questioned her about who she had been contacting. When the complainant asked Liang to leave, he allegedly became aggressive. This incident was witnessed by the complainant’s friend. When Liang refused to leave, emergency services were called.
The verbal dispute escalated when Liang allegedly stood over the complainant and berated her, before taking possession of her mobile phone and Chinese passport. He then allegedly attempted to leave the apartment with these items before the complainant stopped him. In response to the complainant’s conduct, Liang allegedly punched the apartment walls and slapped himself in the face repeatedly. He then allegedly walked back into the living room area of the apartment and pushed a mirror onto the floor, causing the glass to break. The complainant allegedly cowered in the hallway and cupped her ears, fearful of Liang’s aggression.
Police attended the address at approximately 4.05am. After obtaining accounts from the complainant and Liang, police directed Liang to attend the Melbourne West police station. Following his police interview, Liang was issued with a family violence safety notice which prohibited him from contacting the complainant.
During Liang’s interview, he allegedly made certain statements and admissions to police, including that he had:
(1)Noticed the complainant had blocked his phone number and blocked him on the WeChat messaging platform.
(2)Attended the complainant’s apartment and read her messages with another person on the complainant’s iPad which caused him to feel angry.
(3)Waited inside the apartment until the complainant returned home.
(4)Questioned the complainant about who she had been messaging.
(5)Hit himself and a mirror during the confrontation and sustained a minor injury to his right hand as a result.
On 8 May 2024, on application by police, a family violence intervention order was made by the Magistrates’ Court at Melbourne naming Liang as the respondent. The order prohibits Liang from committing family violence0F[1] against the complainant, intentionally damaging the complainant’s property or threatening to do so, or getting another person to do anything he must not do under the order.
[1]As that term is defined in s 5 of the Family Violence Protection Act, including behaviour that is emotionally or psychologically abusive, threatening, coercive or behaviour that in any other way controls or dominates the affected person and causes them to feel fear for their safety or welling or the safety and wellbeing of another person.
On 18 May 2024, Liang allegedly asked a friend to add him and the complainant to a group chat in WeChat which would enable Liang to bypass the block the complainant had placed on Liang’s phone number. Liang’s friend agreed to do so.
On 19 May 2024, between 2.33am and 5.18am, Liang allegedly sent numerous messages to the complainant via the WeChat group chat Liang’s friend had created.1F[2] It is not necessary to repeat the contents of those messages at length. It suffices to note that in the messages, Liang repeatedly expressed his frustration with the complainant ignoring him and his sadness over the breakdown of their relationship. He also demanded to know where the complainant had been.
[2]Liang’s messages were written in Mandarin and were subsequently translated into English.
Immediately following this message exchange, at approximately 5.20am, Liang was captured on closed-circuit television attending the complainant’s apartment. He again used his building key fob and apartment key to gain entry to the apartment. Liang allegedly entered the complainant’s bedroom, climbed on top of her while she slept and began strangling her. He then allegedly demanded to know if the complainant was seeing other men and questioned her over their break-up. The complainant tried to scream for help and push Liang away, but she was unable to do so.
Liang then allegedly pushed the complainant back onto the bed and continued to grip her neck for approximately 5 minutes as he questioned her. In an attempt to stifle her screams for help, he allegedly placed his hand over her mouth and nose which affected her breathing. The complainant later told police that she believed she might die due to a lack of oxygen. The complainant begged Liang to stop, but he allegedly ignored her. She then bit down on Liang’s left hand, causing it to bleed.
At approximately 5.35am, the complainant managed to push Liang away and shortly thereafter contacted emergency services. Liang allegedly fled the apartment upon seeing the complainant dial triple-0.
At approximately 5.37am, while outside on the street, Liang was captured on closed-circuit television using his mobile phone to take a photograph of his left hand. He then allegedly sent the photograph to the complainant and he and the complainant then engaged in a series of text messages. Again, it is not necessary to repeat these messages in detail. Liang continued to accuse the complainant of seeing someone else and continued to ask why she would injure him. In response, the complainant stated, among other things, that she thought Liang was “horrific” and that she had almost died.
At approximately 5.50am, police attended the address and spoke with the complainant. Between 6.00am and 7.26am, and while police made enquiries with the complainant, Liang allegedly continued to send numerous messages to the complainant via the WeChat group chat.
At approximately 7.30am, police obtained a digitally recorded statement from the complainant.2F[3]
[3]At the time of the hearing, this recording had not yet been disclosed to Liang. It was played in open court during the course of the hearing. For completeness, police footage from a body worn camera had previously been disclosed which captured much of the complainant’s statement.
Between 8.58am and 10.56am, a conversation over WeChat between Liang and the complainant took place in which, among other things, the complainant threatened to take legal action against Liang. After allegedly receiving a number of lengthy messages from Liang, she again blocked any further messages from him.
Later that day, police attended the apartment and conducted a forensic examination of the premises. Police observed blood stains on the complainant’s bedsheets and on the skirting board behind the bedroom door. Police also photographed the complainant’s neck and a minor abrasion to her left thumb.
The complainant gave permission to police to examine her mobile phone to canvass recent messages sent by Liang. She disclosed to police that despite blocking Liang on mobile messaging platforms, a mutual friend had added her and Liang to a WeChat group chat which bypassed the blocking feature. She noted that Liang had continued to message her after the making of the family violence intervention order on 8 May 2024, and she alleged that Liang’s communications were coercive and emotionally abusive.
Mid-afternoon on the same day, Liang allegedly messaged the same friend on WeChat, again instructing him to create a new group chat to bypass the blocking feature. While Liang’s friend initially told Liang that he should not look for the complainant anymore as she had an order out against him and it would cause trouble, soon after, at Liang’s request, the friend created a new group chat.
Upon the new group chat being established, Liang allegedly sent numerous messages directed towards the complainant over a period of approximately 20 minutes.
It is further alleged that on 20 May 2024, at approximately 4.11am, a WeChat messaging exchange between Liang and the complainant commenced and continued throughout the day and into the early hours of 21 May 2024. It is alleged that in a series of messages exchanged between 1.23am and 5.55am on 21 May 2024, Liang attempted to entice the complainant into forgiving him and rekindling their relationship by offering her gifts of food, flowers, and clothes.
At approximately 10.00am on 21 May 2024, Liang was arrested at his home and was subsequently interviewed by police. During his record of interview, Liang confirmed that he went to the complainant’s apartment on 2 May 2024 and waited for her to return. Liang also confirmed that when the complainant arrived with her friend during the early hours of 3 May 2024, she asked him to leave. He said he hit a mirror because he was feeling sad over the break-up and because the complainant did not want to speak with him.
Liang also confirmed he entered the apartment again using his keys on 19 May 2024. He stated that his friend had told him that the complainant was going back to China, so he went to the apartment to check with her about the rent. He also wanted to check if she was leaving because he still loved her and wanted to see if they had a future. He stated that once inside the apartment, he saw all her possessions still there, signifying that she had not left. He stated he then took the rubbish out, went back to the ground floor and left via the carpark. He stated that he did not see the complainant whilst inside, but believed she was sleeping in her bedroom.
He further stated that the last time he had messaged the complainant had been a long time ago because she had blocked his phone number, and the last time they spoke in person was during the incident on 3 May 2024. He initially denied sending the complainant messages before the incident on 19 May 2024, but when shown photographs of messages on the complainant’s mobile phone, Liang acknowledged he had sent messages to the complainant, such as “I miss you”, via a WeChat group chat. When asked to explain the messages between approximately 5.00am and 6.00am on 19 May 2024, Liang explained that he was sad, told the complainant he loved her and wanted to know where she was.
On 22 May 2024, on application by police, the family violence intervention order made on 8 May 2024 was varied to include further conditions including that Liang must not contact or communicate with the complainant by any means, not approach or remain within 10 metres of the complainant and not go or remain within 200 metres of any place where the complainant lives, works or attends school. Liang did not agree to the order and the application was adjourned to 14 August 2024.

C. Legal principles

In interpreting and applying the Bail Act 1977 (Vic), the court is required to take into account the guiding principles set out in section 1B. These include the competing considerations of maximising the safety of the community, and the presumption of innocence and the right to liberty.3F[4]
[4]Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
Liang is charged with offences listed under Schedule 2 of the Bail Act, namely, aggravated burglary4F[5] and persistent contravention of notices and orders under the Family Violence Protection Act.5F[6]
[5]Bail Act, sch 2, item 22(b).
[6]Ibid, sch 2, item 19.
Accordingly, pursuant to section 4AA(3) of the Bail Act, he must demonstrate that a compelling reason exists to justify the grant of bail.
The expression “compelling reason” is not defined in the Bail Act. However, the construction adopted by Beach JA in Re Ceylan6F[7] has been subsequently applied on numerous occasions,7F[8] and was cited with approval by the Court of Appeal in Rodgers v The Queen8F[9] in summarising the principles to be applied when considering the compelling reason test:9F[10]
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is ‘difficult to resist’.
[7][2018] VSC 361, [45]-[48] (Beach JA). When Beach JA considered the meaning of “compelling reason” in this context, it was in determining whether there was “compelling reason why [an applicant’s] detention in custody is not justified” under a previous iteration of the Bail Act. The test outlined in s 4C(1A) of the current version Bail Act instead requires the court to refuse bail unless satisfied that “a compelling reason exists that justifies the grant of bail”. However, in Re Alsulayhim [2018] VSC 570, Beach JA stated that “[w]hile the statutory language is slightly different, the expression ‘compelling reason’ remains” and as such held that there was “no reason to depart from the analysis or holding in [Re Ceylan] concerning the proper construction of the expression ‘compelling reason’”: at [28].
[8]See, for example, Re JB [2020] VSC 184, [24] (Kaye JA); Re JM [2019] VSC 156, [56]-[57] (Champion J); Re Alsulayhim [2018] VSC 570, [27]-[28].
[9][2019] VSCA 214.
[10]Ibid, [43] (Beach, Kaye and Ashley JJA).
While it may be the case that none of the matters relied upon may be regarded as compelling individually, when taken together, their combined weight may satisfy the compelling reason test.10F[11]
[11]Re AC [2022] VSC 370, [72] (Champion J). See also, Re Koshani [2019] VSC 678, [6] (Ashley JA).

If satisfied that a compelling reason exists, the court must then determine whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.11F[12] In assessing that risk, the court must consider whether the risk posed may be mitigated by any conditions of bail.12F[13]
[12]Bail Act, s 4D(a).
[13]Ibid, s 4E(3)(b).
The court must refuse bail if satisfied that there is an unacceptable risk, notwithstanding that the compelling reason test has been met.13F[14] The notion of unacceptable risk does not concern merely any risk of offending. Rather, the question is whether such a risk is unacceptable.14F[15] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.15F[16]
[14]Ibid, s 4E(1).
[15]Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).
[16]Bail Act, s 4E(2).
In considering both whether a compelling reason exists and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.16F[17] Such surrounding circumstances include, but are not limited to, the following matters listed in section 3AAA(1) of the Bail Act:
[17]Ibid, ss 4C(3), 4E(3)(a).
…
(aa)whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—
(i) that the accused would be sentenced to a term of imprisonment; and
(ii)if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment.
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)       the strength of the prosecution case;
(c)       the accused’s criminal history;
…
(f)       whether there is in force—
(i)        a family violence intervention order made against the accused; or

(ii)a family violence safety notice issued against the accused; or

(iii)a recognised DVO17F[18] made against the accused;
[18]As that term is defined in s 4 of the Family Violence Protection Act: see the definition of “recognised DVO” in s 3 of the Bail Act.

(g)the accused’s personal circumstances, associations, home environment and background;
…
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

…

In cases such as this where an applicant has been charged with a family violence offence, section 5AAAA(2) of the Bail Act requires the court to consider:
…
(a) whether, if the accused were released on bail, there would be a risk that the accused would commit family violence; and
(b)whether that risk could be mitigated by—
(i) the imposition of a condition; or
(ii) the making of a family violence intervention order.
If the court is considering the release of an applicant on bail, it must impose any condition that, in the opinion of the court, will reduce the likelihood of the risk that the applicant may endanger the safety or welfare of any person, whether by committing an offence that has that effect or by any other means, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the bail undertaking.18F[19] However, those conditions must be no more onerous than is required to reduce the likelihood of the risk in question, and must be reasonable, having regard to the nature of the alleged offending and the circumstances of the applicant.19F[20]
[19]Ibid, ss 4E(1)(a) and 5AAA(1).
[20]Ibid, s 5AAA(2)(a) and (b).
In addition, the conditions of bail must, relevantly, be consistent with each condition of each family violence intervention order to which the applicant is subject unless the court is satisfied that a condition that is inconsistent with a family violence intervention order would better protect the safety or welfare of an alleged victim of the offence with which the accused is charged, or a protected person (within the meaning of the Family Violence Protection Act).20F[21]

D. Submissions

[21]Ibid, s 5AAA(2)(c) and (3).

D.1 Liang’s submissions

In support of bail, it was submitted on behalf of Liang that a compelling reason was established by the combined weight of several factors, namely:
(1)The strength (or lack thereof) of the prosecution case.21F[22] Although it was appropriately conceded on Liang’s behalf that the alleged offending is serious in nature, it was submitted that the prosecution case regarding the charges of aggravated burglary and conduct endangering life, in particular, are weak. This was argued on the basis that:
[22]Ibid, s 3AAA(1)(b).
(a)There are triable issues in relation to the complainant’s evidence, including in relation to her version of events given in her digitally recorded statement. It was submitted that police body worn camera footage from earlier that day suggests the complainant was reluctant to participant in the interview. It was further submitted that due to apparent language difficulties, it is unlikely that the complainant would have been able to understand the process she was involved with in any meaningful way, nor the consequences of the provision of inaccurate evidence, either intentionally or by mistake. In addition, it was submitted that words such as “strangulation” and other allegations were not elicited from the complainant, but rather were suggested by police during their questioning.
(b)The complainant has returned to China and there is no evidence that she will return to the jurisdiction. Instead, it is only assumed that she might do so to complete her university studies at the start of the next university semester.
(c)The informant gave evidence during the most recent bail application hearing in the Magistrates’ Court that he last spoke with the complainant on 6 June 2024 and she had indicated to him that she wished to provide a “statement of no complaint”, and that he was unaware that she had returned to China. Since 6 June 2024, the complainant has not responded to the informant’s emails.
(d)Although Liang has admitted to breaching the family violence intervention order and attending the complainant’s apartment on 19 May 2024, he denies all allegations of physical violence.
(e)The complainant did not seek medical attention after the events on 19 May 2024 and there are no medical reports of any injury. It was contended the photographs taken of the complainant by police do not show, for example, any marks, abrasions or bruising around her neck.
(2)The likely delay in the proceeding associated with the testing of the DNA22F[23] evidence.23F[24] The informant has given evidence that there will be a delay in the provision of the DNA evidence of approximately 8 months.
(3)The likelihood of Liang being sentenced to a term of imprisonment.24F[25] Liang has been on remand since 21 May 2024, and the matter is not listed in the indictable stream for mention until 14 August 2024. Accordingly, if not released, Liang will have spent 86 days in custody by that date. If Liang is acquitted on the aggravated burglary and reckless conduct endangering life charges, which it was submitted is probable due to the weak prosecution case in respect to those charges, it is unlikely that he would be sentenced to a term of imprisonment in respect to the remaining charges if proven. It was submitted that a compelling reason may be shown, without anything further, by an applicant being remanded in custody longer than any sentence of imprisonment that would likely be imposed.25F[26]
(4)Liang’s lack of criminal history,26F[27] although it was accepted he was the subject of family violence intervention orders at the time of the alleged offending.27F[28]
(5)The availability of stable accommodation.28F[29] Liang proposed to reside with his father at their family home, and his father offered to provide supervision of any bail conditions.
(6)The availability of employment.29F[30] It was initially proposed that Liang could continue his work as a music composer from home and sell music products online. During the course of the hearing however, Liang indicated that he was willing to accept a condition prohibiting him from using a computer if the court considered it to be appropriate.
(7)His father’s health issues.30F[31] Liang’s father has a torn, degenerate posterior horn of the medial meniscus requiring surgery. Liang’s father wishes for Liang to reside with him to provide essential support and care following his surgery. Although she is presently in Australia, Liang’s mother lives in China and is not in a position to provide that support to Liang’s father.
(8)The availability of a bail guarantee in an amount not less than $200,000 provided by Liang’s father.
[23]That is, deoxyribonucleic acid.
[24]Bail Act, s 3AAA(1)(k).
[25]Ibid, s 3AAA(1)(aa).
[26]Re Johnstone (No 2) [2018] VSC 803, [18] (Beach JA).
[27]Bail Act, s 3AAA(1)(c).
[28]Ibid, s 3AAA(1)(f)(i).
[29]Ibid, s 3AAA(1)(g).
[30]Ibid.
[31]Ibid.
In relation to the question of unacceptable risk, it was properly conceded by Liang’s counsel that there does appear to have been an escalation in Liang’s behaviour, and that his WeChat messages suggest he was a young man who was unable to move on and was jealous, and that the complainant was “probably experiencing coercive control”. However, it was submitted that the prosecution’s assertions that Liang posed an unacceptable risk of endangering the safety or welfare of the complainant or interfering with her as a witness were significantly, if not completely, diminished due to the complainant’s recent departure from the jurisdiction.
Further, it was submitted that it would be possible to sufficiently mitigate any unacceptable risk associated with a grant of bail by the imposition of conditions requiring Liang to:
(1)Reside at his family home.
(2)Be subject to a curfew from 6.30pm until 6.30am each day, or any other time interval deemed appropriate by the court.
(3)Provide an undertaking to engage in a men’s behaviour change program, or any other courses deemed appropriate by the court, and provide the court with the proof of such engagement.
(4)Surrender his passport and not attend any international points of departure.
(5)Comply with any current intervention order protecting the complainant.
(6)Report to the nearest police station on a frequency deemed appropriate by the court.
As noted above,31F[32] Liang’s father offered a bail guarantee in an amount not less than $200,000. Liang’s father was also willing to provide an undertaking to the court to immediately notify police if he became aware that Liang had breached any condition of bail, if bail were granted.
[32]See par 51(8) above.

D.2 Prosecution’s submissions

In response, the prosecution submitted that Liang had not discharged his burden of satisfying the court that a compelling reason exists that justifies the grant of bail.
Particular reliance was placed on the nature and seriousness of the alleged offending. It was submitted that the alleged prevention of breathing by choking or placing a hand over the mouth of the complainant is an extremely serious matter and was potentially life-threatening. It was further submitted that Liang’s behaviour demonstrates a troubling escalation of family violence, in circumstances where an intervention order and police involvement have failed to deter him from acting in the way that he did.
In addition, it was submitted that if these serious allegations are proven, Liang will face the prospect of an immediate term of imprisonment, with a likely head sentence and non-parole period. It was submitted that a term of imprisonment exceeding the ultimate time on remand is not out of range.
The prosecution did not accept Liang’s characterisation of its case as weak, and submitted that the prosecution case should be taken at its highest.32F[33] It was submitted that this is particularly so in circumstances where the hand-up brief was filed in early July 2024 and contains extensive evidence including body worn camera footage obtained by police at the scene, Liang’s record of interview (in which he appears to have made certain admissions), Mandarin to English translations of mobile phone messages (in which Liang also appears to have made certain implied admissions), copies of photographic exhibits and closed-circuit television footage of the complainant’s building. The only outstanding evidence relied upon by the prosecution is a statement from the police officer who conducted the complainant’s digitally recorded examination in chief and a statement from the police forensic services department in relation to the testing of the DNA and other biological evidence.
[33]While the court may be entitled to take the prosecution case at its highest in applications for bail, caution must be exercised in evaluating the strength of the prosecution case: see Re ML [2022] VSC 76, fn 19 (Jane Dixon J) and the cases there cited.
Although it was accepted that Liang has no criminal history, the prosecution emphasised the significance of the family violence intervention order made in relation to the complainant. The prosecution further submitted that Liang is the named respondent in a final family violence intervention order issued on 1 June 2023 in which a former partner is listed as the protected person.
The prosecution otherwise submitted that none of the other factors relied upon, either alone or in combination, met the threshold of a compelling reason. It was submitted that the evidence about Liang’s work was unsatisfactory, including because the identity of his employer was unknown. In relation to his father’s injury, it was submitted that it appeared his father had purposely chosen not to progress his surgery, notwithstanding that his wife is currently in Australia and has not yet booked a flight back to China. It was submitted that the evidence did not demonstrate that Liang’s father would be unable to undertake this surgery without his son being released on bail.
Even if a compelling reason could be established, the prosecution submitted that Liang posed an unacceptable risk of endangering the safety and welfare of the complainant, including by committing offences and interfering with her as a witness or otherwise obstructing the course of justice. It was submitted that the proposed conditions of bail were not capable of ameliorating these risks to an acceptable level.
In relation to the risk of Liang endangering the safety or welfare of the complainant, it was submitted again that Liang’s behaviour demonstrates a concerning escalation of violence toward the complainant and that court orders and police involvement have failed to deter him. It was submitted that Liang has also shown a complete lack of insight into the nature and seriousness of his behaviour, as demonstrated by his responses to the complainant in the aftermath of the alleged offending on 19 May 2024 in particular.
The prosecution further submitted that the alleged conduct in strangling the complainant on 19 May 2024 is a serious risk factor according to the Victorian Government Family Violence Multi-Agency Risk Assessment and Management Framework. In her most recent contact with the informant on 6 June 2024, the complainant expressed fear that Liang would continue to harass and endanger her if he were to be released on bail.33F[34]
[34]Bail Act, s 3AAA(1)(j).
In relation to the risk of Liang interfering with the complainant as a witness or otherwise obstructing the course of justice, the prosecution rejected the submission made on behalf of Liang that the complainant has no ties to Australia.
On 6 June 2024, when the informant last spoke with the complainant, she stated she was in her first year of studying economics at the University of Melbourne. She further advised that she intended to go to China for a holiday during the university break, but anticipated that she would return to Melbourne in July 2024 to resume her university studies. The court was informed the new university semester starts on 22 July 2024.
Further, although the complainant has previously expressed a willingness to make a statement of no complaint, no such statement has been made. The informant holds concerns that Liang may attempt to physically confront the complainant if he is released on bail.
Finally, notwithstanding that the complainant is currently outside the jurisdiction, it was submitted that Liang has demonstrated a capacity to bypass blocking features on messaging platforms to make contact with her. It was further submitted that the contents of his previous communications have been abusive and coercive in nature.

E. Consideration

E.1 Compelling reason

I am satisfied that on the evidence presently before the court, a compelling reason is established by the combined weight of several factors.
First, there was evidence that there will be a delay in the provision of DNA evidence of approximately 8 months. The nominal informant gave evidence that the forensic services were inundated, and that there would be resultant delay. Although the nominal informant also gave evidence that Liang sent photographs of his injured finger to the complainant and admitted to police that it had been injured, the prosecution did not suggest that the forensic testing would not still be conducted and the results relied upon at trial.
Secondly, the health of Liang’s father is another relevant factor. If granted bail, Liang would be able to assist his father with his rehabilitation from surgery (which will require a general anaesthetic) and his restoration to normal physical health. While I accept the prosecution’s submission that the evidence did not demonstrate that Liang is the only person who could help his father, I am satisfied he would be best placed to provide that support and care, including because of his mother’s work responsibilities in China.
Thirdly, Liang’s own health and prospects of rehabilitation are relevant. He has clearly had issues with alcohol abuse and regulating his behaviour in the past, and appears to have a troubling recent history of escalating family violence and breaching family violence intervention orders. That said, this is his first time in custody and he has no prior convictions. External support and treatment would be available to him if released on bail which could have a significant impact on his rehabilitation.
Fourthly, the offer of a $200,000 bail guarantee, as well as the undertaking provided by Liang’s father to assist with and monitor Liang’s compliance with his conditions of bail, further weigh in favour of the existence of a compelling reason.
Finally, the current evidence concerning whether and, if so, when the complainant will return to Australia is somewhat lacking. No criticism is made in this regard as reasonable efforts have been made to contact the complainant. However, the fact that the informant has been unable to communicate with the complainant for over a month and that she is not responding to emails requesting her to do so leaves the prosecution’s case in a state of uncertainty. Although the Director of Public Prosecutions may decide to prosecute irrespective of the attitude of the complainant,34F[35] self-evidently if the complainant does not engage at all and does not return from China, the strength of the case against Liang will likely be materially adversely affected.
[35]See also par 51(1)(c) above.

E.2 Unacceptable risk

The prosecution acknowledged that there is no basis to assume that the complainant will return to the jurisdiction before the start of the next university semester on 22 July 2024. Accordingly, I am satisfied that in the interim period, any unacceptable risk of Liang endangering the safety or welfare of the complainant, including any risk of Liang committing a family violence offence or interfering with the complainant as a witness or otherwise obstructing the course of justice, can be reduced to an acceptable level by a grant of bail for a limited period on strict conditions.
These conditions will include that Liang must surrender his passport and that he will be prohibited from possessing or using any smartphone or any other electronic device capable of connecting to the internet. While a prohibition on the use of any electronic device capable of connecting to the internet would inevitably impact upon Liang’s work, it was conceded on his behalf that such a condition may be necessary to mitigate the risk of him attempting to contact the complainant. Although the prosecution suggested that compliance with such a condition was unrealistic, I am satisfied that such a condition is appropriate for the limited time that bail is to be granted.
Accordingly, with the conditions imposed, the highly likely situation at present is that Liang will not be able to make contact with the complainant by any means; and thus the risks identified by the prosecution cannot be considered unacceptable while the complainant is in China.
That said, in order to address the possibility that the complainant might return to the jurisdiction before 22 July 2024, further conditions will be put in place for her protection. These will include a restriction on Liang entering the central business district of Melbourne or within 3 kilometres of the Parkville campus of the University of Melbourne (except to attend upon his legal representatives at a specified business address in Melbourne).
For completeness, I had initially considered imposing a condition requiring Liang to surrender any key, fob or other access pass to the complainant’s building and apartment. However, I was told this was unnecessary in circumstances where the complainant has vacated that apartment and has no known intention of returning to it.

F. Conclusion

For the reasons stated, I am satisfied that on the evidence presently before the court, a compelling reason exists justifying a grant of bail, but only until the Friday before it is anticipated that the complainant may resume her attendance at the University of Melbourne. Any further application for bail will then be able to be assessed on more probative evidence relevant to whether a compelling reason exists at that point in time.
In addition, on this application the prosecution has not established that Liang poses an unacceptable risk of endangering the safety of the complainant, interfering with her as a witness or otherwise obstructing the course of justice, at least for the time the complainant is expected to remain outside the jurisdiction and Liang remains subject to strict bail conditions.
Bail will therefore be granted subject to the following conditions until 10.00am on 19 July 2024 (being the Friday and last working day before the start of the university semester on 22 July 2024), namely that Liang must:
(1)Reside at [address] (“the Residence”).
(2)Not change his place of residence without leave of the court.
(3)Report to the officer in charge of the [nearest police station], or her or his nominee, every Monday and Friday between the hours of 9.00am and 5.00pm.
(4)Not leave the Residence between the hours of 6.30pm and 6.30am each day (“the Curfew Hours”), except in the case of a medical emergency in respect to himself or his father.
(5)Present at the front door of the Residence during the Curfew Hours upon the reasonable request of the informant, [name] or his nominee, being an authorised member of Victoria Police.
(6)Not consume alcohol.
(7)Not possess or use more than 1 mobile telephone.
(8)Not possess or use a mobile telephone with an integrated computer, commonly referred to as a “smartphone”.
(9)Provide the informant or his nominee with the telephone number, international mobile equipment identity (“IMEI”) number, subscriber identification module (“SIM”) card number and any password or passcode of the mobile telephone he possesses or uses, within 24 hours of first having access to that mobile telephone, and notify the informant or his nominee of any change of password or passcode of that mobile telephone within 24 hours of that change.
(10)Produce the mobile telephone he possesses or uses for inspection upon the reasonable request of the informant or his nominee.
(11)Provide any password or passcode for the mobile telephone he possesses or uses upon the reasonable request of the informant or his nominee.
(12)Not to use or possess any electronic device capable of connecting to the internet, including any computer, tablet, smartphone or other electronic device.
(13)Surrender any smartphones and any other electronic devices capable of connecting to the internet that are in his possession or control to the informant or his nominee within 24 hours of the date of these orders.
(14)Not leave the State of Victoria.
(15)Not attend any port, airport or international point of departure.
(16)Surrender any current passport or any interstate or international travel documents in his possession or control to the informant or his nominee within 24 hours of the date of these orders.
(17)Not apply for any passport or any interstate or international travel documents or cause, whether directly or indirectly, any other person to do so on his behalf.
(18)Not have any contact with, or seek to contact, whether directly or indirectly, the complainant.
(19)Not have any contact with, or seek to contact, any witnesses for the prosecution, whether directly or indirectly, other than the informant.
(20)To engage with an authorised men’s behaviour program provider and provide the court with proof of that engagement by no later than 4.00pm on 15 July 2024.
(21)Comply with the conditions of any current family violence intervention order in respect of which he is the named respondent.
(22)Not enter the central business district of Melbourne, Victoria, being the geographical area between Spring Street and Spencer Street and Flinders Street and La Trobe Street or within 3 kilometres of the Parkville campus of the University of Melbourne, except to attend upon his legal representatives, [names], but not otherwise.
(23)Attend the Supreme Court of Victoria at Melbourne at 10.00am on 19 July 2024 and there surrender himself and not depart without leave of the court, and if leave is given, return at the time specified by the court and again surrender himself into custody.
The matter will be returned before the court at 10.00am on 19 July 2024. It is anticipated that the parties will provide further evidence by 4.00pm on 17 July 2024 to update the court in relation to both the location of the complainant, as well as how Liang has or has not performed with respect to his conditions of bail and existing family violence intervention orders. Any further grant of bail will be subject to the hearing and determination of these issues.
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[2024] VSC 416

8 July 2024