Supreme Court New South Wales Medium Neutral Citation: Kitanovski v R [2024] NSWSC 732 Hearing dates: 11 June 2024 Date of orders: 18 June 2024 Decision date: 18 June 2024 Jurisdiction: Common Law Before: Walton J Decision: I grant the release application in terms of conditions proposed by the applicant as amended. Catchwords: BAIL – bail review application – s 74(3)(c) of the Bail Act – further release application – change of circumstance – fixing of a trial date – delay – show cause –AN0M – strength of Crown case AN0M – lawful reason for release – whether unacceptable risk – risk of failing to appear – risk of serious offence – release application granted on bail conditions Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Criminal Procedure Act 1984 (NSW) Evidence Act 1995 (NSW) Surveillance Devices Act 2004 (Cth) Telecommunication (Interception and Access) Act 1979 (Cth) Cases Cited: A1 v R; A2 v R [2016] NSWSC 1288 Clinch v The Queen (1994) 72 A Crim R 301 D108 v The King [2023] NSWCCA 28 Director of Public Prosecution (NSW) v Tony Mawad [2015] NSWCCA 227 Director of Public Prosecution v Zaiter [2016] NSWCCA 247 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Jones v OPP (Cth) (Supreme Court (NSW), Ierace J, 5 December 2023, unrep) Mate v R (Supreme Court (NSW), Yehia J, 30 September 2022, unrep) Moukhallaletti v Director of Public Prosecution (NSW) [2016] NSWCCA 314 Mulahalilovic v R (Supreme Court (NSW), Rothman J, 1 August 2006, unrep) R (Cth) v Ayhan Dogan (Supreme Court (NSW), Weinstein J, 31 August 2023, unrep) R (Cth) v Filipaina (Supreme Court (NSW), Harrison CJ at CL, 27 November 2023, unrep) R v BNS [2016] NSWSC 350 R v Boyd [2015] NSWSC 1065 R v Cain (No 1) (2001) 121 A Crim R 365 R v Christos Siafakas (Supreme Court (NSW), Adams J, 4 February 2023, unrep) R v Fallon (a pseudonym) [2017] NSWSC 1796 R v Farrell [2016] NSWSC 1278 R v Filipe (Supreme Court (NSW), Walton J, 8 February 2024, unrep) R v Ftelianos [2017] NSWCCA 211 R v Gountounas [2018] NSWCCA 40 R v Hird [2017] NSWSC 1400 R v Kugor [2015] NSWCCA 14 R v Okusitino; R v Lavulo; R v Longi [2024] NSWSC 143 R v Peters (Supreme Court (NSW), Harrison CJ at CL, 27 November 2023, unrep) R v TB & ANOR [2023] SASC 45 R v TB & ANOR (No 3) [2023] SASC 61 R v Xi [2015] NSWSC 1575 Simpson v The Queen [2021] NSWCCA 264 Trinh v R [2016] NSWCCA 110 Texts Cited: Shorter Oxford English Dictionary, 6th ed (2007) Category: Principal judgment Parties: Jovanco Kitanovski (Applicant) The Crown Representation: Counsel: A Djemal (Applicant) D New (Crown) Solicitors: O'Brien Hudson Solicitors (Applicant) CTH DPP (Crown) File Number(s): 2024/161625 Publication restriction: Nil JUDGMENT 1. The applicant, Jovanco Kitanovski, makes a release application under s 49 of the Bail Act 2013 (NSW) ("Bail Act"). The application was opposed by the Crown. 2. The applicant is charged with the offence of conspiracy to import a commercial quantity of border controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) (the "alleged offence" or "alleged offending"). 3. On 22 March 2024, the charge was listed for trial before the District Court of NSW in Sydney on 27 October 2025. 4. On 31 October 2017 the applicant was charged with supply prohibited drug (commercial quantity) (charge group ending H0154: "October 2017 charge"). That offence was said to have occurred on 6 August 2017. 5. The applicant was granted bail with respect to that offence on 23 January 2018. The conditions for bail included a curfew, electronic monitoring and the use of only one mobile device. 6. On 19 February 2019, the applicant was charged with various supply of drug charges. He was committed to trial for sequence 4 in those charges being take part in supply of prohibited drug (MDMA) equal to or greater than a commercial quantity (charge group ending H3266: "February 2019 charge"). That offending was said to have occurred between 28 July 2016 and 9 February 2019. The applicant received bail for the February 2019 charge. 7. The offence was alleged to have been committed between 5 October 2019 and 8 February 2020. On 25 May 2019, there was a reporting breach on bail for which the applicant was given a warning. On 7 February 2020, the applicant was found guilty of breach of bail and as a result of a detention application was returned to custody. I will return to the circumstances of that breach later in this judgment. 8. On 19 February 2020, the applicant was found not guilty of the October 2017 charge but remained in custody with respect to the February 2019 charge. On 19 September 2020, the February 2019 charge was no billed. 9. On 10 November 2021, the applicant was charged with the following: 1. Do an act intending to pervert the course of justice, contrary to s 319 Crimes Act 1900 (NSW); and 2. Attempt/obstruct/prevent the course of justice, contrary to s 43(1) Crimes Act 1914 (Cth). 1. The applicant was committed for sentence with respect to the second sequence ("November 2021 offence" or "obstruct offence") with the first charge being withdrawn. Bail was refused with respect to the November 2021 offence. I will discuss the circumstances of the November 2021 offence below. 2. The applicant was served with a future CAN in respect of the alleged offence on 5 April 2022 and then on 12 October 2022, he was served with an Amended CAN. 3. The applicant was refused bail in the District Court with respect to the November 2021 offence. On 26 October 2022, Judge Priestley SC sentenced the applicant to 12 months imprisonment (which had been spent in pre-sentence custody) and a further 10 months to be served by an Intensive Corrections Order ("ICO"), which commenced on 26 October 2022 and expired on 25 August 2023. 4. On 20 October 2022, the applicant unsuccessfully contested a detention application. That detention application being granted, together with a consideration of the sentence imposed by Judge Priestley SC, has the result that that the applicant has been bail refused since 26 October 2022. 5. On 12 December 2023, Wright J refused an application for bail with respect to the alleged offending. 6. Without seeking to convey the whole of his Honour's reasoning in finding that cause was not shown, the following passage from the judgment encapsulates much of his Honour's reasoning in that respect: "All of those matters indicate me that there are legitimate reservations about whether the strict and stringent conditions which are sought would be complied with. Taking all of those matters into account, and noting that there are, in my view, bail concerns of a risk of non-appearance, a risk of committing a serious offence, especially drug offending, and a risk to the safety of the community, which arises out of the nature of the drug offending and the concerns that the conditions would not be complied with alongside the other matters to which I have already referred including; difficulties with the prosecution case being based on the ANOM evidence, even taking into account the 2 to 2.5 years the applicant would spend in custody bail refused, if bail is refused; the fact that the applicant has a limited criminal history, although his present remand is not his first time in custody, and any sentence he served in respect of this one would not, in effect, be his first time in custody; his family circumstances; and, the stringent conditions proposed, I would not be satisfied that cause has been shown in this case and, accordingly, I have no option but to refuse bail." 1. His Honour's observations about delay, in that context, relate to the following passage of his Honour's judgment: "As to delay, I accept that the time the applicant is likely to spend in custody bail refused, if bail is refused, is in the order of 2- 2.5 years. In saying that, I am not accepting that blame is attributable to that delay or that the Crown or the applicant has behaved inappropriately and contributed in any way to the delay. The delay is simply the length of time this matter is likely to take to come on to trial, and that is a significant factor in relation to whether cause has been shown. But again, I do not accept that it establishes either that cause has been shown or has not been shown by itself. It is a factor I take into account along with others." Section 74 1. In that context, the present application attracts the provision of s 74(1) of the Bail Act because this Court has previously refused bail with respect to the alleged offence. In those circumstances the Court must refuse to hear another release application by the applicant for the alleged offending unless there are grounds for a further release application. 2. The grounds for a further release application are confined to those specified in s 74(3) of the Bail Act. In the present case, the applicant seeks to meet the threshold requirement of s 74 by reliance upon the provisions of s 74(3)(c), namely, "circumstances relevant to the grant of bail has changed since the previous application was made". 3. The applicant relied upon the following submissions in order to establish that ground: 1. The applicant has already spent 1 year and 7 months in custody. He is currently on remand solely in relation to the alleged offence since 26 October 2022, the date on which his Honour Priestly DCJ, sentenced him to an ICO for a period of 10 months. The applicant's trial is now fixed. By the time the applicant's trial is set to commence he would have served 3 years on remand. 2. It may be, however, that his trial will not commence on the date fixed as the AN0M matters work their way through the NSW courts, perhaps through to the determination by the High Court given the centrality of the AN0M evidence in over 60 cases of affected defendants: R v Christos Siafakas (Supreme Court (NSW), Adams J, 4 February 2023, unrep) ("Siafakas"). 3. Wright J determined the question of delay on the prediction that the applicant's trial would take place "in late 2024 or early 2025". In written submissions, the applicant contended that the applicant would serve at least an additional 6 months in custody bail refused over that estimate. That period of time on remand would be significant enough to warrant a finding of a change in circumstances, especially in the context of being on remand solely referable for the alleged offence since 26 October 2022. In oral submissions, Mr Avni Djemal SC who appeared for the applicant submitted that the period of additional delay could be as much as 8 months. The applicant submitted any increase in time to be spent in custody increases the hardship exponentially as opposed to linearly, Clinch v The Queen (1994) 72 A Crim R 301 at [307]. 1. The reference by the applicant, in that context, to the AN0M matters is a reference to charges brought against various offenders based upon messages and images that were sent between the alleged offenders utilising the software and devices known as AN0M. In the present case, the conspiracy, alleged by the Crown, is between the applicant and two co-accused, Messrs Damcevski and Trajkoski, and others is based upon an agreement to import cocaine into Australia concealed in tyres attached to the hulls of two maritime vessels which had been docked at Port Botany. I will return to the facts and circumstances of the alleged offending below. 2. AN0M is an encrypted messaging platform under which communications are encrypted and a unique user ID attaches to the handset. The platform has group chat functionality. 3. The Crown made the following submissions in that respect: 1. The applicant has not established the ground under s 74(3)(c) of the Bail Act to justify a further release application. 2. The only change in circumstance since Wright J refused bail on 12 December 2023 is that, subsequent to that date the applicant's trial date was listed for 27 October 2025.Wright J estimated the applicant would be on remand for 2 to 2.5 years before trial. 3. Whilst the trial being listed was an "event" that occurred since bail was refused in late December 2023, an additional period of 6 months on remand is not enough of a change in circumstance in this matter to meet the requirements of s 74(3) of the Bail Act to the required standard. 4. This is particularly so because, whilst the period of remand was a factor considered by Wright J in December 2023, what troubled his Honour more, and led to the refusal of bail, was the applicant's breach of bail in 2020, his perverting the course of justice offence and that the allegations in the Crown case statement suggesting that the applicant had been involved in similar matters and may owe $12 million to persons overseas. 5. The threshold cannot be crossed by the applicant simply putting a more persuasive argument and particularly so where the applicant has not established in evidence that there was actually a change in circumstances for the purposes of the provision. 1. It is appropriate to commence the consideration of these arguments by reflecting upon the purposes of s 74 of the Bail Act. These purposes were described in the judgment of Campbell J in R v Fallon (a pseudonym) [2017] NSWSC 1796 at [13] – [14] as follows: "13. The purpose of s 74 Bail Act is to limit second and subsequent applications for bail to the same court to those which may be supported only by proper grounds. It's relevant to bear this legislative purpose in mind when one considers that what is being proposed is a third application to this Court, an eighth application overall (if one includes the detention application). This history of repeated release applications is, I think, relevant to my evaluation of the case. 14. Section 74 needs to be interpreted in its context in the Act, and in particular in Part 7 of the Act. Section 71 requires bail applications to be dealt with as soon as reasonably practicable; s 72 makes it mandatory for a court to entertain any release or variation application made by an accused person on the first appearance in substantive proceedings for the offence; s 73 empowers a court to refuse to hear a bail application on other occasions, if satisfied the application is frivolous, vexatious, without substance, or has no reasonable prospects of success; and s 75 provides that all bail applications, including subsequent applications, are to be dealt with as a hearing de novo. Sections 73 and 74, in my view, work together to emphasise the restraint with which a court is to approach subsequent applications made to that court." 1. The grounds for a further release application in s 74(3) involve the Court in an evaluative exercise in which the particular grounds are not defined with precision: Trinh v R [2016] NSWCCA 110 ("Trinh") at [18] (Basten J). Whether the circumstances relevant to the grant of bail have changed since the previous application was made for the purposes of s 74(3)(c) involve questions of fact and degree: R v BNS [2016] NSWSC 350 at [45] (Garling J). 2. The Court did not receive submissions as to the construction of s 74(3)(c) of the Bail Act and, in particular, the words "circumstances relevant to that grant of bail", save for a proposition advanced by Ms Danielle New of counsel, who appeared for the Crown, that the provision concerned the happening of an event. By that submission I understood counsel to be referring to the ordinary meaning of 'circumstances' having regard to the context in which it is used, namely, a fact or condition connected with or relevant to an event. [1] If approached in that way, as both parties appear to have done in their submissions on this issue, then the relevant event is the fixing of a date for trial in late October 2025 with the corresponding fact or consideration connected thereto being any delay or further delay occasioned by the trial date. 3. Accordingly, the provisions of s 74(3)(c) may be invoked when a trial date (subsequently) fixed establishes the period in which the applicant will be actually held on remand and where the delay occasioned in that respect is a relevant consideration with respect to the release application such as the question of cause under s 16B, or unacceptable risk. In any event, the issue of delay is required to be considered pursuant to s 18(1)(h) of the Bail Act, namely, the length of time the applicant is likely to spend in custody if bail is refused. 4. Delay, in the sense of the accused being held in custody before trial, has been long understood as a significant but non-determinative factor in evaluating an application for bail: Trinh at [85] (Davies J); R v Xi [2015] NSWSC 1575 at [10] and [12] (Hamill J). 5. In R v Kugor [2015] NSWCCA 14 at [35], Hoeben CJ at CL (with whom RA Hulme J and RS Hulme AJ agreed) stated: "A matter of concern to the Court is the delay likely to be experienced by the respondent before these matters are finalised in court. He has already spent 6½ months in custody and if the Crown's application were granted, on the most optimistic estimate he would spend a further 9 months in custody before this matter could come to trial in the Campbelltown District Court. As was fairly conceded by the Crown, the time in pre-trial custody might well be longer. 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. This is particularly so when such custody will be served under conditions of "protection" which are more onerous than those experienced by the normal prison population." 1. Later, in Simpson v The Queen [2021] NSWCCA 264 at [95] (citing R v Cain (No 1) (2001) 121 A Crim R 365 at [9]) Dhanji J (with whom Harrison J (as he then was) and Davies JJ agreed) stated: "As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial but a further year. The 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." 1. The fixing of the trial in late October 2025 in this matter constitutes a circumstance relevant to the grant of bail which has changed since the last bail application for the purposes of s 74(3)(c) of the Bail Act for the following reasons: 1. I accept what is, in substance, the submission of the Crown that an additional period of delay established by a date fixed for trial, without more, may not attract the operation of s 74(3)(c), unless an additional period of delay occasioned was sufficient to overcome the restraint against multiple bail applications contemplated by s 74 of the Bail Act. That is unlikely, for example, to be established by reference to a mere numerical process. What is required is a qualitative assessment of the overall significance of the changed circumstance. In this case, the change is of such significance as to warrant such a conclusion. 2. The trial date establishes that the applicant will be held in custody before trial for a period of 3 years which period is itself, in my view, exceptional in the same way the Court described the period of delay in R v Filipe (Supreme Court (NSW), Walton J, 8 February 2024, unrep) ("Filipe") at [7]. In other words, the fixing of the trial date establishes the total period on remand prior to trial will be at least 3 years. The trial date fixed is then productive of a period of delay, which by its length, substantially impacts upon the adjudication of the release application particularly in the assessment of whether cause has been shown for the purpose of s 16B of the Bail Act ( R v Farrell [2016] NSWSC 1278 at [8] (McCallum J); R v Hird [2017] NSWSC 1400 at [11] (Schmidt J)). That is because the period of 3 years is, as mentioned, by its nature an exceptional delay before trial. 3. When seen in that light, an additional period of delay, of at least 6 months over the earlier estimate, is a relevant changed circumstance for the purposes of s 74(3)(c) of the Bail Act. Whilst not representative of a change per se, I also accept the submissions by senior counsel for the applicant that the applicant's trial may not commence on the date fixed if there is an incomplete resolution of the issue of admissibility of AN0M evidence by an intermediate appellant court or the High Court by that time and accordingly the delay may well be greater. 1. Whilst it was not contended for by the parties as a relevant test under s 74(3)(c), if the Court was required to be satisfied that the outcome of the previous release application might have been different had the additional information relevant to delay been available (and I have not reached such a conclusion), then I would reach an affirmative conclusion in that respect. Part of such a consideration must be the additional hardship caused by the delay given the applicant's inability to care for his son. 2. In my view, the applicant has established a ground permitting another release application to be made under s 74(1) of the Bail Act. In those circumstances, the Court is obliged to hear the release application. I will first turn to the consideration of whether the applicant has demonstrated his detention is not justified. Show Cause 1. The offence with which the applicant has been charged is a "show cause" offence within the meaning of s 16B of the Bail Act because the offence carries a maximum penalty of life imprisonment, (because the charge alleged involves the importation of a commercial quantity of the relevant drug), and because the applicant is charged with a serious indictable offence said to be committed while on bail in respect of previous charges (see s 16B(1)(a), 16B(1)(g) and 16B(1)(h)(i) of the Bail Act). 2. The relevant principles for the determination as to whether cause have been shown pursuant to s 16A of the Bail Act was not the subject of dispute. Those principles have been the subject of exposition in a line of recent authorities: Moukhallaletti v Director of Public Prosecution (NSW) [2016] NSWCCA 314 ("Moukhallaletti") at [51] and [52] (per Button J with whom Gleeson JA and Rothman J agreed); R v Ftelianos [2017] NSWCCA 211 ("Ftelianos") at [9] (Hoeben CJ at CL, Davies and Bellew JJ) and R v Gountounas [2018] NSWCCA 40 at [35] (per Fullerton J, with whom Simpson JA agreed in that respect at [1])and D108 v The King [2023] NSWCCA 28 at [28] ("D108"). 3. There is a two-step process in determining a bail release application for show cause offences. The Court must first determine whether or not the applicant has shown cause "why his or her detention is not justified" pursuant to s 16A(1) of the Bail Act (Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 ("Tikomaimaleya") at [16] and [20] (Beazley P; R A Hulme; Adamson JJ); Director of Public Prosecution (NSW) v Tony Mawad [2015] NSWCCA 227 ("Mawad") at [12] (Beech-Jones J (as his Honour then was)) and D108 at [28] (Beech-Jones CJ at CL (as his Honour then was), with whom Price and Wilson JJ agreed)). 4. In the second stage of the process, the Court must consider whether or not the person's release raises any bail concerns and, if so, determine whether there is an unacceptable risk of those matters materialising (Div 2 of Pt 3 of the Bail Act; Tikomaimaleya at [25]; Moukhallaletti at [51]). A bail concern is a concern that a person will fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community or interfere with witnesses or evidence (ss 17(2) and 19(2) of the Bail Act). 5. The Bail Act does not specify what must or might be considered in relation to a show cause application: Tikomaimaleya at [20], Moukhallaletti at [52]. In assessing this initial question, the Court must take into account all relevant circumstances: Mawad at [12] and D108 at [28]. In contrast, the Parliament has enumerated the factors to be considered in the second stage, namely, the factors stipulated in s 18: Tikomaimaleya at [24]-[26] and D108 at [28]. 6. Matters relevant to an unacceptable risk test may well be applicable to the show cause test: Tikomaimaleya at [24]; D108 at [28]. Thus, in Moukhallaletti (at [53]) it was found there may be a substantiated overlap between factors that go to whether cause has been shown and factors that inform whether an unacceptable risk exists. 7. The Court must consider any evidence or information that the Court considers credible or trustworthy (s 32, Bail Act), with disputes resolved upon the balance of probabilities (s 32, Bail Act). The Court makes an assessment of the weight and significance to be attended to each relevant factor identified and then undertakes an evaluative process in considering a multitude of factors to determine whether cause has been shown (see Director of Public Prosecution v Zaiter [2016] NSWCCA 247 at [31]; Moukhallaletti at [56]). 8. It is unnecessary for an applicant to demonstrate special or unusual circumstances in order to show cause (Mawad at [42], A1 v R; A2 v R [2016] NSWSC 1288 at [45] and Moukhallaletti at [55]). 9. It is possible for a number of factors to combine to satisfy the show cause requirement: Ftelianos at [20]; R v Boyd [2015] NSWSC 1065 at [19]. In Moukhallaletti at [54] reference is made to a "powerful combination of factors" or a "single powerful factor" although it may be preferable to refer to the statutory language such that an applicant may identify factors which alone or in combination justify that their detention is not justified. 10. The applicant submitted that cause had been shown through a combination of 5 factors: 1. The inherent weakness in the Crown case based upon the illegality of critical prosecution evidence, namely, the AN0M evidence. 2. Delay, in the matter reaching trial (and possible further delay occasioned by issues concerning the admissibility of AN0M evidence). 3. Circumstances concerning the applicant's son. 4. The applicant's history in complying with strict bail conditions. 5. The strictness of the bail conditions proposed by the applicant. 1. I will specifically return to those considerations after considering the factual background and factors arising for consideration under s 18 of the Bail Act, some of which intersect with the factors relied upon to show cause. Factual Background 1. As mentioned, the Crown alleged that the applicant conspired with others to import a commercial quantity of cocaine concealed in tyres attached to hulls of two maritime vessel docked in Port Botany. The Crown alleged the applicant instructed others on the plan, communicated with persons who appeared to be overseas, appeared to have an invested in the importation and was going to profit considerably from the alleged offending (had the cocaine been retrieved). 2. The communications include the applicant referring to a history of involvement in this type of alleged offending ("being in the game for a long time"), having to report to "our partners" and owing millions of dollars. 3. The applicant engaged in acts to try and retrieve the tyres from the water. 4. Counsel for the Crown prepared a precis of the Crown case statement which was uncontroversial as a summary. The relevant parts of that precis, for the purposes of this background, are as follows: "4. [8] to [20] are the facts from which the Crown alleges the device identifier cff10a (handle, "Clock_work Fender") was attributed to the Applicant. In short, the content of, and photographs within, various messages can be connected, circumstantially, to the Applicant. Examples include: a. A message referred to taking "Josh" out on the jetski. Josh is the first name of the Applicant's son (CCS at [10]); b. A photograph of a deck, pool and the harbour sent by handle, "clock_work Fender" matches the deck, pool and view from the Applicant's residence (CCS at [11] and [12]); c. Clock_work Fender messaged that he went diving or was going to in the water and surveillance identified the Applicant diving that day (CCS at [13] to [15]); d. A photograph from the handle "clock_work fender" showed loss of hair in patches and this corresponds with the Applicant who, on his arrest, appeared to have patches of hair loss (CCS at [16] and [17]); and e. Message content from "clock_work fender" was in the Macedonian language and the Applicant is Macedonian. In one of the messages, dated 30 March 2020, the user stated he was born in 75 and was 45 years old. The Applicant's year of birth is 1975 (CCS at [18] to [20]). 5. [21] to [26] are the facts from which the Crown alleges the device identifier 47917e (handles, "ANOM SYD", "ANOM ONE", "An0m0ne" and "Smith") can be attributed to Mende Trajkoski (Trajkoski). The content of various messages can be linked, circumstantially, to Trajkoski. 6. [27] to [50] are the facts from which the Crown alleges the device identifiers 56fd7b (handle "MRdiv"), 6a3e35 (handle "@V6T"), and 587fee (handle "capOz") can be attributed to Robert Damcevski (Damcevski). Similar to the way in which the handles were attributed to the Applicant (and Trajkoski) the content of, and photographs within, various messages can be attributed to the Damcevski. 7. [51] and following details the facts from which the Crown alleges there was an agreement between the Applicant, Trajkoski and Damcevski to import border controlled drugs; relying on the conduct carried out by the participants to the agreement and the messages sent to each other. 8. Group chats detailed include: a. One group chat involving Trajkoski, Damcevski and others in which Trajkoski addressed techniques when diving and trying to access tyres attached to a ship's hull (Group chat 1); b. Group chats involving the Applicant and the co-accused in which the Applicant instructed the co-accused about the "plan" and the "first job". The Applicant had knowledge as to the size of the expected importations (Group chat 2 and Group chat T2); c. A third group chat involving the Applicant, Trajkoski and Damcevski (Group chat 3); and d. A fourth group chat in which the Applicant appears to instruct others, including the coaccused (Group chat 4). 9. More particularly, on 5 October 2019 Group Chat 1 was created. Group chat 1 had messages that addressed how to access tyres attached to a ship's hull and how to unlock the chains and hooks attached to the tyres. Trajkoski sent the group chat photographs of the hooks, chains and tyres (CCS at [54] to [55], [64] to [67] and [69]). 10. On 7 October 2019, Group chat 2 was created (with messages dated from 7 October 2019 to 9 October 2019 (CCS at [56] to [63])): a. The Applicant messaged about trying to find a boat to buy or borrow "to get this first job out of the way"; b. Trajkoski instructed Damcevski and others about the need to be discrete when communicating, including concealing any personal details and not disclosing payments; and c. The Applicant messaged the co-accused about the need to "come up with a plan" and referring to the fact that once the "first job" was complete, they would all come into "enough money to get up for anything" (or "coin to buy whatever boat you guys desire"). 11. On 8 October 2019, the Applicant and Trajkoski exchanged messages detailing the way in which the next day's events were to occur (CCS at [68]). The Applicant detailed where to meet and who will be there (including himself). 12. On 9 October 2019, NSW Water Police removed Damcevski from the water. He was wearing diving equipment (CCS at [70] to [74]). 13. On 9 October 2019, Group chat 3 was created. Within that chat, after Damcevski messaged about the day's events including how the tyre hit the seabed floor. The Applicant messaged, "We will get to the tyre my friend I need to have all the details to what happened cause now we have to report to our partners". The Applicant expressed a concern that "these ppl" think they have been robbed and that he has been trying to convince them that they were not robbed. The Applicant stated that they needed to get the tyre out that day (CCS at [76] and [77]). 14. On 10 October 2019, Group chat 4 was created in which the Applicant told the handles "I've been in this game for a long time these cops…. pulled you up cause you were hanging out the front acted suspicious. You will not get pulled over by a normal officer" (CCS at [80]). 15. On 11 October 2019, Damcevski attempted a dive to access the tyre. Damcevski was hospitalised due to a medical episode during the dive (CCS at [81]). 16. On 11 October 2019, Group chat T2 was created, in which the Applicant was sent messages about Damcevski's hospitalisation. The Applicant asked if police were involved and later messaged the group about his stress and potentially being "stuck with a multi million dollar bill" (CCS at [82] to [86]). 17. On 19 October 2019, the Applicant and Trajkoski messaged each other with suggestions and ways to access the tyre (CCS at [87]). 18. On 21 and 30 October 2019, the Applicant messaged an associated defendant setting out where he had installed hooks under the boat intended for the tyre to be attached to and sent photographs of a sample tyre he created that looked like the original. On 23 October 2019, the Applicant messaged Trajkoski and Damcevski about the same tyre he reconstructed (CCS at [90] to [98]). 19. On 27 November 2019, the Applicant messaged the co-accused in Group chat 3, and expressed his concern at owing millions of dollars if they do not locate the tyre. 20. On 5 December 2019, the Applicant trained for diving to obtain his PADI licence and messaged others about it (CCS at [100] to [103]). 21. Between 5 December 2019 and 30 January 2020, the Applicant exchanged messages with Stephen Gorsevski (Gorsevski) via ANOM regarding the plans for retrieving the tyre, including messages about a practice drill (CCS at [104] to [108]). 22. On 1 and 2 February 2020, Trajkoski and another handle (attributed to Boban Sarincic (Sarincic)) exchanged messages about the how the tyre will be accessed and retrieved from the water and the price to be paid to the divers (CCS at [109]). 23. On 3 February 2020, Damcevski messaged Trajkoski that he was ready to dive again and stated that him and "clock" have been training for a while now. On the same day, Damcevski messaged the Applicant "we ready to land this eagle?" and the Applicant replied "yep we shore are" (CCS at [110] and [111]). Later, Gorsevski messaged the Applicant about the plan being moved to a different day and different times. Each time there was a change of plan, the Applicant messaged Damcevski the same (CCS at [113] to [118]). 24. On 5 February 2020, the Applicant and Damcevski messaged each other in preparation for the following day's event. The messages included the Applicant instructing Damcevski to go to Bunnings to buy bolt cutters to cut through chains (CCS at [118]). 25. On 6 February 2020, another group chat was created involving the Applicant and handles attributed to other members of the syndicate, including Gorsevski. The messages exchanged showed that the handles were keeping each other updated as to what was happening on 6 February 2020, the plan being carried out, and whether they were being surveyed by NSW Police (CCS at [125] to [129]). 26. At [131], the CCS details the messages exchanged between other members of the syndicate which referred to the Applicant being arrested. Similarly, at [133] of the CCS it sets out the messages sent on 8 February 2020 between Sarincic and Trajkoski regarding what transpired on 6 February 2020 and the arrest of the Applicant. 27. At [135] to [137], the CCS details a recorded interaction between Trajkoski and an undercover operative in January and February 2021. In this interaction Trajkoski referred to the failure of the plan above. 28. At [141] and [142] of the CCS it details the phones and/or diving equipment found at the Applicant's and Damcevski's homes when search warrants were executed in November and December 2021, respectively." Section 18 Factors Personal antecedents – s 18(1)(a) of the Bail Act 1. The applicant is a 49-year-old married man with 3 children. The applicant was born in Macedonia and was the eldest of 3. The family came to Australia when he was 3 years old. When the applicant was 10 years of age, his family returned to Macedonia. When the applicant was 11 his father died, and at 15 he returned to Australia with his family. He has consistently worked since the age of 12. He ran a transport company (Kit Bros) which struggled with the pandemic. His youngest child, Joshua, suffers from Posterior Urethral Valves ("PUV") and stage III kidney disease. 2. In an affidavit of 23 April 2024, the applicant's wife, Mary Kitanovski stated that she was experiencing difficulties in running the business, which was once run with the applicant, and keeping up with commitments relating to her son's health. 3. In an affidavit of 23 April 2024, the applicant's friend, Silvana Gorsevski, offered her home as surety. 4. On 11 December 2023, Biljana Kostadinoski, (the applicant's sister) wrote to the Court in support of the applicant's grant of bail and offered a surety of $20,000. 5. In an affidavit of 9 December 2022, Thomas Joseph Normoyle also offered his property as bail surety. Criminal History – s18(1)(a) of the Bail Act 1. The applicant has a criminal history commencing in 1993 when he was 18 years old and was convicted of stealing and fined $100. In May 1994, there was a dangerous driving charge for which he was fined and was disqualified from driving for six months. The applicant has further offences in 2002 and 2005 which are offences of not supplying drivers particulars and refusing to produce a licence. 2. On 26 October 2022, the applicant was sentenced in respect of the obstruct offence to a term of 22 months imprisonment, with 10 months to be served by an ICO which expired on 25 August 2023. 3. The factual circumstances underpinning the obstruct offence are as follows: 4. The applicant assisted a man named Mostafa Baluch ("Mr Baluch") to flee the jurisdiction. Mr Baluch was on bail at the time for attempting to import 900 kg of cocaine from South America to Australia (the same drug alleged in the alleged offence). Mr Baluch was subject to electronic monitoring. As Judge Priestley SC described in his Honour's remarks on sentence, at the time Mr Baluch was named "New South Wales most wanted man". The applicant used his family's company truck to carry a shipping container, inside which was a Mercedes Benz vehicle, and inside the vehicle Mr Baluch hid. The applicant drove to the hotel where Mr Baluch was hiding, picked up Mr Baluch and then drove to his company warehouse. The applicant communicated with others about Mr Baluch. 5. The truck, trailer and the Mercedes used in the offending to conceal Mr Baluch were all registered to the applicant's residential address and the family business was used to assist Mr Baluch to flee the jurisdiction. 6. The applicant then drove to the Queensland border to help Mr Baluch to flee the jurisdiction. Mr Baluch was found inside the shipping container when police did a check at the Queensland border. Nature and Seriousness of the Offence(s) – s 18(1)(b) of the Bail Act 1. The alleged offending is plainly serious. If convicted, the applicant is likely to face a substantial custodial sentence. History of non-compliance with orders of courts and Bail Authorities – s 18(1)(f) of the Bail Act 1. There are two aspects to this particular factor: 2. First, as senior counsel for the applicant correctly submitted, the earlier mentioned chronology of criminal proceedings brought against the applicant demonstrates that there were substantial periods of compliance with bail, with only a single relatively minor breach in May 2019, notwithstanding the applicant facing serious charges. Further, the applicant had access to sophisticated communication devices with criminal associates monitored by police. There is no indication of an intention to flee or to devolve of assets in the record of communications between the applicant and co-accused. Furthermore, after the February 2019 offence is no billed, the applicant is granted bail for which he compiled until the obstruct offence. 3. The countervailing circumstances are as follows: 1. On 7 February 2020, the applicant was on bail for the offence of taking part in the supply of a commercial quantity of prohibited drug (charges that were later not proceeded with). Conditions of bail included that the applicant be electronically monitored, comply with a curfew and be of good behaviour. The applicant tampered with and took off his ankle bracelet and left it at his home. The applicant effectively caused those monitoring him to believe he was at his residence when, in fact, he was not at that location nor abiding by his curfew condition but involved in the diving activities leading to his arrest. The applicant was charged with breach of bail (charge number ending H6372). This involved dismantling an important protective factor in the bail conditions then applying. 2. The obstruct offence demonstrates that the applicant is capable of taking steps that are designed to obstruct justice. It is true that he was undertaking this course of conduct on behalf on another. However, the applicant's conduct reflects upon his integrity and respect of criminal justice systems and was involved in assisting another to breach bail. Further, this offence also demonstrated that the applicant has criminal associations because he undertook those acts in support of a person who was of significant interest to police because of his alleged criminal activities and criminal associations. To this may be added that, at least on the face of the Crown case statement with respect to the alleged offence, the applicant's involvement in a criminal syndicate was relatively high involving, the establishment of an agreement and the execution of that agreement. Strength of the Prosecution Case – s 18(1)(c) of the Bail Act 1. It is necessary to form a view about the strength of the Crown case. The fact that the Crown may have a strong case is not determinative but is plainly important in the assessment of a show cause application. I reach my conclusions in this respect based on the materials presently before the Court. I accept that the material lead in evidence at the trial may be different and others might form a different view of the events at the time of the trial. 2. The Court is not charged on a bail hearing with the conduct of a mini trial (DPP v Mawad [2015] NSWCCA 227 at [19] (Beech-Jones J (as his Honour then was))). In Mulahalilovic v R (Supreme Court (NSW), Rothman J, 1 August 2006, unrep) Rothman J observed that "the nature of a bail application is not a proceeding that questions the veracity of the Crown case or determines whether a person charged is guilty", and that the restrictions on the liberty of a citizen do not derive from an assumption of guilt, but on account of the risk of absconding or the need to obviate any real risk to the community". 3. In Ftelianos, the Court of Criminal Appeal, after recognition of the evidence of the Crown in that matter may be affected by issues of reliability of the Crown's evidence and a warning may need to be given to a jury as to the same, it was stated, "It is not the role of the Court to predict, much less definitively determine, how the various issues arising from the evidence of those witnesses will be resolved. It would be impossible for a court to do so." 4. The applicant made the following submissions in that respect: 1. Paragraphs 1 and 2 of the Police Facts summarise the operation IRONSIDE police investigation between October 2018 and June 2021 using the encrypted application AN0M, including by use of surveillance device warrants and, after April 2019, computer access warrants under the Surveillance Devices Act 2004 (Cth). 2. As is apparent from the police statement of facts, the strength of the prosecution case depends largely, if not exclusively, on messages and images that were sent between alleged co-conspirators utilising the software and devices known as "AN0M". As it stated in the 'Precis of the Crown Case Statement', "The Crown relies on communications between the Applicant, the co-accused and others using the encrypted messaging platform, AN0M". 3. For the Crown case to succeed, the AN0M messages would need to first be admissible. The applicant submitted there is a real prospect the prosecution case will fail on the basis that the AN0M messages are inadmissible. 4. The applicant contended the AN0M messages are inadmissible due to the operations of s 63 of the Telecommunication (Interception and Access) Act 1979 (Cth) ("TIAA"), as it prohibits the admissibility of communications that are intercepted without a warrant. This AN0M issue was subject of extensive s 82 cross-examinations in the Local Court in 2023. 5. On this point, the Crown conceded investigators did not obtain a warrant under the TIAA. Therefore, if the AN0M messages come within definition of an intercept under s 7(1) of the TIAA (and the allied provisions of ss 6(1), 5F and 5H), s 63 of the TIAA mandates exclusion of the messages. If the AN0M communications were recorded while passing over a telecommunication system, then the recording would constitute an intercept and be prohibited from admission. 6. There were a number of issues to be contested. These included whether: 1. The processes invoked in obtaining and executing the surveillance device and telecommunication intercept warrants in Operation IRONSIDE complied with the Surveillance Devices Act and TIAA; 2. The consequences of any failures to comply with those warrant regimes; 3. In written submissions it was contended that, if the evidence obtained against the applicant (and others) is inadmissible because of non-compliance with the warrant regimes, whether they may still be admissible under s 138 of the Evidence Act 1995 (NSW). In oral submissions, senior counsel did not place emphasis on this issue. 1. The applicant advanced a number of particular arguments said to enhance its submission as to the prospect of the AN0M communications being found inadmissible which were as follows: "a. The Crown expert Mr Khatri referring to the ANOM platforms function of duplicating communications between the sender and receivers as being intercepted: [118] of his report. This position that was supported by the report of Professor Sorrel in his report. During the committal evidence Mr Khatri confirmed the ANOM application, which formed part of the handheld device, needed to be connected to a telecommunications signal before it could cause the coping and transmission of messages. A signal being either the internet or cellular data network, similar to those operated by Telstra or Vodafone. b. Prior to the commencement of Operation Ironside, the AFP sought advice from the then Inspector-General of Intelligence and Security, the Honourable Margaret Stone. At the time the Inspector-General expressed surprise at the AFP view that the ANOM platforms operation was not captured by the TIAA. c. Another Crown expert, Professor Sener viratne, agreed the copying by the ANOM application occurred as part of the transmission over a communication system and only rejected the term intercept on the basis that the copying occurred in the handset, as opposed to while being transmitted in the domain of a telecommunication service carrier, such as Telstra. This, the applicant submits is a conceptual divergence from the evidence of both Mr Khatri and Professor Sorrel and does not have any statutory support from the terminology used in the TIAA. d. The reasoning by which Kimber J of the South Australian Supreme Court (see R v TB and CD [2023] SASC 45 and R v TB (No 3) [2023] SASC 61) to admit the ANOM messages in a recent decision adopts a, with respect, perplexing view of what the TIAA means by the term "sent" or "transmitted". He also, without any evidentiary support from the Crown experts concludes the ANOM application which operated on the handset did not form part of a "telecommunications system". Curiously, his Honour however accepted that the handset does form part of a "telecommunications system". His Honour's decision forms part of a reserved appeal that was heard before the Full Court of Appeal of South Australia in late May." 1. The applicant did not ask this Court to determine the complex question of admissibility on this release application but raised the above matters to demonstrate that the prosecution case can no longer be regarded as a strong one given the admissibility of the relevant AN0M messages has been demonstrated to be problematic. Absent those messages, there was no Crown case. 2. The Crown submitted that when assessing the "strength of the prosecution case", pursuant to s 18(1)(c) of the Bail Act, the Court must include the AN0M messages at this time. This is not a case where there is settled jurisprudence that would ordinarily exclude the evidence (such as an unreliable identification). 3. The argument regarding the admissibility of the AN0M messages is a technical one relying on alleged breaches of the TIAA. 4. In a judgment of Kimber J of the Supreme Court of South Australia in R v TB & ANOR [2023] SASC 45 ("Judgment one") his Honour passed upon issues of the admissibility of AN0M evidence similar to those raised by the applicant in this matter. 5. Subsequently, a Notice of Appeal from that decision to the South Australian Court of Appeal was lodged. The decision of that Court is reserved. 6. In Judgment one and R v TB & ANOR (No 3) [2023] SASC 61 ("Judgment two") Kimber J ruled on the admissibility of the AN0M applications in a case where TB and CD were charged with participating in a criminal organisation and offences involving firearms. 7. In Judgment one, Kimber J considered the technical argument that the data obtained via the AN0M application involved an interception of a communication via a telecommunication system and therefore the TIAA applied, requiring a warrant, with no discretion to admit the evidence otherwise. The South Australian Director of Public Prosecutions submitted that no interception occurred because the relevant data was obtained prior to any message from one AN0M user to another commencing any passage over the telecommunications system. In short, the TIAA did not apply. Justice Kimber examined the provisions of the TIAA, the purpose of the TIAA and expert evidence. His Honour found the TIAA had not been breached; and 8. In Filipe, this Court made the following observations regarding Judgment one: "The AN0M application to which much reference has been made in the submissions of the parties and earlier in this judgment, was an application, namely a software application, installed by users on mobile phones and which operated on the Android operating system. Mobile phones which enabled the AN0M application to be installed by users were distributed in a controlled operation by the AFP. The AN0M application was programmed to function in a particular way which Kimber J described in his judgment in TB as being: "When user A prepared a message in the application and pressed the send button with the intention of sending the message to user B a message would be sent to B using the telecommunications system." His Honour went on: "However, when A pressed the send button and before A's message left the application, a separate copy message was created within the application. The copy message was a copy of A's message to B, but with additional data and added. The creation and existence of the copy message was unknown to A and B and the copy message having been created was sent using the telecommunications system to a server in New South Wales." It is of some significance in his Honour's judgment that he in fact deals with the question of the operation of s 7(1) of the TIAA in four different ways relating to the concept of, in each case, interception. The first alleged interception raised by the defendants in that matter occurred when the BOT user ID was authenticated by what is described in his Honour's judgment as the XMPP server. The second alleged interception involved the defendants submitting a second interception occurred upon the pressing of the send button as it was that act which caused a copy of A's message to B to be created and then sent to the iBOT. The third involved the defendants submitting an interception occurred as a result of the iBOT's listening activity which enabled it to retrieve messages from the XMPP server, and, lastly, the defendants submitted that the communication sent to the iBOT user was intercepted as the iBOT server retransmitted the recorded communications it had received from the XMPP server to the AFP server in Sydney." 1. In Judgment two, Kimber J considered whether to otherwise exclude the evidence based on the unfairness discretion. His Honour did not exercise that discretion because the communications were voluntarily made, and not elicited by police to invoke the unfairness discretion (in that State). 2. I agree with the argument advanced by the Crown that the Court should be cautious about engaging in an exercise, at this time and for this bail jurisdiction, involving a consideration of the potential outcome of any appeal in South Australia (or pre-trial argument in NSW) on the admissibility of the AN0M evidence. That would place the Court in the inappropriate position of expressing a view (implicitly or expressly) on the prospects of the appeal or any pre-trial argument in NSW. 3. This is the rationale for s 31 of the Bail Act which permits the Court to take into account any evidence or information which it considers credible or trustworthy in the circumstances and the Court is not bound by rules of evidence on bail. 4. The material before the Court on the Crown case appears to be credible and reliable. On the face of it, that material objectively implicates the applicant in the alleged offending. The applicant and other members of the syndicate were under a mistaken belief that the encrypted device was incapable of interception by police. 5. I also agree with the Crown submissions that, if the AN0M evidence is accepted, then based upon the earlier factual background setting out the nature of the interactions between the applicant and the co-accused, there is a foundation for the existence of an agreement constituting the conspiracy. In that respect, and based upon the limited material before the Court, I note that there is attribution evidence pointing to the applicant having sent relevant messages as follows: 1. A message referred to taking "Josh" out on the jet ski. Josh is the first name of the Applicant's son; 2. A photograph of a deck, pool and the harbour sent by handle, "clock_work Fender" matches the deck, pool and view from the Applicant's residence; 3. "Clock_work Fender" messaged that he went diving or was going to in the water and surveillance identified the Applicant diving that day; 4. A photograph from the handle "clock_work fender" showed loss of hair in patches and this corresponds with the Applicant who, on his arrest, appeared to have patches of hair loss; and 5. Message content from "clock_work fender" was in the Macedonian language and the Applicant is Macedonian. In one of the messages, dated 30 March 2020, the user stated he was born in 75 and was 45 years old. The Applicant's year of birth is 1975. 1. The law, as it stands, is that the AN0M communications are admissible. The potential admission of that material would indicate that, in that event, there would be a strong Crown case. So much is evident from the detailed expositions in the Crown submissions of both the recorded intercepted conversations and the role of the applicant in that respect. 2. Nonetheless, in my view, recognition should be given to the significance of the extant challenge to the admissibility of AN0M evidence. If that challenge were upheld the Crown case would be rendered considerably weaker. 3. Overall, on the present state of the proceedings as to the alleged offending, I consider the Crown case appears to be strong as it presently stands but subject to the significant triable issues. Delay – s 18(1)(h) of the Bail Act 1. I have earlier discussed delay in the context of s 74(3) of the Bail Act. 2. The applicant made the following submissions on delay: 1. The issue of the delay regarding the AN0M matters in particular has been recognised in bail applications before this Court where cause has been shown due the extent of delay. 2. Delay in this regard was a factor that has also featured in other recent AN0M cases such that the Supreme Court found that cause had been shown. The applicant made the following submissions in that respect: "Mate v R (unreported, Yehia J, 30 September 2022) at 11-12 ("I am satisfied that the applicant has shown cause why his detention is not justified. The primary, although not sole reason, is the period that he will spend on remand before his trial is likely listed.") R(Cth) v Ayhan Dogan NSWSC (Weinstein J, 31 August 2023) at 10 ("The most important aspect of the applicant's submissions on show cause is, what he says is the delay in coming to trial. If he is not released on this application he will, at the time of his trial, have been in custody for three and a half years. He is a young person, born in 1997. Three and a half years of his life spent on remand when he may well be found not guilty is, in my view, unacceptable and militates very much in favour of him showing cause.") R (Cth) v Filipaina (unreported, Harrison CJ at CL, 27 November 2023) at 2-3 ("Having regard to that delay, I am satisfied that Mr Filipaina has shown cause why his continued detention is not warranted.") R v Peters (unreported, Harrison CJ at CL, 27 November 2023) at 2-3: ("On the issue of show cause, I note that Mr Peters has, by my rough calculation, been in custody already for approximately 884 days. Although there may be some contest about what lies ahead, it seems reasonably clear that a trial date is unlikely before some time in the latter half of next year, and having regard to the nature and complexity of that charges that have been laid, which itself would inform the predictions for a likely trial length, it may well extend beyond then. Those delays are, in my experience over some time in this Court, capable, without exaggeration, of being described as significant. … it cannot seriously be contended that the delays to date, or that the delays in the future, are acceptable. It seems to me in the circumstances that Mr Peters has shown cause why his continued incarceration is not warranted.") Jones v OPP (Cth) (unreported, Ierace J, 5 December 2023) at [17] ("However, cause is shown by a combination of the three factors relied upon by the applicant, in particular, the period of delay. The admissibility of the ANOM-obtained evidence has not yet been tested at trial in this state and, whatever the determination at first instance, it will doubtless be the subject of an interlocutory or post-conviction appeal to the New South Wales Court of Criminal Appeal. One could also expect that an application by the unsuccessful party for leave to appeal to the High Court would be carefully considered. It is therefore unlikely, in my view, that the conspiracy charge will be finally determined before mid-2025.") R v Filipe (unreported, Walton J, 8 February 2024) at 10 (the "unusual and extraordinary delay that could be anticipated in this matter" coupled with the applicant needing to care for his young children, his reasonably strong community ties and being of 42 years of age with a very limited criminal history, in conjunction with the bail conditions proposed including a surety, weighed against the fact that the Crown had a strong case, and cause was shown). R v Okusitino; R v Lavulo; R v To11gi (sic) [2024] NSWSC 143 (Dhanji J) at [78] ("In considering this issue, I accept that the time in custody can be viewed and indeed should be viewed in the context of the serious allegations and the strength of the cases against the applicants. Even so, the period of time to which I have referred remains, in my view, extreme. It is unnecessary for me to decide whether the delay on its own is sufficient to show cause. Each of the applicants put evidence before the Court to establish significant ties to family and community. I will deal with that evidence in the context of the unacceptable risk test as applied in the case of each applicant. For present purposes, it is sufficient to state that I am of the view that in each case, the combination of the delay together with the applicants' legitimate desire to be at liberty on bail to maintain significant family and community connections is such that cause has been shown.")" 1. The Crown submitted the following in that respect: 1. There is a delay but the period of delay is not significant. It is not considerably more than what Wright J considered in December 2023. 2. The longer-than-usual time the proceedings were taking in this matter (and numerous other Operation Ironside matters) has taken is, in large part, due to the applicant electing to make an application pursuant to s 82 of the Criminal Procedure Act 1984 (NSW) to cross-examine 12 witnesses in the NSW Local Court. Accordingly, any delay in respect of this matter has not been attributable to any conduct on the part of the Crown. 3. If the Crown case is proven, the applicant will face a significant term of imprisonment that weighs against any suggestion that his pre-sentence period in custody would comprise a substantial portion of, or exceed, his sentence. 4. The significance of any delay in this matter is outweighed by the strong Crown case, the likelihood of conviction and, if convicted, the likelihood of a substantial custodial sentence being imposed on the applicant. 1. For the reasons which have been earlier given in this judgment, I do not consider that the delay, which will be occasioned in the matter reaching trial, is insignificant. Nor do I consider that the period is not considerably more than the delay considered by Wright J. 2. As earlier mentioned, the period of custody between the arrest of the applicant on the alleged offence and trial is 3 years. The applicant has already spent nearly 1 year 8 months in custody. He will face a further period of 1 year 4 months in custody before trial. 3. Furthermore, I do not consider that the applicant, having availed himself of an argument going to the admissibility of the AN0M evidence, is a factor diminishing the significant of delay in relation to this bail application although I accept that the delay is not attributable to conduct by the Crown. 4. It is also appropriate in reaching a conclusion with respect to delay for the Court to make an evaluation as to the likely implications of various appellate processes bearing upon the ultimate disposition of the admissibility of AN0M evidence. I note in that respect, the observations of Adams J in Siafakas where her Honour addressed the question of the delay as a factor relevant to cause being shown in an AN0M related matter. During the application, her Honour was taken to the potential ways in which the issue as to the admissibility of the messages from the AN0M application will be resolved. Her Honour stated as follows: "I have carefully considered the respective submissions as to whether this is a strong Crown case. It seems to me that its relevance is closely tied to the question of delay. As I have already indicated, the applicant may not have a trial allocated until late next year or early the following year. But the issue is even more complicated than that. Given the large number of offenders who are challenging the method by which police obtained this evidence, it is to be anticipated that there will be numerous cases in which the same argument is raised. Mr Djemal, who appeared for the applicant, suggested there are such challenges in New South Wales and approximately 300 nationally. There are a number of ways that that issue could be approached. It is difficult to see how it could all be jointly heard by one District Court judge, given that it is not a joint trial, although it may be if one District Court judge makes a decision in relation to one matter first, that could be used in other trials, but it is difficult to see how that could occur. It seems to me the more likely approach will be that whoever the first offender who receives a District Court trial is, he or she would seek a s 192A preliminary ruling; and then, depending on the result, it would be anticipated there would be an interlocutory appeal to the Court of Criminal Appeal, which would cause further delay. If the Crown is unsuccessful in the District Court, it can be seen that they have an avenue of appeal under s 5F(3)(a) of the Criminal Appeal Act. Although a defendant does not have a right of appeal on an interlocutory evidentiary ruling, it may be that the ultimate decision will be as to whether the trial is stayed or not, and an offender does have a right of appeal in relation to an interlocutory decision not to stay a trial. It seems to me that, either way, the matter would be appealed on an interlocutory basis to the Court of Criminal Appeal, and then special leave sought to the High Court. It is well accepted that interlocutory decisions are rarely the subject of special leave due to a desire to avoid fragmentation of proceedings. However, it seems to me this could be one of those exceptions to that rule, given the implications for so many other trials throughout the Commonwealth of Australia." 1. Overall, I consider that delay represents a very significant factor in the consideration of cause in this matter. The need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice – s 18(1)(l) of the Bail Act 1. Counsel for the applicant submitted that the applicant has had an opportunity to review the first tranche of the brief of evidence in custody. However, due to the number of services (some as recently as October 2023), he has not had the opportunity to view it in its entirety. This has been due to his brief being primarily electronic. 2. Furthermore, it was submitted that there is a substantial need for the applicant to be free in order to prepare for any interlocutory hearings, his trial, and to be able to provide sufficient instructions. 3. This issue does not go to cause, however, given the complex and technical aspects of the proceedings the applicant faces, there is some force in this submission The need for the accused person to be free for any other lawful reason – 18(1)(m) of the Bail Act 1. The applicant's son, JM, suffers from PUV, and now has stage III kidney disease, which requires self-catheterisation six times each day together with taking two types of medicines daily. The catheterisation has been traumatic for Joshua and requires ongoing support and supervision. 2. The applicant was instrumental in JM's compliance with his self-catheterisation. JM remains at risk of urinary tract infections and unscheduled hospital admissions. 3. Dr Giutronich considers that, if JM does not remain supported and compliant with his treatment pathways, there could be catastrophic consequences, including organ death. She considers that the applicant's absence from the family unit increases that risk. 4. The need for an accused to be in the community, on bail, to assist a family member has been recognised as a show cause factor. 5. As mentioned earlier, the applicant's wife has deposed as to the difficulties which have been faced by the family, and their son JM in particular, since the applicant's incarceration on 10 November 2021 and how he and the family had been looking forward to the applicant's release into the community in anticipation of the ICO. 6. She also stated that since the applicant has been in custody, Kit Bros Transport have had to contract external labour to operate machinery, which costs anywhere between $600- $1,000 for each container to be unpacked. There are between 5-10 containers a week to be unpacked. 7. She has only been able to arrange one physical visit with the applicant at Clarence Correctional Centre. 8. The applicant's matter has been widely publicised in the media, and as a result, this impacted them as a family both emotionally and financially. Kit Bros Transport had to undergo substantial rebranding, as they lost a number of business contracts as a result of the reputational hit of their business. 9. The eldest daughter has had to undergo counselling due to being bullied at school about her father's incarceration. 10. The Crown submitted that, whilst the Crown is not unsympathetic to the difficulties occasioned to the applicant's wife as a result of the applicant's arrest and being on remand. However, it was submitted the evidence does not suggest, to the required standard, that this factor is powerful enough to justify release. The business appears to be ongoing, the family appears to be earning income by other means (renting properties), two children attend a private school (St Andrew's Cathedral school in Sydney CBD) and there is extended family support. 11. I consider that the submissions of the Crown in this respect has some force, save that they do not account sufficiently, in my view, for applicant having a lawful reason for bail, namely, to provide care for his acutely ill son. Show Cause: Conclusion 1. I am satisfied that the applicant has established, on the material before the Court, cause by a combination of the factors of delay, now as demonstrated by the trial date fixed (and the prospect of further delay occasioned in the proceedings by processes directed to the resolution of the question of the admissibility of the AN0M evidence), and the need for the applicant to provide care to his son (an onerous aspect of his incarceration, caused by his inability to assist in that care). I do not consider that the strength of the Crown case or the issues concerning the capacity of bail conditions to sufficiently ameliorate risks would, on balance, warrant a contrary finding given the conclusions, I have and will reach in those respects. 2. In all of the circumstances, I am satisfied that the applicant has established, for the purposes of s 16A(1) of the Bail Act, that his detention is not justified. This means that I then turn to the second stage of my determination pursuant to s 16A(2). Bail Concerns 1. I must now assess whether or not the applicant's release raises any bail concerns (see ss 17(1) and 16A(2)) and, if so, determine whether there is an unacceptable risk of those concerns materialising (s 19). 2. The Crown submitted that there are bail concerns of the characteristics referred to in s 17(2)(a) and (b), and that, having regard to the matters listed in s18(1), the Court should conclude that there would be an unacceptable risk in those respects if the applicant were to be released on bail. 3. I propose to deal with particular aspects bearing upon the bail concerns raised by the Crown having regard to the matters arising under s 18(1) which have been discussed earlier in this judgment. Fail to Appear (s 17(2)(a) /s 19(2)(a)): 1. Counsel for the applicant submitted that the applicant had previously been charged with a similar type of offence, namely supplying a large commercial quantity of prohibited drugs, for which he was acquitted on 19 February 2020. He remained on bail, with strict conditions, including daily reporting, ankle bracelet monitoring and 'curfew'/house arrest conditions. 2. Counsel particularly emphasised the unlikelihood of the applicant leaving his family in dire circumstances. The applicant has significant family and community ties, strongly militating against any unacceptable risk of flight. 3. Counsel also submitted this demonstrates that the applicant is capable of abiding by strict bail conditions when facing charges which carry a maximum penalty of life imprisonment. 4. The Crown submitted that, if the applicant is convicted of the alleged offence, he faces a significant period of imprisonment. The seriousness of the charge and the strength of the Crown case provide a powerful incentive for the applicant to flee. There is a risk of flight in those circumstances. 5. The applicant also has a history of attempting to aid others flee the jurisdiction having regard to the obstruct offence. 6. The applicant has shown the ability to remove his electronic monitoring device. The fact that he has family in Australia provides an incentive to stay but there may be a more powerful incentive to flee facing a considerable term of imprisonment (and potentially owing millions of dollars to members of a syndicate). 7. In oral submissions however, the Crown conceded that of the two risks of flight (s 17(2)(a), Bail Act) and a risk of committing a further serious offence (s 17(2)(b), Bail Act) "the Crown leans more heavily on the concern about the risk of committing a further serious indictable offence". 8. I accept the Crown's submission that the applicant has a substantial incentive to flee given the prospect of a significant period of imprisonment and potentially owing debts to an overseas syndicate. 9. His removal of the electronic bracelet was in breach of bail conditions, and the obstruct offence (which indicates a willingness to undermine the justice system of which bail forms an important part) also contributes significantly to the consideration of a risk of failing to appear. 10. However, those particular factors bearing upon the risk of flight need to be counterbalanced against the period of some 25 months during which the applicant was the subject of bail without a relevant breach and in circumstances where the AN0M messages involving the applicant and co-accused did not reveal the existence of any plans by the applicant to flee the jurisdiction, leave his family or devolve himself of assets. 11. A further factor, ameliorating risk in this respect is the applicant's significant family ties and his need to provide support for his son who, on the evidence, has as illness with life threatening consequences. 12. Overall, I consider that the applicant demonstrated a willingness and capacity to adhere to bail conditions over long periods and absence of evidence of the applicant failing to appear or engaging inflight, combined with his community ties and strenuous bail conditions (including sureties result in a consideration that there is not an unacceptable risk of a failure to appear). Commit a Serious Offence (s 17(2)(b) /19(2)(b)): 1. In written submissions, the Crown advanced the following further contentions: 1. The importation subject to the conspiracy involved a commercial quantity of a border-controlled drug. That the quantity category was "commercial" invites the inference that this was a profitable involvement for the applicant, that is, it was "commercial". 2. The alleged offending was not a one-off involvement. The applicant was significantly involved in each attempted tyre retrieval. The applicant had numerous contacts with whom he messaged, including the co-accused. There is a real and significant risk that the applicant will repeat this serious and profitable offending and circumvent detection by using encrypted messaging applications. The Court should also look at the charges the applicant faced, but for which he was not convicted. 3. Because of the relative ease with which the applicant is alleged to have participated in the conspiracy, the relationships the applicant has had with members of criminal syndicate and the attractiveness of the financial gains from drug related offences, there is an available inference that, even if released on the proposed conditions, it would not ameliorate the risk of the applicant returning to drug-related offending. 1. The Crown submitted orally that the applicant's prior breach of bail in February 2020 and the circumstances surrounding the applicant's conviction of perverting the course of justice carried out in November 2021 demonstrate a clear risk of the applicant committing a further serious offence. 2. The Crown emphasised that the breach in 2020 occurred in circumstances where stringent bail conditions were in place including curfew, electronic monitoring and the use of one mobile phone which demonstrates that conditions of that kind do not ameliorate risk in the applicant's case. I note here that it was acknowledged that the applicant was ultimately found not guilty for the charge for which he was on bail in 2020. 3. As to the obstruct offence, the Crown submitted that the applicant was willing to help another individual breach bail. The Crown submitted that the circumstances of this offence, previously outlined in this judgment, identifies the applicant's relationship with criminal associates, his commitment to that group at a time when the applicant himself was facing criminal charges, his willingness to use his company to conceal the conduct and his willingness to lie to authorities. These factors, the Crown submitted, self-evidently demonstrate a clear risk of the applicant committing a serious indictable offence if granted bail. 4. The Crown's submissions with respect to this bail concern plainly raise significant issues as to the risk of serious offending and, in particular, the risk of drug related offending. Those considerations received sharp attention in the judgment of Wright J, although his Honour addressed the issues in the context of the show cause provisions of the Bail Act. The breach of bail in February 2020 appeared to have a direct relationship with the alleged offending, both parties submitting that the applicant was "fished out of the water" on 7 February 2020 in circumstances where he had breached bail by removing an ankle bracelet and breached curfew. 5. The obstruct offence concerned assistance being given to a person wanted with respect to serious criminal charges to breach bail and reflects the applicant's attitude to the criminal justice system. 6. Furthermore, whilst the applicant has a minor criminal record, save for the obstruct offence, the Court should properly have regard in assessing his release application to the charges brought against the applicant with respect to which he has been found not guilty or which have been no billed. There is also the prospect of debts to an overseas syndicate. 7. However, senior counsel for the applicant was correct to submit that, since the period of the alleged offending (as charged), there is nothing on the material before the Court to indicate the applicant has reoffended with respect to drug supply or importation charges, notwithstanding that his co-accused did allegedly engage in further offending in that respect after his arrest.. 8. It is, of course, appropriate to draw some connection between the obstruct offence and the applicant's criminal associations, and, therefore, the prospect of reoffending, even though the obstruct offence did not specifically concern drug related offending. However, the sentencing judge, with respect to the obstruct offence, considered that the applicant had a low prospect of reoffending. 9. These factors, and the applicant's compliance with bail, to which I have already referred, ameliorate, to some extent in my view, the risks of the applicant committing a serious offence, and, in particular, committing a drug related offence, notwithstanding a significant prior, particular breach of bail. 10. This is the context in which the bail conditions proposed by the applicant need to be considered. They are strenuous and designed to address the particular risks raised in this respect. In broad summary, those conditions included: 1. House arrest style curfew conditions; 2. Electronic monitoring; 3. Daily reporting to Miranda Police Station; 4. Surrendering his passport; 5. The applicant not to apply for any new passport or travel document; 6. The applicant not to go within 500 metres of any point of departure from the Commonwealth of Australia. 7. The applicant to have use of and in his possession only one mobile telephone and SIM card and is to provide the password or PIN code and service and IMEI numbers to a nominated Federal police agent within 12 hours of taking possession or resuming possession of an such service. 8. The applicant 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, Telegram or WeChat. 9. Nominated acceptable persons are to provide security and agree to forfeit the sum specified in the bail conditions if the applicant fails to appear before court in accordance with the bail acknowledgement. 10. Enforcement Condition: The applicant is to present himself at the front door at the direction of any police officer to confirm compliance with the curfew condition. 11. Non-association and non-contact conditions. 1. In those respects, I note the material which has been provided to the Court by the Crown may suggest some limitations in electronic monitoring systems. No submissions were received in that respect. Notwithstanding the circumstances of the breach in 2020, and, absent any precise explanation as to the nature of any failure that occurred in the electronic monitoring system, in my view, electronic monitoring remains a useful protective measure. Conclusion 1. When considered across the entirety of the circumstances of the present application and having regard to strict bail conditions, modified in the light of amendments proposed by the Court and agreed to by the parties, I consider that the applicant should receive bail. 2. I therefore grant the release application in terms of conditions proposed by the applicant as amended in the above respects. ********** Endnote 1. Shorter Oxford English Dictionary, 6th ed (2007) at 417 defines circumstances, inter alia, as [the] event, time, place, manner, cause, occasion, etc., of an act or event: the external conditions affecting or that might affect action". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2024