R (Cth) v Cooper

[2019] NSWSC 1209

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v Cooper [2019] NSWSC 1209

Hearing dates:

30 August 2019

Date of orders:

30 August 2019

Decision date:

11 September 2019

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

Application refused.

Catchwords:

CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – dealing with the proceeds of crime – application for a directed verdict with respect to one charge – question of sufficiency of proof – absence of direct evidence – circumstantial case – whether it is open to the jury to infer that cash in accused’s possession is the proceeds of crime

Cases Cited:

Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51

R v LK; R v RK (2010) 241 CLR 177

R v JMR (1991) 57 A Crim R 39

R v R (1989) 18 NSWLR 74; (1989) 44 A Crim R 404

Category:

Principal judgment

Parties:

Regina (Crown)
Jonathan Paul Cooper (Accused)

Representation:

Counsel:
H Barklay QC/S Howell (Crown)
D Randle (Accused)

Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Anderson Boemi Lawyers (Accused)

File Number(s):

2016/00387430

Publication restriction:

Judgment previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW).

Judgment

1. HER HONOUR: At the close of the Crown case against the accused, application was made by him for a directed verdict to be returned with respect to one of the three charges, being count 3 on the indictment. I refused the application, reserving my reasons until today.

2. On 5 August 2019 the accused was arraigned before a jury panel on an indictment charging him as follows:

COUNT 1: For that he between about 1 September 2015 and 31 March 2016 at Sydney in the State of New South Wales and elsewhere conspired with Joseph Pirrello, Simon Spero, Joseph D’Agostino, Frank D’Agostino, John Tobin, James Collins, Richard Lipton, Stuart Ayrton and divers others to import a substance, the substance being a border control drug, namely cocaine, and the quantity being a commercial quantity;

COUNT 2: For that he between about 1 April 2016 and 25 December 2016 at Sydney in the State of New South Wales and elsewhere conspired with Joseph Pirrello, Simon Spero, John Tobin, Graham Toa Toa, Reuben Dawe, Richard Lipton, Stuart Ayrton and divers others to import a substance, the substance being a border control drug, namely cocaine, and the quantity being a commercial quantity;

COUNT 3: For that he on 26 December 2016 at Northmead in the State of New South Wales did deal with money that was and that he believed to be the proceeds of crime and at the time of the dealing the value of the money was $50,000 or more.

3. The accused having pleaded not guilty to all counts, a jury was struck and his trial proceeded.

The Crown Case

4. The Crown case, in summary, is that, in the period between about September 2015 and Christmas Day 2016, the accused reached two consecutive agreements with at least one other individual, Simon Spero, to import substantial quantities of cocaine. The overall plan was to collect drugs at sea that had been dispatched from international ports, and bring the drugs into Australia aboard local ocean-going vessels. The accused is alleged to have been the intermediary between Mr Spero and the international suppliers of cocaine, whilst Mr Spero himself was an intermediary between the accused and Joseph Pirrello, a man who managed a fleet of fishing vessels and was knowledgeable as to matters concerning navigation in and around waters off Australia’s east coast.

5. The first alleged conspiracy came to be known as the Saxon Progress Conspiracy, by reference to the Tasmanian ship chartered by the conspirators to meet the international drug vessel at sea. Although the Saxon Progress was put to sea with the aim of meeting the other vessel, that ship, a yacht known as the Vague a L’Ame, was seized in French Tahitian waters by the French Navy, and its crew and cargo of 610 kilograms of cocaine were taken into custody. The planned importation thus failed.

6. The conspirators discussed a further attempt at importing cocaine, with a second agreement alleged to have been reached between the accused and, at least, Mr Spero, for another large shipment to be brought into Australia by sea. Another ocean-going vessel, the Dalrymple, was used for that purpose, giving rise to the name by which this second alleged conspiracy came to be known, the Dalrymple Conspiracy.

7. The expected shipment arrived at Parsley Bay in Sydney Harbour during the evening of Christmas Day 2016. Simon Spero, who was piloting the small vessel that made landfall, was arrested in possession of half a tonne of cocaine. Mr Pirrello, who was waiting for the cargo at Parsley Bay, was also arrested. The cocaine was seized. Other persons alleged to have been involved in the planned importations were also apprehended.

8. Late on Christmas night Australian Federal Police (“AFP”) agents arrested the accused at his apartment in Northmead. The apartment was searched (Ex. AD). Scattered on a lounge in the lounge room and on the floor surrounding the lounge was an amount of Australian currency, principally comprised of $50 and $100 notes, amounting to $99,900 (Exs. AD, AK and AL). The cash was either loose on and about the lounge, or gathered in amounts of approximately $10,000 in heat sealed plastic bags. This money is the subject of count 3.

9. Other relevant items were also found. A number of formerly heat sealed plastic bags which appeared to have been cut open were located in the same area as the cash. Eight Nokia brand mobile telephones were seized. One of these contained a pre-paid SIM card in the accused’s name, although with a false address. In the same lounge area eight BlackBerry devices were located. Three of these were password protected; another appeared to have been wiped of all data; and a further two appeared to have been modified for operation as Phantom secure devices. All of these devices were encrypted and no data could be recovered from them. A Telstra mobile phone with a pre-paid SIM card subscribed in the name of Oanh Nguyen at a Bankstown address was seized. Another mobile phone, a Samsung S7 model, was also subscribed to an unknown individual, Sal Quach.

10. A considerable volume of other evidence was placed before the jury which, if accepted, is well capable of establishing that the accused was heavily involved in the schemes to import large amounts of cocaine into Australia for sale. This evidence included testimony from [REDACTED], each of whom had had direct contact with the accused and gave evidence of his involvement; electronic surveillance of the accused attending a meeting on 4 August 2016 in which he appeared to knowledgably participate in a conversation concerning the handover of drugs at sea; evidence of other meetings between the accused and Mr Spero that were observed by surveillance police and consistent with [REDACTED] evidence; and evidence that co-conspirators were in possession of encrypted Samsung mobile telephones that had been earlier purchased for cash by the accused.

11. There was no direct evidence led as to the origins of the cash found at the accused’s home and in his possession. The Crown’s case is circumstantial: the jury will be asked to have regard to the whole of the evidence led against the accused to conclude that the money in the accused’s possession was the proceeds of crime and, specifically, the proceeds of drug crime.

The Application

12. At the close of the Crown case on 30 August 2019 Mr Randle, Counsel for the accused, submitted that there was no evidence before the jury that was capable of proving to the criminal standard that the cash found in the accused’s possession was the proceeds of crime. He pointed out that, at the point at which the cash was located by the AFP, the Saxon Progress Conspiracy had failed, with no profit able to be made from the supply of cocaine, and the illicit cargo of the Dalrymple had been seized, with no profit made from that shipment. It was argued that, whilst there may be an inference open to the jury that the cash was, or was about to become, an instrument of crime, no inference could be drawn as to the source of the monies being from criminal activity. Mr Randle contended that the only way the jury could conclude that the cash was derived from an indictable offence was through impermissible bad character reasoning, being that the accused was a bad person engaged in drug importation, and any money in his possession must be drug money.

13. Queen’s Counsel for the Crown pointed to the mass of evidence from which the jury could comfortably conclude that the accused was a significant player in two planned operations to import substantial sums of cocaine valued on the streets in the hundreds of millions of dollars. There was evidence that the accused had operated as the local financier for the international supplier of the cocaine, making significant cash payments to other conspirators in furtherance of the conspiracies. The circumstances surrounding the seizure of the cash – the large amount involved, the fact that it was contained in heat sealed bags or had been cut from heat sealed bags, and the presence in the same area of numerous encrypted BlackBerry devices and mobile phones registered to unknown persons – of themselves further supported a conclusion that the cash could only have come from criminal activity, and likely serious drug crime. Although a circumstantial case on this aspect of the offence, the Crown submitted that the conclusion was properly open that the cash was the proceeds of crime.

The Law

14. There is no question but that the Court has the power to direct the jury to return a verdict of not guilty where no evidence has been adduced that is capable of establishing the elements of the offence. In R v LK; R v RK (2010) 241 CLR 177 the power was described (at [29]) thus:

This Court has held that it is a trial judge's duty to direct a jury to return a not guilty verdict where there is no evidence upon which a jury could convict. When that condition is satisfied it is sometimes said that there is no case to answer or that the prosecution has failed to make out a prima facie case.The generality of that proposition extends to the trial of offences against laws of the Commonwealth. The question whether there is a "case to answer" or a "prima facie case" is a question of law. The power and the duty of the judge todirect a verdict of not guilty where there is no case to answer is an expression of the judge's power and duty to decide questions of law. The position is the same where the direction is made upon the basis that the indictment does not disclose an offence known to the law [footnotes omitted].

15. The power to direct an acquittal is not one to be exercised simply because of a lack of direct evidence, or because a Crown case is perceived to be weak. In Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 the High Court said, at 214 - 215,

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

16. In refusing the accused’s application on 30 August 2019 I was not persuaded that there was such a defect in the Crown case.

Consideration

17. It is true that there is no direct evidence to establish the element of the offence which requires the Crown to prove that the money was, and the accused believed it to be, the proceeds of crime. That does not necessarily equate to an absence of proof, even compelling proof.

18. Here, the Crown’s case relevant to this element of count 3 is wholly circumstantial, but it is not in my conclusion incapable of proof.

19. The Crown relies upon the combination of numerous pieces of circumstantial evidence to ask the jury to infer that the $99,900 in cash in the accused’s possession on Boxing Day 2016 could only be the proceeds of crime, no other reasonable conclusion being available. That approach is one which is open to the jury.

20. The circumstances in which the cash was discovered are, of themselves, significant. The money was found in the accused’s lounge room late at night on Christmas Day and into Boxing Day, neither being dates upon which legitimate business is ordinarily transacted. The money had been removed from, or was contained in, anonymous heat sealed plastic bags rather than in bags bearing the symbol of a legitimate financial institution. Bags of this nature are typically the sort of bags in which illicit drugs are stored by those in the drug trade. The denominations were almost exclusively large, being $50 and $100 notes, rather than a variety of denominations as might be expected of monies earned through legitimate transactions and subsequently saved. It was found in the immediate vicinity of an unusually large number of mobile phones, with most subscribed to persons other than the accused, at addresses other than his address. Phones like this are commonly used by persons involved in crime because of the difficulty for authorities of tracing the actual user of the service. Also in the immediate vicinity of the cash was an unusually large number of encrypted BlackBerry devices, these being the communication device of choice in this period for persons involved in drug crime.

21. On the same night as the cash was seized, 500 kilograms of cocaine was landed on the shores of Sydney Harbour by two people whom the evidence directly linked to the accused, Simon Spero and Joseph Pirrello. [REDACTED].

22. [REDACTED] is supported by the discovery in Mr Pirrello’s possession that night of two Samsung mobile phones, one of which had been used by Mr Pirrello in the course of the conspiracy, the other having been used by Mr Spero. There was clear and incontrovertible evidence (Exs. AH and AJ) that it was the accused who purchased these devices, on 14 September 2019 for cash.

23. [REDACTED] is further supported by the evidence which places the accused at a meeting between [REDACTED] and the international drug supplier, known [REDACTED] as “the Inspector”. There is a considerable body of evidence concerning this meeting (Exs. P at 50-53, Q at 1-70, R at 1-8, and evidence from police involved in surveillance on that day). It is capable of establishing that the accused had the role attributed to him [REDACTED], as the contact person or liaison between the Australian conspirators and the international identities responsible for dispatching cocaine to Australia. Ex Q at 55-60 provides particularly compelling evidence of the accused’s agreement to and participation in the importation of large amounts of a border controlled drug.

24. [REDACTED] supported by some of the electronic evidence of intercepted conversations (such as Ex N at 6-8, and 9-38), is available to the jury to found a conclusion that the accused had access to large sums of cash, as the local financier of the importation.

25. There is also evidence before the jury, some of it led by the accused, to go to a conclusion that the accused does not earn the sort of sums through his legitimate occupation as to permit him to amass the money found by the AFP agents in his possession. Exhibit M at 2 is an invoice issued by a company associated with the accused, Big C Securities Pty Ltd, which billed security work done by him in January 2016 at a daily rate of $600. An uncashed cheque found in his apartment was payable to the accused in the sum of $25,000. Other evidence went to establish that his lifestyle showed no signs of being luxurious, with his apartment and its furnishings of an average standard, and the car he drove owned by someone else. Nothing in the evidence was capable of establishing or even suggesting that the accused could have acquired the cash through lawful employment or business.

26. Whilst none of these pieces of evidence can, taken individually, establish that the monies in the accused’s possession are the proceeds of crime, the jury will be asked by the Crown to examine the whole of the evidence and, on the basis of the facts found by it, to conclude that there is no other conclusion reasonably available than that the cash is derived from serious crime. That approach is one which is open to the jury to follow in my opinion.

27. In Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416 the Victorian Court of Appeal said that:

The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies J. explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt.

28. That statement was approved in R v R (1989) 18 NSWLR 74; (1989) 44 A Crim R 404, with that decision itself given as authority in R v JMR (1991) 57 A Crim R 39 for the principle that a trial judge may not direct a jury to acquit an accused person in a case which relied upon circumstantial evidence:

[…] if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated […] (at 44).

29. There is evidence upon which the accused can be convicted in my opinion.

30. To reason in the way the Crown will ask the jury to reason is not to ask for a conclusion that the accused is a bad person involved in drug crime, and thus that the money in his possession must be drug money; it is to ask for a conclusion that the accused is involved in serious drug crime and the money could only have been derived from serious drug crime. That approach is not one that relies upon impermissible tendency reasoning in my view. It simply asks the jury to have regard to the whole of the evidence as to the accused’s involvement in large scale drug offending, together with the apparent nature of his role as the local paymaster for the international drug syndicate, and his own modest source of legitimate income, to conclude that the monies could only have been realised from crime.

31. For these reasons, I refused the accused’s application for a directed acquittal with respect to count 3 of the indictment.

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Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024