R v Cornwell

[2003] NSWSC 657

CITATION:	R v Cornwell and Others [2003] NSWSC 657 revised - 19/08/2004
HEARING DATE(S):	04/02/03 - 10/07/03
JUDGMENT DATE:	18 March 2003
JUDGMENT OF:	Howie J at 1
DECISION:	The evidence should be admitted except that part relating to a .22 with a silencer.
CATCHWORDS:	Criminal Law and Procedure - Admissibility of evidence of conversations between alleged co-conspirators relating to firearm
LEGISLATION CITED:	Evidence Act 1995 - s 137
CASES CITED:	Harriman v The Queen (1989) 167 CLR 590 Sultana (1992) 74 A Crim R 27
PARTIES :	Regina v Richard Bruce Cornwell, Regina v John Lawrence, Regina v Juan Guillermo Diez-Orozco, Regina v Dominic Darrington Brokenshire, Regina v David George Norris
FILE NUMBER(S):	SC 70223/02, 70220/02, 70221/02, 70066/02, 70222/02
COUNSEL:	P. Roberts SC with I. Bourke - Crown P. Boulten with P. Williams - Accused Cornwell C. Waterstreet - Accused Lawrence P. Young - Accused Diez-Orozco G. Whitehead - Accused Brokenshire C. Loukas - Accused Norris
SOLICITORS:	Commonwealth DPP - Crown Paul Hardin, Solicitor - Accused Cornwell King's Lawyers - Accused Lawrence Neil J. O'Connor & Assoc., Solicitors - Accused Diez-Orozco King's Lawyers - Accused Brokenshire Rigelsford Jenson Co., Solicitors - Accused Norris

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

TUESDAY 18 MARCH 2003

70223/02 REGINA v Richard Bruce CORNWELL
70220/02 REGINA v John LAWRENCE
70221/02 REGINA v Juan Guillermo DIEZ-OROZCO
70066/02 REGINA v Dominic Darrington BROKENSHIRE
70222/02 REGINA v David George NORRIS

JUDGMENT

1 Howie J: The accused and others stand trial on a charge of conspiracy to import a commercial quantity of cocaine. There is evidence before the jury that 120 kilograms of that drug were brought from Columbia to Australian waters in a sailing boat, The Flaning. The Crown case, so far as it is relevant for present purposes, is as follows. The accused Cornwell and Lawrence were major participants in the conspiracy in that they were controlling, what might be called, the Australian arm of the venture. Lawrence was in effect Cornwell’s lieutenant and had hands-on responsibility for the recovery of the drug from the boat when it arrived. The accused Diez was the representative in Australia of the persons who had exported the drug from South America. He acted in a supervisory role with Lawrence in preparing to have The Flaning met at sea and the removal of the drugs from it. The accused Brokenshire is alleged to have been involved in obtaining charts and other items that Lawrence would need to carry out this task. The accused Norris was recruited to assist in preparing a boat that was to meet The Flaning when it was due to arrive off the coast of New South Wales near Port Macquarie.

2 The jury has heard evidence from a witness, Wouter van Bommel, about the involvement of Lawrence and Diez in arrangements in Sydney and at Telegraph Point, near Point Macquarie, to meet The Flaning. Van Bommel came to Australia from South America shortly before the arrival of the vessel in order to assist in preparations for rendezvousing with the vessel and transferring the drugs from it. The Crown alleges that Diez, Lawrence and van Bommel went to the home of Norris at Telegraph Point where they carried out alterations to an inflatable boat, which had earlier been brought there from Victoria, to enable it to travel the required distance out to sea and so that the drugs could be stored on the boat for their conveyance back to shore. It is also alleged that steps were taken to ensure that the boat would not be picked up by radar. The Crown alleges that Norris was actively involved in preparing the boat and travelled with Lawrence and van Bommel on a test run to see whether the boat was capable of making the trip out to sea.

3 On the return of the boat from this trial run, police intervened and arrested Lawrence, Norris and van Bommel. They also arrested a fourth man who had been involved in the preparations at Telegraph Point named Gladman. After questioning, all those arrested were allowed to go free. Unbeknown to the others, Gladman had agreed thereafter to assist the police as an informer. It is alleged by the Crown that the conspiracy continued notwithstanding the intervention of police but the identity of most of the participants changed and the arrangements for the collection of the drugs were varied. The Crown intends to call Gladman in its case and he has been granted an immunity from prosecution by the Commonwealth.

4 As part of the evidence leading up to the arrest of the persons at Port Macquarie, the Crown wishes to tender evidence of conversations between the alleged co-conspirators relating to firearms. The Crown submission is that the evidence is important to identify the nature of the conspiracy and the relationship of the participants in it. Objection is taken to the evidence by counsel for Cornwell, Lawrence, Diez and Norris on the basis that the evidence is irrelevant or that, if it is relevant, its prejudicial effect is such that it should be rejected under s 137 of the Evidence Act.

5 A large part of the Crown case, especially as against Cornwell, involves material obtained by the lawful use of listening devices to capture conversations between the alleged participants in the conspiracy. The earliest conversations involve the accused Lawrence and Cornwell. The Crown alleges that these conversations concern the arrival of The Flaning and the preparations undertaken by Lawrence to obtain the drugs from the boat.

6 In a conversation of 12 April 2001, Cornwell and Lawrence are speaking about, what the Crown alleges is, the imminent arrival of The Flaning, when they are apparently discussing, amongst other matters, their financial arrangements in connection with their business in drug trafficking. During this conversation Cornwell is alleged to have said:

Yeah, yeah, now I told him that he’s got eighty four thousand to come, which eighty eight I said four lots of a thousand, I said you've got eighty four, I said out of that money we’re putting in thirty three each for the tools he said yeah fine with me just give me the fifty and he said its here in five weeks on the twenty sixth or twenty seventh… the Dutchman….and I’ve got to see him tomorrow at midday .. and try and settle up this account for these people.

The Crown alleges that the reference to "the Dutchman" is a reference to Wouter van Bommel and that the conversation relates to payments made or to be made for the drugs on board The Flaning .

7 There is further conversation that the Crown alleges relates to the accused Diez, the arrival of the drugs, its cost and the amount for which it was to be sold in Australia. In that context the following conversation occurred, it is alleged that M2 is Lawrence and M1 is Cornwell:

M2 I, I, I, I bought something too

M1 did ya?

M2 I bought, I bought a Glock.

M1 What do you mean you bought a Glock? bought it from who… oh what sort?

M2 ……

M1 Oh fuckin get me one

M2 This…know

M1 How much?

M2 Four

M1 Four?

M2 and it's got four boxes of rounds…

M1 yeah,

M2

M1 yeah ‘cos that’s …yeah

M2 …. four boxes…

M1 …give ‘em……

M2 … twenty two with a silencer

M1 oh fuckin yeah….. Well, give’em that one. Give’em one or the other

M2 Alright?

M1 Yeah. Hang on, I better dry these towels

M2 I haven't paid nothing

M1 Hey

M2 I haven't paid anyone.

There is further conversation that, the Crown alleges, contains references to Diez, the arrival of van Bommel, The Flaning and what has to be done to obtain the drugs from it.

8 The next day, 13 April 2001, there is another conversation between Cornwell and Lawrence in which firearms are mentioned. Again the Crown alleges that this reference occurs in a conversation that is concerned, at least in part, with arrangements to meet van Bommel, the retrieval of the drugs, and the calculation of their resale price. Immediately before the reference to firearms the accused are talking about items that, on the Crown case, are to be used in retrieving the drugs. The relevant part of the conversation is as follows, and once more it is alleged that “M1” is Cornwell and “M2” is Lawrence.

M1 All up all that stuffs going to cost us it will cost us about fifty I reckon for the thing, right two engines will cost us about fifteen and the truck will cost us about twenty two so we’re looking at about fifty, sixty-five, seventy, eighty-five about eighty-seven and we need a couple of them things you said there are things that director finder

M2 Yeah

M1 Whatever ya call it

M2 Yeah

M1 I might have a couple of good walkie-talkies as well

M2 I think I think I'm getting them

M1 Are ya alright

M2 ……. got one

M1 Yeah….twenty two with a silencer mate, when can I get that……

M2 I was supposed to get it this week weekend Glock

M1 Right and the old boy he’s got to give us um thirty yeah about forty five and then you want to give him fifteen yourself

M2 Yeah

M1 Alright

M2 Well I’d actually like to give him more but fuck he’s been fuckin’ terrific

M1 At the moment

M2 We’ve got to look after him

M1 Yeah

M2 Because he’s supplied the boat

M1 Yeah

M2 He supplied the phones

M1 Yeah

M2 He supplied the guns

M1 Yeah

9 On 20 April 2001 another conversation between the accused Cornwell (M1) and Lawrence (M2) was recorded. The Crown alleges that this conversation relates, at least in part, to arrangements for the retrieval of the drugs. Much of it is concerned with finances. During the course of this conversation the following occurs:

M2 ever use shotties?

M1 Shooters?

M2 Shotties

M1 Shooters you mean

M2 Yeah

The Crown asserts that the reference to “shotties” is a reference to shotguns. There is further conversation concerning amounts of money which the Crown alleges relates to payments made in connection with the conspiracy and the following then occurs:


M1 See, what I wanted to do and you tell me if this is, what I was planning on doing but we won't….be exact I thought, get all the money cause I’ve got no…..and she’s got hundred and twenty thousand….right

M2 uh

M1 guns… they break into three pieces…..

M2 ….mine’s gunna be short obviously

M1 but that bit of money that you used has come out of our all we've got hundred

M2 yeah yeah but..

M1 not to buy guns with

M2 No well I'll explain what I’ve had to use alright, like I spent four grand up there…..

M1 right

M2 …….polished handle

M1 right

M2 …silver……..

M1 right

M2 ….. cover ourselves….

M1 yeah yeah

M2 I'll explain to you

M1 right

M2 I just bought it to……..

M1 right

M2 just put them away

10 There then follows conversation containing what might be inferred to be references to the accused Diez, payments made to him, and financial and other matters connected with the arrival of The Flaning. Later in the conversation the following occurs:

M1 what about the Glock?

M2 on the price on that

M1 yeah

M2 ………..

M1 ……. no I mean the Glock, did you get the Glock…. It there

M2 I’ve, I’ve got one

M1 yeah, yeah, yeah….you setting both safety

M2 …I’ve worked out where it is, it's on… soon as you touch… I think it clips in

M1 yeah

M2 to there

M1 yeah

M2 there……..

M1 yeah

M2 soon as you…..

M1 yeah….and releases it

M2 it's hot but ah when I fill the fill the magazines seventeen the cunt

M1 yeah?

M2 I can hide it but I’m fuckin…to fire it.

M1 When will what time um. We go out Sunday night right just make it any fuckin where just somewhere quiet mate

M2 …..somewhere…..

There is further conversation that, the Crown asserts, is connected with preparations to meet The Flaning .

11 On 28 April 2001 police lawfully intercepted and recorded a conversation in a Ford Fairlane motor vehicle alleged to have been owned by the accused Lawrence. The participants are said by the Crown to be Lawrence (M1) and Brokenshire (M2). The Crown case is that the conversation concerns items to be used for meeting The Flaning and the recovery of the drugs, including CB radios and night goggles. During the course of that conversation the following occurs:

M2 Still got that twenty two have you…..looks like a forty five

M1 mm

M2 or was it twenty two it looked like a

M1 No, it was a nine millimetre

M2 Nine mill yeah, that's thirty eight… that was a..

The conversation continues with discussion about clothing and other items that will be needed by Lawrence.

12 Gladman made a statement to police dated 30 June 2001. During the course of that statement he refers to a conversation that he had with the accused Norris on 16 June at Telegraph Point. It will be recalled that the accused Lawrence and Norris were arrested with Gladman on 19 June after Norris, Lawrence and van Bommel had made the test run out to sea in the inflatable boat. The relevant part of the statement is as follows:

On Saturday, 16 June 2001, Dave [Norris] drove to my place in the same red Toyota Landcruiser described above, and,

He said: "Pack your bag, we've got to go"

I said: "Before I go, I’ve got to go and cut some firewood for Kay”

Dave then took a large blue vinyl bag, with white stripes, from the back of the Landcruiser.

I said: "What's in the bag?"

He said: "Some guns that I want you to hide for us. A couple of pistols, and a couple of shotties. If we’re going out to cut some wood we can test the pistols out.”

I said: "Why are you giving them to me?"

Dave said: "Carlos [Diez] said we are all a bunch of monkeys running around with guns. Get rid of them".

Dave and I then went out into the Banangi State Forest in my Landcruiser (unregistered), with my trailer attached. There we cut a load of wood and loaded it into the trailer. Dave then produced two pistols, one was a 9mm Glock, and the other was a Phoenix Arms .22, and some ammunition from the bag. I set up a cordial bottle as a target, while Dave loaded the magazines. We then took it in turns to shoot a cordial bottle with the pistols.

The statement indicates that Gladman and Norris then returned to Norris's home where the accused Lawrence and Diez were present. The statement then continues as follows:


I then heard Dave say to John [Lawrence]: "We tested out of the pistols"

John said to me: "How did they go?"

I said: "The Glock worked great, it was quite accurate. But we had a small problem with the .22, it jammed a couple of times, and it shot low.”

John looked at me with a surprised look on his face.

13 Gladman later showed police where the firearms had been hidden. They found two handguns, a Glock and a .22, and a shotgun. The jury could infer that they generally match the description of guns referred to in conversations between Cornwell and Lawrence.

14 It is necessary to indicate, so far as can be ascertained from cross-examination of the Crown witnesses, what the intended defence will be of each of the accused to whom this evidence relates. It seems that Cornwell will be asserting that he did not enter into any agreement for the importation of drugs, or at least not the one that is the subject of the charge, Lawrence and Norris will be asserting that they believed that they were to assist an illegal immigrant from the boat to enter Australia, and Diez that he was only involved in an agreement to sell The Flaning.

15 It would be open to the jury to conclude that each of the accused were involved in a common enterprise which centred on the arrival of The Flaning off the east coast of Australia. In particular the jury could find that, so far as Lawrence, Norris and Diez are concerned, their common interest involved events at sea off Port Macquarie. Clearly the fundamental question for the jury to determine, so far as the participants in events before the arrest of the accused on 19 June are concerned, will be the nature of the common enterprise, if any, in which they were engaged.

16 One of the matters, which might indicate the nature of this enterprise, would be a consideration of the paraphernalia that it was thought would be, or might possibly be, needed to carry it out. The jury would be entitled to have regard to the various items of equipment mentioned in the discussions between the accused in connection with the carrying out of their venture under the expectation of the imminent arrival of The Flaning. These included an inflatable boat, outboard motors, walkie-talkies, CB radios, night goggles, a “direction finder”, waterproof plastic drums, heavy-duty plastic bags, and overalls, boots and beanies for Lawrence.

17 The jury would also be entitled to find, from the context surrounding the reference to firearms in the various conversations, that at least a Glock was within the inventory of items to be obtained before Lawrence set out for Port Macquarie. So whatever the enterprise involved, the jury might conclude that, on the Crown case, two of the organisers of the enterprise thought that at least a firearm was a pre-requisite. It may be inferred from the fact that Brokenshire raises the question of whether Lawrence still has a twenty-two while they are discussing what items he, Lawrence needs, that Brokenshire also believed that a firearm was a piece of equipment necessary to carrying out the enterprise in which he was involved.

18 In submissions before me, the Crown has stressed that the references to firearms in the conversations between the alleged co-conspirators are an integral element of the conspiracy and are part of the overt acts relied upon by the Crown to prove both the nature of the conspiracy and the participants in it. This is not a case where the firearms are merely incidental to the Crown case, such as if they had simply been found during a search of the accused premises after arrest. Rather the firearms are spoken about on more than one occasion in the context of preparing to carry out the venture in which these accused were involved. At least one weapon was obtained from the same person who supplied the boat and the phones and who “has to be looked after”. The Crown submits that, where the evidence of other criminal conduct is part of the commission of the offence charged, there is no justification for the exercise of any power to reject the evidence. In this regard the Crown has referred to the judgment of McHugh J in Harriman v The Queen (1989) 167 CLR 590 at 633, where his Honour said:

If evidence which discloses other criminal conduct is characterized as part of the transaction which embraces the crime charged, it is not subject to any further condition of admissibility. Evidence which directly relates to the facts in issue is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect. No doubt in a criminal trial a judge always has a general discretion to exclude prejudicial evidence. But it is difficult to see how evidence directly related to the very facts in issue can be excluded simply because it reveals other criminal conduct on the part of the accused…………

19 On behalf of the accused it has been submitted that the discussion about, or the possession of, the firearms tells the jury nothing about the venture in which the accused were involved. In particular, it is argued that the use of firearms is not part of the conduct reasonably associated with importing drugs and, therefore, no conclusion can be drawn from the discussions about them in support of the Crown case. In this regard my attention was drawn to Sultana (1992) 74 A Crim R 27 where the possession of a firearm was held to be relevant to proof of the offence of supplying a prohibited drug as it was consistent with the accused having heroin in his possession for that purpose rather than for his own personal use. However, I do not find that decision of any assistance in the present case. It concerned a discretionary judgment made by a trial judge in particular factual circumstances.

20 There is nothing in the judgments of the members of the Court in Sultana that suggests that the possession of firearms is irrelevant to any offence involving drugs other than supply. Nor could it be. Clearly the importation into Australia of any valuable commodity, either legitimately or illegitimately, carries with it the attendant risk that some person may attempt to intervene and steal the item. It would not be unreasonable to expect armed guards to accompany the transportation of any valuable items some distance. So too it might be reasonably expected that persons, who are involved in the importation and transportation of a very valuable hoard of drugs, may consider it necessary to arm themselves. It might, perhaps, be though less likely that persons involved in assisting an illegal immigrant to enter Australia from a sailing boat off the coast of Port Macquarie would need a firearm to protect themselves or the illegal immigrant.

21 It was strenuously submitted that, because it was later determined that the firearms were not necessary for the carrying out of the venture, the discussions about them are irrelevant to proof of the Crown’s case or, at least, are unduly prejudicial to the accused. But simply because it is later determined that items initially thought as necessary are no longer needed, it does not follow that the items cannot assist in understanding the nature of the venture to be carried out. It is always on the cards that, as a venture proceeds over time and as circumstances change, items initially thought to be useful prove unnecessary.

22 In the present case the significance of the evidence is two-fold. Firstly, the discussion of the firearms by two persons who, the Crown asserts, are the prime movers in the conspiracy in Australia, is part of the circumstantial case that proves the nature of the conspiracy alleged. Secondly, the evidence of the disposal of the firearms at Telegraph Point at the direction of the accused Diez is relevant to an assessment of his role in the activities being carried out there and his relationship with other persons who, the Crown says, are members of the conspiracy. The evidence, if accepted, supports the Crown’s assertion that Diez is a major participant in the conspiracy and a person of authority in the preparations being carried out pending the arrival of The Flaning. It is of course not without significance that the firearms found by police are similar to those being discussed in conversations between Cornwell and Lawrence. The fact that they are at Telegraph Point confirms that the reference to them in the earlier conversations is in connection with the enterprise that was to take place there.

23 In my view the evidence is relevant and highly probative when taken with other evidence in the prosecution case. It is important evidence for the Crown to rebut any suggestion that the persons at Telegraph Point were involved in activity of more minor criminality than that charged, such as a conspiracy to breach the immigration laws in respect of one or two persons aboard The Flaning. It is relevant to rebut any suggestion of the accused Diez that he had no concern in arrival of the boat or the activities of the others, except to help sell it. I cannot see how there is any real possibility that the jury might misuse the evidence to the disadvantage of the accused. It does not simply give rise to propensity or bad character. It is not of some merely tangential significance to which the jury might give too much weight or which might distract the jury from the real issues before them. In the present case, which is concerned with an allegation of an importation of a very large and valuable quantity of illegal drug, it does not seem to me that there is any unfair prejudicial effect of the evidence or that, if there is, it is disproportional to the probative value of the evidence.

24 The evidence should be admitted except that part relating to a .22 with a silencer.

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Last Modified: 12/24/2004