R v Baggaley

[2024] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v Baggaley [2024] QCA 101

PARTIES:

R
v
BAGGALEY, Nathan Jon
(appellant)

FILE NO/S:

CA No 86 of 2021
SC No 881 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Reopening (Criminal)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 1 April 2021 (Lyons SJA)

DELIVERED ON:

Date of Orders: 22 March 2024
Date of Publication of Reasons: 31 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2022; 26 August 2022

JUDGES:

Morrison JA and Boddice and Davis JJ

ORDERS:

Date of Orders: 22 March 2024

1.   The appeal be allowed.

2.   The verdict below be set aside.

3.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of attempting to import a commercial quantity of a border controlled drug, namely cocaine – where the Crown case was entirely circumstantial – where the appellant’s fingerprints were on the tape concealing the registration number on the boat used in the attempted importation – where the appellant was involved in acquiring the boat – where the appellant had knowledge of the boat being taken out to sea – where the appellant had possession of a phone with a contact associated with the attempted importation – where there was further circumstantial evidence linking the appellant to the attempted importation – whether it was open to the jury to be satisfied of the appellant’s guilt in the offence beyond reasonable doubt – whether the jury’s verdicts were unreasonable and cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – INCONSISTENT VERDICTS – where the appellant’s co-accused (his brother) was granted an appeal against conviction, with it being ordered that the verdict be set aside and a retrial ordered – where the Crown contended at trial that the co-accused was the principal offender, and the appellant’s liability was either on the basis that he was a principal offender, or that he did acts with the intention of aiding the co-accused – where the appellant’s guilt was dependent upon proof of the co-accused’s guilt – whether the co-accused’s successful appeal has had a prejudicial impact upon the appellant

Criminal Code (Cth), s 307.1(1)

Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15, applied
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Baggaley[2023] QCA 249, cited
R v Darby (1982) 148 CLR 668; [1982] HCA 32, applied
R v Smith [2006] 1 Qd R 540; [2005] QCA 204, cited
Zhou v The Queen [2021] NSWCCA 278, cited

COUNSEL:

M J Copley KC, with A J Kimmins, for the appellant on 17 March 2022
The appellant appeared on his own behalf on 26 August 2022
R M O’Gorman KC, with S E Harburg, for the respondent on 17 March 2022
S J Farnden and S E Harburg for the respondent on 26 August 2022

SOLICITORS:

Jasper Fogerty Lawyers for the appellant on 17 March 2022
The appellant appeared on his own behalf on 26 August 2022
Director of Public Prosecutions (Commonwealth) for the respondent

1. THE COURT:  On 1 April 2021, a jury found the appellant, and his brother Dru Baggaley (Dru), guilty of one count of attempting to import a commercial quantity of a border controlled drug, in breach of s 307.1(1) of the Criminal Code (Cth).

2. On 27 July 2021, the appellant was sentenced to 25 years imprisonment, with a non-parole period of 12 years.

3. The appellant appeals his conviction.[1]

   [1]An application for leave to appeal against sentence was the subject of a separate hearing.

4. At the hearing of the appeal, the sole ground of appeal was that the verdict was unreasonable.

5. On 9 January 2024, an amended notice of appeal was filed and a second ground of appeal was added, namely:

   “A miscarriage of justice has been established by the Queensland Court of Appeal (QCA) for the co-accused’s brother, Dru Baggaley, whereby the consequences of the miscarriage of justice also had a prejudicial impact upon the appellant”.

6. Ground two was added after the Court raised whether, if Dru won his appeal against conviction, that success would be inconsistent with the appellant’s conviction.

7. On 22 March 2024, the Court ordered that the appeal be allowed, that the verdict below be set aside, and that there be a retrial.  These are our reasons for joining in the making of those orders.

   Indictment

8. The appellant was charged on indictment, with Dru, that between about 16 December 2017 and 2 August 2018 in the State of Queensland and elsewhere, Dru and the appellant had attempted to import a commercial quantity of a border controlled drug, namely cocaine, contrary to s 307.1(1) of the Criminal Code (Cth).

9. The Crown alleged the total quantity of the border controlled drug was approximately 512 kilograms of pure cocaine and therefore a commercial quantity, in accordance with sch 4 item 41 of the Criminal Code Regulations 2002 (Cth).[2]

   [2]Sch 4 item 41 of the Criminal Code Regulations 2002 (Cth) appears at sch 2 item 43 of the Criminal Code Regulations 2019 (Cth).  The current version was not in force at the time of the offending.

10. The Crown particularised Dru’s conduct as including one or more of the following acts:–

    “a.Making arrangements for Anthony Draper to assist with the voyage to collect the cocaine parcels at sea;

    b.Preparing for the voyage to collect the cocaine parcels at sea, including by purchasing and equipping the vessel with fuel;

    c.Undertaking the voyage to specified coordinates, to collect the cocaine parcels at sea;

    d.Retrieving the parcels of cocaine and loading them onto the Rigid Hulled Inflatable Boat at sea;

    e.He, together with Anthony Draper, took steps to bring the cocaine into Australia on the Rigid Hulled Inflatable Boat by commencing the return voyage towards Australia;

    f.He gave instructions to Anthony Draper regarding the driving of the vessel when authorities began to pursue the vessel.”[3]

    [3]AB 1099.

11. The Crown particularised the appellant’s conduct as including one or more of the following acts:–

    “a.Arranging, purchasing and registering the Rigid Hulled Inflatable Boat, and equipping the vessel with communication and navigation equipment, in May-June 2018;

    b.Covering the registration number of the vessel with tape at some point on or prior to 30 July 2018;

    c.Providing the vessel, or allowing access to the vessel, to Dru Baggaley for the voyage, on or prior to 30 July 2018;

    d.Communicating and/or attempting to communicate with Dru Baggaley while the vessel was at sea;

    e.Being physically present in the area of the Brunswick Heads boat ramp on 31 July 2018 and 1 August 2018 to receive the imported substance.”[4]

    [4]AB 1099.

12. The Crown contended that Dru was a principal offender, committing the physical elements of the attempted importation offence with the relevant mental element associated with that conduct.  The appellant’s liability was either on the basis he was a principal offender, committing the physical elements of the attempted imported offence with the relevant mental element associated with that conduct, or alternatively, on the basis he did each or any of the particularised acts with the intention of aiding Dru to commit an offence of importation of a border controlled drug, and his conduct did in fact aid Dru in the commission of that offence.

13. The defence case at trial was that the case against the appellant was circumstantial and the jury could not exclude a reasonable hypothesis consistent with innocence, namely, that the appellant acquired and equipped the rigid hulled inflatable boat (RHIB), permitted or tolerated its use, communicated or tried to communicate with it whilst at sea, and looked for Dru’s return at or around the Brunswick Heads boat ramp unaware that Dru intended to and had gone out in it in an attempt import a border controlled drug.

    Admissions

14. At trial, a number of admissions were made pursuant to s 644 of the Criminal Code (Qld). Relevantly, they included:–

    (a)At all material times, the appellant used mobile service 0473 168 329;

    (b)Between 26 August 2017 and 20 June 2019, the appellant used the encrypted application WhatsApp;

    (c)On 17 January 2018, Samsung J320ZN mobile phone with IMEI number 358523/07/162248/3 and service number 0472 637 412 was subscribed to Rachael Sibilant (the 412 phone), but she never used or had that mobile phone number;

    (d)On 14 May 2018, the appellant began negotiating for the purchase of the RHIB, with the quoted price being $106,700 and $2,500 for a trailer upgrade;

    (e)Between 21 May 2018 and 8 June 2018, payments totalling $108,900 were made to purchase the RHIB;

    (f)On 29 May 2018, mobile service 0498 251 240 was subscribed in the name of Graham Black (the 240 phone);

    (g)On 29 May 2018, the appellant purchased an Inmarsat Fleet One GPS system for $7,949.70 and the satellite phone number allocated to the appellant under the RHIB was 870 773 246 981;

    (h)On 30 May 2018, the appellant purchased a satellite telephone kit, with the appellant being allocated satellite phone number 0405 633 212 (the 212 phone);

    (i)On 31 May 2018, the appellant began negotiating the installation of the Fleet One GPS system;

    (j)On 6 June 2018, the RHIB was registered, being registration number ANG 70Q and the trailer, registration number 471 UGY, in the name of the appellant;

    (k)On 6 June 2018, the appellant collected the RHIB and trailer;

    (l)On 11 June 2018, at the request of the appellant, the Fleet One GPS system was installed on the RHIB at the appellant’s residential address; installed on that vessel was a “Sailor Fleet One” below deck unit which incorporated a satellite phone (IMEI 352862060040208); and connected to the Sailor Fleet One was a Netgear wireless router with a WIFI network name of “Netgear01”;

    (m)On 3 July 2018, the appellant attempted to connect to the internet via the wireless system linked to Sailor Fleet One and sought assistance from the installer;

    (n)On 6 July 2018, the appellant messaged the seller of the satellite telephone kit requesting assistance setting it up and activating data;

    (o)At 10.02 am on 28 July 2018, waypoint labelled “002”, with coordinates S28.09.507 degrees, E157.21.944 degrees, was entered into the Lowrance Elite 7Ti Chartplotter fixed to the RHIB;

    (p)At 6.03 pm on 28 July 2018, waypoint labelled “28_Jul2018_08_03_57”, with coordinates 28.167.683 degrees, 157.365740 degrees, was entered into a fishing application on a Samsung J320ZN mobile phone, with service number 0472 637 412;

    (q)At 6.06 pm on 28 July 2018, waypoint labelled “28_jul_2018_08_06_06”, with coordinates 28.158450 degrees, 157.365740 degrees, was entered into a fishing application on the same phone, namely the 412 phone;

    (r)On 28 July 2018, mobile service 0487 951 720 was subscribed in the name of Emma Cottee (the 720 phone);

    (s)At 11.57 pm on 29 July 2018, Telstra mobile phone recharge voucher, charge number 658120920270 for the value of $30 was purchased using cash at Caltex Starmart Murwillumbah;

    (t)At 9.10 am on 30 July 2018, recharge number 658120920270 for $30 was charged onto a Samsung J250G mobile phone, namely the 720 phone;

    (u)Emma Cottee had never used or had a Samsung J250G mobile phone with service number 0487 951 720;

    (v)At 9.55 am on 30 July 2018, Dru booked and paid for Anthony Draper (“Draper”) to fly to Coolangatta airport, with Draper departing Sydney at 4.40 pm that day on Jetstar flight JQ414, arriving at Coolangatta airport at 6.00 pm wearing a black beanie, grey-coloured jumper and black pants;

    (w)On 30 July 2018, mobile service 0467 363 762 was subscribed in the name of Graham Black (the 762 phone).  No phone with that number was ever located;

    (x)At 10.01 pm and 10.57 pm on 30 July 2018, waypoints labelled “004” and “4”, each with identical coordinates S28.09.507 degrees, E157.21.944 degrees, were entered into the Lowrance Elite 7Ti Chartplotter on the RHIB;

    (y)On the evening of 30 July 2018, Dru and Draper went out to sea in the RHIB through the mouth of the Brunswick River at Brunswick Heads, New South Wales, travelling in an easterly direction;

    (z)At 7.26 am and 7.28 am on 31 July 2018, the 762 phone (subscribed in the name Graham Black) attempted to contact the RHIB’s satellite phone number 870 773 246 981;

    (aa)At 7.44 am on 31 July 2018, a much larger vessel was first observed from a surveillance aircraft at coordinates 28 degrees and 9 minutes south, 157 degrees and 34 minutes east, tracking in the direction 268 degrees;

    (bb)At about 9.40 am on 31 July 2018, at about 157 degrees and 21 minutes longitude, the RHIB took up a position astern of the larger vessel;

    (cc)Packages were thrown into the sea from the larger vessel and collected by Draper and Dru;

    (dd)At 10.49 am on 31 July 2018, Dru and Draper returned in the RHIB towards Australia, tracking westerly at 15 knots per hour, with the packages onboard;

    (ee)At about 12.45 pm on 31 July 2018, the crew of an Australian Defence Force vessel (the ADF vessel) attempted to stop and board the RHIB.  ADF officers verbally directed Dru and Draper to yield to allow boarding, which they failed to do so;

    (ff)Dru began throwing the packages into the sea;

    (gg)Packages were recovered by crew members of the ADF vessel and found to contain cocaine, with other packages washing ashore in the subsequent months having a similar consistency;

    (hh)The total pure amount of cocaine recovered was at least 512.5 kilograms, with the cocaine probably coming from Columbia;

    (ii)Cocaine is a border controlled drug, having a price when sold as kilogram units in Queensland and New South Wales in 2017-2018, within the range of $165,000 to $300,000 per kilogram;

    (jj)At about 4.55 pm on 31 July 2018, the RHIB, containing Dru and Draper, was intercepted by the Queensland Police Service Water Police, 65 nautical miles east of Byron Bay, New South Wales;

    (kk)Among items recovered from the RHIB, was the 720 phone (found on the bottom of the boat among the fuel containers) which had, when the RHIB was travelling back towards Australia, received a Wickr message and two Threema encrypted messages;

    (ll)Only the two Threema messages could be accessed which revealed they had been sent by someone who used the username “Thunderbutt”.  One message read “How’s things”; the other, read only in part, was “I’m on standby ready.  Let me know what’s g…”;

    (mm)The 720 phone had a Navionics boating application installed and auto reconnect enabled to the Netgear 01 wireless router in the RHIB;

    (nn)Also recovered from the RHIB was a Samsung Galaxy G930F mobile phone (service number unknown), located under the seat of the RHIB.  Examination revealed it had encrypted messaging application WhatsApp and had been connected to the Netgear 01 wireless router in the RHIB.  Forensic examination of the mobile phone located Dru’s DNA profile and a second profile from an unknown source;

    (oo)At 7.20 pm on 31 July 2018, Dru’s vehicle with the appellant’s boat trailer attached to it, was reversed and parked adjacent to the Reflections Holiday Park at Brunswick Heads;

    (pp)At 12.39 am on 1 August 2018, the 762 phone attempted to contact the RHIB’s satellite phone number;

    (qq)At 7.27 am on 1 August 2018, police executed a search warrant at Dru’s parent’s house, being Dru’s residence at that time, locating recharge voucher number 658120920270 for $30 in Dru’s bedroom bin, as well as an encrypted Samsung SM-J105Y mobile phone PS3538982/006;

    (rr)On 1 August 2018, between 7.30 am and 10.30 am, police searched Dru’s vehicle, locating keys, a wallet containing Dru’s driver’s licence, a Jetstar boarding pass in the name of Draper and a Samsung J320ZN mobile phone with IMEI 358523/07/162248/3, namely the 412 phone;

    (ss)On or about 8.26 am on 1 August 2018, the appellant drove past Dru’s vehicle, with the RHIB trailer attached, parked out the front of the Reflections Holiday Park, adjacent to the boat ramp, before driving away;

    (tt)At 9.02 am on 1 August 2018, the appellant stood on the north side of the Brunswick River, directly opposite the boat ramp area, remaining there until 9.23 am, looking in the direction of the boat ramp area;

    (uu)At 9.30 am on 1 August 2018, the appellant drove to the boat ramp area, parked his vehicle adjacent to the Reflections Holiday Park and walked toward the park’s office;

    (vv)At 9.47 am on 1 August 2018, the appellant went to a position near the Brunswick Heads Surf Club, from which there is an uninterrupted view of boats out at sea making for the river’s entrance;

    (ww)At 10.35 am on 1 August 2018, the appellant’s vehicle was stopped in Byron Bay and searched by police, with nothing of interest located;

    (xx)On 1 August 2018, the RHIB was transferred by police onto the appellant’s trailer and transported to a police facility.  A search located, amongst other things, a black Samsung phone IMEI 356397086726825; a Lowrance Elite 7Ti Chartplotter; a Netgear wireless router; a Sailor Fleet One below deck unit; an Inmarsat SIM card 898709917414543385; six rolls of silver masking tape; a submersible handheld radio; and a red radio bag;

    (yy)A forensic examination of the Lowrance Elite 7Ti Chartplotter, identified the following waypoints saved on the device:

    (i)“002”: waypoint S28.09.507 degrees, E157.21.944 degrees, entered at 10.02 am on 28 July 2018;

    (ii)“003”: waypoint S28.30.207 degrees, E153.39.100 degrees, entered at 10.30 am on 28 July 2018;

    (iii)“004”: waypoint S28.09.507 degrees, E157.21.944 degrees, entered at 10.01 pm on 30 July 2018; and

    (iv)“4”: waypoint S28.09.507 degrees, E157.21.944 degrees, entered at 10.57 pm on 30 July 2018.

    Those waypoints are located in close proximity to the location where Draper and Dru met with the larger vessel to collect the packages;

    (zz)An examination of the RHIB revealed its registration number on the hull had been covered with two pieces of black adhesive tape, on the sticky side of which were three fingerprints, all from the same finger, matching the print of the appellant’s left index finger;

    (aaa)On 6 August 2018, the Samsung J320ZN (the 412 phone) was forensically examined and found to have several saved waypoints, including waypoint 28.167683 degrees, 157.365740 degrees, labelled “28_Jul_2018_08-03_57” and waypoint 28.158450 degrees, 157.365470 degrees, labelled “28_Jul_2018_08_06_06”.  Both of those waypoints were located in close proximity to where Draper and Dru met up with the larger vessel to collect the packages.  A third coordinate 28.397387 degrees, 153.416920 degrees, labelled “36’s” identified the residence Dru lived with his mother and father.  An examination of images on that mobile phone identified two images dated 3 July 2018 taken in Dru’s bedroom, and two images dated 29 April 2018 and 22 July 2018, indicating that the phone had two encrypted messaging applications, Threema and Wickr, installed on it;

    (bbb)On 4 September 2018, police searched the appellant’s house finding, among other things, three phones: a Samsung SM-G930F Galaxy S7 IMEI 354074094404040 with service number 0473 168 329, subscribed in the appellant’s name (the 329 phone); a Samsung SM-G920P Galaxy S6 IMEI 990006974103607 with a SIM card assigned to the number 0498 251 240, subscribed in the name Graham Black, namely the 240 phone; and the third being a locked and encrypted Samsung mobile.  Police also found documents relating to a Cobham IP handset, Brig Rigid and Pivotel Satellite, and packaging and the owner’s manual for a Lowrance Elite 7Ti;

    (ccc)Forensic examination of the 329 phone subscribed in the appellant’s name revealed on occasions between 7 August 2017 and 1 July 2018, the appellant discussed in text messages with others using Wickr.  There were text messages arranging the purchase of the RHIB and of a satellite system and a satellite sleeve kit.  There were also numerous personal and business-related photographs of the appellant;

    (ddd)The contents of the Samsung phone, which was found locked and encrypted, could not be accessed by police.  That phone was found in the bathroom of the appellant’s residence on top of the appellant’s work phone, which was found not to contain any relevant evidence;

    (eee)The 240 phone containing the SIM card subscribed in the name of Graham Black contained password protected apps – Wickr and Threema, both having been installed on 27 August 2017, with the Threema username “Big Boy”.  It also contained numerous personal and business-related photographs of the appellant;

    (fff)The appellant was served with a lawful order requiring him to allow access to those phones located at his home, which he did not comply with to the extent that he did not allow access to the encrypted Samsung phone and did not give police the codes to allow access to Wickr or Threema;

    (ggg)Prior to the 240 phone being assigned to the name Graham Black on 29 May 2018, the handset had not been used since 29 December 2017;

    (hhh)On 5 November 2018, the encrypted Samsung SM-J105Y mobile phone handset, located at Dru’s home on 1 August 2018, was forensically examined and found to have a Telstra SIM card ID 8500147789466NGP.  It was determined that the phone was unable to be examined due to it being fully encrypted and no password having been provided;

    (iii)Draper pleaded guilty to attempting to import a commercial quantity of a border controlled drug, namely cocaine.

    Other evidence

    Boat purchase

1. The owner of a marine business received a telephone inquiry on 14 May 2018, from “Nathan”, as to the availability of a seven metre plus inflatable boat, with high horsepower and a passenger capacity of 12 plus.  Nathan said he had a dive school and the boat was for his dive school.

2. The business specialised in the distribution of inflatable boats in Queensland, but did not have one in stock.  It would normally take about eight weeks to source one in-house, but a Melbourne dealer had one already rigged up with the engine on it, so the business was able to source one within the requested time frame of three weeks.  The package was upgraded to include a dual axle trailer, a high quality trailer more capable of holding the total boat, motor and fuel weight of that package.

3. The RHIB was delivered around 6 June 2018.  They registered it and the trailer under a Queensland driver’s licence or a customer reference number.  Some of the payment was made by credit card; some by bank transfer.  A fair amount was paid in cash.  Nathan physically gave the cash.  There was a deposit of $9,000 in cash.

4. Business records recorded “Transaction details from Nathan Baggaley INV0870”.[5]  There were three cash deposits on 21 May, 22 May, and 31 May 2018.  There was also a bank transfer on 31 May 2018.  There were a total of eight transactions, the final one, on 8 June 2018, being received by the time the RHIB was transferred to the customer.  The tax invoice generated by his business gave as the details “Surf craft. Nathan John Baggaley.”[6]  The term “surf craft” came from one of two email communications with Nathan.

   [5]AB 499/10.

   [6]AB 500/10.

5. In cross-examination, the business owner accepted that his first contact with the appellant was on 14 May 2018.  Within 24 hours, he had sourced the boat in Melbourne and given the appellant a price.  By 9.44 am on 15 May 2018, the appellant sent him a text message saying, “Good news, we have a deal.  Do you want a deposit before you organise to get it up here.”[7]  An email address, to send the invoice to, was requested and an email to Nathan at Gibbons Surf Craft was given.

   [7]AB 501/20.

6. The business owner said in their first conversation, the appellant said he wanted to buy the boat for a commercial dive school’s use.  Dive schools are generally a commercial survey boat specialising in taking a number of people per boat.  The same boat could be used as a whale watching boat and take more people without the tanks.  When asked whether Nathan raised that one of the intentions was for the boat to be used for whale watching, the owner replied, “It was a surf/dive boat, so yeah – so basically whale watching, surf schools, diving. … It’s quite a common practice in Byron Bay.”[8]

   [8]AB 505/30–35.

7. The owner agreed that when he first spoke to police on 20 September 2018, he was shown a photo board, where he “fairly quickly” identified a photograph of the appellant.  He told police that was the person who bought the boat; that the person wanted an immediate delivery solution; that the person said he was from Gibbons Surf School in Byron Bay; that he sourced a boat through his dealer network to meet his expectations and requirements; and that he only met the person once or twice from memory.

   Interception

8. The meeting of the RHIB and the larger ship, at sea, and the subsequent interception of the RHIB by law enforcement authorities, was the subject of extensive video recordings.  Those recordings were played to the jury.  The recordings included the chase by the ADF vessel, in an attempt to intercept the RHIB, and naval personnel launching sea boats in order to recover black items thrown from the RHIB.

9. Video observations commenced at 8.41 am on 31 July 2018, when the RHIB was tracking at 80 degrees at approximately 20 knots, and continued throughout the remainder of the mission.  Those observations recorded the meeting of the two vessels.  At 9.23 am, on 31 July 2018, the two vessels began to separate with the larger vessel proceeding in a north-easterly direction.  The RHIB was manoeuvring and there were objects in the water, in its vicinity.  The RHIB began to move away at 10.49 am on 31 July 2018, travelling in a westerly direction.

10. At approximately 12.45 pm on 31 July 2018, the ADF vessel had its first visual sighting of the RHIB, described as a 6–7 metre RHIB-style boat, grey in colour.  It had a centre console with a Honda 225 outboard at the back.  The ADF vessel might have been visible to the RHIB between eight and 10 nautical miles away.

11. A Royal Australian Air Force aircraft (the RAAF aircraft), assigned to the surveillance of the RHIB, first had contact with the RHIB at 12.19 pm on 31 July 2018.  The recordings showed two vessels, the RHIB and the ADF vessel.  At one point, the aircraft was tasked with maintaining eyes on the RHIB whilst the ADF vessel retrieved packages out of the water.  The RHIB was observed to stop once.  An occupant wearing a light coloured shirt went to the rear of the vessel and was handling what looked like fuel containers for a 20 minute period.

12. When the ADF vessel was 169.5 nautical miles off the Australian coast and it was 12.49 pm, local time, the ADF vessel began to approach the RHIB.  At 12.56 pm on 31 July 2018, the ADF vessel used the distress channel in an attempt to contact the RHIB.  An officer said, “I am an Australian Defence vessel.  I intend to board you to enforce Australian law.  You are to stop or heave to.”[9]  There was no response from the RHIB, whether on radio or otherwise.  At that point, the RHIB started driving a lot more erratically, moving both at speed and in more than one direction, away from the ADF vessel.

    [9]AB 267/14–16.

13. A second warning was given over the radio and by use of a loud hailer, at the same time, saying, “I’m an Australian Defence vessel.  You are to stop or heave to or I will be forced to fire forward of you.”[10]  At that point, the RHIB was within a nautical mile of the ADF vessel.  The warning over the loudspeaker system can be heard within a nautical mile, even over a loud engine.  After that second warning, the RHIB was still driving erratically and trying to get away from the ADF vessel.  A further warning was given in the same terms, both over the radio and the loud hailer.  The RHIB was then half a mile from the ADF vessel.

    [10]AB 268/20.

14. The pursuit ceased at approximately 1.12 pm on 31 July 2018, when the ADF vessel was directed to retrieve items thrown from the RHIB.  Approximately 30 packages were retrieved from the water, by sea boats.  The process took approximately one hour.  Ten parcels were located by one sea boat, spread across a large area of the ocean, varying from 100 metres apart to what felt like 500 or 600 metres apart.  A second sea boat was launched approximately five minutes later.  Both sea boats were roughly undertaking the recovery for the same total period.  At about 2.05 pm on 31 July 2018, the sea boats came back to the ADF vessel.

15. The retrieval was photographed and the photographs shown to the jury.  The recovered packages were encased in a black garbage bag with a fishnet sort of wrapping over the top.  The bag kept it waterproof.  The netting kept it secured together.  The packages floated in the ocean.  They were pretty well watertight and airtight.  They were obviously designed to not allow water into them.

16. After 4.00 pm on 31 July 2018, the RHIB was intercepted by a Queensland Water Police vessel (the QPS vessel).  The RHIB was manoeuvring to evade the intercepting vessel, changing course rapidly, from one direction to another direction, whilst maintaining a high speed.  The QPS vessel observed a vessel travelling at speed in a westerly direction heading towards the coast.  It had a 225 horsepower Honda silver outboard.  There were two male persons on board.  The driver was wearing a blue hoodie.  The navigator was an older male, wearing a grey jumper.

17. When first observed, the RHIB was less than a nautical mile away.  The QPS vessel was travelling at approximately 50 knots.  After the RHIB was intercepted, the two male persons on the RHIB were transferred to the QPS vessel and later taken back to the Gold Coast.  The intercept took less than one minute.  The events were recorded by police on a mobile phone.  That footage was played to the jury.

18. For approximately one hour after the intercept, the RAAF aircraft stayed with eyes on the RHIB.  The aircraft departed the area at approximately 6.00 pm on 31 July 2018.  Apart from a period early on in the flight when their system went down for about two minutes, the aircraft had eyes on the RHIB for the whole time from its first sighting.  The RHIB was travelling in a westerly direction.

19. The two persons on board the RHIB were taken into custody, and a police officer took control of the RHIB.  He remained on board for approximately three hours.  When the officer took control of the RHIB there were 19 fuel containers of 20 litre capacity on it.  Thirteen of the containers were full, six were empty.  The fuel gauge was flashing, indicating there was no fuel left.  Permission was obtained to refuel.  Eighty litres of fuel was put into the RHIB, being four of the 20 litre drums.

20. A search of the RHIB, conducted later that evening, located a satellite phone, which was hardwired into the helm of the RHIB, and a mobile phone and wallet down the rear of the vessel, among the fuel containers.  In the rear bench seat compartment, there was a wireless router that was also hardwired into the RHIB.  There was some paperwork on top of the box.  The router was for internet data or usage.  The paperwork referred to a Wi-Fi network name, Netgear 01.

21. The officer produced a series of photographs of the RHIB and its contents.  He identified a VHF radio used for vessel-to-vessel communication on the water.  It was hardwired to the RHIB.  There was also a connection cord for the satellite phone, found in a storage compartment to the right of the steering wheel.  There was a Lowrance GPS Fish Finder, which is used for navigational aid.  There was also a satellite transmitter, which was attached to the rear of the RHIB.  A screen shot of time stamped waypoints featured on the Lowrance navigational aid was shown to the jury.  The data on the screen was accessed by pressing the screen.

    Investigation

22. Items seized in the investigation included a Jetstar boarding pass for Draper on 30 July 2018, departing Sydney to the Gold Coast, located in Dru’s vehicle and a SIM kit with a serial number and a phone number handwritten in pencil 0487 951 720, located at Dru’s residence.  The SIM card kit did not contain a SIM card.  CBA bank records for accounts connected with Dru and a Telstra prepaid reload docket for a mobile phone located at Dru’s residence were also in evidence.  The Telstra prepaid docket was dated 29 July 2018, with the time 11.57 pm.

23. Documentation was produced from the boat dealership from which the RHIB was purchased in 2018, including a Queensland government registration document, an ANZ deposit receipt and the RHIB’s registration number ANG 7OQ.  Documentation was also obtained from the Commonwealth Bank, in respect of bank accounts held in the appellant’s name, for the period 1 July 2017 and 31 August 2018 and from ING, in respect of an account in the name of the appellant’s partner.  Those records revealed the source of funds related to the purchase of the RHIB.  Documentation was also obtained, confirming the correctness of the boarding pass details of the flight Draper took to the Gold Coast.

24. CCTV footage was taken from a camera connected to the Reflections Holiday Park located in the vicinity of the Brunswick Heads boat ramp.  This footage was played to the jury.  It recorded that at 7.18 pm on 31 July 2018, Dru’s utility, towing a trailer, was backed into a position near Reflections Holiday Park.  The utility and trailer were in the same position at 8.20 am on 1 August 2018.  The trailer was the RHIB’s trailer, registered in the name of the appellant.  The recording also recorded the appellant’s vehicle drive past Dru’s vehicle, with the attached trailer, at about 8.26 am on 1 August 2018, before turning around and leaving the area.  Dru’s vehicle and the trailer were parked in the same location when photographed by police on 1 August 2018.  Those photographs were shown to the jury.[11]

    [11]At this point, Lyons SJA noted that the CCTV footage described the surveillance as of the ramp, but that it was not the ramp, it was on the road near the ramp (AB 315/1).  The Reflections Holiday Park was about 400 metres from the boat ramp (AB 320/40).

25. Surveillance records revealed that the appellant was under surveillance on 1 August 2018, commencing at 6.21 am.  According to the surveillance records, the appellant was first observed at 9.02 am with a person called Koweki on the northern side of the Brunswick River, looking in the direction of the Brunswick Heads marina.  Police had no knowledge of Koweki in or around that particular place prior to 9.02 am.  By 10.28 am, the appellant and Koweki appeared to have gone their separate ways.

26. The appellant was intercepted at 10.33 am, by New South Wales detectives, on his own.  The appellant remained under surveillance from 10.33 am until 1.25 pm.  No matter of interest was observed by police.  A search of his vehicle revealed nothing of interest.  Koweki’s vehicle was not intercepted that day, nor was his house searched by police.  Koweki was spoken to by police on 17 December 2018.  Police did not know where Koweki was at the time of the trial.

27. A map was shown to the jury, identifying the locations of certain places, including: the Brunswick Heads boat ramp; Reflections Holiday Park; where Dru’s vehicle was located on 1 August 2018 with a trailer attached; Nathan’s residence; and Dru’s residence.  Evidence was also given as to mobile phone towers, in and around the Byron Bay area.  If a mobile phone is in that area, depending on the amount of traffic at the various cell towers, it may well show up on different towers, despite the fact the phone does not move.

28. The next contact with the appellant was on 4 September 2018, when the search was conducted of his residence.  During that search, the appellant was given a lawful direction to open a locked and encrypted Samsung phone, as well as two passcode protected encrypted messaging apps, Threema and Wickr.  Neither was complied with by the appellant.  If a person refuses to open their phone after such a lawful order, they are liable to imprisonment.  The appellant was never charged with failing to comply with the direction.  There was no further contact with the appellant until he was arrested on 20 June 2019.  The SIM card for the 762 phone was never found.

29. A federal agent with the Australian Federal Police, gave evidence as to coordinate data in respect of the location of the residence Dru shared with his parents, as well as details of the waypoints entered into the RHIB’s equipment, and various other electronic equipment.  Those points were on a map tendered in evidence.

30. A crime scene investigator with the Australian Federal Police photographed and deconstructed the packages collected from the sea.  The packages had black plastic wrapping and surrounding netting.  Inside were quite bright blue coloured blocks.  Each of the blocks contained 10 smaller bricks.  The bricks had varying logos on them.  Inside each brick there was a clear layer and a brown tape layer.  Inside the final layer was a white compressed powder block.  Each brick weighed approximately 1 kilogram.  There were 588 bricks in total, weighing a total 587.6 kilograms.

31. The investigator also photographed the RHIB, and the trailer.  Photographs were shown of black tape covering the registration numbers of the RHIB, together with the removal of that tape by police.  Three latent fingerprints were identified on the sticky side on one of pieces of tape.

32. A fingerprint examiner employed by the Australian Federal Police, compared the fingerprints of the appellant, Dru and Draper with latent prints found on items seized by police.  The three latent prints found on the sticky side of the tape covering the RHIB’s registration number, were from the appellant’s left index finger.[12]  One print was centred in the middle of the finger area; the other two were higher up from the core.  All were consistent with a single tap of that finger.

    [12]Although not the subject of a formal admission, the appellant did not challenge that three fingerprints from his left index finger were developed from the adhesive side of the tape which had covered the registration number of the RHIB (AB 415/25).

33. The examiner accepted it was very difficult to age a fingerprint and there were a number of variables, including the composition or the texture of the object touched, which may mean that person will not leave a fingerprint.  Other factors can impact on whether a fingerprint remains on a surface, including oils and waxes, the amount of pressure applied, hot weather, or excessive moisture.  If a fingerprint had been left on the non-adhesive side of the tape, it would decompose quickly when exposed to sea water, wind, and potentially heat or rain.

34. The examiner did not know the adhesiveness of the tape.  He had not conducted any examination as to the manufacturing processes for that type of tape.  The examiner could not say how long prior to his examination the fingerprints were deposited on the adhesive side of the tape, or how they were deposited, other than they were deposited by a finger by handling the tape.

35. A security liaison specialist at Telstra produced call records relating to the 762 phone.  It recorded all calls to that service, as well as any data sessions, for the period 30 July 2018 to 5 August 2018.  Data included forms of communication between the device and internet based services which typically could be Facebook, WhatsApp, a navigation application or a banking application.  It was not possible to determine from the record what kind of activity was involved, other than that it was a form of internet based activity.  It was also not possible to tell whether there was an active user interaction at the time, as it could be a data segment running in the background that is not being interacted with by the user.  The records revealed that incoming SMS messages had been delivered to the 762 phone.  The records also identified the location of the mobile radio tower.  It did not identify the position of the actual mobile phone.

    Draper

36. Draper gave evidence that he first met Dru in 2017.  He had met with him three or four times before travelling to Coolangatta and going out to sea on the RHIB.  Draper travelled up to Coolangatta after Dru contacted him by telephone on 29 July 2018.  Dru asked him to drive a boat.  Draper had previously been a professional fisherman and had experience taking boats offshore.  However, he had not previously discussed that with Dru.

37. Draper said up to that point on 29 July 2018, he had not ever used an encrypted software called Wickr.  Dru told him to download Wickr, which he did using Dru’s username which he was told was “Tiger Shark”.  Draper put the name “Mahi Mahi” as his username.  Draper said he used Wickr to communicate with Dru.

38. Draper said he received a message from Dru to “Just come up and drive a boat for me” and that he would be paid $10,000 in return.[13]  The boat driving was “to go pick up some smoko” which Draper thought might mean marijuana or pot.[14]  Dru told him they were going to pick up maybe 100 pounds or something like that.  They were just going to go out to a boat out of Brisbane, off the coast.

    [13]AB 422/10–20.

    [14]AB 422/25.

39. Draper said he agreed to travel to Queensland to drive the boat.  At that time, he had no money.  Dru booked and paid for the flight to Coolangatta.  On the afternoon of 30 July 2018, the following day, Draper travelled from Sydney to Coolangatta.  Dru picked him up in his utility.  They went to get some fuel containers and then got something to eat.  At that stage, there was nothing attached to the utility.

1. Draper said they headed down to the boat ramp at Brunswick Heads.  The boat was already in the water.  It was a centre console RHIB with a 200 to 250 outboard.  There was no one else around.  Dru parked his car.  Draper stood at the ramp.  When Dru came back they both hopped into the RHIB and went out to sea.

2. Draper said from his conversation with Dru, he understood they were going a couple of kilometres out to sea to pick up some “smoko”.  Dru initially started to drive the boat.  Later, Draper took over driving the boat.  They were going due east off the coast of Byron Bay.  There was a navigation device that they were following.  They just kept driving further out to sea to a spot on the plotter.

3. When the morning sun came up, they were still travelling to the point on the plotter.  They had to meet a boat.  At around 9.00 am, when they were a couple of hundred kilometres out to sea, there was a large red vessel.  The people on it threw over some black packages into the sea.  The people were South American or Latin speaking people.  They had guns.

4. Draper said when the black packages were being thrown into the water there was a bit of banter.  Dru was talking to a person on the red vessel.  Draper said he yelled out, “Like too much smoko, you know, pot or whatever it was.”  It was a large number of packages and the RHIB was only small.  The people on the boat were yelling out, “… no, it’s not pot and a few things like that”.[15]  Draper asked Dru what was going on, but Dru replied, “just help me.”  Draper said, “Like put it on the boat.”  The people were saying it was “cacao”.  He said to Dru, “is it cacao? What’s that?  Cocaine or – and he said no, I don’t know.  Just help me put it on the boat.”[16]

   [15]AB 427/35–40.

   [16]AB 428/20–25.

5. Draper said the red vessel started to move away.  He and Dru loaded the black packages into the RHIB.  Draper said to Dru that it was heavy.  Dru said not to worry, just keep loading it.  Draper said it took a bit to lift it up into the RHIB.  After a period of time loading the packages, they started driving the RHIB back to the coast, in a westerly direction.  Dru said they were going to return back to the boat ramp.  Draper was “just to get off” when they returned to shore.[17]

   [17]AB 429/30.

6. Draper said a border patrol plane went around them and then a border patrol boat approached as they were travelling back to shore.  There was a discussion with Dru.  It was “just like look, there’s a boat”.  Dru said “just keep driving”.[18]  They had been driving the RHIB for an hour or two since leaving the red vessel before they saw the ADF vessel.  At one stage, the ADF vessel was right behind them.  He and Dru started throwing the packages overboard.  They decided to throw them when the ADF vessel was chasing the RHIB.

   [18]AB 430/40.

7. Draper said the RHIB was later stopped by Queensland police, on a large, fast moving boat.  They had seen them about 20 minutes before.  During that 20 minute period, Draper threw his phone overboard.  Dru threw his phone overboard.  Draper thought Dru also threw a radio overboard.

8. In cross-examination, Draper agreed he had come across Dru when he was a ski paddler with a surf lifesaving club in Sydney.  They had overlapping circles of friends.  In about Christmas 2017, Draper had travelled to Byron Bay on a holiday.  He socialised with Dru, including once visiting Dru’s parent’s home and meeting his parents.  He also visited one of their oyster farms.  Dru visited Sydney in early 2018.  They had lunch and dinner together and also met up with other friends.

9. Draper accepted that in late 2017 and early 2018, he was receiving oysters from Dru which Draper was distributing to businesses in the Manly area.  He was in contact with Dru in relation to that business from time to time.  Draper agreed that from late 2017 through to the middle of 2018, he was in social contact with Dru on Facebook and by phone.  Draper accepted that in early 2018, he met Dru at a café at Brunswick Heads, near the family oyster farm.

10. Draper accepted that prior to 31 July 2018, he had used a Wickr name “Blue Marlin”.  That was on an old phone.  On 29 July 2018, he downloaded the Wickr app to another phone at the request of Dru, selecting the username “Mahi Mahi”.  Draper could not remember if he gave the old phone that had used the name Blue Marlin to police.  It was in the house when police raided it.

11. Draper accepted that when he was onboard the QPS vessel, he told police he had a phone which he had left at home.  That would be the phone that had Wickr with the username Blue Marlin.  It was a Samsung; he only had the one phone at home.  Draper accepted he had two phones registered in his name with Telstra over time, but said he never used them at the same time.  He had entered into contracts with Telstra on 12 May 2018.  One was for an iPad and one was for a phone.  When he was arrested at sea, he had one phone with him which he threw overboard.  Draper did not know that two phones were found on the boat when searched by police.

12. Draper accepted he made a statement to police dated 29 January 2019.  He subsequently signed an undertaking to cooperate with authorities.  That undertaking, dated 5 February 2020, included an undertaking to give evidence in the trial and a declaration he would give full and truthful evidence in accordance with his statement of 29 January 2019.  He also undertook to discuss the case with police or the prosecution if asked to do so, including providing an additional statement, and to produce any documents in his custody or control which related to the events.  Draper accepted that he understood that as a result of that process, he would receive a reduced sentence in return for his cooperation up until that point, and for the promise of continued cooperation in giving evidence at this trial.

13. Draper accepted that when he was spoken to by police on 31 July 2018 on board the QPS vessel, he told them he did not know the amount of drugs they were going to get.  He accepted in evidence he said he understood it would be hundreds of pounds.

14. Draper said that although he remembered seeing a plane, he did not know that plane was using video equipment to record the meeting of the RHIB and the large red vessel.  He had not been shown any footage of that recording.  He first saw the red vessel at 9.30 am.  The people onboard threw the black parcels over for a period of 10 to 15 minutes.  Some of them were near the RHIB.  It happened “so quick”.[19]  It was about 30 parcels in one unloading.  Draper said he was panicking.  The parcels did not land on the RHIB; they all went into the water.

    [19]AB 466/30.

15. Draper accepted the larger vessel could have moved away after only a few minutes.  The parcels were still in the water and they set about manoeuvring the RHIB to recover the consignment.  Draper was driving the RHIB.  Draper agreed Dru had been seasick for an extended period of time, but said they both pulled in the parcels.  The parcels were gathered in for approximately an hour after the large vessel left.

16. Draper encouraged Dru to help with the loading process.  He did demand Dru help.  Draper said he was screaming out “That’s too much.”  Draper said, “If you’d seen 37 parcels, how big they were and how big the boat was, I didn’t think it would take it.”[20]  Draper did not know the precise number of parcels.  As the parcels were unloaded from the larger vessel, Draper said, “No more pot.  No more pot” because he did not think the boat would be able to take it all.

    [20]AB 468/20.

17. Draper said a person with a Latin American sort of accent, standing at the back of the boat, yelled “Cacao.  Cacao.”[21]  The person was standing to one side with a heap of men behind him.  The person was a tall and skinny male with dark hair, aged maybe in his 30s.  He may have had a beard or a bit of a moustache.  Draper said he was trying to manoeuvre the RHIB so it did not hit the larger vessel.  There was a bit of a swell pushing the boats closer together.  Draper said he had driven the boat for a substantial portion of the voyage, easily 80 per cent of that time.  Draper did not accept that when he spoke to police on the QPS vessel on 31 July 2018, he knew there was cocaine in the parcels.  The men on the larger ship had said that to them.

    [21]AB 469/20.

18. Draper did not recall a loud hailer warning being given by the ADF vessel.  He did not hear them tell the RHIB to stop.  He did not hear a warning that if they did not stop they would fire ahead of the vessel.  Draper said he was doing most probably 40 knots or so and with the wind and having a beanie on, he could not hear.  He agreed it was clear the ADF vessel was chasing the RHIB.

19. Draper accepted he told police on the QPS vessel that he panicked.  He could not recall telling police he panicked because there was cocaine in the RHIB.  Draper said that was what he thought it was at the time he spoke to police.  He agreed he did not at any stage tell police there had been a conversation where he had protested there should be no more pot; or about a conversation in which people on the larger vessel said it was cacao.  Draper said police did not ask him that question.

20. Draper said when he went on the voyage, he understood he was getting a border controlled drug.  Draper then said, “Thought it was tobacco”, but immediately said “I thought it was smoko.”[22]  Draper denied he recruited Dru for the job; that in a meeting with Dru at Easter 2018, he proposed that Dru help him buy a boat; and that they then had discussions about what sort of boat would be needed to go to sea and collect a load of tobacco.

    [22]AB 474/35.

21. Draper said he could not recall whether at a lunch at Manly he had discussed with Dru how tobacco could be imported and sold after being packaged in Australia.  He denied having a conversation with Dru in which he explained that a small boat suitable for carrying 600 to 900 kilograms of tobacco could meet an incoming ship and that 600 to 900 kilograms could go for well over $1 million.

22. Draper denied sending Dru a phone with an app called Cipher on it.  He did not recall any conversation with Dru about an app called Cipher.  He denied arranging in about May 2018, for just short of $100,000 in cash to be delivered to Dru.  Draper said, “I never had no money.”[23]  He denied arranging for a phone to be sent to Dru in July 2018.  He denied previously claiming that a Stuart Montgomery (“Montgomery”) picked him up from Coolangatta airport on 30 July 2018.  Draper said he did not know a Stuart Montgomery.  He denied telling Dru that he and Montgomery would crew the RHIB out to meet the larger vessel.  He denied the reason Dru collected him from Coolangatta airport on 30 July 2018 was because Draper contacted Dru to tell him Montgomery had not arrived.

    [23]AB 477/35.

23. Draper could not recall saying to Dru he would drop him off once they were out of the Brunswick River.  He agreed that once they passed the river mouth they just kept going and that he was driving the boat.  Draper said they stopped on the voyage out and on the way back to refuel.  He could not recall Dru wanting him to stop before going out to sea.  Draper said Dru became seasick a couple of hours into the voyage out to sea.  He agreed he became steadily worse over time.

24. Draper agreed that whilst in custody he was able to send letters to other people in custody.  He had used that process to correspond with other prisoners.  Draper denied he had previously said he tricked Dru.  Draper said he never tricked Dru.  Draper agreed he had a nickname “Dribbsey”.  It was spelt differently in the police statement, but he said that was the way they spelt it, not him.  He occasionally signed correspondence that way, including with a signature.

25. Draper accepted he had written a letter titled “Good Day Mate” whilst in jail, signed “Dribsy”, in which he told Dru, “I’m sorry I tricked you.”  He also wrote in that letter, “I want to fix this up and tell the cops the truth.  You thought it was tobacco”.  Draper said he wrote the letter with Dru.  Draper accepted he was not ever co-located in custody with Dru, but said Dru wrote him a letter saying, “can I do that?”[24]  Draper said he wrote a couple of letters for Dru thinking it was for Dru’s parents,  so that “[Dru’s parents] wouldn’t feel so bad that it was him”.[25]  Draper said he was under duress at the time; he was in prison; he took it upon himself to write the letters for Dru’s mother.

    [24]AB 485/35.

    [25]AB 486/10.

26. Draper accepted that in one of the letters addressed to Dru he said, “I knew you were tricked and you didn’t know it was coke we were picking up.”  Draper said it was “true at the time when I wrote it”, but that it was not him.[26]  Draper accepted that in that letter he also said he was going to tell “the AFP whatever I have to to get out of jail and this mess”.[27]  Draper said he was under duress when he wrote the letter.  He hated being in jail.  Draper wrote that letter a month after going into custody.  In the letter he said he was not handling jail very well and that he had to get out by any means possible.  He also stated he was thinking about talking to the AFP to get a discount on sentencing.  Draper said, “I was stood over.”[28]

    [26]AB 487/30.

    [27]AB 488/10.

    [28]AB 489/1.

27. Draper could not recall whether he told police on 31 July 2018 that Montgomery picked him up from the airport and drove him to the boat.  If the transcript of his conversation with police recorded that answer, he must have said it.  He could not recall if he had told police that on arrival at the boat ramp, there was a trailer near where the boat was in the water and that Dru hooked it up and took it away on his ute to park.  Draper agreed Dru was gone for about 10 minutes, but could only remember seeing a boat, not a trailer.  If the police interview recorded him responding to a question “Where was the trailer?” with “Just in the car park”, he must have said it to police.

28. Draper accepted that after he was sentenced, he returned to jail.  He sent letters to Dru from that second prison.  In one of those letters he said, “Don’t talk to the police, these guys will kill us”.[29]  Draper said he was under duress at the time; he was in prison.  Draper could not recall whether he had said something similar to Dru on 31 July 2018 when they were about to be arrested.

    [29]AB 511/15.

29. Draper accepted that in that letter, he said, “I want to fix this up and tell the cops the truth you thought it was tobacco” and “I had no choice, the people told me I couldn’t tell you it wasn’t tobacco.”[30]  Draper only wrote it because he had to.  Draper denied he was concerned the contents of those letters were inconsistent with his undertaking to cooperate and give evidence in accordance with his statement.  He denied he gave his statement to the AFP to get out of jail.

    [30]AB 511/40.

30. In re-examination, Draper said what he told the jury about Dru’s role and his role was true.  When he said he was stood over when he wrote the letters from jail, he was talking about other inmates.  He could not recall what was in the letter Dru had written to Draper.  Draper said he did not trick Dru.  He denied tricking Dru to get into the boat on the pretence he needed help to navigate out of the Brunswick River and that he just drove off and essentially kidnapped Dru.  Draper said he was 5 foot 9 inches tall and 56 years of age.  Dru was bigger than Draper.

    Dru

31. Dru gave evidence that he had two older brothers, one being the appellant.  The family owned oyster farms in two locations, the Brunswick River and the Tweed River.  Dru was heavily involved in that business.  Part of Dru’s responsibilities was to take oysters out of the water, package them and sell them.  As part of that business, he had some connection with Draper.

32. Dru had known Draper socially for some time.  In late 2017, around Christmas, Draper and another friend travelled up to Byron Bay.  Dru showed them around the region and the oyster farms.  Dru had also socialised with Draper in Sydney.  Dru would go to Sydney frequently to arrange the supply of oysters.  In early 2018, Draper messaged Dru saying he was travelling up from Sydney and wanted to catch up.  They agreed to meet near Brunswick Heads at a café, just across the river from the family’s oyster farm.

33. Dru said around Easter 2018, he travelled to Sydney on a fish market trip.  He met with Draper, who was from Manly and knew everyone and the local businesses.  They put together an idea to get oysters from Tweed Heads and send them to Sydney for Draper to on-sell around the Manly area.  Dru said Draper had a proposition for Dru.  Draper said he and some others were involved in tobacco importation, under the counter.  There was a ship coming from Indonesia into Brisbane bringing legitimate cargo, but it also had a load of illicit tobacco.  Draper asked Dru to buy a boat, hold it, set it up and prepare it for sea.  Draper said a friend, Stuart Montgomery, would go to sea with Draper to meet the ship, collect the tobacco and return to shore.  The plan was for Dru to have the boat in the water ready for them to go so they could go straight out to sea without delay.

34. Dru said during this conversation, Draper said he would pay for the boat, providing the money to Dru, in cash.  Dru said Draper was a likeable character, very relaxed and how he spoke of the plan made a lot of sense to Dru.  He asked Draper to tell him more about the tobacco.  Draper told him how it came into Australia, its value, and that it was obtained dirt cheap in Indonesia.  Once it arrived, it was made into packets of tobacco for sale under the counter.

35. Dru told Draper he would consider it.  Dru did not want to jump into it because he was busy at the oyster farm and setting up a seafood shop in Tweed Heads.  He did not know if he had the time to obtain the boat, but Draper said if he did it for him, Dru could have the boat as his payment.  Dru said that sounded interesting.

36. Dru said he continued to message Draper over the coming days.  Dru communicated with Draper in various ways.  There was standard voice call, text message and Facebook.  At this meeting in Sydney, Draper asked Dru to communicate with him via Wickr.  He gave him the username “Blue Marlin”.  Dru said he never used the username “Tiger Shark” and he had never communicated with Draper using a username “Mahi Mahi”.

37. During this period, Draper continued to send information and documents about tobacco and its worth.  He also told Dru not to worry as the maximum penalty was a fine and Dru was not going out to sea, he was just to get the boat sorted.  Dru said he was convinced of what Draper was doing and had no inkling of anything else.  Dru looked at some cases and news articles and saw that tobacco was a big thing; was worth money; and did come from Indonesia.  He had seen that arrests had been made and people had received a fine.  Dru said he called Draper and said, “Mate, yeah.  I’ll buy the boat for you”.  That was the agreement.

38. Dru said when he accepted Draper’s offer, Draper said he did not really trust Wickr 100 per cent.  He wanted to keep it as quiet as possible because he had cash and it involved another plan for tobacco.  Draper said, “I want to communicate with you just quietly or securely.  I’ll send you up another phone which was – he called a cipher phone, which is – he said ve – more secure”.[31]  Dru said he replied that was okay.  Draper said it was just a messaging app, and not a big deal.

    [31]AB 599/5.

39. Dru said Draper posted up a Cipher phone around early April 2018.  That phone was ready to go by way of setup.  However, after only a few days, it stopped working.  Dru described the phone as looking like a Samsung phone, you enter a code which brought up an app.  It looked like a normal messaging app, but for some reason it would not send or receive messages.  Dru said he contacted Draper on Wickr, using Blue Marlin.  He told Draper the phone was not working.  Draper replied that it was no problem, to just hold onto the phone.  He would send up another backup phone and put another app on it called Threema.  Dru said he continued to message Draper on Wickr for a week or two and then Draper posted up the other phone.  Dru received it around early May.

1. Dru said around early to mid-May, Draper contacted him saying he had a driver organised to drive up the money.  Dru chose a location near his house.  When Dru received a message that the driver was at the location, Dru drove to meet him.  The driver was in a black BMW.  Dru described him as a male of Asian appearance.  The driver wound down the window and gave Dru a bag.  It was literally one minute.  When Dru went home and opened the bag it had just under $100,000 in cash.  Dru said he used that money to buy the RHIB.

2. Part of the agreement with Draper was that Dru would buy the boat and be given it as payment.  Dru wanted it set up for whale watching so it could be used as a business.  Dru said he told Draper he wanted a boat that suited Dru.  Draper said that was fine so long as it suited Draper.  Draper messaged Dru telling him the sort of motor and size of boat.  Dru replied that would suit him.  Dru said he contemplated an RHIB for the whale watching business because they are a good boat for that type of business.

3. Dru said it got to the point where he did not have enough time and Draper was pushing him to get it done.  Dru knew he was not going to be able to undertake a whale watching business venture on his own.  The appellant and Dru had both worked for a period of time with kayaks near Byron Bay.  They had history or knowledge about the tourism industry.  Dru approached the appellant to get it done.  Dru told the appellant he had received a cash loan from Draper; that Dru wanted to buy a boat for whale watching; and that he wondered if the appellant would be interested.  The appellant replied that it sounded pretty good.

4. Dru said he had talked to the appellant about whale watching before this conversation.  At that time, no tours were being conducted in the Byron Bay region.  Dru said he had contact with the local council when testing water quality in the oyster business and he had asked what would be needed to set up a whale watching business.  It was explained to Dru that Brunswick Heads was a marine park and there were different rules and requirements.  There were also certain licences which would be another issue.  They were preliminary enquiries he had made at that time.

5. Dru said the appellant knew nothing further than that Dru wanted to use the boat to set up a whale watching business.  Dru said he told the appellant he was reaching out now because Dru did not have time to buy the boat.  He needed the appellant’s help to do the physical running around.  Dru said the appellant replied that if Dru could provide the loan, which they would have to pay back over time, and if Dru sorted out the paperwork side of things, the appellant could help source a boat.  Dru said he told the appellant the things they needed for the whale watching business.  The appellant went about sourcing those items.

6. Dru said once the appellant came back with details of a boat that looked suitable, Dru asked Draper whether it would suit Draper.  Draper agreed, although Dru said in hindsight, that boat was not good for Draper’s plan to go out to sea to pick up tobacco.  Draper asked Dru to get a navigation system as well as internet data and a satellite phone to communicate at sea.  It suited Dru perfectly to purchase these extra items as they were required in the whale watching business.

7. As the cash Draper had previously sent up was not enough, the appellant had contributed some of his own and his partner’s money towards the purchase.  Dru told Draper he needed $5,000 to fix this up.  Draper asked Dru to come down to Sydney to pick it up, Draper said he could bring back the phone that did not work.  Dru said he travelled to Sydney to meet Draper in late June 2018.  Dru brought with him the Cipher phone, sent to him in April, which was not working.  Dru gave Draper that phone.  At this meeting, Draper gave Dru $5,000.  Dru flew home from Sydney that night.  When he saw the appellant the next morning, he gave him that money saying, “… that’s the money back, five grand for what you’ve chipped in.  All your money.  There it is.”[32]

   [32]AB 602/45.

8. Dru said when the RHIB arrived, it was stored at the appellant’s house.  It was not the appellant’s boat.  It was registered in the appellant’s name as he went to pick it up.  Dru said he used the RHIB many times before Draper came to Queensland on 30 July 2018.  The motors needed to be run in.  Dru personally took the boat out on many occasions.  He also went out with the appellant on a number of occasions.  It was to test the RHIB, as well as to begin with the business venture idea of whale watching.  He took friends out whale watching.

9. Dru identified photographs of himself and friends in the RHIB.  They were all from overseas, staying in Byron Bay.  The first photograph was taken around late June.[33]  Another photograph, inside the Brunswick Heads river mouth, was taken on a day he took a couple of other people, who he described as Pommy backpackers, showing them whales, dolphins and marine life around Byron Bay.  In the background of the photograph was the RHIB, on the beach.

   [33]See exhibit 37.

10. Dru said Draper had told him he would fly out late one evening from Sydney and be picked up from the Coolangatta airport by Montgomery who would bring him to Brunswick Heads where Dru was to have the boat ready in the water.  Dru denied ever contacting Draper, either by phone or through Wickr messaging, asking Draper to drive the boat to “get smoko”.  There was never any discussion about getting smoko.  Dru said he did not ever recruit Draper to go on the RHIB with him or arrange for Draper to be involved in the enterprise.

11. Dru said Draper messaged him a couple of days prior to 30 July 2018, saying he needed Dru to buy an airplane ticket for him as he did not have any money left on his credit card.  Draper did not want to alert anyone to him coming up to the Northern Rivers region.  Dru replied he could do that for Draper.  Dru said Draper had been prepared to give him a boat.  Dru arranged for a ticket, making a booking in Draper’s name.  Dru said, from memory, Draper made all of the enquiries, telling Dru what flight and with Dru paying for it on Webjet.

12. Dru said on the day Draper was to arrive, he took the RHIB from the appellant’s house up to the Brunswick Heads boat ramp, using his utility.  He backed the trailer down the boat ramp and took the RHIB off the trailer.  It was easy to get off the trailer; it was capably done by one person.  Dru said putting it back on the trailer can take a long time, if there is only one person, especially for a seven metre RHIB.  Whilst it is not heavy, the rigid hulls are filled with air to give a solid base.

13. Dru said after the RHIB had been taken from the trailer he drove the utility and trailer straight back into the car park ahead of the boat ramp.  The plan was to wait for Draper and Montgomery to arrive.  Draper had told him Montgomery had organised things such as fuel and accessories.  They were to load them into the RHIB and go out to sea.  Dru was to take the RHIB and trailer away upon their return.  Someone was to be in a van nearby to take the tobacco.

14. Dru said Montgomery was not present at any time on 30 July 2018.  When the RHIB was in the water off the wharf, Dru got a message on the phone saying, “Mate, I need you to come pick me up from the airport.  Stuart [Montgomery] hasn’t shown up.”[34]  Dru thought it was the replacement phone Draper sent when the Cipher phone broke.  He described it as a Samsung which had been posted to him around early May.  That was the only phone Dru had on him.  He had left his personal phone at home or at the appellant’s house.

    [34]AB 612/25.

15. Dru believed the message he received from Draper was on Wickr.  Dru said he replied that he had the RHIB in the water and could not get it back on the trailer as it would take him forever.  Draper replied, “just leave the boat”; he desperately needed Dru to come and pick him up.  Dru said because he was leaving the boat in the water, he left the trailer in the car park.  Leaving a boat tied up and a trailer in the car park would be unusual, but he did so because Draper had replied, “It doesn’t matter.  Just stuff it.  Just – you know, come up.  Just come pick me up now.”[35]

    [35]AB 613/45.

16. Dru said he travelled to Coolangatta airport in his utility.  When he met Draper at the airport, Draper said, “just drive”.  Draper asked Dru to take him to Bunnings to get some petrol drums.  Draper said, “Stuart [Montgomery] was meant to sort all this out.”[36]  They bought eight to 10 fuel containers as well as some tape and gloves.  Draper then said they needed to get something to eat.  They went to Tweed City and Draper got onto the phone trying to contact people.

    [36]AB 614/15.

17. While they were eating, Draper told Dru, that Montgomery had contacted Draper and was going to meet them at Brunswick Heads.  Draper said they had to get some more fuel containers.  They bought another four to five fuel containers from an Autopro.  On the way south, back towards Brunswick Heads, they stopped at a petrol station where they bought another two or three 20 litre jerry cans.  They filled all the fuel containers up at that petrol station.  It was at least 16 petrol containers at that point.  Draper decided how much fuel was needed for the boat.  As they approached Brunswick Heads they purchased some water and two or three more petrol jerry cans which they filled at a 24 hour service station.

18. Dru said when they arrived at the boat ramp, the trailer was still there.  He pulled up right next to it.  The RHIB was also still tied to the pontoon.  Dru was expecting to see Montgomery.  At that point, Draper turned on Dru saying, “Mate, listen, here’s the news.  I’ve got to tell you, Stuart’s not coming.  I couldn’t tell you that before.  I just – I’m panicking and I don’t know what to do ... Mate, you’re coming with me out to sea.”  Dru replied, “No I’m not”, but Draper continued, “This plan … is going to shit, like, Stuart – Stuart hasn’t shown up.”[37]  Dru said Draper was normally a jovial guy, but he was very serious.

    [37]AB 616/35.

19. Dru said he asked Draper what was going on.  Draper replied, “I need help out there … I don’t know the fucking river.  I don’t know how to get out here … That was meant to be Stuart take care of all this shit. … Now I’m fucked.  You’re coming with me out to sea.”  Dru said it was not the agreement.  Draper replied, “No, you’re fucking coming.  If you don’t come with me, and you’re the cause … of the boat missing up with this ship to collect the tobacco, I’ll be telling the people that I’m involved with, who are very serious and dangerous people … I’ll be telling them where you live.  I know where your parents live.  I’ve been there to the house twice.  I’ll be telling them that it’s your fault, and they, and probably me – we’ll all come after you and it’ll be your fault and you’ll be the one held responsible for this bloody tobacco not coming in. … This tobacco is worth … over $1 million.”[38]

    [38]AB 617/10–20.

20. Dru said Draper had been to his parent’s house on two occasions and had met his parents.  As Draper had basically said he had to go and was going to be held responsible, and people were going to come after his family, Dru told Draper he would drive out through the river mouth.  Once out there, they could do a U-turn to come back to the south wall where Dru could jump out.  Dru said Brunswick Heads boat ramp to the sea was potentially one and a half to two kilometres.

21. Dru said he connected the trailer back up to the utility and left it in the car park where he had parked before.  He was not involved in the utility and trailer later being relocated to the vicinity of the Reflections Holiday Park.

22. Dru said the river and the RHIB were not lit.  He proceeded down the river, which at points is notoriously shallow and narrow.  There was a super moon or full moon.  There was a lot of water moving about in that region.  A controlled river crossing to the ocean is the most dangerous type of crossing you can do.  Once he had passed that crossing, Draper took over.

23. Dru said he was standing to the side, waiting, when Draper “puts the thing down” causing Dru to fly backwards.  Draper kept going straight out to sea.  Dru said he got to his feet, but by that stage they were at least one kilometre out to sea because of how quickly they were travelling at that time.  Dru said he grabbed Draper and slowed the boat to a stop.  He asked Draper what he was doing.  Draper replied that Dru was coming whether he liked it or not.  Draper was not going to miss the boat and if he did, Dru was “fucked” and his family was dead.

24. Dru said he told Draper he wanted nothing to do with him and he could have the boat.  Dru asked Draper to take him back.  Draper replied, “I’m not fucking taking you back … You got two options: jump over, swim to shore or you’re coming.”[39]  Dru replied, “Mate, we’re that far out to sea.  It’s 10.30 at night.  I can swim but I’m not going to take my chances with that.”[40]  Dru accepted he was a surf lifesaving devotee, but they were at least a kilometre out to sea, it was 10.30 pm, there was a strong rip running and there were sharks.  Dru said he “had the shits”.[41]  Draper had turned on him and he had never seen that side.

    [39]AB 619/40–45.

    [40]AB 620/1.

    [41]AB 620/15.

25. Dru said Draper was following a plot in the navigation system.  Dru had used the navigation system in the weeks preceding when he took friends out whale watching or fishing.  He would save marks in the plotter for whales or fishing spots.  The selection of plots depicted in the exhibits at trial were not the only plots in the plotter.  There were 20 or more, the majority of which had been put in by Dru, or the appellant.

26. Dru said the voyage continued a long way out to sea, in one direction.  Two or three times the plotter cut out of power.  Draper re-entered the waypoints because it went blank.  The whole time Dru was just sitting there, wanting to go home.  Dru said seasickness started off gradually, but in the end it was a million times worse.  All he was good for was to sit on the back seat.  Driving brought on the seasickness.

27. Dru said when the sun came up next morning, Draper, who had driven all night, said he needed to rest.  Dru told Draper he could not help; he was not capable.  By early morning, there was a need to refuel the RHIB.  Draper stopped and put a few drums of fuel into the RHIB.  The voyage continued until they met a larger ship.  At no point did Dru see a surveillance aircraft.

28. Dru said he did not have any discussions with Draper about the location of the rendezvous with the larger ship.  The coordinates located on the phone were inter-related with the coordinates on the plotter.  There were two separate sets of plots in that phone.  The first one, called 36s, is actually “36 fathoms”.  A week or more before this event, Dru was playing on the phone looking for 36 fathoms as a fishing spot.  He must have accidentally pressed a button that saved his parent’s residential address as that spot.  He did not know it at the time.

29. Not long after that, Draper messaged Dru asking him to put GPS points into the plotter to see if the plotter recognised those points.  Dru put them in the plotter and it did not work.  Dru messaged Draper that there was a problem and he would try to fix it.  Roughly two days prior to Draper coming up and going out to sea, Draper messaged Dru with some more plots.  Dru told Draper it recognised them.  Draper asked if it said how much fuel.  Dru replied it did not and Draper said that was fine.

30. Dru said when he was sitting in the car park of the boat ramp, waiting for Draper and Montgomery, he had the phone in his hand waiting for Draper to message him.  He brought up the fishing app and put in the points he remembered Draper had sent him to see whether the app would recognise some points out at sea.  Draper never sent the same one, it was always different, but they were always 28 degrees south and the east was always either 153 or 157.  Dru said that was how the points came to be in the phone.  Dru was going to tell Draper he could use that app as a backup.  That conversation never eventuated because he got a message to pick up Draper.  When they returned to Brunswick Heads, things had changed.

31. Dru said when they rendezvoused with the larger ship, he was sitting at the back with his eyes half shut.  Draper said they were not far away.  Dru opened his eyes and saw an approaching ship.  They approached nose-to-nose.  Draper came alongside the left hand side of the ship, and started to do a U-turn so that the nose of the RHIB faced the same way as the ship.  Draper grabbed the radio trying to radio the ship, but it was all just static.  Dru said at that point he started vomiting really badly because they were moving a lot more.

32. At some point, Draper drove back up alongside the ship.  People came onto the deck of the ship.  The RHIB was sitting 10 to 15 metres away.  The engines were loud and Dru could not hear anything.  Draper looked at the people on the ship; gave a double thumbs up and made a crossing signal with his arm.  The people on the ship did that cross signal back and a thumbs up.  The RHIB started to sit back from the ship, at about 20 to 30 metres behind.  Six or eight other people came onto the deck, dragging out a big net.  On top were four to six blue drums.  They pushed the whole net and drums into the water.  Not long after that, the ship took off.  There were no words exchanged at all.  At no point did Dru hear Draper saying, “no more pot, no more pot”, or somebody on the ship calling back “cacao”.

33. Dru said Draper manoeuvred the RHIB to the net, and pulled out a knife.  Draper proceeded to cut the netting away.  It took maybe 20 minutes or more.  It started stretching out in a big, long line with the drums attached.  Draper retrieved the packages into the RHIB.  It would have taken at least an hour.  Dru said he was sick the whole time.  When completed Draper said, “All right.  We’re – we’re out of here.”[42]  Draper jumped behind the wheel and the RHIB took off, heading back.

    [42]AB 656/40.

34. Dru, at some point, saw the ADF vessel.  He had been lying back for 45 minutes to an hour.  The RHIB came to a stop.  Dru opened his eyes and Draper said, “there’s a ship there coming at us.”  Draper kept driving.  He veered left, but then said, “they’re following.”  Draper started really panicking.  Dru said it was probably about another five to 10 minutes before he could see the ADF vessel coming at them.

35. Dru told Draper, “mate, just stop, the game’s up.”  Draper told him to shut up.  Draper kept trying to outmanoeuvre the ADF vessel.  Dru heard a warning, “we’re going to shoot.”  Dru told Draper, “Mate, stop, they’re going to shoot”, and “It’s over, you know?”  Draper again told Dru to shut up.  Draper then turned and said, “throw a parcel.  The RHIB’s too heavy – it’s too heavy.”  Draper said they needed to lighten the load.  Dru replied “okay” and threw the parcel.  It did not really help.  A short time later, Draper said, “throw another one.”[43]  This went on for a couple of times, but the RHIB was only slowly getting faster.  The ADF vessel was right behind them.  Draper told Dru to throw it all over.  Even though he was a bit weak and it was not easy to do, Dru moved to the front of the RHIB to throw out the remaining parcels.  However, he got sick again and fell over.  Eventually, he got to his feet and was able to make his way back to the rear of the RHIB.

    [43]AB 657/35.

36. Dru said he came to realise there was an RAAF aircraft on site.  It was maybe five to 10 minutes after the ADF vessel stopped chasing them.  A plane was circling overhead, not that high up in the sky.  An hour, at least, after the ADF vessel stopped chasing them, Draper stopped the RHIB saying he had to refuel.  Draper was having trouble with the fuel pump.  Dru’s sickness was made worse as the RHIB started bouncing around again.  Dru said he held the wheel straight to face into the waves.  After 10 or 15 minutes, Draper took over and they were off again.  After a while there was another attempt at refuelling.  It was another 10 or 20 minutes.  Draper did not get much fuel into the RHIB before they went off again.

1. A particularly telling matter for the jury would have been the coincidence of the appellant having at his residence, a SIM card for a phone number subscribed in the name of Graham Black, when another SIM card for a mobile phone also subscribed in the name of Graham Black had attempted to contact the satellite phone.  That fell to be considered in the context of the appellant having arranged the satellite installation on the RHIB, knowing that satellite number and when the appellant had not given the number to any other person other than Dru, who was on the RHIB.

2. Second, the jury had CCTV footage of the appellant’s presence on the other side of the Brunswick River shortly after he observed police near Dru’s utility, remaining for a period of approximately 20 minutes, and observing police in the vicinity of Dru’s vehicle.  Notwithstanding the appellant’s evidence that he had travelled to the area in the vicinity of the boat ramp because of concern that Dru had failed to return after taking the RHIB, it was open to the jury to find the appellant undertook these actions because he was part of an agreement to meet Dru upon his return, knowing he was returning with cocaine.  The appellant’s conduct was inconsistent with the so-called innocent explanation for his presence in the vicinity of the boat ramp, namely concern for Dru.

3. Once the jury rejected the appellant’s account in those respects, it was open to the jury to reject the appellant’s explanation for his fingerprints being located on the sticky side of tape used to cover the registration number of the RHIB.  It was then open to the jury to conclude that the only logical, rational inference for the appellant’s fingerprints being found on the sticky side of the tape was because he had affixed the tape over the registration number of the RHIB, and that he did so because he had knowledge of its use for the purposes of collecting cocaine from out at sea.  The jury could reason that if the RHIB was being used for a legitimate whale watching business, there would be no reason for the appellant to affix tape across those numbers.

4. Finally, it was open to the jury to find that the coincidence of the appellant having at his home the SIM card attached to a mobile phone (ending 240), subscribed in the name of Graham Black and the use of another mobile phone (ending 762), subscribed in the same name to attempt to contact the satellite phone of the RHIB at sea, supported a conclusion that it was the appellant who had attempted to contact the RHIB at sea.

5. Once those conclusions were open, it was also open to the jury to conclude that the appellant sent the messages using the encrypted app, to the effect he was ready on standby and that the appellant’s presence in the vicinity of the boat ramp on the morning of 1 August 2018, was because of his knowledge and involvement in the attempted importation of the cocaine.

6. The fact that the SIM card for the 762 phone was never found in the appellant’s possession did not render those conclusions not open on a consideration of the evidence as a whole.  Whilst the appellant was under surveillance on 1 August 2018, the surveillance records reveal that at least on one occasion the surveillance agents lost sight of him.  The failure to find that SIM card was explicable on the basis it was not in the appellant’s possession at the time he was intercepted by police because it had already been disposed of by him.  The fact that the SIM card was identified as “pinging” from mobile phone towers in the vicinity did not mean it was being used at the relevant time.

7. These conclusions were also open, notwithstanding there being no direct evidence of a link between the appellant and the username Thunderbutt.  That the appellant had another username for the Threema encrypted app did not exclude him from being Thunderbutt.  The contents of the Thunderbutt message, in the context of the movement of Dru’s utility and the attached trailer on the evening before and the appellant’s presence in the vicinity of Dru’s vehicle that morning, supported a conclusion that the only reasonable and logical inference was that the appellant moved Dru’s vehicle to that location and that the appellant sent that message as he was awaiting Dru’s return from sea, knowing he was bringing back cocaine.

8. The coincidence of those circumstances amply supports the conclusion that it was open to the jury to exclude, beyond reasonable doubt, a reasonable hypothesis consistent with innocence namely, that the appellant was there out of concern for his brother who had not returned from taking the RHIB from his home.

9. Once that reasonable hypothesis consistent with innocence, advanced by the appellant, was excluded beyond reasonable doubt, the only logical and rational conclusion, on a consideration of the evidence as a whole, is that it was established beyond reasonable doubt that the appellant had the requisite knowledge as to the importation of cocaine by Dru and that he was either a principal offender, or an aider of his brother’s criminal conduct, in the attempted importation of a commercial quantity of the border controlled drug cocaine.

10. Accordingly, it was open on a consideration of the evidence as a whole to find the appellant guilty of the offence.

11. The verdict of the jury was not unreasonable.

    Ground Two

12. The Crown resists ground two on two bases:

    (a)any miscarriage would only occur if Dru was ultimately acquitted (the first ground of resistance);

    (b)the Crown case against the appellant was not dependent upon Dru’s conviction (the second ground of resistance).

13. The case against the appellant was that:

    1.he was a principal offender and he did one or more of the things listed in paragraph [14] with the requisite intention to import a border controlled drug (the principal offender case); or

    2.he did one or more of the particularised acts with the intention of aiding Dru to import a border controlled drug (the aider case).

14. The appellant and Dru were tried together.  The trial judge gave limited directions as to the use of particular evidence against each accused:

    “I will now turn to the particular charge. I will also remind you that more than one person is being charged, although they are being tried together, you should consider the cases against and for each of them separately. There are in fact two trials going on and the separate cases against each of them is to be decided solely on the evidence admissible against that particular defendant. Separately, consider the evidence in each respective case.

    In respect of the charge, each defendant is entitled to have the case decided on the evidence and on the law that applies to him as it relates to the charge, and you must return a separate verdict in respect of each defendant on the charge. Of course, as the evidence is different in respect of the different charges, your verdicts need not be the same and in relation to each of the defendants.

    Now, bear in mind that some of the evidence only refers to one of the defendants. As you recall, Mr Draper’s evidence was he did not know Mr Nathan Baggaley, and he does not refer to him at all specifically. You will also recall that the evidence of sea and all of the surveillance does not include any footage of Nathan Baggaley. And in relation to the admissions and evidence with respect to Dru Baggaley, it finishes at the point of his arrest and therefore Nathan Baggaley’s actions after the point of Dru Baggaley’s arrest are not relevant to Nathan - are not relevant to Dru Baggaley.”[79]

    [79]Summing-up, 31 March 2021, pages 7–8.

15. If her Honour’s observations about the appellant not being at sea with Dru and Draper were meant to convey that the evidence of the journey to collect the packages is not admissible against the appellant, then those observations are, in our respectful view, incorrect.  What occurred at sea was the act of attempted importation.  That is the very act which the appellant is alleged to have either committed as a principal offender through agents, or has aided.[80]  The trial was otherwise correctly conducted on the understanding that evidence of the attempt to bring the drugs ashore was admissible against the appellant.

    [80]Particulars; paragraph [11].

16. The evidence of the appellant’s actions after Dru’s arrest are also mentioned in the passage above.  That evidence meant nothing unless:

    1.the actions were taken by the appellant knowing of Dru’s actions; and

    2.Dru’s actions were designed to import the drugs.

17. The principal offender case, in substance, is that the appellant and Dru conspired with each other to import the border controlled drug.[81]  That is so because:

    1.evidence of all significant acts done by the appellant were led in evidence against both the appellant and Dru.[82]

    2.evidence of all significant acts done by Dru were led in evidence against the appellant.

    3.apart from the directions, identified in paragraph [221] of these reasons, no directions were given that evidence of statements or actions of either accused were not to be used in the consideration of the guilt of the other.

    4.no case was presented against the appellant other than he conspired with Dru and that they were together attempting to import the drugs.  The drugs were collected at sea by Dru and Draper.  Both Draper and the appellant gave evidence that they had never met each other.  The appellant did not himself collect the parcels.  His actions could only have been in furtherance of a plan hatched with Dru.  That was the Crown case.

    [81]Osland v The Queen (1998) 197 CLR 316 at [39] and R v Darby (1982) 148 CLR 668 at 685; reference by the trial judge to defence counsel’s reference to a “plan”; summing-up, 31 March 2021, page 16.

    [82]See directions set out in [214] where the only evidence which is not cross-admissible is mentioned and see Tripodi v The Queen (1961) 104 CLR 1 and Ahern v The Queen (1988) 165 CLR 87.

18. As to the aiding case, the appellant was said to aid Dru to import a border controlled drug.  The Crown never alleged that the appellant aided Draper.  As already observed, on the case presented at trial the Crown could prove no connection between the appellant and Draper.

19. Each of the appellant and Dru put an account of events before the jury by sworn evidence given by each of them at the trial.  The sworn evidence of each of them became evidence in the trial and was admissible against each of them and could be relied upon by each of them.[83]

    [83]R v Nessel (1980) 5 A Crim R 374 at 381, citing R v Bolic and Judd [1969] Qd R 295 at 301.

20. Although the case against each of the appellant and Dru was framed legally differently, the evidence against each of them was, in substance, the same.  The entire thrust of the Crown case was that Dru was the instigator and main force behind the plan.  When properly understood, on the case presented at the trial the criminal liability of the appellant derived through Dru in the sense that unless the Crown could prove, as against the appellant, the guilt of Dru, the appellant was entitled to an acquittal.

21. This is so because at the trial:

    1.On the principal offender case:

    (a)the physical acts done by the appellant were put by the Crown and the trial judge as acts done in concert with Dru.

    (b)it was never suggested by the Crown that the physical acts of the appellant were acts done in concert with Draper or any other person.

    (c)there was no case advanced that the appellant could be guilty of attempting to import drugs if Dru was not attempting to import drugs.

    2.On the aider case:

    (a)the Crown case was put as one where the appellant aided Dru.

    (b)there was no case advanced whereby the appellant could be guilty of aiding Dru to commit an offence which Dru did not in fact commit.  It was never suggested that the appellant aided an innocent agent.[84]

    [84]See White v Ridley (1978) 140 CLR 342 at 346–347.

22. It is possible for one of two co-conspirators to be lawfully convicted although the other is acquitted.  Similarly, it is possible for an alleged party to be lawfully convicted even though the principal offender is acquitted.  Those principles were established in R v Darby.[85]

    [85](1982) 148 CLR 668 and see the Criminal Code (Cth), s 11.2(5).

23. Section 11.2(5) of the Commonwealth Code effectively embraces those principles. It provides:

    “(5)A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.”

24. R v Smith[86] is an example from this Court of the application of the principles established in Darby.  There, two accused (Smith and Corry) were charged with the same murder.  They were tried separately but were both convicted.  Corry won his appeal[87] and obtained an order for a retrial.  Smith argued that she also should therefore obtain a retrial.

    [86][2006] 1 Qd R 540.

    [87]R v Corry [2005] QCA 87.

25. Following Darby, McPherson JA observed as to arguments raised on the appeal:

    “[2]    The first concerns the criminal responsibility of appellant Lori Smith, given that an appeal by Michael Corry against his conviction for murdering the deceased Robert Hingst was allowed by this Court, which ordered a new trial of the charges against him. That was done because of what was perceived to be a deficiency in the summing up by the trial judge with respect to the matter of self defence under s 272(1) of the Criminal Code: see R v Corry [2005] QCA 87. It was not because of any inconsistency in the verdicts returned against each of Corry and the appellant Smith at their respective trials. As explained by Keane JA in his reasons on this appeal, those trials were conducted before different juries on separate occasions and, of course, on evidence that was by no means identical in each trial.

    [3]That being so, there can be no legitimate complaint that Smith has been convicted of murder, while Corry has been ordered to stand trial again on the charge of murdering Hingst. It may even be possible, depending on the evidence at that retrial and the view of it formed by the jury on that occasion, for it to produce a verdict of acquittal of murder or a conviction of some lesser offence, such as manslaughter, without affecting the criminal responsibility of Smith for the offence of murdering Robert Hingst.”[88] (emphasis added)

    [88]See also the judgment of Keane JA (as his Honour then was) at [33]–[38].

26. As can be seen from R v Smith[89], the critical issue is whether the verdicts are inconsistent.

    [89][2006] 1 Qd R 540.

27. If Dru had been acquitted by the jury, the appellant would have been entitled to the same result if Dru’s acquittal was inconsistent with the appellant’s conviction.  On the way the case was run by the Crown and put to the jury by the trial judge, such an inconsistency would arise.  As earlier observed, there was no substantial evidence admitted against the appellant that was not admitted against Dru.  Both alternative cases presented against the appellant depended upon proof of Dru’s guilt.

28. There was no logical basis upon which the jury could, as against the appellant, be satisfied of Dru’s guilt but not be so satisfied as against Dru.

29. Any failure of the trial judge to so direct the jury is of no moment because the jury were satisfied beyond reasonable doubt of Dru’s guilt.  However, Dru successfully appealed his conviction.  A retrial has been ordered.[90]

    [90]R v Baggaley [2023] QCA 249.

30. Dru’s success on appeal concerns the way in which his counsel at trial handled his instructions in relation to the 720 phone.

31. Draper gave evidence that Dru had enlisted him to drive the boat to collect “smoko” which Draper believed was marijuana.  He said that he did not know that it was cocaine which was planned to be smuggled into Australia.  Dru’s evidence was that Draper had enlisted him to assist in the importation of tobacco.  On Dru’s version, Draper was the principal offender and had deceived him into believing that it was only tobacco being imported.

32. Instructions were given by Dru to his counsel that the 720 phone was posted to him by Draper who instructed him to buy a SIM card and a charge card for that phone.  Dru’s counsel failed to put those instructions to Draper.  He also failed to lead that in evidence from Dru.

33. The Crown case was that the 720 phone was used by Dru to communicate with a person assisting on shore.  On the Crown theory, that person was the appellant.  Therefore, Dru’s evidence concerning the 720 phone was important, both in the case against him, and the case against his brother, the appellant.  If the jury were left in doubt about Draper’s evidence concerning the 720 phone, then doubt may also arise as to whether it was Draper’s associate, not Dru’s, on shore assisting.  From that point, doubt may be cast on Draper’s account that he was enlisted by Dru and deceived into believing he was importing tobacco.

34. The Court which determined Dru’s appeal[91] concluded:

    1.counsel’s failure meant that Dru was denied the opportunity “to put a very material part of his case before the jury”.[92]

    2.there was no forensic advantage in not putting the instructions and not leading evidence consistently with the instructions.

    3.a miscarriage of justice occurred.

    [91]Dalton JA; Flanagan JA and Boddice J agreeing.

    [92]At [45].

35. Dru established that he was not properly convicted as his trial miscarried.  On the way the Crown case was run, the guilt of Dru was an essential element of any conviction of the appellant.  As the appellant’s guilt was dependent upon proof, as against the appellant, of Dru’s guilt, it would follow that ground two is established unless there was significant evidence admitted against the appellant and not Dru.  There was not.

36. However, as earlier observed, the Crown raised two grounds of resistance.

    The first ground of resistance

37. No authority is cited in support of the proposition that a miscarriage only occurs if Dru is ultimately acquitted.

38. It is a fundamental principle of the criminal law of Australia that, subject to statutory provisions to the contrary, the Crown must prove, at a trial conducted according to law, the guilt of an accused beyond reasonable doubt in order to obtain a conviction.

39. An error in proof of guilt is a miscarriage of justice if it was a material irregularity inconsistent with a fair trial of the appellant or must have been “prejudicial in the sense that there was a ‘real chance’ that ‘it affected the jury’s verdict…’ or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’.”[93]

    [93]Zhou v The Queen [2021] NSWCCA 278 at [22], citing HCF v The Queen [2023] HCA 35 at [2].

40. Here, on the case at trial, the Crown was obliged to prove as against the appellant, Dru’s guilt.  As found in Dru’s appeal the Crown did not prove, according to law, Dru’s guilt.  The error in proving the case against Dru is an error in proving the case against the appellant.  The appellant was not convicted according to law.

41. There has been a miscarriage in the trial of the appellant, just as there was a miscarriage in the trial of Dru.

42. The first ground of resistance has no substance.

    The second ground of resistance

43. The submission on behalf of the Crown that the conviction of the appellant was not dependent upon Dru also being convicted is wrong. The Crown relies on s 11.2(5) of the Commonwealth Code and also submits that there was a path to conviction that was not dependent upon proof, as against the appellant, of Dru’s guilt.

44. Section 11.2(5) of the Commonwealth Code is of no assistance to the Crown. It is aimed at different circumstances.

45. Proof of a case against a party other than the principal offender necessitates proof of the offence on evidence admissible against the party.  In other words, as against the party, the Crown must prove that the principal offender committed the offence.  Here the offence was committed by Dru so as against the appellant the Crown was obliged to prove Dru’s guilt.

1. Sometimes the case against one accused will be weaker than against a co-accused.  That will be so when there is evidence, a confession for example, admissible against one but not the other accused.  R v Darby[94] is an example of such a case. Sometimes the principal offender may not even have been apprehended or charged. In those circumstances, by force of s 11.2(5) of the Commonwealth Code, the party may be convicted even though the principal offender is not. However, in those circumstance guilt of the principal offender will still have to be proved against the party.

   [94](1992) 148 CLR 669.

2. Here, where the case as actually presented by the Crown against both the appellant and Dru consisted of relevantly the same evidence, there was no basis upon which the jury could have convicted the appellant without convicting Dru. The Crown observes that the jury were not directed by the trial judge that in order to convict the appellant they must first convict Dru. That observation is true but in our view the jury ought to have been so directed. Such a direction does not offend s 11.2(5) of the Commonwealth Code.

3. The Crown submits that there was an alternative path to conviction of the appellant, which was as a principal offender not as a party to Dru.  Therefore, the Crown submits, that on that path to conviction it was not necessary for the jury to be satisfied as against the appellant of Dru’s guilt.

4. That submission ignores the way the Crown case was put.  As earlier observed, both alternate cases were put on the basis that Dru was the instigator and prime mover of the attempted importation.  There can be no doubt that the Crown set out, as against both the appellant and Dru, to prove that Dru attempted to import the drugs.  A defect in proof of that fact as shown by the result of Dru’s appeal, is a defect in proof of the case against the appellant.

   Conclusion

5. Success on ground two entitles the appellant to a retrial.  There is no basis to acquit him, on appeal.