Cornwell v R - [2010] NSWCCA 59

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Cornwell v R [2010] NSWCCA 59

HEARING DATE(S): 20-21 October 2008
30 June 2009

JUDGMENT DATE:
8 April 2010

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 237; Johnson J at 383

DECISION: 1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss that appeal.

CATCHWORDS: CRIMINAL LAW - appeal - construction by trial judge of evidence as an admission tendered against interests of the accused and version of facts - direction by trial judge related to the conspiracy - trial judge summing up directions - whether verdict of jury is unreasonable - whether trial judge erred in refusing to grant access to the information on oath by a Federal Agent - whether trial judge overstated applicant's role and involvement in the offence - whether applicant has a legitimate sense of grievance for sentence imposed - whether trial of the applicant miscarried due to non-disclosure or late disclosure of material relevant to defence - whether trial judge wrongly refused applicant access to undisclosed material

LEGISLATION CITED: Customs Act 1901 (Cth)
Evidence Act 1995
Judiciary Act 1903 (Cth)
Surveillances Devices Act 2004
Criminal Appeal Act,1912

CATEGORY: Principal judgment

CASES CITED: Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536
Burrell v The Queen [2008] HCA 34; [2008] 238 CLR 218
Cornwell v R [2006] NSWCCA 116; (2006) 160 A Crim R 243
Cornwell v R [2007] HCA 12; (2007) 231 CLR 260
DJL re Central Authority (2001) 201 CLR 226
Dominguez v R (1985) 63 ALR 181
Elliott v The Queen; Blessington v the Queen [2007] HCA 51; (2007) 234 CLR 38
Gipp v R [1998] HCA 21; (1998) 194 CLR 106
HML v R [2008] HCA 16; 235 CLR 334
Peacock v The King (1911) 13 CLR 619
R v Brown (Winston) [1998] AC 367
R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82
R v Duncan (1981) 73 Cr. App. R. 359
R v Haddad [2000] NSWCCA 351; (2000) 116 A Crim R 312
R v IK [2004] SASC 280; (2004) 89 SASR 406
R v Karageorge (1998) 103 A Crim R 157
R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478
R v Meher [2004] NSWCCA 355
R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454
R v Saleam [1999] NSWCCA 86
R v Schmahl [1965] VR 745
R v Spiteri [2004] NSWCCA 321
R v Veverka [1978] 1 NSWLR 478
R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454
Saleam v R (1989) 16 NSWLR 14
The Queen v Hiller [2007] HCA 13; [2007] CLR 618
Travel Compensation Fund v Blair [2002] NSWSC 1228
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wills v R (1985) 39 SASR 35; (1985) 16 A Crim R 247

PARTIES: Richard Bruce Cornwell (Appellant)
The Crown

FILE NUMBER(S): CCA 2005/5025

COUNSEL: T A Game SC/S J Buchen (Appellant)
P Roberts SC/K Deakin (Crown)

SOLICITORS: Ford Criminal Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2005/5025

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

2005/5025

McCLELLAN CJ at CL
SIMPSON J
JOHNSON J
THURSDAY 8 APRIL 2010

CORNWELL, Richard Bruce v R

JUDGMENT

: This appeal has been remitted to this Court by the High Court: Cornwell v R [2007] HCA 12; (2007) 231 CLR 260. The matter was originally considered by this Court in Cornwell v R [2006] NSWCCA 116; (2006) 160 A Crim R 243 where the Court upheld the first ground of appeal and ordered a new trial. The High Court, by majority, reversed that decision. The court also upheld a cross appeal in relation to ground 5, an unreasonable verdict ground. In the event, five grounds of appeal were, pursuant to orders made by the majority, remitted for consideration by this Court. The orders of the majority of the High Court were as follows:

2 The appellant now seeks to raise further grounds of appeal and applies for leave to appeal against his sentence. I shall discuss those matters at a later point of these reasons.

3 The appellant was charged with conspiring to import a commercial quantity of cocaine. He stood trial with a number of others. The jury could not agree with respect to the appellant and a second trial was held. This appeal is concerned with his conviction at the second trial at which he was again indicted with others.

4 The first ground of appeal related to the admissibility of the transcript of evidence given by the appellant at his first trial. The remaining 5 grounds of appeal are as follows:

2. The learned trial judge erred by referring to the appellant’s former evidence as (a) an admission tendered against the interests of the accused and (b) ‘a possible version of the facts’.

3. The learned trial judge erred by directing the jury that conversations involving the appellant could be used against him if the jury was satisfied on the balance of probabilities that the conversations related to the conspiracy.

4. The learned trial judge failed to adequately sum up the defence case.

5. The verdict is unreasonable and cannot be supported by the evidence.

6. The learned trial judge erred in refusing to grant the appellant access to the information on oath deposed by Federal Agent Rebecca Welsh on 27 February 2001.

5 On the hearing of the remitted appeal the appellant sought to raise further grounds. They are:

7. Leave to appeal against sentence on the ground that the learned sentencing judge overstated the applicant’s role and involvement in the offence.

8. Leave to appeal the sentence imposed on the basis that the applicant has a legitimate sense of grievance when the sentence imposed upon him is compared with the sentence imposed upon Juan Diez Orozco and John Lawrence.

9. The trial of the appellant miscarried due to the non-disclosure or late disclosure of material relevant to his defence.

10. The learned trial judge erred when he refused to grant the appellant access to undisclosed material concerning the Bennett brothers and Lawrence.

The Crown case

6 The appellant was convicted with James Herbert Bolus and others of conspiring to import into Australia a commercial quantity of cocaine (120 kilograms), an offence against s 233B(1)(cb) of the Customs Act 1901 (Cth). The Crown alleged that between about 1 January 2001 and 6 August 2001 at Sydney and elsewhere, the appellant conspired with Bolus, David Paul Dicecco, Vincent Francis, David George Norris, Jaime Giraldo Rincon, Juan Guillermo Diez Orozco, John (Jack) Lawrence, Govert van Bommel, Wouter Bastiaan van Bommel and others to import the cocaine into Australia.

7 In my previous judgment I outlined in general terms the basis of the conspiracy alleged by the Crown:

“8 The conspiracy with which the appellant was charged involved an alleged agreement between the appellant and John Lawrence, as the principals, and a number of other persons to import 120 kilograms of cocaine from Columbia. The Crown alleges that the drug importation venture involved cooperation between two groups. One group was operating in South America and was to obtain the drugs and conceal them in a ship which would transport them into Australian waters. The Australian group would arrange to pick up the drugs and bring them into Australia.

9 An eleven metre sailing vessel named the ‘Flaning’ was utilised for the enterprise. On board was a Boston whaler dingy with the cocaine concealed within its structure.

10 The person liaising between the Columbian group and the Australian group was alleged to be Juan Guillermo Diez Orozco (‘Diez’), an Australian citizen of Columbian origin. He became involved in making the arrangements and liaising with the Australian end of the venture. He also played a significant role as an interpreter.

11 It is alleged that the Australian arm of the venture was organised by the appellant and his associate Lawrence. From mid 2000 Lawrence had been under surveillance by the National Crime Authority as he was suspected of involvement in illicit drug activity. It was during this surveillance that the National Crime Authority learned of the proposed importation.

12 In early 2001, the appellant commenced looking for a boat that was capable of effecting a rendezvous off the Australian coast with the boat carrying the cocaine from South America. This was done and arrangements were made to use the premises of a friend of Lawrence, David Norris at Telegraph Point near Port Macquarie as the base for the drug retrieval operation. Lawrence also enlisted James Bolus … to assist in the acquisition of a motor vehicle suitable to tow the Zodiac craft which they had purchased and to organise payment for that craft. The Crown alleges that Bolus’ primary object in relation to these matters was to ensure that there was no discernible association between Lawrence, the boat and the vehicle. Bolus allegedly became Lawrence’s confidante.

13 A four-wheel drive vehicle was also purchased and registered in the name of one of the other alleged conspirators.

14 On 8 April 2001 the Flaning departed from Panama with the cocaine in the dinghy on board. In early May, Lawrence, McDougall (an alleged conspirator) and another person by the name of Dominic Brokenshire (‘Brokenshire’ or ‘Brock’) travelled to Melbourne to collect the boat known as a Zodiac to use in the enterprise. The funds for the acquisition of the boat were paid by way of cash into an account of the broker by Bolus, using the false name of Mathew Benns.

15 The boat was taken to Sydney where it was stored and was later collected by Lawrence, McDougall and Brokenshire and was towed to Telegraph Point.

16 The alleged conspirators ultimately determined an appropriate rendezvous point with the drugs at a position 120 miles off Port Macquarie. On 24 May 2001 Lawrence, Diez and another member of the operation, Wouter, travelled to Telegraph Point to prepare the Zodiac for the enterprise. They took it for a test-run on 19 June 2001 at which time the National Crime Authority had been continuing its monitoring activities. Apparently the National Crime Authority wrongly believed that the drugs had been collected and they arrested Wouter, Norris, Lawrence and another person, Gladman after the Zodiac had returned that evening. When he was questioned, Gladman agreed to assist the National Crime Authority and not divulge that fact to the others involved in the venture. The other [three] who had been arrested were all released.

17 Following their release Lawrence, Wouter, Norris and Gladman discussed the fact that the operation had been compromised. Nevertheless a decision was made that the venture should continue and by this time the Flaning was well on its way to Australia. The plan was changed and it was decided to locate a suitable shallow part of the sea off the Australian coast where the drugs could be deposited and later retrieved.

18 Eventually the Kelso Bank, which is about 350 miles off the Queensland coast, was chosen as the site to deposit the drugs. The cocaine was packed into cylinders and tied down with chains and marine batteries before being put into the sea. The Flaning, minus the drugs, arrived in Southport, Queensland on 7 July 2001. Arrangements were made for a number of persons living in the Philippines, including an Australian named Bill Percy, to become involved in the venture to retrieve the drugs. However, the National Crime Authority’s investigations proved successful and, ultimately, Wouter was arrested at Sydney airport as he was about to leave for South America.

19 On 6 August 2001 Wouter, members of Australian Customs, the National Crime Authority and Queensland police went by boat to the drug deposit site at Kelso Bank. Scuba divers located chains, wire and marine batteries but the containers with the drugs were not found.

The Crown case against the appellant

8 The Crown alleged that the appellant was a prime mover of the Australian arm of the venture. It was alleged that he reached agreement with Diez for the collection, receipt and distribution of the cocaine which was to be imported. The Crown alleged that in order to minimise his chances of detection and arrest, the appellant brought Lawrence into the conspiracy to liaise with Diez and to organise the shipment of the cocaine onto Australian shores and thence to Sydney. The appellant was to share (equally) the profits from the sale of the cocaine with Lawrence.

9 A listening device was installed at the appellant’s residence on 7 March 2001 as part of the National Crime Authority’s surveillance of Lawrence. Listening device recordings of conversations between the appellant and Diez, and the appellant and Lawrence, which took place principally between 9 March 2001 and 20 April 2001, were tendered by the Crown. The Crown alleged that these recordings included conversations in which arrangements were made for the importation of the cocaine.

10 The Crown alleged that it was apparent from these recordings that the appellant had been involved in the distribution of cocaine before the listening device was installed. This cocaine was alleged to have been obtained from Diez, with the appellant providing payment once the drugs had been distributed. The physical distribution of the drugs was carried out by Lawrence, who collected the proceeds of the distributed drugs and delivered them to the appellant. The recordings appeared to show that prior to March 2001, Diez and Lawrence had not met.

11 The Crown alleged that the appellant had engaged a boat broker, named Mark Rowell, to locate a suitable vessel for transporting the cocaine to the Australian mainland. It was said that the appellant provided funds for this purchase in addition to funding for communication equipment and a vehicle to tow the vessel. Billing records tendered at the trial disclosed a number of telephone calls from the appellant to Mark Rowell, who was involved in a boat dealership, between 21 January 2001 and 10 February 2001.

12 The appellant gave evidence in the first trial, following the grant to him of a certificate pursuant to s 128 of the Evidence Act 1995. At the second trial the Crown sought to tender the transcript of the appellant’s evidence but confined to the cross-examination. This was opposed but the trial judge ruled that he would admit the evidence. Trial counsel for the appellant then tendered the transcript of the whole of the evidence given by the appellant, which was admitted by the trial judge. The appellant did not give evidence at the second trial. However the transcript of the appellant’s evidence from the first trial was read to the jury.

The defence case

13 In his evidence at the first trial, the appellant agreed that his voice appeared in each of the relevant recordings. He admitted that from March 2001 he was engaged in distributing cocaine with Lawrence. He said that the recorded conversations concerned the distribution of cocaine. He claimed that although Diez and Lawrence may have been involved in importing cocaine, he never agreed to be part of any importation venture. He claimed that the importation in which Diez and Lawrence were involved was different in material respects from the importation the subject of the present charge. The appellant said that the former operation was being organised by South Africans rather than South Americans, and involved the importation of “125 [kilograms] over from some island, it was about three week’s boat trip away from Australia.” The defence case also alleged that the relationship between Lawrence, Diez and the appellant had deteriorated to such an extent that they had “frozen him out” from being involved in any importations. The appellant also denied that he had any contact with Mark Rowell concerning the acquisition of a vessel.

The listening device recordings

14 The recorded conversations all took place when the appellant was at his premises in Woolloomooloo between March and April 2001. I have set out below the relevant parts from the conversations and highlighted the portions of particular significance. The first conversation occurred on 9 March 2001 between the appellant and Diez, two days after the listening device had been installed. During the conversation the appellant was said to have been endeavouring to persuade Diez to involve his friend Lawrence (also known as “Josie”) in the proposed importation. The appellant is recorded as describing him as “one of the best men I have ever known in my life.” The Crown alleged that it was apparent that the appellant wanted to distance himself from the physical collection of the cocaine by involving Lawrence in the operation.

15 A further conversation between the appellant and Diez is recorded on the evening of 13 March 2001. Diez referred to an international telephone call he was expecting from “the boss”. The appellant is identified as M1 and Diez as M2.

“M1 Did the boss tell you himself?

M2 … yeah

M1 said …. they gonna call you this afternoon

M2 definitely they gonna call you

M1 tonight?

M2 yeah

…

M1 you’d think, you’d think the bloke, you know, over there he would ring straight away and say ring this number …

M2 it’s all depends if this boy is doing work or picking things or you know, they call me definitely but who knows maybe the guy is busy picking up things or I don’t know … You know I really don’t know why,

…

M2 my brother told me they could be … land already

M1 yeah but your brother not be your boss, he just

M2 … there was a call for him now

M1 hey?

M2 they told me they all wearing … my brother’s place

M1 oh yeah

M2 …yeah there was lot of noise …..

M1 ….. earlier today this afternoon?

M2 ah

M1 whenever you got a call

M2 yeah he was there at, tell me what time it was … eight thirty

M1 What time did you get a call?

M2 twelve thirty

M1 twelve thirty. So you add eight hours and take off a day, so it was eight thirty in the evening

…

M2 maybe this guy waiting for night time you know, is better always be with night time, the daytime what do you reckon ?

M1 ….. … mate

M2 Huh?

M1 I don’t know

M2 no but it’s true you, it’s funny because in America … night time ….

M1 reckon?

Inaudible conversation

M2 not here but in America

M1 mm”.

16 The Crown alleged that Diez travelled overseas on a trip in order to meet with the suppliers of the cocaine, or those who financed the supply. The pair agreed that contact with Diez whilst he was overseas would occur through public telephone booths. The conversation was in these terms:

“M2 (Diez) Buddy I tell you something when I go by …. I gonna leave you my phone, this one, this one I got, this one here, I gonna leave it with you here

M2 oh no, … we get a new one okay …. What I doing okay, we get a specific time that I can call you, hundred percent

M1 yeah

M2 the best time, then it’s bingo, that phone ring, you know its me

M1 yeah

M2 so don’t answer it know what you have to do, go and ring this from any public phone call my other one there

M1 yeah you just say, when you ring no

M2 …hundred percent

M1 no you do you ring

M2 and you know it’s me you ring me outside you no have to answer

M1 yeah that’s right

M2 you no have to answer

M1 you know I’ll call you in the next ten fifteen minutes

M2 you know that it’s me

M1 yeah”.

17 The appellant gave evidence at his first trial with respect to each recording. In respect of this particular recording, he said that at that stage he did not have any arrangement with Diez as to the importation of a large quantity of cocaine. He also gave evidence as to their suspicion that the police were monitoring Lawrence, and Diez’ request that the appellant act as an intermediary between them. The appellant said:

“When [Diez] spoke he said he introduced Josie (Jack Lawrence) to his friends and he said that they had a talk, because of what was discussed at Harry’s about how serious the investigation was on Mr Lawrence and he was, Mr Diez was worried he didn’t want Mr Lawrence going down to his place with the money and he didn’t like the idea of going to Mr Lawrence’s to collect the money. So between the two of them they said he’d asked me if I would collect all the money and parcel it all and count it and check it and take it down to him, or could he come to my place and pick it up and I said: What’s in it for me?

… And [Diez] said that Jack said he would go halves with me in the profits because, you know, because it was too dangerous for him doing it any other way and because he had met Mr Diez through me being at my place a couple of days earlier. That’s how they bumped – if it hadn’t been for me, they wouldn’t have bumped into each other.”

18 A recorded conversation on 24 March 2001 includes the appellant and Diez discussing the distribution of cocaine and difficulties because the market was oversupplied. Diez claimed that he was receiving pressure about non-payment of the drugs previously supplied from South America. The recorded conversation included the following statements:

“M1 (appellant) I’ve got fifty-six here.

M2 (Diez) how much is there?

M1 fifty six

M2 … … it’s no moving very fast is it?

M1 its everywhere mate

M2 yeah, um what do you want to do about this ?

M1 What do you mean?

M2 yeah, I mean that you want I let person to move it ..

M1 What?

M2 you want somebody else to move the other half ?

M1 They won’t move it

M2 huh?

M1 they wont move it any different to us

M2 no

M1 not at the moment, if we, if we did, if we did that, all we gonna do is we gunna not have enough to go, we want to carry

M2 I, this guy told me he want fifty thousand dollar already to go. He told me last time I need fifty thousand dollars to do that job, to buy whatever, to buy you remember there was gonna asking the … guy

M1 Yeah

M2 … why you ask me, that I want fifty thousand dollars so don’t come in and tell me there is no one good enough to do the job, that’s what you told me, isn’t it?

M1 Yeah,

M2 … this friend of you Josie, to ask me for fifty thousand dollar, that was good enough to do the job

M1 yeah if we want it yeah

M2 yeah am I right or no? Now we … told me it was gonna be enough to do the job isn’t it?

M1 if we have five?

M2 yeah

M1 yeah that’s right

M2 yeah so, so

M1 Yeah, so what are you talking about?

M2 he is no moving fast enough buddy, and I have lot pressure from the other side, you know what I asking you, nicely man … maybe the other party can move the other half you know, so these people don’t putting too much pressure

M1 mate it wont, it wont make any difference mate

M2 yeah

M1 It wont go any quicker than what its going

M2 No?

M1 No.

…

M2 okay look, I no want to argue. I no want anything to argue okay. I no here to argue or anything, I got a lot of pressure from there

M1 I know that cause you’re …

M2 ….. on me before … best when I do this and I’m alright.

M1 Yeah.

Now tell me how you gonna justify when the big one is coming here buddy what are we going to do with that, with the big one?

M1 The only reason this is going slow mate is cause its fuckin where

M2 Yeah I know. I know

M1 Every fucking where

M2 yeah I know about … that was always the same thing. That’s what I … doing again, it’s no good because its everywhere so … all the problem is talk, it’s everywhere, it’s no good you know like I tell you yesterday said to me before how then I will need the other … how we make … if we cant do anything?

M1 because we expect its gonna, for this we expecting this week it should pick up a fair bit. What do you want to do? You want lie down and cry about it or something

M2 I no wanna cry buddy

M1 You know, fucking, well what’s up with you?

M2 I didn’t know. It’s nothing wrong with me buddy. I dealing with very, very, very, heavy people there, it’s my family there … putting pressure me …..

M1 Well then, everythings, everything will go along smoothly and it’ll all get done. I can’t go out there and fucking start snorting it

No, no, no, no, definitely not, of course not. Before they was asking me what is the Dutchman, what is the name, what is the name and … just about to get here you know

Of course we do. You know why you know why the the job, you know the job we’re doing what I told you it was well as I fucking know mate, about fuckin getting fifty, we’re not using the proper fucking tools, we’re just using tools enough to do the job.

hundred … twenty five or whatever

Why?

oh it’s just

you’re carrying on like a fucking pussy.

No, is no like a pussy buddy, if you don’t believe me the pressure go there, they already send the people there to collect the freight to collect the documents …

the hundred and twenty one, the big one right,

M2 I don’t have it any more I don’t want to give it to anybody, I don’t need that

If you say, if you say the, the hundred and twenty five one right, If you concerned about that, give half of it away to someone else and you save such a fuckin great …

Buddy I don’t want to save that, ….. I wish they can turn around and go back home believe me, that’s what I want now

…

M1 You want to get to, speak to Josie? [Lawrence]

M2 Yeah, I really like to

M1 Alright. Well, I’ll see if I can get him.

M2 yeah

M1 Come on we’ll have to go to a phone booth

M2 yeah

M1 to call him.”

19 The appellant said that this conversation was “quite a heated exchange between us and it was heated for the first time. We’ve always been friendly prior to this. It was as of this day that I started to dislike him and I think he disliked me. I didn’t like him, he didn’t like me, it was as simple as that. I didn’t trust him at all after this.” He also said that Diez “was under this enormous pressure from these people, these South Africans that are putting this pressure on him. He told me later they threatened to kill his family. I have no doubt he was under this enormous pressure. He said how heavy they were, very heavy people.” It was the Crown case that the drug operation was based in South America. In cross-examination the Crown suggested to the appellant that the South Africans were an invention or smoke screen, which the appellant denied.

20 The appellant was asked to comment on Diez’s statement in the listening device recording that “how you gonna justify when the big one is coming here buddy what are we going to do with that, with the big one?” The appellant said that he thought it was “a reference to the 125 [kilograms] that was on the island… That was supposed to come across. It was a three week boat trip.” However he said that there was no existing arrangement with Diez to be part of an importing venture at that time. He said that at the time he was angry with Diez. He said, “I mean this whole conversation was an angry and aggressive exchange between the two of us, you know? I mean I didn’t – I didn’t ask for this and there was $56,000. All I was doing was collecting this money and giving it to him. I didn’t want anyone getting aggressive with me for any reason.”

21 The appellant was also asked about the reference to “the Dutchman” which is found in one of the recordings. He gave evidence that at that time, he thought he was aware of the Dutchman or an old Dutchman, “but I just can’t say when that was…” He said that Diez had first told him about the Dutchman, and he believed “it had something to do with this 125.”

22 The appellant gave evidence that following this conversation, Diez, Lawrence and the appellant met at a café in Darlinghurst. Diez was again concerned that the cocaine which they already had was not being sold quickly enough and suggested that he could use a “Russian fellow” to help sell the drugs. Lawrence and the appellant said, “Give us a chance to get this money so we can get an earning. We’ve only just put it around. We’re expecting the money to come in.” The appellant said that Diez agreed that he would ask the “Russian man” to hold the drugs for a time. Following this the appellant said he told Diez, “I don’t want you coming around to my place any more. When the money comes I’ll bring it to you.” The appellant gave evidence that he “did not like the conversation that we had and I didn’t like the tension and that between us.” He gave evidence that Diez had not visited his premises at Brougham Street since that day. However and of particular significance, he said in cross-examination that he continued to see Diez regularly, to take the proceeds from the sale of drugs to him.

23 The first of the recorded conversations between the appellant and Lawrence occurred on 4 April 2001. During the conversation, the appellant complained to Lawrence that he suspected Diez was supplying cocaine to other distributors and undercutting their market. This he claimed was further evidence of the deteriorating relationship between them tending to rebut the Crown case that they were in a conspiracy together. The appellant also referred to going to the “North Shore” to see “Mark”. The Crown alleged this was a reference to visiting Mark Rowell to discuss the boat purchase. In the following recording of their conversation the appellant is identified as M1 and Lawrence as M2:

“M1 so last night I went down … … and this is what I told him, so you fuckin know. I said listen … … get out of here fuckin …… change my mind I said …… and all that shit right, I said listen here I said right I want you to hear this and hear it very clearly … fuckin … first of all I said did you give, what did you give to the Russian fella … and he said ... you been selling it for ninety haven’t you? he said yeah, I said so what you’ve done you’ve gone and dumped six on him, I said you haven’t really paid for it have you he said no I said well you told me you were selling them for cash he had the cash … we were getting cash I said I’ll tell you what you’ve fucking done you stupid cunt I said you nearly got me and Josie pinched yesterday, he said well how? I said I’ll tell you fuckin how you little miserable prick, I said we drove over to the fuckin north … palm beach, I’m in front, Josie’s behind me in the … … right I said for fucking cash …. oh sorry mate we just … … and I said and I’m telling you it came from a fucking Russian informant, he said how do you know that, I said alright I’ll tell you how I know, you go and ring that fucking cunt now, now and tell him to bring the six back and you’ll give him twenty thousand for his trouble…

M2 …

M1 I said oh mate I don’t know. He said I’m fucking telling you … I said you fuckin told me, I said you gave me your word that he was going to sit on that until I told you, is that not true?

M2 mm

M1 I said you said he was … sit on that ….. I said if you didn’t pay me in cash for it, I said its obvious what he’s done, he’s got it on fuckin credit and all he’s done now he’s pinching our customers from the same people …… he told us, I said that’s all you’ve done. So you’ve fucked us up the arse,

M2 mm

M1 I said we get no money out of it, you’ve taken every fuckin … it’s the same deal, it means we got a … hold em now, so I made him see a bit of sense but you think it was a good ploy wasn’t it?

M2 mm

M1 I fucking waited mate all fucking night down there, I didn’t get in till nine thirty and then Mark’s been ….. he said I’m sick I said you’ll be fucking sick if you do this fucking shit again, I said Josie’s going off his tree, I said what do you reckon happened on the way back … … I said we were driving back … Josie’s behind me, breathlyser fuckin random breath test I said I sped in and nearly ran over the cunt with the fuckin sign and Josie goes … I said … they put a thing over my wheel of my car …… fuck me dead he said oh I don’t know what to say he said I …… I said listen mate use ya fucking head will ya I said why establish a market when you haven’t gotta establish in the cross, right. I said if you go and give it to him I said there’s six we owe no money on, right I said really all you’ve really fuckin done is take fuckin ten thousand each off … fuckin pricks … I said can’t you see that, are you that fucking stupid.

…

M2 we give him ten … fifteen … didn’t he say he sold ten though … so that’s didn’t he say he sold ten?

M1 yeah he said that but I don’t believe it … you see mate these cunts panic all the time money, money, money give me fuckin money you know what I’m saying so … fucking idiot his is. I said this would have all been finished if it fuckin wasn’t … I reckon and we all would have been …… and because you wanted to dump … we make no fuckin money right … what …… those cunts are running around saying oh there’s plenty we got plenty. I said what are we doing this for nothing you fucking useless little prick he said oh I’ll see Josie tomorrow I’ll talk to him I’ll explain, I said listen mate don’t … Josie … that’s how fucking stupid you are

M2 well I just wanted to see him”.

“M1 (appellant) … I said you told me he was going to sit on it right remember? I said to him, I said and he’s gunna pay you cash, I said let me tell you cause I know more than you I said and didn’t pay you cash did he? ….. He said no and I said well mate you’ve given him credit for the same ….. I said well let me tell you this …. Josie … the story ….. I said let me tell you we had two keys signed for two twenty … two ten … we had two fuckin keys sold for two ten … and some cunt … the night before ….. night … and sold it for …… and he said how do you know that ….. I said cunt I said I can fuckin prove it you fucking go and ring the cunt now and tell him you want em back, you need it back and you’ll give him twenty thousand for his trouble because … get nothing and you nearly got us pinched so ….. now fucking give him a ring ….. he’s selling it, undercutting us ….. I said they’re are creating a market here for this when it comes, right.”

24 The appellant said that he had fabricated the story he related to Lawrence during the recorded conversation. He said that he had done this because he was trying to “let him think that was the only reason we missed out on that sale was because of this Russian running around and undercutting us on price and stealing the customers.” He further said that he had lied to Diez about driving to the North Shore and the near arrest

“because of the fact that he had given this Russian this product and the Russian said, the Russian was going to sit on it and do nothing with it and give us a chance to get a bit of money and this Russian never sat on it, not for one night, so I just tried to make him feel bad about the situation because he stopped us from earning.”

25 The appellant and Lawrence also discussed boat prices. The conversation was in these terms:

no, no. Anyway I’ve been over today, I went over the fuckin North Shore to see Mark right, I’ve been over there. …… tell me when they’re getting the fucking thing … and try fuckin and tell the bloke by next week we should be able to fuckin get it right so … he’s gunna ring him and try and get it right right,

M2 (Lawrence) mm

its forty five right right without the engines … want to buy a couple of engines …… anyway now let me tell you Mark said to me, he said tell him …………he said mate he said if you like he said I’ll drive into town tomorrow morning early right he said … ……….

Music starts in background conversation unclear

… he said come in give you a ring … I rang up …… that’s what the … said to me … … he said look …… Forty eight ... forty seven forty seven right …… right … plus

… see we’ve got all the equipment ………”

26 The appellant said in evidence that “Mark” was a reference to his friend Mark Johnson, who he had known for about 23 years. He was later asked whether as at 4 April 2001 he had a fixed view about whether he would have access to the 125 kilograms of cocaine the subject of the importation. The appellant replied, “I was a bit sceptical about it. I wouldn’t have made an agreement with Mr Diez to share a pizza at that time.”

27 On 8 April 2001 the Flaning departed Panama with 120 kilograms of cocaine on board. The appellant gave evidence that on that day he met with Lawrence to collect the proceeds from the drugs Lawrence had sold. He said that Lawrence had told him that he had met with some South Africans the night before and they had “told him about a job that was coming up that might be of interest, and if he had a boat that had a 300 mile range.” The appellant was asked the following:

28 When cross-examined the appellant further explained that Lawrence had told him “that it was on a need to know basis so he wouldn’t be telling me anything, and they are partners with the old Dutch seaman who was due here in a week or so from a point in time and that he would have the contract for this job.”

29 The appellant gave evidence that later that day he confronted Diez about the job he had heard Lawrence discussing. Diez said that he knew nothing about it. The appellant said, “We argued a little bit because we couldn’t talk too much, you know, it was always a game of trying to get something out of him and I just said, ‘Where’s the boat coming from?’ And he said, ‘It’s coming from the islands,’ and after that I, shortly after that I left, I said, ‘Oh, I’ll see you later.’” The appellant was further asked:

30 The appellant gave evidence that he met with Lawrence later that evening. The appellant said that he told Lawrence, “if you’re going to do such a job or if you’re negotiating for such a job or if you got a suitable boat to do such a job, I said you wouldn’t want to be doing that for under one and a half to two million dollars at least and, not only that, you couldn’t hand over the cargo or you won’t get paid off these people.” Lawrence apparently called the appellant “a smart arse.”

31 The appellant gave evidence that at that time he was not aware of any plans for handling the drugs once they arrived in Australia. He said, “I mean this was just [a] spontaneous, speculative conversation about all those possible things. At that time he couldn’t, he didn’t have the boat even to do the job. So, it was just talking about it and that’s all and I just was trying to get it through his head because I knew he had this idea in his own head, about going out and picking a couple of blokes up on this vessel and only because he talked about these passports or something that they wanted him to get hold of or ask him about. I thought it was absurd myself. That’s what I thought… I didn’t want him to get used up. I mean we are different people entirely.”

32 The appellant said that the “old Dutchman was the bloke in charge … the one with the contract”, whom Lawrence and the appellant would need to negotiate with if they wanted to be involved in the importation. He said that Lawrence had told him if they didn’t reach a successful negotiation with the Dutchman, the job would go to other people. He said that although he attempted to determine more details about the proposed importation from Diez, “Our conversation didn’t last very long because there was too much tension and animosity between us.”

33 The following day a conversation was recorded between the appellant and Lawrence. Lawrence complained that he was the one “in the fucking firing line all the time.” He referred to his physical involvement in the distribution of the cocaine as exposing him to the risk of arrest. The appellant responded that “if it’s gonna be so much pressure then and you can’t cope mate you’re better off fucking not doing it…” When pressed by Lawrence again that “What else do you do?… You, You haven’t anything to handle”, the appellant responded “Well I handle everything”, “I’ve got all the buyers… I got the gear for us.” The conversation continued in these terms:

“M1 (appellant) But you can’t be fucking blowing up everyday it’s ridiculous

M2 (Lawrence) Well I can’t eh I can’t be doing everything, but if you cant handle fucking him

M1 I’m handling him, but I told you he’s ready to fucking fold over this cunt, I’m telling you he’s no, he’s a weak cunt

M2 oh fuck

M1 You’ve seen it, he’s a cry baby

M2 Fucking cry baby, I’m sick of fucking running fucking back and forth

M1 Well all right if we lose the job I won’t give a fuck about it, fucks up please yourself buddy.”

34 The appellant then said to Lawrence, “You don’t want to talk or discuss anything and we’re supposed to be fuckin partners.” Lawrence replied, “But you want me to do everything.”

35 The appellant said that by this stage he and Diez were not on good speaking terms, and Lawrence was required to act as an intermediary between them. The appellant said “Well, I mean, Mr Lawrence was doing everything. He was running around with it, moving it and selling it, just bringing me over the money. And if you’re under so much pressure – and I could understand. He’s under this major police investigation at the same time and it just seemed to me, I thought, well, don’t do it. I wasn’t going to do it, you know what I mean? Why explain it to me? I didn’t offer to do it.” The appellant was asked what he meant when he said, “I got the gear for us.” He answered, “I just simply meant, you know, through meeting, through Mr Diez having been at my place, that’s how they ran into each other. And through Mr Diez, the connection came to the cocaine and the South Africans. That’s all.” The appellant referred to his statement in the conversation that “Well all right if we lose the job I won’t give a fuck about it, fucks up please yourself buddy” as evidencing his intention not to be involved in the proposed importation.

36 The conversation also recorded what the Crown alleged was the two discussing the purchase of a “Discovery” vehicle to tow the boat and arrangements for the rendezvous with the Flaning. Lawrence referred to his friend Norris, who lived at Port Macquarie. The appellant said:

well I don’t think it will, it’s twenty two thousand … it’s a ninety seven model it’s a good fuckin car mate ….

… that’s fuckin it … soon as it’s started ……

you talking about….. that friend of yours that’s gotta fucking place up the river there …. you can shoot out from there and pick it up …

yeah …… but I’ve got to go up there and check that river out

yeah

I’m not fucking coming back in the middle of the fuckin night not knowing where to go

No

now I’ve got a bloke up there, I can get to do it, just check it out.”

37 The appellant gave evidence that this conversation was in general terms in anticipation of the negotiations with the “old Dutchman” when he arrived in Australia. However he denied that there was a definite plan between him and Lawrence at this stage. In cross-examination, the appellant said, “It was a conversation we were speculating, and we are just discussing in a general sense what the job might be. At this stage we didn’t know, no job had been put to us in any true sense, or any sense really for that matter and we had to wait until we met up with this old Dutchman because he was the one who had all the drugs, he had the contract, and he was the one – he was the one who this job would need to be negotiated with.”

38 On 12 April 2001 the appellant and Lawrence are recorded discussing the payment for the “tools”, being the purchase of the boat, firearms, vehicle and communication equipment. During the conversation the appellant referred to “the Dutchman”, alleged by the Crown to be Wouter van Bommel, and the two made accommodation arrangements for his stay. They are also recorded discussing possible methods of collecting the cocaine. The Crown alleged that this related to the collection of drugs from the Flaning. The conversation was in these terms:

I said you’ve got eighty four, I said out of that money we’re putting in thirty three each for the tools, he said yeah fine with me, just give me fifty

M2 (Lawrence) mm

and he said it’s here in five weeks on the twenty sixth or twenty seventh, the Dutchman’ll be here then

…

Well, it comes to nearly a hundred so that’d be about thirty three

and he said, ‘Yeah. Happy right. He said, ‘I gotta go to New York next week, with these people’s boss’ he said ….. people …

…

I, I, I, I bought something too

did ya?

I bought, I bought a glock

What do you mean you bought a glock? Bought it from who?

a glock

…

then these people’s boss, see his people in New York right and all that shit but, if … I’m …… he said he’s waiting till the Dutchman arrives and then he’s leaving, so I said just put the Dutchman in a motel and then tell Josie to look after him, he can take him from there. That’s cool isn’t it?

M2 Yeah.

M1 Yeah

M2 but I want to go and get …

M2 as long as we know the Dutchmans here ……. because that’s just the way he is, sometimes he sometimes he, he, he likes to be a big shot or something you know what I mean yeah

M2 let him be, for fucks sake.

…

… no definitely wont be here ….

M1 how do you know?

M2 he wouldn’t come out with me in that …. blokes in that …

M1 … no …

M2 I just want, no I just want to know because why I’m asking, … if something went wrong anywhere right … but I got … no …

M1 ….. young bloke ….

… but I’ve gotta get out there I’ve gotta boat …..

…oh you mean pick them up

M2 Yeah,

M1 oh, I’m with ya….

M2 yeah ….. like I, I’m …

M1 I’ll tell ya true mate, honestly. I honestly believe

M2 I, I’ve got the ideal bloke ……

craft boat conditions are okay if you just … twenty five mile out to sea straight out, right ? And once you’re within fuckin five mile you can see a bit of light, just go out, boom, pick ‘em up, drop the heavy fuckin thing in, come down the coast all the way in that fuckin thing

yeah but … on the water ….

but I don’t see it ….

M2 ………

Yeah. I just don’t see doubling up, taking chances on the road mate …….”

39 The appellant gave evidence that at this time he had not formed a view as to whether the venture was a reasonable proposition. He said, “No, I mean these were just spontaneous conversations and words and things are just – we were just talking so there was nothing firm in my mind about anything… I had not decided anything at that point in time. We had no money at that point in time.” In relation to the “glock” mentioned by Lawrence during the conversation, the appellant gave evidence that he did not have any prior knowledge that Lawrence intended to buy a gun, and had “never seen him with any gun”. When cross-examined, the appellant said, “there has never been a gun in my house in all the time I have been there, not one gun, even a toy gun.”

40 During the recorded conversation, the appellant said to Lawrence “and he said it’s here in five weeks on the twenty sixth or twenty seventh, the Dutchman’ll be here then.” The appellant gave evidence that this was his own mathematical assessment of the boat trip. He said that although it was unclear which boat the conversation was referring to, he thought it was coming from “the islands” with 125 kilograms on it. He said he was referring to the “old Dutchman that we are talking about.”

41 The appellant was asked about his statements towards the end of the conversation where he was recorded as saying, “craft boat conditions are okay if you just … twenty five mile out to sea straight out, right? …” The following exchange occurred:

Q: What did you think was the advantage in going out 25 miles to sea and then bringing it down the coast rather than doubling up, taking chances on the road, what did you see the advantage in that?
A: Well, I probably – just my thoughts. If I was on a boat, I really wouldn’t want to go out to sea very far past land where you couldn’t see it. I don’t know. Just something I said at the time.”

42 On 13 April 2001, Lawrence visited the appellant’s premises. The following exchange occurred:

Alright now let me just tell you what I’ve arranged with him on Tuesday at five thirty, I’m seeing him, but um I think you and me and him the three of us should just go somewhere private …… Norton Street Leichhardt ….. and work out a strategy.

M2 (Lawrence) Oh I wouldn’t pick Norton Street mate

M1 Oh well I don’t know you pick somewhere

…

M1 What’s wrong with Norton Street ….. Italian …

M2 They all go there

M1 who?

M2 all the fuckin’ ……………. fuckin' Police …. It’s all fuckin’ awful (laughing)

M1 He suggested it

M2 Oh fuck no. No way in the world I’d go there.

M1 Yeah

M2 Half the … It’s alright if you’re there with your girls there’s some beautiful restaurants

M1 Oh yeah ……

M2 Danny goes over there with Carmen, they go there all the time . The fuckin’ police go there, every …

M1 Do you need somewhere close?

M2 Oh yeah

M1 You pick somewhere we can go

M2 I don’t know whether I’ll be back that afternoon

M1 Alright well if you’re not …..

M2 I have to go … alright I have to go

M1 yeah

M2 cause um …

M1 that’s our first earn mate because if there’s sixty there … I gotta give him five twenty twenty towards you me and him

M2 Oh beautiful

M1 Fuckin we’re getting in front

M2 Beautiful.”

43 The appellant gave evidence at the trial that he tried to organise a meeting “Because I wanted to get the three of us together so we could talk and try and work out what we were doing, we are supposed to be doing, and what we were trying to achieve, and how, and I just thought that because I couldn’t talk to Mr Diez myself, I talked to him but he didn’t speak very much, and I thought if Mr Lawrence was there it would be different, you know, because we could eye ball each other and I thought if we could go somewhere quiet and try and work out where we are going here, what is supposed to be going on.” He later said, “I just – I really wasn’t sure what was happening there. I just – really, well I’m just a fairly suspicious person at any time. I just get suspicious about things, that’s all. It seemed like the two people (Diez and Lawrence) didn’t want to be with me together.”

44 On that same day, the appellant and Lawrence were recorded discussing further arrangements for the importation. The appellant said:

with this big job right that’s coming up.

M2 (Lawrence) mm

I can, I’ll arrange everything … this morning right?

M2 yeah

….. the the truck …….. four wheel drive

M2 Just in terms of the four wheel drive

I’ll arrange everything … there, but um when we get it, right I want to …. Where were going … this fuckin thing

… I spoke to him today … I want to put it away somewhere where it’s fuckin’ sweet

45 The appellant said in evidence that although he promised to arrange everything concerning the four-wheel drive, he did not make any enquiries. The conversation continued:

We’re only gonna take twenty five at a time out, we’ll do it in five lots alright

M2 (Lawrence) whichever mate I’m ……..

I know what you don’t have to do anything mate I’ll organise it so it’s sweet. Is Danny sweet to drive … there?

M2 To drive?

M1 Yeah

M2 Yeah

M1 What I want you to do, I want you to arrange with Danny right, you do it with Danny right and just take him to meet your people right, meet whoever you want to get it, and Danny will draw ten at a time and when they pay, you can drop them another ten, give it to him, all you got to do is get the money make sure it’s sweet and give it to me and I’ll

M2 I tell you I’ll tell you what might …

M1 I don’t want you to do anything

…

Danny’s low key and careful isn’t he?

M2 Yeah he is Danny, but they just don’t like meeting him

Well you and me are not gonna touch anything, just so you know right,

M2 yeah

We’re not gonna touch anything, I want Danny to drop it off,

…

We’ll let it, just sit on it with the old boy, cause the Dutchman might be with him right? The Dutchman …

M2 Yeah ….

Um, I’m going to Nelson Bay, through there and I’m going up to Port to see the people up …..

M1 Yeah.

I’m gunna meet, I wanna meet the bloke first to get a feel because no use putting him with people you’re just gonna …

Let me tell you something mate … he can just stay in a motel here for a couple of weeks right, he doesn’t have

No no way I’d rather have him safe

Yeah so would I,

But I’m just gonna a couple of days, I could even put him in Bondi,

M1 right

M2 but I just I just wanna meet him first

M1 yeah yeah

M2 because there’s no use putting a bloke … safety …… you know you don’t know what he’s like

M1 Yeah I don’t know what he’s like I just know he’s an older bloke … in his fifties …..

M2 … right …

And he’s a big grey, ginger headed bloke with a big beard and that he’s a real seaman.

I’m just gonna judge judge it, you know I prefer it because there’s no point putting him with people that’s gunna ….

Well my understanding is he’ll be here at the end of this, next week

M2 right

and we’ve got about five weeks from that he said … … this morning he said …..

M2 … weekend see what happens …..

M1 Well we won’t have enough to pay for it yet mate right

M2 If I fuckin’ drive up to fuckin’ Queensland we will

M1 oh Yeah well that’s different yeah we will. Yeah.”

46 When giving evidence the appellant was asked to identify the “old boy” referred to in the conversations. The appellant gave evidence that he believed that the “old boy” did not exist and had been invented by Lawrence. He said that his relationship with Lawrence was one “of convenience.” The appellant said, “He would go out and do what he had to do, collect the money, bring it to me as an acting accountant and banker, whatever you call it, take the money to Mr Diez and that was it. I didn’t want to know who he was seeing, his address, it didn’t interest me any more than I would have told him about anyone that I knew.”

47 It was the Crown case that the “old boy” was Bolus, who was convicted with the appellant for his involvement in the conspiracy.

48 The appellant was also asked whether he had contemplated who was to control the proposed importation of the 125 kilograms of cocaine. The appellant said, “Well, if the job turned out, if we met this old Dutchman and the job did turn out to be what I suspect it had, would be, I just thought, you know, you couldn’t hand [the 125 kilograms] over to these people, that’s all… How would you get paid? How could you trust them? I mean we didn’t even know them, hadn’t even met this bloke yet and he might have been a monster, I don’t know.” The appellant was further asked:

Q: Yes?
A: I couldn’t agree with Mr Lawrence and me, he didn’t own any drugs and he was not in any control. I mean I didn’t – all I knew, all I knew was what he told me and the same as Mr Diez, the same thing.”

49 On the same day, the appellant and Lawrence had a further discussion. I am satisfied that it related to arrangements for the importation, including the transportation of cocaine in plastic drums, and the purchase of a boat, communication equipment, firearms and a vehicle. They also discussed the transportation of the drugs from the at-sea-rendezvous to land. The appellant said in evidence that this was a speculative conversation in anticipation of successful negotiations for the job. The following exchanges occurred:

Because once, if we haven’t secured it we’ve got to go and get another boat

That’s right, Yeah

And we’ll get one, but it won’t be as good as that

Not that’s a, it’s a fuckin’ blinder

yeah less secure

M1 The only thing is long as you know that hasn’t got cover on it

Yeah I know that but we’ll be taking a few steps so the gear’s alright

Yeah. Well I reckon we should get them round drums, you know the ones you put brew in

M2 Yeah I seen them I’ve had a look at

M1 big plastic, with the big lids because you can put about ten in each in them

M2 Yeah I know what you mean. I can get bigger ones than that

Can you get bigger ones, plastic with proper seals?

M2 Oh yeah you can get forty four gallon ones

Overtalking

Yeah but if you’re on a rough sea be careful they can’t bounce out

Yeah all that weight in them

Well you go over those things they just fly

You just lash ‘em mate

Yeah

They got fuckin’ those things they got ropes around them mate

Yeah.”

50 The appellant said in evidence that at that stage in the conversation, he and Lawrence were discussing the purchase of a charter boat. The appellant said, “He wanted the boat for a charter boat. No matter what, he was getting this. It wouldn’t matter if there was a job or not. No job, he was getting a charter boat with him to live on and go to Fiji, or that was what he told me. So, you know, when there’s talk between each other, it’s just stand around talking: ‘You know, mate, it’s a ripper.’ He says: ‘Yeah, it’s great. It’s a blinder.’” However the appellant later gave evidence that they had also discussed the purchase of a boat for the proposed 125 kilogram importation, “working on my – presuming my theory was correct and there was going to be this job and going and getting the 125…” In relation to the plastic drums referred to in the recording, the appellant gave evidence that he did not take any steps to obtain any plastic drums, nor did he see any drums in any other person’s possession following the period between that conversation and the arrests. The conversation continued:

“M2 (Lawrence) now just we’ll do that, we’re gonna have enough fuckin’ money like to say here ya we’ll send you down a ten thousand as a fuckin’ holding deposit

M1 (appellant) He just wants to buy he told me …. you know because he don’t want you know what I mean ……….

M2 yeah yeah …..

he’s gonna put two hundred engines on it

M2 Hmm.

One seven fives

what you gotta do is make sure the fuel capacity is right

Yeah he’s gonna have a three hundred mile range

M2 terrific terrific yeah that’s good

M1 he said he’ll sort all that out

M2 Yeah

M1 alright.”

51 The appellant gave evidence that the other man referred to in this conversation was Mark Johnson. The appellant said that he had only met with Johnson on one occasion in early April 2001, and had telephoned him on a further occasion. However the Crown alleged that in all the conversations he was referring to Mark Rowell. In cross-examination the appellant said, “I have never spoken to Mark Rowell about the purchase of any boat ever in my life, never ever, ever… The only reason I spoke to Mark Johnson as opposed to Mark Rowell was because I wanted to ask him about the cocaine, and Mark Rowell wouldn’t have nothing whatsoever to do with that.” However in further cross-examination he conceded that Mark Rowell “knew a lot about boats”, and that if he had wanted to purchase one, he would have gone to see Mark Rowell, or his father, Bill.

52 During the same conversation, the appellant and Lawrence discussed a trailer which would be required to tow the boat. The conversation continued in these terms:

all up all that stuffs going to cost us, it will cost us about fifty I reckon for the thing, right

M2 mm

two engines will cost us about fifteen

M2 mm

and the truck will cost us about twenty four so we’re looking at about fifty, sixty five, seventy, eighty five about eighty seven and we need a couple of them things you said there are things that director finder

M2 Yeah

M1 Whatever ya call it

M2 Yeah

I might have a couple of good walkie talkies as well

M2 I think I think I’m getting them

M1 Are ya? Alright.

M2 ……. Got one

…

… I’m ordering another Glock

Right and the old boy he’s got to give us um thirty yeah about forty five and then you want to give him fifteen yourself

M2 Yeah

M1 Alright

M2 Well I’d actually like to give him more but fuck he’s been fuckin’ terrific

M1 At the moment

M2 We’ve got to look after him

M1 Yeah

Because he’s supplied the boat

Yeah

He supplied the phones

Yeah

He supplied the gun

Yeah

He supplied the …

Right

M2 … I’ve explained to him I said mate I I haven’t got a lot of money

M1 right

M2 and he said no look he said I know you’ll be fair he said mate I said mate I said look fifteen, you’re happy with fifteen I said I know it’s not a lot I said ……..

M1 yeah

M2 … I said mate you’ll be looked after … he’s too fuckin’ handy

M1 Yeah that’s right I understand

M2 ……………

M1 Yeah yeah

M2 I’m not, I can’t waste him

M1 No well you don’t want to waste

M2 I said what we’ll be making I said you’ll be fuckin’ well looked after …… he’s too fuckin’ good

M1 Well if we if we give him um fifteen out of our money we’re gonna finish with close on a hundred mate, that’s how it’s gonna work out

M2 yeah

That’s without you know then we gotta pay for these fuckin tools.”

53 The appellant gave evidence that the man referred to in this part of the conversation was the “old boy” described by Lawrence. The appellant said that Lawrence wanted “fifteen thousand dollars to give this person because of all the work this person had done, which hadn’t been done as far as I’m aware, it hadn’t been done at all. I think the old boy was invented myself.” When asked why the appellant thought Lawrence would invent the “old boy”, the appellant replied, “get a few extra bucks for himself; this bloke who has done all this wonderful stuff that had not done anything.”

54 Further arrangements were discussed between the appellant and Lawrence on 20 April 2001. The appellant gave evidence that he thought he had seen Diez in the week between the two conversations, however it was unlikely that he had seen or spoke to Lawrence. When discussing the boat purchase, the appellant said:

“M1 (appellant) …… and that was last week, last weekend …….. rang up yesterday or the day before, I’m not sure which day, but hadn’t got it or seen as yet, but um, I told him to go ahead pay up to fifty for it if he wanted to, cause he originally offered forty for it, and um anyway … must have some ….. that’s what …… so I’m pretty sure that’ll be right and he said he’d be here at seven thirty

M2 (Lawrence) what about, what about the truck?

M1 Ah the truck I told him we’d give him the answer in the morning … hundred percent for sure

M2 what is it?

M1 Hey? It’s a um

Discovery

Landrover Discovery v-eight”

55 The appellant gave evidence that at this time he had not spoken to anyone about obtaining a truck. He said that he had told Mr Lawrence that he would give an answer in the morning because he “knew it was getting close to when we were supposed to be carving up our profit from what we had currently been involved with getting, receiving some money, and I also knew that we were going to try and arrange a meeting with Mr Diez so that he could be there for the Sunday evening and I was just, I just was keeping my option open at that time point in time. I didn’t want to close off my option to get the opportunity to meet [the Dutchman] and negotiate with the job.”

56 Shortly after, the appellant was recorded saying to Lawrence, “out a hundred see we’re gonna pull a hundred out aren’t we, between the three of us… or the two of us, is that right?” The appellant was asked by his counsel what this aspect of the conversation related to. The appellant said, “This was about, well, what we were when we eventually got some money, and we sat down, we said we were going to put in thirty-three each and it was a bit unclear because I never got Mr Diez and Mr Lawrence and myself in the same place at the same time, so we never got to discuss this and settle things out, and we had to get the money anyway, and we had to get our own money in before we could put any money in.” The appellant gave evidence that at that stage, he had no definite idea about who was paying for the venture.

57 In relation to the plan to pick up the drugs off the coast, the following exchange occurred:

“M1 (appellant) gonna have to, we’re gonna gave to sit down over the weekend and just, just go over it ……

M2 (Lawrence) Yeah well my end’s set. I know what I’m doing and that’s, that’s sweet.

Yeah, but did you have a look at where to come in, a few places …. did you have a look

M2 … sweet

M1 Yeah

just fuckin boom boom

Yeah like, a good spot. Yeah, you happy with it? Haven’t gotta drive too far though? You won’t have to drive too far

M2 yeah I gotta drive, that’s alright we know about that I’m gonna have a look tomorrow the bloke I got coming with me

M1 yeah

M2 he’s terrific …

he knows what to do, he knows where to go and everything?

Yeah, he’s good.

But does he know how far ……..

Don’t have to, going straight out to sea.”

58 The appellant said in evidence that he believed Lawrence had been “up in the country” for a few days, and said that the conversation related to Lawrence’s trip. The appellant said that he did not know the identity of the other man referred to in the conversation.

59 During the conversation, the appellant also described the arrangements with Diez and the money for the enterprise. The appellant said:

“M1 (appellant) just let me tell ya … you know how he’s gotta go to New York … New York, um I’m seeing him tonight I think ….. Mark …. I’m gonna give him his money, I said to him ……. He said no no no, work out yourself, if we want to, he said mine … ….. and he says to me can we get em on Friday … when I was … and I … I guess so you know what I mean don’t worry he’s having a go at us, he’s getting something off them to, … they’re giving him something to,

M2 (Lawrence) yeah

M1 cause I’ve paid him eighty eight thousand for every one, fucken eighty eight and we’ve carved up twenty two so between us, we’ve only got fucken fourteen and we’ve worked it out we got a bit more than … hundred, I don’t know how it came to that, but he’s definitely getting something, tell you that for sure,

…

Well I, what I’m trying to do just so you know, I told him, fuckin, when the big one comes in, I said its gunna be …… wont see …. once a fortnight whatever …… right? …. you know because otherwise it gets out of hand.

…

Yeah, no problem so … we gotta work this money I’m gonna suggest to the two blokes going on the boat,

M1 yeah

two hundred thousand each right

M1 Are you?

M2 yeah gotta give em …

M1 yeah mate okay good

M2 yeah and the boat come on the boat ……… give em two ……

M1 yeah

M2 ……

are you telling me so I understand it … he’s gonna take you out and pick them up?

He’s coming with me … pick them up, bring it back and using his joint and

M1 right

and he’s gonna use … and Danny’s gonna be a fucking tail down the front of me

M1 right Yeah

M2 I can chop him down, I can chop him down a bit he’s good as gold. Um I’m just tossing up Brock and his …

We’re gonna have to get a place mate and we are gunna have to put our ….

you know what I mean, it’s no good, I’ll tell you now ….. It’s no good us just dumping this stuff and going oh, that’s out of our hands now

M2 No, no that’s not what I

and letting people … sell it, fuck that

That’s what I was going to do. I can arrange with my old mate to fuckin put it somewhere

will he sit on it?

where people can sit on it and I’m just gunna … twenty, forty….my people …. Rowley.

M1 whoever yeah. There will only be four people getting in. You can’t be running around giving it to every fuckin …

…

M1 and you’ve gonna have your old mate you know he said he’s gonna sit on it like to mind it while it’s fuckin here? Yeah and look after it is he ….

M2 yeah

M1 and when you need ten … can’t get all out at once, just ten, there you go and then they sort it out who knows don’t you agree with me?

M2 …..

M1 well that’s how it’s gotta be done

but I’m going to go and have a … talk …. about getting the boat from Melbourne, gonna have a talk with him

…

M1 yeah yeah, so, what do you wanna do? I’m arranging the meeting in the morning right you wanna come along with me and that or you wanna or not it’s up to you …

M2 yeah

M1 …… fine …. He was gunna come …… put him off he’s gotta go to New York first, right this is the only fly I can see … this is my suspicious mind, he could go to New York and you wont see him again, you know what I’m saying, fuck he thinks ….. do you think? You know. No so you’d have to think you know no one thing we want you know them Vodaphone chips, vodaphone chip … vodaphone ……. sick of that one been using that for fuckin about two years …..,

M2 I’ll do that tomorrow

M1 can ya yeah good

M2 well I gotta go

M1 cause he wants to give em the number over there when he goes there to New York right

M2 I’ll give it to him when I see him

Now the only, other thing, the Dutchman, he’s put him off until he gets back from over there, he’ll only be gone five days. He’s gonna leave next week, he’ll be gone for five days so, so you can say, not this weekend but the weekend after, the Dutchman will be here.

listen

and then we’re only about three weeks away.”

60 The appellant also said that although during this conversation they discussed the proposed importation, they had not negotiated successfully for it. The following exchange occurred during the evidence-in-chief:

61 The appellant also said in evidence that he continued to be suspicious of Diez. He said, “I didn’t trust what was happening with what was going on in the current exercise that we were involved with. And I just thought, because of all this pressure and about the money, money, money, money all the time, I thought, I had a feeling this must have been the carrot. They were dangling this job, this 125, and all that. I thought there’s no 125 and there’s no two fugitives, there’s no old Dutchman. This guy’s going to go to New York, get his money and you’ll never see him again.” He also gave evidence that he believed the proposed importation was being “dangled” in front of others. He said, “Not in front of us. But, I mean, whoever brought the stuff in that we were currently doing, I wondered why where they were in the picture. There were a whole lot of issues that I was struggling with, in my mind at least, about the whole thing. … The Dutchman was coming next week. A couple of days later, the Dutchman was coming, the Dutchman was coming. All of a sudden, now the Dutchman’s not coming anymore. Mr Diez is going. And I thought, that’s what I saw as the fly in the ointment. This was a load of bullshit. This bloke’s (Diez), you know, just winding us up with this promise of this imaginary thing so they’ll get all of their money.”

Then after he did get involved in a business arrangement with Diez it soured. The local distribution of cocaine proved to be too much of a stumbling point …

357 A little later, he said:

“But even before 20 April there is much to demonstrate that there were signs that the relationship between [the appellant] and Mr Diez, and [the appellant] and Mr Lawrence was completely dysfunctional …

… [the appellant] was showing a complete ambivalence about the proposed importation. He couldn’t care less one way or the other, according to some of the conversations … And that’s just his relationship with Diez …

358 Again, there is nothing in this to suggest that the appellant’s defence was that he had been indicted in respect of the wrong conspiracy.

359 Some considerable time later, senior counsel said:

“For the Crown to simply shrug his shoulders and say that it was [the appellant] who did that, the Crown prosecutor has just ignored another reasonable possibility . In fact I would argue it is something that’s just as likely, more than likely, that Lawrence was involved in the acquisition of the RIB for some other purpose, not the purposes associated with this venture. That’s the second reason that the Bennett evidence has been tendered.

This is the third. The Bennett evidence is some foundation for accepting that Jack Lawrence had some venture happening at a later point in time than January 2001 probably with Diez. There was evidence that I will take you to that demonstrates the real possibility that Diez and Lawrence were involved in more than one scheme to import drugs.

This is very important when you consider whether [the appellant] was talking to Lawrence and/or to Diez about this venture on the tapes. Or could it have been something different?

[The appellant] has always maintained that he was told that the venture that he was aware of was something that involved bringing drugs from an island in the Pacific you might think.

360 The italicised passages, which put the appellant’s present contention at their highest, are no more than speculation.

* * *

361 Against that background, it is now necessary to be more specific about the documentation the non-production or late production of which is now the subject of the present complaint, the efforts made on behalf of the appellant to obtain it, and his explanation for his claim that it was relevant to his defence. In what follows I have relied heavily upon the chronology that is set out in the written submissions dated 7 July 2009 provided in support of these grounds on behalf of the appellant.

362 The relevant chronology appears to be as follows:

inter alia

certain surveillance running sheets revealing the whereabouts of the appellant, Diez and Lawrence during a specified period;

all running sheets relating to “Operation Swiftlet”;

"Operation Swiftlet” was identified in the information sworn in support of the listening device warrant as the investigation into the suspected drug importing activities of Lawrence and his (then) suspected co-conspirators – the Bennett brothers, Brokenshire, Scanlon and Pavan.

In answer to this subpoena the NCA produced certain material, but required, before production of other material, that the appellant establish a legitimate forensic purpose for seeking it.

inter alia

The legitimate forensic purpose identified in the claim for access to “the warrant application” was to ascertain whether the warrant had been issued on the basis of incorrectly stated facts. No other basis for production was mentioned;

(iii) proceedings before Blackmore DCJ began on 27 January 2004, with two weeks allowed for the resolution of outstanding legal issues before a jury was to be empanelled. The Crown opened to the jury on 17 February. The trial concluded with a verdict of guilty against the appellant on 8 June 2004;

The basis on which access was claimed at that time was identified in written submissions provided to Blackmore DCJ. Those submissions contained the following:

“It will be suggested that [the appellant] was acting in furtherance of the conspiracy when he contacted [the boat dealer] and that [the boat dealer] bought the vessel so that it could be used for the purposes of the conspiracy. But it is the Crown case that Lawrence did not enter the conspiracy until after 7 March 2001. Thus any evidence that suggests that inquiries about vessels were made by or in conjunction with Lawrence earlier than 7 March must have been for a different purpose.

The recently produced material demonstrates that Lawrence and Rodney and Tony Bennett were as early as 19 January:

(i) Inspecting boats.

(ii) Buying maps.

(iii) Planning for the Bennetts to be away for some weeks.

It can be inferred that they intended to use a boat for a venture quite unrelated to the instant conspiracy. This makes it more likely that any association that [the appellant] or Lawrence had with boats prior to 7 March was not about the instant conspiracy. If so, then any contact that [the appellant] had with boats (if in conjunction with Lawrence) could also have been for purposes unrelated to the conspiracy charged.

…

If it is reasonably possible that [the appellant] was discussing a topic or topics that concerned a different venture than the one which is the subject of the charge, it is more likely that he is not a party to the instant conspiracy. [The appellant] has always maintained that he understood the venture to involve a vessel coming from an island 3 weeks’ voyage from Australia. This is not consistent with the evidence concerning the voyage of the Flaning.

…

I pause to mention three flaws in the logic contained in these submissions:

Firstly

Secondly

Thirdly

could also have been for purposes unrelated to the conspiracy charge

Blackmore DCJ refused to grant the leave sought. In a short extempore judgment (and noting that it was not possible to address the matter in detail at that time) he recorded the basis on which it was claimed that the material sought might be in some way relevant to the proceedings. His Honour said:

“In short, they suggest that there may be material available from the Crime Commission suggesting that an alleged co-offender of [the appellant’s], namely, Lawrence, was involved in an operation with two brothers by the name of Bennett to import cocaine into the country.

It is suggested that if there was a concurrent importation and it involved the use of a boat, then it is possible that [the appellant] was not discussing with Lawrence the conspiracy the subject of the present charges, but the other conspiracy

His Honour rejected the suggestion as unsupported by the evidence he had seen to date. He referred to the conversations recorded by the listening device tapes, noted that in his evidence in the previous trial the appellant had made no suggestion that what he was discussing with Lawrence was some other importation, and observed that the recorded conversations did not involve the Bennetts;

“3. Firstly it is said that the material … includes information that … Lawrence was in the market for a boat … in at least January 2001. Why he might have wanted such a boat is not clear. However in the context of the Crown case that was two months before the Crown alleges Lawrence became involved in this conspiracy.

4. The significance of the evidence, if it be established, is said to be that it might tend to affect the jury’s decision on the question of whether it was [the appellant] who originally contacted a boat dealer … It is submitted that the jury might accept that it was not [the appellant] who contacted [the boat dealer] about the purchase of the boat but Lawrence …

5. … The Crown alleges that the original contact with [the boat dealer] originated from [the appellant] and it alleges that is an overt act in the case …

…

9. A second issue raised by [the appellant] is that there is material … which suggests that Lawrence was dealing with two brothers named Bennett …

it might be possible to show that there was a concurrent importation

could be established then, it is said, that it has important implications for the defence of [the appellant] because it might be that when [the appellant] was talking to Lawrence in March and April 2001 he was not talking about this conspiracy but some other transaction altogether

jury might conclude that what Lawrence and [the appellant] were discussing was some other concurrent importation, possibly with the Bennetts, and not the importation the subject of this charge

363 Again, to the extent that a “concurrent” or “parallel” importation was mentioned, it was framed in the language of speculation and theorising. No mention is made of a positive assertion by the appellant that his involvement was in a different importation.

364 Why the ACC began providing additional material, at the late stage that it did, is not clear to me. The transcript suggests that there were negotiations between the appellant’s legal representatives and the ACC, and that there was a degree of co-operation between the two.

The argument regarding production

365 The entire focus of the argument put on behalf of the appellant in respect of the production of the “warrant application” was on the possibility of identifying further errors or misstatements that would or could amount to impropriety. That has been fully advanced in the consideration of ground 6, and there is no need to say more about it. That that was the basis for which production of the balance of the sworn information was sought merely reinforces the conclusion that a “parallel importation” was not an issue.

366 I have said above that these grounds (grounds 9 and 10) as presented are founded upon a false factual premise. That false factual premise is that, in the course of his evidence in the trial before Howie J, the appellant:

“… asserted that when [he] did speak about drug related matters with Lawrence and Diez, he was either discussing a different or ‘parallel’ importation to the one particularised in the prosecution case …”

This is simply factually incorrect. The appellant gave no such evidence. There is not a word in the evidence in chief of the appellant that suggests that his defence was that he was involved, not in the Flaning conspiracy, but in a similar conspiracy involving:

different participants, including, importantly, the Bennett brothers;

367 References to Fiji in the appellant’s evidence in chief appear when he claims that Lawrence was planning to go to Fiji where he intended to operate a charter boat. This would not suggest that the appellant was claiming to have been referring to a separate conspiracy involving importation of cocaine from Fiji.

368 There were many references in his evidence to an importation, or proposed importation, of 125 kilograms of cocaine; the Crown case against the appellant was of a conspiracy to import 120 kilograms of cocaine from Colombia. I perceive nothing in the distinction between 120 and 125 kilograms of cocaine that would suggest to any reasonable legal officer of the DPP or ACC, considering the duty of disclosure, that the appellant’s defence was that he was a participant in, or had considered participating in, a conspiracy that had some common elements with, but was not identical with, that with which he was charged. As to the references to the Bennett brothers, the appellant, when asked about the 20 April conversation in which “the two brothers” were mentioned, denied any knowledge of who the two brothers were, or of any association of two brothers with Lawrence in the proposed importation of 120 kilograms of cocaine.

369 To say, as counsel said in their written submissions, that the appellant asserted in his evidence that, when he spoke of drug related matters, he was either discussing a different or parallel importation, or domestic drug distribution activities, is simply incorrect. Certainly, the appellant gave evidence that he was involved in the latter; he said on many occasions that what he was referring to in specific passages in the conversations was to “what was currently happening at the time”, or words to that effect. It is reasonable to take this to mean the distribution of drugs that were already in Australia. And it is true that some of the detail he gave departed from the detail of the Crown case, for example: the (very small) difference in the quantity of the drug involved; he made a reference (on 12 April) to the boat being due in five weeks, when the evidence was that the Flaning sailed from Panama on 8 April 2001, on a voyage suggested to require a sailing time of three months.

370 In all of this the appellant said not a word that could be taken to be a reference to a parallel importation.

371 That conclusion is supported by the report of the appeal to this Court before the High Court ruling: Cornwell v The Queen [2006] NSWCCA 116; (2006) 160 A Crim R 243. There McClellan CJ at CL summarised the appellant’s defence at the first trial as:

“The appellant submitted at his first trial that although he is recorded as having conversations with Lawrence and others in relation to drug activities these should be understood as relating exclusively to domestic drug deals and were not related to any proposed importation of cocaine in respect of which the appellant denied he was a party. Accordingly, the evidence which he gave admits to involvement in illegal drug activities but the appellant says this was confined entirely to domestic dealings.”

372 Neither counsel’s address to the jury at the first trial, nor Howie J’s summing up, was made available to this Court. Had either recorded any assertion that the appellant claimed that his conversations might have related to a different conspiracy, no doubt they would have been drawn to the attention of this Court.

373 The extracts from senior counsel’s opening to the jury in the second trial do not contain any assertion of an alternative conspiracy. The extracts from his final address contain no reference to anything the appellant actually said; they do no more than float an entirely speculative possibility that he may have been referring to a different conspiracy. They echo the speculation advanced in support of the claim for access to the material the subject of the subpoena.

374 There is nothing in counsel’s opening that asserts (as distinct from hinting at, or speculating about, the possibility of) involvement by the appellant in something other than the Flaning importation. At the time of the opening, of course, counsel was well aware of what the appellant had said in his evidence in the first trial.

375 Nor is there anything in the closing address that could be construed as a reference to positive assertions made by the appellant in his evidence to the effect that he “had discussions” but that those related to a “parallel importation”.

376 The appellant was represented at both trials by highly experienced, competent senior counsel. It is scarcely conceivable that, had he had instructions that the appellant was referring to a different enterprise, he would have:

overlooked eliciting direct evidence to that effect from the appellant in the first trial;

overlooked alerting the jury to that in his opening in the second trial;

overlooked mentioning that circumstance (and stressing its importance) to Blackmore DCJ in the various arguments concerning access to material in the second trial;

overlooked referring to it (other than by way of speculation) in his final address in the second trial;

377 On the other hand, there was material in his evidence that was consistent with the Crown case. There were numerous references to “the Dutchman”; there was a conversation with Diez on 13 March which he explained as being about the time difference between America and Australia (in the context of telephone calls); he said that he knew Diez was planning to go to America; there were references to “the Dutchman’s” anticipated arrival in Australia (Wouter van Bommel arrived in Australia on 16 May 2001); there were references to the purchase of a boat, and a four-wheel drive vehicle of sufficient power to tow the boat; and he denied any knowledge of “two brothers”.

378 I am satisfied that there was no reason demonstrated why the ACC ought to have produced, either voluntarily or on subpoena, any documents which might support or evidence the existence of a conspiracy different from that with which the appellant was charged.

379 But let it be supposed that there was evidence of such a “parallel” importation. Let it be supposed, for the sake of argument, that the ACC had in its possession documentary material that proved conclusively that there was indeed a “parallel importation” of 125 kilograms of cocaine that came from, or through, Fiji, and involved Lawrence and, inter alia, the Bennett brothers and did not involve the appellant.

380 How would that advance the appellant’s defence to the charge that he was a participant in a conspiracy to import 120 kilograms of cocaine from Colombia (or Panama) on the Flaning that involved different individuals but included Lawrence? It does not. It would do nothing more than allow counsel further to speculate that what the appellant was referring to in his undoubtedly incriminating conversations was that conspiracy and not the Flaning conspiracy.

381 In all of this I cannot avoid the conclusion that there is something surreal about the appellant’s case on these grounds. The facts are that the appellant gave evidence in the first trial. Thereafter, on a number of occasions, his senior counsel alluded to the possibility that, in his conversations, he was referring to a different conspiracy, allusions expressly recorded by Blackmore DCJ in his judgment of 30 April. In this evidence, the appellant had every opportunity to claim that those parts of the conversations that appeared to incriminate him in the Flaning conspiracy were, in truth, conversations about a different conspiracy. He did not do so (and for that reason alone, the foundation for these grounds falls away). It is, perhaps, hardly surprising that he did not do so (although he had the (apparent) benefit of a certificate under s 128 of the Evidence Act 1995 at the time). But it is now claimed on his behalf that there is available material that would allow his counsel to put an argument to the jury that perhaps his apparently incriminating conversations were about that other conspiracy. Such a submission, in the absence of evidence from the appellant, would be entirely speculative. It would be speculative in circumstances where the appellant gave no evidence at all: it is fanciful in circumstances where the appellant has given evidence and has made no such assertion. That there were some (slight) variances in the detail of what he asserted, and the detail of what the Crown alleged, is far from sufficient to put the Crown on notice that the importation he was discussing was a different importation to that which the Crown alleged, or to establish a legitimate forensic purpose for access to the documents sought.

382 There has been no miscarriage of justice by reason of the non-production or late production of the material the subject of grounds 9 and 10. I would reject these grounds.

I have had the considerable advantage of reading the judgments of McClellan CJ at CL and Simpson J. Although their Honours have approached grounds 6, 9 and 10 by different routes, the same conclusion has been reached, namely that these grounds of appeal ought be rejected. For the reasons given by McClellan CJ at CL and Simpson J, I agree with the orders proposed by the Chief Judge at Common Law.

**********

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Citations

Cornwell v R [2010] NSWCCA 59

Most Recent Citation

Jodie Slater (a pseudonym) v The Queen [2019] VSCA 213

Cases Citing This Decision

17

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Karunaratne and Comcare (Compensation) [2023] AATA 365

NSW Crime Commission v D101 [2020] NSWSC 809

Cases Cited

26

Statutory Material Cited

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Cornwell v The Queen [2007] HCA 12

Cornwell v R [2006] NSWCCA 116

Cornwell v The Queen [2007] HCA 12

CITATION:	Cornwell v R [2010] NSWCCA 59
HEARING DATE(S):	20-21 October 2008 30 June 2009
JUDGMENT DATE:	8 April 2010
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 237; Johnson J at 383
DECISION:	1. Appeal against conviction dismissed. 2. Grant leave to appeal against sentence but dismiss that appeal.
CATCHWORDS:	CRIMINAL LAW - appeal - construction by trial judge of evidence as an admission tendered against interests of the accused and version of facts - direction by trial judge related to the conspiracy - trial judge summing up directions - whether verdict of jury is unreasonable - whether trial judge erred in refusing to grant access to the information on oath by a Federal Agent - whether trial judge overstated applicant's role and involvement in the offence - whether applicant has a legitimate sense of grievance for sentence imposed - whether trial of the applicant miscarried due to non-disclosure or late disclosure of material relevant to defence - whether trial judge wrongly refused applicant access to undisclosed material
LEGISLATION CITED:	Customs Act 1901 (Cth) Evidence Act 1995 Judiciary Act 1903 (Cth) Surveillances Devices Act 2004 Criminal Appeal Act,1912
CATEGORY:	Principal judgment
CASES CITED:	Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536 Burrell v The Queen [2008] HCA 34; [2008] 238 CLR 218 Cornwell v R [2006] NSWCCA 116; (2006) 160 A Crim R 243 Cornwell v R [2007] HCA 12; (2007) 231 CLR 260 DJL re Central Authority (2001) 201 CLR 226 Dominguez v R (1985) 63 ALR 181 Elliott v The Queen; Blessington v the Queen [2007] HCA 51; (2007) 234 CLR 38 Gipp v R [1998] HCA 21; (1998) 194 CLR 106 HML v R [2008] HCA 16; 235 CLR 334 Peacock v The King (1911) 13 CLR 619 R v Brown (Winston) [1998] AC 367 R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 R v Duncan (1981) 73 Cr. App. R. 359 R v Haddad [2000] NSWCCA 351; (2000) 116 A Crim R 312 R v IK [2004] SASC 280; (2004) 89 SASR 406 R v Karageorge (1998) 103 A Crim R 157 R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478 R v Meher [2004] NSWCCA 355 R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 R v Saleam [1999] NSWCCA 86 R v Schmahl [1965] VR 745 R v Spiteri [2004] NSWCCA 321 R v Veverka [1978] 1 NSWLR 478 R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454 Saleam v R (1989) 16 NSWLR 14 The Queen v Hiller [2007] HCA 13; [2007] CLR 618 Travel Compensation Fund v Blair [2002] NSWSC 1228 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wills v R (1985) 39 SASR 35; (1985) 16 A Crim R 247
PARTIES:	Richard Bruce Cornwell (Appellant) The Crown
FILE NUMBER(S):	CCA 2005/5025
COUNSEL:	T A Game SC/S J Buchen (Appellant) P Roberts SC/K Deakin (Crown)
SOLICITORS:	Ford Criminal Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2005/5025
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ