Re Zhang
[2023] VSC 8
•13 January 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0341
| IN THE MATTER of s 18A of the Bail Act 1977 |
| and |
| IN THE MATTER of an appeal by the Director of Public Prosecutions for Victoria against the grant of an application to vary the conditions of bail for XIAO BO ZHANG |
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JUDGE: | EMERTON P |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 January 2023 |
DATE OF RULING: | 13 January 2023 |
CASE MAY BE CITED AS: | Re Zhang |
MEDIUM NEUTRAL CITATION: | [2023] VSC 8 |
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CRIMINAL LAW — Bail — Director’s appeal against Magistrate’s grant of application to vary conditions of bail — Respondent charged with serious driving offences — Respondent granted bail with special conditions including surrender of travel documents and prohibition on attending points of international departure — Special conditions of bail varied by Magistrate to permit temporary travel — Whether Magistrate should have dismissed the application to vary the original conditions of bail — Whether Magistrate should have found that the special conditions carried an unacceptable risk that the respondent will fail to surrender into custody — Bail Act 1977 s 18A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr Jason Harkess | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr Ian Hill KC with Mr C K Wareham | Tony Hargreaves & Partners |
HER HONOUR:
Introduction
On 20 March 2022, at around 1:17 pm on a clear afternoon, the respondent drove through an intersection at which he was required to give way. He collided with another vehicle travelling along the cross road, killing the driver, and then hit a second vehicle that was stationary at the intersection causing it to be pushed backwards and to flip onto its roof. The driver of that car and his 4-year-old son suffered minor injuries in the collision. The respondent and his passenger were uninjured.
As a result, the respondent faces the following charges:
1) Dangerous driving causing death.
2) Fail to give way.
3) Conduct endangering life.
4) Culpable driving.
It is not alleged against the respondent that he was speeding or driving erratically; or that he was driving under the influence of drugs or alcohol; or that he was using a mobile phone; or that he was so fatigued that he ought not to have been driving.
The prosecution case is put on the basis that Mr Zhang failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case, namely, by failing to heed any of the numerous warning signs in place in the 419 metres leading up to the intersection and by failing to adjust his driving to the conditions and those warning signs by not braking. The prosecution also relies upon Mr Zhang’s fatigue generally in assessing negligence.
The charges of culpable driving and dangerous driving causing death attract significant prison sentences. Under s 318 of the Crimes Act 1958 (the ‘Crimes Act’), culpable driving causing death carries a maximum sentence of 20 years and a standard sentence of 8 years. Dangerous driving causing death (s 319 of the Crimes Act) carries a 10 year maximum sentence.
On 21 March 2022, the respondent was granted bail on his own undertaking with special conditions that included that he surrender valid passports or any other valid travel documents held prior to release and not apply for any other, and that he not attend any points of international departure.
On 19 December 2022, the Magistrates’ Court varied these particular special conditions of bail by temporarily suspending them for the period between 15 January 2023 and 17 March 2023 in order to permit the respondent to travel to Singapore with his wife. As part of the varied bail conditions, the respondent is required to:
a) provide a copy of his itinerary and proposed accommodation not less than 24 hours prior to his departure from Australia;
b) advise the informant of any interruptions to his return date to Australia that are due to factors outside of his control as soon as reasonably practicable; and
c) provide a surety in the amount of $1.5 million in a form satisfactory to the Registrar.
However, the Director of Public Prosecutions considers that the varied special conditions of bail are insufficient and that it is in the public interest to appeal the varied special conditions pursuant to s 18A of the Bail Act 1977 (‘Bail Act’) on the grounds that:
1) On the material before the Magistrates’ Court, it was not reasonable, taking into account and having regard to the surrounding circumstances, for the Court to grant the application to vary the original conditions of bail.
2) The varied special conditions, when compared to the original special conditions of bail, operate to increase the risk that the respondent will fail to surrender into custody in accordance with the conditions of bail.
3) This increased risk is unacceptable for the purposes of s 4D and s 4E of the Bail Act.
4) The application to vary the original conditions of bail ought to have been dismissed.
The Director’s appeal is supported by the affidavit of Kirsten Amy Westlake made on 21 December 2022, in which Ms Westlake deposes to the details of the collision scene and the investigation, outlines the submissions that were made on the variation application on behalf of both the respondent and the Director, and gives a summary of the reasons for the grant of the variation application given by the Magistrate.
The Magistrate’s reasons for granting the application to vary the conditions have been provided to the Court, along with the transcript of the variation application hearing.
For the reasons that follow, the Magistrate’s order varying the bail conditions will not be set aside, and the appeal will be dismissed.
Statutory framework
Bail conditions
Section 5AAA of the Bail Act governs the imposition of so-called ‘conduct conditions’ upon the grant of bail. It requires a conduct condition to be imposed if it will reduce the likelihood that the accused may fail to surrender into custody in accordance with the conditions of bail.[1] However, conduct conditions must be no more onerous than is required to reduce that likelihood,[2] and must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused.[3]
[1]Bail Act s 5AAA(1)(d).
[2]Ibid s 5AAA(2)(a).
[3]Ibid s 5AAA(2)(b).
Conduct conditions that may be imposed include the surrender of the accused’s passport,[4] and obliging the accused not to attend ‘geographical exclusion zones’, such as a point of international departure.[5]
[4]Ibid s 5AAA(4)(e).
[5]Ibid s 5AAA(4)(f).
Section 17 provides that before an accused is released on bail, the bail decision-maker must cause a notice in writing setting out the obligations of the accused concerning the conditions of bail and the consequences of failing to comply with those conditions to be given to and understood by the accused.
Appeal against bail conditions
Section 18A provides for the Director of Public Prosecutions to appeal against an order granting bail as follows:
(1)If a person is granted bail, the Director of Public Prosecutions may appeal to the Supreme Court against the order granting bail if –
(a)the Director is satisfied that –
(i)the conditions of bail are insufficient; or
(ii)the decision to grant bail contravenes this Act; and
(b)the Director is satisfied that it is in the public interest to do so.
In my view, this provision permits (and governs) an appeal against an order by a Magistrate varying a bail condition. The respondent did not contend otherwise.
Although s 18A does not expressly refer to the Director’s right to appeal against a decision to vary a condition of (existing) bail, it must be construed as conferring such a right. A successful application to vary bail conditions results in the court — in granting the application to vary — making a fresh grant of bail with new conditions.[6] It cannot have been the intention of Parliament that s 18A would confer upon the Director a right of appeal against a decision fixing bail conditions on an initial grant of bail, while conferring no such right in relation to a subsequent decision varying bail conditions in a manner that reduces their stringency and compromises the protections that they afford.
[6]The successful variation application obliges the accused to give a fresh bail undertaking acknowledging the new conditions.
As to the nature of the appeal, subsection 18A(6) provides:
On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, conduct a fresh hearing in relation to the grant of bail to the respondent.
In Beljajev v Director of Public Prosecutions,[7] the Full Court of this Court (Young CJ, Crockett and Ashley JJ) held, in relation to an earlier (but substantially similar) version of s 18A(6), that:
It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this Court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.
In other words, the Director is not in our opinion, confined to relying upon error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.
There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike, appellate Courts have frequently refused to interfere with a primary judge’s decision on a matter of practice and procedure.[8]
[7]Beljajev v DPP (Vic) ( Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991).
[8]Ibid 29–30.
The position was summarised by Weinberg JA in DPP v Molinaro as follows:
It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.[9]
[9][2017] VSC 624, 2 [7].
Weinberg JA went on to say:
In the event that the Court finds relevant error, and sets aside the decision below, it must then conduct a fresh hearing in relation to the grant of bail to the respondent. In other words, the relevant provision contemplates a two stage process, one regarding correction of error, and the second, in effect, a hearing de novo.[10]
[10]Ibid 3 [9].
Submissions
The Director accepts that Mr Zhang is entitled to bail. The appeal concerns the sufficiency of the bail conditions that have been imposed. The issue is whether Mr Zhang should be permitted to depart Australia pending determination of the criminal charges laid against him.
The Director submits that the varied special conditions, when compared to the original special conditions of bail, operate to increase the risk that Mr Zhang will fail to surrender into custody in accordance with the conditions of bail. In other words, it is submitted that the respondent represents an unacceptable flight risk and should not be permitted to leave the country.
In this regard, the Director submits that Mr Zhang is a flight risk by reason of the seriousness of the charges faced by him, and the likelihood of a term of imprisonment being imposed if he is convicted of the charge of culpable driving or dangerous driving causing death. Mr Zhang is a man of significant financial means permitting him to re-establish himself elsewhere. He has personal ties to China, where he was born and educated before moving to Australia in 1991. His daughter currently lives in China on a working visa with her husband.
According to the Director, the original bail conditions operated to reduce the likelihood that Mr Zhang would fail to surrender into custody and to ensure the proper administration of justice. It was not necessary to vary the conduct conditions for the purpose sought by Mr Zhang and further inquiries should have been made regarding possible support for him while his wife is overseas.
The Director submits that the original bail conditions must remain in place because:
(a) Those conditions necessarily reduce the likelihood that Mr Zhang will fail to surrender into custody in accordance with the conditions of his bail;
(b) The conditions are no more onerous than is required to reduce the likelihood that Mr Zhang will fail to surrender into custody;
(c) The conditions are reasonable having regard to the nature of the alleged offence of culpable driving causing death. The allegation against Mr Zhang is very serious. If found guilty at trial, there is a real prospect of Mr Zhang serving a lengthy term of imprisonment. For an upstanding citizen such as Mr Zhang, the realisation that he is facing the risk of imprisonment is likely to be emotionally tumultuous and overwhelming. That he may have a desire to escape the situation altogether by leaving the country (and not returning) is an obvious concern;
(d) The original conduct conditions are reasonable having regard to Mr Zhang’s personal circumstances, his financial means, his connections with family overseas, and the absence of a demonstrated need for Mr Zhang to travel outside of Australia; and
(e) The imposition of a surety condition of $1.5m is inadequate to alleviate the concern that Mr Zhang may fail to return to Australia.
Ultimately, it is submitted that the imposition of bail conditions that prohibit Mr Zhang from leaving the country are essential because they satisfactorily ameliorate the risk of him leaving Australia and not returning to face the charges against him. To remove the conditions fundamentally transforms the level of risk that a grant of bail to Mr Zhang represents – from ‘acceptable’ to ‘unacceptable.
For his part, Mr Zhang submits that he has strong ties to the jurisdiction and that there is more than a reasonable possibility either that the serious charges against him will be discharged or that he will be acquitted of them, as the prosecution case does not involve allegations of excessive speed or erratic driving, the use of drugs or alcohol, or the use of a mobile phone. Given the absence of significant aggravating features, even if the respondent were to be convicted of dangerous driving causing death, there is a realistic possibility of a non-custodial disposition. More generally, Mr Zhang submits that he is a person who acts responsibly, as is evidenced by his conduct at the scene of the collision and subsequently in his co-operation with the police investigation.
During the application for variation, Mr Zhang relied on the following documents:
a) A letter from Barwon Health confirming his employment details as a cardiothoracic surgeon;
b) A letter from his general practitioner, Dr Janet Zhang, stating that he has been suffering from Post-Traumatic Stress Disorder which has severely affected his mental state, life and work. He wishes to take some time off to travel with his wife when she needs to work outside of Australia. Dr Zhang states that the respondent’s wife is an important social support to him and opines that it will be beneficial for him in order to avoid further deterioration of his psychological state if he were to be home on his own;
c) A letter from the respondent’s psychologist, Mr Chris Mackey, stating that the respondent has suffered from Post-Traumatic Stress Disorder and Major Depressive Disorder following the collision. Mr Mackey also confirms that the respondent’s wife is an important social support to him and that he may suffer further deterioration in his psychological state, including an increased suicidal risk, if he is left at home on his own; and
d) A letter from the employer of the respondent’s wife, Ms Julie Liu, confirming her employment details.
At the hearing before the Magistrate, evidence was also led from the respondent’s wife, Ms Liu, regarding her concerns about the respondent’s mental health and her reluctance to leave him at home in Australia while she travels for her work. Ms Lui gave evidence that she had had to cut short the two trips to Singapore she has made since the collision, because, despite twice daily telephone contact with Mr Zhang, she became ‘really worried’ about his mental state and that she might ‘lose him’. She said that she has to watch him ‘literally 24 hours’, apart from when he is at work. She told the Magistrate that Mr Zhang has become a ‘completely different person’ since the accident and that their whole life has changed, but she cannot lose her job. She ‘need[s] to go [to Singapore] and do the work’, but she cannot leave her husband here.
Ms Liu also gave evidence about Mr Zhang’s ties to China. She said that he and she moved from China to Australia permanently in around 1991 and that they had become Australian citizens in the 1990s. This meant that they lost their Chinese citizenship. Mr Zhang and Ms Liu have two children. Their oldest child, a daughter, was born in China in 1981, and their second child, a son, was born in Australia in 1993. Both are Australian citizens. Their son lives and works in Melbourne. Their daughter is married to a Dutch citizen who is currently teaching at a university in China, where they are living together on working visas.
It is clear that Mr Zhang has no entitlement to return to live in China.
There was also evidence before the Magistrate that Mr Zhang and his wife have a valuable property portfolio in Victoria. The Magistrate was provided with council valuations and mortgage repayment figures for each property, and they were used to support the surety offered and ultimately given of $1.5 million.
Magistrate’s reasons
In his reasons for granting the variation, the Magistrate identified the essential question to be whether Mr Zhang will answer bail if the bail conditions are varied in the manner requested. His Honour observed that the nature of the offences charged, the severity of the possible sentences and the strength of the prosecution case were all relevant to assessing whether there was an unacceptable risk that Mr Zhang would fail to appear as required.
His Honour recorded that Mr Zhang was 65 years old and faced four charges, which were listed for contested committal on 1 and 2 June 2023. While educated in China, he arrived in Australia in 1992 at the age of 31. He became an Australian citizen in 1996. He is a qualified medical practitioner admitted to practice in Australia, with additional qualifications as a cardiothoracic surgeon. He is an associate professor employed by Barwon Health and also works at St John of God Hospital in Geelong.
The Magistrate recorded Mr Zhang’s family circumstances and noted that he has a significant number of extended family members living in Melbourne and an extensive property portfolio that he was willing to put up as surety for the variation to his bail conditions.
The Magistrate observed that although Mr Zhang has significant means, if he wished to return to live in China, he would have to go through a lengthy visa process. Further, he has no prior criminal history, and there has been no failure to answer bail or any failure to comply with the conditions of bail.
The Magistrate rejected the submission made by the prosecution that a full-time carer could be engaged to care for Mr Zhang while his wife is overseas. The Magistrate stated that he had carefully considered this position, but, on balance, had decided to grant the application to vary the bail conditions. The Magistrate did not consider that the varied bail conditions gave rise to an unacceptable risk that the respondent would flee and fail to answer bail.
Discussion
In my view, it was well open to the Magistrate to reach that conclusion.
The respondent has strong family, financial and professional ties to Victoria, has been an ‘exemplary’ or ‘model’ citizen for many years, behaved responsibly at the scene of the collision and subsequently in his interactions with police, and has put up a significant sum as surety to ensure his return to Victoria. His ties to China are now tenuous. He has no entitlement to travel there as of right, let alone to live there. The fact that his daughter is currently living in China appears to be an incident of her marriage to a particular individual, who happens to be a Dutch citizen.
As to the need to travel, there was evidence that the Magistrate found to be credible that Mr Zhang has suffered worrying mental health issues since the collision and requires the continued care and support of his wife. The existence of those mental health concerns, and the need for his wife’s care, were confirmed in the letters from the clinical psychologist, Mr Mackey, and from the respondent’s general practitioner, Dr Zhang.
The Director does not contend that the proposed travel to Singapore with Ms Liu has been contrived in order to provide an opportunity for Mr Zhang to flee. Rather, the Director submits that while in Singapore, Mr Zhang may ruminate upon the unpalatable prospect of a gaol term on his return to Victoria and simply decide not to return, as he has the means to re-establish himself elsewhere.
In my view, that submission is unfounded and speculative.
Having regard to Mr Zhang’s personal and professional ties to Victoria, and his evident good character and willingness to accept responsibility, the prospect of him deciding to flee the jurisdiction and spend the rest of his life ‘on the run’ is faint. While the prospect of a term of imprisonment must weigh heavily on him and needs to be given weight when assessing the risk of flight, I am not convinced — just as the Magistrate was not convinced — that that risk engendered by allowing Mr Zhang to accompany his wife to Singapore on the conditions imposed by the Magistrate is unacceptable.
It follows that I see no reason to interfere with the variation order made by the Magistrate. In so concluding, I have had regard to the serious nature of the offences with which the respondent is charged, the severity of the sentences that may be imposed and the strength of the prosecution case.
The order varying the bail conditions will not be set aside, and the appeal will be dismissed.
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