Members of the public gallery in a crowded Sydney courtroom briefly erupted into applause on Friday afternoon as a judge granted bail with strict conditions to Chinese movie star Yunxiang Gao, who is facing sexual assault charges.
Gao, 35, was in Australia filming a TV show earlier this year when he and another man allegedly raped a woman in a hotel room after a night out at dinner and a karaoke bar to celebrate the wrap of production.
Gao and producer Jing Wang have each been charged with aggravated sexual assault and aggravated sexual assault occasioning actual bodily harm over the alleged events early in the morning of March 27 at the Shangri-La Hotel in Sydney.
Gao’s wife Xuan Dong, who is also a well-known actor, was present at the New South Wales Supreme Court to hear the decision on Friday afternoon. She has moved to a Chatswood apartment with her daughter and Gao's mother, putting on hold her successful acting career in China to support her husband while the legal proceedings take place.
All seats were taken in the courtroom, with people sitting on the floor and others standing around the edges of the crowded room. Several journalists were present covering the case for Chinese media outlets.
When Justice Lucy McCallum said she would grant bail, a number of people in the courtroom broke out into applause but stopped quickly when Gao’s barrister John Korn turned around and snapped: “Be quiet! Be quiet!”
Gao, who does not speak English, was unaware his application had been granted until a few minutes later, when told by a translator. He remained expressionless at the news but nodded and replied “That’s good, thank you” in a comment that was translated for the court.
He will stay behind bars until electronic monitoring can be fitted, which can take up to 10 days.
The critical issue in the case will be consent, with "overwhelming" evidence including CCTV and DNA expected to prove Gao was in the room and did have sex with the woman, McCallum said.
She said there were aspects of the case that were "very strong" in establishing a lack of consent, but other aspects that could cast doubt on the clarity with which the woman communicated her lack of consent. Under NSW law, a lack of consent would require both the woman not consenting and Gao knowing she did not consent.
CCTV shows the woman pulling away from Wang at points when he tried to kiss her, but also shows her kissing him and appearing as though she is not uncomfortable with his presence, McCallum said.
The Crown alleges that at a number of points when the woman felt uncomfortable she remained in Wang's company to be polite.
"Politeness was certainly important in circumstances when she was entertaining overseas colleagues," McCallum said.
She said that the woman did have chances to leave safely and without impoliteness after karaoke and outside the hotel, noting that this doesn't mean she consented to sex later in the hotel room.
The court heard that the woman's husband had called police after she returned home after the alleged rape and told him that someone had tried to keep her at the hotel and kiss her.
She initially told police she was undecided about what she wanted them to do, but said in a second statement: "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."
McCallum said she had considered Gao was a significant flight risk given his lack of ties to Australia and the fact Australia has no extradition treaty with China.
She noted Gao would face a long prison sentence if convicted, saying: "That is a strong incentive to flee."
She considered an affidavit from a man named Wei Wei who does not know Gao but who gave evidence based on his experiences of the Chinese film industry.
"He said that in Chinese culture absconding is almost always automatically associated with guilt and if the applicant were to abscond, the Chinese community would consider him guilty as charged and he would have no reputation to speak of," McCallum said, recounting Wei's evidence.
"He would be despised so much it would be impossible for him to work anywhere, as anything, in China."
She said the prosecution had a point when they argued if Gao was weighing up the consequences of fleeing as opposed to conviction that flight may seem more attractive to him, but concluded on the basis of her assessment of the strength of the case against Gao and the support of his family that the flight risk could be mitigated under strict conditions.
The conditions placed on Gao include electronic monitoring; reporting twice daily to police; surrendering his own passport and the passports of his wife, daughter and mother; using only one mobile phone with the number provided to the police; not going within 100 metres of Sydney International Airport; a 9pm-5am curfew; and that he must not contact any prosecution witnesses.
He has also provided sureties of more than $3 million.
The court heard that the Crown case against Gao contains material alleging that the woman had been contacted by various members of the Chinese business and media community offering her money for the withdrawal of charges.
These reports were "very concerning" but there was no evidence they had been made at the behest of Gao or Wang, McCallum said.