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Supreme Court 10 July 2025

R v Potter

[2025] NSWSC 732

Drugs
CRIME BAIL RELEASE APPLICATION FURTHER RELEASE APPLICATION CHANGE OF CIRCUMSTANCES WHERE TRIAL DATE WAS VACATED

Citation: R v Potter [2025] NSWSC 732
Court: Supreme Court of New South Wales
Date: 10 July 2025
Judge(s): Price AJ

Background

The applicant faces a single charge of conspiracy to import a commercial quantity of cocaine, approximately 1.2 tonnes, from Colombia into Australia, contrary to the Criminal Code Act 1995 (Cth). The Crown alleges he played a senior role in organising a mother-daughter ship operation, including the daughter-ship and its crew, to retrieve the cocaine in the waters of Palau. The cocaine never left South America, and the applicant was arrested in June 2021.

This was the applicant's second release application in the Supreme Court. Wright J refused bail on 17 May 2024, at which point the trial was listed for August 2025. The trial date was subsequently vacated in February 2025, not through any fault of either party, and relisted only for a directions hearing in August 2025. The court accepted it is unlikely to proceed before 2026.

The vacated trial date triggered the threshold for a fresh bail application under the Bail Act 2013 (NSW). The central reason for the adjournment is a pending High Court decision on the admissibility of encrypted messages obtained through the AN0M covert messaging platform, which forms the main plank of the Crown case.

  • Whether the vacated trial date constituted a sufficient change of circumstances to permit a further release application under s 74 of the Bail Act 2013 (NSW)
  • Whether the applicant had shown cause why his detention was not justified under the show cause test in ss 16A and 16B of the Bail Act, given the substantial time already spent on remand
  • Whether, if cause was shown, the applicant presented an unacceptable risk of failing to appear or committing a serious offence under s 19 of the Bail Act
  • The relevance of the pending High Court decisions on the admissibility of AN0M evidence and the constitutional validity of the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) to the strength of the Crown case

Decision

Change of circumstances and show cause. The Crown conceded that the vacated trial date satisfied s 74(3)(c) of the Bail Act as a change of circumstances, allowing the application to be determined afresh under s 75. Price AJ agreed with the applicant's senior counsel that trial in 2025 was highly unlikely and that the applicant would probably have been on remand for more than five years by the time his trial commences. The court accepted that this extraordinary period of pre-trial custody, taken together with the combination of other circumstances, was sufficient to show cause why detention was not justified.

Strength of the Crown case and the AN0M admissibility question. The Crown's case rests primarily on AN0M encrypted messages, one device bearing the sender ID "slidecoast" having been found at the applicant's premises. The admissibility of AN0M evidence remains subject to pending High Court decisions on both the correctness of the South Australian Court of Appeal's ruling in favour of admissibility and a constitutional challenge to the Commonwealth legislation that retrospectively confirmed the AN0M intercepts were not unlawful. Price AJ characterised the Crown case as very strong, noting that, if the High Court resolved the admissibility question against the Crown, the charges would likely be withdrawn.

Unacceptable risk. Despite cause being shown, the court proceeded to assess bail concerns under ss 17, 18 and 19 of the Bail Act and found the applicant presented an unacceptable risk on two grounds. First, the risk of flight was assessed as very high, driven by the applicant's alleged connections to international criminal syndicates, the severity of the likely sentence upon conviction, a 2003 conviction for possessing a false passport, and the unknown whereabouts of his identical twin brother (also alleged to have participated in the conspiracy and similarly convicted of a passport offence) who has access to offshore vessels and crew outside Australia. Second, the risk of committing a serious offence was assessed as high, primarily because the present alleged offending was committed while the applicant was on parole for supplying a large commercial quantity of methylamphetamine.

Proposed bail conditions. The court found that the proposed bail conditions, including substantial security offered by the applicant's mother, did not adequately mitigate either risk. The commission of the alleged offence while on parole significantly undermined confidence that the applicant would comply with bail conditions. Bail was refused.

Orders Made

• Bail is refused

Key Takeaways

  • Refusing bail, the Supreme Court held that an extraordinary period on pre-trial remand (here, projected to exceed five years) can, in combination with other circumstances, constitute cause shown under s 16A of the Bail Act 2013 (NSW), even where the Crown case is characterised as very strong.
  • Under the Bail Act, showing cause does not end the inquiry. A court must still assess bail concerns under ss 17 to 19, and a finding of unacceptable risk on either flight or further offending will result in bail being refused regardless of the hardship of continued remand.
  • Alleged commission of a serious offence while on parole carries significant weight in the unacceptable risk assessment, substantially diminishing confidence that an applicant will comply with proposed bail conditions.
  • The pending High Court decisions on AN0M evidence admissibility and the constitutional validity of the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) were directly relevant to the assessment of the Crown case's strength, with the court acknowledging that an adverse ruling for the Crown could result in the charges being withdrawn.
  • Past possession of a false passport, even where the conviction is more than 20 years old, remains a relevant consideration in assessing flight risk, particularly where an applicant has alleged connections to international criminal networks and a co-alleged conspirator with similar antecedents is at large overseas.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 30A, 49, 74, 75
- Bail Amendment (Ban on Private Electronic Monitoring) Act 2025 (NSW)
- Criminal Code Act 1995 (Cth), ss 11.5, 307.1
- Surveillance Legislation (Confirmation of Application) Act 2024 (Cth)
- Telecommunications (Interception and Access) Act 1979 (Cth), s 7

Cases
- Ali v Director of Public Prosecutions (NSW) [2017] NSWCCA 155
- CD v Director of Public Prosecutions (SA) [2024] HCASL 297
- CD v Director of Public Prosecutions (SA) [2025] HCATrans 35
- CD v Director of Public Prosecutions (SA) [2025] HCATrans 36
- Lee v R (Cth) [2024] NSWCCA 202
- Nikollaj v R [2025] NSWCCA 31
- Questions of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82
- R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365
- R v David John Potter (Supreme Court (NSW), Wright J, 17 May 2024, unrep)
- Simpson v R [2021] NSWCCA 264