Lee v R (Cth)

[2024] NSWCCA 202

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lee v R (Cth) [2024] NSWCCA 202

Hearing dates:

18 October 2024

Date of orders:

1 November 2024

Decision date:

01 November 2024

Before:

Stern JA at [1]
Dhanji J at [2]
Faulkner J at [79]

Decision:

Bail granted subject to conditions.

Catchwords:

CRIME – bail – release application – show cause test – conspiracy to import commercial quantity of cocaine – Operation Ironside – AN0M devices – admissibility of AN0M evidence – did the applicant enter into a conspiracy – strength of Crown case – long delay – cause shown – unacceptable risk test – electronic monitoring – risk mitigated – bail granted subject to conditions

Legislation Cited:

Bail Act 2013 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Criminal Code (Cth)

Criminal Procedure Act 1986 (NSW)

Telecommunications (Interception and Access) Act 1979 (Cth)

Weapons Prohibition Act 1988 (NSW)

Cases Cited:

Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47

Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47

Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Flower v R [2020] NSWSC 64

Iongi v R [2022] NSWCCA 42

Mate v R (Supreme Court (NSW), Yehia J, 20 September 2022, unrep)

Question of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82

R v Bail Applicant M [2020] NSWSC 1685

R v Damcevski (Supreme Court (NSW), Dhanji J, 23 October 2023, unrep)

R v Dogan (Supreme Court (NSW), Weinstein J, 31 August 2023, unrep)

R v Falzon (2018) 92 ALJR 701; [2018] HCA 29

R v Kugor [2015] NSWCCA 14

R v Lee (Supreme Court (NSW), Ierace J, 1 December 2023, unrep

R v Okusitino; R v Lavulo; R v Iongi [2024] NSWSC 1

R v Siafakas (Supreme Court (NSW), N Adams J, 4 September 2023, unrep)

Texts Cited:

Criminal Trials Bench Book, 5-5310

Orchard, “Agreement in Criminal Conspiracy - 1” [1974] Criminal Law Review 297

Practice Note No. SC CCA 1 Court of Criminal Appeal – General

Category:

Principal judgment

Parties:

Julian Lee (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Djemal SC (Applicant)
R Ranken SC (Respondent)

Solicitors:
Kekatos Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2024/00264352

Publication restriction:

Nil

JUDGMENT

1. STERN JA: I agree with Dhanji J.

2. DHANJI J: Julian Lee (“the applicant”) has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (“the Act”). Bail decisions, refusing the applicant bail, have previously been made by the Supreme Court. On 13 December 2022, RA Hulme AJ refused the applicant bail. On 1 December 2023, Ierace J also refused the applicant bail. This Court, as a result, has power to hear the application: s 67(1)(e) of the Act; Iongi v R [2022] NSWCCA 42. The application is to be determined afresh: s 75 of the Act. It is not an appeal or review of the decisions of the Supreme Court: R v Kugor [2015] NSWCCA 14 at [4] per Hoeben CJ at CL, RA Hulme J and RS Hulme AJ agreeing. The Court is not, however, precluded from having regard to the judgments of RA Hulme AJ or Ierace J.

The background to the application

3. The applicant has been in custody since 25 June 2021 when he was charged, and refused bail, with respect to a number of offences, the most serious of which related to a plan to import 171 kilograms of cocaine. Some of those charges have since been withdrawn. Remaining on foot are the following charges:

Count	Offence	Date	Description	Maximum Penalty
1 (originally Sequence 4)	s 11.5(1) with 307.1(1) Criminal Code (Cth)	Between about 20 March 2021 and about 8 June 2021	Conspiracy to import a commercial quantity of a border-controlled drug, namely cocaine	Life Imprisonment
s 166 Certificate (originally Sequence 1)	s 7(1) Weapons Prohibition Act 1988 (NSW)	On about 25 June 2021	Possess a prohibited weapon, namely an extendable baton, without a permit	2 years imprisonment (14 years imprisonment on indictment)

4. The conspiracy charge is listed for trial in the Sydney District Court on 28 July 2025. The offence relating to the extendable baton has been placed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), to be dealt with as a summary offence by the District Court.

5. The applicant is presently 44 years of age. At the time of his arrest, he had not previously been convicted of a criminal offence. He is an Australian citizen, with ties to the community, having been born, and lived his life entirely in this country. That he has been bail refused for a period of approximately three years and four months, with a further period of nine months before his trial is due to be heard is, at first blush, arresting. The brief history set out below however explains, at least to some extent, the circumstances in which this has occurred.

6. Whilst the applicant had not previously been convicted of any offence, he was, at the time he was arrested, on bail for an offence of supplying a commercial quantity of cocaine. The applicant was arrested in relation to that matter on 30 March 2020, on which date he was seen to enter the rear of the vehicle which had been under police surveillance, before emerging with a brown paper bag which was subsequently found to contain a 1 kilogram brick of cocaine.

7. While on bail for the supply offence, the applicant was arrested, as noted above, on 25 June 2021, and charged with the present offence. The applicant subsequently pleaded guilty to the offence of commercial supply and on 15 February 2022, he was sentenced to imprisonment for a period of 2 years and 8 months, with a non-parole period of 1 year 8 months. The commencement date of that sentence was backdated to 24 April 2021 to take into account pre-sentence custody following the applicant’s arrest on the supply charge, and the period of custody dating from the applicant’s arrest with respect to the present charge.

8. The result of the above chronology is that from his arrest on 25 June 2021 until 23 December 2022, the applicant was, while bail refused, also serving the non-parole period of the sentence imposed for the supply offence. From 24 December 2022 until 24 December 2023 he was bail refused while also serving the parole period of the sentence. The period during which the applicant has been in custody while not serving any sentence is therefore in the order of 10 months. The period he has been in custody while not subject to a non-parole period is 1 year and 10 months.

9. The sentence imposed for the commercial supply offence was less than three years. As a result, by operation of the relevant provisions of the Crimes (Administration of Sentences) Act 1999 (NSW) (“CASA”), the applicant was entitled to release to parole at the end of his non-parole period pursuant to a statutory parole order: see CASA, s 158. In these circumstances, it is appropriate to treat the applicant as having been remanded in custody as a result of his bail refusal with respect to this offence for the period from which he was entitled to release to parole, that is the period of 1 year and 10 months.

10. Having regard to the above, and given that the trial is set for 28 July 2025, if refused bail, the applicant will remain in custody for a period of two years and seven months prior to trial as a result of that refusal. That is necessarily a dominant consideration in the determination of this application. It is not, however, necessarily determinative. It is necessary to consider that matter in the context of the relevant tests to be applied under the Act together with all matters relevant to the application of those tests.

The show cause test

11. The conspiracy charge is one to which the show cause test in s 16A(1) of the Act applies. Not insignificantly, that is so on three separate bases: it is an offence punishable by imprisonment for life (s 16B(1)(a)); it is an offence that involves a conspiracy to import a commercial quantity of a serious drug (s 16B(1)(f),(k)) and it is serious indictable offence alleged to have been committed while the applicant was on bail for another offence (s 16B(1)(h)(i)). As a result, bail must be refused unless the applicant shows cause as to why his detention is not justified.

12. In the event that cause is shown it remains necessary to apply the unacceptable risk test. Satisfaction of the show cause test will not automatically establish satisfaction of the unacceptable risk test. So much is made plain by s 19(3) of the Act.

13. The Act does not, at least in express terms, provide the content of the show cause test.  Some propositions emerge from the cases.  In Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314 the Court made the following observations with respect to the application of the test (at [51]-[56]):

“51   First, the question is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25].

52 Secondly, as was remarked upon in that judgment of this Court, Parliament has not enumerated the facts that may show cause, in contrast to the enumeration by Parliament of the factors relevant to the assessment of unacceptable risks: see ss 16A and 18 of the Bail Act.

53   Thirdly, there will nevertheless often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists: see Director of Public Prosecutions (NSW) v Tikomaimaleya at [24], R v Marcus [2016] NSWCCA 237 at [31] and [35], and McAndrew v R [2016] NSWCCA 58 at [9].

54   Fourthly, cause may be shown by a single powerful factor, or a powerful combination of factors: see R v S [2016] NSWCCA 189 at [63].

55 Fifthly, one should refrain from placing a gloss on the words of the Bail Act: see the judgment of Beech-Jones J (Gleeson JA and Adams J agreeing) in Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [42]. In particular, it is not incumbent upon an applicant to show special or exceptional circumstances in order to show cause; Parliament has reserved that different requirement to different circumstances: see s 22 of the Bail Act.

56   Sixthly, one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [30] to [33], unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions.”

14. The above summary sets out the proper approach to the test without seeking to define the test itself, other than by stating what the test is not. That is, it is not a requirement to show special or exceptional circumstances or some other such test. That is not to say the test itself is devoid of content. In Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47, Leeming JA (at [85]) noted that the word “justified” is “conspicuously open-textured”. His Honour, however, observed that some content can be given to the expression by considering how the legislature anticipated it would be applied; that is, by persons, and ultimately if bail is initially refused, by courts “familiar with the basic principles of the Australian legal system”.

15. While the onus is on the applicant to show cause, relevant considerations, at least in a case such as the present where the applicant has not been convicted, include those which properly relate to the continuing detention of a person who is presumed innocent of the charges against them. That is to say the presumption of innocence and the right to be at liberty remain fundamental, and relevant, common law principles: see the preamble to the Act; Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325 at [65].

16. The protective nature of decisions on bail must also be acknowledged (as also referred to in the preamble to the Act). Application of the show cause test by persons with an understanding of the basic principles of the Australian legal system led Leeming JA to explain in Barr (a pseudonym) (at [86]) that:

“Courts may be expected to give great weight to the absence of any bail concerns in determining whether an accused person discharges the onus of showing his or her detention is not justified. It may well be that very little would be required in such a case to conclude that the person’s detention is not justified.”

17. The requirement to show cause should not, therefore, be understood as an invitation to arbitrary decision-making by requiring an applicant to satisfy a test devoid of content. That said, in the present matter, the show cause test is a not insignificant hurdle. This is reflected in the multiple bases on which the test applies and the particular facts of the case. Those facts include the nature of the charge and the level of the applicant’s involvement in the conspiracy, the consequent potential penalty faced by the applicant and that the alleged commission of the offence while the applicant was on bail with respect to the serious offence of commercial supply of cocaine. The primary considerations in favour of the applicant showing cause are the delay and the strict conditions to which he would be subject if granted bail. In order to weigh these considerations it is necessary to have regard to the strength of case against the applicant, noting the limitations on the capacity of a court to assess the strength of a case on a bail application.

The Crown case

18. The case against the applicant arises from a well-publicised policing operation known as Operation Ironside. That operation involved the use of communications devices known as “AN0M devices”. These devices were developed by the authorities and, through undercover police operatives, distributed within the organised crime milieu. Recipients of the devices were given to understand that the devices had been developed to allow persons, such as themselves, to communicate undetected by the authorities, essentially for the facilitation of criminal ventures. As I understand it, they were designed to appear as innocent mobile telephones, but by entering a particular calculation into the calculator application, the “secure” communication capacity of the device was unlocked.

19. The AN0M device became the preferred method of communication for a significant number of criminal syndicates. Confidence in the devices was such that, commonly, little was done to disguise communications over the platform. Those communications were, however, observable by police.

20. Issue has been taken with the admissibility of the evidence obtained by the use of the AN0M devices by a significant number of accused persons caught up in the police sting, including the present applicant. As a result, there have been significant delays in bringing those accused persons to trial. The applicant pointed to a number of decisions granting bail in which this delay was a significant consideration: see for example R v Okustino; R v Lavulo; R v Iongi [2024] NSWSC 143; R v Damcevski (Supreme Court (NSW), Dhanji J, 23 October 2023, unrep); Mate v R (Supreme Court (NSW), Yehia J, 20 September 2022, unrep); R v Siafakas (Supreme Court (NSW), N Adams J, 4 September 2023, unrep); R v Dogan (Supreme Court (NSW), Weinstein J, 31 August 2023, unrep);.

21. Returning to the Crown case, it was conveniently summarised in the Crown submissions on the application as follows:

“The Commonwealth offence concerns the Applicant’s alleged involvement in a conspiracy to import approximately 171 kilograms of cocaine from South America. The cocaine was concealed in the underwater sea chest of a juice tanker (the Ouro Do Brasil) that departed Brazil on 8 June 2021. The Applicant’s alleged role was to organise a team of divers to extract the cocaine from the Ouro Do Brasil upon its arrival in Newcastle. The cocaine was ultimately seized from the Ouro Do Brasil at a Belgian port on 21 June 2021, prior to the tanker’s arrival in Newcastle.”

22. The applicant’s involvement, as discussed above, is alleged on the basis of communications on an AN0M device. On the Crown case the applicant was the person with a username depicted by four devil emojis (“4Devils”). Various communications made by 4Devils link the identity of that person to the applicant such that I am satisfied there is a very strong case that the applicant is 4Devils. No submission was made to the contrary.

23. There is also a very strong case that 4Devils was actively, and enthusiastically engaged in communications related to the receiving and offloading of the cocaine when the ship arrived in Australia. Two arguments were however raised by the applicant in support of his submission that the applicant’s conviction is not inevitable. The first of those arguments was based on the admissibility of the evidence obtained through the AN0M device. The second argument is that, even if that evidence is admitted, the applicant’s involvement falls short of entry into the alleged conspiracy.

24. It is necessary to have regard to these arguments, at least to the extent that this can be done in the context of a bail application. I pause to note that the applicant did not suggest the Crown case was doomed to fail or even necessarily weak. His point is that he has an arguable case. The existence of an arguable case is significant in a context where, if bail refused the applicant will spend approximately two years and seven months in custody referable to that refusal in circumstances where his conviction is not assured. The existence of an arguable case is also relevant to the risk of the applicant failing to appear. That is, the prospect of success at trial is likely to diminish the incentive to flee the jurisdiction.

25. It should also be noted that, in some circumstances, weakness in a Crown case will also inform concerns with respect to the prospect of the applicant committing an offence if granted bail. That is because it is more difficult to rely on an allegation to predict the likelihood of similar conduct in the future where the evidence in support of the allegation is weak. That, however, is not this case. Here, any weakness in the Crown case says nothing about the applicant’s capacity or willingness to engage in serious drug-related offending at the time of the acts founding the conspiracy charge. Rather, the asserted weakness in the case is based on what might be described, without intending to be pejorative, as technical arguments.

The first argument: admissibility of the AN0M evidence

26. The primary reason for the delay in this, and various other cases involving the AN0M devices is an issue with the admissibility of the evidence obtained by the authorities from those devices. In short, it is argued on behalf of the accused persons, that the obtaining of the evidence involves an interception of a communication passing over a telecommunication system under the Telecommunications (Interception and Access) Act 1979 (Cth) (“TIA Act”). That Act requires the issue of a warrant in order to intercept such communications. The TIA Act renders evidence obtained in contravention of this requirement inadmissible. No issue of discretion arises.

27. As a result of the technical issues which arise in determining whether the communications involved an interception under the TIA Act, committal proceedings have taken place in which a number of experts have given evidence and been cross-examined. While various matters have been listed for trial, no argument has yet been heard in the District Court.

26. There are, however, similar proceedings in South Australia which are more advanced. An interlocutory appeal against a pre-trial ruling adverse to the accused was heard by the Court of Appeal of South Australia which determined that the obtaining of the evidence did not involve an interception of a communication passing over a telecommunications system and the evidence was thus admissible: Question of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82 (“the South Australian decision”).

27. Senior counsel for the applicant responsibly conceded that if the South Australian decision is correct it would apply to the applicant’s case. In other words it was not submitted that there was anything available in the New South Wales cases, in particular arising out of the evidence given at the committal hearing held in this State, that would allow a court to distinguish the South Australian decision. In circumstances such as this, where the Court would be otherwise unable to ascertain a matter of importance, it is of great assistance to able to rely on the candour of counsel. The applicant’s counsel is to be commended in this regard.

28. Having regard to the above concession, counsel’s submission as to admissibility was limited to a submission that the South Australian decision may be overturned. In that regard an application for special leave to appeal to the High Court against the South Australian decision has been made. The Court was informed that the Director conceded in response to the application, that the case is an appropriate vehicle for a grant of special leave. It was not suggested this involved any concession as to the merits of the case, but rather on the basis that the case raises an issue of general importance.

29. The highest it can be put for the applicant, therefore, is that there remains a possibility that the High Court will reverse the South Australian decision with the result that the evidence in his case will be inadmissible. It is not appropriate for this Court to enquire into the merits of the argument. There is a decision of an interstate intermediate appellate court with respect to Commonwealth legislation which is against the applicant. Should the issue of admissibility of the evidence against the applicant come before the Court of Criminal Appeal in this State, the Court will follow the South Australian decision unless satisfied that it was “plainly wrong”: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]; R v Falzon (2018) 92 ALJR 701; [2018] HCA 29 at [49]. There was no argument that the decision was plainly wrong although, in fairness, this was not the appropriate forum for such an argument.

30. In the circumstances described above, I am of the view that the decision of the South Australian court should be assumed to be correct. This has obvious implications for the assessment of the strength of the case against the applicant. Subject to the applicant’s second argument, the case against him appears to be overwhelming.

The second argument: did the applicant enter the conspiracy?

33. The applicant contends that while he may have been involved in discussions, and indeed shown interest in being involved in the importation of the cocaine, he had not gone so far as to enter into a conspiracy to import the drug. The determination of the applicant’s bail application is not the appropriate forum for a close analysis of the law of conspiracy and its application to the facts of this case. It is necessary to say something, however, at least at a level of some generality. Essential to proof of the charge of conspiracy is proof that the applicant, intentionally, entered into an agreement with at least one other co-conspirator to commit the offence. That agreement is central to the concept of a conspiracy. This raises the question of the sufficiency of the dealings of the alleged conspirators to constitute an agreement: see The Queen v LK (2010) 241 CLR 177; [2010] HCA 17 at [135]. In The Queen v LK (at [135]) the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed, in a footnote, that the agreement need not be attended by any formalities. Included in the footnote is a reference to Orchard, “Agreement in Criminal Conspiracy - 1” [1974] Criminal Law Review 297. That article makes various observations as to what constitutes an agreement for the purposes of a criminal conspiracy, including the proposition that negotiation is not agreement. That, as I understand it, is the applicant’s point. In this vein, a direction to any prospective jury can be expected to include a direction that in order for the accused to have participated in the agreement, the accused “must have known what was proposed as the objective of the agreement and must have intended to carry that objective into effect”: Criminal Trials Bench Book at [5-5310]; see Criminal Code (Cth), s 11.5(2)(b); The Queen v LK at [133].

34. It is plain that there was in place, in June 2021, a conspiracy amongst others to send cocaine to Australia. A boat left Brazil on 8 June 2021, on its way to Newcastle carrying the drug in furtherance of that agreement. It is necessary for the purposes of this argument to consider the evidence of the applicant’s involvement in that conspiracy to import the drug.

35. In late 2020, using their respective AN0M devices, a person with the username Tom Ford was in contact with a person with the username, Kit88. In the course that contact Tom Ford provided the details of (what I accept for the purposes of the application to be) the applicant’s AN0M device to Kit88, and subsequently provided the details of Kit88’s AN0M device to the applicant. There is no suggestion that exchanges at this point were concerned with any importation of a border controlled drug.

36. In March 2021, the applicant made contact with Kit88, suggesting they communicate on the AN0M devices “from now on”. This would tend to suggest the applicant had been using another device to communicate with Kit88, the details of which are not known to the authorities.

37. According to the statement of facts, on 28 March 2021 the applicant, using the name 4Devils, began what is described as an intermittent exchange of messages about “no.2 from South America”. I would accept this to be a reference to cocaine. The following messages were sent:

“Kit88:   “Hello brother”

“Nothing special but seen Burma things all stop and we are planning to send no.2 from South America”

4Devils:   “That’s terrific brother”

…

4Devils:   “By the way brother how is our boat project looking’’

…

“Any news on the boat project brother?”   

Kit88:   “The main guy ask for meeting on Tues night think maybe some update brother”

“But we will do no.2 not no.1 coz bad situation I’m Burma”

4Devils:   “That’s awesome brother…ozzy selling 300 lol”

…

4Devils: “Also brother you have any updates on the boat project?”

Kit88:   Still waiting update from south America brother, my side ppl have 700 sticks there planning the boat thing”

38. One inference that might be drawn is that the reference to “our boat project” is a reference to the cocaine importation and that the applicant and Kit88 were party to an agreement as alleged. It is not, however, the only inference. The reference to “our boat project” is also capable of being a reference to a project that had been discussed but not necessarily agreed upon. The request for updates is also consistent with this. That the communications are described as “intermittent” at this point arguably supports this view.

39. On 25 May 2021, an exchange took place between 4Devils and Kit88 in which Kit88 enquired as to whether 4Devils had access to diving teams, with 4Devils responding affirmatively. Again the exchange, while certainly indicating a willingness to be involved, can also be interpreted as preparatory to an actual agreement.

40. The next day Kit88 sent 4Devils a photograph of Newcastle harbour and two photographs of a ship, with a Wikipedia entry for the ship type. This would appear to tie the discussions to the particular importation that was then on foot. Further messages were exchanged which appear to relate to the impending importation with at least the possibility that 4Devils would have a role in it.

41. On 27 May 2021, 4Devils sent a message to an unknown person on the AN0M platform asking whether he had “boat teams and dive teams” and was told “I can find out”. The following exchange subsequently took place:

“Kit88:   Brother for no.2 vessel diving project they going to do 200kg

Cost around 8k USD per kg

4Devils:   OK brother let me see if I can do it. How deep they have to dive? Also how many trips back and forth will they need to do? Also is it OK for a smaller boat to approach the tanker?”

Will it look suspicious?

Kit88:   I saw my FD last night and know how to do brother let’s chat bit later today

4Devils:   Ok brother”

42. The message sent by 4Devils, “OK brother let me see if I can do it”, is likely to be relied on by the applicant as evidence that agreement had not at that time been reached.

43. Two days later, on 29 May 2021, the following exchange took place:

“4Devils:   Hi brother how are you? Good news I have a diving team brother

Kit88:   Perfect my brother

They will start the way soon.

4Devils:   What’s the charge of the team or what u going to charge brother”

44. Again, it is at least arguable that 4Devils’ enquiry as to “the charge of the team” suggests he had not committed himself to an agreement but was still negotiating a potential agreement.

45. On 31 May 2021, there was an exchange between 4Devils and Kit88 in which there was further discussion of the charge for the divers. 4Devils asked, “how many pieces can I invest in brother?”. Similar discussion took place on 2 and 4 June 2021. While clearly enthusiastic, it remains at least open to the applicant to argue that he had not at that point reached an agreement with Kit88 or anyone else.

46. On 7 June 2021, the following exchange took place between the 4Devils and Kit88:

“Kit88:   Hi brother

The diving job brother

4Devils:   OK brother

Kit88:   Totally 178 pieces going to sens

4Devils:   Ok brother

So are they tying them together to a rope and we drag the rope to out boat tow it to shore?

Kit88:   Will see him for more details brother

But not tow to shore for sure brother its too danger to lost it lol

4Devils:   Not if its in a net brother

So we can net it together and tie to a rope Then the diver only has to do 1 trip.

Kit88:   Not net brother 3 big black bags as the photos I just showed u

They will tie all 3 big bags with rope so only one trip

4Devils:   Ok brother…that is still heavy lol

Kit 88:   Speak tmr brother I’m too tired really need sleep now”

47. By this point, matters appear to have advanced, although there were still questions as to methodology. While such questions are not necessarily inconsistent with the existence of an agreement it is arguable that the applicant required more information before committing himself to the enterprise.

48. On 7 June 2021, 4Devils forwarded 5 images to the user, Tom Ford, who also used the name Pop Smoke, however the content of the images was not captured. The following messages were then sent:

“Pop Smoke:   “Hey brother wow promise we can do this”

“Brother looks so easy”

“Do it’s mum”

4Devils:   “OK brother thanks”

“So please follow up kingpin on divers...been waiting 1 week for him”

“Everyone waiting on him lol”

49. Kingpin appears to have been a person Pop Smoke was in contact with from time to time. Pop Smoke’s statement “promise we can do this”, might suggest that 4Devils and Pop Smoke were yet to agree to embarking on the venture. That does not, of itself, not mean that 4Devils had not agreed with Kit88. For the applicant, it is, however, at least open to argue, the message implies 4Devils had not at that time formed an agreement with Kit88 (and Pop Smoke was urging him to do so). Alternatively, it may be that 4Devils had agreed with Kit88 and Pop Smoke.

50. Pop Smoke later that day sent 4Devils photographs of underwater equipment, the purpose of which was clearly to suggest such items that might be used to retrieve the cocaine, together with a message stating “Bro my brother in law doing research on it”. Such further discussion of methodology again might be argued as to going to preparation, without any actual agreement having been entered into.

51. On 9 June 2021, the applicant attended Bondi Police Station to report in accordance with the condition of his bail in relation the commercial supply offence. He was arrested for breaching his bail. He was made aware that police believed him to be the user of the AN0M device, identifying himself as 4Devils. Unsurprisingly, there were no further communications by 4Devils.

52. The abrupt cessation of communications by 4Devils came at a time when there had been, over some time, ongoing discussions as to the involvement of 4Devils and any diving team he may have secured in unloading the cocaine from the vessel. At that point, 4Devils was certainly aware of the importation and willing to be involved. It was, however, conceded by Senior Counsel for the Director that an agreement between the applicant and Kit88 to go to the suppliers with a proposal “perhaps doesn’t quite get there”. [1] Given the need for the Crown to prove the applicant had intentionally entered into an agreement with at least one other person to import a border controlled drug, there is at least room for argument as to whether the 4Devils had, by that point, intentionally entered into an agreement to import the cocaine. The argument is not one a jury is likely to find attractive. It is technical in nature, in the sense that the moral quality of the applicant’s involvement is largely the same, irrespective of whether he reached the point of entering into an agreement with another to import cocaine. Nonetheless, I would accept that there is an argument available to the applicant at trial.

    1. Tcpt, 18 October 2024, p 23(23)

Has cause been shown?

53. While the applicant relies upon various matters to show cause, by far the most significant factor is the length of time he will be in custody prior to trial if refused bail. The applicant relied on what was said in Simpson v R [2021] NSWCCA 264 at [9] in this regard.

54. I do not find it constructive to delve into explanations for, or questions of who has been responsible for, the delay. It is sufficient to observe that the process has been protracted by the novel issue raised by the prosecution’s reliance on the evidence obtained through the use of the AN0M devices. It has not been suggested that the delays in this context have been other than as a result of a legitimate forensic process. It is not helpful to speak of the length of time such a process can or should be expected to take. Certainly, it is not the fault of the applicant that an overburdened criminal justice system has not been able resolve the question that has arisen and try him before this time. The simple fact is the applicant will be detained in custody, as a result of this matter, for a period of two years and seven months in the event that he is denied bail.

55. My conclusion that, on the material tendered on the application, the applicant has at least an arguable case, is significant. In the absence of an arguable case, having regard to the commission of the offence on bail, and despite the very long delay, I doubt I would have found cause to have been shown. The prospect of detention in custody for a period of at least two years and seven months as a result of being bail refused, not having yet been convicted and in the context of an arguable case, places matters in a different context. I am satisfied the applicant has shown cause as to why his detention is not justified.

56. In coming to this conclusion, I am mindful of the contrary conclusions of RA Hulme AJ and Ierace J. While the present matter is not a review of those decisions, I am not precluded from having regard to their Honours’ decisions, which are entitled to respect. At the time RA Hulme AJ made his decision in December 2022, the applicant’s trial was anticipated to commence in mid-2024. That clearly has not occurred. The applicant remaining in custody for a further year significantly distinguishes the present application.

57. At the time Ierace J made his decision, in December 2023, (close to one year after the applicant’s non-parole period expired) no trial date had been set. It was apparent by that time, however that the applicant’s trial would not be completed until mid-2025 (see R v Lee (Supreme Court (NSW), Ierace J, 1 December 2023, unrep) at [9]), with the result that his Honour accepted that the applicant may well be detained exclusively on remand for this matter for up to a further 18 months from the date of the application. It was argued before his Honour that there was an issue as to whether the AN0M messages would be admitted. While his Honour was aware that the issue had been raised before RA Hulme AJ, it does not appear to have been argued before him that there was a potential issue with proof of the prosecution case even if the messages were admitted. That availability of that argument is critical to my determination.

58. Before leaving this issue, I make one final observation. While the strength of a Crown case will usually be a matter to be assessed on an application for bail, I would not ordinarily engage in the detailed analysis I have undertaken above. The time required for such an exercise in a context where time is critical makes it, at least to an extent, self-defeating. Additionally, it must be acknowledged that the material presented is necessarily limited. The present case, however, is somewhat exceptional. As I have said, given the applicant was on bail for commercial supply at the time of the present offence, absent at least an argument available to him at trial, I would not have found cause to have been shown. It is only due to this that I have engaged in the exercise at the level I have. It should not be seen as invitation to the parties to a bail application to attempt to conduct a form of mini-trial.

The unacceptable risk test

59. Cause having been shown it remains necessary to apply the unacceptable risk test. Pursuant to s 19 of the Act if I am satisfied on the basis of an assessment of the relevant bail concerns that the applicant presents an unacceptable risk, bail must be refused. Conversely, if I am not so satisfied, an order should be made which will allow the applicant to be released: s 20. That assessment is to be made having regard only to the matters set out in s 18 of the Act.

The risk the applicant will fail to appear: s 17(2)(a)

60. The applicant faces a lengthy period of imprisonment in the event that he is convicted of the present offence. That provides him with a significant motivation to flee the jurisdiction.

61. The applicant has a brother who lives in Hong Kong. He appears to have significant ties to criminals both within Australia and overseas. In addition to using the AN0M device he was also in possession of a Cipher device in May 2021. There is a concern that the applicant will use such contacts, and means of communication, to leave the jurisdiction. While conditions can be imposed restricting the applicant’s access to and use of electronic devices, similar conditions were placed on the applicant’s bail with respect to the commercial drug charge, which he plainly breached.

62. Against the above, the applicant has significant ties to the community. The applicant relied on affidavits of his mother and wife. His father died in 2016. He remains close to his mother, who owns a restaurant which she has operated for approximately 11 years. He has supported his mother through various health concerns. She is willing to provide security over her home in an amount of $1,300,000.

63. The applicant’s wife deposed that she had been in a relationship with the applicant for 26 years, the last 11 of which they have been married. She came to Australia with her family as a young child and consequently also has close ties to family here.

60. The applicant is willing to subject himself to electronic monitoring. Evidence was tendered directed to the efficacy of such monitoring in preventing persons from escaping overseas. The Crown relied on the affidavit of Federal Agent Luke Wilson in this regard. Without descending to the detail of this evidence, it must be accepted that electronic monitoring is not foolproof: see Flower v R [2020] NSWSC 64. I would, nonetheless, accept that such monitoring provides a significant obstacle to any attempt to escape trial.

61. On the application, the prosecution filed written submissions in which reliance was placed on the observations of Fagan J in R v Bail Applicant M [2020] NSWSC 1685 where his Honour cast doubt as to the suitability of a condition for electronic monitoring as a result of the obligations it would place on the Australian Federal Police. In Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232 at Beech-Jones CJ at CL, at [8] rejected such an approach. Bathurst CJ explicitly agreed with Beech-Jones CJ at CL’s observations. In R v Okusitino; R v Lavulo; R v Iongi [2024] NSWSC 143 reliance was also placed on the decision in R v Bail Applicant M. I said (at [89]-[90]):

“89   … Despite the Commonwealth Director being a party to [the decision in Saadieh], no reference was made to it in the written submissions of counsel for the Director. Indeed, reference was made to a decision of a single judge of this Court, inconsistent with, and predating, the decision in Saadieh.

90   … It is not open to the Director to ignore statements of the Court of Criminal Appeal on the basis that it is not convenient to the Director’s case. I would expect serious consideration would be given to the tendering of any such statements in the future, insofar as they deal with the issue of the imposition electronic monitoring poses to the AFP. …”

66. It is extraordinary that reliance should continue to be placed on the decision of a single judge of the Supreme Court, ignoring a contrary decision of this Court. When my observations in R v Okusitino; R v Lavulo; R v Iongi were pointed out at the hearing, senior counsel for the Director made plain that no reliance was placed on R v Bail Applicant M. Further, subsequent to the hearing, communication was received by the Court from the Director disavowing reliance on both the decision, and a paragraph in Federal Agent Wilson’s affidavit which might be thought to transgress what was said in Saadieh.

67. It should be stressed that the affidavit of Federal Agent Wilson was not in the same form as that tendered before me in R v Okusitino; R v Lavulo; R v Iongi. I would accept that Federal Agent Wilson modified his affidavit to address the concerns raised in R v Okusitino; R v Lavulo; R v Iongi.

68. It should also be stressed that there is no basis to conclude that senior counsel appearing on the application prepared the submissions filed on behalf of the Director. Indeed, in conformity with what appears to be a relatively common practice of the Commonwealth Director’s office, there was no indication of the individual responsible for the submissions. It is unclear as to why this should occur. It is contrary to the Practice Note No. SC CCA 1 Court of Criminal Appeal – General which provides:

“Filing and Format of Written Submissions

16.    All written submissions shall:

…

(f)   be signed by the legal representative(s) who prepared or settled the submissions and include the name and email address of the signatory.”

69. The existence of the requirement promotes accountability, with the potential to avoid a situation such as that which has arisen here.

70. Returning to the issue of the applicant’s risk of failing to appear, as noted above, I accept that the risk is real. It is, however, at least unclear as to what connections the applicant currently has with members of the criminal underworld who might be willing to assist him. In this regard, given the absence of any concerns with respect to the applicant’s behaviour in custody, I would accept that he has not been in any contact with such persons for a period of over three years. In the circumstances, the risk posed by the apparent existence of such connections at the time of arrest is, perhaps, not as strong as it once was.

71. Having regard to the substantial security available and availability of electronic monitoring, viewed in the context of the delay, I am of the view that the risk of the applicant failing to appear is mitigated to the extent that it is not unacceptable.

The risk the applicant will commit a serious offence (s 17(2)(b)), or otherwise endanger the safety of the community s 17(2)(c))

72. These concerns are related and can be dealt with together. Clearly, a concern exists with respect to these risks. In the present case, any question as to proof of the Crown case has nothing to do with the applicant’s willingness to engage serious drug related offending. Further, he was so engaged while on bail for supply of a commercial quantity of cocaine, an offence he later admitted to having committed.

73. As I have discussed above, the applicant was, at least at the time of his arrest, a person with significant connections to others with a willingness and capacity to engage in large-scale drug offences. This increases the risk of the commission of a serious offence. As I have also observed, however, it is not clear as to whether, or the extent to which, such connections remain.

74. At the time of the present allegations, it does not appear that the fact that the applicant was on bail with respect to the commercial supply offence, discouraged the alleged co-conspirators from dealing with the applicant. That said, there is nothing to suggest those persons were aware that the applicant was on bail. The applicant’s absence from the community over the last three years, is not so easily avoided. That is, it is likely that others who might otherwise have dealt with the applicant, will be more reluctant to do so.

75. Having regard to the time that has elapsed, and the strict conditions which are proposed, again in the context of the substantial delay, I am of the view that the risk the applicant will fail to appear or otherwise endanger safety of the community are mitigated by the proposed conditions to the point that they are not unacceptable.

The risk of interfering with witnesses or evidence: s 17(2)(d)

76. The relevant evidence is in the hands of the prosecution. There is no suggestion that there is any witness that is potentially susceptible to interference. No unacceptable risk arises on this basis.

Proposed orders

77. Having found that the risks with respect to the various bail concerns set out in s 17 of the Act are mitigated to the point where they are not unacceptable, bail should be granted, subject to strict conditions.

78. I propose the following order:

1. Bail is granted to the applicant subject to the following conditions:

1. The applicant is to be of good behaviour.

2. The applicant is to appear at the District Court at Sydney on 28 July 2025 and otherwise as directed.

3. The applicant is to live at Unit XXX, XXX XXXXX X Street, XXXXX XXX NSW XXXX and nowhere else.

4. The applicant is to report to the Officer in Charge at XXXXX XX Police Station each day between the hours of 8am and 8pm.   

5. The applicant is to comply with a home detention condition: he is not to leave the premises at which he is required to live except in the following circumstance(s):

1. to attend conferences with his legal representatives, Kekatos Lawyers; OR

2. to attend court; OR

3. to obtain medical treatment; OR

4. to travel to work at his mother’s restaurant, XXXXX X XXXXX , located at XX XXXXX X Street, XXXXX XXXX NSW XXXX; OR

5. for the purposes of reporting to police OR

6. with prior written consent from the Officer in Charge.

6. Any travel to the locations the applicant is permitted to attend, above, is to be by the most direct route, without any unnecessary delay, and within the agreed travel corridor, which has been annexed to these conditions and marked “A”. Should the applicant be unable to travel by the most direct route or be required to travel outside the agreed travel corridor he will notify the Australian Federal Police Officer in Charge within 2 hours of that occurrence.

7. The applicant may only travel away from the Correctional Centre from which the applicant is to be released on bail when in the company of XXXXX XXX XX. This is a pre-release condition and must be complied with before the applicant is released on bail.

8. The applicant is not to approach or communicate with, or attempt to make contact with, XXXX XXXXX by any means, including telephone and internet social media platforms, or through another person, other than a legal representative.

9. The applicant is not to approach or communicate with, or attempt to make contact with, any prosecution witness other than a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative.

10. The applicant is not to go within 1km of any point of international departure from the Commonwealth of Australia.

11. The applicant is to cause his passport to be surrendered to the officer in charge of the XXXXX XX Police Station prior to being released to bail, and is not to apply for a new passport or other overseas travel document. This is a pre-release condition.

12. The applicant is to not to use or be in possession of more than one mobile telephone service and SIM card, and is to provide the password or PIN code, service and IMEI numbers of that telephone to the Officer in Charge within 24 hours of taking or resuming possession of any such service.

13. The applicant is not to use or possess any encrypted device or any means of communicating via encrypted applications, including but not limited to WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, Zoom, Discord, WeChat or Telegram.

14. The applicant is to provide access to any internet capable device in the applicant’s possession to the officer in charge on demand and provide any password or PIN code for the device to that person to facilitate access to it.

15. An acceptable person[s] is to enter into an agreement under which that person(s) agrees to forfeit the sum of $1,300,000 if the applicant fails to appear before court in accordance with the bail acknowledgment. This is a pre-release condition.

16. Prior to release, and at the applicant’s own expense, he is to be fitted with an electronic monitoring device Allied Universal Electronic Monitoring Australia Pty Ltd calibrated to monitor compliance with the home detention and travel restriction conditions. The applicant is ensure that the electronic monitoring device, the stationary beacon or home unit, battery and the electronic monitoring system continue to be of a standard that meets the minimum standards prescribed in Schedule 1 of the Bail Regulation 2021 (NSW). This includes allowing the technicians of Allied Universal Electronic Monitoring Australia Pty Ltd access to the applicant’s residential premises where that is necessary to ensure that the device remains up to standard. This is a pre-release condition.

79. FAULKNER J: I agree with Dhanji J.

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Endnote

Decision last updated: 01 November 2024