Citation: R v Lalee [2024] NSWSC 1335
Court: Supreme Court of New South Wales
Date: 21 October 2024
Judge(s): Dhanji J
Background
The applicant, a 34-year-old man, had been in custody since 17 September 2024 following his arrest on three charges: conspiracy to traffic a marketable quantity of cannabis under Commonwealth law, attempting to supply a prohibited firearm to an unauthorised person, and possessing a dedicated encrypted criminal communication device. The prosecution alleged he used the "Ghost" encrypted communications platform under the code name "Underworld" to coordinate drug supply and offer a firearm for sale.
The Crown case was built on messages retrieved from the encrypted platform, attributing multiple cannabis supply transactions totalling approximately 42 kilograms to the applicant. Investigators also found $90,000 in cash and 10 kilograms of cannabis during a search of the applicant's premises in July 2024.
The applicant applied for release on bail under section 49 of the Bail Act 2013 (NSW). Because the firearms offence attracted the "show cause" requirement under the Act, the applicant first had to demonstrate why his continued detention was not justified before any consideration of the unacceptable risk test could arise.
Legal Issues
- Whether the applicant had shown cause under section 16A(1) of the Bail Act 2013 (NSW) why his detention was not justified, given the firearms charge attracts the show cause threshold.
- Whether, if cause was shown, the applicant presented an unacceptable risk under section 19 of the Act, including risk of committing a serious offence, failing to appear, or interfering with witnesses or evidence.
- The strength of the Crown case, including whether potential admissibility challenges to messages obtained from the Ghost encrypted platform weakened that case.
Decision
Show Cause: Strength of the Crown case
Dhanji J assessed the Crown case against the applicant as at least strong and probably very strong across all three charges (at [31]). The court found an extremely strong basis for attributing the "Underworld" devices to the applicant (at [13]), a very strong case of conspiracy to traffic cannabis involving roughly 42 kilograms (at [14]-[15]), and a strong case that the applicant had offered to supply a prohibited firearm based on the exchange of a photograph and a price of $28,000 in the messages (at [22]-[23]).
Show Cause: Admissibility of encrypted communications
A potential admissibility challenge to the communications evidence was raised, drawing comparisons to litigation surrounding the AN0M encrypted platform. Dhanji J noted that the South Australian Court of Appeal had resolved the equivalent admissibility question against accused persons at first instance and on appeal, and that an application for special leave to the High Court was pending (at [28]-[29]). The court proceeded on the basis that the South Australian authority would be followed, and found no more than a possibility that the present case might be factually distinguished, either as a New South Wales AN0M case or because a different platform was used (at [29]-[31]). Accordingly, the court placed limited weight on the admissibility issue as a weakness in the Crown case.
Show Cause: Other factors
Despite the strong Crown case, Dhanji J found that cause had been shown when the following factors were considered together: the likelihood of significant delay before trial, given co-accused complexity and unresolved admissibility questions; the applicant's particular difficulties in custody as a first-time prisoner; his family circumstances, including two young children and a wife expecting a third child in January 2025, with the applicant otherwise unable to be present at the birth; and the strictness of the proposed bail conditions, including electronic monitoring and a form of home detention requiring the applicant to be accompanied by one of three nominated persons at all times (at [38]-[44]).
Unacceptable Risk
Dhanji J accepted that a risk of the applicant committing a serious offence existed, particularly given the firearms-related material, including a sawn-off barrel and ammunition found on arrest (at [46]). However, the court found that the proposed conditions sufficiently mitigated that risk so that it did not rise to an unacceptable level (at [48]). The court also found no unacceptable risk of the applicant failing to appear, given the conditions (at [49]), and no unacceptable risk of interference with witnesses or evidence, noting the prosecution case relied on material already in the authorities' possession (at [50]).
Orders Made
- Application for bail granted with conditions.
Key Takeaways
- Granting bail notwithstanding a strong Crown case across serious drug and firearms charges, the Supreme Court found that delay, difficult custody conditions, significant family circumstances, and strict proposed bail conditions, viewed in combination, were sufficient to satisfy the show cause threshold under the Bail Act 2013 (NSW) (at [44]).
- Under the show cause test, no single factor need be decisive; the court weighed multiple matters collectively against the seriousness of the offending and the strength of the Crown case (at [26]-[44]).
- Potential admissibility challenges to messages obtained from an encrypted communications platform (here, the Ghost ECC platform) were given limited weight where only a possibility of factual distinction from existing appellate authority existed, and no detailed supporting material had been placed before the court (at [29]-[31]).
- Where prosecution evidence consists of communications already obtained by authorities, the risk of witness or evidence interference may be assessed as low, since further conduct by an accused would more likely generate additional evidence than destroy existing material (at [50]).
- Electronic monitoring combined with home detention and a requirement that the applicant be accompanied by nominated persons at all times represented the kind of strict conditions capable of mitigating an otherwise real risk of serious offending to a level the court found was not unacceptable (at [38], [48]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Code (Cth)
- Firearms Act 1996 (NSW)
- Telecommunications (Interception and Access) Act 1979 (Cth)
Cases
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47