AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 1 November 2024

Lee v R (Cth)

[2024] NSWCCA 202

Drugs
CRIME BAIL RELEASE APPLICATION SHOW CAUSE TEST OPERATION IRONSIDE AN0 M DEVICES

Citation: Lee v R (Cth) [2024] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 1 November 2024
Judges: Stern JA, Dhanji J (principal reasons), Faulkner J

Background

The applicant, a 44-year-old Australian citizen with no prior criminal history at the time of arrest, has been in custody since 25 June 2021. He faces a charge of conspiracy to import a commercial quantity of cocaine (171 kilograms) under the Criminal Code (Cth), carrying a maximum penalty of life imprisonment. A second charge involving possession of an extendable baton remains on foot as a summary matter.

The conspiracy charge arises from Operation Ironside, the AFP-led operation involving encrypted AN0M devices. The prosecution's case relies substantially on communications intercepted through that platform. The admissibility of AN0M evidence has been contested in various proceedings, adding complexity to the Crown case.

Two previous Supreme Court bail applications were refused, by RA Hulme AJ in December 2022 and Ierace J in December 2023. The applicant then brought a fresh release application to the Court of Criminal Appeal under s 49 of the Bail Act 2013 (NSW). Trial is listed in the Sydney District Court on 28 July 2025.

  • Whether the applicant could satisfy the "show cause" test under s 16A(1) of the Bail Act 2013 (NSW), which applies on three separate bases given the nature of the charges and the fact the alleged offending occurred while the applicant was on bail
  • Whether, if cause were shown, the applicant presented an unacceptable risk under the Act's risk assessment framework
  • Whether proposed conditions, including electronic monitoring, could adequately mitigate any identified risks
  • The proper weight to be given to the length of pre-trial detention, including the period spent on remand distinct from the sentence served for a separate supply offence

Decision

The Court determined the application afresh under s 75 of the Act, treating it as neither an appeal nor a review of the prior Supreme Court decisions, although those decisions remained available for consideration. The show cause test applied on three independent grounds: the offence carries life imprisonment; it involves conspiracy to import a commercial quantity of a serious drug; and it was allegedly committed while the applicant was on bail.

On the show cause question, Dhanji J found that the combination of the extended period already spent in custody and the additional nine months before trial was a powerful factor. The judgment carefully disaggregated the custody periods: the applicant was entitled to be treated as having been remanded, rather than serving an existing sentence, for approximately one year and ten months to that point, with the total pre-trial remand period reaching two years and seven months if bail were refused again. That prospect was described as a "dominant consideration," though not automatically determinative.

The strength of the Crown case was also scrutinised. The admissibility of AN0M evidence remains genuinely contested, with the South Australian Court of Appeal having ruled such evidence inadmissible in Question of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82. The Court acknowledged the unresolved state of the law and the real question of whether the applicant could be shown to have participated in the charged conspiracy. These uncertainties moderated the weight of the prosecution case at the bail stage. Taken together, the duration of detention and the questions surrounding the Crown case were sufficient to show cause.

On the unacceptable risk test, the Court found that stringent conditions, particularly electronic monitoring under home detention, could reduce the risks to an acceptable level. Risks relating to flight, contact with witnesses, and further offending were addressed through a comprehensive suite of conditions including a $1.3 million surety, passport surrender, home detention with electronic monitoring, and severe restrictions on communication devices and encrypted applications.

Orders Made

  • Bail granted subject to conditions, including:
  • Residence at a specified address
  • Home detention with specified daily exceptions (medical, legal, and other approved purposes)
  • Fitted with an electronic monitoring device (Allied Universal Electronic Monitoring Australia Pty Ltd) at the applicant's expense, as a pre-release condition
  • Reporting conditions to local police
  • No contact with co-accused, prosecution witnesses, or others connected to the matter
  • No approach within 1 km of any international departure point
  • Passport surrendered to police prior to release (pre-release condition); no application for replacement travel documents
  • Restricted to one mobile phone and SIM card; IMEI and PIN details provided to police
  • No use of encrypted communication applications (including WhatsApp, Snapchat, Wickr, Viber, Signal equivalents, WeChat, Telegram, and others listed)
  • Internet-capable devices to be made accessible to police on demand
  • An acceptable person or persons to enter into a forfeiture agreement of $1,300,000 should the applicant fail to appear (pre-release condition)

Key Takeaways

  • A pre-trial remand period of approximately two years and seven months, continuing until a trial date nine months away, constituted a "dominant consideration" in the show cause analysis, even where the offence is among the most serious in the criminal calendar.

  • The show cause test under the Bail Act 2013 (NSW) does not require an applicant to establish special or exceptional circumstances; a single powerful factor or a powerful combination of factors is capable of satisfying it.

  • Unresolved admissibility questions surrounding AN0M device evidence, highlighted by the South Australian Court of Appeal's ruling against admissibility, can reduce the assessed strength of the Crown case at the bail stage, even if the issue has not been finally determined in NSW.

  • Electronic monitoring and home detention conditions, accompanied by substantial financial sureties and strict communication restrictions, were accepted as capable of reducing identified bail risks to an acceptable level on the facts of this case.

  • Under the Act, satisfying the show cause test does not automatically satisfy the unacceptable risk test; both inquiries remain distinct and sequential, as made explicit by s 19(3) of the Bail Act 2013 (NSW).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 16A, 16B, 19, 49, 67, 75
- Criminal Code (Cth), ss 11.5(1), 307.1(1)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Criminal Procedure Act 1986 (NSW), s 166
- Telecommunications (Interception and Access) Act 1979 (Cth)
- Weapons Prohibition Act 1988 (NSW), s 7(1)
- Bail Regulation 2021 (NSW), Schedule 1

Cases
- Question of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47
- Iongi v R [2022] NSWCCA 42
- R v Kugor [2015] NSWCCA 14
- R v Okusitino; R v Lavulo; R v Iongi [2024] NSWSC 1
- Director of Public Prosecutions (NSW) v Hing [2017] NSWCCA 325
- R v Lee (Supreme Court (NSW), Ierace J, 1 December 2023, unrep)
- R v Falzon (2018) 92 ALJR 701; [2018] HCA 29
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Flower v R [2020] NSWSC 64
- R v Bail Applicant M [2020] NSWSC 1685