Supreme Court
New South Wales
Case Name:
R v Gao
Medium Neutral Citation:
[2018] NSWSC 1011
Hearing Date(s):
28 June 2018
Decision Date:
29 June 2018
Jurisdiction:
Common Law
Before:
McCallum J
Decision:
Conditional bail granted
Catchwords:
BAIL – show cause requirement – strength of Crown case – assessment of bail concerns – risk of flight – whether able to be met by imposition of bail conditions
Legislation Cited:
Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 29
Crimes Act 1900 (NSW), ss 61J(1), 61JA(1), 578A
Category:
Principal judgment
Parties:
Yunxiang Gao (applicant)
Regina (respondent)
Representation:
Counsel:
J Korn (applicant)
D Waldmann (Crown)
Solicitors:
Korn MacDougall Legal Pty Ltd (applicant)
Office of the Director of Public Prosecutions (Crown)
File Number(s):
2018/124428
Publication Restriction:
Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of any matter which identifies the complainant in these proceedings or any matter which is likely to lead to the identification of the complainant
Judgment
HER HONOUR: Before I begin, I remind those present in Court that it is an offence to identify the complainant in proceedings for an offence of this nature.
Yunxiang Gao stands charged with two sexual offences contrary to s 61J(1) and 61JA(1) of the Crimes Act 1900 (NSW). He seeks bail for those offences.
The circumstances in which the charges were brought may be summarised as follows. The applicant is a professional film actor, ordinarily resident in China. In late March 2018, he came to Sydney to film a television series, “Love in Aranya”, in which he plays the lead role. The filming was completed on 26 March 2018. The following night a “wrap party” was arranged for the Chinese actors and production crew. The complainant had a role on the Australian production team and attended the post production celebration in that capacity.
The complainant spent a good part of the evening with the Chinese producer of television series, Jing Wang, who is the co-accused in the proceedings. The celebration began in a restaurant. A smaller group then went to a karaoke room after which the complainant returned to the Shangri-La Hotel, where both accused were staying. After most of the group had separated, the complainant went alone with the co-accused, Wang, to his hotel room on level 16.
The Crown case is that, at some point, Wang called the applicant, who arrived at Wang's room shortly afterwards. The complainant alleges that both men then had sexual intercourse with her without her consent and in each other's presence.
The applicant is charged with one offence of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act, and one offence of aggravated sexual intercourse without consent occasioning actual bodily harm, contrary to s 61JA of the Act. In each case, the circumstance of aggravation is that the offence is alleged to have been committed in the company of the co-accused Wang. The charge under s 61JA is punishable by imprisonment for life is for that reason a “show cause” offence within the meaning of s 16B of the Bail Act 2013 (NSW). Section 16A of the Bail Act provides that, in the case of a show cause offence, the Court must refuse bail unless the applicant shows cause why his detention is not justified. If cause is shown, the Court must proceed to assess whether there are any bail concerns of the kind listed in s 17 of the Act.
The authorities make plain that the Act creates a two-stage test and that the two tests must be not conflated. At the same time, it has been acknowledged that many of the matters relevant to the assessment of bail concerns will be relevant to the show cause test.
The applicant relied on five matters which he submitted in combination establish that his detention is not justified. First, he noted that he is entitled to the presumption of innocence, which is a fundamental principle of the criminal justice system. That is undoubtedly so, but it is a feature of every case and could not, without more, establish that his detention is not justified.
Secondly, the applicant addressed the strength of the Crown case. It will be necessary to return to that issue.
Thirdly, it was contended that the applicant whilst on remand is “on protection”. There was no evidence as to that matter but it was not disputed by the Crown. Mr Korn, who appears for the applicant, told the Court that the applicant has been placed on protection by prison authorities after being stood over in prison, presumably because of his wealth and fame. The conditions of custody for a prisoner on protection are notoriously more draconian than those that apply for prisoners in the general prison population. I accept that the fact of the applicant being on protection is a significant factor, particularly when regard is had to the length of time he is likely to remain in custody if bail is refused.
Fourthly, the applicant relied on the steps taken by the applicant's wife to relocate the whole of the family at significant cost and effort. I will return to consider the evidence on that issue when considering the matters listed in s 18.
Finally, the applicant indicated that, if granted bail, he would be prepared to submit to electronic monitoring. As already noted, the submission was that the combination of those factors combines to show why the applicant's detention is not justified in the present case.
There is a particular aspect of the Crown case which is relevant to the question of the show cause test. As already noted, the reason the applicant faces a show cause requirement is that one of the charges against him is a charge of aggravated sexual intercourse without consent occasioning actual bodily harm. However, it is unclear from the police statement of facts how the Crown will put its case in support of that charge as against the applicant, as opposed to the co-accused. In support of the two charges against the applicant, the statement of facts describes two acts of sexual intercourse, both alleged to have taken place in the bathroom of the hotel room of the co-accused while the complainant was on her knees. There is no allegation of actual bodily harm in those allegations.
The complainant made four statements to police. The question of actual bodily harm is addressed in the fourth statement, where the complainant describes having received bruises on her legs (of which there are photographs) "because I was struggling when Wang and Gao were trying to hold my legs up with their fingers and I was struggling so much to put my legs back down". However, none of the previous three statements describes any part of the events in the hotel room when the applicant was trying to hold the complainant's legs. There is a description of an encounter with the co-accused, Wang, when he is alleged to have forced the complainant onto her back on the bed and was lifting her legs, causing bruising. But for the applicant to be criminally responsible for that conduct, it would have to be established beyond reasonable doubt that he was still in the room at that time. Whether that is alleged is unclear. As already indicated, the two charges against the applicant appear to be supported by allegations of earlier events.
Closed circuit television footage tendered on the bail application establishes that the complainant and Wang were in the room together for about one hour and 40 minutes, from 2.27am until 4.10am, while the applicant was in the room for only the first 35 minutes, from 2.31am to 3.06am.
It follows from that analysis that the Crown case in support of the show cause offence would appear to be weak as against this applicant (as opposed to the co-accused). For that reason alone, I consider that the show cause requirement (which relates only to that charge) is satisfied and that it is appropriate to determine the present application by reference to my assessment of bail concerns.
As to the strength of the rest of the Crown case, Mr Korn frankly acknowledged that it is unlikely that the applicant will conduct his defence on the basis that he was not in the room when the alleged acts of the sexual intercourse took place. The evidence that he was in the room and that he engaged in sexual intercourse with the complainant is overwhelming. As already noted, the closed circuit television footage captures him arriving on the 16th floor and leaving about half an hour later. Forensic evidence will be led to establish the existence of his DNA in a spot of blood on the doona in the hotel and his semen on the cover of a pillow case. The blood is explained by the fact that the complainant says she was menstruating at the time.
Accordingly, it appears the critical issue in the trial will be consent. There are two elements the Crown must prove concerning consent. One is that the complainant was not in fact consenting. The other is the applicant's knowledge of the lack of consent. The assessment of a person's state of mind and the clarity with which a state of mind is communicated to others is complex at the best of times. In an application for bail, the Court is required to make that assessment on the strength of limited material and with drastic consequences.
The complainant has not yet given evidence. I have had access only to typed statements taken from her and to the CCTV footage. Nothing in this judgment should be taken as an expression of doubt as to her truthfulness.
In some respects, the case on lack of consent is very strong. As already indicated, the complainant spent a considerable amount of time during the evening leading up to the time when she went to the co-accused’s hotel room in the company of the co-accused. She barely spoke to the applicant at all during the evening before that time. The Crown case is that the applicant attended the co-accused's hotel room at the co-accused’s request and that, within minutes after arriving in the room and after a very short conversation with the complainant, he approached her and started kissing her on the mouth and moving her towards the bed. If there had been no attraction between them in the days leading up to that evening, there was nothing to indicate that such an approach was invited by her. It might also seem inherently unlikely that she would have sexual intercourse with one man in the presence of another.
The description the complainant provides of the acts which followed, if accepted, would indicate that she did not in fact consent and that the two accused ought to have understood that she was not consenting. However, there are some indications in the Crown brief which might cast doubt at trial on the clarity with which the complainant communicated her lack of consent to this applicant in particular.
The applicant will contend that the unlikelihood of a woman agreeing to have sexual intercourse with a man who had just entered the room will be explained at trial by evidence from people who were present during the filming over the previous days, who allegedly observed the complainant to be “besotted” with the applicant. A further question is whether she went to the co-accused’s room knowing that the applicant would be joining them. In her first statement to police, the complainant said that the co-accused, Wang, told her before she agreed to go up to his hotel room that he would invite the applicant to join them. In her third statement, she said that everything in her first statement was true. However, she then gave a version of events suggesting she only knew the applicant was coming to the room at the point when he arrived.
Both parties relied upon CCTV footage of the complainant at the karaoke bar, outside the Shangri-La Hotel and in the foyer to the elevators to level 16. I have viewed all of that footage carefully. Parts of the footage support the Crown's case that the complainant pulled away from the co-accused at times during the evening when he tried to kiss her. However, other parts of the footage appear to show her sitting comfortably with him, leaning into him and not apparently uncomfortable in his presence. The complainant's statement indicates that, at a number of points when she felt uncomfortable with the co-accused, she remained in his company in order to be polite. Politeness was certainly important in circumstances where she was entertaining overseas colleagues. However, there were several opportunities for her leave in safety and without impoliteness, both at the end of the karaoke session and from the foyer of the Shangri La.
That is not to say that the complainant must be taken to have consented to anything that followed. It simply indicates that, contrary to the Crown case, she does not appear to have been communicating her reluctance unequivocally to others. At one point, outside the Shangri-La Hotel, footage shows her being kissed by the co-accused while a production car waits to give her a lift. She can be seen waving to another female waiting at the car for them to leave.
It is also relevant to consider how the complaint came to be made. When the complainant arrived home, which must have been well after 4am, she said she and her husband argued because he wanted to know where she had been all night. She told him that someone had tried to keep her at the hotel and tried to kiss her. She did not want to tell her husband everything that happened because she was worried it would upset him too much. Her husband said if something happened it should be reported to the police. Her husband called the police and they said they would send someone out but she told him she wanted to sleep. After she had slept for a few hours her husband took her to the police station.
She said she did not tell the police lady everything because she was worried about what would happen if her husband found out.
After the complainant made her first statement during the day on 27 March 2018, she told police she was undecided as to what action she wanted them to take. She also told them the offenders were leaving Sydney shortly and returning to China. In her second statement, she said she had thought about things and would like to proceed with the investigation. She said, "My parents and my husband say that the men who did this to me are criminal. I think after discussions it's the right thing to do, no matter how famous they are". By the time she made her third statement on 28 March 2018 both accused had been arrested.
From the recitation of those facts it will emerge that, while there are aspects of the Crown case that support a strong basis for contending not only a lack of consent but circumstances which should have brought that home to the two accused, there are other aspects of the case which indicate that both consent and knowledge of consent will be live issues at the trial. The assessment of any bail concerns is to be undertaken in that context.
The Crown identified two bail concerns to be assessed in the present case. One was a risk that, if released from custody, the applicant will fail to appear at any proceedings for the offence. The second was the risk that he will endanger the safety of the complainant or interfere with her evidence.
As to the second matter, the Crown relied on the complainant’s description at paragraph 45 of her statement of 28 March 2018 of an incident where she said she was approached by someone on behalf of the applicant who asked her whether there was any other way around “not putting them into Court” or whether she could "think of any other way to solve this problem".
The Crown submits that, as this occurred within 24 hours of the offence, it suggested an immediate preparedness on the part of either accused to resort to bribery as a means of exerting pressure on the complainant. I do not think it can safely be inferred that the approach was made at the request of either offender. Both had at that point only very recently been arrested. Their opportunities to contact friends or colleagues to make such a request would have been limited if not non-existent. It is possible that persons supporting the accused might have taken it upon themselves to make such an approach without their approval.
The Crown material includes “police views” in response to the application. That document says that the victim has since been contacted by various members of the Chinese business and media community offering her money in exchange for the withdrawal of the charges. That is very concerning but I do not think there is any basis for concluding that any of those approaches have been made at the request of the applicant. The police views letter stated that enquiries are being made in that respect and that no connection has been drawn between those approaches and the applicant. I am not persuaded that I should have regard to that factor as a matter against the applicant and I am not persuaded that there is a bail concern that the applicant would interfere with the complainant as a witness if released on bail.
The principal concern in the present application is the risk of flight. The charges faced by the applicant are very serious and would undoubtedly result in the imposition of a lengthy term of imprisonment if the applicant is found guilty. That is a strong incentive to flee. The applicant has no ties with Australia, apart from these proceedings, and is ordinarily resident in China, where he is evidently an actor of some fame. Australia has no extradition treaty with China and, accordingly, if the applicant were to flee, he would not be able to be brought back to Australia to face the charges.
In those circumstances, it is clear that there is a risk of flight. The critical question on the present application is whether that is an unacceptable risk. In assessing that concern, the Court is required to have regard to the matters listed in s 18 of the Bail Act. Some of those have already been addressed in these reasons. The following further matters may be observed.
The applicant has no prior criminal history in Australia and there is evidence that he is a person of good character in China. As already noted, he has no ties with Australia but for those arrangements which have been made by his wife since his arrest, to which I will return. The offences are plainly serious. I have already explained my view of the strength of the prosecution case. There is no suggestion that the applicant has any history of violence, previous commission of offences whilst on bail or any history of non-compliance with court-imposed conditions. There is no suggestion that he has any criminal associations.
Ultimately, in my view, there are three primary considerations in assessing the risk of flight and whether it is an unacceptable risk. They are the strength of the Crown case, the length of time the applicant is likely to spend in custody if bail is refused and the conditions that could be imposed if bail is granted. As to the length of time the applicant is likely to spend in custody if bail is refused, whilst that matter was not expressly addressed on the present application, on the basis of the Court's experience in this list it is ordinarily between 12 and 18 months and sometimes longer before a person charged with an offence of the present kind is brought to trial. That is an important consideration in circumstances where the applicant otherwise appears to pose no risk if released on bail other than the risk of flight.
Ultimately then, the application must, in my view, be determined according to a consideration of whether the bail conditions proposed by the applicant adequately meet what is plainly a risk of flight if he is released. The applicant proposed the following bail conditions: That he reside at premises which have been rented by his wife and nowhere else; that he report twice daily to Chatswood Police Station; that surety to be provided in sums totalling more than $3 million; that he surrender his passport and not apply for another passport; that he surrender the existing passports of his daughter and mother; that he only operate one mobile telephone service and provide that number to the officer-in-charge of the investigation; that he not approach within 100 metres of Sydney International Airport; that he not be absent from his residential address between 9pm and 5am unless in the company of his wife or for the purpose of medical emergency; that he not contact any prosecution witnesses directly or indirectly except through his legal representatives; and that he be electronically monitored.
The question of electronic monitoring was addressed in the applicant's evidence in an affidavit sworn by Mr Phillip Schluter, the managing director of CAGIS International Pty Limited, a company that supplies electronic monitoring technology. Mr Schluter was not required for cross-examination and the prospect of electronic monitoring was not addressed by the Crown.
In other decisions of this Court, including decisions of mine, reservations have been expressed as to the efficacy of electronic monitoring. However, in the presence case, it seems to me to be a measure which would go a considerable way to mitigating the risk of flight in the case of this applicant, taken as it is in combination with his being required to remain at home and in the company of his wife. The applicant's wife is herself an acclaimed film actor who has forgone her acting career in China to come to Australia to stand by the applicant until these proceedings are resolved. She has rented premises in Chatswood and taken other steps to move the family, including the applicant’s mother and daughter, to live in those premises.
The applicant's evidence also addresses the question of sureties which, as I have indicated, are offered at a sum exceeding $3 million. One might be sceptical in the case of such a wealthy person offering substantial sureties. However, two of the sureties were offered by a friend of the applicant and a friend of the applicant’s wife who gave evidence and were cross-examined by the Crown. My impression of those witnesses is that they were genuine in offering substantial sums from their own funds and that they have not received any promise from the applicant to be reimbursed in respect of those sums. Rather, those witnesses persuaded me that, although the applicant is ordinarily resident in China, he does have substantial potential community in Australia. The applicant's wife, mother and young child have all moved to Australia and made arrangements to remain here while he answers the charges.
There is one final aspect of the applicant's case to which I should refer and that is the affidavit of Wei Wei. Mr Wei does not appear to know the applicant but gave evidence of his experience of the Chinese film industry. He said that, in Chinese culture, absconding is always automatically associated with guilt and that, if the applicant were to abscond, the general public would consider him guilty as charged and that he would no longer have any reputation to speak of. Mr Wei said not only would it be impossible for the applicant to continue working as an actor, he would be despised so much that it would be impossible for him to work as anything anywhere in China.
The Crown put a compelling submission in response to that evidence, that if the applicant were weighing up the ignominy of returning to China without having faced these charges with the consequences of being convicted, he would surely prefer flight. There is some force in that submission. However, my assessment of the strength of the Crown case and the support the applicant's family is providing to him has led me to conclude that the risk of flight can adequately be mitigated by the conditions he has proposed.
For those reasons I propose to grant bail on the conditions identified in the document by Mr Korn.
The applicant is granted bail subject to the following conditions:
The applicant is to appear in court as required.
The applicant is to live at [address provided] and nowhere else.
The applicant is not to be absent from those premises between the hours of 9.00pm and 5.00am except in the case of a medical emergency.
The applicant is to report to the officer in charge at [station identified] twice daily between the hours of 6.00 am and 8.00 pm.
* One or more acceptable persons agree to forfeit amounts totalling $3,000,000 if the applicant fails to appear before the court in accordance with his bail acknowledgment and deposit acceptable security with the bail authority as security for the payment of that amount.
* The applicant is to surrender his passport to police and not to apply for another passport or any alternative overseas travel document.
* The applicant is to surrender any existing passports and not to apply for another passport or any alternative overseas travel document on behalf of his wife, his daughter, and his mother [names specified].
The applicant’s wife is permitted to uplift her passport by arrangement with the informant provided it is returned to him upon her return to Australia.
The applicant is only to operate one mobile telephone service and is to provide that number to the officer in charge within 24 hours of its registration.
(10) Not to approach, or be within 1000m of Sydney International Airport, or any other recognised point of international departure.
The applicant is not to have any contact in any way (except through a legal representative) with any prosecution witness made known to the applicant.
The applicant is to be electronically monitored/tracked whilst on bail including monitoring compliance with the curfew condition and the condition prohibiting approach within 1000m of international points of departure from Australia.
*The applicant is not to be released until the electronic monitoring equipment has been fitted and is operational.
Any application for variation of these conditions is to be brought before this Court.
* The conditions above identified by an asterisk are pre-release requirements for the purposes of s 29 of the Bail Act 2013. They must be complied with before the applicant is released on bail.
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Amendments
04 July 2018 - Typographical error on coversheet
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