BOLUS v REGINA

Court of Criminal Appeal (NSW)|2006-02-03|Before: McClellan CJ, Hulme J, Adams J, Howie J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 56; Adams J at 57

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - conspiracy to import cocaine - record of interview - whether judge failed to direct the jury as to consciousness of guilt - whether relevance of record of interview was merely to strengthen an otherwise strong Crown case - application of Rule 4 - whether tactical reasons for not requesting a direction on consciousness of guilt - conscious and informed decision not to seek a redirection - whether the verdict of the jury was unreasonable - meaning of hypothesis consistent with innocence - whether on the whole of the evidence it was open to the jury to conclude that the appellant knew of the planned importation - evidence of recorded conversations - whether an inference available on the knowledge of the accused

Cao v R [2006] NSWCCA 89 Edwards v R (1993) 178 CLR 193 Hugo (2000) 113 A Crim R 484 Jones v The Queen (1997) 191 CLR 439 Knight v The Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 CASES CITED: MFA v The Queen (2002) 213 CLR 606 R v Ambrosi [2004] 144 A Crim R 67 R v Chang (2003) 140 A Crim R 573 R v Mato and Rusu [1999] NSWCCA 39 R v Nguyen (2001) 118 A Crim R 479 R v Sievers [2004] 151 A Crim R 426 Regina v Habib [2005] NSWCCA 223 Zoneff v R (2000) 200 CLR 234

PARTIES: James Herbert Bolus (Appl) The Crown

COUNSEL: S J Odgers SC (Appl) P Roberts SC (Crown)

SOLICITORS: Kings Lawyers (Appl) Commonwealth Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2005/1939

McCLELLAN CJ at CL HULME J ADAMS J

THURSDAY 15 JUNE 2006 BOLUS, James Herbert v REGINA Judgment 1 McCLELLAN CJ at CL: The appellant was convicted, with Richard Bruce Cornwall and others, of conspiring to import into Australia a commercial quantity of cocaine (120 kilograms) an offence against s 233B(1)(b) of the Customs Act 1901 (Cth). The conspiracy was alleged to have occurred between 1 January 2001 and 6 August 2001. 2 The appellant, Cornwall and three others, David Norris, Vincent Francis and David Dicecco were tried before Blackmore DCJ and a jury. The jury returned verdicts of guilty in relation to the appellant and Cornwall but was not able to agree on verdicts in relation to Norris, Francis and Dicecco. The appellant was sentenced to ten years imprisonment with a non-parole period of six years. 3 The trial before Blackmore DCJ was the second occasion on which Cornwall and the appellant (as well as Norris, Francis and Dicecco) had stood trial for this offence. The first trial took place in the Supreme Court before Howie J and a jury when there were nine accused. On that occasion the jury returned guilty verdicts in relation to John Lawrence and Guillermo Diez and not guilty verdicts in relation to Daniel McDougall and Dominic Brokenshire but were unable to reach verdicts in relation to the remaining five. 4 The appeal in this matter was heard together with the appeal in the matter of Cornwall. In my reasons for judgment in relation to the Cornwall matter I have related the essential elements of the Crown case. In essence the Crown alleged that the accused were involved in a conspiracy to import cocaine from Columbia on a boat called the "Flaning". The Australian arm of the venture was alleged to have been organised by Cornwall and John Lawrence. The Crown alleged that the present appellant had been enlisted by Lawrence to assist in the acquisition of a motor vehicle suitable to tow a boat, described as a "Zodiac craft", and to organise payment for this boat. The Crown alleged that the purpose of enlisting the appellant was to ensure that there was no discernible association between Lawrence and the purchase of the boat and vehicle. 5 The evidence tendered against the appellant consisted of observations of his movements and recordings of various conversations in which he participated. One important conversation occurred on 24 April 2001 at 10.50 am. It was recorded on a listening device placed in a motor vehicle. Lawrence is recorded as saying: "I don't know what the sales are, and I know the other bloke that's made a bit of a blue with … drop in the dollar … you know what I mean? … it all depends what I think there might be renegotiations." Lawrence says: "anyway I'm just, I'm telling you what's being said and what hasn't been said, you know like I've got my idea of values and fuckin whose valuable and what the fucks … but naturally he's, they think, even the other bloke, they're the bosses they said we're the bosses … I don't think like that." 6 Later, the conversation turns to the four-wheel drive. The appellant informs Lawrence that the person that he was trying to call on the telephone was not available. Lawrence indicates that he will go home and pick up a phone "in case we've got to give a number." They later discuss not being able to avoid "short cuts" and Lawrence then (as the Crown alleges) complains of what Cornwall (although he does not use his name) was doing or not doing in the venture. Lawrence says: "What do you think I'm talking to you for? Fuckin I've got that much to fuckin do, the bloke's fuckin … sitting back having meetings … how much to you think he's getting, everyone … break the cunt that's just they just pass the buck they big note themselves, I'll fix that up mate, and pass it on, he said I don't know these people, I said no you don't know how to go about it doing things because you think everyone's a fucking mug." 7 They talk about registration of a vehicle so that it cannot be traced back to Lawrence. Lawrence then expresses concern that the appellant realises the risk associated with his involvement in the venture. Lawrence says to the appellant: "I just want you to feel comfortable." The appellant replies: "I always got the fuckin sense to know whether it's fuckin right or wrong … believe it or not I'll look at a fuckin situation. If I was sitting on a fuckin jury would I fuckin believe it?" Lawrence says: "It'll be sweet mate, sweet if you're not the one doing it." 8 A further conversation is recorded later that morning. They speak of the purchase of a vehicle when the appellant says "I was gonna say I could ring this fuckin bloke myself and … sound him about a cash price", "then again it might break up the negotiation", and "I'll go down, I can go down and have a look at it." Lawrence tells the appellant to ring "this bloke". Lawrence tells the appellant "well, see we'll pay up to 24" and to find out "what colour it is, if it's good for towing if it's got everything." The appellant tells Lawrence that they should "go and have a look" (at the four-wheel drive) and they discuss the price. They are later recorded discussing mechanical reports and putting the registration in the appellant's name. During the course of this conversation Lawrence says: "but you know what I'm gonna use it for, so if it comes to the fuckin … ." to which the appellant replies: "I know" and Lawrence then says: "If it comes to a shit fight I'd just go, like if I went under … I could say I borrowed it", "but I'm, what I'm saying you you've got that if you want it." 9 Later that day the appellant and Lawrence are observed by police leaving a shop called "Inflatable Boats". They are later recorded discussing a plan to look over the car and make arrangements with the bank to obtain a bank cheque for payment. Further conversations are recorded and observations made of the appellant. On 26 April 2001 the appellant is observed to return to the vehicle having deposited money in the bank. A conversation is recorded between the appellant, Lawrence and McDougall in which the appellant says: "happy days" and "that's right didn't even … ID or anything." The appellant says "That's what I'm saying, they've got about eight fuckin tellers in there didn't even … all she did was check and see if I had the right numbers … everything only relates … where I get over … ." Discussion ensues about the prospect of the appellant going on vacation and Lawrence indicates that very shortly "you'll be able to do it in style." Later the appellant and McDougall hand over $25,000 in cash to Mr Green the vendor of the four-wheel drive vehicle. 10 Further observations are made of the appellant driving a motor vehicle containing Lawrence and McDougall. In particular on 28 April 2001 the appellant is observed by police driving the vehicle. 11 At approximately 1.36 pm on 30 April 2001 the appellant using the name M J Benns deposits $20,000 in cash into the account of Club Yacht Sales at the Westpac Bank at 341 George Street, Sydney. On 1 May at 1.38 pm the appellant, Lawrence and McDougall are observed leaving the appellant's premises in the four-wheel drive. The appellant is later observed at the counter of the Westpac Bank at 341 George Street, Sydney where he deposited a further amount of $23,000 cash into the account of "Club Yacht Sales". The Crown alleged that these deposits were made in order to pay for the Zodiac boat intended to be used to pick up the drugs at sea. 12 On 3 May 2001 Lawrence, Brokenshire and McDougall travelled to Melbourne to collect the Zodiac boat which is later deposited at Mark Rowell's marina at Newport. 13 Recordings are made of conversations between the appellant and Lawrence about the storage of the boat and its rental. The conversations take place after the police have carried out arrests of some of the alleged conspirators. At 2.43 pm on 16 May a conversation is recorded between the appellant and Lawrence. The appellant asked Lawrence: "What's your plan now then because he, Mark (a reference to Rowell) said, that it's (the boat) most, most likely be ready at lunch time tomorrow or Friday then … " The appellant indicates that he would like to have a look at it (presumably a reference to the boat) with him (presumably a reference to Lawrence). Lawrence says that he doesn't know where it (the boat) is. The appellant tells him that it's in "Mark's yard wherever the office is." Lawrence says "he (presumably a reference to Rowell) doesn't want me going near the joint." The appellant asked Lawrence whether "Brock" is going with him. Lawrence indicates that he is and says: "Brock don't know anything about this, all Brock is, he's getting the, I just want him there for his knowledge of the boat, the motors the GPS." 14 On 19 May 2001 Brokenshire and McDougall collect the Zodiac from the marina at Newport. Lawrence waits outside the marina for them. They then meet and take the Zodiac up to Telegraph Point. 15 On 23 May 2001 Diez arranged for another alleged conspirator, Wouter to meet with Lawrence at Lawrence's unit. Lawrence and Wouter (with some assistance from Brokenshire and Diez as Spanish interpreter for Wouter) discuss suitable rendezvous points to meet the "Flaning". They eventually decide on a position 129 miles off the coast at Port Macquarie. Recorded conversation from Lawrence's vehicle between Lawrence and Brokenshire reveal that there was a problem in relation to obtaining the correct charts to work out the rendezvous points. Later that afternoon the four of them (Lawrence, Wouter, Diez and Brokenshire) travel in the four-wheel drive vehicle. A conversation was recorded in the vehicle at about 6.28 pm in which Lawrence said: "just go and pick these other charts up so he's got 'em, can go, alright, go home and dump these somewhere to have something to eat, wherever … ." 16 At about this time the vehicle is observed by police pulling up at the appellant's premises at Aboud Ave. Lawrence was observed to get out. The listening device tape records Lawrence returning to the vehicle about 5 minutes later. It also records the appellant's voice outside the vehicle apparently bantering with Brokenshire who was at this time inside the vehicle. The police were not in a position to make any observations of Lawrence returning to the vehicle or of the appellant speaking to someone in the vehicle. However, shortly after this, the vehicle was seen parked near a restaurant. The police there observed a number of rolled up charts sticking out of a black sports bag behind the driver's seat. The Crown case was that these charts had been obtained from the appellant. 17 On 9 August 2001 the appellant participated in a record of interview with the Federal police. During that interview the Crown case was that the appellant down played his contact with Lawrence. It was argued that he also down played his role in the purchase of the four-wheel drive vehicle and, although he admits to signing bank deposit forms in a false name, this only occurs after the police have told him that they know of the deposits. 18 The appellant did not give evidence at the trial. However, his record of interview was tendered. During that interview he was played extracts from some of the listening device material on which his voice was recorded. In one of the extracts Lawrence, who was in conversation with the appellant is heard to mention "Brocky." The Crown case is that this is an expression short for Brokenshire. As I have indicated the listening device material tendered at the trial demonstrates that the name "Brocky" was mentioned on a number of occasions when Lawrence and the appellant were in conversation. However, when the listening device material was played to the appellant by the police during the interview, the appellant said in relation to the name "Brocky": "what's that, broccoli?" The appellant denied knowing or hearing of "any Brock." 19 There was no dispute at the trial that the appellant had assisted Lawrence to purchase the boat and the vehicle in a way that would conceal Lawrence's involvement. It was also accepted that the appellant would have appreciated the possibility that Lawrence intended to use the boat for some "dodgy purpose." The defence case was that the appellant did not know that the boat was intended to be used in connection with importing drugs into Australia. He says that he was doing a favour for Lawrence but did not understand that anything he was doing was wrong.

Ground One - The trial judge erred in failing to direct the jury regarding evidence relied upon by the Crown as evidence of the appellant's consciousness of guilt 21 In his final address the Crown prosecutor said: "In relation to the accused Bolus there is a record of interview. Again, it's only admissible as against him. And things that we point out, we suggest that during the course of that interview Bolus is in effect fishing for information from the police as to what they know before he actually says anything. You need to just listen to that. But that's what we suggest is happening. And you may recall some of those comments that he made in relation to the matters that were played to him, such as when there's a reference to 'Brocky' in one of the listening device tapes that was played to him, he says: 'Oh, what's this, broccoli?', or something along those lines. And again we suggest to you that he knew full well what the name Brocky was when mentioned, but was not saying it to the police when he was being questioned, which we suggest is indicative of what lawyers sometimes call consciousness of guilt." 22 It was submitted in the appeal that the jury would have understood from this submission that they were being invited to infer from aspects of the interview that the appellant knew that he was guilty of being involved in the attempt to import drugs into Australia and answered questions in a way designed to avoid implication in the conspiracy. The reference to "consciousness of guilt" should be understood as applying not only to the reference to "Brocky" but also to other parts of his interview, in particular to the way in which the appellant was "fishing for information." 23 With regard to the reference to "Brocky" it was submitted that the jury would have understood that the Crown Prosecutor was arguing that the appellant was telling lies to the police about his lack of knowledge of the name "Brocky" because he knew that such knowledge linked him to the attempted drug importation. With respect to the reference to "fishing for information" it was submitted that the jury would have understood that the Crown Prosecutor was arguing that the appellant, aware that he had been involved in the attempted drug importation, was trying to find out what the police knew and what evidence they had against him before he actually gave his version of events. 24 In summing up the trial judge referred to the record of interview and said: "Both the Crown and the accused rely upon parts of what he said in the interview. Ultimately, what you make of it, if anything, is completely a matter for you. The Crown says, in effect, that you would find that Bolus moved ground constantly in the interview and was only forthcoming about matters when he knew what the police had learned as they provided him with information whilst they were asking him questions. In effect, the Crown says that Mr Bolus was fishing for information in the course of the interview. … What, if anything, it reveals by the answers given by Bolus or the way he answered particular questions is completely a matter for you." 25 It was submitted by the appellant that having regard to the remarks made by the prosecutor, the directions given by the trial judge were inadequate. Although criticism could be made of the responses which the appellant made during the interview, which may not have required particular directions from his Honour, because the prosecutor invited the jury to infer consciousness of guilt from aspects of the interview, including the alleged lie in relation to "Brock", the jury should have been directed as to the caution they should exercise before inferring the appellant was conscious of his guilt of the crimes charged: Edwards v R (1993) 178 CLR 193; Hugo (2000) 113 A Crim R 484 at 497; R v Sievers [2004] 151 A Crim R 426 at 433-436. 26 In particular it was submitted that the jury should have been directed that they could not use the alleged lie by the appellant regarding Brock as evidence of guilt unless they were satisfied of the matters referred to in Edwards and R v Ambrosi [2004] 144 A Crim R 67 at 83-85. 27 In relation to reliance on the appellant "fishing for information" it was submitted that if there was any doubt about how the Crown was relying on it, this should have been clarified in the absence of the jury (Zoneff v R (2000) 200 CLR 234 at [17]). If relied upon as consciousness of guilt careful directions were necessary: see R v Nguyen (2001) 118 A Crim R 479 at pars 18-20, 88-99; R v Chang (2003) 140 A Crim R 573 at pars 40-48). 28 It was submitted that the jury would have to have been directed that they must not use the alleged conduct of the appellant as evidence of guilt unless they were satisfied that the appellant was indeed "fishing for information", they were satisfied that there was no other explanation consistent with innocence for it and satisfied that the appellant only engaged in the conduct because he knew, by providing the answers before he found out what the police already knew, he may implicate himself in the offences charged. It was submitted that they should also have been directed that the conduct relied upon by the prosecution could stem from reasons other than the realisation by the appellant of his guilt of the crimes charged, such as fear of wrongful conviction. They should have been directed that, even if satisfied that the conduct of the appellant arose from feelings of guilt, they must be satisfied that it did not arise from guilt over his assisting Lawrence whilst aware that Lawrence was engaged in some kind of criminal enterprise which may not have involved drug importation. 29 The matter was not raised at the trial and leave under Rule 4 is required. It was submitted that there were no tactical considerations which would have led defence counsel not to seek an appropriate direction. 30 The Crown responded by submitting that the relevance of the record of interview was merely to strengthen what was otherwise a strong Crown case having regard to the observations and listening device material. Furthermore, it was suggested that its utility was limited to rebutting any suggestion that the appellant was co-operative and forthcoming with police and was not put as corroborating any aspect of the evidence. 31 With respect to Rule 4 the Crown submitted that there may have been significant tactical reasons for the appellant's counsel not making a request for an Edwards direction at the trial. To do so would have drawn attention to the prospect that the appellant was lying in the interview and would have elevated the issue beyond the significance which it had previously had in the trial. 32 In my opinion, the remarks made by the prosecutor in his address to the jury required that an Edwards direction should have been given. But for the reference by the prosecutor to "consciousness of guilt" the submission of the Crown may have passed without comment, and the effect of the evidence been confined to matters of credit. However, once the claimed consequence of the evidence was elevated by the prosecutor to "consciousness of guilt" a reminder that persons may tell lies for reasons other than to avoid detection was called for. 33 As I have indicated no complaint was made in relation to this aspect of the judge's directions at the trial. However, it could hardly be that the remarks by the prosecutor went unnoticed and that a decision not to seek further directions was inadvertently overlooked. The record of interview presented obvious difficulties for the defence and counsel must have been both conscious of those difficulties and alert to how the matter was dealt with by the prosecutor and, more particularly, in the directions given by the trial judge. 34 In these circumstances I am inclined to the view that defence counsel must have made a conscious and informed decision not to seek a redirection. This is understandable given the fact that it would have been necessary for the direction to be framed upon the basis that the jury may have come to the conclusion that the appellant was lying. This would have given greater emphasis to the record of interview and may have inadvertently strengthened the Crown case. 35 In any event I am satisfied that the Crown case was strong. Even without the record of interview the involvement of the appellant in the enterprise was admitted, the only question being the appellant's knowledge that importation of cocaine was proposed. There was significant evidence, apart from the record of interview, to support the jury's conclusion in this respect. 36 For these reasons I would decline leave pursuant to rule 4.

Ground 2: The verdict of the jury was unreasonable 37 Section 6(1) of the Criminal Appeal Act provides as follows: "The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 38 As I noted in Regina v Habib [2005] NSWCCA 223 at [48] the application of the section has proved troublesome, but was authoritatively considered by the High Court in MFA v The Queen (2002) 213 CLR 606, M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439 at 493. Gaudron, Gummow and McHugh JJ in Jones at 450-1, as well as Gleeson CJ, Hayne and Callinan JJ in MFA at 615 held that when the issue is whether the verdict of a jury is unreasonable or cannot be supported, the relevant test is that formulated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493-4: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. 39 In R v Habib [2005] NSWCCA 223 I stressed that the task of the court was to supervise the findings of the tribunal of fact and I said: "In MFA the High Court was concerned with whether the analysis of the facts of a trial by this Court was appropriate. In carrying out the appellate task the joint judgment emphasised that it was relevant to identify whether the evidence in the Crown case was "cogent and unequivocal, and it was not inherently implausible"[30]. The relevant question is whether "it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt" [36].

In MFA, McHugh, Gummow and Kirby JJ joined in a separate judgment. Their Honours emphasised that it was important to focus on the language of s 6(1) which because of the inclusion of the word "unreasonable" "seems to state a very broad test"[47]. However, their Honours point out that the seeming amplitude is to be restricted by the context. Being a verdict of a jury which is given a special place in the law to set it aside involves "a serious step"[49]. The requirement of the section is that the court must determine whether there has been a "miscarriage of justice" notwithstanding that the jury has returned a guilty verdict.

Embracing the test adopted by the majority of the court in M the joint judgment stated: 'Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence' [55].

The joint judgment offered the following by way of guidance: 'The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred: If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56].

In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention [96]." 40 In Knight v The Queen (1992) 175 CLR 495 at 503, Mason CJ, Dawson and Toohey JJ expressed the relevant question in the following terms: '… if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.' 41 It must be emphasised that this formulation of the relevant question must be understood in a manner consistent with the principles in M. More is required than the mere formulation of possible alternative interpretations of the evidence that are consistent with innocence.

The appellant's argument 42 It was conceded by the appellant that it was open to the jury to be satisfied that he knew the boat and vehicle were to be used for some kind of criminal purpose, but not that he knew that it was for the importation of drugs. It was submitted that the only evidence in the Crown case advanced to support the latter proposition was the appellant's knowledge that Lawrence was often involved in illegal schemes. 43 The appellant submitted that there is no reference to drugs or anything that could be regarded as a code for drugs in any of the recorded conversations. Furthermore, it was submitted that there was no evidence that, when the original arrests took place, the appellant was warned by Cornwall, or anyone else, to be careful which it was said would have been likely if the appellant knew of the "true" enterprise. The appellant also emphasised that evidence of a friendship with Lawrence extending over many years, makes more plausible the proposition that the appellant might have cooperated with Lawrence as a favour, without necessarily being told of the importation. It was submitted that evidence that some of the others involved, namely Brockenshire and Norris, were not told of the drug importation supports the plausibility of Lawrence neglecting to inform the appellant of the use planned for his purchases. The appellant argued that there was no particular reason in the context of the operation why the appellant should know of the complete enterprise. 44 Three particular conversations were addressed in some detail in the submissions: the conversations of 24 April 2001 beginning 10:50 am, and 11:54 am and 16 May 2001 beginnng 13:09. The conversation of 24 April 2001 at 10:50 am refers to the appellant's awareness of the risk of involvement and contains a discussion with respect to price negotiations. The appellant contends that it does not provide evidence of the appellant's understanding of the conduct creating the risk and does not have the character of a conversation about the pricing of drugs. At 11:57, the same day Lawrence is recorded as saying to the appellant "you know what I'm gonna use it for", to which the appellant replies "no". It was submitted that this suggests the appellant did not know the purpose of the enterprise. Furthermore, it was argued that it is not clear what "it" refers to. Finally, it was submitted, that it cannot be inferred that, if Lawrence had told the appellant of a proposed use of the boat, he would have told him the truth. 45 It was the appellant's submission that the long conversation on 16 May 2001 between Lawrence and the appellant in which a boat is discussed concerns a yacht, which Lawrence was planning to charter and then steal, not the Zodiac purchased by the appellant. Furthermore, the appellant emphasised that the Crown conceded at the first trial, and no suggestion to the contrary was advanced in the second trial, that a reference to 'the dope' by Lawrence in this conversation referred to Brockenshire not to the drugs to be imported.

The Crown case 46 The Crown accepts that the recorded conversations are at times ambiguous, but submits, in my opinion correctly, that the whole of the evidence available to the jury must be considered when determining whether the appellant was aware of the enterprise. The Crown Prosecutor suggested to the jury that from the recorded conversations they could conclude that: 'Bolus was perfectly well aware of the nature of the enterprise with which he was involved, not just hiding the identity of a boat or putting money in a bank account. When you listen to what is being said you will draw the inference that he knew full well what he was involving himself in'. 47 The Crown emphasised that there was a series of meetings between the appellant and Lawrence, as well as others involved in the importation, apart from the recorded conversations. Given evidence of the close relationship between the appellant and Lawrence, confirmed in both conversations of 24 April, and the appellant's knowledge of the serious nature of the venture, it was open to the jury to conclude that he knew of the purpose for which the boat and vehicle had been purchased. Apart from his role in the purchase of the boat and vehicle, the appellant was aware of the subsequent steps to secrete it from the authorities whilst it was stored for later use in the enterprise.

Conclusion as to unreasonable verdict 48 The question is whether, on the whole of the evidence, the inference that the appellant knew of the proposed drug importation was open to the jury. While counsel advanced a number of alternative hypotheses, such as people-smuggling or larceny at sea, as possibilities, there is no evidence that the appellant understood that these were ventures for which the boat was to be used. 49 It was argued that there was no reason for the appellant to be told the true purpose of his purchases, that he was good friends with Lawrence and so would do a favour without questioning, and that Lawrence did not necessarily reveal his plans to all who were involved. Each of these propositions required analysis but they were matters for the jury to consider having regard to all of the evidence. This Court should not intervene (see MFA v R (2002) 213 CLR 606 at 621). 50 An essential element of the appellant's argument was the fact that drugs are not referred to directly in the recorded conversations. This may be accepted but the evidence presented by the Crown is capable of supporting the inference that the appellant knew that Cornwall was involved in importing drugs. It was obvious that there was extensive and detailed preparation required for the enterprise. It was the Crown case that apart from the boat and vehicle the appellant had obtained the charts necessary to arrange the rendezvous point. It was open to the jury to accept this evidence which implied a knowledge of the appellant in the purpose of the enterprise. I am satisfied that the evidence was such that the jury could find that the appellant was aware of the true nature of the enterprise. 51 Juries are required to employ their common sense and experience of the world. It is by no means surprising that a jury accepting this obligation would infer that someone, consciously engaged in some illicit activity at Australia's borders, would know the subject of his activity. A fortiori is this so when the "knowledge" required is merely "belief" or "aware(ness) of the likelihood, in the sense that there is a significant or real chance" as a number of remarks in the High Court, referred to at some length in Cao v R [2006] NSWCCA 89 at [27] et seq, make clear. 52 Obviously account would need to be taken of the evidence in a particular case but in the absence of more than I have postulated in the immediate preceding paragraph, I see no reason why a jury might not reasonably be persuaded of the inference beyond reasonable doubt. 53 This case can be distinguished from others where an inference of knowledge on the part of an accused was held not to be available. In R v Mato and Rusu [1999] NSWCCA 395 the issue was whether Mr Mato knew that Ms Rusu had just robbed a bank at the time of the robbery or as he drove her away from the bank. The only evidence going to this knowledge was 'the fact of earlier financial difficulties or obtaining credit' which was held by the court at [24] to 'not support an inference that he learnt about it after she emerged from the bank and during the period they were driving away presumably to their home.' In the present case the evidence discloses the appellant's involvement in the operation to such an extent that it could be readily concluded that he knew what it was about. 54 This ground of appeal fails. 55 In my opinion the appeal should be dismissed. 56 HULME J: I agree with McClellan CJ at CL. 57 ADAMS J: I agree with McClellan CJ at CL. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)

Cited By (1)