Nikollaj v The King

[2025] NSWCCA 31

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nikollaj v R [2025] NSWCCA 31

Hearing dates:

5 March 2025

Date of orders:

12 March 2025

Decision date:

12 March 2025

Before:

Price AJA at [1];
Dhanji J at [2];
Yehia J at [7]

Decision:

Bail granted subject to conditions.

Catchwords:

CRIME – Bail – show cause test – conspiracy to import a border controlled drug – aid and abet the attempted importation of a border controlled drug – AN0M devices – strength of prosecution case – longer delay – cause shown – unacceptable risk test – stringent conditions – bail granted

Legislation Cited:

Bail Act 2013 (NSW), ss 17(2), 18(1), 19(1), 22(2), 49, 16B, 67(1), 75

Criminal Code Act 1995 (Cth), Pt 9.1

Evidence Act 1995 (NSW), s 87

Surveillance Legislation (Confirmation of Application) Act 2024 (Cth)

Telecommunications (Interception and Access) Act 1979 (Cth)

Cases Cited:

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

Director of Public Prosecutions (Cth) v Habkouk [2022] NSWSC 98

Director of Public Prosecutions (NSW) v Ghama [2018] NSWSC 1427

Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227

Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83

Flower v R [2020] NSWCCA 64

JM v R [2015] NSWSC 978

Lee v R (Cth) [2024] NSWCCA 202

M v R [2015] NSWSC 138

Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314

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

R (Cth) v Dogan (Supreme Court (NSW), Weinstein J, 31 August 2024, unrep)

R (Cth) v Filipaina (Supreme Court (NSW), Harrison CJ at CL, 27 November 2023, unrep)

R (Cth) v Jones (Supreme Court (NSW), Ierace J, 5 December 2024, unrep)

R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365

R v Chen [2022] NSWSC 113

R v Elzamtar [2017] NSWSC 275

R v Filipe (Supreme Court (NSW), Walton J, 8 February 2024, unrep)

R v Hamilton [2022] NSWSC 127

R v Kugor [2015] NSWCCA 14

R v Lago [2014] NSWSC 660

R v Mate (Supreme Court (NSW), Yehia J, 30 September 2022, unrep)

R v Okusitino; R v Lavulo; R v Iongi [2024] NSWSC 143

R v Peters (Supreme Court (NSW), Harrison CJ at CL, 27 November 2023, unrep)

Raad v R [2015] NSWSC 532

SZH v R [2021] NSWSC 95

Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172

Category:

Principal judgment

Parties:

Gjelosh Nikollaj (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Djemal SC (Applicant)
A McGrath (Respondent)

Solicitors:
Zahr Partners (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2024/00468599

Publication restriction:

Nil

Judgment

1. PRICE AJA: I agree with Yehia J.

2. DHANJI J: I have had the benefit of reading the judgment of Yehia J in draft. I agree with the orders proposed by her Honour and with her reasons. I would add only the following.

3. The present is an extreme case. As the reasons of Yehia J demonstrate, while cause has been shown, the unacceptable risk test remains a significant hurdle for the applicant. The applicant presents a risk of committing a serious offence and of failing to appear. Against those risks, a refusal of bail will result in his detention, without conviction for a period approaching five years. That is a delay before trial of a length well beyond the ordinary. It is put into some context by what was said by Sperling J, over 20 years ago, in R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365 at [9], where his Honour observed that “[t]he prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights”.

4. The stronger of the two cases is the AN0M prosecution. For the reasons given by Yehia J, the Court should proceed on the basis that the AN0M evidence will be admitted. Yet even then his conviction cannot be said to be inevitable. In this regard the case can be contrasted with one in which there has been an actual importation of drugs combined with messages that establish the accused’s involvement. Here, there are real questions to be tried.

5. While there are questions in relation to whether either case will be proved, the evidence before this Court, particularly in the AN0M matter does establish that the applicant, within a very short time of completing a lengthy sentence for serious drug offending was, at the least, actively involved with serious criminals with a view to committing a similar drug offence. The risk of the commission of a serious offence on bail looms large. Despite this, the combination of circumstances, but primarily the strict nature of the conditions proposed, and the length of time the applicant will have been detained in custody prior to trial, are such as to mitigate the risk so that it is not unacceptable. In this regard, it is to be noted that the applicant has previously been subject to supervision when on parole over a period of six years, during which time it is not alleged he committed any offence.

6. There is also the risk that the applicant will fail to appear. The Bail Act 2013 (NSW) contemplates that it will be, in some cases, necessary to detain accused persons in custody in order to ensure they are brought to trial. Any such detention is of course, based on the application of the prescribed tests which aim to balance the competing considerations, including the presumption of innocence. The present case is highly unusual and perhaps unique in terms of the length of time the applicant will have been detained prior to trial if bail is refused. On the one hand ensuring persons accused of offences are brought to trial is an aspect of protecting the integrity of the system of criminal justice. On the other, detaining persons in custody, prior to conviction, in circumstances where it cannot be said conviction is inevitable for periods of time as long as that here is corrosive of the integrity of the justice system. It has something of a “we had to destroy the village in order to save it” quality.

7. YEHIA J: Gjelosh Nikollaj, (“the applicant”), has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (“the Act”). The applicant has previously applied for bail in the Supreme Court. On 24 August 2022, prior to his committal for trial, he was refused bail by Button J. On 5 June 2024, the applicant made a further release application which was refused by Wright J. This Court, as a result, has the power to hear the application: s 67(1) of the Act. The application is to be determined afresh: s 75 of the Act. The Court can, however, have regard to the judgments of Button and Wright JJ.

Background to the application and the procedural history

8. The applicant has pleaded not guilty to the following offences:

Indictment	Particulars	Maximum penalty	Trial date	Show cause
AN0M indictment Count 1	Between about 9 May 2021 and 25 May 2021, at Sydney in the State of New South Wales and elsewhere, did conspire with the person using the AN0M handle ‘twocome’ and divers others to import a substance, the substance being a border controlled drug and the quantity being a commercial quantity Contrary to sections 11.5(1) and 307.1(1) of the Criminal Code (Cth)	Life imprisonment and/or 7,500 penalty units	2 February 2026 (five- day Estimate)	s 16B(1)(a), (g) & (k) Bail Act
Strike Force Jillabenan indictment Count 3	Between about 24 February 2021 and about 3 June 2021, at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel or procure the commission of an offence by another person, namely the other person did attempt to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity. Contrary to sections 11.2(1), 11.1(1) and 307.1(1) of the Criminal Code (Cth)	Life imprisonment and/or 7,500 penalty units	16 February 2026 (eight- week estimate, joint trial)	s 16B(1)(a), (g) & (k) Bail Act

9. On 3 June 2021, the applicant was arrested and charged with the offence contained in the Strike Force Jillabenan indictment and was refused bail. On 9 February 2022, he was charged with the offence in the AN0M indictment.

10. On 15 June 2022, the applicant made a release application in the Local Court which was refused. On 24 August 2022, the applicant made a release application in the Supreme Court which was refused by Button J. On that occasion, his Honour found that the applicant had not shown cause why his detention was unjustified. In the alternative, the applicant posed an unacceptable risk of failing to attend court.

11. During 2022, the applicant and 64 other accused applied to cross-examine Crown expert witnesses on technical issues relating to the admissibility of the AN0M communications under the Telecommunications (Interception and Access) Act 1979 (Cth) (“TIA Act”), pursuant to s 82 of the Criminal Procedure Act 1986 (NSW) (“CPA”). These hearings were held in April and July 2023.

12. On 24 October 2023, the applicant was committed to the District Court for trial on the offences charged in both indictments. On 22 March 2024, the applicant was arraigned and entered a plea of not guilty to the offence on the AN0M indictment. On 4 April 2024, the applicant was arraigned and entered a plea of not guilty to the offence on both indictments.

13. In respect of the AN0M indictment, the trial estimate is five days. The trial is listed to commence on 2 February 2026.

14. The trial for the Strike Force Jillabenan indictment has an estimate of eight weeks. This is a joint trial and is listed to commence on 16 February 2026.

15. On 5 June 2024, the applicant made a further release application in this Court which was refused by Wright J. On that occasion, his Honour found that the applicant had shown cause why his detention is not justified, but refused bail, determining that the applicant poses an unacceptable risk of “flight and of committing further serious offences and, therefore, endangering the community”.

16. The applicant has therefore been in custody, bail refused, since 3 June 2021, a period of approximately three years and nine months. Of significance in this matter is the fact that if the applicant is bail refused pending his trials, he will have spent four years and eight months on remand. That, on any interpretation, is undue delay for someone who has pleaded not guilty and has the presumption of innocence in his favour.

The show cause test

17. Both of the offences alleged are show cause offences because they are punishable by imprisonment for life (s 16B(1)(a) of the Act); and, are serious indictable offences of either aiding and abetting, counselling or procuring, or conspiring to commit, an offence under Pt 9.1 of the Criminal Code Act 1995 (Cth) which involves the importation of a commercial quantity of a serious drug within the meaning of the Criminal Code (s 16B(1)(g) and (k) of the Act).

18. Pursuant to s 16A of the Act, therefore, the applicant is required to show cause why his detention is not justified.

19. It is important to note that this does not require any applicant to show special or exceptional circumstances which, as the provisions of s 22(2) of the Act make clear, is a separate and distinct matter from showing cause why detention is not justified: see SZH v R [2021] NSWSC 95 (“SZH”) per Garling J at [35]; Lee v R (Cth) [2024] NSWCCA 202 (“Lee”) per Dhanji J (Stern JA and Faulkner J agreeing) at [14].

20. Matters relevant to the unacceptable risk test remain relevant to the show cause test, but are not, in the case of the show cause test, the exclusive considerations: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 (“Tikomaimaleya”) at [24]-[25] (Beazley P, R A Hulme and Adamson JJ); SZH per Garling J at [34].

21. The Act does not, at least in express terms, provide the content of the show cause test: Lee at [13]. The test is not devoid of content. In Lee, Dhanji J (Stern JA and Faulkner J agreeing) said at [14]:

“… 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’.”

22. The justification, or otherwise, of detention is a matter to be determined by a consideration of all the evidence or information the bail authority considers credible or trustworthy in the circumstances. The determination of show cause can include a combination of circumstances: see Tikomaimaleya (Beazley P, R A Hulme and Adamson JJ agreeing) at [25]; Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47 (“Barr”) (per McCallum J’s dissenting judgment) at [97]; Flower v R [2020] NSWCCA 64 per Ierace J (Bathurst CJ and Johnson J agreeing) at [10]; Director of Public Prosecutions (NSW) v Ghama [2018] NSWSC 1427 per Hamill J at [10]; Director of Public Prosecutions (Cth) v Habkouk [2022] NSWSC 98 per Dhanji J at [49].

23. In Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314, Button J (Gleeson JA and Rothman J agreeing) said at [50]-[56]:

“[50] I consider that the following basic principles apply to a determination of whether an applicant has shown cause that his or her detention is unjustified.

[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.”

24. Some factors that can be taken into account in determining show cause include:

1. The strength of prosecution case. In Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 (“Mawad”), Beech-Jones J (Gleeson JA and Adams J agreeing) stated at [43]-[44] that:

“[43] … Each case must turn on its own circumstances. A test posited in terms as to whether detention is ‘justified’ or not necessarily defies any judicial attempt to circumscribe the circumstances in which it can be met.

[44] It is clear that the relative strength of the Crown case is relevant to whether cause has been shown but it is not determinative. In this case and notwithstanding the strength and seriousness of the Crown case I considered that Mr Mawad had shown cause…”

2. The delay in the applicant coming to trial: see R v Elzamtar [2017] NSWSC 275 per Harrison J at [18]; R v Chen [2022] NSWSC 113 per Harrison J at [7]; R v Okusitino; R v Lavulo; R v Iongi [2024] NSWSC 143 per Dhanji J at [78]. Delay is particularly significant when the applicant has an “arguable case”: see Lee at [55]. In R v Kugor [2015] NSWCCA 14, Hoeben CJ at CL (R A Hulme J and RS Hulme AJ agreeing) said at [35]:

“A matter of concern to the Court is the delay likely to be experienced by the respondent before these matters are finalised in court…It is a very serious matter to deprive a citizen of liberty for such a long period of time when he has not been convicted of any offence. …”

3. The applicant’s criminal history, or lack of antecedents: see SZH at [53].

4. The presumption of innocence and the right to be at liberty: see Lee at [15]; JM v R [2015] NSWSC 978 per Garling J at [34]; Barr at [82]. In M v R [2015] NSWSC 138, McCallum J said at [4] and [16]:

“[4] … The presumption of innocence is, of course, a fundamental premise of the criminal justice system; the right of a person to be at liberty a fundamental aspect of the common law right of freedom of movement. I do not think their removal from the objects section of the Act derogates from those fundamental common law principles.

….

[16] But the Court should not approach the show cause requirement, in my view, on the ground that an applicant must go further in order to show cause why his or her detention is not justified or bears any higher onus than to persuade the Court that there is no unacceptable risk having regard to the bail conditions that could reasonably be imposed to address any bail concerns in accordance with s 20A.”

25. The protective nature of decisions on bail must also be acknowledged: see Lee at [16]. While the issues of “show cause” and “unacceptable risk” must not be conflated, they are not completely independent: see Barr at [86].

The Crown case

The AN0M indictment

26. The AN0M indictment alleges that between 9 May 2021 and 25 May 2021 the applicant conspired with a person using the AN0M handle “twocome” and divers others to import a commercial quantity of a border controlled drug, namely 1.6 to 1.7 tonnes of either heroin or cocaine hidden in toilet paper roll canisters brought into Australia by sea freight. It is alleged that the applicant was using the AN0M handle “tennis”.

27. Upon the applicant’s arrest on 3 June 2021 and during the execution of a search warrant at his apartment, the police located an AN0M device. The applicant denied ownership of the device.

28. The Crown case relies primarily on communications that were made using the AN0M application. The communication between “twocome” and “tennis” continued over a 17-day period. It is alleged that the pair communicated on six separate days within the indictment period and that the agreement was formed on 9 May 2021. The relevant communications are set out in the Crown Case Statement dated 13 December 2023. It is not necessary to set out the communications in full in this judgment.

29. By way of example, the Crown points to the Crown Case Statement at [20] and [21], submitting that:

“At 6:36pm, the accused messaged ‘twocome’, “Let me get to see him again and I put to him 15%” and planned to “offer bit more” “if no”. The pair then discussed how their remaining 85% would be split between ‘twocome’, the accused and the accused’s friend.

The accused emphasised to ‘twocome’ that “what product you are thinking to send is going to make a big different (sic) what % they going to agree”. The pair then discussed, “ice” and “H” from Malaysia, and “coke”/”cc” from South Africa. The accused advised ‘twocome’ of the “shit profit” of “ice” to which ‘twocome’ responded, “… we can get both ice and H. Right now H is higher price but I know 2 groups holding more then (sic) 1T in Sydney and price coming down so just depends on the time we sending. H is very small market”.”

30. The Crown Case Statement at [25] and [26] alleges that on the same date the applicant and “twocome” also discussed using fishermen to pick up bags of drugs from a ship:

“The pair then discussed a third party named ‘Nik’ who was on ‘BC’ as opposed to AN0M. The accused asked whether ‘twocome’ had explained “the boat job… Wollongong harbour” to ‘Nik’. When asked by ‘twocome’ what they could do at “port kembla”, the accused explained that a “crew member sends the bag downstairs and they pick up on small fishing boat… this group who picks up the bags from thesheep only doo (sic) port kambal (sic)”. ‘Twocome’ asked the accused if they had “people inside port kembla ports??” to which the accused responded, “You have to know the crew members. Not port workers. Give the stuff to crew members” and explained the ‘fishing boat’ system was utilised “in Sydney long time agoo (sic)” before Sydney introduced the “Electronic system detection… if you approach the port”.

The pair concluded their conversation at 8:40pm on 9 May 2021 by agreeing to “focus on this company… For picking up in fishing boat” and the accused indicated to ‘twocome’ that he was “going to talk with some one about port kembla".”

31. The prosecution case also alleges that the applicant met with another person on several occasions to unsuccessfully negotiate the percentage payable to that person for their role in the alleged importation. The Crown Case Statement at [33] and [34] alleges that the applicant reported back to “twocome” having met this person to discuss their percentage, in the following way:

“At 10:13pm on the 23^rd of May 2021, the accused messaged ‘twocome’, “Bad news they said no they want (sic) talk yo me any more. They told me forget 20% and I said that’s the best we can offer. So back to zero again. That’s our luck latley (sic)”.

‘Twocome’ asked if they wanted “25%” to which the accused responded, “They just said no and left”. It is alleged the agreement was ongoing as the accused wrote, “see what they say once they cool down”.”

32. This reported meeting is relied upon as evidence of an overt act in furtherance of the conspiracy to import border controlled drugs.

33. It is further alleged that the tracking information shows that the AN0M device was in the same location as the applicant’s phone, vehicle and residence at times when it was being used.

Strike Force Jillabenan indictment

34. The Strike Force Jillabenan indictment alleges that between 24 February and about 3 June 2021, the applicant aided and abetted, counselled or procured the attempted importation of a commercial quantity of a border control drug, namely between 1.5 and 2.3 tonnes of cocaine from Ecuador.

35. In summary, it is alleged that the applicant aided and abetted the attempted importation by attending meetings with his co-accused Mende Trajkoski, driving him to collect cash from a safe house on various occasions, collecting and safekeeping cash to be paid to the undercover operative, and driving the co-accused to the meeting where a payment was delivered.

36. The prosecution case relies upon comments the co-accused made to the undercover operative recorded on a listening device to prove the applicant’s knowledge of the essential elements of the offence. The prosecution also relies upon a communication allegedly made by the applicant using the AN0M application to “twocome”, to prove knowledge:

Twocome

V told me something for Canada

Nikollaj

I don’t know for that

He didn’t say anything to me

Twocome

You told him

Nikollaj

If I did must have been the boat job but they are booked now until they finish one job

And that can take months

Submissions

Applicant’s submissions

37. In respect of the AN0M indictment, the applicant submitted that the strength of the prosecution case depends largely, if not exclusively on text and images that were sent between alleged co-conspirators using the software and devices known as AN0M. Two arguments are relied upon in support of the contention that a conviction is not inevitable.

38. First, the applicant submitted that there is a real prospect that the prosecution case will fail on the basis that the AN0M messages are inadmissible.

39. Second, the applicant contended that even if the evidence is admitted and the prosecution establishes attribution, the applicant’s involvement falls short of entry into the alleged conspiracy. At best, the communications establish negotiations conducted between “tennis” and “twocome”.

40. In illustrating that an arguable defence exists in respect of the AN0M indictment, Mr Djemal SC, on behalf of the applicant, provided the Court with a document titled: “Brief Chronology of Crown Facts”, which included the AN0M communications between “tennis” and “twocome” on the one hand and AN0M communications between “nativefact” (or “nativedirt”) and “twocome” on the other. This exercise was conducted to demonstrate that there was at least one other conspiracy to import a border controlled drug on foot, that the applicant was not involved in.

41. It was submitted that unlike other conspiracies which were on foot and well advanced, the applicant’s communications with “twocome” were in the very preliminary stages of negotiation and are insufficient to establish that an agreement had been reached between them to import a border controlled drug.

42. Furthermore, it is submitted that it is arguable that the Crown cannot establish an overt act in furtherance of the alleged conspiracy.

43. In respect of the Strike Force Jillabenan indictment, the applicant submitted that the prosecution case relies solely on circumstantial evidence. There is no relevant surveillance to prove that the applicant was aiding or abetting the importation of a commercial quantity of border controlled drugs. Even taking the prosecution case at its highest, it cannot be categorised as strong and that there is an “arguable case as to whether the applicant did aid and abet”.

44. The applicant relied on a combination of factors to show cause. Primary amongst them is the issue of delay, the applicant having already spent three years and nine months on remand. The applicant submitted that even if the trials were to proceed in February 2026, by that stage the applicant would have been bail refused for a period of about four years and eight months.

45. It was submitted that the significant delay must be seen in the context of a Crown Case, in each instance, neither of which can be categorised as overwhelming and where it is not inevitable that the applicant will be found guilty.

46. The applicant relies upon other bail applications before the Supreme Court which involve the issue of delay (regarding “AN0M matters”), where bail has been granted: see Lee (per Dhanji J, Stern JA and Faulkner J agreeing) ; R v Mate (Supreme Court (NSW), Yehia J, 30 September 2022, unrep); R (Cth) v Dogan (Supreme Court (NSW), Weinstein J, 31 August 2024, unrep); R (Cth) v Filipaina (Supreme Court (NSW), Harrison CJ at CL, 27 November 2023, unrep); R v Peters (Supreme Court (NSW), Harrison CJ at CL, 27 November 2023, unrep); R (Cth) v Jones (Supreme Court (NSW), Ierace J, 5 December 2024, unrep); R v Filipe (Supreme Court (NSW), Walton J, 8 February 2024, unrep); R v Okusitino; R v Lavulo; R v Iongi [2024] NSWSC 143 (Dhanji J).

47. The applicant also relies upon significant family and community ties and the proposed bail conditions, in discharging his onus pursuant to s 16A of the Act.

Crown Submissions

48. Contrary to the applicant’s submissions, the Crown (in written submissions filed on 24 February 2025) contended that the prosecution case in respect of the AN0M indictment is “very strong” and the Crown case in respect of the Strike Force Jillabenan indictment is “reasonably strong”.

49. The Crown submitted that the delay in this matter, though “undesirably lengthy”, is not sufficient to show cause why the applicant’s detention is not justified. The Crown takes issue with the contention that the applicant’s community ties are strong and protective. Furthermore, the Crown submitted that the proposed stringent bail conditions are not unusual in the circumstances and cannot ameliorate the risk of the applicant fleeing the jurisdiction or committing further offences.

50. During the oral hearing of the application the Crown conceded “there is a strong prima facie case in each instance, but it accepts that neither case is overwhelming, and it accepts there is an arguable defence in relation to both”.

51. In respect of risk, the Crown submitted that the proposed conditions do not sufficiently ameliorate the risk of failing to appear and the risk of a commission of a serious offence. In support of that contention, the Crown took the Court to various AN0M messages sent by the applicant to “twocome” which suggest his knowledge about and continued association with people in the business of drug importation.

52. The Crown also relied upon the familial connection between the applicant and Vaso Ulic, a person also allegedly involved in the conspiracy to import a border controlled drug. The Crown accepted however, that Mr Ulic was arrested and is currently in custody in Montenegro.

Strength of the prosecution case

53. It is apt to note at this stage that the strength of the prosecution case is not determinative of the application. It is a matter relevant to an assessment of whether the applicant poses an unacceptable risk of flight and an unacceptable risk of commission of an indictable offence: Mawad at [43]-[44] per Beech-Jones J (Gleeson JA and Adams J agreeing).

54. There is a live issue involving the admissibility of the communications captured on the AN0M devices. In short, it will be argued on behalf of the accused persons, that the obtaining of the evidence involves an interception of communication passing over a telecommunications system under the TIA Act. That Act requires the issue of a warrant to intercept such communications. Evidence obtained in contravention of this requirement is inadmissible. This issue gave rise to the cross-examination of current experts at the committal proceedings.

55. Similar objection was taken in proceedings in South Australia. The South Australian Court of Appeal has determined that the obtaining of the evidence did not involve an interception of a communication passing over a telecommunications system and that the evidence was therefore admissible: Question of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82 (“the South Australian decision”).

56. On 7 November 2024, the High Court granted special leave to appeal the decision. On 10 December 2024, the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) (“SLCA Act”), received Royal Assent and came into force on 11 December 2024. The SLCA Act confirms, inter alia, that evidence obtained using the AN0M application did not involve an interception for the purposes of the TIA Act.

57. On 7 February 2025, the South Australian accused filed an application in the High Court’s original jurisdiction challenging the validity of the SLCA Act, contending that the SLCA Act is invalid, because either it is an impermissible exercise by the Parliament of the judicial power of the Commonwealth, or it impermissibly interferes with and undermines institutional integrity as courts vested with federal jurisdiction.

58. It is anticipated that the High Court will hear the matter in the first half of 2025.

59. The applicant accepts that this Court cannot determine the question of admissibility on the release application. Rather, the applicant raises the proceedings in South Australia and the appeal to the High Court, to submit that the admissibility of the relevant AN0M messages is a live and arguable issue.

60. As Dhanji J observed (Stern JA and Faulkner J agreeing) in Lee at [31]:

“…. 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.”

61. In these circumstances the decision of the South Australian Court should be assumed to be correct.

62. Proof of the charge of conspiracy requires proving that the applicant intentionally entered into an agreement with at least one other co-conspirator to commit the offence. In large part, the prosecution intends to establish the necessary elements relying on the AN0M communications between “tennis” and “twocome”, urging the jury to draw inferences as to the fact of the agreement and knowledge.

63. This Court, on a bail application, has limited material upon which it can make an assessment about the strength of the prosecution case. The release application is not the opportunity to conduct a “mini-trial”, nor is it the venue for hearing and determining objections to the evidence.

64. With those caveats in mind, I am persuaded that the prosecution case in relation to the AN0M indictment is a strong one but cannot be categorised as overwhelming. The careful analysis conducted by Mr Djemal SC of the communications contained in the “Brief Chronology of Crown Facts” demonstrates an arguable defence both in relation to the existence of the agreement and whether the prosecution can prove an overt act.

65. In relation to the Strike Force Jillabenan indictment, the prosecution case relies on circumstantial evidence. That evidence includes surveillance of the applicant driving his co-accused to a house on two occasions to pick up money for an undercover operative and driving the co-accused on one occasion to meet the undercover operative.

66. In addition, the prosecution case includes a conversation between the undercover operative and the co-accused, where the co-accused made statements implicating the applicant as having knowledge of what was being planned: [73(a)] of the Crown Case Statement. Those representations will be the subject of an evidentiary argument pursuant to s 87 of the Evidence Act 1995 (NSW). It is accepted on behalf of the applicant that this is a matter to be determined by the trial judge.

67. Even assuming that the representations are admissible, it is by no means inevitable that the applicant will be found guilty of that offence. The prosecution would have to exclude alternative reasonable explanations consistent with innocence. By way of one example, the Crown would have to exclude the reasonable possibility that the co-accused’s representations were made in an effort to appease the undercover operative and reassure him that the presence of the applicant was not a matter for concern.

68. On the material before this Court, it is not inevitable that the applicant will be found guilty of this offence.

Has cause been shown?

69. While the applicant relies upon a combination of factors to show cause why his detention is not justified, the primary factor is the delay before his matters proceed to trial. The Crown submitted in writing that the longer than usual time taken for this matter to proceed to trial is largely because of the applicant’s decision to exercise his legitimate forensic right to challenge the admissibility of the AN0M evidence at committal and because of this, the trial has been deferred pending the resolution of the South Australian matter.

70. It is not helpful in this matter to delve into the reasons for the delay. The applicant is entitled to exercise his legitimate forensic right to cross-examine witnesses at committal, relevant to a challenge to the admissibility of the AN0M evidence. Furthermore, it is not the fault of the applicant that the challenge to the South Australian decision and the introduction of the SLCA Act is proceeding to the High Court. The Crown accepted as much during the hearing of the application.

71. A delay of four years and eight months before the matters proceed to trial is a significant consideration. This is particularly so in circumstances where the applicant has pleaded not guilty and is entitled to the presumption of innocence. Furthermore, in neither case is it inevitable that the applicant will be found guilty.

72. A delay of nearly five years between arrest and trial, to my mind, puts a very different complexion on this matter. It is a very serious matter to deprive a citizen of liberty for such a substantial period of time when he has not been convicted of any offence.

73. I am satisfied that the applicant has shown cause as to why his detention is not justified. In coming to this conclusion, I am mindful that it is contrary to the conclusion reached by Button J. However, I note that his Honour’s decision was made in August 2022, when the applicant had been in custody for a period of approximately 14 months. I observe that when the further release application was made before Wright J, on 5 June 2024, his Honour concluded that the applicant had shown cause why his detention was not justified.

Unacceptable Risk

Legislative Framework

74. Section 19(1) of the Act provides that: “a bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk”. Accordingly, in determining if there is an unacceptable risk, I must have regard to the bail concerns as set out in s 17(2) of the Act.

75. In R v Lago [2014] NSWSC 660, Hamill J indicated that the provisions of the Act cast an onus on the party who is opposed to the grant of bail. In relation to the assessment of unacceptable risk, his Honour stated at [8]-[9]:

“[8] The concept of assessing risk of this kind has been considered in a number of cases in the context of legislation relating to bail in other states, in sentencing cases and also in applications for detention under various statutory schemes: see for example Williamson v DPP (2001) 1 Qd R 99; Dale v DPP [2009] VSCA 212; Woods v DPP [2014] VSC 1: Fardon v Attorney-General (Qld) (2004) 223 CLR 575 per Gleeson CJ at [22], McHugh J at [34], Gummow J at [60] and Callinan and Heydon JJ at [225]; M v M (1998) 166 CLR 69; Beldon v R [2012] NSWCCA 194 at [53].

[9] The cases on bail recognise that ‘no grant of bail is risk free’: see Williamson (supra) at [22]; Dale (supra) at [58]. In the Application of Haidy [2004] VSC 247, a decision under the Victorian bail legislation, Redlich J said:

‘Bail when granted is not risk free. Williamson v DPP (Qld). As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. Dunstan v DPP; Williamson v DPP (Qld).’”

76. Unlike the show cause test, the unacceptable risk test, which is mandatory in any bail application, is highly proscriptive. Section 18(1) of the Act sets out a list, which is both mandatory and exhaustive, of the factors to be considered by the bail authority in assessing bail concerns under s 17 of the Bail Act: see Raad v R [2015] NSWSC 532 per McCallum J at [13].

77. The Crown submitted that the following bail concerns exist, namely, a risk that the applicant will fail to appear at court (s 17(2)(a) of the Act) and a risk of commission of a serious offence (s 17(2)(b) of the Act).

Section 18(1) Matters

78. The applicant is a 62-year-old man who is a dual citizen of Australia and Montenegro. The applicant has strong family ties by way of his close connection to his extended family, a matter to which I will return to in due course.

79. Accepting that conspiracy prosecutions are generally complex, particularly in the case of multi-accused proceedings, and that a grant of conditional bail may facilitate the preparation of the applicant’s trial, I am not persuaded this is a weighty consideration.

78. Of more concern is the evidence about the applicant’s health. The affidavit of Ms Aisha Lopez, the applicant’s solicitor, annexes a copy of the applicant’s relevant Justice Health records. By way of summary the applicant’s current medical conditions include angina, ischaemic heart disease, hypercholesterolaemia, type 2 diabetes, hypertension, gastroesophageal reflux disease and sleep apnoea. I accept that these conditions are being appropriately treated and monitored in custody. However, the risk of flight should be assessed in the context of a 62-year-old man with multiple medical conditions, who has strong family ties.

79. While the applicant has no history of violent offending, his criminal record contains a conviction for importing prohibited drugs. That offence involved a conspiracy to import 161 kg of methylenedioxymethamphetamine (“MDMA”) with a street value between $24 million and $48 million, for which he was sentenced to a term of imprisonment for 16 years with a non-parole period of 10 years. That sentence commenced on 15 December 2004, expiring on 14 December 2020.

80. The applicant complied with the terms of his parole for an extended period of six years. There is no suggestion that he breached parole by committing a further offence or by failing to comply with parole conditions. I note, however, that the term of imprisonment expired only two months and 11 days before the subject offending is alleged to have commenced.

81. I accept that the alleged offences are in a very serious category of offending, each carrying a maximum penalty of life imprisonment. In the event that the applicant is found guilty, it is inevitable that he will be sentenced to a lengthy term of full-time imprisonment. This is a relevant consideration to an assessment of whether the applicant poses an unacceptable risk of flight.

82. Having regard to the nature and circumstances of the allegations and the applicant’s prior conviction in respect of a very serious conspiracy to import 161 kg of MDMA, I accept that two bail concerns exist, namely, that the applicant will fail to appear at court and the risk of commission of a serious offence if the applicant is released to bail.

83. An assessment of whether the risk is unacceptable also includes consideration of whether the risk can be mitigated by bail conditions: see R v Hamilton [2022] NSWSC 127 per Beech-Jones CJ at CL at [14].

84. I return to a closer analysis of the evidence relied upon by the applicant in support of the contention that risk has been sufficiently ameliorated. The Court has received affidavit evidence from a number of individuals including three of the applicant’s nephews, his niece, his sister-in-law and a family friend.

85. Each of those individuals speak of the applicant’s close involvement with and connection to, his extended family. They are prepared to provide sureties, totalling $3,150,000. Those funds derive from either life savings or the equity in residential premises. The fact that these individuals are prepared to support the applicant’s release application by depositing their hard-earned money demonstrates the extent of the applicant’s family ties and is a powerful factor in ameliorating the risk of flight.

86. Tony Nikolic, one of the applicant’s nephews is a solicitor. He holds two master’s degrees in law, an Honours degree in Social Science/Criminology and is a Nationally Accredited Mediator and Notary Public. He is prepared to provide accommodation to the applicant and support him in the event that he is released on bail.

87. In addition to the sureties, the applicant proposes a number of strict bail conditions which include home detention, electronic monitoring and conditions restricting access to technology.

88. In Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172, N Adams J (Bathurst CJ and McCallum J agreeing) said at [50]:

“Estimation of risk is always difficult. I note the observation of McCallum J in R v SK; R v DK [2014] NSWSC 816 at [15] in this regard, ‘The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk.’ I have undertaken that balancing exercise and, having regard in particular to the strict conditions advanced, I am satisfied that none of the bail concerns amounts to an unacceptable risk.”

91. While I accept that there is a risk of failing to appear and a risk of commission of a serious offence, I am of the view that the substantial surety, home detention and the availability of electronic monitoring, mitigate those risks to the point that they are not unacceptable. I have made that assessment in the context of what is, in my opinion, substantial delay of nearly five years between his arrest and trial and in circumstances where, on any view, it is not inevitable that the applicant will be found guilty of either offence.

92. Having found that the risks are mitigated to the point where they are not unacceptable, bail should be granted subject to strict conditions.

93. 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 March 2025 unless excused and thereafter as directed.

3. The applicant is to live at XX and nowhere else.

4. The applicant is to report to the Officer in Charge at XX Police Station each day between the hours of 7:00am and 9:00pm.

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

1. To report to the police station; and

2. To attend court as and when required; and

3. For pre-arranged legal conferences; and

4. For pre-arranged medical/health appointments; and

5. In the case of a medical emergency

6. The applicant is not to take any illegal or prescription drugs other than a drug prescribed to the applicant by a medical practitioner.

7. The applicant is not to approach or communicate with, or attempt to make contact with, any prosecution witness [any person who the applicant has been notified as a 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.

8. The applicant is to travel from the Correctional Centre from which the applicant is to be released on bail in the company of XX, or XX, or XX, or XX who must be in attendance at that centre before release occurs. (This is a pre-release condition).

9. The applicant is to cause his Australian passport, any Montenegrin passport or other passport in his possession or control to be surrendered to the Officer in Charge (OIC) or the Supreme Court Registry prior to being released to bail and is not to apply for a new passport or other travel document. (This is a pre-release condition).

10. The applicant is not to go within 500 metres of any point of international departure from the Commonwealth of Australia.

11. 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 (OIC) within 24 hours of taking or resuming possession of any such service.

12. 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, or Telegram.

13. The applicant is to provide access to any internet capable device in the applicant’s possession to the Officer in Charge (OIC) on demand and provide any password or PIN code for the device to that person to facilitate access to it.

14. One or more acceptable persons are to deposit cash/security in the total sum of $3,150,000 and agree to forfeit that sum if the applicant fails to appear before court in accordance with the bail acknowledgment. (This is a pre-release condition).

15. The applicant is to present himself at the front door of the address where the applicant will reside at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the:

1. Home detention condition

2. Drug abstention condition

16. Prior to his release, the applicant is to have fitted and is to maintain in place thereafter a 24-hour electronic monitoring device provided by Allied Universal Electronic Monitoring Australia (Allied). The applicant is to comply with all requirements to ensure that the device continues to operate properly as an electronic monitoring device with Allied. (This is a pre-release condition).

17. The applicant is not to remove the electronic monitoring device except by arrangement with Allied and only after the bail condition no longer applies.

18. The applicant is to provide Allied with any telephone number or electronic email address nominated by the Commonwealth the Director of Public Prosecutions (CDPP) or the Officer in Charge (OIC), which is to be used if it is discovered that the Applicant has breached any bail conditions.

19. Within 24 hours of his release, the Applicant is to provide the Commonwealth Director of Public Prosecutions (CDPP) or the Officer in Charge (OIC) of the matter with evidence of compliance with this condition.

Decision last updated: 12 March 2025