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
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
PRICE AJA: I agree with Yehia J.
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.
The present is an extreme case. As the reasons…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Nikollaj v The King [2025] NSWCCA 31
Case
[2025] NSWCCA 31
Decision Date
CaseChat Overview and Summary
The case of Nikollaj v The King involved an appeal by the respondent, Nikollaj, against his bail refusal in the Federal Circuit Court. Nikollaj had been charged with conspiracy to import a border controlled drug and aiding and abetting the attempted importation of a border controlled drug. The central issue before the court was whether the lower court had correctly applied the legal principles in deciding whether to grant bail to Nikollaj.
The primary legal issue addressed by the court was whether the respondent had demonstrated a cause that warranted the grant of bail, in light of the strength of the prosecution case. The respondent argued that the strength of the prosecution case did not warrant a longer delay in the resolution of his bail application, and that there was a significant risk that he would not attend court if released on bail. The court was required to determine whether the respondent had demonstrated sufficient cause to show that the presumption in favour of bail should be overcome.
In its decision, the court noted that the respondent had presented a strong case for bail, particularly in light of the stringent conditions that could be imposed to mitigate the risk of non-attendance. The court found that the respondent had demonstrated a cause that warranted the grant of bail, as the strength of the prosecution case did not warrant a longer delay in the resolution of his bail application. The court also considered the risk that the respondent would not attend court if released on bail, but concluded that this risk could be mitigated by imposing stringent bail conditions. As a result, the court allowed the appeal and remitted the matter to the Federal Circuit Court for reconsideration of the bail application. The final orders of the court included the grant of bail to the respondent, subject to stringent conditions.