R v Bartle - [2003] NSWCCA 329

No judgment structure available for this case.

CITATION: R v Bartle & Ors [2003] NSWCCA 329

HEARING DATE(S): 17 February 2003, 18 February 2003, 19 February 2003, 20 February 2003, 21 February 2003

JUDGMENT DATE:
3 December 2003

JUDGMENT OF: Mason P at 1; Barr J at 1; Smart AJ at 392

DECISION: Garry William Bartle: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Maximiliano Diez: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Peter Darryl Fox: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered.; Sir Thomas Graham Fry: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Thomas McCaffrey: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered; Robert Angelo Roberti: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Hamish Edmond Thompson: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered.

CATCHWORDS: criminal law - joint trial - whether joint trial miscarried - whether outburst by one joint accused that all accused had criminal records and had been in gaol caused trial to miscarry - whether directions of trial judge adequate to remove danger of unfair trial - whether raising of good character was intentional - whether Crown entitled to respond by adducing evidence of bad character - whether miscarriage resulted - whether Crown address diverted jury from need to try cases separately - whether directions sufficient to secure separate trial of cases - whether trial judge's refusal to supply jury with transcript of counsel's closing address justified - whether miscarriage resulted - whether evidence of admissions unlawfully obtained - whether trial judge's discretion to admit it miscarried - whether evidence wrongly admitted - whether miscarriage resulted from admission of evidence that a co-offender had pleaded guilty and undertaken to assist the Crown - whether trial judge adequately put defence to jury - criminal law - sentencing - co-offender sentenced by different judge on different facts - whether resulting sentence "erroneous" - whether a justifiable sense of grievance resulted - co-offender received a discounted sentence following an undertaking to give evidence but Crown did not call him to give evidence - whether justifiable sense of grievance resulted.

LEGISLATION CITED: Customs Act 1901 (Cth) s.233B(1)
Evidence Act 1995 ss. 13, 55, 56, 76, 78, 79, 85, 90, 97, 98, 102, 104, 110, 112, 119, 128, 131, 135,137, 138, 192
Criminal Appeal Act 1912 (NSW) ss. 6, 50A
Crimes Act 1914 (Cth) Pt 1C (ss. 23A - 23W), ss. 16, 16A, 16G, 21E, 23C, 23D, 23E, 23Q
Crimes Act 1900 (NSW) s.352
Jury Act 1977 s. 55C

CASES CITED: Bales v Parmeter (1935) 35 SR (NSW) 182
Crofts v The Queen (1996) 186 CLR 427
Edwards v The Queen (1993) 178 CLR 193
Festa v The Queen [2001] HCA 72
Gabriel v The Queen (1997) 76 FCR 279
Gilbert v The Queen [2000] HCA 15
Harriman v The Queen (1989) 167 CLR 590
House v The King (1936) 55 CLR 499
Jones v Dunkel (1959) 101 CLR 298
Knight v The Queen (1992) 175 CLR 495
Krulewitch v United States 336 US 440 (1949)
La Fontaine v The Queen (1976) 136 CLR 62
Lowe v The Queen (1984) 154 CLR 606
Mraz v The Queen (1955) 93 CLR 493
Postiglione v The Queen (1997) 189 CLR 295
R v Capper (1993) 79 A Crim R 64
R v Dalley [2002] NSWCCA 284
R v Dungay (2001) 126 A Crim R 216
R v Everitt [1921] VLR 245
R v Fuller (1994) 34 NSWLR 233
R v Gadbury (1838) 8 Car and P 676
R v Gallagher (1991) 23 NSWLR 220
R v Glasby [2000] NSWCCA 83
R v Guirgis NSW Court of Criminal Appeal, 12 October 1998, unreported
R v Hodges (1997) 95 A Crim R 85
R v Ismunander & Siregar [2002] NSWCCA 477
R v Jones (1909) 3 Cr App R 67 at 69
R v Mandagi [2002] NSWCCA 57
R v Meggett 107 A Crim R 257
R v Middis, Supreme Court of New South Wales, Hunt J, 27 March 1991
R v Phung and Huynh [2001] NSWSC 115
R v Rogerson (1992) 65 A Crim R 530
R v Rondo (2001) 126 A Crim R 562
R v Taousanis [1999] NSWSC 107
R v Tillot (1991) 53 A Crim R 46
R v Tisalandis [1982] 2 NSWLR 430
R v White [1969] VR 203
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Apostilides (1984) 154 CLR 563
The Queen v Chin (1985) 157 CLR 671
The Queen v Glennon (1992) 173 CLR 592
Veen v The Queen (No 2) (1988) 164 CLR 465
Wilde v The Queen (1988) 164 CLR 365
Williams v The Queen (1986) 161 CLR 278
Zoneff v The Queen (2000) 200 CLR 234

PARTIES :
Regina
Garry William Bartle
Maximiliano Diez
Peter Darryl Fox
Sir Thomas Graham Fry
Thomas McCaffrey
Robert Angelo Roberti
Hamish Edmond Thompson

FILE NUMBER(S): CCA 60823/01 & 60816/01; 60723/01 & 60817/01; 60784/01 & 60818/01; 60729/01 & 60819/01; 60735/01 & 60819/01; 60735/01 & 60820/01; 60737/01 & 60821/01; 60814/01 & 60822/01

COUNSEL: Bartle: C M Simpson
Diez: S J Odgers SC/ D J Brezniak
Fox: H K Dhanji/ M Buscombe
Fry: B T Stratton QC
McCaffrey: J Dailly SC
Roberti: M G Crowley
Thompson: G Ikners
Crown: M J King/ C Salsone

SOLICITORS: Bartle: Galloways
Diez: Freemans
Fox: Chalmers Marx
Fry: Ross Hill & Associates
McCaffrey: James A Hall
Roberti: Ford Gaitanis
Thompson: Hardinlaw
Crown: S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0769; 00/11/0770; 00/11/0778; 00/11/0785

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

60823/01 & 60816/01

60814/01 & 60822/01

MASON P
BARR J
SMART AJ
Wednesday, 3 December 2003

REGINA v Garry William BARTLE

REGINA v Maximiliano DIEZ

REGINA v Peter Darryl FOX

REGINA v Sir Thomas Graham FRY

REGINA v Thomas McCAFFREY

REGINA v Robert Angelo ROBERTI

REGINA v Hamish Edmond THOMPSON

FACTS

Following a seven-month trial in the District Court each of the appellants was found guilty of having been knowingly concerned with the importation into Australia of the commercial quantity of cocaine. Those involved in the enterprise were the seven appellants and a man called Bateman. A vessel was bought, repaired and equipped in New Zealand and sailed to a rendezvous in the Pacific Ocean with a vessel carrying three hundred and eighty-three kilograms of pure cocaine. The cocaine had been brought to that place by arrangement with suppliers in Central America. The drug was transhipped and brought to Patonga, where it was seized when the transporting vessel landed on 1 February 2000. The cocaine seizure was then the largest in Australian history.

In imposing sentence the trial judge made detailed findings about the part played by each appellant and Bateman. His Honour found that the criminality of Diez and Fry was so serious as to warrant imprisonment for life. His Honour also found that Bateman masterminded and financed the Australian end of the enterprise and said that if Bateman had been before him he would have sentenced him also to imprisonment for life. His Honour sentenced the remaining appellants to head sentences of twenty-four years’ imprisonment.

The appellants appealed against their convictions and sentences and the Crown appealed against the sentences.

THE CONVICTION APPEALS

Bartle appealed on the grounds that miscarriages of justice resulted because his trial was held jointly with that of the other appellants and not separately, because the trial judge allowed the appellant McCaffrey to state his opinion about a conversation to which the appellant was but McCaffrey was not a party and because of an outburst by the appellant Roberti to the effect that all the appellants had criminal records and had been in gaol (“the Roberti outburst”). It was held that any risk of an unfair trial had been removed by the trial judge’s directions to the jury except that Smart AJ would have upheld the “Roberti outburst” ground and would have applied the proviso. The appeal against conviction was dismissed.

Diez appealed on the grounds that the trial judge erred in holding that he had adduced evidence that he was of good character, in permitting him to be cross-examined about his national origin and affiliations and in allowing the Crown to adduce evidence of his bad character. The first ground turned on whether the trial judge was correct in holding that in giving an answer “Because I never been involved in any importation, been selling any drugs” Diez intended to raise his good character in a particular respect. It was held that the trial judge was not correct and that the evidence of bad character consequently let in was wrongly admitted. There was no substance in the remaining grounds. In view of the strength of the Crown case the proviso was applied and the appeal dismissed.

Fox appealed on the grounds that the address of the Crown Prosecutor was likely to divert the jury from their task of trying the cases separately, that the trial judge’s endorsement of it was likely to have the same effect, that a miscarriage of justice resulted from the refusal of the trial judge to comply with the jury’s request to have a copy of the transcript of defence counsel’s closing address and from impermissible cross-examination of Fox by the Crown Prosecutor which had the effect of splitting the Crown case. The third ground of appeal was upheld. Mason P and Barr J held that the remaining grounds had not been made good. Smart AJ would have upheld the first two grounds but not the fourth. The conviction was quashed and a new trial was ordered.

Fry appealed on the grounds that the trial judge erred in admitting into evidence the record of an interview he had had with the police not long after his arrest, in not discharging the jury after the “Roberti outburst”, in directing the jury in a manner that diverted them from their task of trying the charges separately and in his directions on lies. It was held that the trial judge was correct in concluding that the evidence in the record of interview was unlawfully obtained and did not err in admitting the evidence or in his directions on lies. Mason P and Barr J held that the other grounds had not been made good. Smart AJ found them made out but would have applied the proviso. The appeal was dismissed.

McCaffrey appealed on the grounds that a miscarriage of justice resulted from the admission of evidence of newspaper articles and telephone conversations, from evidence that Bateman had pleaded guilty, had assisted police and had promised to give evidence (the fourth ground), from the Roberti outburst and from the refusal of the trial judge to supply the jury with a transcript of counsel’s closing address. The Roberti outburst ground was dismissed by a majority. All the other grounds save the fourth were upheld. The fourth ground was dismissed. The conviction was quashed and a new trial was ordered.

Roberti appealed on the grounds that a miscarriage of justice resulted from the holding of his trial jointly with the trials of Diez and McCaffrey, from the admission of evidence that Bateman had pleaded guilty and had had his sentence reduced on his promise to give evidence, from the Roberti outburst and from remarks made by the Crown Prosecutor in his closing address. None of the grounds was upheld. The appeal was dismissed.

Thompson appealed on the grounds that a miscarriage of justice resulted from the Roberti outburst, from the directions of the trial judge to the jury about the nature of his defence and about the use they could make of certain circumstantial evidence and from his refusal to allow him to call Bateman to give evidence. The Roberti outburst ground was dismissed by a majority. The second ground was upheld. The third ground was dismissed and the final ground was dismissed by a majority. The conviction was quashed and a new trial was ordered.

THE SENTENCE APPEALS

Bateman was arrested when the cocaine was seized. He made admissions and assisted the police. By the time that the appellants were tried he had pleaded guilty and had been sentenced by James J. He had given evidence at the hearing. The Crown had asserted that he had played a major part in the operation but he swore that he had not. His Honour accepted his evidence and sentenced him to imprisonment for a period of sixteen years. That head sentence included an allowance for assistance given and undertaken to be given, including giving evidence in the trial of the appellants.

The Crown did not call Bateman to give evidence at the trial.

The principal arguments on the applications for leave to appeal against the sentences depended on what was said to be a justifiable sense of grievance in view of the sentence imposed on Bateman on what was said to be an erroneous finding by James J as to his role and of the fact that Bateman received a lower sentence because of his promise to give evidence but did not give evidence.

Mason P and Barr J held that James J’s findings were not “erroneous”. Although they were inconsistent with the findings of the sentencing judge they did not give rise to a justifiable sense of grievance when sentences were compared. Further that the fact that Bateman did not give evidence, though he had received a lower sentence because of his promise to do so, did not give rise to a justifiable sense of grievance. The facts found by his Honour were open on the evidence and the sentences were within his Honour’s range of discretion.

Smart AJ held that each applicant had a sense of grievance which was justifiable because the starting point of his sentence was greater than Bateman’s, yet the Crown had not tendered against Bateman such evidence as would have proved the full extent of his criminality. Dodd DCJ erred in treating the starting point of the sentence imposed on Bateman as so close to life imprisonment as to avoid any perception of disparity. His Honour also erred in finding that Fry’s culpability was about equal to Bateman’s and Diez’s. Smart AJ would have upheld the appeals and reduced the sentences.

Accordingly, Bartle, Diez, Fry and Roberti were granted leave to appeal against sentence and the appeals were dismissed by a majority.
The Crown appeals were dismissed.

60823/01 & 60816/01

60814/01 & 60822/01

MASON P
BARR J
SMART AJ
Wednesday, 3 December 2003

REGINA v Garry William BARTLE

REGINA v Maximiliano DIEZ

REGINA v Peter Darryl FOX

REGINA v Sir Thomas Graham FRY

REGINA v Thomas McCAFFREY

REGINA v Robert Angelo ROBERTI

REGINA v Hamish Edmond THOMPSON

Judgment

1 MASON P AND BARR J: The appellants, Garry William Bartle, Maximiliano Diez, Peter Darryl Fox, Sir Thomas Graham Fry, Thomas McCaffrey, Robert Angelo Roberti and Hamish Edmond Thompson, appeal against convictions entered in the District Court. On 5 February 2001 they stood trial jointly on a charge that they were each knowingly concerned in bringing into Australia not less than the commercial quantity of cocaine contrary to section 233B(1) (d) of the Customs Act 1901. The subject-matter of the charge was a cargo containing 383 kilograms of pure cocaine that was seized from a vessel called the Ngaire Wha when it arrived at Patonga on 1 February 2000.

2 On 26 October 2001 the appellants were sentenced as follows -

Bartle: twenty-four years’ imprisonment with a non-parole period of sixteen years.

Diez: imprisonment for life with a non-parole period of twenty-five years.

Fox: twenty-four years’ imprisonment with a non-parole period of sixteen years.

Fry: imprisonment for life with a non-parole period of twenty-five years.

McCaffrey: twenty-four years’ imprisonment with a non-parole period of sixteen years.

Roberti: twenty-four years’ imprisonment with a non-parole period of sixteen years.

3 The appellants Bartle, Diez, Fox, Fry, McCaffrey and Roberti seek leave to appeal against their sentences. The Crown appeals against what it says is the inadequacy of all the sentences.

The case at trial

4 The Crown case was that the seven appellants and a man called Russell Douglas Bateman were all involved in the importation of the cocaine. Bateman was the organiser and financier of the Australian end of the enterprise. Mr Diez, an Australian and Colombian citizen resident in Australia, represented what may be called the Central American interest. There was no evidence who made the contract for sale and purchase of the drug or when. There was no evidence about the source of the cocaine other than such as implied that it must have been somewhere in Central America, probably Colombia. The evidence was almost all about the activities of the several appellants and Bateman in providing a vessel to which the cocaine should be transhipped for carriage to Australia, selecting a suitably remote location for transhipment, effecting the transhipment and carriage to Australia and providing a lighter for unloading.

5 The purchasers needed a vessel which would receive the cocaine in mid-ocean from the suppliers’ vessel. Early in 1998 Bateman, who resided in Melbourne, and Fry, who resided in New Zealand, had arranged for Fry to purchase in New Zealand a two-masted ketch, the Lone Bird, with funds supplied by Bateman. On 12 February 1998 Fry entered into an agreement to purchase the Lone Bird in his own name for $NZ170,000 and lodged a deposit of $NZ17,000, using funds transferred into his bank account by Bateman.

6 It was no part of the Crown case, whatever Bateman’s intentions might have been, that Fry carried out these activities knowing that cocaine was to be imported. He was not charged with acting knowledgeably before 1 June 1999.

7 Between 12 February and 12 March Bateman transmitted money in various names to New Zealand bank accounts controlled by Fry. Apart from the sum of $NZ45,560, which was transferred from funds in Bateman’s account, the amounts transferred were all less than $A10,000. The choice to transfer amounts so small, necessitating a large number of transfers, was made so as to make it unlikely that the transmissions would be reported by the transmitting media to the Australian authorities under relevant legislation.

8 On 12 March 1998 Fry paid the vendor the balance of the purchase price, using money so transmitted to his accounts.

9 The Lone Bird lay at Gisborne, on the east coast of the North Island of New Zealand. It was in poor condition. The masts were broken, the engine was unserviceable and other work would have to be done to make it suitable for the intended carry. Attempts were made during the rest of 1998 and the better part of 1999 to make it seaworthy. Accordingly, Bateman continued to transfer monies to accounts controlled by Fry, including one in the name of Graham Streetley, an alias used by Fry. In addition to monies sent for the purchase of the Lone Bird, amounts exceeding $NZ180,000 were transmitted, again in small sums not likely to excite the attention of the authorities.

10 In May 1999 Bateman deposited into Bartle’s bank account the sum of $A2,000. Further deposits in June, August, November and December totalled at least $A12,500.

11 In August 1999 Diez met Bateman in Melbourne. Late in the same month he departed Australia for Colombia, having left with Bateman particulars of the means of getting in touch with him. He arrived in Bogota on 6 September, using a Colombian passport.

12 Also in September, Fry obtained a passport in the name Graham Norman Streetley. Using that name he travelled from New Zealand to Melbourne to meet Bateman, then left for Panama, having left his contact details with Bateman. He travelled via Taipei and the United States of America, arriving on 19 September. He registered at the hotel Miramar.

13 Diez arrived in Panama from Colombia on the same day and registered at the same hotel. The purpose of Fry and Diez was to arrange a rendezvous between the suppliers’ vessel and the vessel which would bring the cocaine to Australia.

14 After a few days Diez returned to Colombia.

15 Before he left Panama, Fry purchased a telephone which, by use of a satellite, could originate and receive calls at remote locations. The intention was to use it at sea. He also purchased a substantial quantity of radio equipment. He returned to Australia via Taipei and reported to Bateman in Melbourne before returning to Gisborne on 3 October.

16 On 17 October the suppliers’ vessel, Bora Bora II, left Cristobal, travelled through the Panama Canal and emerged into the Pacific Ocean on its way to a rendezvous with the purchasers’ vessel.

17 Communications continued between the several persons involved. In November 1999 McCaffrey, Bateman and Roberti spent a few days together at Hamilton Island.

18 On 29 November 1999 Bartle and Roberti, who used the alias Russell, travelled from Australia to Gisborne where they were met by Fry. At Fry’s direction they worked on the Lone Bird. Thompson arrived on the following day. Roberti enquired of an engineer about the state of the vessel. Thompson relayed the engineer’s advice to Bateman.

19 By the first week of December work was still being done on the Lone Bird and Fry purchased another engine, intending to have it installed in the vessel. However, a decision was made to abandon attempts to make it seaworthy and look for another vessel.

20 On or about 6 December Bateman gave the order to find a vessel to replace the Lone Bird. The commission was urgent because the rendezvous was imminent. Bartle, Roberti and Thompson began searching and on 8 December the Ngaire Wha was found at Auckland. They began to enquire about its availability and suitability for the job. Bartle took photographs for Bateman, who directed that enquiries continue. It was decided that if the vessel proved suitable Thompson would be the purchaser. On 9 December he paid a deposit of $NZ500.

21 Between about 8 and 13 December Bartle, Roberti, Thompson and Fry were in Auckland seeing to the trial, purchase and repair of the Ngaire Wha. On 11 December Thompson, Bartle and Fry tried the Ngaire Wha at sea. Bateman decided to purchase the vessel for $NZ157,000 and transmitted to an account maintained by Thompson in New Zealand Australian dollars worth $NZ156,990, using in part the sum of $A100,000 which McCaffrey had by arrangement transferred into Bateman’s account. The need to purchase without delay a vessel to replace the Lone Bird had made it impossible to build up a purchasing bank account in New Zealand in the painstaking and ostensibly innocent manner that had been used previously.

22 On 9 and 10 December Thompson, Roberti and Fry travelled to Gisborne in a van hired by Thompson. There they collected life rafts, barrels and other equipment and supplies from the Lone Bird and brought them to Auckland. On 10 December Fry bought radio equipment and buoys and on 11 December hired storage space and moved into it that equipment and equipment brought from the Lone Bird.

23 Bartle vouched for Thompson as purchaser and kept Bateman informed of all developments. The balance of the purchase price was paid on 13 December.

24 On 12 December Fox travelled from Australia to New Zealand at Bateman’s request, in return for the payment of $A1,000, and collected radio equipment and photographs taken by Roberti and Bartle for delivery to Bateman. He delivered them to him in Melbourne on 15 December. He received assistance in New Zealand from Roberti.

25 The Ngaire Wha was in need of some running repairs and Thompson saw to them.

26 Between 15 and 22 December Fry took the Ngaire Wha from Auckland to the Bay of Islands, close to the northern tip of the North Island of New Zealand, a suitable departure point for the meeting with the suppliers’ vessel. He was assisted by Roberti and Bartle.

27 Throughout these events Bartle acted as treasurer, receiving funds from Bateman and distributing them to himself, Thompson, Roberti and, when he arrived at the Bay of Islands, Fox. Thompson took over that role after Bartle left New Zealand on about 23 December to visit Bateman in Melbourne.

28 On 16 December Bateman repaid McCaffrey the $A100,000.

29 McCaffrey provided money for Bartle and Roberti. He assisted in arranging flights. He maintained communication with Bateman.

30 Roberti was to crew the Ngaire Wha but Bateman thought he was unreliable because he drank too much and might say a word out of place. He dispatched Fox from Australia to keep an eye on Roberti. Fox, Roberti, Fry and Thompson remained at the Bay of Islands and there got ready the Ngaire Wha.

31 Thompson insured the Ngaire Wha. He removed self-steering gear from the vessel. The vessel needed new sails and he enquired about the probable cost. On 13 January he borrowed sails for use on the vessel. He took the self-steering gear to the storage place in Auckland. He made enquiries about repairing the radio.

32 Diez had maintained contact with Bateman since his return to Australia on 20 November. On 13 January 2000 he travelled with one Vanegas and one Escobar to meet Bateman in Melbourne. Between the dates of his return to Australia and his arrest he sent not less than $A170,000 to Colombia.

33 Having provisioned the Ngaire Wha, Fry, Thompson and Roberti sailed out of the Bay of Islands on 14 January. The late change to the use of the Ngaire Wha had caused some concern for the suppliers and in telephone calls Diez was implying that he had received a message from the captain of the Bora Bora II to the effect that that vessel had been waiting for eight days to tranship the cocaine. The transfer was made about 17 January. The Bora Bora II arrived in New Zealand on 19 January.

34 On 21 January Diez assisted Vanegas to transfer funds to two of the crew of the Bora Bora II, who were then in Auckland.

35 On 20 January and later occasions Diez and Bateman met to finalise arrangements for the importation.

36 On 21 January Bateman, Bartle and Fox, who was calling himself Darryl (unusually, because he ordinarily used his first given name), began looking for a vessel which could be used to ferry the cocaine from the Ngaire Wha to land. They found a vessel of the “Haines Hunter” class but Bateman rejected it as unsuitable. At Gladesville they found a vessel called the Salamander. During the last week of January they had it surveyed and agreed on a purchase price of $29,000. $500 deposit was paid.

37 On 27 January Bateman supplied cash to Bartle with instructions to tell Fox to have it converted into bank cheques for payment to the vendor. The balance of the purchase price was so paid on the following day.

38 Late in January a Sydney supplier of sails received a call by satellite telephone from somebody who said he was on a Nicholson 35 vessel sailing from New Zealand to Sydney. The Ngaire Wha was a vessel of that class. The caller said that sails were urgently required.

39 The appellants and Bateman made no attempt to use the Salamander for the originally intended purpose. The Crown case was that it must have been decided to land the Ngaire Wha to replace the sails, eliminating the need for a lighter.

40 On 31 January Bateman, McCaffrey, Fox and Bartle arranged to go to Parsley Bay at Brooklyn, a position in Broken Bay opposite Patonga, ostensibly to fish. Bateman, Bartle and Fox reserved rooms in an hotel there. They arranged to use three vehicles, two of them being a utility truck and another goods-carrying vehicle. At 8.40 pm the Ngaire Wha was observed twenty-five miles northeast of Port Jackson.

41 At 12.11 am on 1 February somebody using Fox’s mobile telephone tried several times to get in touch with the satellite phone on board the Ngaire Wha. At 2.46 am the Ngaire Wha was stationary off Patonga Beach.

42 Fry left the vessel and gained the wharf. Police moved in and found him hiding under the wharf. They arrested him and he said that his name was Graham Streetley.

43 Roberti and Thompson were arrested on the vessel. Roberti told the police that his name was James Simmons. He had a passport in that name.

44 At 7.15 am police attended the boat ramp at Brooklyn. They arrested Bateman, who was making to leave in his car, and Bartle and Fox, who were seated in the utility truck. McCaffrey left Brooklyn, avoiding the police. He used the name William Connor. He was not arrested until 15 September 2000.

45 Those arrested were taken to Australian Federal Police Headquarters in Goulburn Street, Sydney. Some agreed to be interviewed, notably Fry, who made damaging admissions.

46 Bateman decided to admit his involvement in the importation and assist the police. Accordingly, he telephoned Diez and arranged to meet him. Diez was arrested by waiting police when he kept the appointment.

47 Bateman pleaded guilty in due course and was sentenced by James J, who made an allowance for his promise to give evidence against the appellants. However, the Crown did not call him because it considered him an unreliable witness. Counsel for Diez and Roberti adduced evidence of Bateman’s promise and the resulting benefit he had received.

THE CONVICTION APPEALS

Garry William Bartle

48 Bartle gave evidence. His defence was that he had known Bateman since the late 1980s. Bateman had led him to believe that he was setting up a boat charter business in Queensland and that he and a friend were having a vessel prepared in New Zealand. He agreed to go there to help out. The vessel was to be brought to Australia in time for New Year. He went to Gisborne to help out as requested but had already decided to return to Australia when Bateman telephoned him and asked him to go Auckland to look for another vessel. After his return to Australia he assisted in finding the Haines Hunter and then the Salamander in response to a request from Bateman to find a vessel he needed for fishing and diving in internal waters. He attended Parsley Bay to look for a mooring site for the Salamander and agreed while there to do some fishing with the others. He was surprised that the Ngaire Wha should arrive at Patonga. He thought it was bound for Queensland. He never knew that Bateman was importing cocaine.

49 Bartle pursued the following grounds of appeal -

1. The trial miscarried because of unfairness caused by the trial judge refusing to exercise his discretion to order a separate trial for the appellant in circumstances where a separate trial was required for the conduct of a fair trial.

3. The trial judge erred in law in allowing the co-accused McCaffrey to give opinion evidence in relation to a conversation that he was not party to, thus causing unfairness to the appellant in his trial.

4. The trial miscarried because of an outburst from the co-accused Roberti causing unfairness to the appellant. Further the trial judge erred in not discharging the jury because of the outburst and the unfairness caused.

Bartle ground 1: The trial miscarried because of unfairness caused by the trial judge refusing to exercise his discretion to order a separate trial for the appellant in circumstances where a separate trial was required for the conduct of a fair trial.

50 Counsel for Bartle complained at trial about a number of pieces of evidence adduced in the trials of the co-accused, most of which were not admitted in Bartle’s case. In the series of applications which resulted his Honour refused to order a separate trial. The complaints were repeated on appeal where the submission was that while each piece of evidence would not individually have justified a separate trial the combination of them did. The question for this Court is whether a miscarriage of justice thereby occurred.

51 There were four such pieces of evidence. The first was evidence about Bateman which counsel for Diez and Roberti respectively adduced by cross-examination of a Crown witness, Federal Agent Heather. The Crown Prosecutor had opened to the jury on the central role that Bateman had played in the importation as organiser and point of contact between all the accused. The Crown Prosecutor did not inform the jury that Bateman had undertaken to give evidence or that he had pleaded guilty, had been sentenced and had received a more lenient sentence because of his undertaking. Although the Crown Prosecutor had not said that Bateman would not be called to give evidence he had given no indication that he would be called.

52 Counsel for Roberti adduced this evidence -

53 Counsel for Diez adduced this evidence -

54 If this evidence was admissible it was admissible in the case generally and that may explain why counsel for Bartle, McCaffrey and Roberti did not object but moved instead for orders discharging the jury and directing separate trials. The applications asserted that the jury might draw the conclusion that Bateman was prepared to give evidence because he believed that the accused were guilty or had evidence of their guilt. (Counsel did not emphasise any countervailing inferences arising from Bateman’s discounted sentence or his failure to appear at the trial.) In refusing to make the orders sought his Honour observed that any mischief arising would be removed by directions not to draw from the evidence any conclusion against the accused and not to speculate about the evidence Bateman might have given. During the summing up his Honour said this -

You have heard much about Russell Bateman. Several defence counsel have attempted to make much of his absence from this case and have criticised the Crown case because of it. He was obviously a central figure in the organisation of bringing cocaine into Australia. You have not seen him. You have not heard him give any evidence. You may, quite naturally, be wondering why and you may be thinking about what he might have said had he been called to give evidence by any party. It will be difficult to put such thoughts completely out of your minds but I direct you to do so for the purpose of your consideration of these cases. We do not know what he might have said in any respect had he given evidence. Therefore you must not speculate about it. You must not think that any evidence he might have given would have supported or not supported either the Crown or any of the individual accused. He did not give evidence and that is the end of it. You have undertaken to decide this case on the evidence before you. Speculation on what someone else may have to say must not enter into your deliberations.

55 The second body of evidence was that in which Diez said that Bateman had supplied him with cocaine. Bartle was unable to deny his own close association with Bateman but denied any knowledge of Bateman’s real reason for engaging him. The evidence that Bateman was a drug dealer was likely to make Bartle’s denial less convincing, it was submitted, especially since other accused raised their good character but Bartle, for reasons that do not matter here, was prevented from doing so.

56 The third body of evidence was adduced by the Crown by leave of the trial judge to show that Diez had already been convicted of and sentenced to imprisonment for the importation of cocaine. We have cited this evidence in dealing below with the appeal of Diez.

57 The argument at trial, repeated on appeal, was that the evidence threw into relief the character of Bartle. Fox was able to adduce evidence of his good character and was able to obtain the advantage of the usual consequential directions to the jury. Although no evidence of bad character was to be adduced in Bartle’s case, it was asserted that he suffered by comparison with Fox. The disadvantage of that comparison was compounded by the evidence of Diez’s bad character and made Bartle more likely to be seen by the jury as like Diez than as like Fox.

58 The fourth body of evidence was adduced by McCaffrey about his own dealing in marijuana. No other accused was said to be involved. The evidence was as follows -

59 Dealing with the criminal activities of accused persons on occasions other than those charged his Honour said this to the jury -

You have heard evidence in respect of various of the accused, that they engaged in what some people and some of you may regard as very bad behaviour in various respects, dealing in marijuana and other drugs, smoking marijuana, using cocaine, using false passports, associating with people engaged in crime and especially Russell Bateman. Using a lot of bad language is still regarded by some people as very bad behaviour. You must not reason from that evidence to a conclusion that any of these accused are the kinds of persons likely to commit crime and then to the conclusion that they did commit this crime. That would be quite wrong. Any prejudice you have on those matters you must put aside for the purposes of your consideration of this case. None of those matters which we might regard as very bad or unlawful behaviour can support a conclusion that any of these accused committed the crime with which he stands charged just because it is very bad or unlawful behaviour. You must be especially careful not to reason on the basis of association. You have all heard the phrase, guilt by association: We are always warned against drawing a conclusion of guilt by association. It is always regarded as unfair. So also in relation to any of the other matters I have mentioned. It would be totally unfair to use any of those matters as indicators of guilt by the process of reasoning I have identified. If we allowed that kind of reasoning it would corrupt the judicial process. It would lead to conviction of the innocent and would allow the guilty to go free.

60 His Honour also instructed the jury about evidence available to be used only in the case of any particular accused.

61 No complaint is made about his Honour’s directions.

62 It was submitted on appeal that the case against Bartle was significantly weaker than the cases against Diez and McCaffrey, that the second, third and fourth bodies of evidence were highly prejudicial to Bartle though not admitted in his case and that there was therefore a real risk that the weak case against him was thereby made immeasurably stronger. R v Middis, Supreme Court of New South Wales, Hunt J, 27 March 1991.

63 We do not think that Bartle suffered any irremediable prejudice when the jury heard about Bateman’s plea of guilty, conviction, sentence and undertaking to give evidence. There was a vast amount of evidence about Bateman’s central role in the importation in any event. We are satisfied that the jury must have followed his Honour’s careful directions not to misuse the evidence.

64 We do not accept that the Crown case against Bartle was made impermissibly stronger by reason of evidence admitted in the cases of Diez and McCaffrey respectively. Bartle played an active part in work on the Lone Bird, in finding and readying the Ngaire Wha and in the search for a lighter, finding and identifying the Haines Hunter vessel and the Salamander. Although the Crown case was circumstantial it was strong. There is no reason to doubt that the jury paid proper regard to his Honour’s precise directions about the separation of trials.

65 We do not think that these separate bodies of evidence individually or in combination led to any risk of impermissible prejudice towards Bartle other than was removed by his Honour’s directions. This ground of appeal fails.

Bartle ground 3: The trial judge erred in law in allowing the co-accused McCaffrey to give opinion evidence in relation to a conversation that he was not party to, thus causing unfairness to the appellant in his trial.

66 One of the pieces of evidence relied on by the Crown was a tape recording made on 18 January 2000 of a telephone conversation between Bartle and Bateman. There was no issue that they were the speakers. The relevant part of the conversation is as follows -

Bartle: … the little fellow’s still not interested?

Bateman: No, he doesn’t want to have a bar, mate, fuckin’ … you know what he’s like, mate … stubborn as a bull … which is fair enough, but I’m not interested either, like, you know.

67 It was agreed that the person that Bartle and Bateman were speaking about was McCaffrey. Bartle told the jury in chief that the thing in which McCaffrey was still not interested was the boat charter business.

68 The evidence was admitted in the cases of all accused. McCaffrey’s case was that by the date of the telephone conversation Bateman had told him that he was thinking of importing cocaine and that McCaffrey had told Bateman that he was not interested. McCaffrey had no belief by that time that Bateman was setting up a charter business. Accordingly, his counsel suggested to Bartle that the telephone conversation was about importing cocaine. Bartle rejected the suggestion.

69 Over the objection of Bartle’s counsel McCaffrey said this about the subject matter of the conversation -

70 The basis of objection at trial, repeated in this Court, was that the evidence was inadmissible as opinion evidence: Evidence Act s 76. His Honour was of the view that the evidence fell within the exception contained in s 79 because it was wholly or substantially based on Bateman’s specialised knowledge based on his training, study or experience, namely on the experience he had gained by speaking to Bateman in a conversation about which Bartle and Bateman later spoke in the recorded telephone conversation.

71 There was no submission that McCaffrey’s opinion was admissible under s 78 Evidence Act as lay opinion. There may be doubt whether McCaffrey’s experience in speaking to Bateman was capable of being specialised knowledge as that term is used in s 79. Additionally, although the point was not argued before the trial judge, we observe that it is not clear how McCaffrey’s opinion about the meaning of the conversation could have passed the test for relevance: Evidence Act s 55.

72 However, it is unnecessary in our opinion to resolve these questions because even if the evidence was wrongly admitted no miscarriage of justice could have resulted.

73 It was submitted on appeal that Bartle was prejudiced by the admission of the evidence because it added direct evidence to an otherwise circumstantial case, that McCaffrey’s opinion made it more likely that the jury would conclude that Bartle was being untruthful in professing his ignorance of Bateman’s true purpose. We do not accept that any prejudice resulted. To the extent that it was capable of assisting the jury to come to a conclusion about the meaning of the conversation, McCaffrey’s opinion would have been inferred by the jury in any event. They would have reached precisely the same understanding from the unobjectionable evidence alone of McCaffrey that he had told Bateman that he was not interested in importing cocaine and that he had never said to Bateman at any relevant time that he was not interested in any other arrangement.

74 It is difficult in all the circumstances to see how there was any prejudice. In view of the strong case against Bartle we would have concluded that if the evidence had not been adduced the jury would inevitably have found Bartle guilty.

75 This ground of appeal fails.

Bartle ground 4: The trial miscarried because of an outburst from the co-accused Roberti causing unfairness to the appellant. Further the trial judge erred in not discharging the jury because of the outburst and the unfairness caused.

76 Roberti was being cross-examined by the Crown Prosecutor on his and Bateman’s use of names other than their own. The suggestion was that by doing so they were trying to reduce the chances of being identified as actors in a criminal enterprise. There had been evidence that Bateman had travelled on a passport in Roberti’s name, and that Roberti had used passports provided by Bateman in the names of Russell and Simmons. Then there were these questions and answers (T 4277-8) -

77 The trial judge immediately sent the jury out and a debate ensued. His Honour recalled the jury and warned them in these terms-

Members of the jury you heard some time ago a fairly emotional outburst from Mr Roberti in the witness box. I am striking out all what he said in that emotional outburst. You are not to hold anything that he said in that outburst against him. You are to remove completely from your mind anything that you heard him say or thought you heard him say we all from time to time give vent to our emotions and sometimes in doing so say things that are wrong and that we know later when we think about it we shouldn’t have said and that we regret saying. And in this case this has been an emotional outburst from Mr Roberti. It’s a difficult task being in the witness box for several days, subject to questioning. Difficult for anyone. I am going to adjourn the trial so far as today is concerned in fairness to Mr Roberti, to allow himself to calm down and recompose himself, so he can return to give evidence in the witness box again.

In one particular respect I’ll refer to the particular words that he used because they were totally wrong in fact and at one stage he said “we’ve all got criminal records and been in gaol” and that is totally wrong in fact. You are to completely ignore that as well as the rest of what Mr Roberti said. You are to completely remove it from your minds and pay no attention to it, so far as the trial is concerned.

78 His Honour sent the jury home until the following day. Counsel for Bartle and other accused applied for an order discharging the jury. His Honour refused to do so.

79 It was submitted on appeal that Bartle was in a particularly difficult position at trial because of the association that had been demonstrated to exist between him and Roberti. The Crown case was that they were close friends. There was evidence that they had travelled together to New Zealand, Roberti using a false passport. Roberti had admitted knowing that Bateman supplied drugs and had been to prison. It was submitted that the demonstrated closeness between Bartle and Roberti, combined with Roberti’s knowledge of Bateman’s criminal affairs, must have damaged Bartle’s credit in the eyes of the jury. Roberti’s outburst would have compounded the damage to such a degree that the jury would have been unable to put out of their minds as directed the words that Roberti had uttered.

80 This ground of appeal asserts an error on the part of the trial judge in refusing to discharge the jury and a resulting miscarriage of justice. Roberti’s answers were unresponsive and the evidence inadmissible. There was a risk that the jury would misuse the evidence. It was the duty of the trial judge to remove the risk or, if that could not be done, to discharge the jury. The criterion for the exercise of the discretion was the maintenance of the fairness of the trial. The test for the discharge of the jury was one of necessity: Crofts v The Queen (1996) 186 CLR 427 at 440.

81 In exercising his discretion the trial judge could take into account all that had happened and all that was likely thereafter to happen. In giving judgment refusing to discharge the jury his Honour said this. His Honour was dealing with the application by Roberti but his remarks applied generally to all other applicants’ cases including Bartle’s-

However, I am still faced with the situation where the outburst occurred and I must decide whether in the circumstances any prejudice caused to his own case by Mr Roberti should entail the result that I discharge the jury as far as his case is concerned.

I have dealt so far with the prejudicial material by striking out the passage and by telling the jury that they are to completely ignore it and by telling them that what he said was in fact wrong. I have attempted to soften the impact of that so far as Mr Roberti’s case is concerned by attempting to place those comments in the context of it being an emotional outburst. I put it to the jury that people when they are upset and emotional frequently giving vent to feelings and express matters which they later regret, which they know to be wrong, and which they wish they had never said.

Whether that ultimately has the effect intended or not, so far as the jury is concerned, must be obviously a matter of some conjecture, but I would think that in general terms the members of the jury are prepared to accept that kind of an explanation and in particular, in my view, a jury is likely to follow the instruction to ignore what was said in terms of paying no heed to it in their consideration of the case.

In this case there are a number of matters relating to various accused which have arisen concerning what can loosely be called character. Some of those matters have been deliberately raised in the context of seeking a direction of good character, that is in the case of Mr Fox. In respect of Mr Diez, in one particular respect, I have allowed the Crown to cross-examine so as to rebut what I held to be an attempt to assert good character to a limited extent in an answer given by Mr Diez. In respect of other accused evidence has been adduced either by the accused in chief, or in cross-examination either by the Crown or by representatives for other accused as to matters which on one view of them may be said to go to character.

In this trial, therefore, there have already been many matters raised which have to be dealt with in terms of what I have said is loosely termed character. If this trial is to continue I will have to give directions of a fairly complex nature in relation to those aspects of character.

…

trial counsel for Thompson

trial counsel for Fry

82 His Honour was correct in observing that a jury is generally likely to follow an instruction to ignore evidence which has been struck out. The experience of the Courts is that reliance on the integrity and sense of duty of jurors is not misplaced: The Queen v Glennon (1992) 173 CLR 592 per Dawson J at 614-5.

83 Speaking in a different context about the expectation of the Courts that juries will obey the directions they are given, McHugh J said this in Gilbert v The Queen [2000] HCA 15 at 31-

The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.

84 The submission on appeal that his Honour erred in his discretion or, alternatively, that the resulting trial miscarried rests upon a single proposition, namely that the evidence was of such a nature that the jury would have found themselves unable to comply with the direction to put it out of their minds. Putting aside for the moment the question whether the jury would have understood the words “totally wrong” to mean anything other than “wrong”, the jury knew as soon as he said the words that Roberti’s evidence was not completely correct. Diez and Fox had already given evidence. The jury knew that Diez claimed to have been involved in emerald smuggling. They knew that he had illegally transferred cash out of Australia, that he had procured false passports and that he had filed dishonest income tax returns. They knew that he had been convicted after pleading guilty of importing 5.9 kilograms of cocaine. The jury would have known what a serious offence that was and would have assumed, as was the case, that Diez had served a period of imprisonment.

85 Fox, on the other hand, had raised good character and had not been challenged about it. So the jury knew that one accused had committed some serious criminal offences and had been to prison on at least one occasion and that another had committed no offences and had not been to prison.

86 The jury knew about some less serious criminal activity on the part of other accused, for example McCaffrey’s association with LSD, marijuana and ecstasy, but there was no other evidence that any accused other than Diez had been involved in criminal activity anything like as serious as that charged.

87 We do not think that these circumstances lead to the conclusion that the jury would have been unable to put out of their minds the things Roberti had said. We do not think that the circumstances would have led the jury to think that Roberti had Bartle particularly in mind. He did not mention Bartle. There was no evidence of wrongdoing on the part of Bartle other than that which was properly admitted.

88 Moreover, the outburst, though no doubt intense, was short. It was followed quite soon by a firm direction that the jury put it out of their minds. The trial judge told the jury that what Roberti had said was wrong (for that is what we think the jury would have understood by the direction), and they knew that it was wrong. The trial lasted some seven months. The incident complained of happened on 4 July and more than two months elapsed between then and the delivery of the verdicts on 13 September. We do not think in the circumstances that the trial turned out unfairly for Bartle so that he lost a reasonable chance of acquittal.

89 We do not think that the discretion of the trial judge in refusing to discharge the jury miscarried. We do not think that the resulting trial miscarried. We do not think that this ground of appeal has been made good. We would dismiss Bartle’s appeal against conviction.

Maximiliano Diez

90 Diez gave evidence. His defence was that he had known Bateman since 1992 and that since 1996 Bateman had supplied him with cocaine for his personal use. He mentioned to Bateman in July 1999 that he was about to visit Colombia to visit his sick father and Bateman told him that he was planning to establish a marine charter business in Panama and that Diez might be able to assist as an interpreter. Accordingly he went to Colombia and while there received a telephone call from Bateman asking him to go to Panama to introduce Bateman’s representative, Fry, to some others. He understood that Fry was to be the ship’s master in the charter business. Accordingly he went to Panama, met Fry and introduced him to people there. He left Panama as soon as those services had been discharged.

91 Evidence was adduced of telephone calls in which Diez and Bateman discussed the movement of money overseas. Diez said that those conversations concerned a business of his in which he was smuggling emeralds into Australia. That business, he said, involved money laundering. Coded language used in the telephone calls related to those illegal activities and not to the importation of cocaine. He did not realise that Bateman was importing cocaine until he learned of the fact while he was in Melbourne with Vanegas and Escobar on 13 January 2000. He played no part in the importation, though he agreed to purchase from Bateman cocaine so imported.

92 Diez filed a number of grounds of appeal but only these were pursued -

1. The learned trial judge erred in holding that the appellant had adduced evidence to prove that he was a person of good character in a particular respect.

4. The learned trial judge erred in permitting cross-examination of the appellant upon his national origin and affiliation.

7. The learned trial judge erred in allowing the Crown to elicit evidence from the appellant that he was “a criminal”.

8. The learned trial judge erred in his direction on lies.

Diez ground 1: The learned trial judge erred in holding that the appellant had adduced evidence to prove that he was a person of good character in a particular respect.

Diez ground 4: The learned trial judge erred in permitting cross-examination of the appellant upon his national origin and affiliation.

Diez ground 7: The learned trial judge erred in allowing the Crown to elicit evidence from the appellant that he was “a criminal”.

93 These three grounds may conveniently be addressed together, leaving Ground 1 to last.

94 Senior counsel representing Diez in the appeal pressed grounds 4, 7 and 1 independently. But he made it plain that the particular gravamen of the cross-examination to which grounds 4 and 7 are addressed was its use as a springboard for the ruling which is the subject matter of the first ground of appeal.

95 The Crown case against Diez had included intercepted telephone conversations between Diez and Bateman. The subject matter included coded conversations about the transfer of money. There was also proof that Diez had arranged payment of funds to overseas accounts which, according to the Crown case, were used to pay for the enterprise.

96 In his evidence in chief Diez said in effect that he knew of Bateman’s plan to import cocaine into Australia. But Diez said that he had not been concerned in that importation. In order to explain a large number of incriminating telephone conversations between himself and Bateman and between himself and other persons, Diez gave evidence of his participation in other criminal activities, in particular in the unlawful importation into Australia of emeralds from Colombia and in his use of cocaine as an addict in Australia. The evidence included information about associated criminal activities necessarily arising in relation to those matters, particularly the surreptitious transfer of funds out of Australia, procurement of false passports and the filing of false tax returns.

97 Before cross-examination commenced, the Crown Prosecutor raised the issue as to the extent to which he could cross-examine Diez about his criminal activities (Tr 2164). It was common ground that Diez had not raised good character, quite the opposite. But the Prosecutor was correctly concerned not to infringe s112 of the Evidence Act, which precludes the cross-examination of a defendant about matters arising out of evidence “of a kind referred to in … Part [3.8 – Character] unless the court gives leave”.

98 Counsel representing Diez at trial indicated that he had no objection to cross-examination about anything that had been raised in chief, including Diez’s explanations for the intercepted telephone calls. Counsel reiterated that he had not put his client’s good character in issue. Judge Dodd accepted this, as did the Crown Prosecutor.

99 His Honour ruled that the Prosecutor had leave pursuant to s112 to cross-examine Diez as to the matters raised in chief even if they went to character (Tr 2165).

100 During cross-examination of Diez questions were put to him which (though not objected to) are now said to have gone beyond the leave granted and to have contravened the prohibition in s112. This is the nub of Grounds 4 and 7.

101 It is common ground in the appeal that Diez’s examination in chief did not raise good character. It would have been most rash for him to have done so, considering that he had been convicted, on a plea of guilty, of cocaine importation. The issue raised by Diez Ground 1 is whether a particular answer given by Diez under cross-examination had been adduced to prove good character in relation to drug dealings, with the consequence that it was open to the Crown to rebut by proof of this conviction.

(i) Diez ground 4

102 The cross-examination included reference to Diez’s Colombian birth and his access to cocaine there. Particular mention was made of his birthplace being Medellin, a place with a particular reputation for involvement with drug cartels and Diez’s close and continuing contacts with people in that city (Tr 2210-2214). The appellant submits that, on any proper analysis, the questions relied upon inference of guilt by reason of national origin, association and the characteristics of Colombia, Medellin in particular. Notwithstanding the absence of objection to those questions, leave is sought (r4) to raise Ground 4.

103 It is further submitted that the cross-examination was not relevant and, if relevant, introduced inadmissible tendency evidence.

104 The Crown submits that the material was relevant because it tended to show that Diez became a necessary part of the importation because of his associations with and knowledge of Colombia. But the difficulty is that those associations and that knowledge did not make it more probable than not that he was knowingly concerned in this particular importation, all the more so because the Crown case was that a number of Colombians were knowingly involved. This line of questioning should not have been pursued as broadly as it was; and the jury should have been instructed as to the very limited relevance of the admissible portions of it.

105 This said, we would not give the requisite leave for this complaint to be agitated as an independent ground of appeal. The damage stemming from the inadmissible portions was fairly peripheral in light of the bad character which Diez was happy to embrace. The questions should have been objected to at trial. Nevertheless, the subject matter of this complaint (like that in Diez Ground 7) forms part of the backdrop to the more significant issue raised in Diez Ground 1 to which we shall return.

(ii) Diez ground 7

106 Diez Ground 7 is a related complaint and it too touches cross-examination that was not objected to at trial. Ground 7 argues that the trial judge erred in allowing the Crown to elicit evidence from Diez that he was “a criminal”.

107 Pursuant to the ruling made immediately before the Crown commenced to cross-examine Diez (supra) it was open to the Prosecutor to embrace or challenge Diez’s assertion that he had engaged in emerald smuggling, illegal conduct in relation to the transfer of funds out of Australia and the purchase of cocaine for his own use. It was open to the Crown to challenge these matters and to press its case that the incriminating conversations in the intercepted telephone calls related to the cocaine importation which was the subject of the indictment. But what the Crown was not entitled to do, without leave properly granted, was to raise evidence of bad character generally.

108 At Tr 266-7 and 218-225 the Prosecutor pressed Diez to admit the label of criminality with respect to the crimes which he had disclosed in his evidence in chief. We think that there would have been no difficulty if this was as far as it went, or even if it had been put to Diez that his admitted criminal activities had led to or been associated with the more serious offence of knowing importation with which Diez stood charged. It was also open (and senior counsel for Diez in the appeal conceded this) to explore matters relevant to Diez’s expertise in doing the sort of things he was alleged to have done in the particular importation.

109 The Prosecutor got Diez to agree that, together with his friends, he had been involved in a criminal enterprise involving the smuggling of emeralds and that he had in a variety of ways transferred cash out of Australia surreptitiously and illegally (Tr 2167 - 2177). This cross-examination properly elicited evidence that Diez had been involved in such activities in a large way and that they included the transfer of moneys to Colombia, the procurement of false passports and the filing of dishonest income tax returns. This material fell within the scope of the trial judge’s ruling. It was relevant to issues raised by Diez’s evidence in chief and it properly challenged his credibility as a witness.

110 Unfortunately, the Prosecutor pressed on. He challenged Diez to agree that he associated with criminals (Tr 2183) and this led to some verbal sparring about whether Diez’s named associates in the gem smuggling enterprise were criminals. The critical passage was as follows (Tr 2184-5):

111 Senior counsel for Diez on appeal submits that the primary focus of this cross-examination was to establish that Diez was “a criminal”, with “an extensive career as a criminal” (Tr 2184). No attempt was being made to contest the credibility of his assertion that he was engaged in particular admitted activities. It was submitted that the cross-examination about these activities could not fairly be characterised as cross-examination to support the Crown case that the incriminating conduct involved knowing concern in the cocaine importation. Because the cross-examination went beyond the scope of that which was relevant and permitted by the leave previously granted it raised inadmissible and damaging material. It went only to Diez’s credibility. In those circumstances it was inadmissible (Evidence Act, s102) absent another provision in the Act overriding that rule. No other provision had been engaged.

112 The Crown submits that Diez intentionally raised good character. It supports the trial judge’s reasons, in particular the finding that Diez chose his words quite deliberately.

113 The appellant’s submissions should be accepted, although the impermissible damage to Diez’s defence should not be exaggerated. We say this because the activities which Diez said he had been involved in were undoubtedly criminal and obviously so. We would deal with this Ground in similar manner to Ground 4. The questioning should have been objected to when it edged past the line. It was not, but in the circumstances we would not grant leave as required by r4. We observe that the trial judge said in his reasons touching the subject matter of Diez Ground 1 that he observed that some of the questions were objectionable as constituting comment or argument. Since however no objection was taken, he did not interfere, particularly because Diez was represented at trial by “competent experienced and appropriately aggressive counsel” (AB 6117-8).

114 Nevertheless, as with Diez Ground 4, the issues raised remain significant in their relationship to Diez Ground 1. Diez was entitled to walk the tightrope that involved admitting substantial criminality, with all that that entailed, while seeking to deny his knowing participation in the importation charged. No one suggested that the Crown case relevant to that importation could be established by reference to tendency or propensity reasoning. Diez had not raised good character to that point in the trial (quite the reverse).

(iii) Diez ground 1

115 Section 110(3) of the Evidence Act provides:

If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence to prove (directly or by implication) that the defendant is not a person of good character in that respect.

116 In the course of cross-examination that came after the passage set out above, Diez gave the following answer:

A. Because I never been involved in any importation, been selling any drugs.

117 The answer will be set out in its proper context below. The primary judge held that this answer represented evidence of Diez adduced to prove that he was a person of good character in a particular respect; and accordingly the Crown was at liberty to cross-examine Diez about his prior conviction.

118 Judge Dodd’s ruling was given on 2 May 2001 (AB 16/6114). The nub of his Honour’s reasoning can be discerned from the following passages:

The application is based primarily upon answers given by Mr Diez in cross-examination and recorded in the transcript essentially at p2213, and in particular an answer given at lines 19 and 20 as follows:

A. Because I never been involved in any importation been selling any drugs.

There are questions and answers prior to that and following it which are of some associated significance, obviously in setting the context for the answer given.

In order to understand the precise significance of that evidence and the way in which the Crown seeks to approach it, it is necessary first of all to say something about the way in which the case for Mr Diez has been run so far. Mr Diez is still in cross-examination. Essentially his case is being run on the basis that although he knew of the plan to import into Australia an amount of cocaine, that plan being directed by one Russell Bateman, he, that is the accused Diez, was not in the relevant sense concerned in that importation, that is he expected no reward or any other benefit arising from the importation and did not take part in any way in the organisation of, or participation, in the importation. In order to explain a large number of telephone intercepts of conversations between himself, that is Mr Diez, and Bateman, and himself and other persons including persons overseas, the accused Diez has given evidence of his participation in other criminal activities, and in particular in the unlawful importation into Australia of emeralds from Colombia and in his use of cocaine as an addict in Australia, together with the associated criminal activities necessarily arising in relation to those matters. In one sense therefore his character is already in issue in the sense that a lot of evidence that would ordinarily be regarded as going to bad character has been put in evidence in chief for Mr Diez.

The application therefore by the Crown is not to, and cannot be taken to be an application to explore the character of Mr Diez generally. It would only be if Mr Diez was in some way raising character in a much narrower sense, than usually the case that the Crown would be permitted to cross-examine in the way sought by the application now made.

It seems to me that there are three pieces of evidence which are relevant to consider in assessing the Crown’s application. The first occurs at p1851 of the transcript where Mr O’Loughlin, counsel for Mr Diez put to him at line 55,

On its own, in my view, that would have been of no particular significance, but it has assumed some significance for the purpose of this application in the light of the other pieces of evidence.

The second piece of evidence occurs in the transcript at pages 2183 and 2184 and in particular at 2184 where Mr Diez was asked various questions about criminality, his appreciation of criminality and whether he was a criminal and a passage occurs beginning at line 9 on p2184 as follows:

The third piece of evidence is that to which I have already referred at p2213 of the transcript which is what has prompted the application. I should say that in my view the question giving rise to that particular answer, and some of the other questions leading up to it and following, were objectionable as constituting comment or argument but no objection was taken and I did not interfere because in this case, and in particular so far as the accused Mr Diez is concerned, competent experienced and appropriately aggressive counsel are retained and unlike in some other trials I have deliberately refrained from interfering so as to disallow questions and in particular questions of the Crown in cross-examination of the accused where no objection is taken on behalf of the accused.

In any event so far as this evidence is concerned no objection was taken and the answer was given. In my view that series of pieces of evidence could reasonably be taken by the jury to be an assertion by Mr Diez that he has not been involved in the importation into Australia of drugs at any stage, and as part of a case for Mr Diez that he is not the kind of person who would be involved in the importation into Australia of drugs despite his other criminal activities. In other words although he is a willing participant in certain criminal activities, he would not involve himself in the kind of criminal activity now charged against him.

That being the case in my view prima facie, the Crown is entitled to make the application now made.

“second piece of evidence”

“third piece of evidence”

“Because I never been involved in any importation, been selling any drugs.”

119 Judge Dodd then addressed issues arising under s192 of the Evidence Act (6118ff).

120 Having obtained the leave sought, the Crown Prosecutor adduced the following evidence (T2460) -

Q. Mr Diez you have previously been convicted of having knowingly taking part in a drug importation of cocaine, haven’t you?

877 On the evidence before James J one could not cavil at the discount of 50 per cent. The Crown submitted to James J that a lesser sentence than life imprisonment would be appropriate.

878 James J summed up the role of Bateman thus:

"93. It is clear that the prisoner was not a principal. The sole Australian principal was Diez and the prisoner acted on the instructions of Diez. The prisoner took no part in the inception of the enterprise or in the international aspects of the enterprise. He did not travel overseas in connection with the enterprise. He did not communicate with anyone in South America or Central America in connection with the enterprise (except for receiving one telephone call from Diez). He played no part in the devising of the enterprise, the acquisition of the cocaine or the financing of the enterprise.

95 On the other hand, it is not accurate, having regard to the many things the prisoner did in furtherance of the enterprise and the responsibilities the prisoner had, to describe him as merely an intermediary or a go between, especially if intermediary or go between are taken to mean simply a conduit or a cipher.

Meggett

,

879 James J continued:

Meggett

880 On the much fuller evidence before him, Dodd DCJ found:

"… Bateman was a principal organiser of the enterprise. He funded the purchase of the Lone Bird, the Ngaire Wha and the Salamander. He directed operations in Australia and New Zealand. He recruited others to the organisation. They reported to him. Operational decisions on how the importation was to be carried out were made by Bateman, such as switching from using the Lone Bird to purchasing and using the Ngaire Wha, and in not using the Salamander but meeting the Ngaire Wha at Broken Bay Bateman led the others in the expedition to Brooklyn to meet the Ngaire Wha. After listening to the telephone intercept material no-one could be in any doubt that Bateman was in charge of the Australian and New Zealand phase of the importation."

881 What marks out this case is that the Crown could have placed James J in substantially the same position as Dodd DCJ.

882 There is a further problem in the Crown withdrawing its appeal against the sentence imposed on Bateman. As I understand the position no attempt could be made by the Crown to place the full facts before the Court in Bateman's appeal. The Crown would not be allowed to make a fresh and different case on appeal. This Court does not have full details of the alleged ways and extent to which Bateman failed to comply with his written undertaking to give future assistance including, amongst other things, to provide any further statements reasonably required and to give evidence in accordance with statements made by him in proceedings against the co-offenders.

883 This Court does not know, and nor did Dodd DCJ, whether the appellant complied with his undertakings or whether it became apparent during the committal proceedings that parts of those statements were probably untrue and that calling Bateman would facilitate the appellants in their endeavour to shift most of the blame onto Bateman. The whole area of Bateman's undertaking and whether he complied with it and, if so to what extent, is shrouded in mystery.

884 In Hodges (1997) 95 A Crim R 85, Simpson J, with whom Hidden J agreed, considered the situation where a co-offender was given a substantial discount on sentence because he undertook to give evidence for the Crown. He failed to fulfil his undertaking satisfactorily, but the Crown did not appeal. Hodges was sentenced after the co-offender and by a different judge. Hodges' sentence was significantly greater than that of the co-offender and Hodges contended that because the co-offender had not assisted the prosecution, there was a disparity between the two sentences.

885 At 95 Simpson J said:

Lowe

886 Simpson J concluded that justice or the appearance of justice would be undermined if Hodges were required to serve a sentence double the length of that of the co-offender.

887 Hunt CJ at CL dissented. At 86 he said:

"... the existence and degree of any disparity is assessed by comparison between the sentence imposed by a court upon one co-offender based on facts found by that court in relation to the co-offender and the sentences imposed either by that court or another court upon the other co-offender. The factual bases of those different findings are often very different."

888 There are cases where the facts admissible against one co-offender may differ markedly from those against another co-offender and the judge's findings may also differ. For example, each co-offender may adduce evidence that the other co-offender was the principal miscreant and that he or she played a lesser or minor role. While the proposition formulated by Hunt CJ at CL is generally correct, it requires some qualification where a substantial reason for the difference is that the Crown has not placed relevant evidence in its possession before the first sentencing judge or has allowed a co-offender's version, or parts of it, to go unchallenged where it has the material to challenge what the co-offender is advancing or stating. The general proposition advanced by Hunt CJ at CL provides no answer in the present case.

889 The parity principle was authoritatively stated by the High Court in Lowe v The Queen (1984) 154 CLR 600. In Postiglione (1997) 189 CLR 295 at 301 Dawson and Gaudron JJ said (citations omitted):

The parity principle ... is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences due allowance should be made for them. In the case of co-offenders different sentences may reflect different degrees of culpability or their different circumstances. ... However, the parity principle, as identified and expounded in Lowe , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance.

890 The issue of due proportion is one of considerable difficulty in the circumstances of the present cases because of these factors:

(a) the leading role played by Bateman as a principal.

(b) his recruitment of other co-offenders (excepting Diez).

891 I would also incorporate my review of the issue of parity set out later when dealing with Fry's application for leave to appeal against sentence.

892 Diez stands in a somewhat different situation from Bartle, Fry, and Roberti.

Diez

893 Dodd DCJ made these findings as to the role of Diez:

"Diez met Bateman before leaving Australia for Colombia in August 1999 and gave him his contact details for Panama and Colombia. He went to Panama in September 1999 to meet Fry and others involved in the scheme to bring cocaine to Australia including a Mr Ospina and a Mr Escobar. While there he telephoned Bateman. When back in Colombia he had telephone contact with Fry in New Zealand. He maintained telephone contract with Fry when he, Diez, came back to Australia. He also maintained telephone contact with Bateman when he, Diez, returned to Australia. He arranged a meeting between Bateman, Escobar and a Mr Vanegas in Melbourne on 13 January 2000 and accompanied them to that meeting. He assisted or provided the transfer of funds by Vanegas to the crew of the Bora Bora II in New Zealand on 21 January 2000. He met Bateman on 20 and 25 January 2000 to finalise arrangements to bring in the cocaine. He maintained contact with others involved in the importation both in Colombia and Australia from mid to late January 2000, discussing the transfer of the cocaine from Bora Bora II to the Ngaire Wha, the progress and likely travel date of the Ngaire Wha and payment of funds to the crew of the Bora Bora II. He arranged the payment of funds to overseas accounts to pay for the enterprise.

"I find that Diez was a principal organiser. It was his Latin American contacts which were of vital importance in having the scheme proceed. His role in communicating with them, from at least the time that he went with Fry to Panama, was vital and clearly he was relied on to conduct all business with them including payment except when they were actually in Australia to meet Bateman.. He and Bateman discussed the scheme by phone and in person. Although it is true that Bateman did not defer to Diez it is also clear that Diez expected to be consulted as matters developed and that he was consulted."

894 Diez was born in Colombia on 23 March 1953 and came to Australia in 1978. At the date of sentencing he had three daughters aged 15, 18 and 20. He attained an accountancy certificate at University. His mother is mentally ill in Colombia. He asserted in evidence that he was engaged in smuggling emeralds into Australia. His previous conviction of relevance was that of 17 January 1994 of conspiring to import cocaine. He was sentenced to imprisonment for 2 years 9 months with a non-parole period of 1 year 3 months.

895 The large quantity of cocaine involved in the importation and the important and major part played by Diez as a principal organiser lead to the conclusion that apart from the question of parity or due proportion, it was open to the judge to impose a life sentence with a non-parole period of 25 years. I take into account not only the lesser basis on which Bateman was sentenced but also the material available to the Crown which was not placed before James J. It is one thing for a Court to sentence a co-offender on a lesser factual basis than another where the Crown places all available material before the Court and quite another where the Crown does not place all such material before the Court.

896 In view of the sentence imposed on Bateman and taking into consideration all the circumstances and the principle of parity and due proportion the correct starting point is one of 42 years. Applying s.16G of the Crimes Act (Cth) this reduces to a sentence of 28 years. The correct non-parole period is 18 years. I would grant leave to appeal, allow the appeal against sentence and substitute the sentence indicated. This is a very heavy sentence.

Fry

897 The judge summarised Fry's activities thus:

"Fry purchased the Lone Bird in early 1998 with funds supplied by Bateman. He travelled to Panama in September 1999. There he and Diez met others involved in importing cocaine into Australia and arrangements were made. He continued telephone contact with Diez when Diez was in Colombia. He purchased an iridium or satellite phone in Panama. He reported to Bateman in Melbourne in late September 1999. He continued contact with both Diez and Bateman after he returned to New Zealand. He took part in the purchase of the Ngaire Wha. He navigated it to the Bay of Islands. He made sure it was properly equipped and provisioned. He then sailed it to the meeting point with the Bora Bora II and organised the transfer of the cocaine and its storage. He then sailed to Australia. He was clearly the captain."

898 Fry, a New Zealand national, was born on 8 February 1952 and was a single man. He has, as previously indicated, a lengthy criminal record. From December 1992 he had convictions on three occasions for drug offences and was sent to gaol in respect of each offence. On 31 March 1994 he was sentenced to imprisonment for 5 years 4 months commencing 14 December 1992 with a non-parole period of 4 years.

899 Fry contended that the judge erred in assessing the culpability of Fry as equal to that of Bateman and Diez. Fry was subject to the directions of Bateman as to his general activities. Thus, Fry went to Panama under Bateman's instructions and met up with Diez who was responsible for discussing matters with Fry, including future plans, and directing Fry.

900 Counsel for Fry stressed that he was a sailor acting under the orders of Bateman. Fry was a gopher who was told what to do. At one stage Fry was sacked by Bateman who later reinstated him because of his sailing expertise.

901 Dodd DCJ has summarised Fry's role and rejected his claim of having been threatened. As the captain of the Ngaire Wha Fry set or supervised the course taken by that vessel to meet the Bora Bora II, he was responsible for the transhipment of the cocaine at sea and then sailing to Australia with the cocaine. He had purchased an iridium phone in Panama to assist with sailing the vessel from New Zealand or near New Zealand, to Australia.

902 Fry's role was an important one. He was in charge of the cocaine cargo for about 11-12 days while it was at sea and brought to Australia. He also had to handle Thompson and Roberti. Fry's role differed from that of Bateman and that of Diez. It is hard to compare his role with those of Bateman and Diez who exercised an overall organisational control over the operations. Fry's role was less senior than that of Bateman and Diez. Fry's culpability is less than that of Bateman and Diez. However, Fry's culpability was at a high level in this large importation. Diez, Bateman and Fry each had prior convictions for drug offences. There has to be due proportion between the sentences imposed on Bateman and Diez and that imposed on Fry. Allowance must be made for Bateman's plea of guilty and contrition and the assistance which he gave the authorities.

903 In his written submissions of 13 December 2002 senior counsel for Fry launched a strong attack on the reasons of the judge.

904 Senior counsel referred to these remarks of the judge:

"… I propose to regard the sentence imposed on Bateman as starting at a point close to life imprisonment as to avoid any real perception of disparity between it and life imprisonment, and certainly not such as to lead to a justifiable sense of grievance on the part of any one sentenced to life imprisonment."

905 It was submitted that the judge was therefore saying that there was no practical difference between a sentence of 39 years and one of life imprisonment. Such an approach fails to recognize the fundamental difference between a determinate and an indeterminate sentence. Section 16G applies to a determinate sentence, but not to an indeterminate sentence. It was submitted that this disparity was fundamental. (s.16G had not been repealed at the date of sentencing). The application or non-application of s.16G creates a large gap between the two sentences.

906 Counsel for Fry criticised this passage in the judge's reasons:

907 Counsel submitted that this conclusion represented a complete negation of the principles of parity. Counsel, after referring to Lowe, Postiglione and Hodges relied on R v Tisalandis [1982] 2 NSWLR 430 at 434 where Street CJ, in dealing with the difficulties which arise where the second judge thought that the sentence passed by the first judge was unduly lenient but was naturally reluctant to criticise him, said, inter alia:

"… their solution is to be found in recognising that the sentence passed by the first judge is a most relevant and material consideration to be weighed by the second judge …

908 Counsel for Fry submitted that the judge's approach in disregarding the sentence on Bateman was a breach of the principles of sentencing procedure referred to by Street CJ.

909 Counsel for Fry submitted:

"14. There can be no sensible comparison between the sentences imposed upon Mr Bateman and that imposed upon the respondent which does not offend the principle of parity. Leaving aside for the moment the discounts that Mr Bateman may have been entitled to, the sentence notionally imposed upon him, that is a 'starting point' of 39 years, which reduces by reason of s.16G to 26 years with a proportional non-parole period, is fundamentally different in nature and character from that imposed on the respondent. The respondent's non-parole period is marginally lower than Bateman's total sentence, and this is a case where Bateman was very clearly the man in charge. Because Bateman was the financier, because he seemed to do all the organisation and make the decisions, the inference can reasonably be drawn that he was the one who was to benefit most significantly from the enormous potential profit to be derived from the enterprise. His sentence cannot be swept away as a matter to which no regard should be had. In doing so, the learned sentencing judge at the same time swept away fundamental principles of sentencing which were directly applicable to the respondent's case. It is submitted that there was no justification for taking that approach and that it represents an error in the process of reasoning which has affected the sentence imposed on the respondent.

15. Looking at the principles of parity from another angle, the determinate sentences imposed on the five co-offenders Thompson, Bateman, Roberti, Fox and McCaffrey also offend the principle of parity. In each case the findings made
by the learned judge were to the effect that the objective criminality involved in the conduct of each of those five men was 'slightly less', or words to that effect, than that of the principal Bateman. Again, the distinction between their sentences of 24 years with a non-parole period of 16 years and the sentence imposed on the respondent is stark. For criminality which is assessed as being only slightly more than five of his co-offenders, the respondent has received a dramatically more severe sentence."

910 The Crown, of course, relied heavily on the different findings of fact made by James J on the evidence before him. This would normally be a powerful submission but it loses its power because of the Crown's failure to place all the relevant information before James J (especially the tapes). The tapes were eloquent and revealing. I would not countenance a situation where the Crown seeks to have the Court discount or disregard an earlier sentence on a co-offender where it has not placed all the relevant information in its possession before the first sentencing judge.

911 In my opinion the judge erred in treating the sentence imposed on Bateman as starting at a point so close to life imprisonment as to avoid any real perception of disparity. This ignored the effect of s.16G of the Crimes Act (Cth). The judge also erred in proceeding to sentence without regard to Bateman's sentence. These are significant errors.

912 In my opinion the correct application of the principles of parity and due proportion alone compel the conclusion that another and lesser sentence was warranted in law. However, I am also of the opinion that the judge erred on the facts before him in holding that Fry's culpability was equal to that of Bateman and Diez.

913 As to comparative sentences, counsel referred the Court to R v Mandagi [2002] NSWCCA 57 and R v Ismunander & Siregar [2002] NSWCCA 477. These have been noted. Counsel for Fry urged the Court to follow Mandagi and submitted that Ismunander & Siregar was wrongly decided and should not be followed. The Crown submitted that Mandagi was wrongly decided and that Ismunander & Siregar should be followed. As I wrote the leading judgment in Mandagi this is not a matter on which I should comment. The resolution of that difference is better left to others. It is not essential to do so to determine these applications.

914 Neither Mandagi nor Ismunander & Siregar involved the factual scenario which here arises of relevant available information not being placed before the first sentencing judge.

915 Counsel for Fry submitted that this Court should take the approach propounded by Anderson J in R v Capper (1993) 79 A Crim R 64 at 74:

"When a co-offender has been treated with excessive leniency justice may be sufficiently done if the prisoner receives as lenient a sentence as can be justified within the accepted range of sentences for this kind of offence in light of the matters personal to the prisoner, including his record." (Authorities cited omitted).

916 The correct starting point for Fry is one of 40 years. Applying s.16G of the Crimes Act (Cth) this reduces to a sentence of 27 years. The correct non-parole period is 17 years. Accordingly I would grant leave to appeal against sentence; allow the appeal and impose sentences to this effect upon Fry to date from 1 February 2000.

Bartle

917 The judge summarised the role of Bartle thus:

"Bartle agreed to travel to New Zealand at Bateman's request for the purpose of doing work on the Lone Bird and so went to Gisborne. He worked on the Lone Bird between 1 December 1999 and 7 December 1999. He found out the state of readiness of the Lone Bird, took photos of its interior and exterior and reported to Bateman on it. On Bateman's instructions he left Gisborne and looked around Auckland for another boat suitable for sailing to Australia. He assisted in finding the Ngaire Wha on 8 December 1999. He told Bateman about it by telephone and took photos of it to show Bateman. He stayed in New Zealand until 23 December 1999 to finalise the purchase of the Ngaire Wha. He provided Thompson's bank account details to Bateman. He participated in the sea trials of the Ngaire Wha with Thompson on 11 December 1999. He assisted in motoring the Ngaire Wha from Auckland to the Bay of Islands between 15 December 1999 and 22 December 1999. He disbursed funds supplied by Bateman to himself, Roberti and Thompson and for expenses for the Ngaire Wha. He reported to Bateman in Melbourne on 26 and 27 December 1999. Until the injury to his Achilles tendon it was intended that he be crew on the Ngaire Wha. Bartle looked for a small power craft in Sydney for the purpose of going out to meet the Ngaire Wha and suggested one boat to Bateman which Bateman decided was not suitable. With Fox he assisted Bateman in looking for, finding and buying the Salamander in the period 20 to 25 January 2000. He inspected the Salamander and participated in the test run. He collected the balance of the purchase price from McCaffrey, delivered it to Fox and instructed Fox how to get cheques drawn. He went with Fox to complete payment and then assisted Bateman in finding a suitable mooring for the Salamander. He obtained a boat licence on 24 January 2000.

Bartle acted as a point of contact with those on the Ngaire Wha and passed messages to Bateman from Roberti and Thompson between 18 and 22 January 2000. He obtained a weather information telephone number for Thompson. He went with Bateman and Fox to Brooklyn in the morning of 31 January 2000 to look at the prospective unloading site. He went with Bateman, Fox and McCaffrey that night to Brooklyn to await the arrival of the Ngaire Wha intending to unload its cargo of cocaine and transport it, at least partly, in his vehicle.

918 The judge found that Bartle carried out an extensive and significant number of aspects of the execution of this crime and that Bateman and others in the group relied upon Bartle. The judge assessed Bartle's culpability as slightly less than that of Bateman.

919 Bartle was born on 5 June 1953. He was separated from his wife before this offence. She had returned to the United Kingdom with their two sons, aged 12 and 8. He has no prior convictions. The judge accepted that Bartle suffered a cerebral abscess requiring surgical intervention. The judge said of Bartle:

"Whatever his precise deficits may be due to the frontal lobe abscess they are not such … as to have had any effect in determining his behaviour in committing this crime. They are also not such as to require being taken into account in any particular way in considering how he will serve his sentence."

920 I will not repeat what I have written as to parity and due proportion generally and of the sentences imposed on Diez and Fry. As has been pointed out the judge assessed Bartle's culpability as slightly less than that of Bateman. The starting point for Bateman was 39 years and for Bartle 36 years. The judge would have sentenced Bateman to life imprisonment if Bateman had come before him. While Bartle was an industrious and willing servant of Bateman and played a significant pat in the importation, he remained a subordinate and did as he was told by Bateman. While his culpability was substantial he did not exercise the executive, organising and controlling functions of Bateman. Further, Bartle had no previous convictions. Considerations of due proportion lead to the conclusion that a starting point of 36 years was excessive. The correct starting point was 33 years. With the application of s.16G of the Crimes Act (Cth), the correct sentence was 22 years and the correct non-parole period 14 years. I would grant leave to appeal, allow the appeal against sentence and impose a sentence and non-parole period of the lengths mentioned, commencing on 1 February 2002.

Roberti

921 The judge summarised Roberti's role thus:

"Roberti went to New Zealand at the request of Bateman to do work on the Lone Bird, to ascertain its state of readiness and to report back to Bateman. He did so. He took part in all aspects of what was done in New Zealand and in particular in looking for and finding the Ngaire Wha. He reported back to Bateman. He helped to ready the Ngaire Wha for sailing and then helped to sail her to Australia. He assisted in the transfer of the cocaine from the Bora Bora II. He also communicated with Bartle and with Bateman via Bartle using the communications equipment on board the Ngaire Wha.

922 The judge found Roberti to have been knowingly concerned in the enterprise from the time he was sent to New Zealand. The judge accepted that Roberti was not an organiser but found that he had a significant role in looking after Bateman's interests in New Zealand, getting the Ngaire Wha ready and crewing her. The judge assessed Roberti's culpability as slightly less than that of Bateman and similar to that of Bartle, Fox and McCaffrey.

923 Roberti, who was born on 12 July 1949, is single and a carpenter by trade. By all accounts he drinks too much. Although he had a record consisting of an appreciable number of matters commencing when he was 15, the judge thought that none of them was relevant to his sentencing except for a supply prohibited drug conviction on 20 January 1997. That resulted in a small penalty (184 hours community service). The judge correctly ignored that in determining the sentence.

924 Roberti challenged the judge's finding that Roberti's culpability was slightly less than that of Bateman and similar to that of Bartle, Fox and McCaffrey.

925 Counsel for Roberti submitted that his role was at the highest a handyman with no experience in boats. The evidence that he had no sailing experience prior to going to New Zealand was not challenged. Counsel submitted that Roberti had at best a minor and a non essential role in the drug importation and that his participation and criminality was less than that of his co-offenders. Counsel contended that for the appellant to serve longer in gaol than Bateman would give rise to a justifiable sense of grievance and erode public confidence in the administration of justice.

926 Roberti was in New Zealand from late November 1999 assisting with the enterprise and continued to assist in New Zealand until he sailed for Australia and then on the journey to Australia until his arrest on 1 February 2000. He was engaged in assisting and advancing the importation for two months albeit at a relatively junior level. His criminality was significant but at a much lower level than that of Bateman and at a lower level than that of Bartle.

927 Questions of parity and due proportion arise. I will not repeat what I have earlier written as to these when dealing with these matters generally and the applications of Diez and Fry.

928 The starting point for Bateman was 39 years and for Bartle it was 36 years. I have earlier held that the correct starting point for Bartle was 33 years. The correct starting point for Roberti, given his lesser but still significant role, is 30 years. Upon applying s.16G of the Crimes Act (Cth) that leads to a sentence of imprisonment for 20 years. The non-parole period should be 12 years 6 months. I would grant leave to appeal, allow the appeal and impose such a sentence commencing on 1 February 2000.

Crown Appeals

929 As to the Crown appeals in the cases of Diez, Fry, Bartle and Roberti it will be apparent from what I have already written that these appeals must be dismissed. I have already taken into account in considering their appeals against their sentences, the large quantity of cocaine imported, the extensive planning involved, the steps taken to effect the importation and the scope of the enterprise. It had all the marks of a major enterprise carried out at considerable expense.

930 My opinion as to the outcome of the sentence appeals of Diez, Fry, Bartle and Roberti is a minority one. Upon the assumption that the majority judgment as to these appeals is correct, I would still be of the view that the Crown appeals against sentence should be dismissed generally for the reasons given in the joint judgment.

Index to Judgment of Mason P and Barr J

The Conviction Appeals:

Introduction 1

Garry William Bartle 48

Ground 1 50

Ground 3 66

Ground 4 76

Maximiliano Diez 90

Grounds 1, 4 and 7 93

Ground 8 148

The proviso 169

Peter Darryl Fox 175

Grounds 1 and 2 179

Grounds 3 and 4 184

Sir Thomas Graham Fry 185

Ground 2 188

Ground 3 267

Ground 5 268

Ground 6 274

Thomas McCaffrey 280

Grounds 1, 2, 3, 4, 5, 6 and 7 283

Robert Angelo Roberti 284

Grounds 1, 3 and 4 288

Grounds 2 and 6 297

Ground 5 310

Ground 7 311

Grounds 8 and 9 315

Hamish Edmond Thompson 316

Ground 1 322

Ground 2 323

Ground 3 324

Ground 4 325

The Sentence Appeals 344

The Crown Appeals 379

Orders 391

Index to Judgment of Smart AJ

The Conviction Appeals:

Garry William Bartle 393

Maximiliano Diez 394

Sir Thomas Graham Fry 395

Robert Angelo Roberti 406

Fox, McCaffrey and Thompson 407

The Roberti Outburst and Associated Matters 408

Roberti 415

Bartle 468

Fry 483

Thompson 498

McCaffrey 507

Thomas McCaffrey

Introduction 512

Ground 1 532

Ground 2 567

Ground 3 604

Ground 3A 617

Ground 4 624

Ground 6 643

Ground 7 650

The proviso 677

Peter Darryl Fox

Ground 3 680

Grounds 1 and 2 696

Ground 4(a) 708

Ground 4(b) 729

The proviso 730

Hamish Edmond Thompson

Ground 2 733

Ground 3 782

Ground 4 800

The proviso 836

Sentence Appeals:

General 841

Diez 893

Fry 897

Bartle 917

Roberti 921

Crown Appeals 929

**********

Last Modified: 09/09/2004

Citations

R v Bartle [2003] NSWCCA 329

Most Recent Citation

Cases Citing This Decision

102

R v Glastonbury [2014] SASCFC 44

R v Cranston (No 24) [2023] NSWSC 10

Cases Cited

43

Statutory Material Cited

6

Crofts v The Queen [1996] HCA 22

Jago v District Court (NSW) [1989] HCA 46

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CITATION:	R v Bartle & Ors [2003] NSWCCA 329
HEARING DATE(S):	17 February 2003, 18 February 2003, 19 February 2003, 20 February 2003, 21 February 2003
JUDGMENT DATE:	3 December 2003
JUDGMENT OF:	Mason P at 1; Barr J at 1; Smart AJ at 392
DECISION:	Garry William Bartle: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Maximiliano Diez: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Peter Darryl Fox: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered.; Sir Thomas Graham Fry: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Thomas McCaffrey: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered; Robert Angelo Roberti: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Hamish Edmond Thompson: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered.
CATCHWORDS:	criminal law - joint trial - whether joint trial miscarried - whether outburst by one joint accused that all accused had criminal records and had been in gaol caused trial to miscarry - whether directions of trial judge adequate to remove danger of unfair trial - whether raising of good character was intentional - whether Crown entitled to respond by adducing evidence of bad character - whether miscarriage resulted - whether Crown address diverted jury from need to try cases separately - whether directions sufficient to secure separate trial of cases - whether trial judge's refusal to supply jury with transcript of counsel's closing address justified - whether miscarriage resulted - whether evidence of admissions unlawfully obtained - whether trial judge's discretion to admit it miscarried - whether evidence wrongly admitted - whether miscarriage resulted from admission of evidence that a co-offender had pleaded guilty and undertaken to assist the Crown - whether trial judge adequately put defence to jury - criminal law - sentencing - co-offender sentenced by different judge on different facts - whether resulting sentence "erroneous" - whether a justifiable sense of grievance resulted - co-offender received a discounted sentence following an undertaking to give evidence but Crown did not call him to give evidence - whether justifiable sense of grievance resulted.
LEGISLATION CITED:	Customs Act 1901 (Cth) s.233B(1) Evidence Act 1995 ss. 13, 55, 56, 76, 78, 79, 85, 90, 97, 98, 102, 104, 110, 112, 119, 128, 131, 135,137, 138, 192 Criminal Appeal Act 1912 (NSW) ss. 6, 50A Crimes Act 1914 (Cth) Pt 1C (ss. 23A - 23W), ss. 16, 16A, 16G, 21E, 23C, 23D, 23E, 23Q Crimes Act 1900 (NSW) s.352 Jury Act 1977 s. 55C
CASES CITED:	Bales v Parmeter (1935) 35 SR (NSW) 182 Crofts v The Queen (1996) 186 CLR 427 Edwards v The Queen (1993) 178 CLR 193 Festa v The Queen [2001] HCA 72 Gabriel v The Queen (1997) 76 FCR 279 Gilbert v The Queen [2000] HCA 15 Harriman v The Queen (1989) 167 CLR 590 House v The King (1936) 55 CLR 499 Jones v Dunkel (1959) 101 CLR 298 Knight v The Queen (1992) 175 CLR 495 Krulewitch v United States 336 US 440 (1949) La Fontaine v The Queen (1976) 136 CLR 62 Lowe v The Queen (1984) 154 CLR 606 Mraz v The Queen (1955) 93 CLR 493 Postiglione v The Queen (1997) 189 CLR 295 R v Capper (1993) 79 A Crim R 64 R v Dalley [2002] NSWCCA 284 R v Dungay (2001) 126 A Crim R 216 R v Everitt [1921] VLR 245 R v Fuller (1994) 34 NSWLR 233 R v Gadbury (1838) 8 Car and P 676 R v Gallagher (1991) 23 NSWLR 220 R v Glasby [2000] NSWCCA 83 R v Guirgis NSW Court of Criminal Appeal, 12 October 1998, unreported R v Hodges (1997) 95 A Crim R 85 R v Ismunander & Siregar [2002] NSWCCA 477 R v Jones (1909) 3 Cr App R 67 at 69 R v Mandagi [2002] NSWCCA 57 R v Meggett 107 A Crim R 257 R v Middis, Supreme Court of New South Wales, Hunt J, 27 March 1991 R v Phung and Huynh [2001] NSWSC 115 R v Rogerson (1992) 65 A Crim R 530 R v Rondo (2001) 126 A Crim R 562 R v Taousanis [1999] NSWSC 107 R v Tillot (1991) 53 A Crim R 46 R v Tisalandis [1982] 2 NSWLR 430 R v White [1969] VR 203 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Apostilides (1984) 154 CLR 563 The Queen v Chin (1985) 157 CLR 671 The Queen v Glennon (1992) 173 CLR 592 Veen v The Queen (No 2) (1988) 164 CLR 465 Wilde v The Queen (1988) 164 CLR 365 Williams v The Queen (1986) 161 CLR 278 Zoneff v The Queen (2000) 200 CLR 234
PARTIES :	Regina Garry William Bartle Maximiliano Diez Peter Darryl Fox Sir Thomas Graham Fry Thomas McCaffrey Robert Angelo Roberti Hamish Edmond Thompson
FILE NUMBER(S):	CCA 60823/01 & 60816/01; 60723/01 & 60817/01; 60784/01 & 60818/01; 60729/01 & 60819/01; 60735/01 & 60819/01; 60735/01 & 60820/01; 60737/01 & 60821/01; 60814/01 & 60822/01
COUNSEL:	Bartle: C M Simpson Diez: S J Odgers SC/ D J Brezniak Fox: H K Dhanji/ M Buscombe Fry: B T Stratton QC McCaffrey: J Dailly SC Roberti: M G Crowley Thompson: G Ikners Crown: M J King/ C Salsone
SOLICITORS:	Bartle: Galloways Diez: Freemans Fox: Chalmers Marx Fry: Ross Hill & Associates McCaffrey: James A Hall Roberti: Ford Gaitanis Thompson: Hardinlaw Crown: S E O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/11/0769; 00/11/0770; 00/11/0778; 00/11/0785
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ