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Supreme Court 18 June 2024

Kitanovski v R

[2024] NSWSC 732

Drugs
BAIL BAIL REVIEW APPLICATION S 74(3)(C) OF THE BAIL ACT FURTHER RELEASE APPLICATION CHANGE OF CIRCUMSTANCE FIXING OF A TRIAL DATE

Citation: Kitanovski v R [2024] NSWSC 732
Court: Supreme Court of New South Wales
Date: 18 June 2024
Judge(s): Walton J

Background

The applicant, a 49-year-old man facing a Commonwealth charge of conspiracy to import a commercial quantity of cocaine, had been refused bail in December 2023 by Wright J. The alleged conspiracy involved cocaine concealed in tyres attached to the hulls of two maritime vessels docked at Port Botany. The Crown case relied substantially on communications intercepted through AN0M, an encrypted messaging platform covertly operated by law enforcement.

The applicant had been in custody since October 2022 and had a prior conviction for obstructing justice, having helped a man wanted for drug importation flee the jurisdiction. His youngest son suffers from a serious kidney disease requiring intensive daily medical management.

When the District Court fixed a trial date of 27 October 2025, the applicant brought a fresh bail application in the Supreme Court, citing that new date as a changed circumstance justifying the further application.

Legal Issues

  • Whether the fixing of a trial date constituted a changed circumstance under s 74(3)(c) of the Bail Act 2013 (NSW), permitting a further release application after a prior refusal.
  • Whether the applicant had shown cause under s 16A(1) of the Bail Act that his detention was not justified, given the offence was a show cause offence under s 16B.
  • Whether there was an unacceptable risk of the applicant failing to appear or committing a serious offence if released on bail.
  • What conditions, if any, could adequately address those risks.

Decision

Issue 1: Threshold under s 74(3)(c) — Changed Circumstances

Walton J held that the fixing of the trial date for late October 2025 constituted a changed circumstance relevant to the grant of bail for the purposes of s 74(3)(c). The trial date established, for the first time with certainty, the period the applicant would spend on remand. That delay was directly relevant to both the show cause question and the unacceptable risk assessment (at [30]-[31]).

Issue 2: Show Cause under s 16A(1)

The alleged offence is a show cause offence because it carries a maximum penalty of life imprisonment and was allegedly committed while the applicant was on bail (at [33]). His Honour applied the two-stage process established in the authorities: first, whether the applicant showed cause; second, whether release would pose an unacceptable risk.

On the show cause question, Walton J found that a combination of factors satisfied the requirement. The total period between arrest and trial was approximately three years, with nearly one year and eight months already served and a further one year and four months to run. That delay was described as a very significant factor (at [87]-[90]). While the Crown case appeared strong as it presently stood, it was subject to significant triable issues about the admissibility of AN0M communications, with an equivalent challenge then on appeal in South Australia (at [82]). The applicant's son's serious medical condition, requiring intensive daily care that the applicant had previously provided, was also a material consideration (at [94]-[96]). The combination of delay and the applicant's need to care for his acutely ill son was sufficient to show cause (at [105]-[106]).

Issue 3: Unacceptable Risk of Failure to Appear

Walton J accepted that the applicant had a substantial incentive to flee, given the prospect of a significant custodial sentence and potential debts to an overseas syndicate, and that the obstruct offence reflected a willingness to undermine the justice system (at [117]-[118]). However, those considerations were counterbalanced by approximately 25 months of compliance with bail conditions without relevant breach, the absence in the AN0M communications of any indication of plans to flee or divest assets, and the applicant's strong family ties, including his son's serious illness (at [119]-[121]). The court concluded there was no unacceptable risk of failure to appear (at [121]).

Issue 4: Unacceptable Risk of Serious Offending

The Crown pressed most heavily on the risk of further serious offending, pointing to the February 2020 bail breach, the obstruct offence, and the applicant's criminal associations (at [116], [123]-[127]). Walton J acknowledged those concerns were significant but noted that the sentencing judge on the obstruct offence had assessed the applicant as having a low prospect of reoffending, and that since the period of the alleged offending the applicant had not been found to have reoffended in relation to drugs or importation (at [129]-[131]). Strict bail conditions, including electronic monitoring, curfew, sureties, and reporting requirements, were found to adequately address the residual risk (at [132]-[134]).

Orders Made

  • The release application was granted on the conditions proposed by the applicant, as amended by the Court.

Key Takeaways

  • Under s 74(3)(c) of the Bail Act, the subsequent fixing of a trial date can constitute a changed circumstance permitting a further release application, because it establishes with certainty the period the accused will spend on remand and makes delay a concrete and assessable factor (at [26], [30]).

  • A show cause requirement is not defeated by a strong Crown case alone. Where delay is very substantial and the Crown case faces significant triable issues, such as unresolved admissibility challenges to AN0M evidence, those considerations can combine with compassionate factors to satisfy the cause threshold (at [82], [105]).

  • Walton J declined to express any view on the likely outcome of the AN0M admissibility appeal in South Australia or any equivalent pre-trial argument in New South Wales, treating the evidence as presently admissible while recognising the challenge as a genuine triable issue (at [76]-[82]).

  • Approximately 25 months of prior compliance with bail conditions, including electronic monitoring and curfew, weighed against a finding of unacceptable flight risk, even where the applicant had a prior conviction for assisting another person to breach bail (at [119]-[121]).

  • The need for an accused to provide care for a seriously ill child has been recognised in this decision as a legitimate factor capable of contributing to the show cause analysis under s 16A(1) of the Bail Act (at [97], [104]-[105]).

Legislation and Cases Referenced

Legislation
- 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
- 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