R v MacGill

[2025] NSWDC 172

District Court

New South Wales

Medium Neutral Citation:

R v MacGill [2025] NSWDC 172

Hearing dates:

9 May 2025

Decision date:

09 May 2025

Jurisdiction:

Criminal

Before:

Noman SC DCJ

Decision:

Sentence: see orders at [44-47]

Costs: see order at [71]

Catchwords:

SENTENCING — Penalties — Intensive correction order

COSTS – costs in criminal cases - declined

Legislation Cited:

s.78 Criminal Procedure Act 1986 (NSW)

s2(1)(a), 3, 3(1)(a), 3(1)(b), and 3A Costs in Criminal Cases Act, 1967 (NSW)

s.25(1) Drug Misuse and Trafficking Act 1985 (NSW)

s.18 and 128 Evidence Act 1995 (NSW)

s.42 Legal Aid Commission Act, 1979 (NSW)

Category:

Sentence

Parties:

Rex;
Stuart MacGill

Representation:

Counsel:
Crown: G Steedmam
Defence: T Hodgson; K Doherty

Solicitors:
Crown: C Moore
Defence: P Blake

File Number(s):

2023/290777

JUDGMENT

[Junior Counsel prepared and signed written submissions that were adopted by Lead Counsel in oral submissions. References to ‘Counsel’ are therefore generally references to both.]

1. Stuart MacGill appears for sentence for an offence of knowingly taking part in the supply of the prohibited drug cocaine contrary to s.25(1) Drug Misuse and Trafficking Act 1985 (NSW). The offender entered a plea of not guilty at trial to an offence of knowingly taking part in the supply of not less than the large commercial quantity. The quantum alleged was 1kg, the lowest level for the offence provision. The Crown relied upon the statutory alternatives of not less than the commercial quantity which encompasses a quantity of between 250g and 1kg, and a simpliciter supply, which involves an amount less than 250g. The jury were satisfied beyond reasonable doubt only on the second alternative.

PENALTY

2. The maximum penalty of 15 years imprisonment operates as a legislative guidepost and represents the legislature’s assessment of the seriousness of the offence.

OFFER TO PLEAD

3. Consistent with the procedural requirements the parties engaged in a case conference in the Local Court. The Crown raised a concern about the accuracy of the case conference certificate. Despite this concern the Crown indicated it was legislatively constrained in endeavouring to ventilate those concerns. I therefore proceed on the unchallenged certificate. The offender offered to plead guilty to the offence of supplying a prohibited drug; the charge he was ultimately found guilty of. This offer was not accepted by the prosecution. The offender did not plead guilty when arraigned even though this was an available option. The offender challenged the evidence given by Mr A that inculpated him in the offending and the offender also gave evidence denying his involvement in any way that could be construed as knowingly taking part in any supply, regardless of quantum. This circumstance requires that the offender’s offer to plead guilty before committal to the offence upon which a finding of guilt is made, entitles him to a reduction of 25% to the otherwise determined sentence.

FACTUAL FINDINGS

4. As this is a sentence after trial, I am required to determine the facts for sentence that are not inconsistent with the verdict. I am required to determine facts adverse to an offender beyond reasonable doubt and those that mitigate only on balance. This determination will be based on the evidence given in the trial. It will be informed by an appreciation of what is entailed in a finding of guilt which in turn is informed by the directions of law on the elements. This entails proceeding on the basis the jury were satisfied the offender knowingly took part in the supply of cocaine. The verdict does not intrinsically involve a weight other than the upper limit being 250g.

5. The Crown submissions on findings are informed by the evidence.

6. Counsel for the offender advanced detailed submissions of factual findings in relation to quantity and role. In making findings, I acknowledge the offender’s submissions that include:

1. Submission 1: Referring to the deeming provision.

2. Resolution: I consider this had and has no application.

3. Submission 2: There was no evidence led of any weight between 3g [the traffickable amount] and 250g [the upper limit of a simpliciter offence]. The jury were never instructed on a lower limit of 3g. In the absence of this evidence, and the absence of proof of the offender’s knowledge of what weight would correlate with a purchase price of $330,000, the verdict only established knowledge of a quantity between half a gram and one gram.

4. Resolution:   To my understanding this does not accord with the conduct of the trial or the directions to the jury. The verdict only reflects the finding on the upper limit. The evidence at trial, including from the offender, includes he purchased the smaller amounts for $200 and $400 respectively. It is not inconsistent with the verdict of the jury that I determine beyond reasonable doubt what the offender’s knowledge was. I am not bound to sentence on the offender knowingly taking part in the supply in an amount being restricted to half a gram.

5. Submission 3: Someone other than the offender could have been a conduit between Mr A and the supplier. Resolution was suggested to be hindered by incomplete telecommunication records. Counsel nominated the offender’s partner, Maria O’Meagher could have been the intermediary given she purchased drugs on occasion from Mr A and she was in contact with the supplier, her brother-in law. Counsel nominated other persons who were known to the offender and who purchased drugs from Mr A could have performed that role. The submission even suggested Ms O’Meagher’s parents, who were connected to Ms O’Meagher’s restaurant, may be inculpated given significant drug transactions occurred therein. I note there is no evidence of significant drug transactions occurring in the restaurant. It is submitted these ‘multiple channels of information’ could have led to the facilitation of a drug deal and thereby this would alter the significance of the role of the offender. Such a person ‘may have directed or influenced the offender to unknowingly participate in the facilitation of some aspects and affects the state of knowledge in relation to the quantity ...’.

6. Resolution: Although the s.18 Evidence Act ruling prevented the Crown from calling Ms O’Meagher, this did not extend to the defence calling her should it have been considered she may have been able to give relevant evidence.

7. As I directed the jury, it was essential to proof of the Crown case that the evidence of Mr A concerning his communications and conduct with the offender about the terms of the supply, supported in some respects, be accepted beyond reasonable doubt. There was no other evidence in the trial that inculpated any other person as also being involved. The offender did not give evidence he was under pressure from his partner or her parents. I do not propose to go outside the evidence, and I do not propose to speculate.

8. The only suggested involvement of Ms Meagher occurred after the supply occurred and related to Mr A delivering to her drugs intended for Mr Sotiropoulos.

9. Submission 4: Counsel suggested there is no evidence that the supplier and purchaser would not have ultimately met in any event, even if the offender was not involved. It is then suggested that there is no evidence the offender even knew which party was a buyer and which a seller.

10. Resolution: I consider the first proposition otiose. The evidence of Mr A about the conversations he had with the offender was in no uncertain terms. The offender suggested Mr Sotiropoulos could supply cocaine and thereafter the discussions were about how it would be supplied and what it was being sold for.

7. The critical evidence that inculpated the offender emanated from Mr A. Mr A gave evidence protected by a s.128 Evidence Act certificate. Mr A knew the offender for a number of years in the capacity as being the supplier to the offender a number of times per week over about three yours of ½ g bags of cocaine for $200. There was no challenge at trial that the offender was a regular recreational user of cocaine and that for this period he sourced his drugs from Mr A. The evidence reflected the two liked each other quite independent to their regular drug supplies although there was no friendship that extended beyond the supplies.

8. Mr A gave evidence that the offender complained about the quality of cocaine Mr A supplied. Mr A said that the offender told him that his brother-in-law, Marino Sotiropoulos, could source cocaine. Over a period of time there were discussions wherein Mr A asked how the cocaine would be supplied and inquired about the price. Mr A said the offender did not initially know the responses to these questions, but he returned with the information. I infer this was after obtaining the information from Mr Sotiropoulos. Mr A was initially told it would be powder. He said he only wanted it in brick form. The offender came back to indicate this could be provided. The agreed price was $330,000. Mr A gave evidence that he used the terminology ‘brick’. Mr A said this was an unspoken language for a kilogram. During his evidence he did not say that a kilogram was mentioned but only the reference to a brick. Ultimately it was agreed that the offender would introduce Mr A to Mr Sotiropoulos for the purpose of the supply. I am satisfied beyond reasonable doubt that the discussions outlined by Mr A did occur. Consistent with the verdict, the jury were evidently not satisfied beyond reasonable doubt that the offender had knowledge that a brick referred to a kilogram, or any weight above 250g. The offender gave evidence denying any of these discussions occurred. By the verdict returned, the jury must have discounted the offender’s evidence.

9. It was not challenged at trial that Mr A and Mr Sotiropoulos did not know each other. It is evident that the offender provided an integral role in facilitating the ultimate supply. It was the offender that suggested another supplier to Mr A, and it was the offender who must have enticed interest in Mr Sotiropoulos. Without the role played by this offender this supply, and subsequent events, would not have occurred.

10. It was accepted that Mr A picked up the offender from his home on the morning of 8 April 2021 and that he drove at the offender’s direction to the underground carpark attached to the offender and his partner’s restaurant. It was accepted that the offender made the introductions. The offender said he left at this stage. Given the verdict, and the need to accept Mr A on the conversations leading up to the meeting and the meeting details, I am of the view the jury were satisfied of Mr A’s evidence on these aspects of the evidence beyond reasonable doubt.

11. I observe that Mr A was an impressive witness who demonstrated a good recall of his interactions with the offender and of matters that could be tested against other evidence. An example of this was his ability to accurately recall the area where the offender introduced him to Mr Sotiropoulos and where there was said to be a room. Although the witness was only in the car park in total for about 5 minutes, he described the location of the room and the general appearance of the room despite not entering the room. The room belonged to the restaurant. The offender was familiar with this room. I observe that the first trial resulted in the jury being discharged because both parties approached the trial on the basis there was no room in the suggested location and the police only confirmed the existence of the room after a jury note. Given the room belonged to the restaurant, and the offender gave evidence in the second trial demonstrating his familiarity with the room, and the carpark, it presents that the offender full well knew during the first trial that there was a room precisely where the witness suggested. Given ethical obligations of Counsel, I proceed on the basis the offender did not disclose this to any one of the then three Counsel.

12. The jury verdict accords with the jury approaching the evidence with appropriate scrutiny. The offender was a regular recreational user of small quantities of cocaine. The evidence supporting his involvement as “knowingly take part in” supports an absence of familiarity with large scale drug supply. Initially in liaising with Mr A he could not discuss the terms of the supply without needing to confirm those details. This sits comfortably with a determination that a brick may be commonly understood to be a reference to a kilogram of block cocaine to those involved in commercial supply, but not otherwise commonly known and not proved to be known to the offender. The amount of money involved was consistent in the evidence of Mr A and did not suffer from a requirement to establish the offender’s knowledge of drug terminology. I am satisfied the discussions involved this amount being referenced. Mr A arrived with that amount of money. As he attested, if there was no agreement about the cost price, he would not have known what amount of money to bring. He could only have obtained that amount from the offender. I well accept Mr A’s evidence that he would not turn up to a drug deal without knowing what he was buying and how much he was paying.

13. Just as the jury evidently dismissed the evidence of the offender, I also do so. He was not an impressive witness in manner or in the content of responses. Some responses were implausible or devoid of candour.

14. I determine it proven beyond reasonable doubt, that within the quantum available within the offence provision, the offender knew that the amount to be supplied was of a non-specific but considerable amount, of necessity under 250g, warranting the cost of $330,000.

15. There was no arrangement between Mr A and the offender for the offender to receive payment for facilitating the supply. I accept Mr A’s evidence that although not asked to, he forgave the offender’s drug debt of less than $1000 in recognition of the role played.

16. Counsel for the offender have suggested there is no evidence the offender knew a supply would occur. The evidence against him is that he was the go-between between the supplier and the purchaser, and he was instrumental in exchanging details of the drugs and the cost. He attended the meeting between the purchaser and the supplier having been privy to the agreement on the amount, a brick, and the cost, $330,000. As far as the communication progressed, the terms were entirely consistent with a completed negotiation.

OBJECTIVE SERIOUSNESS

17. The offender therefore played an indispensable role in the preliminary discussions over a number of days and facilitated the supply by introducing the buyer to the supplier. Although his knowledge was limited consonant with the verdict, his conduct resulted in there being a supply of a kilogram of cocaine. He did so for no agreed benefit. When specifically asked if he wanted anything he had declined. The unsought benefit actually received was modest. His role was essential to bring the parties together and for the transaction to occur. He continued to be involved after this initial facilitation and attended to make introductions on the day agreed for the supply to occur with knowledge of the intended supply.

18. Facilitating for a period over a week and over numerous exchanges and participating in the initial stages of the supply of cocaine in a sufficiently large quantity to be worth $330,000, but without knowledge that it was in an amount in excess of 250g, is still a serious example of an offence under the simpliciter provision. The offender must have known the product would be on-supplied given Mr A was known to him to be a supplier. He must have appreciated not all purchasers were financially comfortable recreational users and that some harm would be occasioned from the ultimate supplies.

19. The Crown submitted the offence fell above the mid-range informed by the role played by the offender in an agreement to supply a significant amount of drugs in an amount at the higher end of the range and warranting a payment of $330,000.

20. Based on the suggested factual findings, Counsel for the offender submitted the seriousness fell at the very low end. I do not accept this characterisation largely because of the factual findings inherent to the verdict or that I have made beyond reasonable doubt.

21. The offence is relatively serious even given the essential albeit limited role performed by the offender.

EXTRA-CURIAL PUNISHMENT

22. As an indirect consequence of his participation in making the introduction for this supply, the offender suffered a significant trauma. Mr A subsequently did a drug ‘rip off’ and stole 2kg of cocaine from associates of Mr Sotiropoulos. The retaliation was for the offender to be kidnapped by a number of men, detained in a car and then detained in premises in an unfamiliar area for a number of hours. During this period, he was made to strip, and he was understandably scared and threatened. The continuing emotional impact to the offender was evident when his police statement about the kidnapping was read to the Court during the trial and when he was asked questions about the incident in his evidence.

23. The offender experienced favourable media coverage in his capacity as a test cricketer who played for his country. Those accolades will be stored in history. Those who provided testimonials reference some of his exceptional skill as a leg-spinner. The offender has also suffered from the intense media coverage of his charging and the trial. The offender’s colossal lapse of judgement has been causative of a very public fall from grace.

24. Some aspects of the offender’s submissions are not supported by evidence. I know nothing of the offender being ‘followed’ and of telephoto lens images. I do not have evidence to support that the media coverage, of which I am largely unaware, has caused accountability and denouncement of the conduct. He was exposed to media reporting of the allegations and subsequent verdict.

25. I acknowledge the consequences that flowed indirectly from his involvement in the offence. Both entail forms of extra-curial punishment. Although well worth acknowledgment, the media attention does not warrant a reduction to sentence. I recognise the extreme retaliation directed at the offender, not for his involvement in the offence for sentence, but consequential his role in securing the introduction of Mr A to Mr Sotiropoulos and those he dealt with that is part of the offence. Dealing in illicit drugs has consequences some of which are particularly unsavoury. Nonetheless, this outcome was extreme and warrants some amelioration to sentence.

MORAL CULPABILITY

26. The offender was a functioning alcoholic and a regular user of the illegal drug cocaine. This explains how he knew persons who were in fact involved in far more criminality in the drug world. His involvement reflects that he wanted to assist Mr A at least if not also his brother-in-law and to be appreciated. He presented in his evidence as a person with few true friends and someone who genuinely liked Mr A. There are no factors that lessen moral culpability.

DELAY

27. There was a delay prior to the charging of the offender. His involvement was not known until Mr A was arrested on other matters and he provided induced statements. The offender provided a deliberately false version of his involvement with Mr A to police in his police statement concerning the detention made contemporaneous to his involvement in the drug supply. The offender did not volunteer his involvement in a drug supply as a possible reason for his subsequent abduction. The delay in charging the offender appears to be resultant from the need for the police to garner sufficient evidence arising out of the investigation into the offender. The Crown has listed seminal dates in written submissions. The Crown has referred to the matter moving slowly. For my part that presents as being informed by the delay before the police were aware of the offence, and then the investigation period. I do not accede to the offender’s submission that delay has been significant and that it is causative of uncertain suspense that should operate to the offender’s benefit. I note Counsel for the offender refer to the offender facilitating justice in participating in the expedition of the trial. I do not consider that the delay warrants any amelioration to sentence. I do not consider there is any benefit that should be extended to his engagement in the trial proceeding in a timely manner.

SUBJECTIVE CASE AND SENTENCING PRINCIPLES

28. The offender is now aged 54.

29. Despite the offer to plead guilty as part of charge negotiations to the offence for sentence, the plea was not repeated in this Court. The offender ran a positive defence and gave evidence lacking in credibility and rejected by the jury. In the face of this approach, Counsel for the offender sought that the Court determine the existence of genuine remorse warranting amelioration to sentence. This submission is problematic. The offender has not expressed remorse and nor is there evidence of any insight. Although I acknowledge the offer to plead guilty, this alone does not reflect remorse particularly when it was not sustained or acted upon. Given the sworn evidence denying the offence any offer of a plea is to be regarded as a plea of convenience. It is either that or he did acknowledge his guilt, and he thereafter perjured himself.

30. The offender has limited entries on his criminal history. His record entitles him to leniency. This does not equate with unblemished good character. The offender was a regular user of cocaine and therefore a person who regularly breached the criminal law. He referred his friends to Mr A so that they too could purchase cocaine from him. The offender also wilfully and deliberately lied to police about his relationship with Mr A when providing his statement to police about the kidnapping.

31. I am assisted by a Sentencing Assessment Report. Therein the offender maintains his innocence in advancing he had no prior knowledge of the offending that he is to be sentenced for. He maintained part of the quite ludicrous assertion that he gave in evidence as to why he introduced Mr A to Mr Sotiropoulos. The author refers to contacting an ‘assessing forensic psychologist’ and that this person indicated the offender to have no current addiction issues. The responses addressing insight into the impact of the offending are confined to the impact to the offender. If sentenced to a community-based sentence it is proposed to send the offender for psychological intervention and the offender’s willingness to participate is noted. This is said to be geared towards providing assistance for the offender with his mental health in pending proceedings relating to his detention. The offender is formally assessed as falling in the medium-low risk of reoffending. This results in him being monitored in the community rather than supervised. There will be no face-to face reporting.

32. An order was made for the service by the parties of any evidence to be relied upon for sentence. The defence did not serve material and when expressly reminded Ms Doherty of Counsel advised there would be no evidence. Despite this unequivocal response the subsequent submissions by Ms Doherty foreshadowed that it was anticipated a ‘medical certificate’ would follow. Upon requesting this be served, the brief report of Dr Jeffrey Bertucen, Forensic Psychiatrist was furnished on 5 May 2025. This document is addressed, not to the Court but “to whom it may concern’. There is no indication the author prepared the document for court purposes. There is no attached curriculum vitae and nor is the required code of conduct acknowledgement that is required for expert reports. I approach this document as a record of notes of what the offender disclosed during a telephone conversation. Based only on this information conveyed by phone and his expertise as a psychiatrist, the opinion is offered that subsequent to the kidnapping the offender resorted to binge-drinking and he suffered significant described symptoms. I observe the offender already had problematic substance abuse issues with alcohol and cocaine prior to the kidnapping. Based on the offender’s account the opinion was proffered that the offender has suffered both PTSD and a comorbid major depressive disorder although both are in substantial remission [although prone to exacerbation at times]. The alcohol use disorder is also in remission. The report does not contain any reference to historical cocaine use. Other than attending several sessions with a psychologist in 2021, the offender has not received medication or treatment. This opinion is relevant to the impact from the detention incident. It has no other impact on sentence such as lessening the importance of general deterrence or that ‘any’ sentence would weigh more heavily upon him. I accept that a custodial sentence may be more onerous.

33. On the evening of 6 May 2025 four testimonials were served. These are evidently also not compliant with the order of service. They are dated 13, 19 and 26 April 2025 and the fourth is undated.

34. The evidence suggests there is limited meaningful support available for the offender in the community. His partner at the time of offending, Maria O’Meagher, was not required to give evidence in the trial based on her objection and her evidence on the voir dire of their continuing de-facto relationship. Despite the evidence in the trial that she too was a recreational cocaine user there is nothing to suggest she is otherwise other than pro-social. I infer she is likely to provide some positive support. The offender told the psychiatrist that he retains the support of his adult son but not his adult daughter. The offender is on Jobseeker government support. He indicated in his evidence at trial that he is still involved in cricket coaching in some capacity. In the Sentencing Assessment Report, it is stated he engages in one-on-one coaching of 13–25-year-olds. There is no evidence of any particular routine as to how he occupies his time to bolster a pro-social environment.

35. David Stone, OBE, of London, described meeting the offender on several occasions since 2011. He mentioned the offender’s positive qualities in social or cricket environments. He described from these meetings his belief the offender was likely a recreational drug user. He thereafter immediately stated he rated the offender’s integrity as high. He anticipated the deleterious impact to the offender’s career from this criminal conduct.

36. Judge Peters KC, of the County Court judiciary in the United Kingdom, has held a number of non-executive positions in the cricket world. Through this involvement he met the offender in about 2016 and he described him as a friend. He reported his knowledge of the offender being a good coach and a mentor to aspiring cricketers.

37. Steve Waugh, AO, has known the offender since 1995 through their shared experiences playing cricket. He captained the Australian Cricket Team during the offender’s period as a player. He wrote of the offender’s background of knowledge that would place him in good stead in the future.

38. A further reference was provided in Court. Sara Longworth is a long-term friend and has known the offender in different circumstances. She speaks highly of his qualities and remains supportive.

39. He has abstained from drug use subsequent to his detention. The offender has been on conditional bail pending trial and post-verdict. Compliance does not inform rehabilitation in this case. I consider his prospects of not reoffending and of rehabilitation to be promising given that his trial and sentence is likely to operate as a salutary lesson. Even more poignant was the consequence to the offender of being detained and threatened. Given the absence of remorse or insight, personal deterrence continues to serve a restricted role.

40. General deterrence and retribution are important factors in drug related offences. I do not overlook the offence for sentence is inherently serious as evidenced by the maximum penalty. It is not victimless. There may be a perception that cocaine is a social and harmless drug. Certainly, referring to the evidence given in the trial by the offender’s then friends and acquaintances, their involvement in personal cocaine use was presented as akin to social consumption of alcohol. Drugs, even cocaine, cause direct and indirect harm to the community. Given the offender’s regular use over a number of years with the associated financial and health cost, he should well have understood the scope for harm. Counsel for the offender submitted that despite an acceptance of drugs being causative of harm in the community, the offender’s role was so minimal compared to that of other participants that it can be given less weight. To the extent this submission is understood it does not find favour. I have also made a finding on the offender’s role that does not accord with that advanced on his behalf. The submission of there being hundreds of customers of Mr A does not improve this offender’s position. This offender had ‘a single customer’ but it was of a different nature to Mr A’s usual business. The offender’s role and involvement were not trivial. Counsel’s submission about there being no evidence of the offender’s own use of cocaine entailing illegality and that the sentence should be informed by other State’s not criminalising personal use or possession is of no assistance.

41. Submissions on behalf of the offender were directed at the appropriateness of the imposition of a non-conviction bond. Counsel for the offender referred to the offender being employed coaching children and that a conviction would result in the cancellation of his certificate for working with children. I do not know this to be certain. The Crown submitted it was discretionary. To my understanding those convicted of sexual or violent offences may not obtain certification. I do not have an appreciation of how a conviction for knowingly taking part in drug supply may or will operate. The authors of one testimonial, Matthew Pell and Amanda Johnston-Pell, jointly related how in December 2024 they engaged the offender as a private coach for their 14-year-old son. I observe this was soon after the publicity of the first trial which reflects the preparedness of persons to still embrace the offender’s skill and expertise, described as being ‘exceptional’, and what may reflect potential opportunities for continued employment.

42. A conviction is required for the level of offending despite any persuasive aspects in the offender’s subjective case. For the reasons stated elsewhere, this is not a matter where it is appropriate for disposition without conviction.

43. Having considered all the possible alternatives, I am satisfied no penalty other than imprisonment is appropriate. I am satisfied that the risk of reoffending in a manner that may affect community safety would be better reduced by an ICO than full-time imprisonment.

SENTENCE

44. The offender is convicted.

45. After reducing the sentence in recognition of the offer of an early plea, with minor rounding down, the sentence imposed is one of 1 year and 10 months imprisonment. The sentence imposed is to be served by way of an intensive correction order. The offender must report to the community corrections office at St Leonards by telephone within 7 days.

46. The conditions of the order are that the offender must:

1. not commit any offence;

2. submit to supervision by a community corrections officer;

3. perform 495 hours of community service work;

4. participate in any psychological or psychiatric treatment recommended by community corrections;

5. engage in any drug abstention program or alcohol addiction program as directed by community corrections; and

6. provide urine samples or other samples that detect for illicit drugs as directed by community corrections.

47. If the offender fails to comply with the conditions of this order, sanctions may be imposed. Those sanctions may include a formal warning, imposing more stringent conditions or it may include revocation of this order. If the order is revoked the offender may be required to serve all or some of the period of the sentence in full-time custody.

COSTS

48. Counsel for the offender have made an application for costs at [42]-[46] of submissions on sentence. This application was first raised upon the return of the verdict.

49. This application was not supported by the expected formality of a Notice of Motion and supporting documentation. As far as understanding the ultimate order sought, there is an indication in the submissions that costs should be ordered. There is no affidavit identifying the evidentiary basis for the order sought. The submissions are pithy. This is of some significance given the onus to satisfy the court that costs should be granted lies on the applicant.

50. Although it is stated that the application is made pursuant to s.42 Legal Aid Commission Act 1979, this is a provision that aligns the entitlements of recipients of legal aid with those privately funded subject to discretionary considerations. This section is not irrelevant but is not the basis for an application.

51. There is no reference to the legislation that supports the application. I infer this application to be based on the Costs in Criminal Cases Act, 1967 [‘the Act’]. Application is assumed to be made for a certificate pursuant to s.2(1)(a) of the Act. The Crown has proceeded on the same assumption.

52. Section 3 of the Act governs the application:

53. A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate—

1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

54. “Relevant facts’ as defined in s.3A of the Act includes what is established from the proceedings and additional evidence relied upon by either party.

55. The first question is hypothetical in nature and viewed with the benefit of hindsight and equipped with knowledge of all the facts. The terms of the legislation make it clear that the bare fact of an acquittal is not sufficient. The test involves a consideration of the position as at the time of arrest or charging assessed in light of what was known or what became known throughout the proceedings.

56. The applicant no doubt relies on s.3(1)(a) of the Act. Neither party has addressed what is contained in s.3(1)(b) of the Act. Written submissions on the application indirectly address the terms of the relevant legislation. Brief reference is made to evidence.

57. I was oft reminded during the first trial that the three Counsel who appeared, on a direct brief access, were appearing pro-bono. No costs would have been incurred based on this arrangement. No costs would arise from the first trial.

58. At the second trial, I was informed there was a grant of legal aid to fund one solicitor and one barrister. I assume this application is sought in relation to these costs.

59. Counsel for the applicant submitted it was not reasonable to institute the proceedings for a large commercial quantity in light of the respondent’s ‘own’ evidence. This is a reference confined to the evidence at the second trial.

60. This application is informed by the verdict of the jury reflecting satisfaction of the applicant’s participation in the pleaded supply. The focus of the application is on the preferring of the more serious offence, and statutory alternative, relating to specific commercial quantities. The Crown has detailed aspects of the trial evidence supporting the establishment of the participation. Focus on these aspects is unnecessary other than to note there was no difference in the evidence called and relied upon to establish each count. Ultimately there was reliance on the credibility of Mr A to prove any of the three available offences. It was only through an acceptance of Mr A, and a satisfaction that the offender knew what quantity a brick referred to, that either commercial offence could be proven.

61. Counsel for the applicant have referred to the evidence at the second trial in which the primary witness, Mr A, indicated the conversation had only referred to a ‘brick’ and not a specific weight, such as a kilo. His evidence included, commencing at T.135.6:

Q. Was there any discussion as to how much, in terms of quantity?

A. We were talking about kilos, cause a brick is a kilo, so it's like an unspoken language.

Q. It's an unspoken language that a brick is a kilogram of cocaine?

A. Always.

Q. Is a brick not in loose form? Is there either a loose form or a brick form? Those are the forms that the cocaine comes in?

A. Yeah, like, the loose form, it doesn't look appealing to look at it. That's why I declined. It doesn’t mean that it's not good.

Q. On this occasion, he told you that it was a brick?

A. That's right.

62. During the first trial, at T 140.16 Mr A was asked:

Q. Did he tell you a quantity, a weight?

A. I don’t recall that it did but it was, we were speaking of kilo margin. We weren’t talking in ounces so I, from memory it would have been.

63. Mr A’s statement dated 20 April 2022 was tendered on the voir dire on tendency as part of VD6. At [15] Mr A stated:

When Stuart finally got back to me with all the information, it was that Marino was selling only in kilograms, which were $330,000 each.

64. The content of the statement, and the evidence at the first trial [allowing for Mr A’s evidence not having concluded at the time the jury were discharged] provides an evidentiary basis for the prosecution against the applicant on the principal count, and the first alternative count.

65. The account in the second trial provided evidence at a prima facie level that the applicant knowingly took part in the supply of a large commercial quantity. There was no application for a verdict by direction. It is of some significance that minimally less than a kilo may ultimately have been supplied but it is not determinative. There was an agreement to supply a ‘brick’. The Crown failed to satisfy the jury that the offender knew what quantity a brick referenced.

66. There was evidence that could have supported the principal charge at all times. The evidence in the second trial was not as clear and compelling as that contained in the statement. In essence, the witness did not come up to the contemplated level of proof. Although it may have been well known in the drug dealing community frequented by Mr A that a brick equated with a kilogram, the jury were evidently not satisfied that the applicant had this knowledge. This was a question of fact to be determined. The finding sought by the respondent was an available finding.

67. In addition to the suggested deficiency in the evidence of Mr A, the applicant relies on four further factors:

1. Extensive phone records are missing;

2. Extensive phone records were never obtained;

3. CCTV was never sought to be obtained; and

4. No map or floor plan was ever produced, contributing to the first mistrial.

68. I do not accept these matters to be of relevance in this application. The applicant was found guilty of being involved in a drug supply offence. There is no evidentiary basis to determine that any of this evidence would have been relevant to the offender’s knowledge of the commercial quantity involved.

69. The Crown has referred to a number of cases considering costs applications. The principles are well established and uncontroversial.

70. I note the Crown’s submission that the Crown Case Conference is not admissible in this application. That appears to accord with the legislation: s.78 Criminal Procedure Act 1986. In the event that this understanding is wrong, I have considered the matter including having an awareness of the offer to plead. There was a sound evidentiary basis to reject the plea offer and proceed on the principal and first alternative counts. It was open to the jury to be satisfied of the principal or first alternative count.

71. The applicant has failed to satisfy the court that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings.

68. I decline to grant the certificate.

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Decision last updated: 12 May 2025