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

1. 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.

2. 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 June 2025, p 4(3-5).

3. By the time of the directions hearing on 15 August 2025 in the District Court, the applicant will have been on remand, bail refused for more than four years. He was arrested on 7 June 2021.

4. When the applicant’s trial eventually commences, it is likely, in the event his release application is refused, he will have been on remand in excess of five years.

Reason trial date was vacated

5. The trial date was vacated not due to any fault on the applicant’s or the Crown’s part. The Crown case against him relies mainly on the terms of the encrypted messages sent and received on a messaging platform known as AN0M. The applicant intends to challenge the admissibility of those messages at trial. He is charged with one count of conspiracy to import a commercial quantity of a border controlled drug, namely about 1.2 tonnes of cocaine, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth).

6. The applicant intends to challenge the admissibility of the AN0M messages on the basis that those messages were intercepted without a necessary warrant and are inadmissible because of the operation of s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) (“TIA Act”).

7. At the time of the release application before Wright J, a similar contention had been advanced by another accused in South Australia and a decision on that admissibility issue was pending in the South Australian Court of Appeal. On 27 June 2024, the South Australian Court of Appeal determined that the obtaining of the AN0M evidence did not involve an interception of a communication passing over a telecommunications system and the evidence was admissible: Questions of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82 (“the South Australian decision”).

8. The appellant in the South Australian decision was granted special leave to appeal to the High Court from the decision of the South Australian Court of Appeal: CD v Director of Public Prosecutions (SA) [2024] HCASL 297. Following the grant of special leave, the Commonwealth Parliament passed the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) (“SLCA Act”), which came into force on 11 December 2024. The SLCA Act confirms that evidence obtained using the AN0M application did not involve an interception for the purposes of the TIA Act. That legislation specifically states that it applies to a number of cases which includes the applicant’s case.

9. On 7 February 2025, the appellant in the South Australian decision filed an application in the High Court’s original jurisdiction challenging the constitutional validity of the SLCA Act.

10. The hearing of the constitutional challenge and special leave arising from the South Australian decision were both heard on 13 May 2025.

11. In oral submissions, Mr Boulten informed the Court that, the High Court heard full argument on the constitutional challenge. However, it appears that the argument in respect of the South Australian decision was confined to a withdrawal of the grant of special leave. The High Court has reserved its decisions: CD v Director of Public Prosecutions (SA) [2025] HCATrans 35; CD v Director of Public Prosecutions (SA) [2025] HCATrans 36.

Section 74 of the Bail Act

12. A further release application is not permitted unless there are grounds to make another application. The Crown concedes that s 74(3)(c) of the Bail Act is satisfied because the applicant’s trial having been vacated, constitutes a change of circumstances such that a fresh release application is justified. Accordingly, the application is to be determined afresh: s 75 of the Bail Act. The Court may however have regard to the judgment of Wright J: R v David John Potter (Supreme Court (NSW), Wright J, 17 May 2024, unrep).

The offence

13. The applicant has pleaded not guilty to the following offence:

“Between about 11 January 2021 and 7 June 2021 at Sydney in the State of NSW and elsewhere, [the applicant], Brian Anthony Blackman and Jarrod Patrick Gallagher conspired with each other and divers others, to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity [contrary to ss 11.5(1) and 307.1(1) of the Criminal Code].”

14. The maximum penalty for the offence is life imprisonment and/or 7,500 penalty units.

15. The Crown alleges that the applicant played a senior role in a conspiracy to import approximately 1.2 tonnes of cocaine from Colombia, via Ecuador, into Australia, using a mother-daughter ship operation.

16. The Crown alleges that the applicant was responsible for organising the daughter-ship and its crew (originating in the Philippines) to meet and retrieve the cocaine from the mother-ship in the waters of Palau in Micronesia.

17. The cocaine never left South America due to delays with the mother-ship’s departure in Colombia and arrests were made in Australia. The Crown alleges that the applicant’s identical twin brother, Daniel John Potter, was involved in the offending and was onboard the daughter-ship at that relevant time.

18. As previously mentioned, the evidence against the applicant consists mainly of the AN0M evidence. One of the AN0M devices used by the applicant, with a sender ID “slidecoast”, was found in the applicant’s premises during the execution of a search warrant.

19. On 8 July 2013, the applicant was sentenced in the District Court to a term of imprisonment of 10 years and 6 months commencing on 31 May 2012 and expiring on 30 November 2022 with a non-parole period (“NPP”) of 6 years and 6 months for the offence of supplying a large commercial quantity of a prohibited drug, namely 5.915 kg of methylamphetamine. An offence of supplying a commercial quantity of a prohibited drug was taken into account on a Form 1. The applicant was on parole at the time he is alleged to have committed the present offence.

The Show Cause test

20. Section 16B(1) of the Bail Act applies as:

1. the maximum penalty for the offence is life imprisonment: s 16B(1)(a) of the Bail Act; and

2. the applicant was on parole in relation to his sentence for supplying a large commercial quantity of a prohibited drug when the offence was committed: s 16B(1)(h)(ii) of the Bail Act.

21. Section 16A of the Bail Act obliges the Court to refuse bail unless the applicant shows cause why his detention is not justified. If cause is shown, the Court proceeds to an assessment of any bail concerns, as defined in s 17(2) of the Bail Act, having regard to the matters set out in s 18 that are relevant to the application, and determines whether on that assessment the applicant presents an unacceptable risk pursuant to s 19.

Competing arguments as to show cause

22. The applicant pointed to the judgment of Wright J that the delay of four years and two months in custody was such an exceptional length of the applicant being deprived of his liberty, that by itself amounted to cause being shown. It was now evident that the applicant is not guaranteed a trial date in 2025 and the delay was even more exceptional.

23. On the issue of delay, Mr Morrissey, counsel for the Commonwealth Director of Public Prosecutions, in oral submissions accepted that being on remand for five years was relevant to show cause but submitted that if the High Court’s decisions are not in favour of the Crown, there would essentially be no case against the applicant and “there would be a withdrawal of charges expected and he would be released”. ^[2]

    2. Tcpt, 30 June 2025, p 6(10-11).

24. In written submissions, the Crown contended that the time the applicant has spent and will potentially spend in custody does not merit a show cause as the Crown case is very strong. Furthermore, even if the applicant’s trial does not commence until 2026, the resulting period on remand of about 5 years and 6 months would highly likely be exceeded by the NPP of the applicant’s sentence if he is convicted, and the delays in the applicant’s matter proceeding to trial were not attributable to the Crown.

25. Another submission was that the Bail Act does not provide or expressly specify the maximum time that the applicant can be held on remand, nor is there any legislative test requiring that “exceptional circumstances” be established to warrant remand past a certain period.

26. In response to Mr Morrissey’s submission that the charges against the applicant would be expected to be withdrawn if the High Court’s decisions are adverse to the Crown, Mr Boulten argued that there would be “every prospect” of a trial against the applicant and the Court should not assume that the case would collapse. ^[3]

    3. Tcpt, 30 June 2025, p 7(45-50).

Has cause been shown?

27. In my view, the debate between Mr Morrissey and Mr Boulten as to whether the charges against the applicant will be withdrawn if the High Court challenge is unsuccessful is irrelevant. There is a decision of an interstate intermediate appellate court, the South Australian Court of Appeal, that has determined the AN0M messages are admissible. The release application should be determined on the basis that the matter will proceed to trial. In the event that the AN0M messages are admitted into evidence, the applicant intends to make the Crown prove that he was the person who sent and/or received the relevant AN0M messages.

28. Delay in the applicant’s matter coming to trial and lengthy period of time spent in custody may be considered as a significant factor relevant to whether he has shown cause why his detention is not justified: Simpson v R [2021] NSWCCA 264 at [93]-[95] (Dhanji J, Harrison and Davies JJ agreeing); R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365 at [9] (Sperling J); Lee v R (Cth) [2024] NSWCCA 202 at [13]-[17], [20], [53]-[54] (Dhanji J, Stern JA and Faulkner J agreeing); Ali v Director of Public Prosecutions (NSW) [2017] NSWCCA 155 at [35] (R A Hulme J, Hoeben CJ at CL and Garling J agreeing).

29. Whilst the strength of the prosecution case, the applicant’s prior criminal history, the length of the sentence that may be imposed if convicted are relevant considerations; the length of the delay in the present case is of particular significance.

30. In Nikollaj v R [2025] NSWCCA 31 (“Nikollaj”), it was observed that a delay of over five years between the arrest and trial presents as “an extreme case”: at [3] (Dhanji J). As Yehia J stated in Nikollaj at [72] (Price AJA and Dhanji J agreeing with additional reasons):

“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.”

31. Although the Crown case is very strong (see [48] below), it is not certain that the applicant will be convicted. The delay in this case is substantial and stringent bail conditions are proposed. I am satisfied that the applicant has shown cause as to why his detention is not justified.

Unacceptable risk

32. When cause is shown, the bail authority must assess, before making a bail decision, any bail concerns, as defined in s 17(2) of the Bail Act, having regard to the matters identified in s 18 that are relevant to the application.

33. Section 19(1) of the Bail Act provides that the “bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns … that there is an unacceptable risk”.

Competing arguments on unacceptable risk

34. The Crown submitted that the applicant should be refused bail because there are two unacceptable risks that cannot be ameliorated by the bail conditions proposed by the applicant, namely:

1. a risk he will fail to appear at court: s 19(2)(a) of the Bail Act; and

2. a risk he will commit a further serious offence: s 19(2)(b) of the Bail Act.

35. As to the unacceptable risk of failure to appear, the Crown referred to:

1. the strength of the Crown case and the likelihood of a very lengthy custodial sentence if convicted;

2. the applicant’s previous drug offending as well as the current offending demonstrates that he has connections with organised crime figures both in Australia and overseas. This includes his identical twin brother who is alleged to have been involved in the conspiracy, is currently overseas, and has access to offshore boats and crew capable of sailing in international waters;

3. both the applicant and his identical twin brother have convictions for possession of falsified passports; and

4. it is clear from evidence in the Crown Case Statement that the applicant was involved in criminal organisations that had access to considerable sums of money to fund the proposed conspiracy.

36. As to the unacceptable risk the applicant will commit a further serious offence, the Crown referred to:

1. the applicant’s prior conviction for supplying a large commercial quantity of a prohibited drug (see [19] above); and

2. at the time of the alleged offence, the applicant was on parole (see [19] above).

37. The applicant referred to the bail conditions which are proposed to include daily reporting to police; curfew or home detention conditions; passport conditions; no contact with co-accused; restrictions on the use of technology and significantly, the applicant’s mother’s offer of her home as security which had an estimated market value of about $3.9 million.

38. A further proposal was a condition requiring the applicant to wear an electronic monitoring device monitored by a private provider. However, that bail condition is no longer available: see Bail Amendment (Ban on Private Electronic Monitoring) Act 2025 (NSW); s 30A of the Bail Act.

39. The applicant contended that the bail concern of flight was entirely manageable. It was submitted that the applicant does not have a history of non-compliance with bail conditions. Particular emphasis was placed on the very substantial security offered by the applicant’s mother. The applicant argued that the Court should give significant weight to the unlikelihood that he would abscond and leave his mother in real jeopardy of losing her only substantial asset, being her house. The applicant’s mother had led a law-abiding, pro-social life as a nurse. It was submitted that it would be outrageous if the applicant (with or without his twin brother’s help) abandoned his mother and exposed her house to forfeiture.

40. The applicant submitted that the evidence pointing towards his twin brother taking some part in the alleged criminal enterprise was a concern that needs to be weighed in the balance. The applicant drew attention to the fact that there is no evidence to suggest that his identical twin brother is currently the subject of an arrest warrant.

41. It was acknowledged that the fact the applicant was on parole when arrested establishes some risk of further offending, but the applicant contended that risk could be well managed through the imposition of conditions including non-association with the other co-accused, a ban on his use of the internet and restrictions on telephone use.

42. In oral submissions, Mr Boulten referred to the convictions for being in possession of altered passports as “quite old”. ^[4] Furthermore, he submitted there was no evidence to suggest that the applicant had attempted to contact his identical twin brother in the four years he has been in custody.

    4. Tcpt, 30 June 2025, p 4(46-48).

Are there unacceptable risks?

43. The applicant was born in February 1973 and is 52 years old. The applicant’s mother has offered her unencumbered home at Malabar, where she has lived for the past 33 years, as security for the applicant’s bail. The property is estimated to be valued at around $3.9 million.

44. The applicant has also been offered employment, if released, with a catering company in Sydney.

45. The applicant has no prior convictions for violence. Nevertheless, the Crown Case Statement discloses an encrypted communications exchange during which the applicant made a request for the Spanish based unidentified facilitator, using the handle “Adolf”, to be asked to send him “two machine guns”. ^[5]

    5. Crown Case Statement, p 103.

46. I take into account the presumption of innocence and the applicant’s need to be at liberty to prepare his case for trial.

47. The very substantial surety offered by the applicant’s mother and the proposed stringent bail conditions are important considerations in mitigating the identified risks.

48. In accordance with the South Australian decision, the strength of the Crown case is to be assessed on the basis that the AN0M evidence is admissible. There is a great deal of evidence linking the applicant to the AN0M messages. The Crown case is very strong.

49. The Crown Case Statement reveals a sophisticated conspiracy to import cocaine into Australia. The members of the conspiracy were not confined to Australian residents. The offshore facilitators included unidentified persons based in Spain, Italy, Philippines, United States of America and Colombia. The Crown alleges that the applicant had a senior role in the conspiracy, which in particular was to provide Australian-based logistical support and also to provide information between syndicate members, including those situated in Australia and the Philippines.

43. The criminality involved in the alleged offending is of a high degree. The maximum penalty for the offence is life imprisonment.

44. The applicant’s connections to international criminal syndicates with the unidentified offshore facilitators and inevitability of the applicant being sentenced, if convicted, to a lengthy term of full-time imprisonment are relevant to the assessment of whether the applicant poses an unacceptable risk of flight.

45. The applicant’s alleged offending is aggravated by the commission of the offence whilst he was on parole for supply of the large commercial quantity of methylamphetamine. It is highly likely that the NPP in his sentence will well exceed the length of time he may have been on remand.

46. The applicant’s conviction for the possession of a false passport in October 2003 is also relevant to the risk of flight. Although that offence was committed over 20 years ago, it demonstrates that the applicant is no stranger to the possession of falsified international travel documents.

47. Another consideration is the unknown whereabouts of his identical twin brother who is alleged to have been a participant in the conspiracy and has access to offshore boats and crew outside of Australia. He also has a conviction for a false passport offence.

48. Taking into account all these matters in combination, I assess a very high risk of flight.

49. Furthermore, I assess the risk of committing a serious offence to be high. Of particular relevance is the alleged commission of the offence whilst the applicant was on parole, his unidentified criminal associations and the use of encrypted devices.

50. The alleged breach of parole by the commission of such a serious offence significantly diminishes any confidence the Court may have that the applicant will comply with the proposed bail conditions, notwithstanding the substantial security offered by his mother.

51. In all the circumstances, I am not satisfied that the proposed bail conditions mitigate the risks of failure to appear and commission of a serious offence to the point that they are acceptable. Therefore, I am satisfied on the basis of my assessment of the bail concerns that if the applicant is released from custody there is an unacceptable risk that the applicant will fail to appear, and commit a serious offence: s 19 of the Bail Act.

52. Accordingly, bail is refused.

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Endnotes

Decision last updated: 10 July 2025