Kitanovski v R

1. [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. [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. [3]

   On 22 March 2024, the charge was listed for trial before the District Court of NSW in Sydney on 27 October 2025.

4. [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. [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. [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. [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. [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. [9]

   On 10 November 2021, the applicant was charged with the following:

   1. (1)

      Do an act intending to pervert the course of justice, contrary to s 319 Crimes Act 1900 (NSW); and

   2. (2)

      Attempt/obstruct/prevent the course of justice, contrary to s 43(1) Crimes Act 1914 (Cth).

10. [10]

    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.

11. [11]

    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.

12. [12]

    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.

13. [13]

    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.

14. [14]

    On 12 December 2023, Wright J refused an application for bail with respect to the alleged offending.

15. [15]

    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:

16. [16]

    His Honour’s observations about delay, in that context, relate to the following passage of his Honour’s judgment:

Section 74

1. [17]

   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. [18]

   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. [19]

   The applicant relied upon the following submissions in order to establish that ground:

   1. (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. (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. (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].

4. [20]

   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.

5. [21]

   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.

6. [22]

   The Crown made the following submissions in that respect:

   1. (1)

      The applicant has not established the ground under s 74(3)(c) of the Bail Act to justify a further release application.

   2. (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. (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. (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. (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.

7. [23]

   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:

8. [24]

   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).

9. [25]

   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.

10. [26]

    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.

11. [27]

    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).

12. [28]

    In R v Kugor [2015] NSWCCA 14 at [35], Hoeben CJ at CL (with whom RA Hulme J and RS Hulme AJ agreed) stated:

13. [29]

    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:

14. [30]

    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. (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. (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. (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.

15. [31]

    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.

16. [32]

    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. [33]

   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. [34]

   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. [35]

   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. [36]

   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. [37]

   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. [38]

   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. [39]

   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. [40]

   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. [41]

   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. [42]

    The applicant submitted that cause had been shown through a combination of 5 factors:

    1. (1)

       The inherent weakness in the Crown case based upon the illegality of critical prosecution evidence, namely, the AN0M evidence.

    2. (2)

       Delay, in the matter reaching trial (and possible further delay occasioned by issues concerning the admissibility of AN0M evidence).

    3. (3)

       Circumstances concerning the applicant’s son.

    4. (4)

       The applicant’s history in complying with strict bail conditions.

    5. (5)

       The strictness of the bail conditions proposed by the applicant.

11. [43]

    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. [44]

   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. [45]

   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. [46]

   The applicant engaged in acts to try and retrieve the tyres from the water.

4. [47]

   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:

Section 18 Factors

1. [48]

   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. [49]

   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. [50]

   In an affidavit of 23 April 2024, the applicant's friend, Silvana Gorsevski, offered her home as surety.

4. [51]

   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. [52]

   In an affidavit of 9 December 2022, Thomas Joseph Normoyle also offered his property as bail surety.

6. [53]

   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.

7. [54]

   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.

8. [55]

   The factual circumstances underpinning the obstruct offence are as follows:

9. [56]

   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.

10. [57]

    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.

11. [58]

    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.

12. [59]

    The alleged offending is plainly serious. If convicted, the applicant is likely to face a substantial custodial sentence.

13. [60]

    There are two aspects to this particular factor:

14. [61]

    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.

15. [62]

    The countervailing circumstances are as follows:

    1. (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. (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.

16. [63]

    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.

17. [64]

    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".

18. [65]

    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."

19. [66]

    The applicant made the following submissions in that respect:

    1. (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. (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. (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. (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. (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. (6)

       There were a number of issues to be contested. These included whether:

    7. (7)

       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:

20. [67]

    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.

21. [68]

    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).

22. [69]

    The argument regarding the admissibility of the AN0M messages is a technical one relying on alleged breaches of the TIAA.

23. [70]

    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.

24. [71]

    Subsequently, a Notice of Appeal from that decision to the South Australian Court of Appeal was lodged. The decision of that Court is reserved.

25. [72]

    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.

26. [73]

    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

27. [74]

    In Filipe, this Court made the following observations regarding Judgment one:

28. [75]

    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).

29. [76]

    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.

30. [77]

    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.

31. [78]

    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.

32. [79]

    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. (1)

       A message referred to taking “Josh” out on the jet ski. Josh is the first name of the Applicant’s son;

    2. (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. (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. (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. (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.

33. [80]

    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.

34. [81]

    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.

35. [82]

    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.

36. [83]

    I have earlier discussed delay in the context of s 74(3) of the Bail Act.

37. [84]

    The applicant made the following submissions on delay:

    1. (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. (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:

38. [85]

    The Crown submitted the following in that respect:

    1. (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. (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. (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. (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.

39. [86]

    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.

40. [87]

    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.

41. [88]

    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.

42. [89]

    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:

43. [90]

    Overall, I consider that delay represents a very significant factor in the consideration of cause in this matter.

44. [91]

    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.

45. [92]

    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.

46. [93]

    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

47. [94]

    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.

48. [95]

    The applicant was instrumental in JM’s compliance with his self-catheterisation. JM remains at risk of urinary tract infections and unscheduled hospital admissions.

49. [96]

    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.

50. [97]

    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.

51. [98]

    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.

52. [99]

    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.

53. [100]

    She has only been able to arrange one physical visit with the applicant at Clarence Correctional Centre.

54. [101]

    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.

55. [102]

    The eldest daughter has had to undergo counselling due to being bullied at school about her father's incarceration.

56. [103]

    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.

57. [104]

    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. [105]

   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. [106]

   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. [107]

   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. [108]

   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. [109]

   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.

4. [110]

   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.

5. [111]

   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.

6. [112]

   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.

7. [113]

   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.

8. [114]

   The applicant also has a history of attempting to aid others flee the jurisdiction having regard to the obstruct offence.

9. [115]

   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).

10. [116]

    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”.

11. [117]

    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.

12. [118]

    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.

13. [119]

    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.

14. [120]

    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.

15. [121]

    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).

16. [122]

    In written submissions, the Crown advanced the following further contentions:

    1. (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. (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. (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.

17. [123]

    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.

18. [124]

    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.

19. [125]

    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.

20. [126]

    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.

21. [127]

    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.

22. [128]

    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.

23. [129]

    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..

24. [130]

    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.

25. [131]

    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.

26. [132]

    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. (1)

       House arrest style curfew conditions;

    2. (2)

       Electronic monitoring;

    3. (3)

       Daily reporting to Miranda Police Station;

    4. (4)

       Surrendering his passport;

    5. (5)

       The applicant not to apply for any new passport or travel document;

    6. (6)

       The applicant not to go within 500 metres of any point of departure from the Commonwealth of Australia.

    7. (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. (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. (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. (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. (11)

        Non-association and non-contact conditions.

27. [133]

    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. [134]

   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. [135]

   I therefore grant the release application in terms of conditions proposed by the applicant as amended in the above respects.