HIS HONOUR: Hussein Lalee, to whom I shall refer as "the applicant", has made a release applicant pursuant to s 49 of the Bail Act 2013 (NSW) (the Act).
The applicant is presently 34 years of age, having been born in October 1987. He has been in custody since 17 September 2024, a period of just over one month. That custody relates to a number of charges which are individually and collectively of some real seriousness. The applicant is charged with an offence of conspiring to traffic in a marketable quantity of cannabis contrary to ss 11.5 and 302.3(1) of the Criminal Code (Cth), an offence of attempt to supply a prohibited firearm to a person unauthorised to possess it contrary to s 51(1A) (a) of the Firearms Act 1996 (NSW) and possession of a dedicated encrypted criminal communication device contrary to s 192P of the Crimes Act 1900 (NSW).
The offence against s 51(1A)(a) of the Firearms Act is an offence to which the show cause requirement applies as a result of the operation of s 16B(1)(d)(iii) and s 16B(1)(j) of the Act. As a result, s 16A(1) requires the applicant to show cause as to why his detention is not justified.
The Act does not, at least in express terms, provide the content of the show cause test. Some propositions emerge from the cases. In Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47, Leeming JA observed that the word "justified" is "conspicuously open-textured", but went on to note that some content is given to the expression by considering how the legislature anticipated it would be applied; that is, by persons and ultimately, if bail is initially refused, by courts familiar with the basic principles of the Australian legal system.
In the event that cause is shown, it will remain necessary for the applicant to satisfy the unacceptable risk test.
In determining whether the applicant has shown cause, it is necessary to say something with respect to the allegations against him. I have already indicated that they are of some seriousness.
In short, it is alleged that the applicant possessed and used a device on a dedicated encrypted communications platform known as the Ghost ECC platform. The prosecution alleges that the applicant used a series of devices using the code name "Underworld" to communicate with other persons engaged in criminal activity for the purposes of the commission of the supply of cannabis and the matter charged as the attempt to supply the prohibited firearm. Based on those communications, the Crown alleges the applicant travelled interstate to Adelaide to source cannabis for the purposes of supply, that he received that cannabis from third parties which he then sold to the co-accused, those co-accused being persons using the same communications platform. As part of that process he arranged for the collection or delivery of the cannabis he agreed to sell to the co-accused and, in consequence, had control of large amounts of cash as a result of those sales.
The statement of facts is lengthy, running to some 130 odd pages. Some of that material is not relevant on this bail application on the basis that it relates only to other persons using the platform in the context of separate criminal activities quite unconnected to the applicant. Other parts of the facts reveal conversations between persons, somewhat removed from the applicant. They are nonetheless relevant to show the nature of what was happening at a level below the applicant's alleged supply of cannabis to participants in the conspiracy, as well as the activities of persons that can be seen to have been, at least in some way, connected with the applicant.
In furtherance of the conspiracy to traffic cannabis, it is alleged that the applicant supplied some 4.5 kilograms of cannabis on 7 March 2024, a further 6.8 kilograms on 17 March 2024, 8.16 kilograms on 12 April 2024, 9.07 kilograms on 6 May 2024, and 3.6 kilograms on 11 May 2024.
It is apparent from the statement of facts that the persons to whom the applicant was supplying drugs were in turn supplying amounts in excess of what was received from the applicant, with the obvious inference being that they were receiving amounts from other sources in addition to that received from the applicant.
In addition to the cannabis actually supplied, the applicant's premises were searched on 19 July 2024, on which occasion 10 kilograms of cannabis were found. The total amount involved, based upon the actual supplies and the further 10 kilograms which can be inferred to have been in the applicant's possession for the purposes of supply, is some 42 kilograms.
Also found on the execution of the search warrant on 19 July 2024 was an amount of $90,000 in cash, providing evidence, if any were needed, that the activity was one involving significant receipts of cash. I should note that the messages also attest to that fact.
The case against the applicant is, as I have said, based upon the communications on the dedicated encrypted device or devices. The facts set out the basis on which a series of handsets using the code name "Underworld" can be attributed to the applicant. On my assessment, there appears to be an extremely strong case that the applicant was the user of the devices by which the person calling themselves "Underworld" communicated with other members of the conspiracy.
In turn, having regard to the communications themselves, there is, subject to one matter to which I will return, in my view a very strong case with respect to the applicant's involvement in a conspiracy to traffic a marketable quantity of cannabis. That is an offence with a maximum penalty of 25 years imprisonment.
I note that the amount involved is not greatly over the marketable quantity of 25 kilograms and is certainly well under the commercial quantity of 125 kilograms. That said, the applicant's role in the activity would make this a very serious example of such an offence.
Sequence 2 is the offence of attempting to supply a prohibited firearm. The facts in relation to that matter are set out in a single paragraph of the prosecution statement of facts.
It is alleged that sometime on 17 March 2024 the applicant sent a photograph of a firearm to a person who was a senior member of the syndicate purchasing cannabis from the applicant. It is not disputed, on this application at least, that the item depicted in the photograph is a prohibited firearm. On my own limited knowledge of such matters, it appears to be a firearm to which a magazine can be attached with the result that it is presumably capable of firing multiple rounds of ammunition. From the photograph, it appears to be an item of an extremely concerning nature. The photograph was accompanied by a message that simply read "28K", which I take to be a reference to $28,000.
The person to whom the message was sent responded, "That looks sick bro but j wouldn't know what to do with it, lol", with an emoji. The applicant is alleged to have responded "Hahah" and then, in a separate message, "Detaches in to a 9mm" to which the other person responded "No way".
There is no evidence of any further communication between the applicant and the person with whom he was communicating with respect to the weapon. Nor is there any evidence of any further communication by the applicant with respect to the item generally.
It might also be observed at this point that the item was not found in the course of the search which took place on 19 July 2024 at the applicant's premises, nor when the applicant was arrested on 17 September 2024. I note that on that latter date the applicant's premises were searched as well as premises said to be associated with him in Liverpool.
The applicant submitted that the case in relation to the firearm was a weak one, in particular making a submission that the extent of the applicant's activity is insufficient to go so far as an attempt to supply the firearm.
The difficulty for the applicant on my assessment is that the charge is one which appears likely to be amended to a substantive charge of supply a firearm based on the extended definition of supply in the legislation, which includes offer for supply.
The applicant made submissions as to whether what took place in the exchange might amount to an offer to supply. Despite those submissions, it is my view that the inference that would be drawn and potentially to the criminal standard is that the applicant was offering the firearm for supply.
Again, subject to an issue to which I will return, on my assessment the case against the applicant with respect to sequence 2 is a strong one. That finding is of some significance having regard to the show cause test which applies to that charge.
The third charge, the possession of the dedicated encrypted communication device, is in one sense, the least serious of the charges, carrying a maximum penalty of imprisonment for a period of 3 years. It is nonetheless a charge which largely informs the nature of the other offences. The case against the applicant as to possession of such a device is, on my assessment, a strong one.
The applicant submits cause has been shown on a number of bases. In the applicant's submission these matters, viewed in combination, would satisfy me that the applicant's detention is not justified. The applicant relies on, (1), the asserted issues with respect to the strength of the case or cases against him; (2), the extent of the likely delay in resolution of the matters; (3), the circumstances of the applicant's custody; (4), the applicant's family circumstances and, (5), the proposed conditions of bail.
With respect to the first of those matters, the strength of the case, I have already indicated my view that, subject to the one matter, the case against the applicant appears to be extremely strong. That one issue relates to a potential question as to the admissibility of the messages obtained from the communications device.
The device and the means by which the messages were obtained by the authorities are similar but not identical to the situation which pertains with respect to the AN0M devices. The charges and resulting proceedings with respect to cases based on the AN0M devices are well-known. I will not delve into the details of those matters here, suffice to say there has been challenge taken in those cases with respect to the admissibility of the material obtained. The challenge is most advanced in South Australia, where the issue has been determined adversely to the accused at first instance and, relatively recently, by the South Australian Court of Appeal. I understand that an application for special leave has been made.
Whilst an application for special leave has been made, given the legislation concerned is Commonwealth legislation, and in the absence of any suggestion that the South Australian Court of Appeal is plainly wrong, I am of the view that it is appropriate to proceed on the basis that the South Australian decision is correct and will, as a result, be followed here. That, however, is not the end of the matter. Whilst the legal impact of the decision might be regarded as binding, at least until such time as the High Court decides otherwise or it is determined to be plainly wrong, the present case is argued to be potentially distinguishable on the facts. That is put on two bases: firstly, that the New South Wales AN0M cases may be distinguishable from the South Australian case. That is put on the basis of evidence called in the AN0M cases at committal in New South Wales. As I understand it, expert evidence was given explaining with some precision the process by which the evidence was obtained. That factual material, I would accept, has the potential at least, to result in a different outcome to the AN0M cases in New South Wales. That said, I have no detail as to the nature of the distinction to be made and am left in a position where I have before me nothing more than a possibility that the New South Wales cases might be distinguished.
The second basis upon which the South Australian matter is sought to be distinguished is that the platform used here was not precisely the same as the AN0M platform, with the consequent result that the process of obtaining the messages was not exactly the same. Thus, there is at least the potential that the matters which led the Court in South Australia to find that the action of the authorities did not contravene the Telecommunications (Interception and Access) Act 1979 (Cth) would not apply here. Again, I have no more than the suggestion of this possibility.
It is difficult, in those circumstances, to put significant weight on those matters as demonstrating a weakness in the Crown case. I would, as a result, assess the case against the applicant with respect to all three charges as at least strong and probably very strong.
That said, the issue in relation to admissibility has a further relevance, with respect to the applicant's second basis on which cause is said to be shown, that is the delay or potential delay in this matter. I would accept that issues surrounding the admissibility both in the AN0M matter and, perhaps more particularly, in this matter with respect to whether it can be distinguished from the AN0M cases, is likely to impact the time that will elapse before the applicant is tried.
In the event that there is an application for a committal, should that process be contested, there will be delays; even if not contested, there will be delays in the Local Court while that evidence is called. In the event that that process does not take place at committal, it seems reasonably likely that it will take place prior to any trial.
Additionally, it would appear likely that the applicant will be tried with a number of co-offenders, adding to the complexity of any trial, and, almost inevitably, leading to some delay.
It is difficult to come to a definite view as to when any trial might take place but, being realistic, it would seem in a matter like this it would not be during the course of next year.
That delay or potential delay is also to be seen in the context of the applicant's third point, his conditions of custody. There is evidence before me, the detail of which I will not traverse, to suggest that the applicant has suffered particular difficulties in custody beyond what might ordinarily be expected. That is on top of the fact that this is the applicant's first experience of custody.
The fourth matter relied on to show cause is the applicant's family circumstances. In that regard, I note the applicant is married. He has two children, aged one and three. His wife is pregnant with a third child due in January 2025. Refusal of bail would have the inevitable result that the applicant will not be present at the birth of his third child. That is a matter of significant concern not just to the applicant but also to his wife and to his newborn child. The absence of opportunity for a parent to bond with a newborn child is, in my assessment, a matter entitled to some weight. Of course, it is to be viewed in the context of all matters and it may be that other matters dictate that bail is to be refused. Nonetheless, it is a matter I regard as being of great significance.
The final matter relied on by the applicant are the proposed conditions of bail. It can be said briefly that what is proposed is strict, including electronic monitoring in conjunction with a form of home detention which would have the applicant either at home or at work and all times in the company of one of three nominated persons, none of whom have been suggested give rise to any concern.
Those matters together are, in my view, of some significance. They are to be weighed against what I have assessed as being a strong Crown case. Not only that, it is a strong Crown case with respect to serious offending. In particular, I have real concerns as a result of the allegation that the applicant supplied the firearm I have described. Adding to that concern is the fact that at the search of the applicant's premises on his arrest, police located a sawn-off barrel identified as having come from a firearm. Additionally, at the search of premises in Liverpool associated with the applicant, in particular with his supply of cannabis, police found what is described as a large bucket containing various calibres of ammunition and two ballistic vests.
The potential destruction that can result from firearms in the hands of criminals need not be stated. It is understandable that the legislature has seen fit to apply a show cause requirement to an offence of this nature.
As regards the firearms offence itself, I note that there is no evidence as to where the photograph was taken. There would appear to be no evidence that it was ever actually in the applicant's possession. At best it would appear to be a situation in which the applicant has somehow been made aware of the availability of the firearm and, presumably with a view to making some profit on the sale, has offered it to the recipient of the messages.
There was, however, no attempt to ask the recipient of the messages to make any further enquiries as to who might wish to purchase the item or evidence to connect the applicant with the firearm beyond the short exchange of messages to which I have referred. That exchange was on 17 March 2024. The applicant was subject to surveillance until his arrest in September 2024, including the search in July 2024. During that time there is no evidence of involvement with firearms of the type depicted in the photograph. Against that, of course, there is the fact that he appears to have been in possession of the barrel of a firearm in September and in possession of items of ammunition at the premises in Liverpool.
Those latter matters raise general concern with respect to the potential connection with firearms. Nonetheless, the evidence would appear to suggest the applicant's connection to the particular firearm in respect of which he is charged was somewhat passing.
Ultimately while there are concerns in this case, primarily concerns with respect to dealing in firearms, I am of the view that despite those concerns, cause has been shown. In coming to that view it seems to me that despite the applicant's connection or apparent connection with firearms, the matters to which I have referred together with the conditions which I intend to impose will go a significant way to allaying such a concern. In short, having regard to the various matters relied on by the applicant, in the context of the case as a whole I am satisfied that cause has been shown.
It remains to apply the unacceptable risk test. That is to say, pursuant to s 19 of the Act if I am satisfied on the basis of an assessment of bail concerns the applicant presents an unacceptable risk, then bail must be refused. Conversely, if there are no unacceptable risks, an order should be made which would allow the applicant's release. The bail concerns are those matters set out in s 17 of the Act.
The primary concern in the present matter is the risk that the applicant will commit a serious offence or otherwise endanger the safety of the victims, individuals or the community. That risk is certainly present, as I have already indicated.
I also have regard to the applicant's criminal history. Whilst the applicant does have convictions, including for the supply of a prohibited drug, the history could not be described as lengthy. The supply matter is associated with a charge of cultivating cannabis and resulted in a suspended sentence of 10 months imposed in the Local Court. That would appear to relate to a matter of nothing like the seriousness of what is presently alleged.
As I have already indicated, the applicant has not previously been sentenced to imprisonment. Having regard to what I have said and the applicant's record, I am ultimately of the view that the risk is sufficiently mitigated so as not to be unacceptable.
Nor do I regard there to be an unacceptable risk of the applicant failing to appear. The conditions I intend to impose are sufficient to appropriately mitigate that risk.
Finally, I am not of the view that there is an unacceptable risk that the applicant will interfere with witnesses or evidence. As the case has been presented, in its current form, it relies on information already obtained by the authorities. There is a potential concern of the applicant engaging in conduct with respect to the firearm which has not been located. In that regard any such action on the part of the applicant would seem likely to create rather than destroy evidence.
Bail is granted subject to conditions.
[2]
Amendments
07 March 2025 - typographical error - Telecommunication (Interception and Access) Act 1979 (Cth) has been amended to Telecommunications (Interception and Access) Act 1979 (Cth)
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Decision last updated: 07 March 2025
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Lalee
Legislation Cited (5)
Telecommunication (Interception and Access) Act 1979(Cth)