Gonzalez-Betes v The Queen

[2002] HCATrans 59

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S144 of 2001

B e t w e e n -

BEATRIZ GONZALEZ-BETES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002, AT 11.24 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:  If the Court pleases, I appear for the applicant.  (instructed by Jeffreys & Associates)

MR D.J. FAGAN, SC:  May it please the Court, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Papayanni.

MR PAPAYANNI:   This case involves a question as to the directions that should be given by a judge in a joint trial and the admissibility of certain evidence, and in connection with both those, the situation in relation to the indictment.  Now, the charge was under section 233(1)(d) of being knowingly concerned in the importation and a misunderstanding in drawing this indictment that this was an accessory matter or an aid and abettor matter.  The authorities all say, and it has been mentioned before today, that this section creates a substantive offence.  In that connection, there is no provision - the provision in relation to aid and abettors, which allows as many as possible aider and abettors to be included in one indictment, does not apply.

GLEESON CJ:   What was the defence case, Mr Papayanni?

MR PAPAYANNI:   The defence case is set out there in my written submissions, your Honour, that she was there to repair the boat.

GLEESON CJ:   She was there to repair the boat.

MR PAPAYANNI:   Yes, and that she had been repairing boats for him before and in support of that the question was ‑ the only thing that was said in relation to her as being knowingly concerned, was that she strapped the dinghy, the Boston Whaler, onto the trailer.

GLEESON CJ:   The prosecution case, rightly or wrongly, was that she was caught red‑handed.  She was there with the dinghy with the drugs in it and then they had a tape recording of a conversation with her on a beach in some foreign place that indicated that she was familiar with that kind of operation.

MR PAPAYANNI:   That was given by Meggett, that evidence in Varadero ‑ ‑ ‑

GLEESON CJ:   Her case was that, what, she had flown to Australia for the purpose of carrying out some mechanical repairs?

MR PAPAYANNI:   She had sold this particular boat, which she has had, to Del Prado and that Meggett and Flavel had been concerned in relation to the sailing of the boat, and that she had flown to Australia ‑ ‑ ‑

GLEESON CJ:   From where?

MR PAPAYANNI:   Well, she was in Cuba at the time, as I understand it.

GLEESON CJ:   She had flown from Cuba to Australia to do what?

MR PAPAYANNI:   Madrid, I think she had been - that is right, she had been to Madrid and she flew from there because she was a friend of Del Prado, and he had bought the boat, and she was going to repair the boat and there was evidence from Meggett that Del Prado had buyers for the boat and that he was going to put it up for sale.

GLEESON CJ:   She was going to repair it at Coffs Harbour, was she?

MR PAPAYANNI:   No, she was trying to get ‑ well, she did not actually say that, but she was trying to get a place at Manly, or some place at Manly that she could repair the boat and the platform on which this Boston Whaler ‑ when she had the boat, of course, there was no - it was only an inflatable dinghy and, in relation to ‑ that was still there on the boat when they came to Coffs Harbour, and that the platform was in danger, and the boat as well ‑ it had been in lightning and storms, and so on ‑ and she flew to Lord Howe Island but Meggett, who was sailing the boat, decided to bypass it because he had no depth sounder and so he came straight to Coffs Harbour.

So there was no communication between her and Meggett after January 1998, and this happened in December 1998.  So when Meggett arrived, she was at Coffs Harbour and he was surprised to see her there at that time.  She went to Lord Howe because there was some difficulty about the platform, which eventually collapsed on the boat, and there were other repairs to be done on the boat and ‑ ‑ ‑

GAUDRON J:   This is on the dinghy?

MR PAPAYANNI:   On the dinghy, yes, but there were also repairs on the boat.

GAUDRON J:   Yes, the yacht was okay.

MR PAPAYANNI:   Yes, and there would need to be repairs in relation to the dinghy which she maintained could not be taken off the boat except by two people.  Flavel had to come back to take the dinghy from the boat and bring it in and that is where she became concerned, according to the Crown.

GLEESON CJ:   What was the estimates cost of the repairs to the dinghy?  No evidence?

MR PAPAYANNI:   No evidence of that.

GLEESON CJ:   It seems a long way to come to repair a dinghy.

MR PAPAYANNI:   Well, she had travelled all around the world.  She had been to Cuba and every place you could imagine.  That was her job.

GLEESON CJ:   What was her explanation of the tape recorded conversation on the beach?

MR PAPAYANNI:   Well, mostly ‑ it was not recorded on the beach.  There was ‑ with Varadero ‑ Meggett gave that evidence, there was no tape recording of it.

GLEESON CJ:   I see.

GAUDRON J:   There were some tapes of some conversations.

MR PAPAYANNI:   There were lots of tapes in relation to what was said but they all ‑ ‑ ‑

GAUDRON J:   And that was all said at Coffs Harbour, was it, or some of it was said in Sydney, was it?

MR PAPAYANNI:   There was cross‑examination of her and all that she could relate to her repairs of the boats and the concern about that, and there was nothing else.  Now, the difficulty about it was that Meggett, who, you know, pleaded guilty, and he pleaded guilty to importation.  Now, he gave evidence of a number of conversations with Flavel and a number of conversations with Del Prado and also Carlos, the husband of the applicant, and all those matters got in which were highly prejudicial.  The situation was that, in relation to Del Prado, he said, “Welcome to the group” ‑ this is to Meggett.  It was not in the presence of the complainant at all but in the presence of Flavel, and he said, “Welcome to the group, but keep your mouth shut”, or words to that effect.

Then there was another conversation between Flavel and Meggett as to the swapping of the dinghies, which was done before they went through the Panama Canal.  In fact, Flavel took the boat away and brought it back with another Boston Whaler on it, and it was at Colon, and that then was sailed to Australia.  But what my submission is, in relation to this, and I would need leave in relation to the particular point, is that the indictment was invalid.  There is no doubt about it, from my submission, that you cannot charge a person ‑ ‑ ‑

GLEESON CJ:   I am sorry to interrupt you about these conversations, but I am looking at what appears on the bottom of page 55 and the top of page 56 in the remarks on sentence and, in particular, page 56, line 10.  Is there anywhere where we may see those transcripts?  They are not in our papers.  Anyway, do not let me interrupt you.  The prosecution may be able to say something about that.  You go ahead with your argument.

MR PAPAYANNI:   They are taped conversations, is it?

GLEESON CJ:   Yes.

MR PAPAYANNI:   Yes.  Well, the first argument that I was going to have was in relation to the indictment.  The indictment is there to give a jurisdiction for the trial, amongst other things.  To also to tell ‑ ‑ ‑

GAUDRON J:   Do we have the indictment, Mr Papayanni?

MR PAPAYANNI:   It is set out in those - page 1, what was read, but I have a copy of the indictment here.  The trial was on page 9, I think it is.

GAUDRON J:   Yes, here it is, “Enclosed is a copy of the Indictment”.  It is a separate document from the Deputy Registrar.

MR PAPAYANNI:   The indictment, when I first looked at this I thought it was a joint count with Flavel and Gonzalez, but when you look at the indictment, of course, it is not a separate count with Flavel and Gonzalez at all because it says “each were knowingly concerned”, but it does not say with “each other”.  Now, what was alleged there, in relation to the indictment, was that there was a joint enterprise with Flavel and Meggett and Campillo, and there was a joint enterprise with Gonzalez and Meggett and Campillo.  Now, they were two separate charges and that is why I say, in relation to section 233(1)(d), it is a substantive charge.

You cannot charge, in one indictment, two persons with different offences.  Now, there is no possibility ever, really, in my situation, unless you have identical twins doing the same acts, that you can have a joint charge of “knowingly concerned”.

HAYNE J:   The trial, having gone forward as it has and come to this point, why should we now entertain these points about the sufficiency of the indictment?

MR PAPAYANNI:   Well, because on the indictment itself, it indicates the admissibility of evidence by reason of a joint trial and, in this particular case, the Court of Criminal Appeal dealt with the question of separate trial and did not - they said there was no prejudice, they did not consider the question of separate trial and whether the competence of counsel in that regard, but the question I am putting now is that the Court of Criminal Appeal was wrong in not looking at the indictment and, in fact, in the charge to the jury the trial judge said each is charged with “knowingly concerned” - did not mention Meggett or Campillo and, of course, the charge, if it had have been a joint charge, would have been joint and several.

But this is not a joint charge with Flavel because you cannot have two charges unless there is a joint enterprise between Flavel and Gonzalez.  Now, there was no question that that was being put to the jury.  What was put to the jury by her Honour and by the Court of Criminal Appeal, was that it was a separate charge in relation to each accused which would have been two indictments.

HAYNE J:   The trial having proceeded as it did, what is the point that you make about admissibility and directions?

MR PAPAYANNI:   Because of it being a joint charge, well then, here, the trial judge summed up, well, in some terms, as to what was admissible against Flavel, what the Crown case was, and what the Crown case was against Gonzalez but, at no stage, did the trial judge say, “This evidence is not admissible against Gonzalez” – “concerned with” ‑ and over and over again, the trial judge kept on saying to the court, “Look at all the evidence” ‑ ‑ ‑

GAUDRON J:   She did say that the cases against each accused had to be considered separately, though, and she did outline the evidence in the case against each of the accused.

MR PAPAYANNI:   That is correct, but she did not say - see, the whole point was that it had been a previous trial and in the previous trial, the question of the seven trips, the Crown said was not led against the accused.  There was also objection taken to the conversation of Varadero and on the boat to Bonaire, and the Court of Criminal Appeal said that no objection was taken to that latter part, the conversations, which was incorrect because it was preserved.  On pages 1 and 2 of the appeal book, one can see there that on page 2, Mr Stewart, who appeared for the applicant, said that ‑ and the Crown had accepted on page 1, that he adopted the same approach as Mr Barrie who appeared for Flavel.

GLEESON CJ:   Mr Papayanni, at page 81 in paragraph 41, the Court of Criminal Appeal applied rule 4, did they not, saying ‑ ‑ ‑

MR PAPAYANNI:   It was not very clear whether they did or not.

GLEESON CJ:   It looked to me as though what they did, they said, “We have heard full argument on this to see whether there might have been a miscarriage of justice but we are going to knock this out on the basis of rule 4”.

MR PAPAYANNI:   Yes, it looks like it, yes.

GAUDRON J:   The problem seems to be, does it not, at page 31?

MR PAPAYANNI:   I might say that there are a number of errors in relation to the Court of Criminal Appeal decision, in my submission - 31.

GAUDRON J:   At that page, her Honour Judge Ainslie‑Wallace, said:

As with Mr Flavel, you understand that you will only include Mr Meggett’s evidence in the circumstances on which you rely if after having considered the directions I have given you ‑

and that was about the unreliability of accomplice evidence ‑

you decide that you can rely on his evidence and accept it as being truthful.

HAYNE J:   The evidence her Honour was there referring to is assumedly that at page 28, lines 15 and following.

MR PAPAYANNI:   The difficulty about that is that is only if Meggett is not accepted.  Her Honour goes on to say, on a number of occasions, if you look at all the evidence ‑ and just before the jury went out, she said there on page 41, if your Honour looks at line 35, she said:

counsel have in their addresses referred to parts of the evidence.  You must not confine your attention only to the parts of the evidence on which you have been addressed either by counsel . . . You must have regard to all of the evidence in company ‑

I assume that means something else -

to your decision whether the Crown has proved its case against the accused beyond reasonable doubt.

That is each accused, and on 25, in relation to the accused, she was talking about the evidence of all the facts, and so on.

GLEESON CJ:   Was there any objection taken to these directions?

MR PAPAYANNI:   No, that is the point.

GLEESON CJ:   Then that throws you into rule 4.

MR PAPAYANNI:   That is correct, yes, but ‑ ‑ ‑

GLEESON CJ:   Well, when you start to apply rule 4, do you then have a look at the merits?

MR PAPAYANNI:   You look at whether it is a fundamental matter or not.  See, the whole fact here is that the indictment showed what evidence was admissible.  If this trial had been conducted as it should have, there would have been two indictments and the evidence against Gonzalez would have been, “Meggett says I landed with the drugs on the beach at Coffs Harbour” and nothing about who was the owner and who had the importation, because he was charged with importation.

The Crown led evidence to say that he was concerned in the importation and that was an abuse of process, in my submission, that if an indictment is formed with the purpose, whether inadvertent or deliberate, of getting certain evidence in which will be prejudicial to an accused, it is an abuse of process and that is what happened in this case.  As I say, whether it was designed or accidental, it does not matter.  This is a case where there should have been a trial of each person separately and none of that evidence would have gone in against the applicant here.  There would have been none of that evidence at all about the seven trips.  That was vital.

The whole point about the seven trips was that if that was taken in connection with her conversation at Varadero, in which he said it was a good idea to put drugs in the dinghy, which he denied, but when you look at that and then take all the seven trips in, and the jury say to themselves, “Oh, look, it has been denied”.

GAUDRON J:   But it is not just the seven trips though, is it?

MR PAPAYANNI:   Well, there was a whole lot of conversation ‑ ‑ ‑

GAUDRON J:   It is the conversations with ‑ ‑ ‑

MR PAPAYANNI:   They were dynamite.

GAUDRON J:   With Julian and Del Prado ‑ ‑ ‑

MR PAPAYANNI:   Flavel, that is right, yes.  That was dynamite in this case and led to a great miscarriage of justice.  She has been convicted for life on an invalid indictment and that is the substantial miscarriage of justice in this case.  She deserved to have a fair trial, she was entitled to have a fair trial, especially as she has been in touch with a number of people in Spain in relation to this matter.  It would not have been good for Australia if this count went forward as it is to show that, to somebody who knows anything about law, looked at the indictment and heard the argument in relation to this matter, they would say, “Well, the indictment does not disclose any offence”.

GLEESON CJ:   Thank you, Mr Papayanni.  Yes, Mr Fagan.

MR FAGAN:   Your Honour, this point as to the indictment has been raised for the first time by my friend on his feet, but the short answer to it is that if there were anything wrong with charging the offence of each of these accused of being knowingly concerned in this importation in the one count, it could readily have been cured by amendment.  There is an ample power of amendment under the Crimes Act 1914, which was applicable at the time of this trial and which applied to the procedure in this trial and could readily have been cured by separating the indictment of the two charges.

HAYNE J:   Assume we put the questions of the sufficiency of appropriateness of the indictment to one side, can I take you to a problem that troubles me?  At page 28, her Honour the trial judge describes the evidence against Mr Flavel, upon which the Crown relied ‑ ‑ ‑

MR FAGAN:   And that continues to page 30, at line 34.

HAYNE J:   Page 30, her Honour does that for Ms Gonzalez and we have this statement at 31, lines 15 to 20 ‑ ‑ ‑

MR FAGAN:   Yes, I heard your Honour’s observation that it appeared that that was a reference back to the general evidence of Meggett.  In my submission ‑ ‑ ‑

HAYNE J:   Is it?

MR FAGAN:   No, your Honour ‑ ‑ ‑

HAYNE J:   Why not?

MR FAGAN:   It is a reference to his evidence.  The only evidence of him is at page 30 against Ms Gonzalez at line 40:

The evidence of Mr Meggett that in Varadero he had a conversation with her in which she said that she knew of his involvement with Julian and the movement of the dinghies ‑ ‑ ‑

Now, your Honours, the evidence about the numerous transatlantic crossings was that, inherently, Ms Gonzalez was not involved in them, she did not take part in them, they were ventures by Mr Meggett with Mr Flavel, but in the course of them they all involved the movement of a Boston Whaler dinghy, deck loaded on a yacht, from the Caribbean to the coast of Spain somewhere.

HAYNE J:   Now, did the jury know that the seven voyage evidence goes in only against Flavel?

MR FAGAN:   They know that it goes in only against him in the sense of proving any acts of any person from which state of knowledge might be inferred.  As regards Flavel, the significance of the evidence was that in the course of these voyages he had some discussions with Julian Del Prado, who was the principal of this activity, along the lines that Mr Meggett was now being introduced to a group and he had better not disclose what he was up to or there would be consequences.

Also, there were conversations between Flavel and Meggett to the effect that Flavel discussed where would be a good place to hide something on a yacht like this and the indication was it would be the dinghy.  It was quite clear from the way that evidence was presented ‑ and this was why there would be no complaint from defence counsel at the end of the summing up, it was quite clear that all of that could only be, in its nature, evidence against Flavel.  In relation to Ms Gonzalez, that evidence did have a significance.  It gave a context to the conversation at Varadero Beach.

At Varadero Beach, Mr Meggett gave oral evidence that the accused, Gonzalez, had said to him something to the effect, “I know what you and Robert”, which is Flavel, “are doing with Julian in relation to the dinghies.  I think it is a good idea to hid drugs in them.”.  Now, the fact that there had been this series of about seven voyages across the Atlantic gave context to that conversation.  But in the way the trial was conducted over some weeks, it would have been perfectly apparent to the jury that it was not suggested Ms Gonzalez had taken part in those trips across the Atlantic and that it could not be suggested that they, of themselves, constituted any evidence against her, but they did give meaning to this conversation.               This manner in which her Honour then distinguished the Crown cases against Flavel, on the one hand, and Ms Gonzalez, on the other, was quite sufficient to compartmentalise the little bit of Meggett’s evidence that really bore against Gonzalez, namely, that conversation. 

Again, at page 33 to 34, there is a brief reference by her Honour to the case against Mr Flavel and then the case against Ms Gonzalez, but that does not go back into this subject of the transatlantic trips and there is nowhere any suggestion in this summing up that the jury could in any way use that evidence directly as evidence of physical involvement which would bear upon her guilt in relation to this charge.

HAYNE J:   What alarmed me about that was what appears at 77, paragraph 22, where in the Court of Criminal Appeal it is said that:

the matter went forward before her Honour Judge Ainslie‑Wallace in the present trial and the evidence of the journeys was led without objection.

Now, that is, at best, an abbreviated and truncated version of what had occurred, is it not?

MR FAGAN:   Yes, quite so, your Honour, but this leading judgment in the Court of Appeal, overall, showed that the court had properly appreciated that there had been an objection at an earlier date ‑ ‑ ‑

HAYNE J:   And that the Crown was leading it only against the co‑accused, not against this accused?

MR FAGAN:   Yes, but in the sense that I have stated with the limitations and qualifications that I have stated.  That evidence of Mr Meggett that he had this conversation with this applicant at Varadero Beach, which is on the north coast of Cuba, in January 98, her case in relation to that was that she did not have such a conversation.  That was the dispute about that and that is why the learned trial judge, in summing up, said, on page 31, that it was a question of whether they would accept Mr Meggett’s evidence about that.

They had ample other evidence from which to conclude that Ms Gonzalez had known that the yacht coming across the Pacific, the Maeva, the subject of this charge, would be carrying a dinghy which would have prohibited imports in it.  The ample other evidence was comprised in two categories: of surveillance evidence; of her movements around Coffs Harbour after she came out here from Madrid specifically for the purpose; and the recorded intercepted conversations that were associated with those movements, conversations in which she revealed a preoccupation with the dinghy and getting the dinghy off, and in which she was at great pains to ensure that she would not be getting the dinghy off the vessel, that Mr Robert Flavel would do it, that it was part of his job.

There were conversations which were intercepted by telephone with Julian Del Prado in the middle of this.  There was a point in which, on the surveillance evidence and intercepted conversations, Mr Flavel had left Coffs Harbour whilst the dinghy was still on the stern of the yacht and come back to Sydney and Ms Gonzalez was involved in conversations with Del Prado to have him instruct Flavel over the telephone that he should go back to Coffs Harbour and get the dinghy off.  This was a very powerful circumstantial case of her knowledge that the dinghy contained illicit substances, quite independent of this conversation at Varadero Beach.

That is why the Court of Appeal’s application at rule 4 was important.  But at trial, there was not any complaint by counsel about this summing up which distinguished the cases against Flavel and Gonzalez, respectively, without making any detailed direction about leaving out of account against Ms Gonzalez the transatlantic trips, because it was perfectly plain the way the case had been conducted.  Then, in the Court of Appeal, both applying that and applying rule 4, the position was that there was no miscarriage of justice as against Ms Gonzalez in any event.  Now, your Honour the Chief Justice, you asked if there were available the recorded conversations ‑ ‑ ‑

GLEESON CJ:   I think you have summarised sufficiently what is in them for my purposes, thank you.

MR FAGAN:   May it please, your Honour.  Yes, those are my submissions.

GLEESON CJ:   Thank you.  Yes, Mr Papayanni.

MR PAPAYANNI:   The part about - on page 66, which was one of the extra pages there, this was where they said:

HIS HONOUR:  That evidence, you say, is not tendered against her?

CROWN PROSECUTOR:  No.  No, it’s not.

HIS HONOUR:  Who is it tendered against?  Flavel, is it?

CROWN PROSECUTOR:  Yes.

Now, in Judge Holt’s judgment, he referred to that situation there and he said:

Any use to which Meggett’s evidence has to the Spanish trip can, in my view, be dealt with by an appropriate direction to the jury.

That was never done.  That was Holt ‑ ‑ ‑

GLEESON CJ:   If she says, “I know what you have been up to with those dinghies”, is it not open to the prosecution to prove what had been done with the dinghies?

MR PAPAYANNI:   Well, they said that they were not going to lead it against her.

GLEESON CJ:   It depends on what you mean by that, but as a matter of principle, if they have evidence of a conversation in which she says, “I know what you have been doing with dinghies”, is it then open to the prosecution to prove what they had been doing ‑ ‑ ‑?

MR PAPAYANNI:   If it was a direction to that effect, well then, of course, it would be tied up with the dinghies ‑ with the Spanish trips, but there was no evidence that she knew of the seven trips.  She obviously knew Del Prado and she probably did know of them, but there was no evidence that she did know of them.  So when they are talking about the Spanish trips and they prove those Spanish trips, and then they prove the conversation that Meggett is supposed to have had with her, which she denies, it makes it more likely then that the jury would accept that evidence without any direction, that this related to her knowledge.

Now, it was in January 1998 and, of course, she was travelling around all the time, she knew that drugs were carried in different ways, but how did that make that conversation relevant to the fact that on this particular occasion that this boat carried a dinghy?  It is the sort of thing that you say in relation to somebody with a handbag that comes in on the Customs, “He could be carrying drugs”, but you do not know that that particular person is, in fact, carrying drugs in that particular handbag.  The evidence, in my submission:  there was no direction by the judge at all as to the use to which those Spanish trips could be taken.  There was no direction in relation to any of the other matters in relation to the conversations.

You have had all this conversation which are dynamite, really, in relation to Flavel, which are being used against her.  Now, if Flavel is guilty, well, then it comes on to her also if he said that to him and, of course, the whole point was that Meggett, himself, said, “I did not know there was cocaine in the bag, I suspected it.  I thought it might have been gold or contraband of some kind in relation to this matter.”, yet the jury found beyond reasonable doubt that she knew.

Now, in my submission, if there had have been appropriate directions, of course, it may have been a different situation.  But the whole

thing comes back to the indictment.  She has been convicted of a count which is invalid and if that had been tried separately, if she had been tried separately, none of this evidence would have got in, in relation to her.  She was prejudiced to such a degree that she did not have a fair trial, in my submission.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take in this matter.

AT 11.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.58 AM:

GLEESON CJ:   In this matter the Court is not persuaded that it is arguable there has been a miscarriage of justice and the application is dismissed.

AT 11.58 AM THE MATTER WAS CONCLUDED