R v Lalee - [2024] NSWSC 1335

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Lalee [2024] NSWSC 1335
Hearing dates: 21 October 2024
Date of orders: 21 October 2024
Decision date: 21 October 2024
Jurisdiction: Common Law - Criminal
Before: Dhanji J
Decision:
Application for bail granted with conditions.

Catchwords:
BAIL – release application – alleged conspiracy to traffic cannabis – firearms offence – serious offending – “Ghost” encrypted communications platform – evidence of communications – “Underworld” – question as to admissibility of messages obtained by authorities – show cause test – unacceptable risk test – strong Crown case – potential for delay – applicant’s conditions in custody – family circumstances – strict conditions proposed – electronic monitoring – cause shown – risk mitigated – bail granted subject to conditions

Legislation Cited:
Bail Act 2013 (NSW)
Crimes Act 1900 (NSW)
Criminal Code (Cth)
Firearms Act 1996 (NSW)
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

Category: Principal judgment
Parties: Hussein Lalee (Applicant)
Rex (Respondent)
Representation:
Counsel:
G Bashir SC (Applicant)
Solicitors:
Crimcorp Defence Lawyers (Applicant)
G Nicholson, Senior Federal Prosecutor Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2024/364510
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

HIS HONOUR: Hussein Lalee, to whom I shall refer as "the applicant", has made a release applicant pursuant to s 49 of the Bail Act 2013 (NSW) (the Act).
The applicant is presently 34 years of age, having been born in October 1987. He has been in custody since 17 September 2024, a period of just over one month. That custody relates to a number of charges which are individually and collectively of some real seriousness. The applicant is charged with an offence of conspiring to traffic in a marketable quantity of cannabis contrary to ss 11.5 and 302.3(1) of the Criminal Code (Cth), an offence of attempt to supply a prohibited firearm to a person unauthorised to possess it contrary to s 51(1A) (a) of the Firearms Act 1996 (NSW) and possession of a dedicated encrypted criminal communication device contrary to s 192P of the Crimes Act 1900 (NSW).
The offence against s 51(1A)(a) of the Firearms Act is an offence to which the show cause requirement applies as a result of the operation of s 16B(1)(d)(iii) and s 16B(1)(j) of the Act. As a result, s 16A(1) requires the applicant to show cause as to why his detention is not justified.
The Act does not, at least in express terms, provide the content of the show cause test. Some propositions emerge from the cases. In Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47, Leeming JA observed that the word "justified" is “conspicuously open-textured”, but went on to note that some content is given to the expression by considering how the legislature anticipated it would be applied; that is, by persons and ultimately, if bail is…

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.

Continue reading R v Lalee

Details

AGLC: R v Lalee [2024] NSWSC 1335
Case: [2024] NSWSC 1335
Decision Date: 21 October 2024

CaseChat Overview and Summary

In the case of R v Lalee, the applicant, Mr Lalee, sought bail in relation to a number of charges, including conspiracy to traffic cannabis and a firearms offence. The matter was heard in the Supreme Court of Victoria. The central legal issue for the court was whether Mr Lalee should be granted bail, given the seriousness of the charges and the risk he posed to the community. The court also had to consider the admissibility of certain evidence obtained from encrypted communications, and the potential impact this would have on the case.

The court examined the nature and seriousness of the charges against Mr Lalee, noting that the alleged conspiracy involved a large quantity of cannabis and the use of firearms. It was noted that the communications obtained from the encrypted platform, referred to as "Ghost", could potentially be highly probative if admitted as evidence. However, the court was also mindful of the risk that the evidence may be excluded, and the potential impact this would have on the case. The court considered the strength of the prosecution case, the risk of potential delay, and the applicant's conditions in custody, including his family circumstances.

Ultimately, the court was satisfied that the Crown had shown cause for the applicant's continued detention, as there was a strong case against him. However, the court found that the risk posed by the applicant could be mitigated by imposing strict bail conditions, including electronic monitoring. The court concluded that, while the risk of harm to the community remained, it was outweighed by the potential for delay and the applicant's family circumstances. Accordingly, the court granted bail to Mr Lalee, subject to strict conditions.

The final orders of the court included that Mr Lalee be released on bail, subject to a number of conditions, including electronic monitoring, a curfew, and regular reporting to authorities. The court also ordered that the applicant refrain from using any encrypted communications platforms, and that he surrender any devices that may be used for such purposes. The court emphasised the importance of the applicant complying with these conditions, and warned that any breach could result in the revocation of bail and his immediate re-arrest.

Orders