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Court of Criminal Appeal 12 March 2025

Nikollaj v R

[2025] NSWCCA 31

Drugs
CRIME BAIL SHOW CAUSE TEST AN0M DEVICES STRENGTH OF PROSECUTION CASE LONGER DELAY

Citation: Nikollaj v R [2025] NSWCCA 31
Court: Court of Criminal Appeal, NSW
Date: 12 March 2025
Judges: Price AJA, Dhanji J, Yehia J (majority reasons by Yehia J)

Background

The applicant faced two separate indictments. The first arose from evidence obtained through the AN0M encrypted communications platform, alleging conspiracy to import a commercial quantity of a border controlled drug between May and June 2021. The second, under Strike Force Jillabenan, alleged that he aided and abetted another person's attempted importation of a commercial quantity of cocaine over a similar period. Both offences carry a maximum of life imprisonment.

The applicant was arrested on 3 June 2021 and has remained in custody since. Previous bail applications were refused in the Local Court (June 2022), the Supreme Court by Button J (August 2022), and the Supreme Court by Wright J (June 2024). Wright J accepted that the applicant had shown cause but found he presented an unacceptable risk of flight and of committing serious offences.

Both trials were listed to commence in February 2026. If bail were refused, the applicant would have spent approximately four years and eight months on remand before his trials, without having been convicted of any offence.

  • Whether the applicant could show cause under the Bail Act 2013 (NSW) why his continued detention was not justified, given the nature of the offences.
  • Whether, if cause was shown, the applicant nonetheless posed an unacceptable risk of failing to appear or committing serious offences on bail.
  • Whether the strength of the prosecution's AN0M evidence and the prior refused bail history changed the analysis.
  • Whether the length of the prospective pre-trial detention was a relevant and weighty consideration in the bail assessment.

Decision

Show cause: The Court found that the applicant had shown cause why his detention was not justified. A key factor was the extraordinary length of time he would spend on remand if bail were refused: approaching five years. The Court noted that showing cause does not require an applicant to demonstrate special or exceptional circumstances; those are distinct requirements under the Bail Act. Relevant factors to the unacceptable risk test also bear on the show cause assessment, but are not exhaustive of it.

Strength of the prosecution case: The Court accepted that the AN0M evidence would likely be admitted at trial, given the passage of the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) and the relevant authorities. Even so, the Court held that a conviction was not inevitable. This case differed from one involving an actual completed importation combined with messages directly implicating the accused. Genuine issues remained to be tried on both indictments.

Unacceptable risk: The Court acknowledged that the evidence, particularly from the AN0M matter, indicated the applicant had been actively involved with serious criminals shortly after completing a lengthy sentence for prior drug offending. This created a real risk of further serious offending on bail. There was also a risk of flight. However, the Court determined that these risks were mitigated to an acceptable level by the combination of two primary factors: the exceptionally strict bail conditions proposed, and the duration of pre-trial detention already served and anticipated.

Dhanji J's observations: Dhanji J added that detaining an unconvicted person for a period as long as five years, where conviction is not inevitable, is itself corrosive of the integrity of the justice system. His Honour described the situation as having something of a self-defeating quality, where the mechanism designed to protect the justice system may itself undermine it. The applicant had also completed six years on parole following a prior sentence without any alleged offending during that period.

Orders Made

The Court granted bail subject to stringent conditions, including:

  • Strict home detention at an approved address.
  • A drug abstention condition.
  • Prohibition on travelling more than a specified distance from the home address.
  • Prohibition on approaching within 500 metres of any international departure point.
  • Restriction to one mobile telephone and one SIM card, with passwords, service numbers and IMEI numbers to be provided to the Officer in Charge within 24 hours.
  • Prohibition on using or possessing any encrypted communications device or encrypted applications (including WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, or Telegram).
  • Access to any internet-capable device to be provided to the Officer in Charge on demand, with passwords.
  • Cash or security of $3,150,000 to be deposited by one or more acceptable persons as a pre-release condition.
  • Fitting and ongoing maintenance of a 24-hour electronic monitoring device (Allied Universal Electronic Monitoring Australia) as a pre-release condition, with the applicant prohibited from removing the device.
  • The applicant to present himself at the front door of his residence on direction of any police officer confirming compliance.
  • The applicant to provide the CDPP or Officer in Charge with evidence of compliance within 24 hours of release.

Key Takeaways

  • An exceptionally long period of pre-trial remand, here approaching five years for an accused who has pleaded not guilty, can be a decisive factor in favour of bail even on show cause offences carrying a maximum of life imprisonment.

  • Showing cause under the Bail Act 2013 (NSW) does not require an applicant to demonstrate special or exceptional circumstances; those are a separate statutory requirement, and conflating them is an error.

  • Where evidence from AN0M devices is likely admissible, that finding strengthens the prosecution case, but does not render conviction inevitable where there remain genuine factual issues to be resolved at trial.

  • Dhanji J's concurring reasons articulate a principle that prolonged pre-trial detention of a person whose conviction is not inevitable can itself threaten the integrity of the criminal justice system, not merely the rights of the individual accused.

  • Exceptionally strict bail conditions, including home detention, electronic monitoring, a $3.15 million surety, prohibition on encrypted communications, and restrictions on device use, can collectively reduce bail risks to an acceptable level even where risks of flight and serious reoffending are both present.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16B, 17(2), 18(1), 19(1), 22(2), 49, 67(1), 75
- Criminal Code Act 1995 (Cth), Pt 9.1, ss 11.1(1), 11.2(1), 11.5(1), 307.1(1)
- Evidence Act 1995 (NSW), s 87
- Surveillance Legislation (Confirmation of Application) Act 2024 (Cth)
- Telecommunications (Interception and Access) Act 1979 (Cth)

Key Cases:
- Lee v R (Cth) [2024] NSWCCA 202
- R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365
- Barr v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47
- Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314
- Director of Public Prosecutions (Cth) v Habkouk [2022] NSWSC 98
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Question of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82
- R (Cth) v Dogan (Supreme Court (NSW), Weinstein J, 31 August 2024, unrep)
- R (Cth) v Jones (Supreme Court (NSW), Ierace J, 5 December 2024, unrep)
- Flower v R [2020] NSWCCA 64