R v Potter - [2025] NSWSC 732

Supreme Court

New South Wales

Medium Neutral Citation: R v Potter [2025] NSWSC 732
Hearing dates: 30 June 2025
Date of orders: 10 July 2025
Decision date: 10 July 2025
Jurisdiction: Common Law
Before: Price AJ
Decision:
Bail refused.

Catchwords:
CRIME – bail – release application – further release application – change of circumstances – where trial date was vacated – conspiracy to import a commercial quantity of a border controlled drug – AN0M devices – admissibility of AN0M evidence – strength of prosecution case – very strong Crown case – where substantial delay – lengthy period of time in custody – stringent bail conditions – where substantial security offered – combination of circumstances – cause shown – unacceptable risk test – bail concerns – where risk of flight – strong evidence of association with international criminal syndicates – where applicant committed present offence whilst on parole – non-compliance with parole – unacceptable risks of failure to appear and committing further serious offence – bail refused

Legislation Cited:
Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 30A, 49, 74, 75
Bail Amendment (Ban on Private Electronic Monitoring) Act 2025 (NSW)
Criminal Code Act 1995 (Cth), ss 11.5, 307.1
Surveillance Legislation (Confirmation of Application) Act 2024 (Cth)
Telecommunications (Interception and Access) Act 1979 (Cth), s 7

Cases Cited:
Ali v Director of Public Prosecutions (NSW) [2017] NSWCCA 155
CD v Director of Public Prosecutions (SA) [2024] HCASL 297
CD v Director of Public Prosecutions (SA) [2025] HCATrans 35
CD v Director of Public Prosecutions (SA) [2025] HCATrans 36
Lee v R (Cth) [2024] NSWCCA 202
Nikollaj v R [2025] NSWCCA 31
Questions of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82
R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365
R v David John Potter (Supreme Court (NSW), Wright J, 17 May 2024, unrep)
Simpson v R [2021] NSWCCA 264

Category: Principal judgment
Parties: David John Potter (Applicant)
Rex (Crown)
Representation:
Counsel:
P Boulten SC (Applicant)
N Morrissey (Crown)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Director of Public Prosecutions (Cth) (Crown)

File Number(s): 2025/155745
Publication restriction: Nil

JUDGMENT

HIS HONOUR: David John Potter (“the applicant”) has made a release application pursuant to s 49 of the Bail Act 2013 (NSW). The applicant has previously made a release application in the Supreme Court of New South Wales. On 17 May 2024, Wright J refused the applicant bail. At the time of the applicant’s unsuccessful application, his trial was listed for hearing on 4 August 2025 in the District Court at Sydney.
On 21 February 2025, the trial date was vacated and is now listed for mention on 15 August 2025 for directions. It is difficult to predict when the trial may be listed for hearing. I agree with the applicant’s senior counsel, Mr Boulten SC, submission that it is “highly unlikely to proceed in 2025 and is much more likely to proceed sometime in 2026”.^[1]
1. Tcpt, 30…

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 Potter

Details

AGLC: R v Potter [2025] NSWSC 732
Case: [2025] NSWSC 732
Decision Date: 10 July 2025

CaseChat Overview and Summary

In the matter of R v Potter, the applicant sought further release on bail after the original trial date was vacated. The applicant was charged with conspiracy to import a commercial quantity of a border controlled drug. The case was heard by the Supreme Court of Victoria. The primary issue before the court was whether there had been a change of circumstances warranting a reconsideration of the bail application, given the lengthy period the applicant had already spent in custody and the stringent conditions imposed upon their release.

The court considered whether the substantial delay in the trial date, the applicant's lengthy period of incarceration, and the substantial security offered constituted a change of circumstance. Despite acknowledging these factors, the court also evaluated the strength of the prosecution's case, which was deemed very strong due to the evidence of the applicant's association with international criminal syndicates, the nature of the offence committed while on parole, and the non-compliance with parole conditions. The court concluded that the combination of these circumstances did not outweigh the unacceptable risks of flight and further serious offending, thus denying the application for further release on bail.

Upon assessing the risk of flight and the likelihood of the applicant committing further offences, the court found that the applicant's association with criminal syndicates and the gravity of the alleged offence created a significant risk. Consequently, the court determined that these risks outweighed the considerations of delay and stringent bail conditions, leading to the refusal of the application for further release on bail. The court emphasised the importance of the unacceptable risk test and the need to balance the rights of the applicant with public safety concerns.

Orders