R v Bolus

[2003] NSWSC 658

CITATION:	R v Bolus and Others [2003] NSWSC 658 revised - 19/08/2004
HEARING DATE(S):	04/02/03 - 10/07/03
JUDGMENT DATE:	7 May 2003
JUDGMENT OF:	Howie J at 1
DECISION:	Application at the end of the Crown case to direct the jury to acquit each of the accused on the basis that the evidence led by the Crown at its highest proved the existence of two conspiracies and not one as alleged in the indictment is refused.
CATCHWORDS:	Criminal Law and Procedure - Conspiracy - Defence of multiple conspiracies - whether there should be a verdict by direction.
CASES CITED:	Ahern v The Queen (1988) 165 CLR 87 R v Louden (1995) 37 NSWLR 683 Gerakiteys v The Queen (1984) 153 CLR 317 R v Cotroni (1979) 45 CCC (2d) R v Handleman (1980) 57 CCC (2d) 242
PARTIES :	Regina v James Herbert Bolus, Regina v Dominic Darrington Brokenshire, Regina v Bruce Cornwell, Regina v David Paul Dicecco, Regina v Juan Guillermo Diez-Orozco, Regina v Vincent Francis, Regina v John Lawrence, Regina v Daniel Patrick McDougall, Regina v David George Norris
FILE NUMBER(S):	SC 70061/02, 70066/02, 70223/02, 70219/02, 70221/02, 70225/02, 70220/02, 70224/02, 70222/02
COUNSEL:	P. Roberts SC with I. Bourke - Crown S. Kluss - Accused Bolus G. Whitehead - Accused Brokenshire P. Boulten with P. Williams - Accused Cornwell P. Hogan - Accused Dicecco P. Young - Accused Diez-Orozco R. Cooley - Accused Francis C. Waterstreet - Accused Lawrence B. Rigg - Accused McDougall C. Loukas - Accused Norris
SOLICITORS:	Commonwealth DPP - Crown Graham W. Howe & Co., Solicitors - Accused Bolus King's Lawyers - Accused Brokenshire Paul Hardin, Solicitor - Accused Cornwell Peter Ash, Solicitor - Accused Dicecco Neil J. O'Connor & Assoc., Solicitors - Accused Diez-Orozco Morgan Ardina Solicitors - Accused Francis Kings Lawyers - Accused Lawrence Barry Watterson, Solicitor - Accused McDougall Rigelsford Jenson & Co., Solicitors - Accused Norris

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

WEDNESDAY 7 MAY 2003

70061/02 R v James Herbert BOLUS
70066/02 R v Dominic Darrington BROKENSHIRE
70223/02 R v Richard Bruce CORNWELL
70219/02 R v David Paul DICECCO
70221/02 R v Juan Guillermo DIEZ-OROZCO
70225/02 R v Vincent FRANCIS
70220/02 R v John LAWRENCE
70224/02 R v Daniel Patrick McDOUGALL
70222/02 R v David George NORRIS

JUDGMENT

1 HOWIE J: At the conclusion of the Crown case an application was made on behalf of all of the accused that I should direct the jury to acquit each of them. The basis of that submission was a contention that the evidence led by the Crown at its highest proved the existence of two conspiracies and not the single conspiracy alleged in the indictment. At the conclusion of the argument I indicated that the application was refused and I would give reasons later. These are those reasons. During the course of this judgment any facts or allegations referred to are based upon allegations in the Crown case.

2 There was a further and separate application made on behalf of the accused Bolus that I should direct an acquittal in his case on the basis that there was insufficient evidence in the Crown case upon which the jury could find that he was a participant in the conspiracy alleged. I indicated that this application was also refused and I would give reasons later.

3 The single count in the indictment alleges in effect that between about 1 January 2001 and 6 August 2001 at Sydney the accused conspired between themselves and with other persons, both named and unnamed, to import into Australia a quantity of cocaine being not less than the commercial quantity. In brief the allegation is that the accused were all party, albeit at different times, to an agreement to import into Australia a particular identifiable quantity of drug, being 120 kilograms of cocaine brought by a sailing boat, The Flaning, from Panama to the waters off the coast of Australia.

4 Three persons crewed the boat carrying the drug. They can be referred to as Zapata, Govert van Bommel (Govert) and Rincon. Zapata was in control of the importation of the drug from Panama to Australia. Throughout the voyage of The Flaning Zapata communicated with, and received instructions from, persons in Columbia and Panama concerning the importation, one such person being a Columbian known as Negrito. It is the Crown case that other persons were involved in the conspiracy in Columbia although some of those persons have not been identified.

5 There was one other Columbian person who was involved in the conspiracy, Wouter van Bommel (Wouter), the brother of Govert. It was Wouter’s role to assist in the retrieval of the drugs from The Flaning when that vessel arrived near the Australian coast. He was also answerable to persons in Columbia although, according to the Crown, he received instructions from the accused Diez after his arrival in Australia. Diez is alleged to have been the representative in Australia of those persons who were the principals in the exporting of the drug from Panama.

6 On the Crown case the Australian arm of this conspiracy was headed, at least initially, by the accused Cornwell. He was to be the recipient of the drug and distribute it for profit to himself. The case against him is substantially contained in intercepted conversations between, on some occasions, him and Diez and, on other occasions, him and the accused Lawrence. The Crown case is that Cornwell recruited Lawrence to act as his lieutenant in the operation and to be responsible for arranging the retrieval of the drug from The Flaning when it arrived in international waters off the coast of Port Macquarie.

7 It is alleged that Lawrence utilised the services of four other of the accused in carrying out preparations for the arrival of the vessel and the retrieval of the drugs from it. These persons were the accused Bolus, Brokenshire, Norris and McDougall. These four persons were assigned tasks by Lawrence including the obtaining of the following items: a four-wheel drive vehicle; a rubber inflatable boat; navigational aids and charts; and other equipment to be used in the enterprise which involved travelling to meet The Flaning, relieving it of the cocaine, bringing the drugs to shore and eventually conveying them to Sydney for storage and then distribution.

8 With the exception of the accused Bolus, it was not suggested by counsel for the accused that it was not open for the jury to find that each of the accused, whom I have mentioned so far, were participants in a conspiracy to import the cocaine from The Flaning between about 1 January 2001 and 19 June 2001. For reasons I will give shortly, I am of the opinion that there is also evidence upon which the accused Bolus could be found to have been a participant in that conspiracy. The question is whether there is evidence that the conspiracy continued after that date.

9 The significance of the date 19 June 2001 is that on that day police and NCA agents arrested Lawrence, Norris, Wouter and a fourth person, Gladman, in the Port Macquarie area. It was erroneously believed by the authorities, which had been monitoring the movements and conversations of these and other persons, that The Flaning had been met and the cocaine retrieved from it. In fact the sailing boat had not yet arrived at the expected rendezvous point and, according to the Crown, a trial run to test the boat had been mistaken for the real thing. The persons arrested were released from police custody after a short period of questioning. Gladman, however, had agreed to assist the authorities by rejoining the others in an endeavour to ascertain what new arrangements were to be made to retrieve the cocaine.

10 While they were at sea some distance from Australian waters, the crew of The Flaning were informed that problems had arisen in Australia. The evidence of what occurred at that time on the vessel has assumed crucial importance in submissions in support of this application. In effect Zapata was informed that things had become “hot” in Australia and that he should jettison the satellite phone with which he had been making contact with his superiors. There may be some room for dispute as to what he was actually told in respect of the cocaine that was on board the vessel. On one view of the evidence, he told the crew members that he was “ordered” to jettison the drugs but he decided independently that he would retain them and look for an alternative means of carrying out the importation into Australia. On another view of the evidence, he was given permission to jettison the drugs but told he could decide whether to do so or not. The defence takes the first view of the evidence: the Crown takes the second. I put the resolution of that dispute to one side for the present.

11 Zapata decided not to jettison the cocaine but to travel to a shallow reef some hundreds of miles off the coast of Queensland, and there deposit the drugs on the ocean floor about 19 metres below the surface. This place is called Kelso Bank. The cocaine was placed in containers, wrapped in canvass, secured with wire and then, weighed down by anchors and spare batteries, sunk to the floor of the reef. The Flaning then made its way to Southport, Queensland where Zapata re-established contact with persons in Columbia. Eventually, the accused Francis made contact with Zapata, and it is the Crown case that steps were then taken by Francis and the accused Dicecco to retrieve the cocaine from its resting place.

12 While Govert stayed on the boat, Zapata and Rincon travelled to Sydney. Eventually they met up with Francis who paid them $20,000 and received the co-ordinates of Kelso Bank. Dicecco hired a boat in Victoria and made his way up to the North of New South Wales where he met up with Francis in Coffs harbour. With Francis was Wouter. He had been told by Negrito to wait in Sydney notwithstanding his arrest on 19 June and was eventually engaged to assist Francis in the recovery of the cocaine from Kelso Bank. Wouter and Dicecco departed from Coffs Harbour on the boat to recover the cocaine, but they failed to get any further than Byron Bay because the boat proved inadequate to the task. They returned to Coffs Harbour and from there Dicecco returned with the boat to Victoria and Francis returned with Wouter to Sydney. Francis eventually gave Wouter some money so that he could leave Australia.

13 In August 2001 all the accused were arrested as well as Wouter, Govert, and Rincon. The NCA had allowed Zapata to leave the country earlier rather than jeopardise their investigations and the chance of retrieving the drug. He has never been located. Police travelled to Kelso Bank with Wouter but failed to find the cocaine although they did find anchors and batteries on the ocean floor.

14 Wouter, Govert and Rincon all pleaded guilty and gave evidence in the Crown case. Gladman, who was arrested with the others on 19 June 2001 was given an indemnity and also gave evidence on behalf of the Crown.

15 The issue is whether on the evidence, which I have briefly outlined, the only reasonable inference open to the jury is that there were two separate conspiracies in respect of the importation of the cocaine: one which involved the accused Cornwell, Diez, Lawrence, Bolus, Norris and McDougall, Wouter, the crew of The Flaning and unknown persons in Panama, Columbia and possibly elsewhere and which terminated on or about 19 June; and another which involved Francis, Dicecco, Wouter, the crew of The Flaning, and persons in Columbia, Panama and the Philippines and possibly elsewhere and which commenced sometime about 19 June and terminated with the arrest of the accused.

16 In essence the argument in support of the application for directed verdicts for all of the accused is as follows. There were two different ventures revealed by the evidence; the first involving what may be termed the “New South Wales syndicate” consisting of those accused involved prior to 19 June and the second involving the “Victorian syndicate” being those involved after the order was given to Zapata to jettison the drugs. Common to both ventures were “the Columbians”, that is the crew of The Flaning, Wouter and others in Columbia and Panama. The argument runs that, after the order was given to dump the cocaine, there was a termination of the agreement involving the New South Wales syndicate. There followed a short hiatus when the importation was placed in limbo while the crew of The Flaning determined what to do. A new venture was then begun when the crew determined to keep the cocaine but to place it at Kelso Bank for later retrieval. Thereafter, that venture took the form of a recovery operation involving the Victorian Syndicate who paid $20,000 for the co-ordinates and the salvage rights.

17 A number of factual matters are relied upon by the accused to support that argument. These include the following:

(a) the order for the dumping of the cocaine;

(b) the non-association of the New South Wales and Victorian syndicates;

(c) the non-association of the Columbians and the New South Wales syndicate after 19 June;

(d) the absence of any reference to the New South Wales syndicate in communications between Zapata and others after 19 June;

(e) the absence of any evidence of an intention by the Victorian Syndicate to pass the recovered cocaine to the New South Wales syndicate.

18 Much of the argument in support of the application was couched in terms of contract or partnership law. So, for example, it was submitted that, unless there was a term of the original agreement that some persons other than the New South Wales syndicate might recover the drugs, there could have been no continuing agreement when the Victorian syndicate came on the scene.

19 I do not believe that this is the proper way to consider the scope and extent of a criminal conspiracy. It is not a contract with precise terms and conditions fixed by the original agreement and continuing to bind the participants unless varied by them. A conspiracy is simply an agreement by two or more persons to bring about a certain result or achieve a certain goal. At its inception there might be an agreement between the participants as to the object or purpose of the joint enterprise but they may have determined nothing else. But, provided that the parties have agreed to perform a criminal act and intend to carry the agreement through to its conclusion, the criminal conspiracy is formed. It does not matter that none of the details of the agreement have been worked out or that the parties have not determined how they are to achieve their goal.

20 From time to time, as an aid in discussing or explaining the nature of a conspiracy and the ways in which it might be proved, courts have considered it helpful to resort to concepts borrowed from civil law such as the principles relating to contracts or partnerships. For example, such concepts have been utilised when considering the admissibility of statements made by co-conspirators and when explaining why a statement made by one conspirator is admissible against another, see Ahern v The Queen (1988) 165 CLR 87 and R v Louden (1995) 37 NSWLR 683. But it does not necessarily follow that such analogies will always aid in determining issues arising from an allegation of a criminal conspiracy. In my view, it is positively misleading to apply or refer to such principles when determining whether a criminal conspiracy arises from particular facts, or when, as in the present case, determining whether particular facts give rise to one or more than one conspiracy. For example, it does not seem to me to be relevant to the question under consideration whether those involved prior to 19 June ever contemplated that the cocaine might have to be retrieved from The Flaning and brought into the country by some other group of persons.

21 Unlike a formal contract, a criminal conspiracy is a fluid creature and can continue to exist even though parties enter and depart from it throughout its life. The means to be adopted in order to bring about the object of the conspiracy can vary continually as circumstances change. Clearly some conspiracies will be more fluid than others depending upon the object of the conspiracy. An agreement by two persons to rob a particular bank on a particular day might be formed with almost all the details for the performance of the agreement in place immediately the agreement is reached. A significant variation in the original agreement may, therefore, be readily seen to be a different agreement than the one originally formed. On the other hand an agreement to import a substantial amount of drug into Australia from Columbia might, when it is formed, be a mere skeleton without flesh and blood. However, provided there is an agreement reached to import the drug and the parties intend to carry the agreement through to its completion, the conspiracy is on foot: the parties simply have not agreed on the means to achieve the object of the agreement.

22 A conspiracy can develop and take shape as it proceeds towards its objective. Persons are brought into the conspiracy as and when required to complete the venture. A person may perform a specific task assigned to him and then depart from the conspiracy. Another person may leave the conspiracy because he no longer wishes to be party to it. But none of these changes in personnel necessarily indicates one agreement has concluded and another has been formed. Nor does it follow that a person who has allegedly entered and left the conspiracy, for whatever reason, cannot be convicted of an offence of conspiring with others who enter or leave the conspiracy either before or after his participation. A party cannot escape criminal liability for his participation in a conspiracy simply by withdrawing from it. Once a person has been a participant in a criminal conspiracy he is criminally liable for that participation regardless of what he does thereafter, even if he succeeds in frustrating the conspiracy. The fact that the object of the conspiracy cannot be achieved, either at its inception or because of events arising during its course, does not relieve any participant from criminal liability arising from that participation.

23 If the participants in a criminal conspiracy wish to achieve their object, they have to take into account that unforseen events may occur and provide for them when and if they arise. The longer the conspiracy is to be on foot in order to achieve its object, the more chance there will be that arrangements already made will have to be changed, sometimes dramatically. It may even be that some event will occur in the life of the conspiracy that is of such importance and poses such a threat to the ultimate goal being achieved that it requires the parties to pause and take stock of the situation and determine whether or not to continue with the conspiracy. But such a response would not mean that the conspiracy had concluded. The fact that one of the parties to the conspiracy tells other participants to abandon the venture does not result in the end of that agreement and the formation of a new conspiracy when the others determine to continue with the venture.

24 The Court was referred to a number of authorities by defence counsel to support the argument that a conspiracy will conclude if there is a fundamental change in the nature of the agreement or the identities of the participants even though the object of the agreement might not change. I do not believe they support the present application. Their only relevance, so far as I understand them, is to emphasise the importance of identifying the nature and object of the conspiracy under consideration.

25 Those cases in which a question has arisen as to whether there is a single conspiracy or a number of conspiracies arising from the facts presented in the Crown case generally concern a charge alleging a conspiracy of a general nature stretching over a period of time and involving a number of illegal acts committed by different persons. In such a case, unless all the participants of the alleged conspiracy have the same object in mind and have agreed with each other to carry out that object, there is no unity in the enterprise in which they are engaged.

26 So in Gerakiteys v The Queen (1984) 153 CLR 317, the conspiracy alleged in the first count was that the accused had conspired with Harrison and nine other persons to defraud various insurance companies. However, the evidence relied upon by the Crown was insufficient to indicate that all nine persons, other than the accused and Harrison, had been jointly involved with each other as well as the accused and Harrison in the conspiracy. It was held that the evidence pointed to four separate conspiracies arising from a central arrangement between Harrison and the accused, each conspiracy involving an agreement with different persons who were to make fraudulent claims on particular insurance companies. However, the evidence did not show any agreement between all nine persons to defraud all the insurance companies. In my view that decision says nothing about the situation in the present case where different persons have at different times entered into an existing agreement to achieve the one object, being the importation of the cocaine brought from Panama on The Flaning.

27 Particular reliance was placed on two Canadian cases that, it was submitted, stressed the importance of a unity of participants in a conspiracy. The first was R v Cotroni (1979) 45 C.C.C. (2d), a judgment of the Supreme Court of Canada. In that case two persons, Cotroni and Papalia, were convicted of an offence of having conspired with two other persons and others unknown to have possession of a sum of money, $300,000, obtained by extortion. Papalia and another person, Swartz, had obtained that money by threatening the victim, Bader, that his friend would be killed if Bader did not come up with the money. The next year Cotroni and Violi, learned that their names had been used by Papalia in the extortion. When they confronted him, Papalia said he had only received a portion of the money and that they should get the rest from Swartz. It was agreed that Violi should obtain the money by threatening Swartz that they would kill Papalia. The conviction of Cotroni was quashed on appeal on the basis that there were two different conspiracies, one between Cotroni, Violi and Papalia, and the other between Papalia and Swartz. However, Papalia’s conviction was upheld.

28 The Supreme Court, upholding the decision of the Court of Appeal and dismissing the Crown’s appeal and Papalia’s appeal, held that the object of the conspiracy between Papalia, Cotroni and Violi did not have the same object as the initial conspiracy between Swartz and Papalia. That agreement was to obtain $300,000 from Bader in August 1973. There was no evidence of the involvement of Cotroni and Violi until April 1974 at which time they allegedly conspired with Papalia to obtain part of the $300,000. They did not, by entering that conspiracy, join the initial conspiracy. The defect in the Crown’s case was, as in Gerakiteys, that the Crown alleged a general conspiracy, the object of which was to extort money, but where there was no general agreement between the alleged participants. As Dickson J stated (at 24):

“A common desire to have money cannot create a conspiracy in the absence of a meeting of minds. The facts here show two competing and mutually exclusive objects. Counsel suggested the analogy of four hungry dogs fighting over a bone. If there was agreement between Violi, Cotroni, and a reluctant Papalia on April 30 1974, it was for an object inconsistent with and, indeed diametrically opposed to the stated object of the agreement between Swartz and Papalia. Legal fiction and conceptual theory must be kept within some reasonable limits.”

29 In my opinion neither the facts of that matter nor the reasons of the court for finding that there were two conspiracies assist the accused in the present proceedings. In that case the defect was an allegation of a general conspiracy committed by all five acting in a common enterprise, where the facts showed that there was no continuing enterprise at all. As I have indicated, the difference between a case involving a general allegation such as in Cotroni or Gerakiteys and the present case is that the facts relied upon by the Crown show a continuing agreement to import the cocaine although not all the accused were party to that agreement at the one time. There was a meeting of minds between all the accused and others over the period of the conspiracy to achieve its stated object, the importation of a specific and identifiable quantity of cocaine. It does not follow that there is more than one agreement simply because the minds of all the accused and others in the agreement did not come together at the one point in time.

30 Counsel relied also upon a decision of the Ontario Court of Appeal in which, applying Cotroni, the court held that there could be two conspiracies revealed by the prosecution facts even though both agreements had an identical object and a common member. In R v Handleman (1980) 57 CCC (2d) 242 the charge alleged that the accused had over a five month period conspired with Tripp, a person named Wayne and other persons unknown to commit arson with respect to certain premises. The facts showed that, although the accused had agreed with Wayne to set fire to the premises, that agreement ended in March 1977 when Wayne “walked out” without carrying out the plan. In April the accused asked Tripp to burn the premises and he agreed to so and shortly thereafter set fire to them. There was no evidence of any unknown person being party to the agreement despite such an allegation in the charge.

31 On those facts it is unsurprising that there was held to be two conspiracies: one between the accused and Wayne, and another between the accused and Tripp. In the period between the end of one agreement and the forming of the other the accused may have had a continuing intention to set fire to the premises but a conspiracy cannot continue in the absence of at least two participants. The conviction was set aside because the jury may have convicted the accused on the basis of the agreement with Wayne or the agreement with Tripp or by concluding erroneously that there was evidence linking the two agreements. But that is not the situation in the present case.

32 As I have already indicated, there may be a dispute open as to what Zapata was told by his superiors after the arrests on 19 June and it is for the jury to resolve that dispute if necessary to determine the charge. The Crown argues that it is more likely that Zapata was told that he could jettison the drugs or, being the person at the scene and in most risk, he could determine to continue with the importation if he wished to do so. Unless the drugs were imported he and his crew would not be paid for their efforts. Be that as it may, Zapata never did decide to jettison the drugs. It is open to the jury to find that he determined to continue with the conspiracy regardless of what he was told by his superiors and so he set out to find a place to leave the drugs and from where they could be later retrieved and imported into Australia.

33 It is well open to the jury to infer, and it may well be the only inference, that the members of the crew decided to continue the importation and thus the conspiracy continued. It would not matter, in my view, if Zapata’s superiors had withdrawn from the conspiracy by ordering him to jettison the cocaine. Simply because one member of a conspiracy decides to quit the enterprise, it does not follow that the conspiracy is thereby brought to an end. Zapata, Govert and Rincon were participants in the conspiracy that was on foot and that conspiracy continued until they decided not to proceed with the importation.

34 It was submitted that after he received the order to dispose of the drugs Zapata was on a frolic of his own. But even if he were, provided that the frolic involved at least one other member of the conspiracy, the conspiracy was still alive. Nor would it bring the conspiracy to an end, if all the New South Wales syndicate, to use that term, had withdrawn. The nature and identity of the conspiracy does not change simply because there was a change in the manner in which the cocaine was to be brought into Australia or that there was a change in the personnel involved in that task. In my view these are simply matters of detail in the general agreement.

35 Nor, contrary to submissions made by counsel for Dicecco, is it correct to view the agreement to import the cocaine as changing into an agreement to salvage the drugs. If Francis and Dicecco knew of the existence of the cocaine on the ocean floor and intended to recover it, the only purpose was to import the drug into Australia. Although it was submitted that the jury could find that Zapata had decided to sell the drugs on his own behalf when he arrived in Australia, I do not believe that, even if that finding were open, it would be of any significance. The conspiracy charged has as its object the importation of the cocaine and it is irrelevant to the present question whether there was a change in the intended recipient of the drug once it was imported.

36 In any event there is evidence from which a jury could infer that the New South Wales syndicate had not abandoned the conspiracy. There is undisputed evidence that Lawrence was on the side of the road at Karuah at the time that Francis and Wouter went passed on their way to meet Dicecco in Coffs Harbour. Wouter noticed him there as he was driven passed by Francis. Wouter also saw Lawrence in the vicinity of a café where Wouter and Francis were having coffee a short time later. Although there is evidence before the jury that Lawrence was at Karuah for a meeting organised by another person and unrelated to the importation of cocaine, it is well open to the jury to find that it was not a coincidence that Lawrence was in those places at the same time as Francis and Wouter.

37 Further, it does not necessarily follow that, simply because there is no apparent involvement of Cornwell after 19 June, he was no longer a participant. The jury would be entitle to find on the evidence that he was a principal in the importation and that he had taken steps to ensure that he was not seen to be taking an active role in the enterprise even before 19 June. If the jury accepts the Crown submissions that Cornwell was to become the recipient of the drug and its distributor, it is open to them to infer that he was still a member after 19 June. Those arrested on 19 June became aware from an occupier’s notice left by police after a search of premises at Telegraph Point that the police were aware of the possible involvement in the importation of the cocaine of a number of accused including Diez. But there was no reference in that document to Cornwell.

38 In my opinion the evidence in the Crown case leads to only one inference, being that the conspiracy remained on foot notwithstanding the arrests on 19 June 2001. I am of the view that the facts adduced in the Crown case support a single conspiracy involving each of the accused and those persons named on the indictment between the dates set out in the charge.

39 Insofar as the accused Bolus is concerned the Crown alleges that he was involved in the acquisition by the accused Lawrence of a rubber inflatable boat and a four-wheel drive vehicle that was used to tow the boat from Sydney to the Port Macquarie area. The evidence against Bolus is made up of surveillance of him in relation to the vehicle and taped conversations obtained by means of a listening device in the two vehicles used by Lawrence, one being the four-wheel drive. The Crown’s case to prove his knowledge that the vehicle and boat were to be used in the importation of drugs is a circumstantial one.

40 The issue presently before me is whether it is open to the jury to infer that Bolus took part in the acquisition of the boat and four-wheel vehicle with Lawrence and the accused McDougall knowing that the boat was to be used in the importation of drugs. The fact that some other inference may also be open on the evidence does not mean that the Crown has failed to establish a prime facie case. It is for the jury to determine whether there are competing inferences and what to make of them. Because it is a circumstantial case, none of the individual matters relied upon by the Crown have to prove by themselves that the accused had the guilty knowledge and it does not follow that, simply because there may be a possible exculpatory explanation existing for each of the matters relied upon by the prosecution, the Crown case fails.

41 The submission made on behalf of the accused Bolus is that, taken as a whole, the evidence in the Crown case shows no more than that the accused knew that there was something unlawful in Lawrence’s acquisition of the vehicle and the boat but there is insufficient evidence to show that he knew that the purpose for which he acquired those items was illegal let alone involved the importation of drugs. It is submitted that the facts are consistent with the accused being aware that there was something “shady” or possibly illegal in respect of the acquisition by Lawrence of the vehicle and boat without Bolus knowing the purpose for which Lawrence was to use them. It was suggested that one possible inference might be that Bolus thought that, because Lawrence was a pensioner, he was trying to hide his wealth and such personal acquisitions as might reveal that he was not entitled to the pension.

42 In my view the evidence shows that the accused acted as a confidant and advisor to Lawrence at the time of the purchase of the vehicle and the boat, he making suggestions and offering assistance as to the manner in which Lawrence could acquire the items without drawing attention to himself, either at the time of purchase or thereafter. He also knew that Lawrence was involved in planning some type of activity and that Lawrence did not want to appear to be a cheapskate to some person or persons in relation to this activity. From conversations with Lawrence, he knew that whatever the activity was, that Lawrence was the person in charge of it.

43 Insofar as the vehicle is concerned, the accused was well aware that Lawrence did not want to be involved in any way in its purchase and he assisted McDougall in securing the vehicle without Lawrence’s identity being revealed to the seller or any person later investigating the circumstances surrounding the purchase. This involved the accused and McDougall taking on false identities in their dealings with the seller of the vehicle. Bolus knew that the vehicle was to be registered in the name of McDougall even though the vehicle was to be owned and used by Lawrence. He himself used the vehicle on occasions and was offered it by Lawrence. The jury might find that the suggestion he made in the recorded interview that his involvement was only to check the vehicle before Lawrence purchased it to be inconsistent with the conversations both before and after the purchase. It would be open to the jury to determine that the accused was not being frank and truthful with police as to his dealings with Lawrence at this time.

44 In respect of the purchase of the boat, Bolus paid three sums of money totalling $55,000 into an account using the name of Matthew Benns on each of the three deposit slips. The accused told police that he believed that a person by that name was to own the boat and that he saw nothing wrong in using his name as the depositor of the money. But during conversations with Lawrence the accused says something about the use of that name from which the jury might infer that he knew it was a false name used for the purpose of hiding the true purchaser of the boat. Conversations between the accused and Lawrence indicate that the accused knew that Lawrence wanted to keep his involvement in the purchase secret and that he did not even wish to be seen at the yard where the boat was being stored in Newport. The inference also arises that Bolus had been making contact with the person who brokered the purchase of the boat in Victoria and was storing it at Newport. Bolus was able to give information to Lawrence about where the boat was and when it would be available and he apparently received that information from a person the jury might find to be Mark Rowell. A person by that name was involved in the purchase of the boat on Lawrence’s behalf and it was into his company’s account that Bolus paid the money for the boat.

45 The jury could infer from conversations with Lawrence that the accused knew of the involvement of other persons in the use to be made of the boat, including a person named Brok, that is the accused Brokenshire, and a person up north, that is the accused Norris. Bolus told police he did not know a person by the name of Brok, notwithstanding that tapes were played to him in which he is heard speaking to Lawrence about a person by that name. It is open to the jury to find that once again the accused was not being frank with police as to his knowledge of the existence of a person by that name and his role in this enterprise. Bolus was told by Lawrence that a person named Brok was to be involved in assisting Lawrence and another person to understand the equipment on the boat and other matters to do with its operation and maritime navigation, such as a GPS. There is also a conversation from which a jury could infer that Lawrence told him that the boat and trailer are to be registered to Brok and that Lawrence has already made up a story for Brok in that regard.

46 The accused Bolus also knew that persons were to be involved with Lawrence in taking the boat away from Sydney to where it was to be used. He was also aware that Lawrence was paying McDougall, Brok and a person up north in respect of the venture in which he was involved with the boat and the vehicle. It is also open to the jury to find, from a conversation concerning the accused going to England “in style”, that Bolus knew or expected that Lawrence would pay him a significant sum of money for his part in the activities involving the acquisition of the boat and the vehicle.

47 In his role as adviser, the accused gave Lawrence suggestions as to what could be done to hide the use of the boat and the identity of persons involved with it. It seems that he made inquiries on his own initiative in these endeavours such as with the Waterways Authority. Although the meaning of some of the conversation, particularly in respect of chartering is unclear, the jury could infer that it related to ways to conceal the use to be made of the boat by Lawrence or for its disposal after Lawrence had finished with it. It is certainly open to the jury to infer from this part of the conversation that it involved the fraudulent use of the name Matthew Benns, a name that Bolus had obtained from a newspaper. There is evidence before the jury of a journalist who wrote under this name.

48 It was submitted on the accused’s behalf that conversation concerning how one might obtain a false passport between the accused and Lawrence, who told him that “this has gotta be done pretty smartly”, leads to an inference that whatever use was to be made of the boat it involved Lawrence having a false passport. But there is no evidence admissible in the case involving the accused as to what this part of the conversation is about or whether it has anything to do with the use of the boat. It was admitted on the issue of whether the accused was a person of good character.

49 In my opinion, taking all of this material into account, it is open to the jury to infer that Bolus knew that the venture in which the vehicle and boat were to be used by Lawrence was a significantly criminal one involving the use of false identities, false registration certificates and the necessity to conceal the involvement of Lawrence in the acquisition and use of the vehicle and boat. It also necessitated the fabrication of exculpatory explanations for the involvement of other persons with those items such as the registration of the boat and trailer in the name of Brok. The activity involved considerable planning and organisation by Lawrence including payments to a number of persons for their part in the activity, including Bolus himself. The venture involved the boat being taken north, Lawrence trialing it, and the use of navigational equipment. Plans needed to be made for the disposal of the boat after the venture or the concealment of its real use. Notwithstanding that no mention is made of drugs or importation, the jury could infer that the only possible activity, in which Lawrence could be involved with the boat, and for which a not insignificant sum of money was to be paid to Bolus for his limited involvement, was the importation of drugs.

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Last Modified: 12/24/2004