R v Wang

1. [1]

   HIS HONOUR: Jing Wang applies for bail. He was arrested on 27 March 2018 and subsequently charged with a series of offences including:

   1. (1)

      Two counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900. This offence carries a maximum penalty of imprisonment for 7 years and a standard non-parole period of 5 years.

   2. (2)

      Six counts of aggravated sexual assault in company contrary to s 61JA(1) of the Crimes Act. This offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

   3. (3)

      Two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act. This offence carries a maximum penalty of 14 years with a standard non-parole period of 7 years.

   4. (4)

      One count of attempted sexual intercourse without consent contrary to s 61I of the Crimes Act. This offence carries a maximum penalty of 14 years with a standard non-parole period of 7 years.

2. [2]

   Mr Wang has been in custody bail refused since the date of his arrest.

Background

1. [3]

   The Crown’s case can be summarised as follows.

2. [4]

   Mr Wang is a film and television producer in China. He and Yunxiang Gao, an actor, came to Sydney in March 2018 to film a television series known as “Love in Aranya”. The filming culminated on 26 March 2018 and a celebratory party was held which consisted of a dinner followed by karaoke.

3. [5]

   At the karaoke bar, Mr Wang made several advances towards the complainant. Those advances were resisted by the complainant, who was depicted on the CCTV footage turning her head away from Mr Wang or brushing his hand away. From approximately 1.36am to 1.55am, the CCTV cameras captured the complainant and Mr Wang intermittently kissing. However, when the lights in the karaoke bar turned on, the complainant is again seen resisting Mr Wang’s advances.

4. [6]

   The complainant went to the Shangri-La Hotel, where both Mr Wang and Mr Gao were staying. CCTV cameras installed both inside and outside the hotel captured the events that followed. The complainant remained outside the hotel for some time and was seen talking to another woman. At approximately 2.15am, Mr Wang embraced the complainant. The complainant did not reciprocate and kept her arms by her side. The complainant turned her head to the side when Mr Wang moved his face towards hers. Shortly after, the complainant and Mr Wang are depicted kissing. The woman to whom the complainant was speaking earlier returned and attempted to separate the two. Mr Wang then picked up the complainant’s belongings and attempted to usher her inside the hotel. The complainant began to walk away from the entrance at which time Mr Wang followed and grabbed her hand. The woman to whom the complainant was speaking earlier intervened and attempted to take the complainant’s belongings from Mr Wang.

5. [7]

   Mr Wang invited the complainant to go to his room, telling her that the rest of the film crew have gone up. At approximately 2.27am, the complainant and Mr Wang walk out of the lift on level 16, at which time the complainant said, “I don’t want to go to your hotel room”. Mr Wang replied, “don’t think too much, won’t do anything to you”.

6. [8]

   At approximately 2.31am, Mr Gao is also seen stepping out from the lift on level 16 and walking towards Mr Wang’s room.

7. [9]

   Once inside the hotel room, the complainant sat on a chair next to Mr Wang’s bed. At this time, Mr Wang walked towards the complainant with his arms outstretched and leaned towards her in an attempt to kiss her. The complainant raised her hands to move Mr Wang’s head away and said, “no, no, no”. Mr Wang then made a call and said “come to my room”. The complainant assumed that Mr Wang was inviting other crew members to the room as he had mentioned earlier and as a result decided to stay.

8. [10]

   The conduct the subject of these charges occurred shortly after Mr Gao arrived. The CCTV footage depicts Mr Gao leaving and walking towards the lifts at about 3.07am. The complainant is depicted leaving at about 4.10am.

9. [11]

   Mr Wang’s co-accused, Mr Gao, was granted bail by McCallum J on 29 June 2018: see R v Gao [2018] NSWSC 1011.

10. [12]

    Mr Wang’s first release application was refused by Fullerton J on 11 July 2018. Her Honour refused bail on the basis that she was not satisfied that cause had been shown. Her Honour regarded the case against Mr Wang as one of “very considerable strength”. Her Honour then dealt with the submissions advanced by Mr Lloyd QC who appeared for Mr Wang. Her Honour acknowledged the likely delay in the matter proceeding to trial but noted that it was not “inordinate or unreasonable”. Her Honour also had regard to the fact that Mr Wang is isolated from his family, has limited capacity for meaningful communication with other prisoners or Corrections officers, has difficulties accessing his legal representatives and his inability to continue to carry on his business whilst in custody. However, her Honour found that these factors did not carry much weight.

11. [13]

    Her Honour also said the following in relation to Mr Wang’s risk of flight:

Bail Act 2013 s 74

1. [14]

   As a result of Mr Wang’s prior unsuccessful release application, he is required to show that there are grounds for a further release application pursuant to s 74 of the Bail Act 2013. That section provides relevantly as follows:

2. [15]

   Mr Wang relies upon the presentation of material information in this application relevant to the grant of bail that was not presented to the court in the previous application in accordance with s 74(3)(b). That material is as follows:

3. [16]

   When Dr Woods examined the complainant on 27 March 2018, she did not report any incident of penile/vaginal intercourse. The complainant recounted an unsuccessful attempt by Mr Wang to insert his penis, as well as completed digital/vaginal penetration and penile/oral intercourse. The complainant refused to allow a genital examination and as a consequence no DNA samples were taken. In relation to the bruising on the complainant’s legs, Dr Woods indicated that they could have been caused at any stage in the two weeks prior to her examination.

4. [17]

   Mr Wang contended that this was new material that is relevant to the grant of bail as it is now apparent that there will be no forensic evidence at trial in support of the allegation that Mr Wang had penile/vaginal intercourse with the complainant and the medical evidence regarding the bruising does not definitively substantiate the allegation.

5. [18]

   Mr Wang contended that the absence of complaint about full sexual intercourse to the sexual assault specialist and a refusal to undergo a vaginal examination will be matters relevant to the complainant’s reliability and credibility at trial. There is also said to be a related credit issue in that the complainant’s actions will have potentially contributed to the loss of an opportunity for Mr Wang to obtain evidence that may well have supported his response to the Crown case.

6. [19]

   Mr Wang also submitted that new material information is to be found within the expert statement of Ms Alexandra Nicola Bate dated 29 August 2018. The police facts tendered before Fullerton J alleged that there was semen detected on a tissue in the bathroom. The expert report now indicates that there was no semen detected on the tissue. DNA test results taken from the exterior crotch of the underpants and bra worn by the complainant do not provide a match for Mr Wang.

7. [20]

   The Crown’s written submissions provided to Fullerton J alleged that Mr Wang’s semen was located on the doona cover. The expert statement refers to two locations. Mr Wang’s semen is located in sample area 1 and his DNA cannot be excluded in sample area 2. With respect to sample area 1, an issue will arise as to whether the deposit of Mr Wang’s semen occurred at a different time to the other DNA material. A question may also arise with respect to whether evidence of Mr Wang’s semen being on the doona cover would be admissible as irrelevant considering the fact that the complainant indicated that he was unable to ejaculate at any time during the alleged assault. Moreover, the presence of semen in Mr Wang’s own bed in his hotel room is unremarkable, unless the time of the deposit were able to be established. Sample area 2 does not indicate that either Mr Wang’s semen or DNA was located but rather that a mixture of DNA was located from which he could not be excluded as a contributor.

8. [21]

   Mr Wang contended that these matters cast a different light upon the strength of the Crown case, compared to the matters considered and discussed by Fullerton J at [14]–[20] of her decision. Her Honour’s consideration of any attack upon Mr Wang’s credit instead emphasised the CCTV footage of the complainant and Mr Wang.

9. [22]

   In the application before her Honour, the Crown relied upon the presence of the complainant’s blood as confirmatory of her account. The expert report establishes that her blood was located on the pillow case, but Mr Wang cannot be excluded as a contributor to the blood on the doona. In any event, the presence of blood, whilst arguably consistent with sexual activity, is not necessarily confirmatory of sexual assault. Nor is the presence of Mr Gao’s semen on the pillow. Mr Gao cannot be excluded as a contributor to the DNA mixture on the doona cover.

10. [23]

    Mr Wang emphasised that none of this evidence would have been obtained if Mr Wang had instructed hotel staff to clean his room that morning. He contended that it would be reasonable to expect that a guilty offender would have ensured that occurred. Mr Wang thereby displays a lack of consciousness of guilt in this regard.

11. [24]

    Mr Wang submitted that this new material is relevant to the grant of bail as it goes to the assessment of the strength of the Crown case in circumstances where concerns as to the credibility and reliability of the complainant’s account are paramount. This is especially so given the several different accounts of the alleged assaults given by her to police. For example, in her first statement, dated 27 March 2018, the complainant says positively that she was not vaginally sexually assaulted, that only penile/oral intercourse occurred and makes no allegation that her legs were forced open resulting in bruising. In her second statement, also dated 27 March 2018, the complainant provided no details regarding the sexual assaults but indicated that she then wanted to proceed after having spoken to her husband and her parents. In her third statement, dated 28 March 2018, the complainant makes her first reference to penile/vaginal intercourse and the first complaint that Mr Wang forced her legs apart after Mr Gao had left the hotel room. In her fourth statement, dated 29 March 2018, the complainant stated that the incident when her legs were forced apart involved both Mr Wang and Mr Gao.

12. [25]

    The complainant explains these apparent discrepancies by saying that she did not want to upset her husband by telling him the full extent of the allegations. According to Mr Wang, another available inference is that she was concerned about her husband finding out where she was and who she was with until the early hours of the morning.

13. [26]

    Since the release application before Fullerton J, the complete CCTV footage has been reviewed by Mr Wang’s new legal representatives. That material relevantly discloses that the abridged version of the CCTV prepared by the Crown and tendered on the last application did not include what Mr Wang asserts are many relevant portions of kissing and hugging between him and the complainant at the karaoke bar. It also did not include the footage of the complainant inside the lift leaving the Shangri-La Hotel after the alleged assault.

14. [27]

    It is conceded by Mr Wang that some of the occasions of kissing and hugging were included in the original tender. However, he maintains that it is of vital importance to any assessment of the complainant’s credibility, as well as the issue of consent and Mr Wang’s knowledge of consent, that the full extent of this conduct should be considered. Counsel for Mr Wang has provided specific references to the material not previously available that are said to fall into this category.

15. [28]

    Mr Wang submitted that the additional footage amounts to material evidence not previously before the Court which is directly relevant to the assessment of the strength of the Crown case. He contended that much of the complainant’s behaviour does not appear to be consistent with her asserted concerns about Mr Wang’s behaviour at the karaoke bar.

16. [29]

    For example, in her first statement the complainant does not indicate that she kissed Mr Wang at all. In relation to her physical proximity, she says

17. [30]

    In the third statement, the complainant says only the following in relation to the kissing:

18. [31]

    When viewed in its totality, there is a period from 01:34:18 of approximately 20 minutes in which Mr Wang and the complainant are regularly, if intermittently, kissing each other on the mouth for extended periods of time. Mr Wang insisted that this footage, in particular that of the complainant caressing his hair, cannot be reconciled with the account given by her to the police.

19. [32]

    Mr Wang accepted that when the lights come on in the karaoke bar, the complainant rebuffed his advances, having previously appeared to be a willing participant in the darkened room. It will obviously be a matter for the jury at trial as to whether the complainant’s marital status influenced her willingness to be seen kissing Mr Wang once the lights were turned up.

20. [33]

    The new CCTV material depicting the complainant in the lift when she leaves the hotel offers a relatively clear view of her facial expressions. It depicts her checking herself in the mirror and, according to Mr Wang, exhibiting no signs of distress or having recently been crying. Mr Wang does not contend that this evidence alone would be conclusive, but that it brings into question the complainant’s credibility with respect to the issue of consent.

21. [34]

    The new material also includes the affidavit of Jun Yu dated 26 October 2018 which has been obtained by the defence since the last application. Mr Yu was a driver hired to transport the crew of the production company. Relevantly, after midday on 27 March 2018, the offence allegedly having occurred between 2.30am and 4.00am, Mr Yu conveyed Mr Wang to the airport, along with his parents, to collect his girlfriend. Later that day, Mr Yu was directed by Mr Wang to take him to an address in Day Street. Whilst unknown to Mr Yu at the time, Mr Wang was by then aware that Mr Gao had been arrested. Notwithstanding this fact, he then directed Mr Yu to drive him to the Day Street Police Station.

22. [35]

    Mr Yu is supported by the evidence of Ms Chen Chen’s travel itinerary. She was Mr Wang’s then girlfriend. The itinerary confirms that she left Beijing at 11.45pm on 26 March 2018, and arrived in Sydney early in the afternoon of 27 March 2018. Mr Wang contends that this evidence is relevant to the strength of the Crown case inasmuch as he has behaved in a manner that is inconsistent with guilt and has remained in the jurisdiction when he had an opportunity to flee.

23. [36]

    Finally, new material contained in the affidavit of Laura Windsor goes to the flight risk assessment as well. Her affidavit details the stringent controls that have been put in place by the electronic monitoring company Attenti in order successfully to supervise Mr Gao since he was released on bail. Relevantly, the officer in charge has advised Mr Wang’s solicitor that the police continue to receive daily notifications regarding Mr Gao.

24. [37]

    Mr Wang also relies upon the existence of changed circumstances in accordance with s 74(3)(c) of the Bail Act 2013. Specifically, he says that whereas the surety previously offered was in total a sum of $1,402,500, that sum has now been increased to $2,672,500.

25. [38]

    Taking all of these matters into account, I am satisfied that Mr Wang has demonstrated that there are grounds for a further release application. Having regard to my ultimate conclusion, it is necessary to refer only to one of them.

26. [39]

    The substantial increase in the amount offered as a surety is clearly something that qualifies as changed circumstances. The Crown submitted that this was not so, and that the availability of an amount by way of surety simpliciter was the guiding principle, rather than a more detailed assessment of the amount being proffered. The fallacy in that approach seems to me to be capable of testing in the following way. If it be assumed that Mr Wang had, on the previous occasion, been unable to arrange for any surety by cash deposit or otherwise, it could hardly be suggested that his ability to do so on a subsequent application would not amount to changed circumstances. There does not seem to me to be any logical or principled difference between that example and the facts of this case.

The “show cause” requirement

1. [40]

   It is not in contest that Mr Wang is required to show cause why his continued detention is not justified. He bears the onus of doing so on the balance of probabilities.

2. [41]

   Mr Wang relies upon three matters in an attempt to establish this requirement. First, he maintains that the Crown case is weak or alternatively is not strong. Secondly, he points to the likelihood that his trial will not proceed until after September next year and possibly not before some time the following year. Thirdly, Mr Wang has never previously been convicted of any offence either in Australia or in his native China, and prays that fact in aid of the present requirement as well.

3. [42]

   I should observe before proceeding further that Fullerton J was asked to consider additional matters in her assessment of this requirement. They included Mr Wang’s geographical isolation from his family, his inability to speak English and the associated difficulties likely to be encountered whilst on remand, his inability easily to converse or communicate and his inability to continue to run his business. I have also taken these matters into account.

4. [43]

   It was argued before Fullerton J that the Crown case was questionable. Her Honour did not accept that proposition. It was then contended before me that the additional material used to overcome the s 74 threshold left her Honour’s view of the strength of the Crown case susceptible to the formation of a different conclusion by me in the circumstances. In summary, that material was said to indicate that the complainant was not a reluctant participant in the events from which the alleged offences are said to arise. This included more evidence of apparently amorous interaction between the complainant and Mr Wang such as kissing and caressing. This additional behaviour was said by Mr Wang on this application reliably to inform the proposition that the Crown’s case that the complainant did not consent or that Mr Wang was not aware that she was not consenting had now become significantly attenuated.

5. [44]

   With great respect to the skill and persistence with which this argument was presented, I am unable to accept it. It seems to me that this presumably consensual flirtatious behaviour by both Mr Wang and the complainant is far removed from events alleged to have occurred later that evening. In particular, even putting aside the stark dissimilarity between the complainant’s attitude to Mr Wang’s advances that is evident when the lights come on at the karaoke bar, which is itself instructive, the CCTV depiction of what transpires thereafter at the hotel is even more informative. One could be forgiven for forming the view that the complainant was very reluctant to accompany Mr Wang to his hotel room in the first place and for accepting as highly probable that she only finally agreed to do so in the face of assurances from Mr Wang that there would be others there and that, necessarily, she was not to be subjected to unwanted sexual attention. That, in part, is to be the Crown case. Nothing that can be taken from the new material in my opinion does anything to reduce its strength.

6. [45]

   The CCTV material taken inside the hotel foyers adjacent to the lift carrying the complainant and Mr Wang to his room is equally instructive. Mr Wang has the complainant by her wrist. It would not be difficult to present a case suggesting that the complainant was decidedly unhappy about what was occurring when she was escorted in this way. It is on one view entirely inconsistent with the suggestion that it was a continuation of the apparently, perhaps obviously, consensual behaviour at the karaoke bar.

7. [46]

   Finally, I am not for present purposes enamoured of the submission that different or differing versions of what occurred in the room given to the police in the four statements provided by the complainant have the diluting effect for which Mr Wang contends. I find it to be entirely believable that a woman who found herself to have become a participant in the events that she ultimately described in clear detail to the police may not wish to reveal everything at the first opportunity. Issues of cultural sensitivity, male to female power differences, disparate economic standing and fame as well as concern for the status of her relationship with her husband, seem to me to be obvious examples of why the complainant did not reveal all in a single steady stream of consistent descriptions and recollections from the word go. Nor do I think it is fair or reasonable that the complainant’s perfectly understandable disinclination to submit to an intrusive and potentially uncomfortable and embarrassing examination should become illegitimately conflated with her credibility or reliability.

8. [47]

   I consider that the Crown case is anything but weak. I have no difficulty rejecting the contention that it is not strong.

9. [48]

   The prospect that Mr Wang will remain in custody on remand for as much as 18 months is a matter of considerable concern. This is a factor that weighs heavily in his favour on the question of whether his continued detention is justified. Crown arguments to the contrary, suggesting that this is not a relevant factor, or that it is not a matter favourable to Mr Wang’s contentions in this case, should not be accepted.

10. [49]

    The same can be said of Mr Wang’s record both in Australia and in China as a person with no history of criminal convictions of any kind.

Conclusion as to “show cause”

1. [50]

   In my view, the strength of the Crown case is such that Mr Wang is unable to show cause why his continued detention is not justified. That is so notwithstanding the competing considerations that are all favourable to his release. Mr Wang has no ties to the Australian community. He is a citizen and resident of China with which Australia has no extradition treaty. Mr Wang has no standing in Australia to maintain or protect so that the prospect of him being concerned to face a trial to establish his innocence or vindicate his reputation seems an unlikely incentive to remain in the jurisdiction. Mr Wang’s temptation to flee in the face of what I consider to be a strong Crown case and the inevitable prospect, if convicted, of a lengthy sentence of imprisonment, present an overwhelming incentive to leave the jurisdiction. Although it is not strictly available to me as an evidence-based conclusion, I infer from the material concerning Mr Wang’s status and standing within the Chinese community that he is or may be better placed than most applicants for release to make arrangements to leave Australia undetected if so inclined.

2. [51]

   As I am not satisfied that cause has been shown, Mr Wang’s application for release is refused.