R v Bouhamdan [No 8]
[2023] WASC 170
•23 MAY 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: R -v- BOUHAMDAN [No 8] [2023] WASC 170
CORAM: CORBOY J
HEARD: VARIOUS DATES BETWEEN MARCH 2021 AND NOVEMBER 2022
DELIVERED : 22 MAY 2023
PUBLISHED : 23 MAY 2023
FILE NO/S: INS 22 of 2019
BETWEEN: THE KING
Prosecution
AND
STEPHEN BAXTER
First Accused
PATRICK LEANDRO BOUHAMDAN
Second Accused
AND
CHRISTOS CAFCAKIS
Third Accused
PETER HARB
Fourth Accused
KHALID ELIA KAENA
Fifth Accused
JABOUR ANTHONY LAHOOD
Sixth Accused
SERUPEPELI ANTHONY RASAUBALE
Seventh Accused
Catchwords:
Criminal law - Admissibility of evidence of uncharged criminal conduct under s 31A of the Evidence Act 1906 (WA) and at common law - Contextual and relationship evidence - Whether evidence of uncharged criminal conduct had significant probative value and whether the probative value of the evidence was outweighed by its prejudicial effect
Criminal law - Principles on which claims for public interest immunity were determined
Criminal law - Application to discharge the jury where the prosecutor inadvertently re-examined a 'roll over' witness about the wrong offence to which he had pleaded guilty - Whether the prosecutors inadvertent error had caused prejudice to one of the accused or had jeopardised the right to a fair trial - Whether any prejudice caused by the prosecutor's inadvertent error could be cured by a direction to the jury - Section 116 Criminal Procedure Act 2004 (WA)
Criminal law - Consequences of the prosecutor concluding that a proposed Crown witness was no longer a witness of truth - The prosecutor's discretion not to call a witness
Criminal law - Australian Crime Commission Act 2002 (Cth) - Circumstances in which examination material maybe disclosed to the parties to a prosecution
Criminal law - Whether it was necessary to ensure a fair trial that a Basha inquiry be conducted after claims for public interest immunity by a proposed Crown witness were disallowed
Criminal law - Whether a juror or members of the jury had misconducted themselves by undertaking and sharing internet searches - Whether it was in the interest of justice to discharge the jury
Legislation:
Australian Crime Commission Act 2002 (Cth), s 25A
Criminal Code (Cth), s 307.1
Criminal Procedure Act 2004 (WA), s 116
Evidence Act 1906 (WA), s 31A
Category: B
Representation:
Counsel:
| Prosecution | : | Mr H Barklay QC & Ms C E Moss (Discontinued Trial) - Mr C P O'Donnell SC, Ms C E Moss & Mr N R Cogin (Joint Trial) |
| First Accused | : | Mr J D Edwardson KC & Ms J K Kurtzer (Discontinued Trial) |
| Second Accused | : | Ms J Condon KC & Ms K Ballard (Discontinued Trial) |
| Third Accused | : | Mr P N Bevilacqua & Mr R Kashyap |
| Fourth Accused | : | Mr M Anders & Mr H E Salter (Discontinued Trial) - Mr A E Eyers & Mr H E Salter (Joint Trial) |
| Fifth Accused | : | Mr W Boucaut KC & Mr J L Podmore (Dicontinued Trial) - Mr P A Chadwick KC & Mr J L Podmore (Joint Trial) |
| Sixth Accused | : | Ms L Boston, Ms K A Dowling & Ms S Ramdhas (Discontinued Trial) - Mr C G Astill & Ms K A Kraus (Joint Trial) |
| Seventh Accused | : | Mr G Stanton & Ms G Harb (Discontinued Trial) - Mr I A Todd & Ms G Harb (Joint Trial) |
Solicitors:
| Prosecution | : | Commonwealth Director of Public Prosecutions |
| First Accused | : | J K Kurtzer Barrister & Solicitor |
| Second Accused | : | A P Legal |
| Third Accused | : | Liberty Legal |
| Fourth Accused | : | Gregory J Goold Solicitors |
| Fifth Accused | : | D C Manera Barrister & Solicitor |
| Sixth Accused | : | Kate King Legal Pty Ltd |
| Seventh Accused | : | Zahr Partners |
Case(s) referred to in decision(s):
Crannery v The Queen [2017] NSWCCA 234
Bouhamdan v The Queen [ No 7] [2022] WASC 147
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61
DKA v The State of Western Australia [2017] WASCA 44
Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206
Eric v The State of Western Australia [2019] WASCA 101
Hill v The State of Western Australia [2019] WASCA 209
Hoch v The Queen (1988) 165 CLR 292
Ivanoff v The Queen [2015] VSCA 116
La Bianca v The State of Western Australia [2019] WASCA 105
Lee v The Queen [2014] HCA 20; 253 CLR 455
Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265
LNV v The State of Western Australia [2019] WASCA 180
Masri v R [2015] NSWCCA 243; (2015) 255 A Crim R 1
Nessim v The Queen [2016] VSCA 46
Norman v R [2012] NSWCCA 230
O'Leary v The King (1946) 73 CLR 566
Pfennig v The Queen [1995] 182 CLR 461
Preston v The State of Western Australia [2012] WASCA 64
R v Bauer [2018] HCA 40; (2018) 266 CLR 56
R v Baxter [2020] WASC 73
R v Baxter [No 2] [2020] WASC 343
R v Baxter [No 3] [2021] WASC 9
R v Bouhamdan [No 5] [2021] WASC 209
R v Bouhamdan [No 6] [2021] WASC 293
R v Evans [1950] 1 All ER 610
R v Leask [1999] NSWCCA 33
R v Mosely (1992) 28 NSWLR 735
R v Munro [2013] ACTSC 14
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
The Queen v Apostilides (1984) 154 CLR 563
The State of Western Australia v Edwards [2019] WASC 87
The State of Western Australia v Jackson [2019] WASCA 118
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
The State of Western Australia v Wark [2017] WASC 154
Wark v The State of Western Australia [2020] WASCA 19
Webb v The Queen (1994) 51 CLR 41
Wenbiao Lin v The Queen [2018] VSCA 100
Whitehorn v The Queen (1983) 152 CLR 657
CORBOY J:
Background
The alleged December importation
On the afternoon of 18 December 2017, the MV Valkoista departed from the Batavia Coast Marina, Geraldton. Joshua Smith, Patrick Bouhamdan and Christos Cafcakis were on board the vessel.
The Crown alleged that:
(1)The Valkoista travelled approximately 300 nautical miles west to a point in the Indian Ocean where it met another vessel (referred to as the Asian boat).
(2)Sixty bags containing a substance were transferred from the Asian boat to the Valkoista. The gross weight of the substance was approximately 1.2 tonnes. The substance was divided into packets each weighing approximately one kilogram.
(3)The substance contained methamphetamine, a border controlled drug. Subsequent analysis indicated that the substance had an average purity of approximately 80% methamphetamine.
(4)The Valkoista returned to the Batavia Coast Marina, arriving in the early hours of the morning of 21 December 2017. The vessel was driven first to a pen and later to the public jetty at the Marina.
(5)AB, Serupepeli Rasaubale and Khalid Kaena travelled to Geraldton on about 20 December 2017 in a Fiat van and a Hino truck for the purpose of receiving and transporting the substance to Sydney.
(6)The Fiat van was driven onto the public jetty after the Valkoista had docked. Mr Cafcakis, Mr Smith, AB, Mr Rasaubale and Mr Kaena transferred the bags of substance from the Valkoista to the van.
(7) A joint task force comprising officers from the Australian Federal Police (AFP) and the WA Police (WAPOL) observed the arrival of the Valkoista. The police waited until the bags of substance had been loaded into the Fiat van and then intervened. Mr Smith, Mr Cafcakis, AB, Mr Rasaubale and Mr Kaena were arrested at the public jetty. Mr Bouhamdan was arrested while sitting in a vehicle parked nearby.
(8)Sean Dolman, Stephen Baxter, Jabour Lahood and Peter Harb were also involved in the importation. Mr Dolman and Mr Baxter were arrested on the morning of 21 December 2017 at the Hillarys Harbour Resort, Hillarys. Mr Lahood was arrested in Dural, New South Wales on 22 February 2018. Mr Harb was arrested in Sydney on 21 December 2018.
The alleged July importation
The Valkoista was purchased from Oceaneer Marine, Hillarys on 7 July 2017. The Crown alleged that Mr Lahood, Mr Bouhamdan, Mr Smith and others were involved in the purchase of the vessel.
The Crown further alleged that:
(1)Late in the afternoon of 7 July 2017, the Valkoista departed from Hillarys with Mr Smith and Mr Bouhamdan on board.
(2)The Valkoista travelled between 350 and 450 nautical miles west to a point where it met another vessel. Thirty bags of a substance were transferred from the other vessel to the Valkoista. Each bag weighed approximately 20 kgs. The substance was a border controlled drug.
(3)The Valkoista returned to the Batavia Coast Marina, Geraldton arriving in the early hours of 11 July 2017. The vessel was met by Mr Rasaubale, Rafic Kairouz and Dylan Young-Thompson. The bags of substance were loaded into a vehicle which was then driven to Sydney by Mr Rasaubale, Mr Kairouz and Mr Young-Thompson.
(4)Mr Lahood was also involved in organising the alleged July importation.
No charges have been made in connection with the alleged July importation.
Mr Smith, Mr Dolman and AB
On the Crown's case, Mr Smith was the 'captain' of the Valkoista when, in July and December 2017, it was driven a considerable distance off the coast of Western Australia to collect and transport commercial quantiies of a border controlled drug. On 26 June 2018, he pleaded guilty to a charge that on and about 21 December 2017, at Geraldton in the State of Western Australia and elsewhere, he imported a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity contrary to s 307.1(1) of the Criminal Code (Cth) (the Importation Charge; the corresponding offence will be referred to as the Importation Offence).
Mr Smith was sentenced by McGrath J to life imprisonment, with a non-parole period of 19 years. The AFP provided a letter of assistance and Mr Smith gave an undertaking to co-operate pursuant to s 16AC of the Crimes Act 1914 (Cth). Justice McGrath stated he would have imposed a sentence of life imprisonment with a non-parole period of 23 years but for the s 16AC undertaking given by Mr Smith.
The Crown alleged that Mr Dolman was involved in organising and assisting with the alleged July and December importations. He pleaded guilty to the Importation Charge on 16 January 2019.
Justice Jenkins sentenced Mr Dolman to 30 years imprisonment, with a non-parole period of 17 years. As with Mr Smith, Mr Dolman had the benefit of a letter of assistance and gave an undertaking to co-operate pursuant to s 16AC of the Crimes Act. Justice Jenkins stated she would have imposed a sentence of 34 years imprisonment, with a minimum term of 21 years, but for Mr Dolman's past co-operation, his plea of guilty and all other mitigating factors. Her Honour further reduced the sentence imposed on account of Mr Dolman's promise of future co-operation.
The Crown alleged that AB was a member of the 'shore party' for the alleged December importation; that is, his role was to collect and transport the border controlled drug to the Eastern States.[1] He pleaded guilty on 5 July 2019 to a charge that on 2 December 2017, at Geraldton in the State of Western Australia, he possessed a substance, being a substance that was reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity possessed being a commercial quantity contrary to s 307.8(1) of the Criminal Code (Cth) (the Possession Offence).
[1] On the Crown's case, AB was to collect and transport the drugs with Mr Rasaubale and Mr Kaena.
Justice McGrath sentenced AB to 21 years imprisonment, with a non-parole period of 14 years. AB had the benefit of a letter of assistance and gave an undertaking to co-operate pursuant to s 16AC of the Crimes Act. His Honour stated he would have imposed a sentence of 27 years imprisonment, with a non-parole period of 18 years, but for the undertaking.
The prosecution of the Importation Charge
An indictment was lodged on 12 May 2019 charging Mr Bouhamdan, Mr Cafcakis, Mr Rasaubale, Mr Kaena, Mr Lahood, Mr Harb and Mr Baxter with the Importation Offence. They pleaded not guilty on being arraigned. The prosecution of the Importation Charge has followed a tortuous path since that time.
The trial of the charge was first listed to commence on 28 April 2020. The listing was vacated as part of the court's response to the COVID-19 pandemic.
On 12 March 2021, the Crown discontinued the first indictment. A fresh indictment containing two counts was lodged. The first count charged Mr Bouhamdan, Mr Cafcakis, Mr Rasaubale, Mr Kaena, Mr Lahood and Mr Harb with the Importation Offence; the second count alleged that on or about 21 December 2017, Mr Baxter attempted to possess a commercial quantity of an unlawfully imported border controlled drug (the Attempted Possession Charge and the Attempted Possession Offence).
The trial of those charges commenced on 26 March 2021. However, the jury were discharged and the trial discontinued on 4 May 2021 (the Discontinued Trial): see R v Bouhamdan [No 5].[2] The indictment was subsequently severed to provide for a separate trial of the Importation Charge against Mr Bouhamdan. That trial commenced on 13 March 2023.
[2] R v Bouhamdan [No 5] [2021] WASC 209.
The trial of the Importation Charge and the Attempted Possession Charge against the accused, apart from Mr Bouhamadan, was listed to commence on 12 October 2021. However, the listing was vacated in September 2021 after the prosecutor advised it was likely the Australian Criminal Intelligence Commission (ACIC) had conducted examinations about matters relevant to the Importation Charge and it was possible the Commission held material which ought to have been disclosed. It was necessary to investigate whether that was so before the trial could proceed.
The trial of the Importation Charge and the Attempted Possession Charge was relisted to commence on 4 July 2022. However, the trial did not start until 1 August 2022 (the Joint Trial). The delay was caused by the disclosure of matters concerning Mr Dolman. The upshot of those matters was that:
(a)the prosecutor no longer regarded Mr Dolman as a witness of truth;
(b)as Mr Dolman's evidence was essential to the Crown's case against Mr Baxter, the Attempted Possession Charge was discontinued and Mr Baxter was discharged from the indictment;
(c)the prosecutor offered to make Mr Dolman available for cross-examination but the Crown would not rely on any evidence he might give.[3]
[3] In the Joint Trial, only counsel for Mr Cafcakis required Mr Dolman to be called for the purpose of being cross-examined.
The jury delivered verdicts in the Joint Trial on 18 November 2022. Mr Cafcakis was found not guilty of the Importation Charge; Mr Rasaubale, Mr Kaena, Mr Lahood and Mr Harb were found guilty.
Mr Bouhamdan was found guilty of the Importation Charge by a verdict delivered on 3 April 2023.
These reasons
The protracted history of the prosecution of the Importation Charge and the Attempted Possession Charge was marked by numerous interlocutory applications and trial rulings. Reasons for decision have been published for some of the more important applications. Those applications sought orders for:
(a)disclosure of documents relating to the sentencing of Mr Dolman, Mr Smith and AB and the determination of claims for public interest immunity (PII) over some parts of the sentencing materials: R v Baxter;[4]
[4] R v Baxter [2020] WASC 73.
(b)disclosure of the affidavit(s) relied on to obtain a s 3E Crimes Act search warrant which was issued on 21 December 2017 and which authorised the search of rooms at the Hillary's Harbour Resort: R v Baxter [No 2];[5]
[5] R v Baxter [No 2] [2020] WASC 343.
(c)the exclusion of evidence seized or derived from the execution of the warrant: R v Baxter [No 2];
(d)a stay of the prosecution until the Crown provided further particulars of the Importation Charge: R v Baxter [No 3];[6]
(e)a stay of the prosecution until all material relevant to the sentencing of Mr Dolman, Mr Smith and AB had been disclosed; alternatively, orders preventing the Crown from calling Mr Dolman, Mr Smith and AB as witnesses: R v Baxter [No 3];
(f)further disclosure and for the discharge of the jury in the Discontinued Trial: R v Bouhamdan [No 5];
(g)the admission of evidence of what was referred to as the 'Other Person Importation' (an application by the Crown): R v Bouhamdan [No 6];[7]
(h)a permanent stay of the prosecution (applications by Mr Baxter and Mr Bouhamdan): R v Bouhamdan [No 6];
(i)separate trials (applications by Mr Baxter and Mr Bouhamdan): R v Bouhamdan [No 6];
(j)a conditional stay until a Basha inquiry was held: R v Bouhamdan [No 6];
(k)a stay of the prosecution until the Crown paid the costs of the Discontinued Trial thrown away (an application for a Mosely order[8]): Bouhamdan v The Queen [No 7];[9]
(l)a certificate under s 14(1) of the Suitors' Fund Act 1964 (WA): Bouhamdan v The Queen [No 7].
[6] R v Baxter [No 3] [2021] WASC 9.
[7] R v Bouhamdan [No 6] [2021] WASC 293. The 'Other Person Importation' is a reference to an allegation made by Mr Dolman that in mid to late 2017 he and Mr Bouhamdan were planning an importation of a border controlled drug with a third, unidentified, person. The allegation was first expressly made during the Discontinued Trial.
[8] R v Mosely (1992) 28 NSWLR 735.
[9] Bouhamdan v The Queen [ No 7] [2022] WASC 147.
There were many other applications and decisions which are sufficiently explained by the oral reasons delivered at the relevant time or by exchanges with counsel at a directions hearing or during the Discontinued Trial and the Joint Trial. However, there are other applications or matters which require written reasons to fully explain the rulings that were made or to place some rulings recorded in the transcript in context.
These reasons deal with those applications and matters. They reflect the oral reasons that were delivered during the prosecution. However, they expand upon those reasons or provide some detail beyond what can be gleaned from the transcript. They were written as the prosecution progressed but settled after the trials and sentencing hearings had been completed.
It is convenient to refer to all accused who were initially joined in the indictment as 'the accused'. Exhibit references are to the exhibits tendered in the Joint Trial.
I have referred to the Crown's case as a set of allegations. That, of course, reflected the position at the time of the relevant application or issue. I made findings of fact in sentencing Mr Rasaubale, Mr Kaena, Mr Lahood, Mr Harb and Mr Bouhamdan. I have disregarded those findings in settling these reasons; they were made after the applications and related matters dealt with in the reasons were decided or resolved.
The Crown's case
The Crown's case against each accused, as initially particularised, was summarised in R v Baxter [No 3]. The 'Operation Ligar Particulars' alleged that:
(a)Mr Bouhamdan, Mr Cafcakis and Mr Smith imported a commercial quantity of a border controlled drug by bringing it into Australia on the Valkoista on 21 December 2017 and by being on board the vessel, with the drug, when it arrived in Geraldton.
(b)Mr Lahood imported a commercial quantity of a border controlled drug by bringing it into Australia on 21 December 2017. He brought the drug into Australia by 'organising' its importation – that is, by planning and/or coordinating the importation.
(c)Mr Rasaubale, Mr Kaena and AB imported a commercial quantity of a border controlled drug by dealing with the drug in connection with its importation on 21 December 2017. They were on the jetty in Geraldton when the Valkoista docked with the border controlled drug; they were ready to collect the drug and they formed part of a line passing bags of the drug from the vessel to the Fiat van parked on the jetty. They comprised the 'shore party'.
(d)Each of the accused and 'unknown others' were parties to an agreement to 'import a significant quantity of a border controlled drug into Australia'. The agreement was formed prior to July 2017.
(e)The accused and others entered into the agreement at various times but they were all parties to the agreement prior to the border controlled drug being imported into Australia on about 21 December 2017.
(f)Each accused, and at least one other party to the agreement, intended that the Importation Offence would be committed under the agreement.
(g)The Importation Offence was committed in accordance with the agreement - that is, one or more parties to the agreement imported a commercial quantity of a border controlled drug into Australia and/or dealt with a commercial quantity of a border controlled drug in connection with its importation.
(h)Mr Harb aided or abetted the commission of the Importation Offence by:
·organising the shore party and recruiting AB and Mr Kaena to take delivery of a substance containing a border controlled drug;
·providing directions to the shore party to collect the substance;
·providing instructions and directions to Mr Rasaubale in order to receive the substance.
(i)Mr Baxter aided or abetted the commission of the Importation Offence by purchasing two satellite phones. The satellite phones were used by Mr Smith and Mr Dolman to communicate with, and arrange the rendezvous of, the Asian boat and the Valkoista.
The Operation Ligar Particulars pleaded a case in which:
(a)each accused, apart from Mr Harb and Mr Baxter, was alleged to have engaged in conduct that constituted the physical elements of the Importation Offence;
(b)each accused was alleged to have been a party to an agreement to import a commercial quantity of a border controlled drug and to be criminally responsible for the alleged importation pursuant to s 11.2A of the Criminal Code (joint commission);
(c)Mr Harb and Mr Baxter were said to also be criminally responsible for the alleged importation by aiding or abetting the other accused to commit the Importation Offence.
The agreement to which the Operation Ligar Particulars referred was alleged to have been formed prior to July 2017. As particularised, the Crown's case was that the alleged July and December 2017 importations were organised and undertaken pursuant to that agreement. Accordingly, the agreement was described as a 'single, overarching' agreement. The accused were alleged to have entered into the agreement at different times between about June and early December 2017.
The Crown revised its case in March 2021:
(a)As noted above, the Crown lodged a fresh indictment containing two counts - the Importation Charge and the Attempted Possession Charge.
(b)Although the Crown maintained that Mr Bouhamdan, Mr Cafcakis, Mr Rasaubale and Mr Kaena were parties to an agreement to import a commercial quantity of a border controlled drug, the Crown no longer relied on s 11.2A of the Criminal Code to establish their criminal responsibility.
(c)The Crown continued to rely on s 11.2A to establish the criminal responsibility of Mr Lahood and Mr Harb. The Crown also maintained the allegation that Mr Lahood imported a commercial quantity of a border controlled drug by organising the importation - that is, Mr Lahood could be found guilty of the Importation Offence as a principal offender.
(d)The Crown also continued to rely on the allegation that Mr Harb aided and abetted others to undertake the alleged December importation.
The revised case relied, among other things, on a separate agreement to undertake the alleged December importation (the Importation Agreement) rather than a 'single overarching' agreement that provided for the alleged July and December importations.
The s 31A application
The history of the application
By application dated 11 March 2020, the Crown applied for a direction that evidence of the alleged July importation be admitted pursuant to s 31A of the Evidence Act 1906 (WA). The application was confined to the Crown's separate cases against Mr Bouhamdan, Mr Rasaubale, Mr Lahood and Mr Baxter (referred to in this part of the reasons as the respondents). The Crown contended that Mr Lahood, Mr Rasaubale and Mr Bouhamdan participated in the alleged July importation. Mr Baxter was alleged to have known of the importation.
The respondents opposed the application. As will become apparent, ultimately the application was substantially argued and determined on common law rules of evidence.
The application coincided with applications by the accused for a permanent stay of the proceedings and it was not until January 2021 that the Crown provided submissions in support of its application (the Crown's initial submissions).[10] The Crown served supplementary submissions[11] and the respondents to the application (apart from Mr Rasaubale) provided written submissions: Mr Lahood's submissions were dated 17 and 25 January 2021; Mr Baxter's submissions were dated 16 and 23 January and 10 March 2021; and Mr Bouhamdan's submissions were dated 17 January and 12 February 2021.
[10] Crown's 'Outline of Submissions in Support of Application to Lead s 31A Evidence', 8 January 2021.
[11] Crown's 'Supplementary Submissions in Support of Application to Lead s 31A Evidence', 19 February 2021.
Mr Dolman and Mr Smith made statements to the AFP which described their involvement in or knowledge of the alleged importation. AB also referred in his statement to admissions allegedly made by Mr Rasaubale about his involvement in the alleged July importation. Those statements provided much of the evidence the Crown sought to admit under s 31A of the Evidence Act or at common law.
The Crown initially submitted that evidence of the alleged July importation was:
(a)propensity evidence as against Mr Bouhamdan, Mr Rasaubale and Mr Lahood - it was evidence of their involvement in the importation of illicit drugs and a tendency for each of them to be involved in such activities;
(b)evidence of the relationship between the respondents and others in a 'drug importation syndicate over time';[12]
(c)evidence of the 'true nature of the drug operation' and the role played by the respondents in that operation - the 'drug operation' being a reference to the organisation and undertaking of the alleged July and December importations;[13]
(d)evidence that the respondents were parties to an agreement to import commercial quantities of a border controlled drug;
(e)evidence of the respondents' state of mind.
[12] Crown's initial submissions, par 34.
[13] Crown's initial submissions; par 38.
The Crown revised its submissions in March 2021 (at the same time as it reformulated parts of its case against the accused) to contend that evidence of the alleged July importation was primarily to be used to:
(a)establish that the respondents knew that the alleged December importation involved a commercial quantity of a border controlled drug;
(b)establish the intentions of the respondents with respect to the alleged December importation;
(c)negate defences such as duress and innocent explanation.[14]
[14] 'Crown response to trial note and to objections as to evidence', 15 March 2021.
The application was allowed. Oral reasons were delivered on 26 March 2021.[15]
The evidence[16]
The Evidence Annexure
[15] Ts 1282 and following.
[16] The evidence summarised in this section of the reasons is evidence that was contained in the prosecution brief; that is, evidence that the Crown proposed to present in the Discontinued Trial and/or the Joint Trial rather than the evidence that was actually adduced in those trials.
The Crown provided an annexure to its application which identified the evidence sought to be admitted pursuant to s 31A of the Evidence Act (the Evidence Annexure). The annexure referred to paragraphs of witness statements and documents forming part of the prosecution brief. The Evidence Annexure was amended in late January 2021 over objection by the respondents.[17] The annexure was further amended in July 2022. The respondents did not object to that amendment.
[17] The respondents objected that the Crown was expanding its application; that the Crown was seeking by the amendments to address deficiencies that had been identified by the respondents; and that the Crown had not explained how it proposed to deploy the additional material referred to in the amended Evidence Annexure - see, for example Mr Baxter's supplementary submissions, 23 January 2021 and the supplementary submissions of Mr Lahood, 25 January 2021. In my view, it was not unfair to the accused to permit the Crown to add to the evidence that it contended was admissible under s 31A. The amendments were relatively minor and merely picked up further material that was part of the prosecution brief and which, if accepted, formed part of a body of evidence from which it could be inferred that the alleged July importation had occurred and that the respondents had been involved in or, in the case of Mr Baxter, knew of the importation.
It was not submitted by any party that the evidence referred to in the Evidence Annexure could only be admitted under s 31A. Accordingly, the Evidence Annexure identified the evidence of the alleged July importation that the Crown contended was admissible under the Evidence Act and/or at common law.
Mr Smith's evidence[18]
[18] Obviously, the application concerned the admissibility of evidence the Crown proposed to adduce in the trial of the Importation Charge. Accordingly, the summary in this section is taken from the statements made by Mr Smith to the AFP prior to the trial.
Mr Smith described in his first statement how he was recruited to drive the Valkoista, his involvement in the purchase of the vessel and a voyage taken in the vessel with Mr Bouhamdan immediately after its acquisition.[19] Briefly summarised, Mr Smith's evidence was to the effect that:
(a)He was introduced to Mr Lahood by Mr Alfonso Italiano at a carpark in Dural on about 25 June 2017. He again met with Mr Lahood a few days later. Mr Bouhamdan and Mr Rasaubale were present at the meeting.
(b)There was a further meeting with Mr Lahood and Mr Bouhamdan and another meeting with Mr Lahood on the night of 4 July 2017. Mr Smith also exchanged Whatsapp messages with Mr Bouhamdan.
(c)In the course of the meetings, Mr Smith agreed he would drive a boat to collect something off the coast of Western Australia. He was to be involved in the purchase of the boat. There was discussion about the boat having a carrying capacity of 400 ‑ 800 kgs.
(d)Mr Smith flew to Perth in early July 2017. He went to Hillarys Boat Harbour and met with Mr Bouhamdan and a marine broker, 'Matt' (Matthew Lovelady). He inspected the Valkoista and a decision was made by Mr Bouhamdan to purchase the vessel. The purchase price for the vessel was paid the following day.
(e)Mr Smith and Mr Bouhamdan purchased fishing equipment and approximately 50 large sports bags. Mr Bouhamdan also introduced Mr Smith to Mr Dolman.
(f)The day after the purchase of the Valkoista was completed, Mr Smith and Mr Bouhamdan went to sea in the vessel. They remained at sea for a few days before returning to Geraldton. Mr Smith then flew back to Sydney.
[19] Dated 8 February 2018; PB 0593.
Mr Smith did not describe in his first statement what happened when he and Mr Bouhamdan went to sea in the Valkoista. However, Mr Smith provided further detail in his second statement[20] about what he alleged occurred when he travelled to Perth in early July 2017. In summary:
[20] Dated 17 December 2019; PB 0794.
(a)Mr Smith was 'under the impression' that the boat to be purchased would be used to collect cocaine offshore. He formed that impression from his conversations with Mr Lahood and Mr Bouhamdan before flying to Perth in early July 2017.
(b)Mr Smith met Mr Dolman the day after he first inspected the Valkoista at Hillarys Boat Harbour.
(c)Mr Smith and Mr Lovelady took the vessel for a sea trial after the purchase price had been paid (on 7 July 2017). They returned from the trial at around 4.30 pm. Mr Bouhamdan then said that he and Mr Smith had to leave Hillarys in the Valkoista that afternoon.
(d)Mr Bouhamdan had with him two satellite phones, a Blackberry and 'a couple of normal phones' when they left Hillarys in the Valkoista. Mr Bouhamdan provided Mr Smith with a set of coordinates after they had been at sea for about an hour.
(e)After they had travelled for approximately 56 hours, Mr Bouhamdan received a message delaying a rendezvous with another boat because of concerns about satellite imagery and being detected if the meeting occurred in daylight.
(f)The rendezvous with the other boat occurred at approximately 7.30 pm the following evening. The two boats were rafted together and drugs were transferred from the other boat to the Valkoista. The drugs were in hessian bags marked with Asian writing.
(g)Mr Smith initially plotted a course to return to Hillarys. However, he became concerned about the vessel's fuel and oil reseves and so the course was altered for a return to Geraldton.
(h)The Valkoista arrived at Geraldton in the early hours of the morning (11 July 2017). The vessel was moored at a jetty in a marina.
(i)Three men arrived in a white van an hour or two after the Valkoista had docked. The drugs were transferred from the boat to the van. Mr Smith recognised Mr Rasaubale as one of the men who arrived in the van.
In his third statement, Mr Smith dealt with some Whatsapp messages exchanged with Mr Bouhamdan.[21] According to Mr Smith, the messages referred to drugs that were missing from the quantity allegedly imported in July 2017 on the Valkoista. The messages also referred to events that had occurred immediately after July 2017 and to the voyage on the Valkoista.
[21] Dated 17 December 2020; PB 0843.
In his third statement, Mr Smith also identified himself and others in CCTV footage taken at Hillarys Boat Harbour on 6/7 July 2017 and at the Batavia Coast Marina, Geraldton on 11 July 2017.
In his fourth statement, Mr Smith elaborated on his meetings with Mr Lahood and Mr Bouhamdan prior to travelling to Perth in early July 2017.[22] He provided further detail about his discussions with Mr Bouhamdan when they met at Hillarys for the purpose of purchasing the Valkoista and about a meeting with Mr Lahood and Mr Bouhamdan in September 2017 at a bowling centre in Hornsby (according to Mr Smith, he was told that he was to again drive the Valkoista as there was 'another half of the delivery to pick up'; Mr Lahood also made a threat about there being no disruption to the 'next load'[23]). Mr Smith referred to hiding 'the drugs' on board the Valkoista during the July 2017 voyage.
[22] Dated 17 March 2021; PB 0882.
[23] Mr Smith's statement dated 17 March 2021; PB 0882, pars 66 and 72
Mr Smith provided yet more details of his conversations with Mr Lahood, Mr Bouhamdan and Mr Rasaubale prior to July 2017 in his fifth statement.[24] Finally, Mr Smith explained in his sixth statement the contents of further Whatsapp messages which he said referred to the alleged July importation.[25]
Other evidence
[24] Dated 2 April 2021; PB 0902.
[25] Dated 2 April 2021; PB 0902.
The final version of the Evidence Annexure referred to other parts of the prosecution brief, including:
(a)Statements made by AB that:[26]
[26] Statement dated 5 March 2019; PB 0636
·He flew to Perth with Mr Kaena and Mr Rasaubale on 28 September 2017. They hired a vehicle on arriving in Perth and travelled to Geraldton where they remained for a few days. Mr Rasaubale then received a message advising that they were to return to Sydney.
·Mr Rasaubale, Mr Kaena and he drove from Geraldton to Perth where they hired another vehicle and then drove to Adelaide. As they approached the Western Australian/South Australian boarder, Mr Rasaubale said 'we couldn't pass the border checkpoint and that there was a dirt track that they had used previously with a 600-kg drug run that he did in the seventh month of 2017'.[27] Mr Rasaubale also said that 'the 600-kg from the July import all went to Harb's place and were distributed from there over about three days' and that they would use the dirt track again to avoid the border checkpoint 'for this job'.[28]
[27] PB 0636 [32].
[28] PB 0636 [32].
·After they returned to Sydney, Mr Rasaubale said he had done 'a previous job of 600 kg where he flew to Perth and went to Geraldton'.[29]
[29] PB 0636 [37].
·In early November, he again flew to Perth with Mr Kaena and Mr Rasaubale. They returned to Sydney several days later. Mr Kaena and he then met with Mr Harb. In the course of the meeting, Mr Harb said to Mr Kaena, 'the bosses thought too much money was spent during the July 2017 import and didn't want us doing the same on this occasion'.[30]
[30] PB 0636 [53].
·Mr Rasaubale told AB to count the bags that were to be transferred from the Valkoista to the Fiat van on the morning of 21 December 2017. AB asked why that was necessary. He was told by Mr Rasaubale that he did not want 'any drugs to go missing, like what happened in July, when some if the drugs were stolen by a man called Rafic'[31] and 'because we had an issue the last trip and there was some bags missing. We don't want to have the same problem.'[32]
[31] PB 0636 [83].
[32] Statement dated 15 February 2021; PB 0862 [36].
(b)Statements by -
·Mr Matthew Lovelady, the marine broker who dealt with Mr Smith, Mr Bouhamdan and others in relation to the sale of the Valkoista. In addition to providing evidence about the negotiations for the sale of the Valkoista, Mr Lovelady referred in his statement to observations he had made about the number of hours clocked for the engines of the Valkoista when he inspected the vessel in Geraldton on 14 July 2017.
·Ms Debra Arnup, office manager for Oceaneer Marine. She produced various documents recording the sale and registration of the Valkoista and subsequent dealings with Mr Smith about obtaining a fishing tour operator's licence.
(c)Mobile phone, airline and hire car records relied on by the Crown to allege that Mr Rasaubale, Mr Kairouz and Mr Young-Thompson hired and drove the van which, on its case, collected and transported the drugs imported on the Valkoista in July 2017.
(d)CCTV film allegedly capturing Mr Bouhamdan at Hillarys Boat Harbour on 6/7 July 2017; downloads from mobile phones alleged to have been used by Mr Bouhamdan, Mr Rasaubale and Mr Harb; and maps reconstructing the location of mobile phones allegedly used by Mr Rasaubale and Mr Young-Thompson in July 2017.
(e)Recordings made by listening devices installed on the Valkoista by the AFP after July 2017. Mr Smith, Mr Bouhamdan and Mr Cafcakis were on the Valkoista while it was moored at the Batavia Coast Marina on 17 and 18 November 2017. The Crown alleged that Mr Smith and Mr Bouhamdan made a number of statements relating to the alleged July importation which were captured by the listening devices. The recordings were relied on to allege that Mr Smith and Mr Bouhamdan were involved in the alleged July importation and that Mr Cafcakis learnt of the alleged importation through what was discussed by them.
The effect of the evidence relied on by the Crown
I considered that the evidence relied on by the Crown, if accepted by the jury, could establish that:
(a)Mr Lahood and Mr Bouhamdan were involved in 'recruiting' Mr Smith to purchase and skipper the Valkoista and that they were also involved in the acquisition of the vessel;
(b)a commercial quantity of a border controlled drug was imported into Australia on or about 11 July 2017 as alleged by Mr Smith;
(c)Mr Lahood, Mr Rasaubale and Mr Bouhamdan were involved in the importation, again as alleged by Mr Smith;
(d)Mr Lahood, Mr Rasaubale, Mr Bouhamdan and Mr Baxter knew or believed or were aware that, on or about 11 July 2017, a commercial quantity of a border controlled drug had been imported into Australia on the Valkoista;
(e)the listening device recordings made on the Valkoista on 17/18 November 2017, and the intercepted phone calls referred to in the Evidence Annexure, contained references to the alleged July importation that were consistent with the Crown's case;
(f)Mr Kaena, Mr Harb and Mr Cafcakis knew of the alleged July importation.
The effect of the Crown's decision regarding Mr Dolman
It was anticipated at the time the application was made that Mr Dolman would give evidence as part of the Crown's case. Accordingly, I took into account the statements made by Mr Dolman in allowing the Crown's application in March 2021. He had made six statements by that time.
Mr Dolman claimed that by July 2017 he was owed money by Mr Lahood, Mr Bouhamdan and Mr Baxter. He said in his first statement that he had travelled to Perth at the time of the alleged July importation as Mr Lahood had told him that he would be able to get his money back from his loan.[33] Otherwise, Mr Dolman's first statement only contained general evidence about the alleged July importation. There was no express reference to a border controlled drug being brought into Australia but there were aspects of Mr Dolman's statement which were broadly consistent with the Crown's case.
[33] Statement of Mr Dolman dated 15 February 2018, PB 0083, par 16.
Mr Dolman provided more detail about his knowledge of, and involvement in, the alleged July 2017 importation in his third and sixth statements.[34] Mr Dolman stated that he was to receive some of the drugs to be imported in July 2017 in repayment of the amount allegedly owed by Mr Lahood. Mr Baxter was to assist in selling the drugs.[35] However, the focus of Mr Dolman's third and sixth statements generally remained on his attempts to recover the money said to be owed by Mr Lahood, Mr Bouhamdan and Mr Baxter and on steps he claimed he and Mr Baxter had taken in anticipation of receiving drugs from the alleged July importation.
[34] Statement dated 18 December 2019, PB 0793; statement dated 10 March 2021, PB 0880.
[35] Statements of Mr Dolman dated 18 December 2019 and 15 December 2020; PB 0793 and 0842.
Although the statements made by Mr Dolman were consistent with the Crown's case on the alleged July importation, they lacked particularity. There were matters that were left unexplained and aspects that were obviously not fully disclosed. Mr Dolman's statements about the alleged July importation illustrated why counsel for the accused had sought a Basha inquiry in relation to his proposed evidence. Taken at its highest, Mr Dolman's statements contained some admissions allegedly made by Mr Bouhamdan which assisted the Crown's case but little more that could not be proved from other sources.
Accordingly, Mr Dolman's proposed evidence about the alleged July importation was limited. He did not admit to participating in the alleged importation and provided only limited direct evidence of any role played by Mr Lahood, Mr Bouhamdan and Mr Rasaubale. According to his witness statements, Mr Dolman was to have been a beneficiary of the alleged importation rather than a participant and his knowledge was largely derived from what he was told by Mr Bouhamdan. Indeed, the primary purpose of his evidence was to explain how, on the Crown's case, Mr Baxter came to learn of the alleged importation.
Consequently, the probative value of Mr Dolman's evidence on the alleged July importation was substantially diminished by the decision to discontinue the Attempted Possession Charge against Mr Baxter. As noted earlier, that decision was made after the prosecutor had concluded that Mr Dolman could no longer be regarded as a witness of truth.
Following the prosecutor's decision, Mr Lahood, Mr Rasaubale and Mr Bouhamdan did not seek a reconsideration of the ruling that evidence of the alleged July importation was admissible in the Crown's separate cases against them.[36] Although a further ruling was not sought, I did not consider that the prosecutor's decisions regarding Mr Dolman affected the ruling that had been previously made given the contents of Mr Smith's statements to the AFP and the other matters on which the Crown proposed to rely to prove the alleged importation.
The Discontinued Trial and the Joint Trial
[36] Mr Bouhamdan did not make an application in his separate trial.
The Crown's application to admit evidence of the alleged July importation was determined immediately prior to the commencement of the Discontinued Trial. As previously noted, the evidence was said to be admissible in the Crown's separate case against each respondent.
However, it was alleged in the Joint Trial that Mr Cafcakis, Mr Kaena and Mr Harb knew of the alleged July importation and that their knowledge was relevant to the proof of their state of mind concerning the alleged December importation. Mr Cafcakis was said to have learnt of the alleged July importation through the recorded conversations between Mr Bouhamdan and Mr Smith on the Valkoista on 17/18 November 2017. The statements allegedly made by Mr Harb to Mr Kaena and AB - on the Crown's case, statements made some time after AB, Mr Kaena and AB returned to Sydney from Perth in mid-November - were relied on to submit that Mr Kaena and Mr Harb knew of the alleged July importation.
There was no application prior to or in the Joint Trial to reopen the ruling that evidence of the alleged July importation was admissible. Further, Mr Kaena, Mr Harb and Mr Cafcakis did not object to evidence of the alleged importation being admitted in the Crown's separate case against each of them.
The application, as originally argued and decided, concerned the Crown's cases against Mr Lahood, Mr Bouhamdan, Mr Rasaubale and Mr Baxter - 'the respondents'. It is convenient to continue to refer to 'the respondents' notwithstanding that the Crown ultimately discontinued the Attempted Possession charge against Mr Baxter and subsequently sought to establish that Mr Kaena, Mr Harb and Mr Cafcakis knew of the alleged July importation as a circumstance relevant to proof of the fault element in its separate cases against them.
The Crown's initial submissions
The Crown's initial submissions alleged that the accused were participants in an 'ongoing drug operation' which was a 'continuum' from at least July 2017. The operation involved a 'syndicate' which commenced planning a second importation almost as soon as the alleged July importation had been completed. The syndicate's efforts to bring a border controlled drug into Australia were ongoing from the alleged July importation until December 2017. Evidence of the alleged July importation was relevant to proof of 'the true nature of the drug operation' and the role played by the respondents in the operation.[37]
[37] Crown's initial submissions, pars 35 - 38.
Those submissions reflected the Crown's case prior to its revision in March 2021. As initially particularised, the Crown alleged a single 'overarching' agreement to undertake importations of illicit substances, with the alleged July and December importations being instances of the implementation of that agreement.[38] The accused were alleged to have been parties to the single overarching agreement at different times. On that case, evidence of the alleged July importation was arguably admissible, independently of s 31A of the Evidence Act, as evidence of the agreement and its execution.
[38] A difficulty with the Crown's initial formulation of its case concerned whether each importation was alleged to have been undertaken pursuant to a single, continuing agreement or whether there were separate agreements to undertake each importation – the separate agreements being made within a broad understanding or arrangement among the accused, or some of them, to participate in importations generally. This ambiguity was apparently one reason why the Crown reformulated its case shortly prior to the Discontinued Trial.
As noted above, the Crown also contended that evidence of the alleged July importation was relevant to establishing the state of mind of the respondents in relation to the alleged December importation - that they knew or intended or were reckless about the possibility that the substance to be imported or possessed was a border controlled drug; that they were parties to the single overarching agreement to import commercial quantities of a border controlled drug and that they intentionally and knowingly participated in the alleged December importation.[39] It was also submitted that evidence of the alleged July importation was relevant to establishing the relationships between the respondents and the associations between the respondents and their co‑accused and others who were said to be involved in the alleged December importation.
The respondents' submissions
[39] The Crown's initial submissions also referred, of course, to Mr Baxter. I have not referred to the allegations made against him in light of the subsequent discontinuance of the Attempted Possession Charge.
In summary, the respondents submitted that:
(a)The Crown's allegations about the alleged July importation were based on the evidence of accomplice witnesses. There was no independent corroboration of their evidence. As accomplices, Mr Smith, AB and Mr Dolman could not corroborate each other.[40]
(b)The evidence was weak, vague and speculative.[41] For example, the Crown could not prove what substance had been imported if an importation had, in fact, occurred in July 2017.[42] Further, the possibility that the trip allegedly taken by the Valkoista was a 'dummy run' could not be excluded on the evidence proposed to be admitted.
(c)There was a risk that the jury would place undue weight on the allegations.[43]
(d)It was possible that the jury could become confused or distracted by focussing on whether the alleged July importation had occurred and if so, whether the respondents had been involved rather than on whether the Crown had proved that the respondents were guilty of importing a commercial quantity of a border controlled drug in December 2017.[44]
(e)The trip allegedly taken by the Valkoista in July 2017 only assumed probative significance when considered in combination with 'the knowledge that methamphetamine was landed in Geraldton on 21 December 2017'. The Crown's reliance on evidence of the alleged July importation to prove matters relating to the alleged December importation involved a form of circular reasoning.[45]
(f)The admission of evidence concerning the alleged July importation was apt to mislead and confuse the jury. The Crown relied on the evidence to support an inference that the respondents were parties to an agreement to undertake the alleged December importation. The jury were likely to confuse proof of an agreement to undertake the alleged July importation with proof that the respondents were parties to an agreement in respect of the alleged December importation.[46]
[40] Mr Lahood's submissions, 17 January 2021, pars 36 - 38 and 58; Mr Baxter's submissions 16 January 2021, pars 4 and 16; Mr Bouhamdan's submissions 12 February 2021, par 36.
[41] Mr Bouhamdan's submissions 17 January 2021, pars 17 and 21; Mr Bouhamdan's submissions 12 February 2021; Mr Lahood's submissions 17 January 2021, par 31; Mr Baxter's submissions 16 January 2021, par 11 and following, especially at par 23.
[42] ;Mr Lahood's submissions 17 January 2021, par 32.
[43] Mr Bouhamdan's submissions 12 February 2021, par 42. Mr Lahood's submissions 17 January 2021, par 29; Mr Baxter's submissions 16 January 2021, par 31.
[44] Mr Bouhamdan's submissions 12 February 2021, pars 41 - 42.
[45] Mr Lahood's submissions, 17 January 2021, pars 31 - 35.
[46] Mr Bouhamdan's submissions, 12 February par 40. Mr Bouhamdan and Mr Lahood also made submissions about whether particular parts of the evidence identified in the Evidence Annexure were admissible when considered independently of the Crown's application - that is, objections about the form of the evidence.
The Crown's supplementary submissions
The Crown contended in its supplementary submissions that:
(a) There is no rule to the effect that s 31A evidence cannot be given by an accomplice or that such evidence necessarily requires independent corroboration.
(b) The respondents had not made any admissions. Consequently, the Crown was required to prove that the respondents knew or intended or believed that the substance allegedly imported in December 2017 was a border controlled drug and that they had intentionally participated in the importation.
(c) The Crown's reliance on an agreement for importing commercial quantities of a border controlled drug did not involve circular reasoning. Mr Bouhamdan and Mr Lahood were alleged to be part of a criminal enterprise to import a substantial quantity of a border controlled drug. Evidence of the alleged July importation provided circumstantial evidence of their participation in the agreement. A finding that they were involved in the alleged July importation did not mean that they must be guilty of the Importation Charge - a finding of guilt would depend on evidence about their state of mind in relation to the alleged December importation.
(d) Evidence of the respondents' participation in the alleged July importation was relevant to establishing that their involvement in the alleged December importation was not 'accidental'. As in Harriman v The Queen,[47] the evidence showed it was improbable that the respondents were associating with others for an innocent purpose rather than for the purpose of planning and undertaking the importation of a commercial quantity of a border controlled drug.
The revision of the Crown's case
[47] Harriman v The Queen (1989) 167 CLR 590.
As noted above, the Crown revised its case in March 2021 (the revision was said to be a simplification of the Crown's case). The Crown did so in response to a document I provided to the parties. The purpose of the document was to identify some issues that were likely to arise in what would be a complex trial.[48]
[48] 'The Queen v Bouhamdan & Others - Trial Notes'.
In addition to the matters already noted about the reformulation of its case, the Crown responded to the document by submitting that:
(a)Cases concerning alleged drug importations demonstrated that propensity and relationship evidence had been admitted -
·to prove an ongoing criminal enterprise as evidence of participation in the charged offence by those involved in the enterprise;
·to establish the accused person's knowledge and to negate innocent explanations;
·to provide context for other evidence such as telephone intercept material;
·to demonstrate consistency with the evidence given by a witness.
(b)The Crown no longer proposed to rely on 'propensity' evidence 'as a circumstance relevant to the proof of the alleged offence'. Rather, evidence of the alleged July importation was relevant to establishing the context in which the events the subject of the Importation Charge had occurred - the decision of the New South Wales Court of Criminal Appeal in Masri v R[49] illustrated the basis upon which the evidence was admissible.
(c)Evidence of the acquisition of the Valkoista and the recruitment of Mr Smith to drive the vessel was admissible in any event ‑ the evidence was relevant to proof of the alleged December importation and to the knowledge, beliefs and intentions of Mr Lahood and Mr Bouhamdan.
(d)If evidence of the alleged July importation was excluded, the jury -
·would not hear important evidence relating to the issues of knowledge, belief and intention;
·would be left to speculate about aspects of the evidence - for example, why there had been a rush to purchase the Valkoista if nothing relevant had occurred until December 2017;
·would not be provided with important context for understanding what was recorded by the listening devices placed on the Valkoista by the AFP or in intercepted telephone calls - as noted above, the listening devices and intercepted calls captured conversations which, on the Crown's case, referred to the alleged July importation and were relevant to proof of the state of mind of Mr Bouhamdan and Mr Cafcakis.
The Crown's position following the revision of its case
[49] Masri v R [2015] NSWCCA 243; (2015) 255 A Crim R 1.
The Crown's concession following the revision of its case that it did not rely on evidence of the alleged July importation as 'propensity' or 'tendency' evidence was ambiguous: did the concession relate to just 'tendency evidence' as that expression may be understood at common law or to that part of the definition of 'propensity evidence' in s 31A of the Evidence Act that refers to a 'tendency' that an accused person had or to all evidence that fell within the statutory definition of 'propensity evidence'? The gist of the Crown's position was that it would not rely on evidence of the alleged July importation to submit that the respondents had an inclination or pre-disposition to commit the offence of importing border controlled drugs or to be involved in drug dealing activities.
However, more generally the Crown stated that it no longer relied on evidence of the alleged July importation as evidence going to the proof of the respondents' guilt. Rather, the Crown proposed to lead the evidence as context. Consistent with that approach, the Crown made no reference to the evidence of the alleged July importation as similar fact evidence despite the similarities between that alleged importation and the alleged December importation.
Further, the Crown's submissions following the revision of its case focussed on common law authorities - in particular, Masri and Harriman. Relevant contextual evidence is admissible at common law; it is not necessary ordinarily to have recourse to s 31A of the Evidence Act to admit evidence that is truly contextual.
Section 31A of the Evidence Act
Section 31A of the Evidence Act states:
31A.Propensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers –
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
Evidence will be admissible under s 31A if:
(a)the evidence is propensity evidence or relationship evidence as defined by the section; and
(b)the evidence has significant probative value; and
(c)the probative value of the evidence, compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial.
R v Baxter [No 6] dealt with an application by the Crown to admit evidence of what was referred to as the 'Other Person Importation'. The Crown contended that the evidence was admissible at common law and under s 31A of the Evidence Act. My understanding of the circumstances in which evidence of uncharged criminal conduct may be admitted under s 31A was identified in the reasons given for dismissing the Crown's application. Accordingly, I do not propose to again set out the relevant principles in these reasons - in particular, to repeat what has been said by the Court of Appeal in cases such as Dair v The State of Western Australia;[50] Daniels v The State of Western Australia;[51] RMD v The State of Western Australia;[52] La Bianca v The State of Western Australia;[53] The State of Western Australia v Jackson;[54] Wark v The State of Western Australia;[55] and Hill v The State of Western Australia.[56] There have been many decisions of the Court of Appeal which have considered the meaning and effect of s 31A since March 2021. However, this section of the reasons only considers the state of the case law as at the time I allowed the Crown's application, that is, my understanding of the law at that time.
[50] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.
[51] Daniels v The State of Western Australia [2012] WASCA 213.
[52] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185] (Mazza JA agreeing). Beech J's statement of the relevant principles was recently adopted in The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [18].
[53] La Bianca v The State of Western Australia [2019] WASCA 105.
[54] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285.
[55] Wark v The State of Western Australia [2020] WASCA 19.
[56] Hill v The State of Western Australia [2019] WASCA 209.
The definition of 'propensity evidence' in s 31A of the Evidence Act is wide - it embraces similar fact evidence; 'other evidence of the conduct of the accused person'; evidence of the character or reputation of the accused person and evidence of a tendency that the accused has or had. The word 'conduct' in s 31A refers to 'the manner in which the accused person behaves or has behaved'. The words 'a tendency' refer to a 'proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had'.[57]
[57] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20].
In The State of Western Australia v Wark, Pritchard J observed:[58]
[T]he definition of 'propensity evidence' in s 31A(1) appears to be broad enough to encompass evidence which would not necessarily have fallen within one of those categories of propensity evidence which were well recognised at common law. That is so because the definition of propensity evidence includes 'other evidence of the conduct of the accused person'. Those are extremely broad words. It is clear that such 'other evidence' will be evidence which would not fall within the other forms of propensity evidence referred to in the definition of 'propensity evidence', or within the definition of 'relationship evidence'. And clearly the words 'other evidence of the conduct of the accused person' cannot simply refer to evidence of the conduct of the accused person which is directly relevant to establishing that the accused committed the alleged offence, because that evidence would be admissible in the absence of s 31A. Accordingly, having regard to that legislative context, the words 'other evidence of the conduct of the accused person' must be construed as any evidence of the conduct of the accused person which demonstrates, or is capable of demonstrating the accused's propensity - that is, an inclination to commit crime, or crime of a particular kind, or an inclination to behave in a particular way - which is capable of supporting an inference that the accused is the person, or the sort of person, likely to have committed the alleged offence.
[58] The State of Western Australia v Wark [2017] WASC 154 [45].
Justice Hall endorsed those observations in The State of Western Australia v Edwards,[59] and, with respect, the phrase 'other evidence of the conduct of the accused person' must relate to evidence of a 'propensity' as that word is ordinarily understood - that is, other evidence of the conduct of the accused person that demonstrates a relevant predisposition or inclination. That, it seems to me, must be so as Parliament could not have intended that the expression 'other evidence of the conduct of an accused' would create a separate and independent category of evidence. The effect of that interpretation would be that s 31A would apply to any evidence of the way in which an accused person had behaved.
[59] The State of Western Australia v Edwards [2019] WASC 87 [25].
The other matter to note is that s 31A of the Evidence Act distinguishes between 'propensity evidence' and evidence of a 'tendency that the accused person has or had'. The latter form of evidence is a sub-set of the defined category of propensity evidence so that not all propensity evidence as defined by s 31A is evidence of a tendency allegedly possessed by the accused person.
As to the third of the requirements for admissibility, fair‑minded people are reasonable members of the general community who are not lawyers but who it must be assumed have informed themselves of at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.[60]
The admissibility of uncharged criminal conduct at common law
[60] Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [47] ‑ [49]; Preston v The State of Western Australia [2012] WASCA 64 [45]; DKA v The State of Western Australia [2017] WASCA 44 [30]; RMD v The State of Western Australia [49] ‑ [50].
I also discussed the admissibility of uncharged criminal conduct at common law in R v Baxter [No 6]. Again, I will not repeat what was noted in those reasons.
Shortly stated, evidence which shows no more than the propensity of an accused to engage in criminal conduct of a particular kind, or that the accused is the sort of person who is likely to commit the offence charged, is not admissible to prove the accused's guilt.[61] However, evidence which has a high probative value and raises, as a matter of common sense and experience, the improbability of the offence charged having been committed other than as claimed by the prosecution is admissible notwithstanding that it discloses prior criminal conduct or a propensity to commit the offence.[62] Further, evidence of uncharged criminal conduct may be given if the evidence puts other evidence about the facts and circumstances of the charged offence into their proper context. The evidence is received as part of the essential background against which the prosecution's evidence and any evidence of the accused person must be assessed.
[61] Harriman v The Queen, 613 (Gaudron J); Pfennig v The Queen (1995) 182 CLR 461.
[62] Harriman v The Queen, 613 ‑ 14 (Gaudron J) and see Brennan J at 594; Pfennig v The Queen; Hoch v The Queen(1988) 165 CLR 292.
The admissibility of evidence which reveals uncharged criminal conduct is always subject to a discretion to exclude evidence where its prejudicial effect outweighs its probative value. It is not necessary that the evidence be proved beyond a reasonable doubt before it can be used by the jury for its admitted purpose.[63]
[63] R v Bauer [2018] HCA 40; (2018) 266 CLR 56.
There have been numerous cases involving alleged drug importations or other dealings in which evidence of uncharged criminal conduct has been admitted on a variety of grounds and for different purposes. Reference is made later in these reasons to some of those cases to illustrate the grounds upon which such evidence has been admitted and the purposes for which the evidence has been used.
The characterisation of evidence of uncharged criminal conduct
Various terms have been used to describe and classify evidence which discloses uncharged criminal conduct for the purpose of determining admissibility - for example, similar fact, tendency, relationship, coincidence and contextual evidence.
Classifying evidence of uncharged criminal conduct according to commonly employed common law categories does not assist in determining the admissibility of evidence of uncharged criminal acts under s 31A of the Evidence Act. The question posed by the section is simply whether the proposed evidence falls within the wide definitions of 'propensity evidence' and 'relationship evidence'. If so, the evidence can only be admitted if the court is satisfied about the matters stated in s 31A(2). Classifying the evidence according to common law nomenclature distracts from the statutory task.
As noted above, at common law evidence of uncharged criminal acts will be admissible if the evidence is relevant and its probative value is not outweighed by its prejudicial effect. Classifying such evidence as similar fact, tendency, relationship or coincidence evidence or some other category may not be particularly illuminating. The process of classification serves the important purpose of focusing attention on the proposed use of the evidence. However, that process can be frustrated by the lack of settled terminology. As Pullin JA noted in PIM v The State of Western Australia, the law relating to propensity evidence is in a confused and uncertain state.[64] His Honour commented:[65]
In BRS v R[1997] HCA 47; (1997) 191 CLR 275 Kirby J (311) said that the 'troublesome issue of propensity evidence' is that it is 'an area of law which has been described as "confused and confusing"'. In Tully v R [2006] HCA 56; (2006) 230 CLR 234 [135] Callinan J (Heydon and Crennan JJ agreeing) acknowledged that the authorities of the High Court were 'not as clear as they might be' in relation to uncharged acts. The subject has been visited on many occasions in the High Court, most recently in HML. Unfortunately, HML has not lessened the confusion. Kirby J observed in HML that 'So much has been written' about the questions of admissibility and the directions and warnings that might be given concerning evidence of 'discreditable sexual conduct' in cases involving sexual offences committed against under‑aged children, that he hesitated 'to add to the elaboration lest what I write ends up contributing to the uncertainties' [44] ‑ [45]. Part of the problem stems from the use of adjectives or epithets of uncertain meaning. Hayne J in HML said that 'embellishing epithets' added to the word evidence are 'neither helpful nor desirable' [200]. Gleeson CJ in HML referred to the fact that the words 'relationship' and 'propensity' may 'require closer definition' [8] and that the word 'propensity' is ambiguous [12]. Hayne J in HML expressed the view that the words 'propensity' and 'disposition' are 'not helpful' [129]. Crennan J in HML noted that the expression 'relationship' is a 'vague term' [468]. Kiefel J said in HML that the expression 'relationship evidence' has 'added to the confusion as to the appropriate standard to be applied for its admissibility' [491] and that the expression 'encompasses sexual conduct which is an offence often referred to as "uncharged acts" and misconduct which may not be an offence' [492]. Callinan J in Tully said that the term 'relationship evidence' tends to elude definition or 'undesirably, to be referred to by judges and prosecutors imprecisely' [141]. The word 'propensity' at times has been further qualified by adding 'general' or 'specific' to it. This distinction creates its own difficulties as explained by Byrne AJA in R v BJC (2005) 13 VR 407 at 420; (2005) 154 A Crim R 109.
[64] At least as at March 2021.
[65] PIM v The State of Western Australia [118].
The High Court expressly acknowledged the uncertain and unsatisfactory state of the law on the admissibility of evidence of uncharged acts in R v Bauer. The difficulty can be illustrated by considering the meanings that have been attributed to the term 'relationship evidence'. The term may, for example, be used to describe evidence of the relationship between an accused person and a complainant that discloses uncharged sexual assaults and/or a sexual interest in, or sexual attraction to, the complainant and a tendency to act on the interest. Evidence of that kind may also be referred to as 'tendency evidence'. Further, this form of relationship evidence is quite different to the 'relationship evidence' which the High Court held to be admissible in Harriman (evidence of prior drug dealings between alleged co-conspirators admitted to explain aspects of their relationship and association).
In my view, in considering the admissibility of evidence of uncharged criminal acts under s 31A of the Evidence Act and at common law it is more helpful to focus on first, the circumstances that may be established by the evidence (considered with all other relevant evidence and taking the evidence at its highest) and second, the purpose for which the evidence is sought to be tendered. The second step will not only inform the characterisation of the evidence but will be significant for determining its probative value.[66] However, the mere fact that evidence concerns the relationship between an accused and others allegedly involved in the charged offence does not mean that it is necessarily admissible. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context: Norman v R.[67]
The likely issues in the trial
[66] See The State of Western Australia v Jackson [2019] WASCA 118 [22].
[67] Norman v R [2012] NSWCCA 230 [33].
The respondents made no admissions following their arrest and no admissions had been made or foreshadowed under s 32 of the Evidence Act at the time that the Crown's application was determined. Consequently, the application was argued and decided on the assumption that the Crown would be required to prove every element of the Importation Offence against Mr Lahood, Mr Bouhamdan and Mr Rasaubale and each element of the Attempted Possession Offence against Mr Baxter.
The Crown submitted that evidence of the alleged July importation was relationship evidence at common law which was admissible to rebut any suggestion that the relationships between the respondents and their association with others who were said to have been involved in the alleged December importation was capable of an innocent explanation. The Crown also submitted that the evidence was admissible to rebut any suggestion that one or more of the respondents was acting under duress. The Crown relied particularly on Harriman and Masri to make those submissions.
The use of evidence of the alleged July importation for those purposes was contextual. It was evidence which, on the Crown's case, demonstrated the nature of the relationships between those allegedly involved in the alleged December importation. Further, the evidence was said to provide essential background to the circumstances the Crown alleged proved that the respondents were guilty of the Importation Offence or the Attempted Possession Offence.
The Crown also submitted that evidence of the alleged July importation was relevant and admissible to prove that:
(a)the respondents knew or believed that the substance to be brought into Australia as part of the alleged December importation was a border controlled drug or that they were aware of a substantial risk that the substance was a border controlled drug;
(b)the respondents intended to bring into Australia a substance on the Valkoista or to deal with a substance in connection with its importation.
The use of evidence of the alleged July importation for those purposes was not merely contextual. The evidence was, on the Crown's case, relevant to the proof of elements of the Importation Offence and the Attempted Possession Offence - that is, it was relevant to proof of the respondents' guilt.
In addition to those matters, I considered that evidence of the alleged July importation was relevant to:
(a)whether Mr Lahood had imported a border controlled drug given how the Crown proposed to prove that element - that he was an organiser of the importation (a 'mastermind' behind the importation);
(b)the meaning to be attributed to the recorded conversations principally between Mr Bouhamdan and Mr Smith on 17/18 November 2017, while they were on the Valkoista with Mr Cafcakis - arguably, the conversations referred to the alleged July importation and were, accordingly, relevant to the state of mind of Mr Bouhamdan and Mr Cafcakis;
(c)the meaning to be attributed to statements made in intercepted telephone calls, principally between Mr Bouhamdan and Mr Smith, which arguably referred to aspects of the alleged July importation.
Evidence of the alleged July importation as contextual evidence
As previously noted, there is a material distinction between contextual evidence and evidence that is relied on as proof of the guilt of an accused person. Contextual evidence is relevant to the assessment of other evidence; the evidence is not relied on to prove one or more of the elements of the charged offence. In my view, the Crown's proposed use of the evidence of the alleged July importation was both contextual and for the purpose of proving the guilt of the respondents. That was so notwithstanding the submissions made by the Crown following the revision of its case.
The use of evidence of the alleged July importation to interpret and assess the listening device recordings made on the Valkoista on 17/18 November 2017 and the intercepted telephone calls referred to in the Evidence Annexure was obviously contextual. I considered that:
(a)it was open to the jury to find that the recordings and the intercepted telephone calls identified in the Evidence Annexure contained references to the alleged July importation;
(b)subject to balancing its probative value and prejudicial effect, evidence of the alleged July importation was admissible at common law as contextual evidence to explain and assess what was stated in the recordings and intercepted telephone calls.
The use of evidence of the alleged July importation to explain aspects of the evidence such as the time between the acquisition of the Valkoista and the alleged December importation was also contextual.
Considered in isolation, the probative value of evidence of the alleged July importation for those contextual purposes was limited. The utility of the evidence for the purpose of understanding, on the Crown's case, the listening device recordings, telephone intercept material and aspects of the chronology depended on evidence of the alleged July importation being admitted for other purposes. That is, there would be no point in, for example, evaluating the listening device recordings if evidence of the alleged July importation was excluded - the evaluation would occur in an evidentiary vacuum and be of no relevance.
I held that evidence of the alleged July importation was admissible on other grounds and for other purposes. I further held that evidence of the alleged July importation had a significant probative value which outweighed the prejudicial effect of the evidence, after taking into account the kind of directions that would be required to be given to a jury about the use of the evidence. Accordingly, I concluded that evidence of the alleged July importation could be used for the purpose of explaining the meaning of statements made in the listening device and telephone intercept recordings and to avoid speculation about the chronology of events on which the Crown relied in its case against each respondent.
Evidence of the alleged July importation as relationship evidence and proof of the respondents' state of mind
The use of evidence of uncharged criminal conduct to rebut innocent association
As noted above, the Crown relied particularly on the reasoning of the Hight Court in Harriman and the New South Wales Court of Criminal Appeal in Masri to contend that evidence of the alleged July importation was admissible at common law to rebut any suggestion that the relationship between the respondents and their association with others said to be involved in the alleged December importation was capable of an innocent explanation. In Harriman, Dawson J observed:[68]
When a person is charged with a criminal offence, evidence is ordinarily inadmissible that he has on other occasions been guilty of behaviour indicating a criminal disposition. This is not because the evidence is irrelevant. On the contrary, it is excluded because a jury is likely to regard it as proving too much and is for that reason likely to proceed upon prejudice rather than proof. On the other hand, such evidence may in a particular case have a sufficiently high probative value to justify its admission notwithstanding its prejudicial effect. When it is admissible in this way, it is generally called similar fact evidence but that description can be misleading. Whilst it is often the case that the evidence is admissible because it is so strikingly similar to the behaviour alleged to constitute the offence as to point inevitably to the guilt of the accused, that is not the only basis upon which evidence indicating a criminal propensity is admissible. The evidence may otherwise have strong probative force justifying its admission. This case is an illustration. Evidence that the applicant had a previous relationship with the witness Martin involving dealings in drugs was clearly evidence of a disposition or propensity upon his part, indeed, on the part of both of them, to engage in dealings of that kind together with one another such as to make it highly improbable that their relationship in this case was of an innocent character. It was not so much the similarity of the previous dealings which was important as the nature of the association to which those dealings pointed.
[68] Harriman v The Queen (597).
The interests of justice
Section 25A is designed to protect the interest of the person examined, particularly the right to a fair trial, in the context of a broader public interest in the investigation of serious and organised crime. Those interests are promoted by ensuring that, subject to ss 25A(12) and s 25A(13), examinations are not inhibited by a fear of disclosure. Accordingly, s 25A prevents disclosure of the subject matter of an examination up until the point at which a judicial officer decides to release the evidence in the interests of justice.
The procedure for determining an application under s 25A is necessarily imperfect: submissions by non-ACIC parties must be framed on incomplete evidence as they do not know the contents of the examination material. Self-evidently, that significantly constrains the ability of non-ACIC parties to assess and make submissions about the forensic value of information obtained by the ACIC.
As already noted, I concluded that the interests of justice favoured preserving confidentiality over the examination material the subject of the certificate that had been issued under s 25A(12). Accordingly, it is not possible to give reasons for that conclusion by reference to the contents of the examination material. What can be said is that:
(a)The conclusion was reached after considering a multitude of factors - the legislative objectives of the ACC Act and the scheme of the Act; the objections of the examinees to disclosure and the reasons for their objections; the nature and seriousness of the Importation Charge; the fact that the accused had not made any significant admissions at the Discontinued Trial and were unlikely to do so at the Joint Trial so that there were many issues that were likely to be contested; the Crown's case, as particularised and conducted in the Discontinued Trial; the effect of applications made following the Discontinued Trial; and the contents of the examination material.
(b)The examination material had little evidentiary value. The examinations were not primarily directed to the alleged July or December importations. Those allegations were at the periphery of the subject matter of the examinations. Any statements made by the examinees about the alleged importations were hearsay or speculation. Moreover, any admissible evidence that they could have provided would have related to matters that were already known to the parties or would not have assisted the accused in defending the Importation Charge.
The applications for a Basha inquiry
It was held in R v Bouhamdan [No 6] that this Court retained inherent jurisdiction to conduct a Basha inquiry. The question whether there should be an inquiry was left open.
As previously noted, Mr Dolman had refused to state in his tenth statement all that he apparently knew about some matters referred to in the statement. It had been suggested by counsel for the AFP that a Basha inquiry might be the most appropriate means of eliciting a complete statement about those matters if his claims, or those made by the AFP, for PII where disallowed. However, the need for a Basha inquiry fell away once the prosecutor decided that he did not intend to call Mr Dolman to give evidence as part of the Crown's case. The matters stated in Mr Dolman's tenth statement were unlikely to be the subject of cross-examination by any counsel for the accused.
Applications for a Basha inquiry in respect of the evidence proposed to be given by Mr Smith and AB were also made prior to the Discontinued Trial and the Joint Trial. However, those applications rested principally on an assertion that there were inconsistencies between the various statements which AB and Mr Smith had provided to the AFP. I did not consider it was necessary to hold a Basha inquiry for the purpose of exploring those inconsistencies. In my view, a Basha inquiry is not to be convened simply to enable counsel for an accused person to rehearse cross-examination. That is especially in this jurisdiction where committal hearings have been abolished with the intention that pre-trial disclosure will ordinarily be sufficient to ensure that an accused person will receive a fair trial.
However, in his final statement dated 21 June 2021,[138] Mr Smith like Mr Dolman, claimed PII over certain matters raised in his statement. Mr Freitag SC was instructed by Mr Smith to advise on and represent him in relation to his claims for PII over parts of his recorded prison calls and his June 2021 statement. The process of reviewing and determining the claims for PII made over Mr Smith's prison calls extended into the Joint Trial. As a result, it was not possible to rule on the claims made by Mr Smith in his June 2021 statement until after the Joint Trial had commenced.
[138] PB 0926.
I held that Mr Smith's claims for PII should not be allowed: the interest in ensuring that all relevant evidence was disclosed and made available to the accused outweighed any public interest in suppression. The prosecutor and counsel for the accused then proposed that the most expeditious and efficient way of disclosing the evidence that Mr Smith had sought to suppress was to conduct a Basha inquiry. I acceded to that request, partly for the reasons identified by the parties and partly because it enabled me to control the process by which the evidence was disclosed. Mr Smith was represented by Mr Freitag at the hearing.
The 'jury member 8' email
My associate received the following email on the evening of Saturday, 12 November 2022:[139]
Dear Associate
I wish to advise that on Friday during a break one of the jurors was discussing how they got one of their friends to google the five accused. They said that one of the accused stood out. They discussed his family and how they were linked to criminals. They also talked about a house. I raise this because I feel it's going to mislead them. I ask if his Honour on Monday can give directions reminding the jurors anything they hear outside the court is not evidence and should not be used as evidence.
[139] The email was sent after I had commenced directing the jury.
The email was sent by someone identifying themselves as 'jury member' and using the email address '[email protected]'. There were aspects of the email that were curious:
(a)It appeared that a Gmail account had been created specifically for the purpose of sending the email.
(b)There was no juror with the jury number 8 who had been empanelled. Juror number 8 was, however, the main protagonist in the film 'Twelve Angry Men'.
(c)The timing of the communication was unusual - the email was sent at about 9:30 pm on a Saturday night. Moreover, the jury had sent numerous notes during the trial so it was not clear why a juror might feel it was necessary to communicate by email.
(d)The email did not state precisely what had been found on the internet. Rather, the email referred to topics which were said to have been discussed by the juror who allegedly conducted the internet searches. However, the references were sufficient to identify newspaper articles that had appeared in New South Wales and Western Australia concerning the family of Mr Lahood.
(e)The request that the jury merely be given a direction was odd if the email had been sent not by a juror but by someone who wished to disrupt the trial.
When the trial resumed on the following Monday, at my direction the jury officer informed the jury that a juror had apparently sent an email over the weekend (the contents of the email were not disclosed). The jury officer asked whoever had sent the email to accompany her into court. However, the jury officer subsequently advised that all jurors denied having sent an email to my associate.
The jury were then brought into court and directions given to encourage any juror who had sent the email to identify themselves after the jury had returned to the jury room. Again, there was no response from the jury. Each juror was then separately questioned in open court but not in the presence of other jurors. The contents of the email were not disclosed.
Each jury member maintained they had not sent the email and denied that there had been any discussion about internet searches or that anything had been disclosed concerning the accused as a result of out of court searches. The denials were unequivocal; a consistent account was given by jury members about their deliberations.[140]
[140] See ts 8665 and following.
I accepted that all jurors had been truthful in answering my questions.
Mr Rasaubale made an application for the jury to be discharged. Mr Cafcakis joined in the application. The Crown and the remaining accused, including in particular Mr Lahood, considered that the trial should continue.
Mr Rasaubale submitted that:
(a)The information contained in the email disclosed that the author was familiar with the prosecution and court arrangements. The author knew that there was five accused who were standing trial in this court. Further, the author knew how to contact my associate by email.
(b)The email apparently referred to matters concerning, at least, Mr Lahood that were in the public domain.[141] Information suggesting that Mr Lahood was of bad character had the potential to affect the jury's consideration of Mr Rasaubale's case given that the Crown alleged that Mr Rasaubale had been at meetings with Mr Lahood and Mr Smith in June/July 2017.
(c)The email suggested that more than one juror had been exposed to the material to which it referred.
(d)There were two possible reasons for the jury's responses - either the author of the email was not a member of the jury or the author was a member of the jury but was unwilling to disclose that fact. The second possibility was more plausible - for example, a juror might not wish to reveal their authorship of the email in open court for fear of public retribution from fellow jurors given that the trial had been in progress for approximately 14 weeks at the time the email was sent.
(e)The test to be applied was whether there was a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that a juror or the jury has not or will not discharge their task impartially.
(f)The timing of the email was critical. The jury were 'on verdict' and no further evidence could be presented.
[141] Articles concerning Mr Lahood and members of his family had been published in the Sunday Times and the Daily Telegraph and the Daily Mail Australia in February 2020. I made a suppression order as a consequence of publication of those articles.
Mr Cafcakis relied substantially on the submissions made by Mr Rasaubale. However, Mr Cafcakis made three further short points:
(a)The email was evidence of jury misconduct and apprehended bias.
(b)The court's enquiry with the jurors had not resolved the issue of whether there was an apprehension of bias. The denial by jury members of any knowledge of the email or outside enquiries 'ought be viewed in the context of the obvious desired by the emails author to remain anonymous and the fear judicial questioning may create'.[142]
(c)The jury would speculate about the court's questions and the possible source and content of the email. Consequently, 'there is a risk that a sense of distrust now exists amongst the jurors and possibly a prejudiced view of the accused'.[143]
[142] Email from Timpano Legal, 14 November 2022.
[143] Email dated 14 November 2022.
The Crown opposed the application to discharge the jury. It was submitted that the denials by each juror were credible and were consistent with the diligent attitude displayed by the jury to date in the trial. The answers to my questions demonstrated that the jury members understood the requirement to deliberate together and were conscious of their duties. Further, there was no evidence of misconduct that warranted the discharge of a juror or the jury unless it could be established that one or more members of the jury had lied in answer to my questions. The information before the court was insufficient to give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that a juror or the jury had not discharged or would not discharge their task impartially or to establish any real or substantial risk that the accused would not receive a fair trial according to law.
I concluded that it was not in the interest of justice to abort the trial and discharge the jury.
As Mason CJ and McHugh J explained in Webb v The Queen,[144]the principle behind the reasonable apprehension or suspicion test is that it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.[145] The fact that the focus is on what a fair minded and informed member of the public might apprehend or suspect indicates that it is the court's view of the public's view and not the courts own view which is determinative. Moreover:[146]
If public confidence in administration of justice is to be maintained, the approach that is taken by fair minded and informed members of the public cannot be ignored. Indeed, as Toohey J pointed out in Vakauta in considering whether an allegation of bias on the part of the judge has been made out, the public perception of the judiciary is not a dance by contributing to a fair minded member of the public and knowledge of the law and the judicial process which ordinarily experience suggests is not the case. That does not mean that the trial judge's opinion in findings are irrelevant. The fair minded and informed observer will place great weight on the judge's view of the facts. Indeed, in many cases the fair minded observer would be bound to evaluate the incident in terms of the judge's findings.
[144] Webb v The Queen (1994) 51 CLR 41.
[145] Webb v The Queen [47].
[146] Webb v The Queen [52].
In this instance, a fair minded and informed member of the public would know that I had found that the jurors were truthful in reporting that they had not sent the email, had not conducted searches on the internet and were not aware of any information which was not the subject of evidence presented in the trial. The fair minded and informed member of the public would readily infer from those findings that the jury were not aware of the contents of the email sent by 'jury member 8'. It was my view that, in those circumstances, the fair minded and informed member of the public would conclude that there was no reasonable basis for an apprehension or suspicion that the jury would not discharge their duties impartially and would act only on evidence presented in the trial and the directions they were given in reaching their verdicts.
Mr Harb's application
The Crown did not allege that Mr Harb was involved in the alleged July importation. However, it was submitted that he knew about the alleged importation. The submission was based on:
(a)Statements made by AB about the meeting with Mr Kaena and Mr Harb which the Crown alleged occurred in late November 2017. As noted previously, according to AB, Mr Harb said to Mr Kaena words to the effect, 'the bosses thought too much money was spent during the July 2017 import and didn't want us doing the same on this occasion'; 'the bosses thought too much money was spent on the job in July and didn't want us doing the same'.[147]
(b)Evidence relied on by the Crown to allege that Mr Kairouz was a member of the 'shore party' for the alleged July importation and inferences to be drawn from call charge records for his mobile phone and a mobile phone used by Mr Harb. The Crown alleged that the call charge records established that Mr Kairouz had communicated with Mr Harb around the time of the alleged July importation and it was to be inferred that they had discussed the alleged importation in the calls.
[147] Statements of AB dated 5 March 2019, PB 0636, par 53 and 22 May 2021, PB 0918 par 18.
There was no objection to the evidence proposed to be given by AB about the meeting with Mr Kaena and Mr Harb. Plainly, what Mr Harb was alleged to have said was an admission against interest. However, Mr Harb objected to evidence of the calls with Mr Kairouz being admitted in support of an inference that he knew about the alleged July importation. It was also submitted that there was insufficient evidence from which it could be inferred that Mr Kairouz had participated in the alleged importation.
As to Mr Harb's objection:
(a)I held that there was sufficient evidence from which the jury could infer that Mr Kairouz had been a member of the shore party for the alleged July importation.[148] The evidence relied on to establish Mr Kairouz's involvement was summarised in a submission by the Crown dated 18 July 2022.[149] The evidence primarily consisted of travel and call charge records which tracked Mr Kairouz's movements into, within and out of Western Australia around the time of the alleged July importation.
(b)The evidence of phone calls made between Mr Harb and Mr Kairouz only comprised call charge records maintained by the service provider for Mr Kairouz's phone. Consequently, there was no direct evidence of what had been communicated in the calls. The call charge records merely established the date and the time of the calls and their duration.
(c)It was accepted that Mr Harb knew Mr Kairouz prior to July 2017.
(d)The Crown submitted it could be inferred that Mr Harb and Mr Kairouz had discussed the alleged July importation in the calls made in July 2017 from evidence of the alleged importation and Mr Kairouz's involvement; Mr Harb's relationship with Mr Kairouz; and the timing of the calls made between Mr Harb and Mr Kairouz.
(e)It was, of course, possible that Mr Harb and Mr Kairouz had discussed the alleged July importation during the calls but it is also possible that they had not discussed the matter. In my view, there was insufficient evidence from which a jury could make a positive finding that the alleged importation had been discussed without speculating about what had transpired during the calls.
(f)Accordingly, I held that the Crown could not lead evidence of the calls for the purpose of submitting that Mr Harb and Mr Kairouz had discussed the alleged July importation.
[148] Ts 6250; 20 September 2022.
[149] 'Crown's supplementary submissions in response to Notice of Objection filed 7 April 2021 - Kairouz evidence'.
'Bornin2money' handle
AB stated in his first statement to the AFP:[150]
(a)In early November 2017, Mr Kaena, Mr Rasubale and he flew to Perth. They met a person in Perth, who he knew only as 'Michael', and who gave Mr Kaena a Blackberry phone. Mr Kaena retained the blackberry.
(b)On 17 December 2017, Mr Kaena called him and said he had received a message from Mr Harb that they were to go to Perth.
(c)He saw a message on Mr Kaena's Blackberry phone which was from Mr Harb. He could not recall exactly when he had seen the message. The message read '6 Albert Road, Croydon Park. Bring this with u bro'.
(d)Mr Kaena told AB that the message referred to Mr Harb's address. They went to Mr Harb's house and Mr Harb told Mr Kaena that 'the job was on for sure this time and that we had to do what the bosses said'. Mr Harb drove Mr Kaena and AB to the airport and they flew to Perth 'that day'.[151]
[150] 5 March 2019; PB 0636.
[151] Statement of AB dated 5 March 2019; par 44 and par 57 and following.
In his evidence, AB stated that Mr Rasaubale, Mr Kaena and he travelled to Perth on 5 November 2017. They subsequently met a person who AB did not know (he was told by Mr Kaena that the person was 'Michael'; he was told that while he and Mr Kaena were in prison following their arrest).[152] The person gave Mr Rasaubale a new Blackberry phone. Mr Rasaubale gave the phone to Mr Kaena.[153]
[152] Ts 5159.
[153] Ts 5167 - 5168.
AB further stated that he saw a message on the Blackberry; he thought he saw the message at his coffee shop. He could not recall the entire message:[154]
I remember number 6 and I think C-y-1 something. It was (indistinct) at the end of it. It was: ''Bring this with you bro.''' Mr Kaena said that the message was Mr Harb's address. The message contained a street number and a suburb. The suburb commenced with the letter 'C'.
[154] Ts 5182.
The Crown alleged that a Blackberry phone was located and seized during a search of the Fiat van on 21 December 2017 and that:
(a)the Blackberry was located in a black suitcase belonging to Mr Kaena;[155]
(b)the Blackberry had been used by Mr Kaena - it was, on the Crown's case, the Blackberry which AB stated had been given to Mr Kaena by Michael;
(c)data downloaded from the Blackberry included three messages from someone using the handle 'Bornin2money':[156]
·message sent on 17 December 2017 at 3:55 pm - '6 albert rd Croydon park. Bring this with u bro'.
·message sent on 21 December 2017 at 5:31 am - 'Hey bro What's happened';
·message sent on 21 December at 7:08 am - 'Bro please answer me!! Are u ok??'.
[155] The Blackberry was given recorded as DT017 in the property seizure record that was exh 323 - see ts 4094.
[156] Exh 1287. AB was cross-examined about this evidence at 5238 - 5242; 5470; 5473 and following; and 5492 - 5493.
The Crown also alleged that:
(a)Mr Harb resided at 4 Albert Road Croydon Park;
(b)intercepted telephone calls captured Mr Harb telling Mr Rasubale on 9 November 2017 to provide Mr Kaena and AB with a Blackberry, consistent with AB's evidence that Mr Kaena was provided with a Blackberry;[157]
(c)other messages indicated that Mr Harb used the letter 'u', the word 'bro' and double punctation marks '!!' and '??' when communicating by text;
(d)Mr Harb had sent another message to Mr Kaena containing an address that was similar to his actual residential address - the message stated '10 Albert Road Croydon Park!!' and was sent on 10 December 2017 from a mobile phone used by Mr Harb.
[157] PB A11147(05) - 1116.
The Crown contended it was open to infer that Mr Harb was the person who had used the 'Bornin2money' handle. It was submitted that text messages sent using the handle were consistent with the Crown's case that Mr Harb was responsible for organising the shore party and were relevant to proof of his knowledge of the alleged December Importation.
Mr Harb objected to evidence of the 'Bornin2money' text messages being admitted for the purpose of inviting the jury to infer that he was person who had sent the messages. The objection was foreshadowed prior to commencement of the trial but was not finally determined until after AB had given evidence.
However, I made some preliminary observations on the objection immediately prior to AB being called by the prosecutor. In particular, I noted that evidence to the effect that AB was told by Mr Kaena that a message using the 'Bornin2money' handle had been sent by Mr Harb was, prima facie, admissible in the Crown's case against Mr Kaena but inadmissible in the case against Mr Harb.[158]
[158]Ts 5000.
Mr Harb maintained his objection to any submission by the Crown that he was the person who had used the 'Bornin2money' handle following AB's evidence. It was submitted that AB did not, and could not, give direct evidence that the message was sent by Mr Harb and the fact that it contained an address which was said by Mr Kaena to be that of Mr Harb did not prove that the message had been sent by Mr Harb. Further, a Blackberry phone had not been found when Mr Harb's house was searched following his arrest.
It was also submitted on behalf of Mr Kaena that the evidence did not establish that he was the person who had used the Blackberry on which the 'Bornin2money' messages had been received. The phone, so it was submitted, was actually located in a bag belonging to AB when it was seized by police (a submission that was disputed by the Crown). Further, AB had been able to give the police the PIN for the phone following his arrest, suggesting that he had used the phone.[159] AB stated that he had learnt the PIN because he thought Mr Kaena would not be able to remember the number.
[159] See, for example Mr Chadwick's closing address at ts 7750 and following.
I concluded that the questions whether Mr Harb was the person who had used the 'Bornin2money' handle and whether the Blackberry phone on which texts were received from someone using that handle had been in the possession of, and used by, Mr Kaena or AB were questions for the jury to determine. There was, in my view, sufficient evidence from which the jury could draw the inferences for which the Crown contended.
AB did not give evidence that Mr Kaena had said that the message AB claimed to have seen on Mr Kaena's phone had been sent by Mr Harb. He did give evidence that Mr Kaena had said that the message contained Mr Harb's address. He made that statement before counsel for Mr Harb could object.[160] That part of AB's evidence was not subsequently referred to by the prosecutor in his closing address. The message itself was, of course, admissible. It was not in issue that Mr Harb's address at the relevant time was 4 Albert Road, Croydon Park. The message and Mr Harb's address were the facts that constituted the relevant evidence.
[160] Ts 5182.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Court Officer
23 MAY 2023
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