Thompson v The King

[2023] NSWCCA 244

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Thompson v R [2023] NSWCCA 244

Hearing dates:

31 March 2023

Decision date:

06 October 2023

Before:

Beech-Jones CJ at CL at [1];
Hamill J at [30];
Ierace J at [31]

Decision:

(1)   Extend the time for filing the notice of appeal to 19 August 2022;

(2)   Grant leave to appeal against conviction;

(3)   Dismiss the appeal against conviction;

(4)   Grant leave to appeal against sentence;

(5)   Dismiss the appeal against sentence.

Catchwords:

CRIME – Appeals – Appeal against conviction – Conspiracy to import commercial quantity of cocaine – Whether miscarriage occasioned by asserted incompetence of legal representatives – Whether directions to jury inadequate – Whether trial judge erred by admitting evidence of prior drug importation as tendency evidence – Whether Crown elicited coincidence evidence without giving notice – Whether trial judge erred by declining to discharge jury after foreperson inadvertently provided draft submissions on exclusion of evidence – Whether trial judge erred by declining to discharge jury following closing address of co-accused

CRIME – Appeals – Appeal against sentence – Whether finding that applicant was a ‘principal’ in the conspiracy open on the evidence – Whether weight of imported drug treated as the primary sentencing consideration – Whether prior criminal record used to determine objective seriousness of offence – Whether life sentence manifestly excessive

Legislation Cited:

Commonwealth Constitution, s 80

Criminal Appeal Act 1912 (NSW), ss 5, 10

Criminal Code Act 1995 (Cth), ss 11.5, 307.1

Evidence Act 1995 (NSW), ss 97, 98, 101, 102, 103

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases Cited:

Fantakis v R [2023] NSWCCA 3

Geraghty v R [2023] NSWCCA 47

Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44

R v Barnard [2021] NSWDC 400

R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1

R v Gregory [2000] VSCA 212

R v Lembke [2020] NSWCCA 293

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v Pham (2015) 256 CLR 550; [2015] HCA 39

Taylor v R [2020] NSWCCA 355

The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32

Thompson v R [2007] NSWCCA 83

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Toller v R [2021] NSWCCA 204

Wongv The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Hamish Thompson (Applicant)
Rex (Respondent)

Representation:

Counsel:
In person (Applicant)
S Flood; M Rabsch (Respondent)

Solicitors:
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2017/37459

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Date of Decision:

28 February 2020

Before:

Zahra SC DCJ

File Number(s):

2017/37459

Decision Under Appeal

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Hamish Thompson, was convicted by a jury of conspiring with four co-accused, and others, between 1 January 2014 and 3 February 2017 to import a commercial quantity of cocaine contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for life with a non-parole period of 22 years.

The Crown case at trial was that the applicant participated in a single conspiracy which involved three separate attempts to import a border controlled drug into Australia. The first two attempts failed. On the third attempt, the applicant and an alleged co-conspirator, Mr Fries, departed New Zealand on a yacht (the Elakha) owned by the applicant. They rendezvoused with a mothership in international waters from which cocaine was transferred on board. Australian authorities intercepted the Elakha on 2 February 2017 and seized the cocaine which had a gross weight of 1.42 tonnes and an equivalent net (pure) weight of 1.11 tonnes.

The applicant sought to appeal against his conviction and the sentence imposed. He was not legally represented in the appeal proceedings.

The Court held (per Beech-Jones CJ at CL, Hamill and Ierace JJ), dismissing the appeals against conviction and sentence:

As to the conviction appeal

Ground 1: A miscarriage of justice occurred as a result of the incompetence of the applicant’s solicitor and barristers at and before the trial

1. It is concerning that the applicant’s first conference with his trial counsel, Mr Radojev, was a week before the trial commenced. However, the applicant’s instructing solicitor had retained counsel earlier who became unavailable and encountered difficulties in securing fresh counsel, which adequately explains why that occurred: Ierace J at [209]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

2. The explanation given by the applicant’s counsel that, in his assessment, there was no point in cross-examining the Federal Agents leading the investigation into the conspiracy beyond the limited extent that he did was a rational forensic decision that was within counsel’s discretion: Ierace J at [210]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, referred to.

1. The applicant’s counsel withdrew from the trial during his application for a discharge of the jury, after he had completed his submissions on that subject, knowing that co-counsel would not be immediately available to take his place. It fell to his instructing solicitor to appear for the applicant for the balance of the discharge application and the closing address by counsel for a co-accused. The conduct the applicant’s counsel was professionally unsatisfactory but did not give rise to a miscarriage of justice: Ierace J at [213]-[216]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing with additional observations at [30].

Fantakis v R [2023] NSWCCA 3; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered.

1. The applicant’s instructing solicitor briefed another barrister to represent the applicant at the sentence proceedings, who had appeared for a co-accused at the trial. That did not give rise to a conflict of interest and no potential conflict was identified by the applicant: Ierace J at [211]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

2. The applicant complained that his trial counsel ignored his written instructions to make the trial judge aware of his concerns about what he termed the “one verdict rule” and to refer to specific parts of his evidence in the closing address. Those matters are within the discretion and responsibility of counsel: Ierace J at [212]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

Ground 2: The trial judge’s directions on conspiracy were inadequate to ensure that the applicant was not found guilty of a conspiracy different to that charged in the indictment

1. The trial judge did not err in the terms of the direction given to the jury. The jury were directed that unless the Crown disproved the applicant’s account of a separate conspiracy beyond reasonable doubt then all the accused must be acquitted. The direction did not disadvantage the applicant: Ierace J at [221]-[224]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32, considered.

Ground 3: The trial judge’s directions on conspiracy were inadequate to ensure that the applicant was not found guilty of a conspiracy that was different to that charged in the indictment

1. The directions given by the trial judge to the jury stipulated how they were to consider evidence of criminal agreements that were unrelated to the charged conspiracy. They ensured the jury only considered the evidence relevant to the charged conspiracy in determining their verdict in respect of each accused: Ierace J at [227]-[230]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

Ground 4: The trial judge erred in allowing use of ‘tendency evidence’ against the applicant, which was ‘highly prejudicial’

1. The evidence of a prior conviction of the applicant in 2001 for a drug importation offence was admissible as tendency evidence. With appropriate directions to the jury, its probative value satisfied the test imposed by s 101 of the Evidence Act 1995 (NSW) of substantially outweighing its prejudicial effect, as that test was at the time of the application, to exclude the evidence before the trial judge: Ierace J at [257]-[264]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

Geraghty v R [2023] NSWCCA 47; Taylor v R [2020] NSWCCA 355; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, considered.

Ground 5: The trial judge erred in allowing the Crown to cross-examine the applicant on the specific tendency evidence and to introduce coincidence reasoning without lodging a coincidence notice of intent

1. The applicant‘s evidence at trial was that Mr Fries did not know about the plan for the Elakha to receive the cocaine until shortly before it occurred. The applicant was cross-examined as to the similarity between that account and the version of events he had advanced in the trial at which he was convicted of the 2001 importation offence with a Mr Bateman. Testing the applicant’s version by establishing the improbability of the applicant behaving in the same way to Mr Fries as he claimed Mr Bateman did to him in relation to the 2001 importation did not involve coincidence reasoning, because it did not involve an assessment of whether it was improbable that the two events occurred coincidentally, but an assessment of the veracity of the applicant’s evidence about his conspiracy with Mr Bateman: Ierace J at [265]-[272]; Beech-Jones CJ at CL agreeing with additional observations at [1]; Hamill J agreeing at [30].

Ground 6: The trial judge erred when he directed the jury as to the nature of the applicant’s defence

1. The trial judge fairly and comprehensively summarised the applicant’s case. The jury were directed that they were obliged to consider the applicant’s case separately, including his contention of a separate conspiracy with Mr Bateman. If the Crown failed to disprove that theory beyond a reasonable doubt, the jury was directed to acquit the applicant: Ierace J at [277]-[280]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

Ground 7: The trial judge erred in failing to identify to the jury potentially prejudicial evidence that was not admissible against the applicant

1. The applicant identified four specific items or classes of evidence that he asserted the trial judge failed to identify as being inadmissible against him. This ground is not made out having regard to the directions given to the jury by the trial judge: Ierace J at [283]-[287]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

Ground 8: A miscarriage of justice occurred as a result of the trial judge failing to discharge the jury in circumstances where draft written submissions on the exclusion of a record of interview of a co-accused had been provided to the jury

1. A single document of draft written submissions concerning the exclusion of a police interview of a co-accused was inadvertently provided to the jury foreperson on the second day of trial. The trial judge discharged the jury foreperson but declined to discharge the whole jury, finding there was no opportunity for other jurors to become aware of the contents of the document. There was no error identified in the reasoning of the trial judge: Ierace J at [288]-[294]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

Ground 9: A miscarriage of justice occurred as a result of the trial judge failing to discharge the jury in circumstances where the closing address of counsel for the co-accused Mr Majdalawi included submissions that were prejudicial to the applicant

1. The applicant has not identified any error in the trial judge’s reasoning in rejecting the discharge application. His Honour found the address of counsel for the co-accused Mr Majdalawi did not improperly or unnecessarily undermine the cases of the co-accused and directed the jury that the closing addresses of counsel are not evidence: Ierace J at [299]-[305]; Beech-Jones CJ at CL agreeing at [1]; Hamill J agreeing at [30].

As to the sentence appeal

Ground 1: The sentencing judge’s finding of fact that the applicant was a principal was not open on the evidence

1. The sentencing judge’s findings, reasoning and the evidence cited more than justifies a finding that the applicant was a “principal” in the sense of being responsible for the (sophisticated) logistics of transporting a prodigious quantity of cocaine across a vast distance of ocean: Beech-Jones CJ at CL at [14]; Hamill J agreeing at [30]; Ierace J agreeing at [37].

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, referred to.

Ground 2: The sentencing judge erred by treating the weight of the drug as the primary sentencing consideration

1. The manner in which the sentencing judge took into account the weight of the drug was consistent with the approach in Wong v The Queen (2001) 207 CLR 584. Further, in the circumstances of the case, the applicant must have known from the outset that a very large quantity of drugs was to be collected, even if he did not know the precise quantity: Beech-Jones CJ at CL at [16]-[19]; Hamill J agreeing at [30]; Ierace J agreeing at [37].

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, considered.

Ground 3: The sentencing judge erred by taking the applicant’s previous record into account as a circumstance of aggravation that resulted in a higher sentence

1. The sentencing judge did not consider the applicant’s criminal record in determining the objective seriousness of the offence, although his Honour found that the commission of the offence while on parole was a “significant aggravating factor”. His Honour also found that “[s]pecific deterrence is a matter to be given substantial weight”. There was no error on the part of his Honour in making either finding: Beech-Jones CJ at CL at [20]-[22]; Hamill J agreeing at [30]; Ierace J agreeing at [37].

Ground 4: The sentence imposed on the applicant was manifestly excessive

1. The imposition of a life sentence was almost inevitable given the scale and brazen nature of the criminality involved and the applicant’s previous criminal record. The non-parole period afforded a significant measure of leniency. The effect of pandemic restrictions imposed after sentence is not relevant to establishing error on the part of the sentencing judge: Beech-Jones CJ at CL at [23]-[28]; Hamill J agreeing at [30]; Ierace J agreeing at [37].

Toller v R [2021] NSWCCA 204, referred to.

JUDGMENT

1. BEECH-JONES CJ at CL: I have had the advantage of reading the judgment of Ierace J addressing the application for leave to appeal against conviction. I agree with the orders proposed by his Honour and the reasons for those orders. In relation to ground 5, even if one accepts that there were two “events”, being the applicant testifying to his version of events surrounding his participation in a conspiracy to import drugs in 2000 and his testifying to the version of events he gave in relation to the conspiracy the subject of this appeal, evidence of those two events was not admitted or adduced to prove either that the applicant “did a particular act or that he had a particular state of mind” (cf Evidence Act 1995 (Cth), s 97(1)). Instead, the evidence of the version of events given by the applicant in defence of a charge that he was a participant in a conspiracy to import drugs in 2000 was adduced in cross‑examination in an endeavour to undermine the credibility of the version of events he gave in relation to the conspiracy the subject of this appeal. The adducing of that evidence was not precluded by either the “coincidence rule” (s 98) or the “credibility rule” (ss 102 and 103).

Application for Leave to appeal against Sentence

2. On 28 February 2020, Zahra SC DCJ published detailed reasons for imposing sentence on Kevin Geraghty, Yahay Majdalawi, the applicant and Glen Willcox. His Honour convicted the applicant of one count of conspiring to import a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). His Honour sentenced the applicant to life imprisonment with a non-parole period of 22 years commencing on 2 February 2017. Subject to any intervention by this Court, he is first eligible for release on parole on 1 February 2039.

3. As noted by Ierace J, the applicant seeks leave to appeal from the sentence imposed (Criminal Appeal Act 1912 (NSW), s 5(1)(c)). He makes various complaints about the sentences which correspond to the four grounds of appeal that are addressed below.

The Sentencing Judgment

4. The sentencing judgment is divided into four parts. In Part A, his Honour described the scope of the conspiracy and set out the background to the offending, the substance of which is set out in the judgment of Ierace J. In Part B, his Honour made various findings about the nature and objective seriousness of the offending by the four offenders. In Part C, his Honour addressed each of their subjective cases. In Part D, his Honour addressed the structure and length of the individual sentences to be imposed. Given the focussed grounds of appeal and absence of any complaint by the applicant of a lack of parity, it is only necessary to note the sentencing judge’s findings concerning the applicant before addressing the grounds of appeal.

5. In Part B, his Honour found that the three attempts to import a border-controlled drug over the period of January 2014 to January 2017 were part of “one continuing conspiracy”. His Honour considered both the objective gravity of the overall conspiracy and role of each offender. In relation to the former, his Honour found the objective gravity of the offending to be of the “highest order”. His Honour noted that the pure weight of the cocaine the subject of the conspiracy was 1.11 tonnes, being more than 556 times greater than the threshold for a prescribed commercial quantity. His Honour found that it had a value of somewhere between AUD $418 million and $1.225 billion if sold in one-gram amounts, and between AUD $366 million and $475 million if sold in one-kilogram amounts. His Honour also noted that the drugs did not reach Australia, although the object of the conspiracy was close to being realised. His Honour found that the conspiracy was sophisticated and took place over a considerable period of time. No other finding was reasonably open.

6. His Honour found that the applicant “played a principal role in advancing the purposes of the conspiracy”, that he had participated in the conspiracy “from the time of its commencement to the time the drug was seized on 2 February 2017” and that “[i]t could not be said that [the applicant] was engaged in or directed only to transport the drug.” Although his Honour found that the communications between Mr Geraghty and the applicant “over the extended period of the conspiracy” supported a conclusion that they acted in “partnership”, his Honour was satisfied that “the steps undertaken by Mr Geraghty and his overall management of every aspect of the importation place[d] his role significantly above that [of the applicant]”. His Honour accepted there was no evidence that the applicant was to be involved in the distribution of the drugs in Australia, although he was to receive “a considerable financial benefit from the distribution of the drug in Australia”. His Honour found that the applicant “would have been well aware of the quantity of cocaine involved” when it was loaded onto his trawler (the Elakha). His Honour concluded:

“[The applicant’s] conduct in furthering the conspiracy to import a border controlled drug into Australia of such a large scale places his offending at the upper range of objective seriousness. I am of the view that whilst the role of Mr Geraghty was greater than that of [the applicant], the objective seriousness of Mr Thompson’s conduct also falls within the highest band of objective seriousness for offences of this kind.

The sentence to be imposed must have strong elements of specific and general deterrence.” (emphasis added)

7. As noted, in Part C his Honour addressed the applicant’s subjective case. At the time of sentencing the applicant was 66 years old. He is now 70 years old. He had prior convictions for drug importation and supply offences, most notably his conviction following his plea of guilty to being knowingly concerned in the importation into Australia of not less than the commercial quantity of cocaine, being approximately 383 kilograms of cocaine, between 1 June 1999 and 1 February 2000 (Thompson v R [2007] NSWCCA 83). The circumstances of that offence are outlined in the judgment of Ierace J at [239]. For that offence, the applicant was sentenced to a term of 20 years and 6 months imprisonment with a non-parole period of 13 years. That non-parole period expired on 31 January 2014, which was around 10 months before he joined the conspiracy the subject of these proceedings.

8. The sentencing judge noted there was no evidence that the applicant suffered from any mental illness or cognitive impairment. His Honour noted various assertions made by the applicant whereby he accepted responsibility for his conduct, but ultimately found it “difficult” to give weight to those statements and assess his prospects of rehabilitation. His Honour accepted the applicant presented a low risk of reoffending but only reached that conclusion because of the “advanced age” he would reach upon his release in 2039. Apparently, in 2019 the applicant learned via DNA testing that he had a daughter who had three children of her own. His Honour accepted that his separation from his family, especially his daughter and her children, would cause hardship while in custody.

9. In Part D, His Honour addressed whether to impose a life sentence on the applicant (and Mr Geraghty), stating as follows:

“The Crown case on sentence included material indicating the cocaine intercepted here, historically, is the largest quantity of cocaine seized in the course of importation into Australia. Consistent with the authorities to which I have referred, this fact alone does not of itself mean that the offending therefore falls within the worst case. Caution should be exercised to ensure that undue or disproportionate weight is not given to the quantity of drug involved. A mathematical approach should not be taken.

The fact remains however that the quantity of drug is a substantial factor in determining the scale of the operation here and whether the offending falls within the worst case. Here, the substantial scale of operation is not only identified by the volume of drug and the potential harms, it is also identified by the level at which Mr Geraghty and [the applicant] operated within the conspiracy and the scale of the operation itself. The conspiracy depended upon a high level of association with foreign nationals or international syndicates who were trafficking in drugs on an enormous scale. Access and control of such large quantities would be the domain of those operating towards the top of the international drug trade. The ability to deal with international traffickers operating at this level would in itself indicate a degree of proficiency. This was no mere unsophisticated operation. The conspirators were able to enter into an arrangement that depended upon members of the conspiracy being able to negotiate with international drug traffickers. The conspirators were able to have delivered to them a substantial amount of drug of considerable value from international drug traffickers without providing payment or security. This could not have been achieved unless those international traffickers had a level of trust, and belief, in the competence of those who would be entrusted with their drug. They would not have done so unless they were confident the conspirators here were competent and able to operate without detection.

…

[The applicant] served a sentence of thirteen years before being admitted to parole. It is difficult to understand why Mr Geraghty and [the applicant] engaged in such high level criminality not long after release from gaol after serving such lengthy terms of imprisonment relating to the importation of drugs. Only a period of some ten months had passed from the time [the applicant] left gaol to the time he entered the conspiracy here.

…

[The applicant] proceeded indifferently on a balancing of risks where the harm to the community provided little inertia. He has little insight into the enormity of his offending. Specific deterrence is a matter to be given substantial weight in both cases. Additionally, the need for general deterrence here has a tendency to overwhelm all other factors. I propose to sentence Mr Geraghty and [the applicant] to life imprisonment.”(emphasis added)

10. Even though a life sentence was imposed, the sentencing judge determined to set a non-parole for the applicant and Mr Geraghty. His Honour accepted that the non-parole period “may not adequately reflect the purposes of sentenc[ing] for offending of such a large scale” but stated that it nevertheless “reflects a moderating or a mitigation of sentence based upon each offender’s age and the recognition of the attendant hardship in serving a sentence of imprisonment as they advance in age”. The applicant will be nearly 86 years of age when he will first be eligible for release on parole.

Ground 1: Finding that the Applicant was a “principal”

11. The applicant’s written submissions contended that the sentencing judge “erred in dealing with the nature and degree of the [applicant’s] involvement in the common design conspiracy identifying the [applicant] as a Principal”. ^[1]

    1. Appellant’s submissions at 23.1.

12. Although the applicant’s submissions are difficult to follow, in essence, he contends that the proper characterisation of his role was that of a “transporter, part of a 3 tier transport system across the Pacific… [and] a warehouser used as a middleman to meet the mothership south of Tonga”. He submitted that he had “no input” into the sourcing of the drugs, “was not given any information on the totality of the load” and “had no input in the distribution of the drug”. Much of the applicant’s submissions in support of this ground refer to the evidence given by him at trial, even though it follows from the jury’s verdict that it was largely, if not completely, rejected.

13. His Honour’s finding that the applicant was a “principal” needs to be placed in the context of the reasoning that supported it, including the following:

“The evidence establishes that [the applicant] played a principal role in advancing the purposes of the conspiracy to import a substantial quantity of border controlled drug into Australia. [The applicant] purchased the Elakha in early 2014. Whilst it cannot be concluded that the vessel was purchased for the purposes of putting into effect the object of the conspiracy, nevertheless the vessel he owned had the capacity to transport vast quantities of drug[s]. Whilst the images of the drug on board the vessel would suggest the drug occupied a substantial area below deck, the vessel was more than capable of transporting this quantity of drug across the Pacific. Further, the vessel was effective for the purposes that it was intended, particularly once communications and navigation systems were installed.

…

It could not be said that [the applicant] simply was engaged in or directed only to transport the drug. The movements of the Elakha required particular organisational skills and an understanding of what logistical support was required. To simply suggest that [the applicant] was little more than a courier or transporter of the drug belies the fact that there is a substantial body of evidence in the form of intercepted communications that support a conclusion [that the applicant] adopted an organizing role; that he engaged frequently with Mr Geraghty in planning; that they discussed the failures of the first two attempts and that they discussed provisioning of the vessel and recruitment of crewmembers... [Counsel for the applicant] submits that at all times [the applicant] was acting at the direction of Mr Geraghty and was not involved in ‘executive decisions’. I do not accept this description of [the applicant’s] role. The numerous intercepted communications between Mr Geraghty and [the applicant] enabled the exchange of information concerning the readiness of the Elakha and the movements of the Elakha during the period of the conspiracy. The readiness of the Elakha and the ability of [the applicant] to provide and navigate the vessel were central to the successful implementation of the object of the conspiracy. The intercepted conversations demonstrate extensive involvement in detailed planning for the importation of the drug into Australia. The conclusion that [the applicant] played an organisational and planning role is also supported by the frequent journeys by Mr Majdalawi and Mr Willcox to New Zealand to meet with [the applicant]. [The applicant] also undertook other international travel in furtherance of the conspiracy, including travelling to Turkey in June 2014 at a time when Mr Majdalawi was in Turkey. It can be inferred that the purpose of this journey was to meet with those who had the capacity to source and procure drugs for the purposes of importing the drug into Australia. Significantly, Mr Willcox immediately travelled to meet with [the applicant] in New Zealand after Mr Willcox travelled to Vietnam to meet with those who would source the drug that was ultimately seized on the Elakha on 2 February 2017. The content of documents in the possession of Mr Willcox, that were inspected by Border Force officers when he returned to Sydney, support a conclusion that Mr Willcox and [the applicant] discussed the planning for the rendezvous between the mothership and the Elakha.” (emphasis added)

14. This discussion of the applicant’s role as a “principal” also needs to be considered with the other findings noted above, namely that it was not envisaged that he would be involved in the distribution of the drugs in Australia and that Mr Geraghty occupied a more senior role. The sentencing judge’s findings, reasoning and the evidence cited more than justifies a finding that the applicant was a “principal” in the sense of being responsible for the (sophisticated) logistics of transporting a prodigious quantity of cocaine across a vast distance of ocean. He was no “mere courier” in the sense of being a transporter of drugs on his person, but was rather “a person involved in the act of importation of narcotic goods in a way more closely concerned with an organisation that provided the chain through which the goods would pass from their initial cultivation and preparation to their destination in the Australian market ([i.e.] a principal)” (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [46]).

15. I would reject ground 1 of the sentence appeal.

Ground 2: Reliance on Weight of the Drug

16. The applicant’s written submissions contend the sentencing judge “erred in sentencing the [applicant] on the weight of the drug as a chief factor”. ^[2] The applicant’s submissions contended that “[t]o treat the weight of the narcotic as the chief factor in fixing sentence without taking into account the many and contradictory elements which bear upon sentencing an offender represents a departure from fundamental sentencing principle” (citing R v Pham (2015) 256 CLR 550; [2015] HCA 39 at 562; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 611; “Wong”).

    2. Applicant’s submissions at 33.1.

17. The manner in which the sentencing judge took into account the weight of the drug is set out in the above passage (at [9]). That discussion is consistent with Wong. Any doubt that the sentencing judge acted in accordance with the approach in Wong is dispelled by the following passage from the sentencing judgment:

“In Wong… the High Court noted that the weight of the narcotic drug imported was not the most important factor to be considered when fixing a sentence. The size of the importation is however a relevant factor to which the sentencing court must have regard and has increased significance when the offender is aware of the amount of drugs imported. The greater the quantity of drug imported, the greater the potential for harm to the Australian community. It is also an indicator of the intended size of the profit anticipated.

In Wong the majority of the High Court observed at [64]:

‘In general, however, the larger the importation, the higher the offender’s level of participation, the greater the reward the offender hopes to receive, the heavier the punishment that would ordinarily be exacted.’”

18. Some parts of the applicant’s submissions also take issue with the sentencing judge’s finding that the applicant was aware of the amount of the border-controlled drug to be imported. His Honour found that, when the applicant witnessed the cocaine being loaded, he would have realised the approximate weight of the drug. Given that it was the applicant’s trawler, the fact that he was a very experienced sailor and the “images” of the drugs onboard (noted above at [13]), that inference was well open. Further, given that a trawler was being used as well as the lengthy period and sophistication of the conspiracy, the applicant must have known from the outset that a very large quantity of drugs was to be collected, even if he did not know the precise quantity.

19. I would reject ground 2 of the sentence appeal.

Ground 3: The Applicant’s Prior Criminal Record

20. In one set of his written submissions, the applicant contended as follows:

“Prior criminal record cannot be taken into account when determining the objective seriousness of an offence. A prior record does not have the effect of aggravating the offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community.”

21. It is not clear whether this statement of orthodoxy was meant to imply that the sentencing judge erred in considering the applicant’s prior criminal record or was merely included as a matter for the Court to consider when assessing the contention that the sentence was manifestly excessive (or perhaps in the event of resentencing). In any event, the sentencing judge acted in accordance with the above statement. His Honour did not consider the applicant’s criminal record in determining the objective seriousness of the offence, although his Honour found that the commission of the offence while on parole was a “significant aggravating factor”. His Honour also found that “[s]pecific deterrence is a matter to be given substantial weight” in the applicant’s (and Mr Geraghty’s) case. There was no error on the part of his Honour in making either finding.

22. I would reject this “ground” of appeal.

Ground 4: Manifest Excess and Pandemic Restrictions

23. The various iterations of the applicant’s submissions identified a number of mitigating circumstances relied on to support his sentence appeal, namely his age, ^[3] comparable cases, ^[4] hardship in custody (including COVID restrictions) and the effect on his family. All of these matters, save for the effect of pandemic restrictions, were considered by the sentencing judge. It follows that such matters only arise in the context of considering a contention that the overall sentence imposed was manifestly excessive.

    3. Applicant’s submissions at 38.

    4. Applicant’s submissions at 39.

24. The approach to be taken by appellate courts when addressing a complaint that a sentence is either manifestly excessive or manifestly inadequate was set out by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

“As was said in Dinsdale v The Queen, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out in Wong [at [58]], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.” (citations omitted)

25. The application of this principle can be dealt with relatively briefly. The applicant’s complaints about the sentencing judge’s findings in relation to his role and objective seriousness of the offending have already been addressed. His Honour’s findings were well open. As noted, the applicant also pointed to various subjective matters as justifying the conclusion that the sentence was manifestly excessive. Consideration of the applicant’s age, which carries a likelihood that he will not see another day of freedom, “cannot be permitted to justify the imposition of an unacceptably inappropriate sentence” (R v Gregory [2000] VSCA 212 at [21]). The same position pertains with the applicant’s separation from his family and what was known about his health. If ever there was a case where general and specific deterrence dominated the sentencing exercise, it was this one. To the extent that reliance may be placed on supposedly comparable cases, such as R v Lembke [2020] NSWCCA 293 and R (Cth) v Barnard; R (Cth) v Bishell [2021] NSWDC 400, it suffices to state there are none that involved the transportation of this much cocaine as part of a conspiracy over such a sustained period with someone not only at the applicant’s level but also with a criminal history that included a drug importation offence of a similar magnitude.

26. The imposition of a life sentence in the applicant’s case was almost inevitable given the scale and brazen nature of the criminality involved and his previous criminal record. As acknowledged by the sentencing judge, the non-parole period imposed did not properly reflect the outcome of the sentencing exercise. Instead, it afforded a significant measure of leniency and offers the applicant the possibility of release before he dies. No matter how much weight could have been properly attributed to the subjective factors pointed to by the applicant, it could not justify a lesser sentence than was imposed. The sentence imposed was not manifestly excessive.

27. As for the effects of pandemic restrictions, the sentence was imposed on 28 February 2020, being a time when the coming scale of the pandemic was largely unrecognised and when no prison lockdowns had occurred yet. Not surprisingly, no submission was made to the sentencing judge about the possibility that the applicant might suffer hardship in custody on account of pandemic restrictions. In those circumstances, the effect of restrictions imposed after sentence is not relevant to establishing error on the part of the sentencing judge (see Toller v R [2021] NSWCCA 204 at [23]−[25]).

28. I would reject ground 4 of the appeal.

Proposed Orders in relation to Sentence Appeal

29. I propose that the applicant be granted leave to appeal against sentence but the appeal be dismissed.

30. HAMILL J: I have read the draft judgment of Ierace J concerning Mr Thompson's appeal against his conviction and agree that each of the grounds advanced by Mr Thompson should be rejected. I agree with his Honour's reasons. I also agree with the brief additional observations of the Chief Judge concerning ground 5. As to ground 1, I accept the genuineness of Mr Thompson's anxiety as to counsel's departure from the trial before the summing up given the complexity of the evidence in the case and the seriousness of the charge that Mr Thompson faced. On the evidence before the Court, I do not accept that Mr Little was truly a "co-counsel" in the matter and, in spite of the difficulties confronted by counsel when the trial exceeded its estimate, I agree with Ierace J that the situation was not satisfactory. However, no miscarriage of justice resulted from this regrettable turn of events; the summing up was fair and balanced, and comprehensively put the true issues before the jury. As to the application for leave to appeal against the sentence, I agree with the orders proposed by Beech-Jones CJ at CL and with his Honour's reasons for favouring those orders and for rejecting each of the grounds advanced. Where necessary, leave to appeal should be granted but the appeal against both the conviction and the sentence must be dismissed.

29. IERACE J: On 4 February 2019, the applicant stood trial with four co-accused in the District Court before his Honour Judge Zahra SC (the trial judge) on an indictment with a single count, that between about 1 January 2014 and about 3 February 2017, at Sydney and elsewhere, the accused conspired with each other, Valentino Fries and others to import a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth).

30. The applicant’s four co-accused were Kevin Geraghty (Mr Geraghty), Yahay Magdalawi (Mr Majdalawi) ^[5] , Glen Willcox (Mr Willcox) and David Wren (Mr Wren). A sixth alleged conspirator, Valentino Fries (Mr Fries), was initially indicted with the others and granted a separate trial by the trial judge.

    5. Mr Magdalawi was indicted as “Yahay (aka John) Magdalawi (aka Majdalawi)”. He was referred to by the trial judge as Mr Majdalawi and for that reason is referred to by that name in this judgment.

31. The maximum penalty for the offence is life imprisonment and/or a fine of 7,500 Commonwealth penalty units. The gross weight of the cocaine that was the subject of the charge was 1.42 tonnes and its net (pure) weight equivalent was 1.11 tonnes. A commercial quantity is 2kg of pure cocaine.

32. On 13 June 2019, the jury returned verdicts of guilty in respect of all accused except for David Wren, who was acquitted. In his subsequent trial, Mr Fries was also acquitted.

33. On 28 February 2020, the applicant was sentenced to a term of imprisonment for life with a non-parole period of 22 years, backdated to commence on 2 February 2017, which was the date that he was arrested and taken into custody. His non-parole period will expire on 1 February 2039.

34. The applicant, who is not legally represented in the appeal proceedings, seeks leave to appeal against his conviction and sentence. The bases for his appeal are expressed in voluminous and discursive hand-written submissions, which the applicant supplemented with oral submissions at the hearing of the appeal.

35. As to the applicant’s application for leave to appeal against his sentence, I have had the benefit of reading the judgment of the Chief Judge at Common Law, with which I respectfully agree.

36. The respondent has distilled the substance of the applicant’s complaints as to his conviction into the nine grounds of appeal. At the hearing, the applicant confirmed he did not object to the Crown’s formulation of his grounds, which are as follows:

1. A miscarriage of justice occurred as a result of the incompetence of the applicant’s solicitor and barristers at and before the trial.

2. The trial judge erred by directing the jury in a way that meant it did not give separate consideration to the applicant’s defence case.

3. The trial judge’s directions on conspiracy were inadequate to ensure that the applicant was not found guilty of a conspiracy different to that charged in the indictment.

4. The trial judge erred in allowing use of ‘tendency evidence’ against the applicant, which was ‘highly prejudicial’.

5. The trial judge erred in allowing the Crown to cross-examine the applicant on the specific tendency evidence and to introduce coincidence reasoning without lodging a coincidence notice of intent.

6. The trial judge erred when he directed the jury as to the nature of the applicant’s defence.

7. The trial judge erred in failing to identify to the jury potentially prejudicial evidence that was not admissible against the applicant.

8. A miscarriage of justice occurred as a result of the trial judge failing to discharge the jury in circumstances where draft written submissions on the exclusion of the co-accused Mr Willcox’s record of interview had been handed to the jury.

9. A miscarriage of justice occurred as a result of the trial judge failing to discharge the jury in circumstances where the closing address of counsel for the co-accused Mr Majdalawi included submissions that were prejudicial to the applicant.

39. At the hearing of the appeal, the applicant sought to read three affidavits which had been sworn by him on 3 March 2022 (the first affidavit), 28 June 2022 (the second affidavit) and 28 October 2022 (the third affidavit). The Crown objected to the admission of a portion of the first affidavit and the entirety of the third affidavit and an annexure to it as evidence. The Court received the material as further written submissions by the applicant, with the parties’ consent, to be taken into account with other written submissions that were filed by the applicant.

40. The respondent read relied upon the following affidavits which relate to the first ground of appeal, which were read without objection:

1. An affidavit of Alex Radojev, who was co-counsel for the applicant at trial, affirmed on 5 March 2023;

2. An affidavit of Gregory Goold, who was Mr Radojev’s instructing solicitor, affirmed on 6 March 2023;

3. An affidavit of Rory Thomas Macken, affirmed on 13 March 2023.

41. At the hearing, the applicant gave evidence and was cross-examined. Mr Radojev and Mr Goold were made available and were cross-examined by the applicant.

Application for extension of time

42. The applicant filed a notice of intention to appeal on 11 March 2020, which expired on 28 June 2021. On 19 August 2022, the applicant sought leave to file his notice of appeal out of time.

43. The delay in filing the notice of appeal was explained by the applicant in his affidavit of 28 June 2022. He deposed that he believed his then-solicitor would extend the notice of intention to appeal. Instead, around December 2021, the solicitor provided a merit advice in respect of the conviction and sentence appeals from Senior Counsel. The applicant disagreed with the advice and withdrew his instructions.

44. Section 10(1)(b) of the Criminal Appeal Act 1912 (NSW) permits the Court to extend time for the bringing of an appeal which is otherwise out of time. Rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) also provides the Court with a discretion to grant leave out of time.

45. The respondent did not oppose the application for the extension of time, noting in written submissions that there is a community interest in the finality of proceedings; there is no direct victim in this matter; and that the applicant has provided a reason for delay. I would propose to grant the extension sought.

The Crown case

46. In August 2014, the Australian Federal Police (the AFP) and international agencies commenced an investigation into a conspiracy between the applicant, his four co-accused and Mr Fries (the suspects), who were believed to be engaged in an agreement to import a commercial quantity of border controlled drug into Australia by sea. It was the Crown case that the conspiracy commenced on or about January 2014 and culminated just before midnight on 2 February 2017 when a sailing yacht, the Elakha, was boarded by the Australian Navy, Border Force officers and members of the AFP when it was about 210 nautical miles east of the New South Wales coastline.

47. It was the Crown case at trial that the accused entered into a single conspiracy to import a border controlled drug into Australia which involved three separate attempts to do so. The first two attempts failed and the third attempt was only frustrated by the intervention of the authorities with the boarding of the Elakha.

48. The three attempts, or “phases”, occurred between the following dates:

1. January 2014 to November 2014;

2. April 2015 to April 2016;

3. January 2017 to February 2017.

49. It was the Crown case that all the three attempts involved the same strategy and methodology. A quantity of cocaine was to be procured and placed on board the Elakha which was then to be sailed to an agreed location off the New South Wales coast. A motorboat, The Fredd S, which was based in the south coast of New South Wales, would rendezvous with the Elakha at the prearranged location, receive the cocaine and return to the mainland.

50. The Elakha was purchased by the applicant on 4 December 2013 and was registered in his name. The sole crew member on the Elakha during the second and third journeys was Mr Fries, who is a dual Swiss/Fiji national and an experienced mariner. The Fredd S was owned by Mr Willcox and stored at a training centre of the Maritime Union of Australia (MUA) at St George’s Basin. Mr Wren was, at the time, the caretaker of the MUA facility.

Overview of the three attempts to import a border controlled drug

The first attempt (between January 2014 and November 2014)

51. Between 28 January 2014 and 10 February 2014, the applicant travelled from New Zealand to Columbia. On two occasions in early 2014, Mr Majdalawi flew to New Zealand and met the applicant. Between 30 May 2014 and 6 June 2014, the applicant and Mr Majdalawi travelled to Türkiye and met with others for the purpose of procuring drugs. On 3 August 2014, the applicant sailed from New Zealand on board the Elakha, arriving in Fiji on 4 August 2014. The Elakha departed Fiji on 28 August 2014 and arrived in Tahiti on 12 September 2014. The Elakha arrived back in New Zealand on 5 November 2014. There is no evidence that any border controlled drug was collected in the course of this voyage.

The second attempt (April 2015 to April 2016)

52. The Elakha left New Zealand in April 2015, passed through a number of Pacific islands and then on to Valdivia in Chile, arriving in October 2015. In March 2016, it sailed from South America and returned to New Zealand on 23 April 2016.

The third attempt (January 2017 to February 2017)

53. On 9 January 2017, the applicant and Mr Fries departed New Zealand on the Elakha. They rendezvoused with a mothership in international waters and the cocaine was transferred on board. When Australian authorities intercepted the Elakha on 2 February 2017, they located 43 hessian bags on board the Elakha, each bag weighing approximately 35 to 37kg and containing cocaine in block form, with a total weight of 1.42 tonnes.

Overview of the roles of the accused

54. Mr Geraghty, Mr Majdalawi and Mr Willcox were the Australian land-based conspirators. Their engagement in furtherance of the conspiracy included procuring the cocaine, remitting money to the applicant and to Mr Fries, purchasing and installing satellite and other electronic communication equipment for use on the Elakha, coordinating with those on board the Elakha and preparing and storing the Fredd S.

55. It was the Crown case that Mr Geraghty was the principal organiser of the Australian-based syndicate who planned the conspiracy to import the border controlled drug into Australia. He liaised directly with overseas drug syndicates, the applicant and with each of the other accused. He also coordinated and directed the co-conspirators and ensured ongoing financial support of the applicant.

56. The applicant’s role, as the owner of the Elakha, was to sail the vessel on each of the three journeys, eventually rendezvousing with a mothership and taking possession of the cocaine. The applicant planned the rendezvous between the Elakha and the Fredd S with Mr Geraghty, Mr Willcox and Mr Majdalawi.

57. Mr Majdalawi was a principal conspirator. He consulted directly with Mr Geraghty and actively organised, planned and financed the conspiracy from the earlier stages. He travelled to Türkiye and met with members of an Asian syndicate in May 2015 in the course of the preparation for the second journey and travelled to Auckland on six occasions to meet with the applicant in planning of the importation. Mr Majdalawi provided BlackBerry devices to the co-conspirators as a means of covert communication.

58. Mr Willcox, a retired electrician, arranged with co-conspirators for the installation of satellite communication systems on the Elakha. It was alleged that he travelled to New Zealand to meet the applicant on a number of occasions in order to, amongst other things, discuss the logistics of the rendezvous at sea between the Elakha and the Fredd S and to coordinate the transfer of the cocaine to the Fredd S for its importation into Australia. Mr Willcox stored and prepared the Fredd S at facilities of the MUA at St George’s Basin, where Mr Wren was the caretaker. Mr Willcox stored fuel on the premises. It was the Crown case that Mr Geraghty and Mr Willcox met Mr Wren regularly from late 2014.

59. Mr Geraghty and Mr Willcox were arrested on 3 February 2017 in the vicinity of St George’s Basin, shortly after the interception of the Elakha. Mr Majdalawi was arrested separately at his home in Sydney on the same day.

60. An overview of the Crown case that was presented at trial, drawn principally from the remarks on sentence by Judge Zahra SC, is as follows.

The relationship between the conspirators

61. Each of the four accused who were convicted in the trial were connected prior to their participation in the conspiracy through the serving of sentences of imprisonment in various New South Wales prisons between 1999 and 2013. Mr Geraghty and the applicant met following their convictions for importing commercial quantities of prohibited imports (cocaine) in 2000 and 2001 respectively. Mr Geraghty and Mr Willcox had known each other for approximately 30 years. Mr Geraghty introduced Mr Majdalawi to the applicant in early 2014 by phone.

The evidence of the roles of the co-conspirators in the three attempts of the continuing conspiracy to import a border controlled drug into Australia

The first attempt between January 2014 and November 2014

62. Between 28 January 2014 and 10 February 2014, the applicant travelled from New Zealand to Columbia. The Crown alleged that the purpose of this travel was related to the conspiracy.

63. In April and May 2014, Mr Majdalawi flew return from Sydney to Auckland and met the applicant. Between 30 May 2014 and 6 June 2014, the applicant travelled to Türkiye and returned to New Zealand. At the same time, Mr Majdalawi also travelled return from Sydney to Türkiye (31 May 2014 to 6 June 2014). The applicant and Mr Majdalawi were photographed together whilst in Türkiye. It was the Crown case that the visit was concerned with the planning and sourcing of the drug for collection on the first voyage of the Elakha.

64. On 3 August 2014, the applicant sailed from New Zealand on the Elakha, arriving in Fiji on 12 August 2014. On 25 August 2014 and 26 August 2014, Mr Majdalawi sent the applicant approximately $10,000 (two separate amounts of approximately $5,000) via a Western Union transfer. The Elakha departed Fiji on 28 August 2014 and arrived in Tahiti on 12 September 2014. At that time, there were four persons on board, including the applicant, Mr Fries and a Dutch national, Mr Bernardus, who in the Crown case was a “minder” for the Türkiye associates. The Elakha sailed to Tonga, arriving on 9 October 2014 and subsequently returned to Fiji on 15 October 2014. On that day, Mr Majdalawi sent approximately $2,000 to the applicant. From August 2014, Mr Majdalawi was in contact with the applicant using a Wi-Fi system installed on board the Elakha and using BlackBerry devices whilst the Elakha was at sea.

65. The Elakha arrived back in New Zealand on 5 November 2014. During the journey of the Elakha, a significant debt was incurred for the use of the satellite communication system on board the Elakha. Mr Majdalawi initially entered into an arrangement to service the debt with an agent to the provider, Baycorp. On about 5 December 2014, Mr Majdalawi provided the applicant with a cheque in the sum of $24,000 to pay towards the debt.

66. There is no evidence that any border controlled drug was collected in the course of this voyage. In an intercepted conversation between Mr Majdalawi and an associate at the Star City casino in Sydney on 14 November 2014, nine days after the Elakha had returned to New Zealand, Mr Majdalawi told his companion “let’s learn how to sail” and “all we’ve got to do is pick it up, out of Australia waters”. At a further point, Mr Majdalawi says, “I have something now, I set it up, obviously not all me … but it fell apart because it got to a certain spot … and … it just fuckin”. The companion is then heard to ask Mr Majdalawi if “That got ripped” and Mr Majdalawi responds “Yep” and “the next stop was the swap, the swap over … but it doesn’t matter, you try again”.

The second attempt (April 2015 to April 2016)

67. Between November 2014 and May 2015, Mr Geraghty and Mr Majdalawi discussed locations at sea off the New South Wales coastline, including references to “36, 154” which in the Crown case were consistent with coordinates for the rendezvous point for the purposes of meeting the Elakha at sea. They discussed how long it would take to “get out and come back” and arrangements for Mr Majdalawi to meet with the applicant. A number of conversations between Mr Geraghty and Mr Majdalawi relate to the use of communication devices. Mr Majdalawi gave instructions to Mr Willcox and Mr Geraghty about the operation of BlackBerry devices.

68. The conversations between Mr Geraghty and Mr Majdalawi cover a range of logistical matters including the procurement, distribution and use of electronic communications and the remitting of monies to the applicant.

69. Further, the intercepted calls at this time indicate not only the close association between Mr Geraghty and Mr Majdalawi in planning the conspiracy, they also indicate the nature of the connection between the applicant and Mr Majdalawi. Mr Majdalawi visited the applicant in Auckland, staying each time for short periods.

70. In conjunction with the conversations between Mr Geraghty and Mr Majdalawi, Mr Majdalawi transferred money to the applicant. On 5 December 2014, having purchased a bank cheque in the sum of $24,000 in the name of “Thompson”, Mr Majdalawi flew to Auckland where he met with the applicant. Mr Majdalawi was observed by surveillance officers to be in possession of both an Apple iPhone and a BlackBerry device. New Zealand Customs surveillance officers overheard a conversation between Mr Majdalawi and the applicant where there was a discussion concerning crew members and amounts of money.

71. In late 2014 and in the early months of 2015, conversations were intercepted between Mr Geraghty and the applicant. On a number of occasions, Mr Geraghty arranged to speak with the applicant and subsequently went to public telephones to speak further with him. Those calls were also intercepted. On 4 December 2014, Mr Geraghty called the applicant using a public telephone. During the conversation, the applicant told Mr Geraghty he was “disappointed”, to which Mr Geraghty responded, “I look at it like a trial run. A very expensive trial run”. The applicant and Mr Geraghty agreed they were “regrouping”.

72. Conversations during this period relate to locations and coordinates and journeys of the Elakha. In many of the calls with the applicant, Mr Geraghty refers to conversations with, and the conduct of, Mr Majdalawi. There is discussion between Mr Geraghty and the applicant concerning the timing of journeys and possible destinations and quantities of fuel. Other calls relate to the transmission of monies to the applicant and arranging the installation of satellite communications on board the Elakha. They also discussed engaging crew members and the importance of the applicant having a competent crew on board the Elakha.

73. From about December 2014, Mr Geraghty was also in regular contact with Mr Wren concerning the availability of the MUA facility. During a conversation between Mr Geraghty and Mr Wren on 6 December, Mr Geraghty speaks of contact with the applicant and future attendances at St George’s Basin.

74. It was the Crown case that, whilst the role of Mr Geraghty could be described as dominant and overarching, the complexion of the communications between Mr Geraghty, the applicant and Mr Majdalawi supported a conclusion that they formed the nucleus of the conspiracy.

75. From January 2015, intercepted communications between Mr Geraghty and Mr Majdalawi reveal discussions that in the Crown case concerned the sourcing of drugs for importation into Australia. Mr Majdalawi speaks of using Asian connections. Intercepted communications involving Mr Geraghty and the applicant, and Mr Geraghty and Mr Majdalawi, refer to activities between “Chinese” and “Asians”. During one conversation, Mr Geraghty asked the applicant to explore further the prospect of Türkiye.

67. The intercepted communications indicate that Mr Geraghty was exploring connections with contacts in America, contacting a person ‘Mauricio’ on 4 December 2014, 15 December 2014, 31 December 2014 and 7 January 2015. On 15 December 2014, Mr Geraghty contacted the person Mauricio in America. In the course of the conversation, they discussed a proposition for the transportation of “trucks”, Mr Geraghty saying that he was “cash strapped” but he would speak to others. Mr Geraghty spoke again with the person Mauricio about the organisation of drugs for importation on 7 January 2015. On that day, Mr Geraghty, using a public telephone, engaged in three calls within the period of approximately half an hour. Mr Geraghty first called the applicant. The discussion included reference to “planning stages”; “wanting to lock something in”; “timeframes” and the observation: “no use crying over spilt milk”. Mr Geraghty tells the applicant he would call “other people”. Immediately following this call, Mr Geraghty contacted the person Mauricio in America.

68. Mr Geraghty tells the person Mauricio, “I bought a number of things that sail on the sea okay, and I got in contact ... with two of my guys who are captains”. He tells the person Mauricio that he:

“... had a situation … with a couple of guys where I was going to just continue with it about five months ago but – for one particular ... reason … it just didn’t quite pan out, but it was quite substantial. We’re talking a half a billion okay. Not million ... billion ... It just didn’t work out and – and since then it’s kind of been a good thing for me ... We have the facility to come here, okay. We have the facility to go all the way there and come all the way back. The time frame of ... going is two months there and it’s probably about three months back. So it’s a five months – five months turnaround trip ... I have the crew ... I have everything ready to go there ... We need a partner who will go half down the middle or any – any situation we want.”

78. Mr Geraghty noted, “like here the market is ridiculous. It’s just out of control ... we’re talking super super money”. At another point in the conversation, Mr Geraghty says:

“That’s who we’re looking for. Someone who is substantial in – in the respect of we can trust them, okay ... They only have to basically take it out a hundred miles and we’ll meet them out there … if we could work out fifteen million dollars, now that equates to about a hundred and fifty units ...”

79. And at a later point:

“... If they say, well you’re going to have to put this up front, then I need to know those type of things so I might have to reach out again for someone for money ... I’d prefer just a solid partnership ... I mean, it’s a half a million to start with. That’s what, you know – we’ve already spent – we’ve already spent two … on just boats and shit like that. So I mean, we’ve spent a lot of money”.

80. The person Mauricio responds:

“So you’re looking, just for me to be clear when I pass the thing, you are looking to get, ah, the thing in … like with credit, right, with no money down. That’s what … you would like?”

81. Mr Geraghty responds that that would be his first option, however, he adds “We would prefer a total partnership half down the middle, credit”.

82. Following this call, Mr Geraghty immediately contacted the applicant telling him that he had a “really good conversation with a friend of mine”. He tells the applicant the person he spoke about was “a really serious businessman” and that he was not sure about the credit situation. Mr Geraghty tells the applicant he was going to have “a chat” at the end of March. On 24 January 2015, Mr Geraghty again contacted the applicant using a public telephone. During the conversation there was a discussion about routes, timeframes and working with “Mexicanos”. Mr Geraghty expresses a concern that the boat was not ready and time was being wasted saying “we just need to get one done”.

83. In the course of conversations between Mr Geraghty and the applicant during January 2015, they spoke about quantities and amounts of a substance consistent with high-value goods and finances, including the forwarding of money to the applicant and payment to Mr Fries.

84. In February 2015, Mr Majdalawi again transmitted money to the applicant, firstly through an intermediary ($5,000) and secondly himself transferring money through Western Union ($4,970). In early March, he travelled to meet with the applicant and returned to Sydney three days later. It was the Crown case that Mr Majdalawi and the applicant discussed arrangements relating to the importation of a border controlled drug into Australia. That inference is supported by an intercepted conversation between Mr Majdalawi and Mr Geraghty on 31 March 2015. On that day, Mr Geraghty had gone to Mr Majdalawi’s house. The intercepted conversation indicates they were looking at a computer screen. Reference was made to “thirty six, one fifty four”, which in the Crown case related to co-ordinates off the south coast of New South Wales. Further, there is discussion about the estimated time of the journey, with Mr Geraghty saying “If it’s a hundred and twenty it’s going to take us eight hours to get out eight hours to get back”. The following day, 1 April 2015, Mr Majdalawi further transmitted an amount of $4,970 to the applicant.

85. The following day, 2 April 2015, a listening device captured a conversation between Mr Geraghty, Mr Willcox and Mr Majdalawi. Mr Geraghty asked Mr Majdalawi if he had sent the coordinates and Mr Majdalawi responded he had not. Mr Majdalawi gave instruction as to the use of a BlackBerry device. By this time, Mr Geraghty, Mr Majdalawi, Mr Willcox and the applicant had BlackBerry devices available to them. Mr Geraghty is heard to say:

“So what we do when we get close to them ok if we are having problems picking them up we get a fucking naval ship fucking right beside us you know what I mean for some reason ... get on that phone and say listen we should go a bit further down ok ... That’s the fine tuning ... If we get out there and there’s twenty fishing boats …”

86. The discussion also concerned whether Mr Majdalawi was going to come out on the boat “when we pick it up” and the capacity of the motorboat to collect the drug, with Mr Majdalawi suggesting a second boat be used. Mr Geraghty assured Mr Majdalawi one boat was sufficient saying, “did you see how fucking big this thing is” and adding, “stack all up the front ... three hundred goes in the front cabin ... we just lay the floor straight back over it again”.

87. In the first half of 2015, Mr Geraghty and Mr Majdalawi often discussed the use of the Fredd S to collect goods from a boat at sea. On 2 April, Mr Geraghty and Mr Willcox towed the Fredd S, to the MUA facility at St George’s Basin where Mr Wren was the caretaker. The motorboat was stored there from that day until the arrest of the accused. Throughout this period, Mr Geraghty communicated with Mr Wren and travelled to the MUA facility. Those communications included references to the movements of the applicant and the availability of the MUA premises. Mr Wren had previously sought permission from the MUA for a boat to be stored at the MUA training facility at St George’s Basin.

88. Two days later, on 4 April 2015, the Elakha left New Zealand with the applicant and Mr Fries on board. In the Crown case, it was intended at that time for the Elakha to meet a mothership for the collection of border controlled drug for importation into Australia. The plan initially involved a rendezvous with the mothership in the South China Sea, however the location was later changed to a point off the coast of Chile.

89. In the course of intercepted conversations between Mr Geraghty and the applicant, the applicant frequently updated Mr Geraghty on the condition and movements of the Elakha.

90. In the early months of 2015, a number of conversations between Mr Geraghty and Mr Majdalawi were intercepted. The conversations included references to monies being outlaid. On one occasion, reference was made to being “up to half a million ... that’s come out of our pockets”. Intercepted communications between Mr Geraghty, the applicant and Mr Majdalawi during this period refer to goods of high-value, in terms of “houses” or “millions of dollars”.

91. After leaving New Zealand, the Elakha sailed to New Caledonia, arriving on 14 April 2015 and then on to the Solomon Islands on 24 April 2015. The Elakha travelled to the capital of the Solomon Islands, Honiara, arriving on 26 April 2015, and then to Gizo, arriving on 30 April 2015. An amount of $4,000 was transmitted by Mr Majdalawi to the applicant on 30 April 2015. About a week later, on 8 May, Mr Geraghty and Mr Majdalawi met. Their conversation included references to “coordinates” and “one five four” and references to Tahiti and Chile. 154 degrees longitude is a location near Tahiti. Mr Geraghty is heard to say, consistent with the agreed methodology, “its three hours to get down there at three in the morning”; “put the boat on the trailer”; “carry the boat down to Greenwell Point” and “it’s going to take eight hours to get out there”. There is further discussion about whether they would carry it “in one load or two or three”. The discussion included whether they would “take our whack out straight away” and payment to “the captain”. There is a reference to “four hundred” to be paid to the captain and “a hundred” to “Dave”.

92. In April/May 2015, Mr Majdalawi provided Mr Geraghty and Mr Willcox with a BlackBerry phone and instructed them on the use of the device. Mr Majdalawi also provided assistance when they experienced difficulties in operating the devices. By this time, all offenders had BlackBerry devices available to them to communicate. BlackBerry devices were used because communications and messages were encrypted.

93. On 15 May 2015, Mr Geraghty and Mr Willcox travelled to the MUA premises at St George’s Basin. At this time, Mr Willcox had continued preparing the motorboat including the installation of a pump which would facilitate the refuelling of the motorboat whilst at sea from additional fuel stored on board.

94. A “Dash Cam” had been installed in Mr Willcox’s vehicle which had the facility to record conversation. The conversation between Mr Geraghty and Mr Willcox on their journey to and from the MUA premises was recorded on the dash cam, which was later seized by police. In the course of the conversation, Mr Geraghty made reference to the need to see an associate in Newcastle, the Crown case being that it was a reference to Mr Majdalawi. Additionally, Mr Geraghty told Mr Willcox that he wanted to try to:

“… get some indication from this guy ... have they set off yet ... make it next week, this week ... I want to know ... as I said, we’re waiting now. Like we’re in anticipation mode ... In two weeks or a month. I don’t give a fuck what it is, but I’ve got other shit I’ve got to do, like, I want to restock with coke, as soon as, see if I get this in, I’ll buy a couple of kilos … you know what I mean”.

95. Mr Geraghty said he needed to have available substantial quantities to be provided to others including the “Lone Wolf” club, saying:

“Has it left? You know, where are we with it? What’s going on? Yeah. … Like you want to know. I want to know. Dave wants to know. I’ve got a couple of bunches of it sold already. Fucking Lone Wolves have come in, and they want to take the whole fucking lot at ninety.”

96. And later:

“If we get four hundred and fifty by five, what’s that? There’s another three million chucked in. It’s a drink for you, extra … for you. I’m just trying to make money for everyone. That’s what I … I want to own it. I don’t want to – I just want to fucking move it as quick as I can, just – and these guys are smashing – these guys did fucking four hundred kilos of coke a week. The what’s the name. That’s how much these … I think we’ve got a – these guys are – this Lone Wolf mob are fucking unbelievable. That’s why I don’t want to lose it … I want to – like, I want to keep my credibility up with these guys. … They’re fucking unreal. And they’re all cash up. This cunt is cash up. He will take – like, he’ll buy ten or fifteen million dollars worth every week, cash up –there, there, there. … Hakan, when he’s bringing the other shit, like, the stuff we’ve been using before, he’s doing ten at a time, he’s doing. He just goes, ‘There. There’s cash.’ At two hundred. ‘There’s the cash. There’s the cash.’ That much fucking loot, it’s crazy. I want to try and make both ends. Get it and sell it.”

97. On 20 May 2015, the Elakha arrived in Kosrae, Micronesia with the applicant and Mr Fries on board. The applicant had informed Mr Geraghty about the loss of fuel containers and subsequently, on 24 May 2015, Mr Geraghty and Mr Willcox were captured on CCTV at a hardware store in Mascot where they purchased five fuel containers which were sent to the applicant. The Elakha then sailed to Tahiti, arriving on 4 July 2015. Two days later, Mr Majdalawi forwarded $4,774 to the applicant via an intermediary.

98. During this time, Mr Geraghty and Mr Majdalawi continued to communicate by phone. On 11 July 2015, Mr Geraghty and Mr Majdalawi discussed payment to the applicant, with Mr Geraghty saying “I’ll put a chunk in your bank account in Hong Kong, so I’ll put a quick fucking quarter of million in his bank account” adding, “as soon as this one comes through” and referred to the applicant as “the key to our kingdom”. This conversation included the following:

“Geraghty:    ... I am going to give you some coordinates, I got some coordinates off [the applicant] about oh, a couple of months ago, I said give us a spot in Chile where you’re right to meet us and these are rough, just before he took off from Micronesia to there

... because I'm getting pressure from my two guys …

…

Majdalawi:    I said they’re fucking sailing a yacht, they can’t just leave the yacht there, you know what I mean, they’ve got to jump in the mother fucker and they might not be able to get back home for five months ...

… I said it’s not as easy as what you think, I said, so I flew off I need a decision and I need one very very soon I said because my I said my partner who’s in Sydney and my crew the captain, they’re fucking starting to doubt my ... ability to put something together ...

…

Geraghty:   … as soon as we get some cash we’ll be able to send a container load across there, park the container load and all [the applicant] does is sail across, we run out and pick it up, we run out and pick it up, that’s all, we’ve been talking about this since we started ...

… this is what we want, alright let’s get down to it, they’re coming down the coast ok I’m not worried about that, I’m not even going to say anything, they give us seventy-two hours’ notice, we’re ready to go, the boat’s ready, everything’s set, the fuel’s sitting there, it’s just a matter of getting on the thing and bingo out we go

… ok ok I get it, like I’m nearly three hundred and sixty thousand out of pocket ...

… you’re probably up to two hundred already, so we’re up to half a million

…

Majdalawi:    and what have we got for it

Geraghty:   ... nothing but we’ve still got him

... that’s the key to our kingdom ...

… if they won’t show us, give us times, give us destinations, time lines, they’re wasting, it’s a waste of energy, I said, that’s what I said, this boat is just sitting there now, I said it’s got to go one way or another ...

I said so whichever way we choose to send it, I said, I’m not going to send it on the word of someone that basically says oh, when it gets there, oh mate you know sorry, there’s been a bit of a hold up, there can be no hold ups, he’s got to go out and in straight away

…

Majdalawi:   … I sent it already sent, I said brother, I said um, I said by this week I said I’ll need something that is solid, I said

Geraghty:   It has to be solid

Majdalawi:    I said I don’t, I said I don’t want you to say you’ve got to go to South America and you guys are still putting it together on the way there ...

…

Geraghty:   ... because it’s a lot of money, I know he’s putting money into it but you’ve got to remember too, you put yours in, I’ve put mine in

... the bottom line is, everyone’s got a lot of money invested in this”

99. Two days after this conversation, on 13 July 2015, Mr Majdalawi and Mr Willcox transmitted monies to the applicant in Tahiti ($5,000 being transmitted by Mr Majdalawi and $1,500 by Mr Willcox). A week later, on 20 July 2015, Mr Majdalawi forwarded a further amount of $4,774 to the applicant. About this time, on 24 July 2015, Mr Geraghty and Mr Willcox again drove to the MUA facility at St George’s Basin and, on 27 July, Mr Willcox sent a BlackBerry device to the applicant in Tahiti.

100. Between July 2015 and February 2017, Mr Geraghty travelled to meet Mr Wren at the MUA facility at St George’s Basin a number of times, in a pattern of visits of very short duration, generally within the one day. In an intercepted conversation on 26 July 2015, the applicant and Mr Geraghty discussed Mr Wren, with Mr Geraghty telling the applicant that Mr Wren said to say hello.

101. At about this time, in an intercepted conversation on 31 July 2015, Mr Geraghty asked the applicant whether he had received “that thing”, the applicant saying he would enquire whether it had arrived. Mr Geraghty told the applicant the “other side” were “desperate” to talk to the applicant and “all you’ve got to do is fucking just talk to these guys on that thing and away you go”.

102. On 5 August 2015, the applicant flew to New Zealand, leaving the Elakha in Tahiti. The following day, on 6 August 2015, Mr Geraghty contacted the applicant using a public telephone. In the course of that conversation, Mr Geraghty and the applicant discussed the installation of Wi-Fi on the Elakha. Mr Geraghty told the applicant that two people would be visiting him; that Mr Willcox would visit him and talk to him about “technology and about something – the same thing”. In the Crown case, this was a reference to Mr Majdalawi, who he referred to as “the Sheikh”, and Mr Willcox as “one who drives out and comes back with the ... we go out of all the time together. He’s the man”.

103. Later that day, Mr Geraghty transferred $1000 to the applicant. The next day, 7 August 2015, Mr Geraghty told the applicant “we really desperately need to get that system on board your boat”.

104. On 10 August 2015, Mr Geraghty and Mr Majdalawi were captured on a listening device discussing both Mr Majdalawi’s and Mr Willcox’s travel to New Zealand to meet with the applicant. They further discuss the installation of a satellite communication system on the Elakha and coordinates at sea. Mr Majdalawi also raises issues about the use of BlackBerry devices. Mr Geraghty expressed experiencing difficulties in understanding how to use a BlackBerry, at one stage saying “I don’t understand any of it, or I do ... encrypted ... that’s what I keep saying to you”.

105. On 12 August 2015, Mr Willcox arrived in New Zealand and met with the applicant. Mr Willcox returned to Australia the following day, 13 August 2015. On the same day Mr Willcox arrived in New Zealand, 12 August, Mr Majdalawi also arrived, independently of Mr Willcox. He later met with the applicant. Mr Majdalawi remained in New Zealand for one day only.

106. Two days after Mr Majdalawi returned to Australia, Mr Geraghty called the applicant using a public telephone. Mr Geraghty asked the applicant how communication will be maintained when “on-board”. The applicant told Mr Geraghty that he had to “get that system done I can ... use the Wi-Fi on ... and then we can just use the BB’s all the time”. The applicant confirmed he received “a BB address for someone overseas”, being a reference to a BlackBerry device. On 15 August 2015, Mr Geraghty discussed with Mr Willcox his (Mr Willcox’s) plans to visit the applicant in Tahiti to install Wi-Fi on the Elakha. On 3 September, Mr Geraghty asked Mr Willcox to organise more credit for the applicant’s Wi-Fi device and that he would repay him at another time.

Consideration

257. The applicant’s evidence at trial included admissions that, in hindsight, deprived the tendency evidence of much of its probative value, having regard to the tendencies that were identified in the tendency notice. However, the trial judge’s awareness at the relevant time of the applicant’s case derived from admissions allegedly made by the applicant in a recorded interview, which is summarised at [136]–[138] above, and submissions made by his counsel, which are extracted from the transcript at [241] and [242] above.

258. Mr Radojev referred to “a number of defences” being available to the applicant, “not the least of all taking the drugs somewhere else other than Australia”. When directly asked by the trial judge what the “issues” were in the applicant’s case, Mr Radojev limited it to whether the applicant had any intention or interest in bringing the cocaine into Australia as distinct from another place, then suggested the applicant was not aware he was transporting cocaine specifically, but rather “a quantity of a drug of some description”. Significantly in my view, Mr Radojev stated that whether the Crown could establish an intention to import the drug into Australia was the primary issue “as I understand my instructions at the moment”.

259. As to the trial judge’s reasoning in the judgment, it is apparent from the passage extracted at [241] above that counsel for the applicant squarely put the applicant’s concern that evidence of the 2001 importation offence would prejudice a defence he may advance that he did not intend to transport a border controlled drug into Australia. Similarly, the passage from the judgment extracted at [245] above makes clear that the submission was taken into account by the trial judge.

260. In Taylor v R [2020] NSWCCA 355 at [122], Bell P (as his Honour then was) advanced certain propositions concerning the relationship between ss 97 and 101(2) of the Evidence Act. The first five of those propositions are as follows:

“Summary of principles

Apart from the principles from the four recent High Court decisions already noted, a review of the authorities, coupled with my own observations in respect of the interrelationship between ss 97 and 101(2) of the Evidence Act, supports the following propositions:

(i) the starting point is to identify with some precision what the tendering party proposes to establish by the evidence it seeks to tender, and to consider whether the proffered evidence is in fact evidence of the tendency asserted or described in the Tendency Notice: see, for example, Elomar at [348]; White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [139];

(ii) if the evidence is of the tendency propounded, the next step is to ascertain whether or not that evidence is of probative value. That expression is described in the Dictionary of the Evidence Act as meaning ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. That definition mirrors the definition of ‘relevant evidence’ in s 55 of the Evidence Act;

(iii) if the evidence is of probative value, the next question is whether the probative value of the evidence should be characterised as ‘significant’ within the meaning of s 97 of the Evidence Act. This means, as the High Court made plain in IMM, that the evidence must have a probative value extending beyond the mere fact that it is relevant;

(iv) the assessment of the significance of the probative value of the evidence is to be undertaken on the assumption that the evidence will be accepted by the jury and taken at its highest: see IMM …;

(v) evidence will be of ‘significant probative value’ if it has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent: (see Hughes at [16]; Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175- 176; (1995) 140 ALR 701; R v Lockyer (1996) 89 A Crim R 457 at 459 (Lockyer)) or if it has more than mere relevance but something less than a ‘substantial’ degree of relevance: see Lockyer at 459; DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [58] and [60] ...”

261. It is apparent that the evidence of the 2001 importation offence is evidence of the tendencies that are described in the tendency notice. The passage of time between the commission of that offence and the date of the hearing, although substantial, does not diminish its probative value when one takes into account that for most of that period the applicant did not have an opportunity to commit a like offence, since he was in custody. The applicant’s claim on his arrest that he did not think so much cocaine was involved, although betraying awareness as to the nature of the cargo, suggested he had a lesser role in the enterprise and left duress open as a potential defence. His explanation to the authorities did not include any involvement in sourcing the cocaine or prior attempts.

262. The submissions by counsel for the applicant underscored the fluidity of his instructions at that stage of the trial and a reluctance by the applicant to commit to a particular defence. Having regard to the first five principles identified in Taylor, in those circumstances, the evidence has significant probative value, in the sense that it has the capacity to rationally affect the assessment of the probability of the existence of the facts in issue that were identified in the tendency notice, to a significant extent.

263. In relation to s 101 of the Evidence Act, there is obvious potential for a jury to misuse the tendency evidence, consequent to the striking similarities between the 2001 importation offence and the Crown case against the applicant. However, the aspects of the 2001 importation offence that constitute its probative value are considerable. With appropriate directions to the jury, its probative value satisfies the test imposed by s 101 of substantially outweighing its prejudicial effect, as that test was in February 2019 at the time of the application before the trial judge.

264. Accordingly, this ground is not made out.

Ground 5: The trial judge erred in allowing the Crown to cross-examine the applicant on the specific tendency evidence and introduce coincidence reasoning without lodging a coincidence notice of intent

265. This ground arises from an exchange between counsel for the applicant and the Crown prosecutor in the absence of the jury that occurred during the Crown’s cross examination of the applicant, and questions asked of the applicant subsequent to that exchange.

266. As noted at [140] above, the applicant’s conviction at trial of the 2001 importation offence was overturned by this Court on appeal (R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1). In that trial, the applicant relied upon a defence of duress at the hands of the skipper of the yacht involved, who was Mr Bateman. In evidence on this application, the applicant said that although he pleaded guilty before his retrial, he was in fact not guilty of the 2001 importation offence. His plea was entered on a pragmatic basis, because he would not be able to cross-examine Mr Bateman, thus diminishing his prospects of an acquittal, and he was anxious to return to New Zealand to see his mother.

267. The applicant‘s evidence in this trial was that Mr Fries did not know about the plan for the Elakha to take the cocaine on board, until shortly before it occurred. The prosecutor submitted he was entitled to cross-examine the applicant as to the similarity between that account and the version of events he had advanced as to his role in the trial for which he was convicted, in relation to the 2001 importation offence:

“The relevance is that the version [the applicant] gave in his defence on that trial is effectively what he says he did to Mr Fries, in that in that trial he was on the boat, didn't know anything was coming until the cocaine came onboard, and was effectively set up, and then spent many years in gaol, yet on his evidence, that's exactly what he was prepared to do to Mr Fries in circumstances where he said Mr Fries knew nothing about the cocaine coming onboard until a very short period of time before.”

268. The trial judge expressed concern that the line of questioning might constitute coincidence evidence. Counsel for the applicant described it as “tantamount to coincidence evidence”. The trial judge allowed the line of questioning on the basis of credit:

“HIS HONOUR: The question remains as to whether the Crown is entitled to put that as a proposition, on the issue of accepting [the applicant’s] evidence. In other words, the credibility of his evidence, as to whether, having been placed in the situation by Mr Bateman previously, whether he placed Mr Fries in that same position.

RADOJEV: Well, that can be done very succinctly, if it's only going to credit.

HIS HONOUR: Yes.

RADOJEV: He can put the proposition to him. He can move on.

HIS HONOUR: Well, I think, really, if it simply goes to credit, Mr Crown, it could be asked in a shorthand way.

CROWN PROSECUTOR: Yes, your Honour.”

269. The Crown prosecutor elicited evidence from the applicant that he and Mr Fries were friends. He subsequently put the following to the applicant:

“Q. See, it’s the case, isn’t it, that your evidence also is that you didn’t tell Valentino Fries that the Elakha was to be sailed to a rendezvous point to collect cocaine until just before that was about to happen. Correct?

A. That is correct. For security reasons.

Q. So the evidence that you've given in this trial is that you effectively placed Mr Fries in exactly the same position that you were in, in your last trial. Correct?

A. I think - I think it was a different position because I had purchased the Ngaire Wha. I was - there was a lot of other different dynamics - that Mr Fries didn’t have the same dynamics. But there were similarities, I will agree with you that.

…

Q. … you knew full well that by not telling Mr Fries the purpose of the Elakha sailing out to sea in early January of 2017, that you were putting him at risk of spending many, many years in gaol. Correct?

A. That’s a proposition that could have occurred.

Q. And I suggest to you that, given your relationship with him, you never would have done that, knowing the ultimate consequences that could occur to him. Do you agree or disagree with that?

A. I would disagree with that proposition.”

270. No objection was taken to these questions. In its closing address, the Crown made the following submission to the jury:

“… Now, in addition to that, his version is that Mr Fries knew nothing about the drugs and the meeting with the mothership until just before it was about to happen - I think at most it was a couple of days, on [the applicant’s] evidence. Well, that’s the effect of what [the applicant] said in the evidence that he gave in the first trial, where the previous matter that he was involved in was raised, that he didn’t know until the drugs were coming onto the boat, in effect, that there was this mothership meeting going to happen.

Mr Fries is someone that, in the telephone intercept, [the applicant] describes as a good bloke, or words to that effect, that he’s someone that he's getting along well with, can sail with. They spend extended periods of time at sea together. In the Crown submission, you would conclude they must have developed a good relationship because of their ability to get on and do that for such a long period.

It makes absolutely no sense, when [the applicant] knows the consequences of his actions, that he would put Mr Fries into the same position that he says he was put in on a previous occasion. You just wouldn’t do that to someone. It makes that whole story, when you put it all together, completely unbelievable, and you wouldn’t accept it as a version that even raises a doubt in your mind. You’d accept that the Crown evidence shows that [the applicant] was sailing to Australia to meet up with the Fredd, and I’ll go to evidence in relation to that shortly.”

271. The respondent submitted that testing the applicant’s version by establishing the improbability of the applicant behaving in the same way to Mr Fries as he claimed Mr Bateman did to him did not involve coincidence reasoning, because it did not involve an assessment of whether it was improbable that the two events occurred coincidentally, but an assessment of the veracity of the applicant’s evidence about his conspiracy with Mr Bateman.

272. In my view that is correct. Accordingly, this ground is not made out.

Ground 6: The trial judge erred when he directed the jury as to the nature of the applicant’s defence

273. There is an overlap between this ground and the second ground, involving the trial judge’s directions as to a different conspiracy to that alleged by the Crown.

274. The applicant’s submissions include a summary of his account in evidence in respect of the three voyages, including the separate conspiracy with Mr Bateman. He submitted that there was a need for “clear and concise directions (not generic directions) on [his] defence and his defence alone”, however, the trial judge failed to properly direct the jury on the nature of his defence; including, firstly, that he had no intention to sail to Australia or meet persons offshore from Australia and, secondly, that he had participated in a separate conspiracy different to that charged by the Crown.

275. The applicant submitted that the following two paragraphs of the directions given by the trial judge to the jury are contradictory:

“This means, for example, that unless the Crown has proved beyond reasonable doubt that you would not accept the evidence given by [the applicant] (that the cocaine on the Elakha was the subject of a different agreement between himself, a Mr Bateman and persons other than the accused), then you must acquit all accused of the charge on the indictment.

This is because it is the Crown case that the presence of a border controlled drug on the Elakha in early 2017 was the result of the alleged one continuing conspiracy. If you are not satisfied beyond reasonable doubt that the cocaine on board the Elakha was the implementation of this one continuing conspiracy, then any other conspiracy you could find would be substantially different to the one continuing conspiracy alleged by the Crown and you are not entitled to find any accused guilty of a substantially different conspiracy.”

276. Instead, the applicant submitted, the jury should have been directed that if his evidence regarding a lack of intent was accepted, then they could not find him, and him alone, guilty. He complained that his defence “went to the jury as a common design – ‘ACQUIT [the applicant] ACQUIT ALL’”, and that the jury consequently had to consider his defence by looking at the evidence of all the other co-accused, whether admissible or inadmissible, which was highly prejudicial. The issue, in his submission, was exacerbated because “other defendants jumped on his defence”.

Consideration

277. In his summing up, the trial judge summarised the Crown case against the applicant, reminding them of the direction concerning how they were to approach the tendency evidence. Following a short break, his Honour summarised the case for the defence, in considerable detail, and then the address by counsel for the applicant. No objection was taken to any of those aspects of the case against and for the applicant. In my view, the trial judge fairly and comprehensively summarised the applicant’s case.

278. The applicant’s submission that the case against him required a direction to the jury that would allow him to be acquitted without the co-accused also being acquitted misunderstands the nature of the conspiracy that was alleged by the Crown and the trial’s purpose, which was to determine whether the jury had a reasonable doubt in respect of the Crown case against each accused, considered separately. The directions to the jury were to the effect that they were obliged to consider the applicant’s case separately, including his contention of a separate conspiracy with Mr Bateman. If the Crown failed to disprove that theory beyond a reasonable doubt, the jury were directed to acquit the applicant.

279. The applicant’s concern that the jury did not acquit him because they did not want to acquit all the accused, presumes that the jury would act contrary to the directions they were provided, which is a speculative submission without a basis. As noted, the fact that the jury acquitted one of the accused was consistent with their understanding that each case was to be considered separately.

280. Accordingly, this ground is not made out.

Ground 7: The trial judge erred in failing to identify to the jury potentially prejudicial evidence not admissible against the applicant

281. The applicant submitted that the trial judge was required to identify for the jury any potentially prejudicial evidence which was not admissible in the cases against each of the co-accused, and that:

“… because of the use of the one verdict rule against his defence and his defence alone, the learned Judge should have been quite specific in identifying inadmissible prejudicial evidence to nullify any prejudice.”

282. The applicant identified four specific items or classes of evidence that he asserted the trial judge failed to identify as being inadmissible against him. The first two were the recorded police interview of Mr Willcox and the tendency evidence that was admitted against Mr Geraghty. The third was to an assertion made by counsel appearing for Mr Majdalawi in his final address to the jury that “We owned up” to the Crown’s assertion that the purpose of the trip to Türkiye involved seeking to obtain prohibited drugs. The applicant submitted that “‘We’ infers” the applicant. The fourth reference was to “[t]he May 2015 listening devices and telephone intercepts”, which he elaborated to be conversations that “involved [a] different conspiracy” which related to taking fuel out to another vessel, not the Elakha, because the applicant was at the time sailing the Elakha east to Tahiti.

Consideration

283. As to Mr Willcox’s police interview, in all, police interviews of three of the accused were admitted into evidence. The trial judge gave a direction to the jury in his summing up that they could only use what is said by an accused in their interview by police in the case of that particular accused, and added “[y]ou cannot use what an accused has said in their record of interview when you come to consider the separate cases of the other accused”.

284. When referring specifically to Mr Willcox’s police recorded interview at a later point of the summing up, the trial judge refreshed that direction:

“[N]ow let me take you to the case of Mr Willcox. Firstly, in relation to the recorded interview, I remind you that recorded interviews are relevant only in the cases of the accused who engaged in the interview and so the evidence of the recorded interview of Mr Willcox is evidence only admissible and relevant in his case.”

285. The tendency evidence that was admitted against Mr Geraghty was the subject of a direction to the jury by the trial judge that its relevance was limited to the case against him alone.

286. As to the third item of evidence, the transcript does not disclose counsel for Mr Majdalawi using that phrase, either in his address to the jury or in the jury’s absence. In any event, in the context of the case of Mr Majdalawi as it emerged in cross examination of the applicant and in the closing address by Mr Majdalawi’s counsel, it is not apparent why the applicant has concluded that the jury would, or may, have understood Mr Majdalawi’s case as being that they both admitted that the trip to Türkiye was related to sourcing prohibited drugs. This aspect is discussed further in consideration of ground 9, below.

287. This ground is not made out.

Ground 8: A miscarriage of justice occurred as a result of the trial judge failing to discharge the jury in circumstances where draft written submissions on the exclusion of the co-accused Mr Willcox’s record of interview had been handed to the jury

288. This ground of appeal refers to an incident which occurred in the first week of the trial. On the second day of trial the Crown tendered an exhibit, a “travel and movement summary”. A bundle of copies was initially provided to the jury, but then recalled by the Crown and replaced with a second bundle. A single document titled “Glen Willcox – Outline of Crown submissions on Section 138 and Section 90 Exclusion” was inadvertently provided to the jury in this process. The document was a draft of written submissions concerning the exclusion of Mr Willcox’s recorded interview with police. The Crown informed the trial judge of the incident the following morning. The jury foreperson was separated from the other jurors, and evidence was taken from the court officer and jury foreperson.

289. The court officer gave evidence that on the previous day the foreperson told her he had been given an “extra document”. The court officer indicated she thought it as an extra copy of the copies of the exhibit provided to the jury and did not retrieve it from him at that time. She said she collected it from the foreperson during a later adjournment and asked whether he had looked at the document. She said that he responded “No”. In cross-examination, the court officer said she was uncertain of the timeline of events but thought her initial conversation with the foreperson was about the time of a short adjournment at 3pm. She said she retrieved the document from the foreperson when the jury were returning to court from that adjournment. She recalled her conversation with the foreperson in the following terms:

“… Something like, ‘Is it important? Should I have looked at it?’ I’m like, ‘No. It’s just if you haven’t looked at it, that’s fine. Just swear that you didn’t look at it.”

290. The jury foreperson gave evidence that the document was passed along the line of jurors and he placed it on top of the documents he had. He said he was not sure but thought this occurred “at the start” when the travel and movement summary was being collected back from the jury. When the document came to him he said he noticed it was black and white and looked different from the coloured travel and movement summary. He said he tried to give it back to the court officer but she did not take it from him then. He placed it on his pile of other papers, took it with the rest of his things to the jury room and forgot about it. He said he did not read the document or discuss it with other jurors, and returned it to the court officer when she requested it.

291. The trial judge determined to discharge the foreperson. His Honour explained his reasons for doing so in his judgment of 14 February 2019:

“…that the possibility that [the foreperson] at least read the heading of the document could not be reasonably excluded. I accepted there was the potential for [the foreperson] to reason that there was a body of evidence relating to Mr Willcox that was not disclosed and was being objected to by Mr Willcox. Whilst this was a significant factor in deciding to discharge [the foreperson], the primary reason to discharge [the foreperson] was because the process that was then to be embarked upon involved questioning [the foreperson] in some detail whether he had read and considered the content of the document … that process would considerably heighten the potential for prejudice to flow to Mr Willcox. In the absolute least, [the foreperson] would be left speculating that a crucial document relating to Mr Willcox had been kept from the jury. In my view, it is likely that the process undertaken, where [the foreperson] was to be questioned about his access to the document in the absence of other jurors, would significantly impact upon his ability to consider the evidence impartially.”

292. Counsel for Mr Willcox, joined by counsel for each of the co-accused, made an application for the whole jury to be discharged. The trial judge refused the application, explaining his reasoning as follows:

“I have considered the circumstances in which the document was circulated to the jury in a bundle of documents which was immediately retrieved. There was little or no opportunity for jurors to consider the content of the document. Apart from [the foreperson], the document was in the hands of other jurors momentarily. Whilst there remains a possibility that other jurors read the heading of the document, the conclusion that jurors reasoned in the way advanced by Counsel for the accused is a matter of speculation only. I do not accept the submission of [counsel for Mr Willcox] that since the document was in the jury room it can be concluded ‘… there was some kind of discourse about the document’ …

…

In my view, the evidence confirms that there was no opportunity for other jurors to become aware of the content of the document and would not have understood its nature.

…

… in exercising the discretion to proceed with the trial and not discharge the jury I am satisfied that there was no risk other jurors would have been able to comprehend the content of the document and consequently no prejudice would flow to the accused. The assumption the jury would draw an adverse conclusion from the circumstances of their exposure to the document or from reading the heading is a matter of speculation only. Even if there was some potential that a juror or jurors read the heading, the risk of prejudice would be minute.”

293. The applicant submitted that the trial judge should have discharged the entire jury to avoid a miscarriage of justice because of the possibility that other jurors had read the document. He submitted that although the document did not concern him personally, it “came into play” against him because of the trial judge’s use of the “one verdict rule” when identifying his defence.

Consideration

294. No error by the trial judge has been identified in his Honour’s reasoning for his determination. This ground is not made out.

Ground 9: A miscarriage of justice occurred as a result of the trial judge failing to discharge the jury in circumstances where the closing address of counsel for the co-accused Majdalawi included submissions that were prejudicial to the applicant

295. The applicant submitted that the trial judge erred in refusing his trial counsel’s application to discharge the jury following the closing address of counsel for Mr Majdalawi. The background to this ground is set out at [164]–[171] above.

296. The applicant contended that two “concessions” made by Mr Majdalawi’s counsel, Mr George Thomas, in his address were based on an “erroneous premise” which was speculation and that the prejudice occasioned to the applicant could not be cured by directions.

297. The applicant submitted that through his counsel, Mr Majdalawi sought to concede that he was involved in two unsuccessful attempts to enter a drug importation conspiracy with the applicant and Mr Geraghty, but was not involved in the third. Counsel for the applicant had submitted to the trial judge:

“Mr Thomas … in his last few moments of his address today gives one clear indication, and one clear indication to the jury only. That is that this man, Mr Magdalawi was up to his neck in the attempt to enter into a conspiracy to import drugs even if he was unsuccessful on not one occasion but two occasions. That of course flies in the face of the case presented by me, and by the sound of things, that presented by my learned friends …”

298. The second concession sought to be made by Mr Majdalawi’s counsel on his behalf was that Mr Majdalawi “has been up front about” the purpose of the trip that he and the applicant undertook to Türkiye. That is, that the trip concerned the delivery of prohibited drugs at sea to the Elakha and was not about a chartering business. Counsel for the applicant submitted to the trial judge that this suggestion was “completely wrong” because Mr Majdalawi had not given evidence and thus had not been “upfront” about anything. It was said that the prejudice occasioned by Mr Thomas’ submission could not be cured by directions because the trial judge was prohibited from criticising an accused for not giving evidence, and thus a discharge was inevitable.

Consideration

299. Counsel for the applicant opened to the jury, hinting that Mr Majdalawi’s defence would involve possible concessions in respect to the first two attempts, but a denial of involvement with the third:

“A lot of things are not in dispute. Other things are in dispute; seriously in dispute. There was a very distinct drop-off on activity by Mr Magdalawi. How is that relevant? If there’s a single conspiracy, there is scope for - and it’s a matter for you to determine whether it was one long running single conspiracy or something different. If there was one, is it the case that, factually, Magdalawi removed himself from it? If there were individual conspiracies - that is, that he was a party to it - the single, continuing, and then removed? Or, if there are separate and distinct tornados with separate objects, that he was never a part of the conspiracy that brought about the 1.4 tonnes on the boat that was intercepted, searched, with products seized, brought back to the case.

If he was never a party if it was a separate, distinct conspiracy and he wasn’t a party to it, he’s not guilty. Doesn't matter how big a grub you might think he is.”

300. None of the co-accused, including the applicant, made an application for a separate trial at that stage.

301. The application for a discharge, which was foreshadowed during the closing address for Mr Majdalawi and made immediately after it, was a joint application by Mr Geraghty, the applicant and Mr Willcox. The application was opposed by the Crown, on the basis that the submissions made by counsel for Mr Majdalawi were open. The trial judge refused the discharge application. In his 24 page judgment, his Honour encapsulated the issue thus:

“Counsel for the co-accused raise the question whether the submissions made by Mr Thomas were drawn from a proper process of inferential reasoning or whether the inferences invited were not available from the evidence and, at their highest, speculative; that Mr Thomas had moved beyond rational inferences being drawn from the evidence and moved into a realm of speculation. When it was suggested to Mr Thomas that, whilst he was entitled to make submissions as to available inferences drawn from the evidence, he may have crossed the line into impermissible or speculative reasoning, the Crown Prosecutor submitted that was ‘not occurring’, adding there is a body of evidence that would allow the submissions to be made by Mr Thomas …”

302. The trial judge comprehensively recounted the submissions made by counsel for the applicant, concluding that section by noting an exchange with him:

“In the course of interchange I raised with Mr Radojev whether he was arguing that it was impermissible for Mr Thomas to point to evidence implicating [the applicant] in the first two failed attempts when pursuing Mr Majdalawi’s case that, whilst there is evidence that Mr Majdalawi was involved in two earlier attempts, he was not involved in a third and distinct attempt in January 2017 which resulted in the drug being loaded onto the Elakha. It is the Crown case that for the accused to be guilty of the conspiracy here they must have been involved in an agreement that resulted in the loading of the drug onto the Elakha in January 2017. I raised with Mr Radojev whether his argument was that it was impermissible for [the applicant] to make a forensic decision, accepting that there was evidence that Mr Majdalawi and [the applicant] conspired to import a border controlled drug in the first two attempts, to concede in submissions to the jury that whilst Mr Majdalawi was involved in the first two attempts, in contradistinction, that there is no evidence of Mr Majdalawi’s involvement in what he argues is the third unrelated attempt … Mr Radojev responded that he accepted such a distinction could be drawn however adding ‘what I’m saying is if he wanted to implicate my client in the previous conspiracies, if he clearly has – or attempt conspiracies, which he clearly had, there are ways and processes that you go through’ … Mr Radojev submitted that [the applicant] ‘… Didn’t need to go down the path he did in his cross examination, but that’s a choice for him’ … Mr Radojev conceded that Mr Thomas had raised in his opening address that his case was that Mr Majdalawi was involved with [the applicant] ‘… early in the piece in 2014, 2015 in the attempted conspiracies’ … Mr Radojev went on to submit …:

‘I put it no higher than that. But the way he’s done it is he’s thrown my client effectively under the bus by saying, ‘well, look, there he is, he’s been doing it with us on previous occasions and failed. But despite that, we weren’t involved in the last one, but he by implication clearly was.’ And that, in my respectful submission is unfair to my client, and I hate to speak on behalf of my other co-accused, but on their clients as well – counsel as well. It’s just completely unfair.’

Mr Radojev submits the unfairness is heightened by the fact that Mr Majdalawi did not give evidence and that the assertions made by Mr Thomas on his behalf could not be tested.”

303. The trial judge concluded:

I am not of the view that Mr Thomas went about his address with an intention to destroy or that he recklessly destroyed the defence cases of the co-accused or that he ‘went too far’.

Mr Thomas was entitled to put Mr Majdalawi’s case fully. He is not restricted in putting only those hypotheses which do not implicate the co-accused or which do not have the effect of repeating or reinforcing the Crown case against the co-accused if it is necessary in properly advancing Mr Majdalawi’s case. I am not of the view that Mr Thomas has gone further than what was necessary to advance the case of Mr Majdalawi. I am not of the view that Mr Thomas’ address improperly or unnecessarily undermined the cases of the co-accused.

…

In the course of summing up, the jury will be directed that the closing address of counsel is not evidence. In the particular circumstances here it will be necessary to give the jury clear directions concerning the limited use to be made of Counsels’ closing addresses.”

304. At the outset of the summing up, the trial judge gave a direction to the effect that counsel’s submissions are not evidence:

“I must direct you, however, that what counsel says during their address from the bar table is not evidence. The evidence in this case comes to you through the witnesses who have been called and through the exhibits that have been tendered. You will, however, give such weight to the various submissions that you have heard as you think those submissions warrant on the view that you form of the evidence. I remind you that the submissions of counsel cannot be regarded as having any kind of evidential weight. While their comments and arguments have been designed to assist you to reach your decision, you do not need to accept what they have said. Of course, if you agree with an argument they have presented you can adopt it. But if you do not agree with their view you must put it aside.

Counsel for some of the accused have submitted to you that some facts are not in dispute in the case against their client. Despite this submission, it is your job ultimately as judges of the facts to consider all of the evidence and to make your own findings of fact in relation to the separate cases of each accused. The submissions made by one accused counsel should be ignored by you when considering the case of an accused other than that counsel’s client, and this is particularly so if and when you consider whether that counsel has made any kind of concession of a fact in issue.”

305. The applicant has not identified any error in the trial judge’s reasoning in rejecting the discharge application. In my opinion, this ground also is not made out.

306. I propose the following orders in relation to the application concerning the applicant’s conviction:

1. Extend the time for filing the notice of appeal to 19 August 2022;

2. Grant leave to appeal against conviction;

3. Dismiss the appeal against conviction.

**********

Endnotes

Decision last updated: 06 October 2023