Cornwell v R - [2010] NSWCCA 59 - NSWCCA 2008 case summary — Zoe

NSWNSWCCA

Cornwell v R

[2010] NSWCCA 59

Court of Criminal Appeal (NSW)|2008-10-21|Before: Simpson J, Johnson J, Clellan CJ

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2008-10-21

Before

Simpson J, Johnson J, Clellan CJ

Source

Original judgment source is linked above.

Judgment (68 paragraphs)

[1]

The application before Blackmore DCJ - for access to the sworn information 251 The law concerning the circumstances in which access will be granted to material in respect of which public interest immunity is claimed is set out in the judgment of McClellan CJ at CL. I do not propose here to repeat it. 252 On 2 February 2004, before the commencement of the second trial, counsel for the appellant sought access to the whole of the sworn information that had been presented to the AAT member. This was in the context of senior counsel again applying to have the evidence derived from the listening device excluded under s 138 of the Evidence Act. Access was resisted by the Crown, and by the Australian Crime Commission ("ACC"). A further voir dire was conducted, at which Agent Welsh again gave evidence and was cross-examined. Agent McMahon was serving in East Timor and was not available. An application for adjournment to enable his attendance was made. 253 Like Howie J, Blackmore DCJ had access to, and read, the whole of the information. After Agent Welsh's evidence, and after hearing lengthy argument from the parties (including the ACC), Blackmore DCJ gave his ruling. The transcript records the following: "Firstly, on the question of whether there should be access granted to the subpoenaed material which was the application made to the AAT for the issue of a listening device intercepted communications warrant and refused access to any further material , in relation to a grant of an adjournment so that the witness Mr McMahon can be called to give evidence on the voir dire, I refuse any such adjournment at this time." (bold added) 254 I take this to be a mis-transcription. The passage in bold ought, relevantly, to read: "I refuse access to any further material …" (AB 293) 255 He then said that he would give reasons for the two decisions. 256 It is the ruling refusing access that is the subject of the present ground of appeal. No issue is taken as to the refusal of the adjournment. 257 A little later his Honour also refused to exclude the evidence under s 138 of the Evidence Act. He said that he would give a judgment in due course. 258 On 12 March 2004 Blackmore DCJ delivered reasons for refusing the s 138 application. He did not give separate reasons for refusing the application for access to the affidavit. In the course of giving reasons for refusing to exclude the evidence he said: "7 … I pause to note that [the appellant] sought access to the whole of the affidavit (sic - information) provided to the AAT member. I have considered that application. In the course of considering it I read the contents of the affidavit. I formed the view that there was no forensic purpose demonstrated for access to the whole of the affidavit. That which was relevant had been revealed in the former proceedings by consent and is outlined above in paragraph 8 of Justice Howie's judgment." 259 His Honour having found that no legitimate forensic purpose for access had been established, concluded it was unnecessary to proceed to consider a claim by the ACC for public interest immunity. 260 In his reasons his Honour drew heavily upon, and largely agreed with, the judgment of Howie J. He quoted and adopted para 23 in full. This included Howie J's reference to "material in the affidavit" supporting a connection between Lawrence and the appellant's premises, which he (Howie J) particularised as:

[4]

It is explicitly stated in the judgment that each of these statements appeared in the information. 261 The application for access to the sworn information was to gain material that would establish a foundation for a further application under s 138 of the Evidence Act, that the evidence derived from the listening device be excluded because it was obtained improperly. The impropriety alleged was a misstatement, in the information, of what had been observed by the surveillance team, and consequent overstatement of the evidence linking Lawrence with the appellant's evidence. The appellant already had a finding, by Howie J, of one such misstatement, but that had been insufficient to persuade Howie J to find impropriety, or causation. 262 It must be remembered that, at the time of the second application, before Blackmore DCJ, the appellant had available to him no more of the sworn information than he had had in the first trial. 263 But he did have, in addition, the judgment of Howie J, Howie J having had access to the whole of the information. That included the two statements set out above. 264 It is (and was, before Blackmore DCJ) the contention of the appellant that each of these statements was incorrect, or, at least, not supported by the documentary material: in the case of the former, the transcript of the telephone intercepts, and in the case of the latter, the surveillance sheets. If it is the case that either or both of these statements is incorrect, and was contained in the information put before the AAT member, then the appellant's claim for access to the information is considerably strengthened. 265 That is because an accumulation of factual misstatements would suggest (a) a greater level of impropriety; and (b) a stronger inference that the misstatements caused the issue of the warrant. Howie J had held that the one known misstatement at that time was inadvertent; multiple misstatements could raise suspicions about whether they were inadvertent or deliberate. If deliberate, they would be more likely to be characterised as impropriety. And a large number of relevant misstatements would obviously be more likely to be held to have caused the issue of the warrant. 266 Whether there was error in Blackmore DCJ's refusal of access to the information must be determined in the light of what was known at the time of the refusal. I repeat, the appellant had available to him only para 62 of the information; he did not know what other statements had been made to the AAT member. Blackmore DCJ, of course, did know what had been put to the AAT member. 267 Counsel argued that, following the judgment of Howie J, there were now three known misstatements, and that this was sufficient to give rise to a legitimate forensic purpose in seeking access: the argument being that, if three misstatements were known to have been made, then it was "on the cards" that there were more, and, if so, that would raise real issues about the propriety of Agent Welsh in obtaining the warrant. 268 Blackmore DCJ went on to hold, as had Howie J, that any impropriety (each was prepared to assume, for the purposes of the decision but without expressly finding, that the "misstatement" was, for the purposes of s 138, an impropriety), had not resulted in the issue of the warrant, and thus the obtaining of the listening device evidence. He held that there was "ample other information" in the information in support of the issue of the warrant, disregarding the "misstatement". In adopting para 23 of Howie J's judgment, Blackmore DCJ adopted the observation that "there is no evidence that there was any other material inaccuracy or misstatement in the affidavit". But it is to be remembered that each of these judgments was dealing with admission or exclusion of evidence in the context of s 138. Except to the extent I have mentioned, (in the judgment of Blackmore DCJ) neither was explicitly directed to the question of the appellant's access to the information for the purpose of establishing the basis for the s 138 application. 269 Blackmore DCJ held that there was evidence upon which it could be inferred that Lawrence did leave the appellant's premises on 27 February, even though he may have been unobserved. He did not identify the evidence upon which he relied to support such an inference. He then held, as had Howie J, that even if the evidence had been improperly obtained and had resulted in the issue of the warrant, he would have exercised his discretion to admit it. 270 His Honour went on to consider a further argument put to him, but not repeated in this Court, that, even if the issue of the listening device warrant on 27 February were held to have been not improper, its maintenance at a time after police became aware that Lawrence was not living in the unit was improper. Since that argument was not here raised it is unnecessary to take time upon it. 271 The first question for determination is whether either or both of the two statements said by Howie J to have been contained in the information was or were wrong. The first is the telephone call, in which Ms Keane is said (by Howie J) to have believed that Lawrence was "living" at the appellant's unit. 272 Counsel for the appellant did have available to him some evidence about that telephone call. 273 It is not in dispute that there was an intercepted telephone call, between Ms Keane and Mrs Cornwell. No transcript (or recording) of it was put before this Court. Indeed, Mr Game SC, who appeared for the appellant, said that, although it had, at some stage, been produced, and trial counsel had apparently had access to it, the appellant's current legal representatives have been unable to locate it. Thus, the precise words used by Ms Keane cannot be known. The best evidence of its content is to be found in the cross-examination of Agent McMahon in the proceedings before Howie J. It is best to set out the relevant cross-examination in full: "Q You were aware, were you not, that investigators had intercepted a telephone call on Friday, 23 February 2001 between Yvonne Keane and Lois Cornwell, is that right? A Yes.

[8]

(Obviously, the reference to "Bruce's" is a reference to the appellant.) 274 The question which then arises is whether what was contained in the information that was put before the AAT member (not Howie J's interpretation or paraphrase of it) was a "misstatement". 275 It may be that the manner in which Howie J paraphrased the information created a false scent. The conversation between Ms Keane and Mrs Cornwell, as paraphrased in the questions put to Agent McMahon, and accepted, was capable of being interpreted as meaning that Lawrence was "staying" with the appellant or, however temporarily, living there. 276 On appeal, counsel drew attention to the discrepancy in terminology - the statement by Ms Keane, on 23 February, that Lawrence was "still there", "over at [the appellant's]" and Howie J's statement that Ms Keane believed he was "living there". I do not think that there is sufficient difference between the two to justify calling the latter a "misstatement". (Indeed, counsel subsequently abandoned reliance upon this argument.) 277 But the second is in a different category - that is, that Lawrence had been sighted in the courtyard of the premises on 26 February. This was not supported by the surveillance log. 278 These were thus two apparent misstatements in the information, each concerning asserted observations of Lawrence in the appellant's premises, or in the near vicinity. 279 This was sufficient, in my opinion, to call in question the integrity of the information. It was essential for Agent Welsh to establish to the AAT member that Lawrence was connected with, and likely to be at, the appellant's premises. Two misstatements to that effect entitled the appellant's legal representatives to explore further whether the warrant had been obtained improperly. 280 I have, accordingly, come to the conclusion that, in the circumstances, a legitimate forensic purpose had been established, and that access ought to have been granted to the whole, or at least relevant parts, of the information. 281 The question that next arises is what consequences flow from that conclusion. 282 On the hearing of the appeal the appellant's legal representatives again sought access to the information that had been filed in support of the application for the warrant. After negotiation, a redacted copy was produced to the appellant's legal representatives. This was the first time the appellant's legal advisers had had access to any of the information other than para 62. The information in its entirety was made available to the Court. In some respects the additional material produced has (at least in the eyes of the appellant's legal representatives) enhanced their argument. Included in the parts of the information now made available to the appellant are the following two relevant additional paragraphs: "60. At 7.08pm on 23 February, 2001 Yvonne Keen (sic) again spoke to Lois CORNWELL and stated that both LAWRENCE and Craig were now staying at Bruce's (this is believed to be a reference to CORNWELL). Yvonne has also stated on a number of intercepted calls that she does not want LAWRENCE in her life and that he would not be welcome to return to her premises at …

[9]

At about 2.50pm on 26 February 2001, NCA surveillance observed LAWRENCE exit through the courtyard of unit block 79-85 Brougham Street, Woolloomooloo, CORNWELL resides in unit 9/79 of those units. LAWRENCE was observed to walk down McElhone Street and enter vehicle RX1979 and then depart the area." 283 Paragraph 62 is also relevant, and has been set out above. It is convenient to repeat it here: "62. On the morning of 27 February 2001, about 7.00am, NCA surveillance observed vehicle RX1979 parked in McElhone Street, the laneway beside 79 Brougham Street, Woolloomooloo. About 7.56am CORNWELL was observed to depart the premises. About 8.50am LAWRENCE was observed walking away from the unit block 79-85 Brougham Street. LAWRENCE walked along the footpath, entered his vehicle, which was parked in McElhone Street, and then drove to the Botany area." 284 Paragraph 60 is clearly the basis of Howie J's reference to a telephone call indicating a belief on the part of Lawrence's partner that Lawrence was living at the appellant's premises. Paragraph 61 is not accurately paraphrased by Howie J, a matter to which I will return. There is no reference in the information to Lawrence having been seen in the courtyard on 26 February. 285 What is contained in the information records with complete accuracy the observations of the surveillance team as recorded in the surveillance log. Those observations are not entirely accurately reproduced in the judgment of Howie J. 286 That leaves only the misstatement about the presence of Lawrence in the vicinity of the unit at 8.50am on 27 February. Both Howie J and Blackmore DCJ regarded this as the result of inadvertence rather than indicative of impropriety. I agree. 287 Agent Welsh, in the opening paragraph of the information, said that there was information that Lawrence was "staying" at the appellant's premises. In para 60 she attributed to Ms Keane a statement that Lawrence was "staying" at the appellant's. To the extent that this makes any difference, it probably suggests something less than "living" at the premises. That removes some of any sting that is left in the appellant's contentions in this regard. 288 Having had access to the redacted copy of the information, senior counsel for the appellant identified no other material that would have advanced his case on impropriety. I perceive nothing in the unredacted copy of the information that would do so. 289 Accordingly, while I am of the view that, in the circumstances as they existed before Blackmore DCJ, the appellant ought to have been granted access to the information, I am satisfied that its non-disclosure had no adverse consequences, and, in particular, has occasioned no miscarriage of justice. 290 It must, however, be considered whether the view that there was "ample other evidence" in the information to support the issue of the warrant affected Blackmore DCJ's judgment. Despite the misapprehension about what was seen on 26 February, there remains, in the information, evidence sufficient to support a connection between the appellant and Lawrence. In those parts of the information that have been disclosed the following information appears:

[19]

(ii) The tape recordings of 23 intercepted telephone calls involving the Bennett brothers …" 301 All the material referred to in (i) is material drawn from the sworn information presented in support of an application for the issue of the warrant under s 219B of the Customs Act 1901 for the installation of a listening device in the appellant's residence; "the warrant application" is the application for the warrant, but what is referred to is the information on oath presented in support of that application. Full details of these matters can be found in the discussion of ground 6. "The Bennett brothers" are two brothers, Rodney and Tony Bennett, whose names appear in some documentary material later provided to the appellant's legal advisers, and in that part of the information that was disclosed for the purposes of the appeal, and who were, at the time of the warrant application, suspected of illegal drug activity. 302 The "matters set out in paragraph 34" of the information concerned the monitoring of John Lawrence, on 28 December 2000, by an authorised listening device, which revealed that he drove, with an unknown male, to the Wollongong area, where he was heard to say "got your binoculars", and revealed that he contacted Rod Bennett from a public telephone, saying that he was "looking at something now" and would meet him in the afternoon; and that at 3pm he met Rod Bennett in Cronulla for about 20 minutes. (This last observation was disclosed late in the trial.) 303 The "matters set out in paragraph 35" concerned a telephone call at 2.30pm on 29 December from Lawrence to Rod Bennett and a subsequent meeting, from 3.30pm, between Lawrence, Rod Bennett and Tony Bennett over about 30 minutes. 304 The "matters set out in paragraph 63 (# 2)" (three paragraphs numbered 63 appear in the information) asserted the belief of the deponent of the information that Patrick Scanlon, John Pavan and the appellant were assisting Lawrence in making preparations for an importation of cocaine into Australia. 305 The material in the second category, that is "material that was disclosed very late in the second trial" was identified as surveillance running sheets, investigation running sheets, case note summaries and summaries of telephone intercept material concerning Lawrence, the Bennett brothers, Dominic Brokenshire and others, all of which was said to have been served on the appellant shortly before 23 April 2004, late in the second trial. Some further material was received at an even later stage. 306 There is no reason to perpetuate the distinction between material not disclosed until after the conclusion of the second trial, and material that was disclosed during its currency. 307 The common element of all the material the subject of these grounds is that it is said to have been capable of lending support to a "defence" advanced by the appellant at the first trial, and therefore subject to the disclosure principles mentioned above. That defence was encapsulated in the written submissions in the following ways: "… the defence case that, during the relevant period Lawrence was directing the Bennett brothers in an illegal, maritime related enterprise." and

[21]

I will return to the italicised passage. 309 In order to dispose of these grounds of appeal, it is, regrettably, necessary to delve in some considerable detail into the history of the proceedings, the case the Crown sought to make, and, in particular, the manner in which the appellant conducted his defence both in the first trial and the second. These provide the indicators to what the Crown was required to disclose. 310 I have attempted to limit the facts to which I refer to those that bear upon the issue of prosecution disclosure. That I have omitted some facts otherwise of significance does not indicate that I have overlooked them; merely that I do not consider them to be relevant to this confined issue. 311 The indictment named as accused, not only the appellant, but also James Herbert Bolus, David Paul Dicecco, Vincent Francis, and David George Norris. It alleged that each accused: "Between about 1 January 2001 and about 6 August 2001 at Sydney, in the State of New South Wales and elsewhere, did conspire with each other, Jaime Giraldo Rincon (aka Thomas Sanchez Rodriguez), Juan Guillermo Diez Orozco, John (Jack) Lawrence, Govert van Bommel, Wouter Bastiaan van Bommel and divers others to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine." 312 The case the Crown set out to make in order to prove the charge against each accused can best be found in the Crown opening to the jury. The following account, principally drawn therefrom, is supplemented to a limited degree by some other (uncontroversial) material. 313 It was the Crown case, as put to the jury, that the "venture" involved the co-operation of at least two groups, and possibly a third. The first group was made up of individuals in South America, "the transporters", whose role it was to obtain cocaine, conceal it for importation by boat into Australia, and to liaise with the second group, individuals in Australia (including the appellant), for the transfer of the cocaine to another boat. The role of the Australian group was to take possession and arrange distribution of the drug. It was the Crown case that the appellant was the senior person managing the Australian end of the arrangement. Others involved in Australia included Lawrence and Juan Guillermo Diez Orozco ("Diez"). Diez was the person whose function it was to liaise between the two groups. Lawrence's function was to do what was described by the Crown prosecutor as "the donkey work". 314 The drugs originated in Colombia, where a man named Zapata (whose name does not appear on the indictment) was said to have been in charge of the operation, and to have recruited Govert van Bommel. Govert van Bommel was an experienced sailor. He was a man of Dutch origin who had been brought up in Colombia. A boat, of which Govert van Bommel was to be captain, was to be obtained to transport the drugs to Australia. It was to sail from Panama. It was called "the Flaning". It was to travel to a destination somewhere off the Australian coast, where it would rendezvous with a boat sent from Australia to which the drug would be transferred. 315 In Australia, the appellant's role included the management of money, organisation, and obtaining a suitable boat to effect the rendezvous with the Flaning on its arrival off the Australian coast. On the rendezvous the drugs were to be transferred from the Flaning to the Australian vessel, and brought ashore. 316 In due course, individuals involved in the Australian end of the venture did in fact purchase a vessel, a Zodiac "rigid inflatable boat", sometimes known as an "RIB". The appellant was involved in locating the boat. A "Discovery" four-wheel drive vehicle suitable for towing the Zodiac was also obtained. 317 The Flaning sailed from Panama on 8 April 2001 with 120 kilograms of cocaine concealed in a smaller boat, a "Boston whaler", on board. The journey was anticipated to be of approximately three months' duration. 318 On 15 April Lawrence travelled to Telegraph Point, a little north of Port Macquarie on the NSW mid-north coast, and identified a suitable location from which to launch the Zodiac for its rendezvous with the Flaning, and to which to return to unload the cargo. Norris lived nearby. 319 On 19 May Lawrence, Daniel McDougall and Dominic Brokenshire towed the boat to Telegraph Point. On 21 May the same men took the boat for a test run to assess its suitability for the task proposed for it. They then returned to Sydney, where Lawrence was to meet Wouter van Bommel, who had arrived in Sydney from Colombia on 16 May. Wouter van Bommel is a brother of Govert van Bommel. He is also of Dutch origin. 320 On 24 May Lawrence, Wouter van Bommel and Diez travelled to Telegraph Point in Lawrence's vehicle. Some modifications were effected to the Zodiac to ensure that it was capable of sailing far enough out to sea to meet the Flaning, and to provide a secure place in which to secrete the cocaine. 321 On 19 June another trial run of the now modified boat was conducted. It was taken about 100 nautical miles out to sea in order to ascertain its suitability for, and capacity to perform, the task of meeting the Flaning, taking aboard the drugs, and returning to shore. A local man, Robert Gladman, was recruited to assist. 322 After the trial run the Zodiac arrived on shore at about 9.30pm. 323 In circumstances shortly to be recounted, the Zodiac and the men were under surveillance by Australian Federal Police ("AFP"). AFP had become aware of the plan to transport the cocaine from Colombia, aboard the Flaning, to transfer it to another vessel, and for its reception in Australian waters. AFP, however, were unaware that the 19 June excursion was merely a trial run, not intended for the collection of the cocaine. They intercepted the Zodiac on its arrival on shore and arrested Wouter van Bommel, Norris, Lawrence and Gladman. No drugs were found. The drugs were still on board the Flaning. The men were released without charge. 324 The arrests had the effect of notifying the conspirators that the venture had been compromised. 325 After considering their options, they decided to go ahead and to take possession of the cocaine from the Flaning, but to drop it into a shallow area of sea from where it could later be retrieved. They located a suitable place to do so. 326 They did in fact take possession of the drug, dropped it in a marked selected location for later retrieval, weighed down with chains and marine batteries. The Flaning sailed to Southport in Queensland, where those aboard reported their arrival. 327 AFP became aware of their arrival and undertook a covert search of the vessel. Again, they found no drugs. 328 Because it was now known that those in the Australian group were under suspicion, alternative arrangements were made for collection of the cocaine by associates in the Philippines. These arrangements were never brought to fruition. 329 One alleged conspirator, Zapata, left the country and has never been arrested. Others were arrested. Some agreed to assist AFP in the investigation. In fact, unknown to the others, Gladman had agreed to assist AFP, and keep them informed, shortly after the arrests on 19 June. 330 On 5 August Wouter van Bommel attempted to leave the country but was arrested at Sydney Airport. He also agreed to assist AFP, and gave the location where the cocaine had been submerged. However, by the time a search was made, although the chains and batteries were found, no cocaine was located. It was theorised that storm events in the area might have released the drugs to the sea. 331 Various of the conspirators pleaded guilty and several gave evidence. 332 I have earlier mentioned that AFP were aware of the enterprise, and various participants were under surveillance. The surveillance included authorised listening devices and telephone intercepts. 333 Although the Crown case against the appellant depended very heavily upon the product of the listening device that had, on 7 March 2001, been installed in the home unit in which he lived, pursuant to the warrant issued by the AAT on 27 February 2001 (see ground 6), he himself was not then a target of AFP, and, indeed, as the Crown prosecutor made clear in his opening, AFP were initially entirely unaware, and had no suspicion, of the importation proposal I have outlined above. It seems reasonably clear that AFP were investigating a different proposed importation, in which Lawrence was also thought to be involved (together with the Bennett brothers), and that this was the reason for the surveillance. This is a matter of considerable significance for these grounds of appeal. 334 The listening device warrant installed in the appellant's premises was sought because Lawrence was under suspicion, and was himself already under surveillance, in respect of this other proposed importation. The suspected co-conspirators were named in the application for the warrant as Rodney Mark Bennett, Tony Alan Bennett, Dominic Brokenshire (aka Brock), John Lawrence (aka Jack Lawrence), Patrick Joseph Scanlon and John Bernard Pavan. The appellant's name does not feature in that list. Although the names of Rodney Bennett and Dominic Brokenshire do appear in that list, and have been mentioned in the resume of the Crown case against the appellant, they are not specifically identified in the list of names in the indictment as alleged conspirators. The only name common to the two lists is that of Lawrence. 335 However, the evidence provided to the AAT member who issued the warrant was sufficient to (and, plainly, did) satisfy him/her that there were reasonable grounds for believing that, as at the date of the information (27 February 2001), Lawrence was "staying at" the appellant's premises and that it was likely that the appellant and Lawrence would discuss "the pending cocaine importation and other drug related offences". (All of this has been detailed in the consideration of ground 6.) 336 Evidence concerning "the Flaning importation" was derived, coincidentally, from conversations recorded pursuant to that warrant. That evidence is derived from a listening device authorised for another purpose does not affect its admissibility to prove a different offence (see R v Karageorge (1998) 103 A Crim R 157; R v Haddad [2000] NSWCCA 351; (2000) 116 A Crim R 312). No suggestion was made to the contrary. 337 What was recorded on the listening devices has been extensively extracted in the judgment of McClellan CJ at CL. I do not propose to take more time and space repeating verbatim what they contain. It is sufficient here to note that there are references to, or passages that could be construed as references to, features of what was alleged to be the Flaning importation. For example, there were numerous references to "the Dutchman" (who, it may reasonably be inferred was Wouter van Bommel), to large sums of money, to "the hundred and twenty one, the big one", to "the hundred and twenty five one", to the purchase of engines, the purchase of a boat, the purchase of a four wheel drive vehicle, to the purchase of two Glock pistols (by Lawrence), to ensuring "fuel capacity" and range of a boat, to the payment of "$200,000 each", to "the two blokes going out on the boat". Passages of particular significance for present purposes include the following:

[25]

There was also a reference (on 20 April) to "the two brothers". * * * 338 I have already mentioned that the Crown case against the appellant depended heavily upon the listening device tape recordings. The Crown alleged that the appellant, in general, sought to distance himself from the day to day activities required for the implementation of the scheme. There were therefore, few overt acts on the part of the appellant of which the Crown could produce evidence. It did allege, however, that he had been actively involved in locating and obtaining the Zodiac, and this was a significant alleged overt act upon which it relied. 339 This outline of the Crown case fixes the initial parameters of the "sensible appraisal" the Crown was obliged to bring to its consideration of the documentation which it ought to disclose. 340 But the duty of the Crown goes further than to require disclosure of documents supportive of, or detrimental to, the Crown case. To the extent that the Crown is aware of issues to be raised by the defence, it is obliged also to disclose any documents in its possession relevant to those issues. 341 Here, the Crown had specific and concrete information as to the defence case. As is clear from the history recorded in the judgment of McClellan CJ at CL, the appellant had, with others, been tried in the Supreme Court before Howie J in 2003. (The jury was unable to reach a verdict in his case.) 342 In that trial, the appellant gave evidence. This is the evidence referred to in the written submissions, mentioned above. His evidence in chief was lengthy. The extracts from his evidence that follow are drawn from the transcript of the second trial, in which Blackmore DCJ read to the jury the whole of the appellant's evidence in the first trial. He said that he had first met Diez in the late 1970s, but had had little contact with him from the mid-80s until September 2000, when, coincidentally, they met again. In late February 2001, he said, Diez asked him if he (the appellant) still had anything to do with the drugs scene, or knew anybody who did. The appellant said that he told Diez that he had not touched drugs "for years and years" and asked why Diez had enquired. 343 The appellant said: "He [Diez] said some friends of his, some 'South Africans' had recently brought in some cocaine, and that he was trying to create a bit of a market because the 'South Africans' were bringing in '125' over from some island, it was about three week's (sic) boat trip away from Australia." 344 Senior counsel later took the appellant painstakingly through the tape recordings, giving him the opportunity of explaining every word therein contained. What follows is taken from that evidence. 345 On the morning of 9 March 2001 (a date the appellant was able to fix only by reference to the listening device tapes) the appellant (by chance) met Lawrence and then (by arrangement) drove to Tamarama to pick up Diez. The appellant and Diez went to the appellant's unit. There their conversation was recorded. 346 The appellant had previously obtained (he said given to him by an acquaintance) a document of six or seven pages that was described as a "police investigation plan" or "operation report". It contained the appellant's name, but, he said, it had nothing to do with him but concerned Lawrence. He therefore passed it on to Lawrence. 347 The appellant gave lengthy oral evidence, in an attempt to explain the apparently incriminating conversations recorded (see paras 18 to 66 in the judgment of McClellan CJ at CL). It could hardly be said that he sought to cast those conversations in an innocent light. Essentially, what he said was that he and Diez were involved in the distribution in Sydney of cocaine supplied by Lawrence. (This was later characterised by his senior counsel in his final address in the second trial as "very serious criminal actions" and "selling vast quantities of cocaine in Sydney".) 348 He said that Lawrence had told him that he was buying a boat "with his mate Brock" [Brokenshire] and they were moving to Fiji where he was going to do charter work. 349 He was asked about any conversation he had had with either Lawrence or Diez "that might relate to the distribution or importation of drugs". He said: "Mr Diez said something to Mr Lawrence along the lines that - … He said that he was, he had some South African friend who had some cocaine and he was trying to get rid of some, he said, because if he could create a market himself, he had an opportunity to get half of some shipment to get out to some island three boat weeks away from Australia." 350 He gave the following evidence: "[Diez] said: 'If you didn't think it was too dangerous, he said I could give you an introduction to my friends and maybe you could make some money.' Mr Lawrence said: 'Well, why don't we do that?' And I remember saying that I didn't think they would last for two weeks because of the seriousness of the investigation, the documentation that was on Mr Lawrence at the time. It just seemed out of order, you know what I mean? And I thought it was too dangerous to see one another and Jack said: 'We can sort something out.' That's about all that I can recall happening." 351 He said that relations between himself and Diez became increasingly acrimonious. 352 I propose, in due course, to make further reference to the appellant's evidence in chief in the first trial. However, one significant aspect of that evidence ought here be flagged, for future reference. Hardly surprisingly, the appellant never said that he was involved, to any extent, in an arrangement for an importation of cocaine that involved any of the following features:

[52]

If it is possible that [the appellant] considered involving himself in a different venture than the one charged he is not guilty." (italics added) I pause to mention three flaws in the logic contained in these submissions: Firstly , it is quite wrong to say that "It can be inferred that they intended to use a boat for a venture quite unrelated to the instant conspiracy. This makes it more likely that any association … with boats prior to 7 March was not about the instant conspiracy". There is nothing illogical about the possibility that Lawrence either with or without the appellant, was discussing two separate importations. The fact that a different venture was under discussion does not affect the probability that he or they were involved in the Flaning conspiracy; Secondly , for the same reasons, it is equally wrong to say "If it is reasonably possible that [the appellant] was discussing a topic or topics that concerned a different venture … it is more likely that he is not a party to the instant conspiracy."; Thirdly , it is quite wrong to say "If it is possible that [the appellant] considered involving himself in a different venture than the one charged he is not guilty.". This suggests that participation in one conspiracy excludes participation in another. More importantly than the logical flaws is the basis upon which access to the documents was sought. It never reached higher than the language of speculation - "… must have been for a different purpose"; "it can be inferred …"; "if so, then any contact … could also have been for purposes unrelated to the conspiracy charge "; "… it is more likely that he is not a party to the instant conspiracy"; "if it is possible …". Blackmore DCJ refused to grant the leave sought. In a short extempore judgment (and noting that it was not possible to address the matter in detail at that time) he recorded the basis on which it was claimed that the material sought might be in some way relevant to the proceedings. His Honour said: "In short, they suggest that there may be material available from the Crime Commission suggesting that an alleged co-offender of [the appellant's], namely, Lawrence, was involved in an operation with two brothers by the name of Bennett to import cocaine into the country.

[62]

125 kilograms of cocaine shipped from an island (possibly Fiji) three weeks' travel by boat from Australia. 367 References to Fiji in the appellant's evidence in chief appear when he claims that Lawrence was planning to go to Fiji where he intended to operate a charter boat. This would not suggest that the appellant was claiming to have been referring to a separate conspiracy involving importation of cocaine from Fiji. 368 There were many references in his evidence to an importation, or proposed importation, of 125 kilograms of cocaine; the Crown case against the appellant was of a conspiracy to import 120 kilograms of cocaine from Colombia. I perceive nothing in the distinction between 120 and 125 kilograms of cocaine that would suggest to any reasonable legal officer of the DPP or ACC, considering the duty of disclosure, that the appellant's defence was that he was a participant in, or had considered participating in, a conspiracy that had some common elements with, but was not identical with, that with which he was charged. As to the references to the Bennett brothers, the appellant, when asked about the 20 April conversation in which "the two brothers" were mentioned, denied any knowledge of who the two brothers were, or of any association of two brothers with Lawrence in the proposed importation of 120 kilograms of cocaine. 369 To say, as counsel said in their written submissions, that the appellant asserted in his evidence that, when he spoke of drug related matters, he was either discussing a different or parallel importation, or domestic drug distribution activities, is simply incorrect. Certainly, the appellant gave evidence that he was involved in the latter; he said on many occasions that what he was referring to in specific passages in the conversations was to "what was currently happening at the time", or words to that effect. It is reasonable to take this to mean the distribution of drugs that were already in Australia. And it is true that some of the detail he gave departed from the detail of the Crown case, for example: the (very small) difference in the quantity of the drug involved; he made a reference (on 12 April) to the boat being due in five weeks, when the evidence was that the Flaning sailed from Panama on 8 April 2001, on a voyage suggested to require a sailing time of three months. 370 In all of this the appellant said not a word that could be taken to be a reference to a parallel importation. 371 That conclusion is supported by the report of the appeal to this Court before the High Court ruling: Cornwell v The Queen [2006] NSWCCA 116; (2006) 160 A Crim R 243. There McClellan CJ at CL summarised the appellant's defence at the first trial as: "The appellant submitted at his first trial that although he is recorded as having conversations with Lawrence and others in relation to drug activities these should be understood as relating exclusively to domestic drug deals and were not related to any proposed importation of cocaine in respect of which the appellant denied he was a party. Accordingly, the evidence which he gave admits to involvement in illegal drug activities but the appellant says this was confined entirely to domestic dealings." 372 Neither counsel's address to the jury at the first trial, nor Howie J's summing up, was made available to this Court. Had either recorded any assertion that the appellant claimed that his conversations might have related to a different conspiracy, no doubt they would have been drawn to the attention of this Court. 373 The extracts from senior counsel's opening to the jury in the second trial do not contain any assertion of an alternative conspiracy. The extracts from his final address contain no reference to anything the appellant actually said; they do no more than float an entirely speculative possibility that he may have been referring to a different conspiracy. They echo the speculation advanced in support of the claim for access to the material the subject of the subpoena. 374 There is nothing in counsel's opening that asserts (as distinct from hinting at, or speculating about, the possibility of) involvement by the appellant in something other than the Flaning importation. At the time of the opening, of course, counsel was well aware of what the appellant had said in his evidence in the first trial. 375 Nor is there anything in the closing address that could be construed as a reference to positive assertions made by the appellant in his evidence to the effect that he "had discussions" but that those related to a "parallel importation". 376 The appellant was represented at both trials by highly experienced, competent senior counsel. It is scarcely conceivable that, had he had instructions that the appellant was referring to a different enterprise, he would have:

[67]

unless, of course, he perceived that it would not have been in the appellant's interests to do so. 377 On the other hand, there was material in his evidence that was consistent with the Crown case. There were numerous references to "the Dutchman"; there was a conversation with Diez on 13 March which he explained as being about the time difference between America and Australia (in the context of telephone calls); he said that he knew Diez was planning to go to America; there were references to "the Dutchman's" anticipated arrival in Australia (Wouter van Bommel arrived in Australia on 16 May 2001); there were references to the purchase of a boat, and a four-wheel drive vehicle of sufficient power to tow the boat; and he denied any knowledge of "two brothers". 378 I am satisfied that there was no reason demonstrated why the ACC ought to have produced, either voluntarily or on subpoena, any documents which might support or evidence the existence of a conspiracy different from that with which the appellant was charged. 379 But let it be supposed that there was evidence of such a "parallel" importation. Let it be supposed, for the sake of argument, that the ACC had in its possession documentary material that proved conclusively that there was indeed a "parallel importation" of 125 kilograms of cocaine that came from, or through, Fiji, and involved Lawrence and, inter alia, the Bennett brothers and did not involve the appellant. 380 How would that advance the appellant's defence to the charge that he was a participant in a conspiracy to import 120 kilograms of cocaine from Colombia (or Panama) on the Flaning that involved different individuals but included Lawrence? It does not. It would do nothing more than allow counsel further to speculate that what the appellant was referring to in his undoubtedly incriminating conversations was that conspiracy and not the Flaning conspiracy. 381 In all of this I cannot avoid the conclusion that there is something surreal about the appellant's case on these grounds. The facts are that the appellant gave evidence in the first trial. Thereafter, on a number of occasions, his senior counsel alluded to the possibility that, in his conversations, he was referring to a different conspiracy, allusions expressly recorded by Blackmore DCJ in his judgment of 30 April. In this evidence, the appellant had every opportunity to claim that those parts of the conversations that appeared to incriminate him in the Flaning conspiracy were, in truth, conversations about a different conspiracy. He did not do so (and for that reason alone, the foundation for these grounds falls away). It is, perhaps, hardly surprising that he did not do so (although he had the (apparent) benefit of a certificate under s 128 of the Evidence Act 1995 at the time). But it is now claimed on his behalf that there is available material that would allow his counsel to put an argument to the jury that perhaps his apparently incriminating conversations were about that other conspiracy. Such a submission, in the absence of evidence from the appellant, would be entirely speculative. It would be speculative in circumstances where the appellant gave no evidence at all: it is fanciful in circumstances where the appellant has given evidence and has made no such assertion. That there were some (slight) variances in the detail of what he asserted, and the detail of what the Crown alleged, is far from sufficient to put the Crown on notice that the importation he was discussing was a different importation to that which the Crown alleged, or to establish a legitimate forensic purpose for access to the documents sought. 382 There has been no miscarriage of justice by reason of the non-production or late production of the material the subject of grounds 9 and 10. I would reject these grounds. 383 JOHNSON J: I have had the considerable advantage of reading the judgments of McClellan CJ at CL and Simpson J. Although their Honours have approached grounds 6, 9 and 10 by different routes, the same conclusion has been reached, namely that these grounds of appeal ought be rejected. For the reasons given by McClellan CJ at CL and Simpson J, I agree with the orders proposed by the Chief Judge at Common Law. **********

Parties

Applicant/Plaintiff:

Cornwell

Respondent/Defendant:

Legislation Cited (2)

Customs Act 1901(Cth)

Judiciary Act 1903(Cth)

Cases Cited (40)

Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536 Burrell v The Queen [2008] HCA 34; [2008] 238 CLR 218 Cornwell v R [2006] NSWCCA 116; (2006) 160 A Crim R 243 Cornwell v R [2007] HCA 12; (2007) 231 CLR 260 DJL re Central Authority (2001) 201 CLR 226 Dominguez v R (1985) 63 ALR 181 Elliott v The Queen; Blessington v the Queen [2007] HCA 51; (2007) 234 CLR 38 Gipp v R [1998] HCA 21; (1998) 194 CLR 106 HML v R [2008] HCA 16; 235 CLR 334 Peacock v The King (1911) 13 CLR 619 R v Brown (Winston) [1998] AC 367 R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 R v Duncan (1981) 73 Cr. App. R. 359 R v Haddad [2000] NSWCCA 351; (2000) 116 A Crim R 312 CASES CITED : R v IK [2004] SASC 280; (2004) 89 SASR 406 R v Karageorge (1998) 103 A Crim R 157 R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478 R v Meher [2004] NSWCCA 355 R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 R v Saleam [1999] NSWCCA 86 R v Schmahl [1965] VR 745 R v Spiteri [2004] NSWCCA 321 R v Veverka [1978] 1 NSWLR 478 R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454 Saleam v R (1989) 16 NSWLR 14 The Queen v Hiller [2007] HCA 13; [2007] CLR 618 Travel Compensation Fund v Blair [2002] NSWSC 1228 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wills v R (1985) 39 SASR 35; (1985) 16 A Crim R 247

JUDGMENT 1 McCLELLAN CJ at CL: This appeal has been remitted to this Court by the High Court: Cornwell v R [2007] HCA 12; (2007) 231 CLR 260. The matter was originally considered by this Court in Cornwell v R [2006] NSWCCA 116; (2006) 160 A Crim R 243 where the Court upheld the first ground of appeal and ordered a new trial. The High Court, by majority, reversed that decision. The court also upheld a cross appeal in relation to ground 5, an unreasonable verdict ground. In the event, five grounds of appeal were, pursuant to orders made by the majority, remitted for consideration by this Court. The orders of the majority of the High Court were as follows: "1. Appeal allowed. 2. Application for special leave to cross-appeal granted and cross-appeal allowed. 3. Matter remitted to Court of Criminal Appeal for consideration of grounds 2, 3, 4 and 6 and reconsideration of ground 5 in the appellant's notice of appeal to that Court." 2 The appellant now seeks to raise further grounds of appeal and applies for leave to appeal against his sentence. I shall discuss those matters at a later point of these reasons. 3 The appellant was charged with conspiring to import a commercial quantity of cocaine. He stood trial with a number of others. The jury could not agree with respect to the appellant and a second trial was held. This appeal is concerned with his conviction at the second trial at which he was again indicted with others. 4 The first ground of appeal related to the admissibility of the transcript of evidence given by the appellant at his first trial. The remaining 5 grounds of appeal are as follows:

Later in his closing address he said: "[The Crown relies] on these tapes as proof of his involvement in that agreement. If in fact it's possible that parts of some of these conversations relate to something different then you cannot use those parts that possibly relate to something different as evidence to prove his guilt. You need to be certain, that is you need to be satisfied beyond reasonable doubt that any words that he is recorded as saying that you are going to rely on as evidence of guilt of the charge actually relates to the charge. Again, if he is talking about one and you are not satisfied beyond reasonable doubt that it's this one, the one that is about the subject of this charge, then you cannot use that as proof if his involvement in the offence charged." 88 During counsel's address, and at a time when the jury was not present, the trial judge raised the issue with counsel. His Honour said: "I'm assuming that was a considered opinion of yours, but as far as I am concerned it's wrong and I will correct it. None of these matters are to be decided beyond reasonable doubt. They are to be decided on the balance of probabilities. So you can address that, otherwise I will do it." 89 In his summing up his Honour directed the jury in the terms he had discussed with counsel and included the reference to the balance of probabilities. 90 The appellant has two complaints. Firstly it was submitted that the correct standard of proof to be applied was beyond reasonable doubt. Secondly, if the first submission was not accepted, the appellant submitted that the reference to the balance of probabilities was impermissible, being likely to confuse the jury and cause them to apply an inappropriate standard of proof to the critical issue. 91 The question of which facts must be proved beyond reasonable doubt before a jury may convict has been the cause of difficulty in many cases. The generally accepted explanation of the situation was given by Gleeson CJ in HML v R [2008] HCA 16; 235 CLR 334 at 360 [29] although the case was substantially concerned with the difficulties of tendency reasoning. Gleeson CJ said: "It is the elements of the offence charged that, as a matter of law, must be proved beyond reasonable doubt. (I leave aside presently irrelevant cases where insanity or some other defence is raised.) If evidence of a fact relevant to a fact in issue is the only evidence of the fact in issue, or is an indispensable link in a chain of evidence necessary to prove guilt, then it will be necessary for a trial judge to direct a jury that the prosecution must establish the fact beyond reasonable doubt; generally, however, the law as to standard of proof applies to the elements of the offence, not particular facts. The decisions of this Court concerning corroboration in Doney v The Queen , and proof of lies as evidence of consciousness of guilt in Edwards v The Queen , illustrate the point. Trial judges commonly, and appropriately, direct juries in terms of their possible satisfaction of particular matters relied upon by the prosecution, without referring to a standard of proof in relation to each such matter. To do otherwise would risk error." 92 In the present case, before the jury could convict they had to be satisfied beyond reasonable doubt that the appellant was a participant in the alleged conspiracy to import cocaine on the Flaning. Although the evidence against the appellant derived from the intercepted telephone calls, in my view the jury did not have to be satisfied beyond reasonable doubt that any particular call related to the alleged offence. The jury was required to consider the content and context of each intercepted telephone call. They were also required to consider the evidence which the appellant had previously given together with the documents found in his possession when arrested. In addition there was the circumstance of his attempt to telephone Diez on the day of the latter's arrest, the purchase of a gun and the known fact that the imported drugs were to be brought ashore near Port Macquarie. 93 It is not in question that the jury when considering the intercepted calls was to have regard only to those portions which may be relevant to the charge on the indictment. However a process of reasoning which required them to be satisfied, before they could have regard to a particular call, that, beyond reasonable doubt, the call related to the enterprise would be flawed. Unless the calls are considered together, any conclusion in respect of the effect of any one of them may not be able to be confidently drawn. As with a circumstantial evidence case, where it is necessary that the circumstances be considered as a whole, and not piecemeal (The Queen v Hiller [2007] HCA 13; [2007] CLR 618 at 637-638 [46]-[48]), it was necessary for the calls to be considered together. The direction sought by the appellant would exclude the jury from reasoning that when the phone calls were considered together they could be satisfied of the appellant's guilt, although without reference to another call or calls they could not be satisfied that any particular call related to the charged enterprise. 94 The further issue raised by the appellant was his Honour's reference to the balance of probabilities. His Honour said: "To use the conversations you need only be satisfied on the balance of probabilities that they do relate to that particular enterprise. Ultimately, as I have said, what you must be satisfied beyond reasonable doubt about are the elements of the offence, and in particular, in this case, of Cornwell's involvement in that enterprise." His Honour made the remark when telling the jury that defence counsel's submission that they needed "to be satisfied beyond reasonable doubt" about the conversations was not correct. 95 The introduction of the concept of balance of probabilities, particularly in conjunction with directions as to the standard of proof required to prove the offence charged, has been recognised as the source of potential difficulty. In R v IK [2004] SASC 280; (2004) 89 SASR 406 Doyle CJ, when discussing the fundamental requirements of appropriate directions by a trial judge in cases involving circumstantial evidence, said that "trial judges should avoid confusing juries by introducing reference to differing standards of proof" (at [69]). In a different context, similar difficulties were discussed in Gipp v R [1998] HCA 21; (1998) 194 CLR 106 where Gaudron J warned about a direction which referred to the balance of probabilities and the possibility of inducing a misunderstanding by the jury (at [21]). In HML Gleeson CJ emphasised that to instruct a jury that there is a standard of proof for particular matters, as opposed to the elements of the offence, risks error. 96 In the present case it was not appropriate to instruct the jury that they must be satisfied on the balance of probabilities that a conversation related to "the enterprise." The appropriate direction was that they should have regard to the telephone intercepts and the other evidence relevant to the appellant, including of course his own evidence, and the objective circumstances relating to the offence in determining whether they were satisfied beyond reasonable doubt that the appellant had committed the offence with which he was charged. 97 Although reference to a standard of proof on the balance of probabilities was inappropriate, I am satisfied that it has not occasioned an injustice in this case. If anything it favoured the appellant. Having introduced the concept of the balance of probabilities, his Honour immediately reminded the jury, as he had on other occasions, that they must be satisfied beyond reasonable doubt about the elements of the offence and more significantly, "in particular, in this case, of Cornwell's involvement in that enterprise." 98 I would reject this ground of appeal.

106 His Honour declined to give any further directions on this point. At the conclusion of his Honour's summary of the case against each accused, he invited counsel to make any further submissions. Counsel for the appellant addressed his Honour in these terms: "Your Honour's summing-up and in particular your Honour's characterisation of the defence case and defence argument has omitted very fundamental issues that I relied on heavily both during the evidence and in my address and, in my respectful submission, properly characterised and advanced by my client, and your Honour should include these matters in the summing-up. Firstly, as I have already submitted, your Honour has not adequately touched on the issue of the identification of the conspiracy charged at least so far as my client's participation is concerned. There has been no adequate summary of the facts of what other importation might have been discussed. Secondly, your Honour has not drawn to the jury's attention in an adequate way, in my submission, the need for them to be satisfied that Diez and Lawrence agreed that Cornwell should participate in this scheme. Rather your Honour's summing-up concentrated solely on Mr Cornwell's state of mind. Your Honour's summing-up has not touched at all the argument that I advanced to the jury suggesting that Lawrence and Diez froze my client out. In that regard I ask your Honour to tell the jury that in considering whether Mr Cornwell agreed to become a participant in the conspiracy to import cocaine, the Crown must prove beyond reasonable doubt that the accused and Diez and Lawrence all agreed that Cornwell would be involved in the conspiracy to import. It would not be sufficient for the Crown to prove merely that Cornwell showed a willingness to be involved and had an expectation that Lawrence and Diez were going to be involved in the importation. It is necessary for the Crown to prove beyond reasonable doubt that Cornwell agreed with Lawrence and Diez and that they agreed with him that he be involved in the ultimate importation of cocaine. That is an argument that I advanced maybe for the first time in this trial, but certainly with more emphasis in this trial than the last trial. When Howie J summed up understandably he did not touch on that issue. I made a lot of it in my address and your Honour has not touch[ed] on it at all." 107 Counsel for the appellant then referred to "pockets of evidence" that he wished his Honour to draw the jury's attention to. This included the evidence of Robert Gladman, who was given immunity from prosecution in exchange for his assistance and evidence given at trial. When he was cross-examined, the following exchanges occurred: "Q: On that occasion when you spoke to Mr Lawrence, he told you that Carlos (Diez) was the front man for the cartel, isn't that right? A: That was the conversation I had with Mr Lawrence. I asked him about him and that's what he said. Q: Did he tell you anything else about Mr Carlos on that occasion? A: I got the impression that he was - Mr Lawrence was working for him. He was sort of organising things over here in Australia. Q: In fact, isn't it the case that Mr Lawrence told you that 'I'm working for him'? A: That's the distinct impression that I got, yeah. Q: More than an impression, in your statement -- A: I said that's what he said, yeah. Q: You said that in your statement. In fact, I will put it to you. You statement reads this in part: 'John told me earlier when I asked him about Carlos he said "Carlos is the front man for the cartel over here. He is basically organising the local side of things and I am working for him. He's the one putting it all together."' That is in your statement, do you accept that? A: Yeah. Q: Is that what Mr Lawrence said? A: That's what Mr Lawrence said, yeah." 108 Gladman also gave evidence that at least two importations were discussed in his presence at Telegraph Point. He was asked in cross-examination: "Q: You were told that by someone that the yacht was coming from Fiji, right? A: That was my understanding. Q: You didn't know how much cocaine was on that vessel? A: No. Q: Again you talk about your understanding that it was coming from Fiji. You had this understanding because of things that you were told, isn't that right? A: Things that I heard. Q: Sorry? A: Conversations that I'd heard. Doesn't necessarily mean that it was told to me directly. Q: So it was from something that was said in your presence, is that right? A: Yeah, I think so. Q: One of the people at Telegraph Point said in your presence that the drugs were coming from Fiji? A: That is way my understanding. Q: Do you agree with the proposition I put, that someone in your presence said it? A: How else did I find out about it? Q: Do you agree with the proposition, yes or no? A: I just don't recall, okay. Q: How many loads of cocaine or vessels carrying cocaine were discussed in your presence at Telegraph Point? A: There was that one specifically and there was mention of another one but I don't know where or how that was being imported. Q: So two? A: Two. Q: Were those two vessels said to be carrying cocaine discussed in your presence by Mr Lawrence? A: Mr Lawrence mentioned it when we were down in the back paddock talking about the other business with the NCA bloke and his badge. If I recall correctly he said something there could have been - he had a job on with Carlos and that he couldn't bring me and Dave [Norris] in on it or words to that effect. Anyway I got the impression they had something else going on somewhere else as well. Q: There was more said in your presence about this other job than that, isn't that right? A: Could well be. I don't remember now, long time ago. Q: Isn't it the case that you certainly were of the opinion that Carlos had two importations on the go? A: That was the impression I had, yeah. Q: And that was an impression that you formed from discussions that you heard at Telegraph Point, isn't that right? A: That's right. Q: And you knew that one was bigger than the other, isn't that right? A: That was the impression I got. Q: And you knew that they both involved cocaine, isn't that right? A: That's right. Q: Jack Lawrence had said to you that Carlos may have purposely sacrificed the smaller one to ensure the success of the larger one, isn't that right? A: I think it was speculation, what the hell had gone wrong. Q: Jack said that though, didn't he? A: Yeah, he did. … Q: … Would it be fair to say that Mr Lawrence said to you that there were two importations? A: I believe that there were a parallel importation going on at the same time because he mentioned it. He said he had something else on with Carlos and that he couldn't bring me and Dave in on it." 109 The appellant submitted that this was evidence of a Crown witness that was contrary to the prosecution case that the appellant was in charge of the local operation, with Lawrence working for the appellant. Lawrence had further told Gladman that Lawrence had purchased the rigid inflatable boat through a broker, and he had paid a significant amount for it. Lawrence had also said that the four-wheel drive vehicle was his, but was registered in Danny McDougall's name. The following exchange occurred in cross-examination: "Q: … One of the instructions that Mr Lawrence gave you was what to say if you were pulled over in the four wheel drive? A: That's right. Q: You were to say that the vehicle belonged to a friend of yours by the name of Danny McDougall, right? A: That's right. Q: Did Mr Lawrence tell you who really owned the four wheel drive? A: No. Q: He told you that he paid for the four wheel drive, did he not? A: I don't recall whether he said he paid for it or not. I understood the boat was his. Q: He told you that he paid for the boat? A: Yeah, it cost him a lot of money too, yeah. … Q: I think you have already agreed Mr Lawrence told you that he bought the boat, right? A: There were some conversations about the boat at different times with Mr Lawrence. There was no doubt in my mind it was his boat, and he said it was his because he was worried about the paperwork hadn't turned up for it. Q: He said he got it through a broker and he was waiting for the documentation to be forwarded to him, isn't that right? A: That's what he said, yeah. Q: You were asked at the National Crime Authority about the four wheel drive, and I suggest that when you were asked about it you said 'That was bought to tow the boat'. Then you were asked 'did John tell you that that was his as well'? You said 'yeah, it was his but it was registered in that Danny McDougall's name', do you accept that you gave that evidence? A: Well, that's what it says. Q: You were then asked, I suggest 'did he tell you why he did that'? And you said 'well he just didn't want things in his name basically like, you know, ownership because I think he was concerned that it looked suspicious, the fact that you know he's obviously spent a lot of money on all this equipment so he sort of wanted to farm out the ownership to other people so it didn't look like it was all his.' Do you accept that's what you said? A: That's what it says. Q: So did Lawrence in fact tell you that he bought the four wheel drive? A: I believed it was his so if I said there that's what he said then that's what he said, it's his. Q: Certainly whilst you were involved in this scheme up there at Telegraph Point and other places nearby, Mr Lawrence was the one who was paying for the out-of-pocket expenses, isn't that right? A: That's right. Q: Whenever something had to be purchased Mr Lawrence had a roll of $100 bills and would peel some off and give it to the person who had to buy the equipment, isn't that right? A: That's right." 110 Counsel also referred to evidence of Wouter van Bommel that Diez had paid $65,000 for the boat, and that he was the head of the Australian organisation. Van Bommel was asked in cross-examination: "Q: You were told by Mr Zapata that when in Australia that Carlos [Diez] was the person that you were going to have to communicate with, is that right? A: Yes. Q: Indeed, when you came to Australia Carlos was the man who you had met with after your arrival? A: Yes. Q: You formed the view that Carlos was in charge of the operation in Australia, did you not? A: Yes. Q: And it seemed from your observation that the other people that you met with were doing things because Carlos was telling them to do it, isn't that right? A: I'm not sure. Q: But you certainly had this picture of Carlos being the boss, right? A: Probably, yes. … Q: When you met Carlos at the Sydney Opera House Mr Carlos told you that he already had a boat, isn't that right? A: Yes. Q: And he told you a little bit about the boat didn't he? A: He told me was a fast boat, a speed boat. Q: A very fast boat I think? A: Yes. Q: And he told you that he had bought the boat, did he not? A: Yes. Q: And he told you that he paid for it did he not? A: He told me that he have to sell restaurant to buy for the boat. Q: And he told you how much he paid for it didn't he? A: Yes. Q: How much did he tell you that he paid for the boat? A: Something like 65,000. Q: In fact that's exactly what he told you I suggest? A: Yes. Q: He said to you, 'I paid $65,000 to buy this very fast boat', isn't that right? A: Yes. Q: You understood that you were going to have to go out a long way in the ocean on that boat, isn't that right? A: Yes." 111 Later, counsel for the appellant asked further questions in relation to the nature of the importation and Diez's role in it. Van Bommel was asked: "Q: Did Zapata ever tell you that there were people in the United States that had some connection to this venture? A: No. Q: Did Carlos ever tell you about people in the United States having some connection to this venture? A: No. Q: As far as you knew the drugs were coming from Colombia, isn't that right? A: Yes. Q: Zapata was in charge of the drugs once they left Colombia, isn't that right? A: I think so, yes. Q: I'm not going to ask you who gave them to him, but you can confirm, can you not, that he had connections with people in Colombia that could give him the drugs? A: Should be yes. Q: So you understood them to be Colombian drugs, did you not? A: Yes. Q: So there was no American connection with this particular venture? A: I don't know. Q: Not to your knowledge? A: No. Q: You agree with that? A: Yes. … Q: Going back to the evening of 23 May when you were in the apartment on 23 May in Bondi … On the evening of 23 May after Mr Lawrence had left the flat, you had a discussion with Mr Diez about what would happen in the future, is that not right? A: I don't remember. Q: I suggest to you that on that evening Mr Diez said to you that the Bondi apartment was going to be used to store the drugs after they arrived in Australia? A: Yes. Q: He said that he would use that flat for that purpose, did he not? A: Yes. Q: And he said that he would be responsible for those drugs in that flat, is that not right? A: I think so, yes. Q: Was it ever suggested to you that you would have to stay in the flat to sit on the drugs whilst they were in Australia? A: Never. Q: So your job would be finished once they were given to Carlos, right? A: Yes. … Q: Did anyone ever suggest to you that the drugs should be put into plastic containers during the vessel's journey back to the Australian coast? A: No. Q: You in fact worked out a plan where you cut a hole in the vessel so that the cocaine could be put through the hole, isn't that right? A: Yes. Q: There was no need for plastic drums was there? A: For the petrol. Q: Yeah, but for the cocaine, there was no need to use plastic drums for the cocaine was there? A: No. Q: You agree with that? A: Yes. Q: And in fact nobody ever suggested that? A: No. … Q: Just going back to the discussion that you had with Mr Diez in the flat at Bondi on the evening of 23 May, he told you that he would be using that flat to store the drugs after they arrived in Sydney, right? A: Yes. Q: Did he also tell you that he was going to be responsible for packaging the drugs? A: Yes. Q: And that he was going to organise for the drugs to be put out on the street? A: Yes. Q: So that you understood that he was the one that was going to be in charge of distributing the drugs, is that right? A: Yes." 112 The appellant submitted that this evidence contradicted the prosecution case that Diez was an intermediary between the Colombian group and the Australian group led by the appellant. 113 Finally, counsel asked for a direction that it was necessary for the Crown to prove that the appellant was a participant in the conspiracy throughout the venture as the leader of the Australian arm. His Honour refused to direct the jury on these issues. Shortly afterwards the trial judge received a note from the jury requesting a copy of the transcript relating to the appellant's evidence, and the evidence of Gladman and Norris which was provided to the jury the next day. 114 The appellant submitted that the evidence and arguments referred to above were important pillars of the defence case. In particular, it was submitted that it could be inferred from the evidence that more than one importation venture was on foot at the relevant time. The appellant further contended that the evidence demonstrated an agreement between Lawrence and Diez to exclude the appellant from the operation. It was submitted that notwithstanding the complexity of the cases and the number of co-accused, the trial judge's failure to put the matters at the heart of the defence case constituted a miscarriage of justice (R v Schmahl [1965] VR 745; R v Meher [2004] NSWCCA 355). 115 In response the Crown submitted that the trial judge was not required to mention every issue that had been put to the jury in address, particularly when, in this case, the defence address was of such prolixity. It was submitted that although the trial judge ultimately refused to redirect the jury, his Honour nevertheless gave careful consideration to each matter raised by defence counsel during the summing up. 116 The Crown disputed the defence counsel's submission to the trial judge that important pieces of evidence had emerged for the first time in the second trial. It was submitted that it was all contained within witnesses' statements, National Crime Authority transcripts and was evidence given at the first trial, when it was not relied on by defence counsel. It was submitted that none of the evidence relied upon by defence counsel at paragraph [107] and following above had any, or any significant, relevance to the appellant's guilt. 117 I have reviewed the extensive directions given by the trial judge in his summing up. The judge gave numerous directions to the jury in relation to the requirements for an agreement. I am satisfied that the directions in relation to that issue were sufficient. The trial judge also instructed the jury in relation the possibility of Diez and Lawrence "freezing him out". The trial judge said: "Cornwell said he had difficulty at times understanding Diez and often he did not listen to him or understand him, even if he was listening to him. He said that on the occasion of a conversation on 24 March, Diez was very angry because of the small amount of money that Cornwell had for him. He said that it was after this conversation that he began to form a dislike for Diez… … Cornwell's former evidence is to the effect that after that conversation things went from bad to worse between him and Diez, partly because of Diez' failure to give Lawrence time to sell the drug before allowing a Russian to have access to it. Cornwell considered that Diez was putting Lawrence's market in jeopardy. The argument came to a point where Cornwell told Diez not to come to his flat any more, and after that conversation there is no evidence that Diez ever did. … Cornwell, in his former evidence, said that much of these conversations concern the fact that he believed that Diez was not being square with him and Lawrence about the distribution of cocaine that had been obtained by Lawrence and that Diez was allowing others access to the drugs and therefore destroying or undercutting the market for Cornwell and Lawrence. … [Counsel for the appellant] relied upon what Cornwell said about Diez in this conversation [on 8 April] especially about him being a liar and a cheat as showing how poor the relationship between them at this time were and contradicting any suggestion that they were in a partnership for some future venture."

123 The appellant submitted that it was not reasonably open to a properly instructed jury upon the whole of the evidence to have been satisfied beyond reasonable doubt of the guilt of the appellant. It was further submitted that upon reviewing the whole of the evidence this Court would have a reasonable doubt as to the appellant's guilt (see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300). 124 The appellant particularly referred to two categories of evidence which I have outlined above. The first category was said to establish that the recorded conversations involving the appellant's discussions about drug related matters with Lawrence and Diez related to a different importation to the matter the subject of this charge. The second category concerned evidence that the appellant was excluded from the preliminary discussions with Lawrence and Diez prior to the formation of any agreement between them to import 120 kilograms of cocaine from Columbia onboard the Flaning. It was submitted that there was insufficient evidence to prove that Lawrence and Diez agreed that the appellant should be permitted to join any conspiracy that was formed between them.

"Your Honour I have an application for your Honour to exclude eight conversations that were recorded on a listening device in my client's home. Those conversations are the foundation of the prosecution case against Mr Cornwell. In fact without them it's agreed there would be insufficient evidence to present to the jury against my client. I have an argument to mount which I mounted before Justice Howie, unsuccessfully… I will argue that your Honour should exclude the evidence because of the operation of s 138 of the Evidence Act which although is not on its face described as a discretionary exclusion provision does involve your Honour embarking on an exercise of great personal judgment in deciding whether the probative value - of weighting up competing public interests. … The basis of the objection is twofold, firstly that the evidence was obtained as a consequence of an impropriety by those officers who were responsible for the application for the listening device to be issued… The second ground for the exclusion of the evidence is that the evidence should be excluded because of the operation of s 219F of the Customs Act which provides that where a person is prosecuted for a prescribed offence the Court may in its discretion refuse to permit information that is listening device information to be given in evidence in the proceedings if it is satisfied that it would be unfair to the accused to admit the information in evidence. So two heads. Firstly s 138 of the Evidence Act, the listening device warrant which was issued by a member of the Administrative Appeals Tribunal, a warrant which was issued pursuant to the provisions of s 219B of the Customs Act, that warrant was issued in consequence of an impropriety by those members of the then National Crime Authority who applied for and received the warrant. … On 27 February 2001 members of the National Crime Authority obtained a Customs Act listening device warrant that led to the installation of a listening device in the Brougham Street premises. The Brougham Street premises had not been the subject of any previous electronic surveillance. There was no telephone intercept warrant that attached to any telephone warrant that related to telephone services utilised by or normally used by Mr Cornwell. The warrant for the Brougham Street premises was a warrant that allowed a recording in the premises because it was believed that there were reasonable grounds to suspect that the premises would be used for the purposes of a future offence under the Customs Act, so it was a premises warrant. As at the time of the application for the Brougham Street warrant, Mr Cornwell's voice had not been recorded on any of the electronic devices either telecommunications intercepts or listening device intercepts. Further, the case officer who was directing the investigation, Mr McMahon, had not heard any conversation that allowed a conclusion to be drawn that Mr Cornwell was a party to any crime, past or contemplated, that would be covered by any crime under the Customs Act and thereby any crime that would give rise to the issue of a warrant. Indeed, as at 27 February there was no reason that would allow the police investigating the case to have successfully applied for and obtained a telecommunications warrant to cover Mr Cornwell. The warrant for the Brougham Street premises was obtained I expect to be able to prove in order to cover anticipated conversations that Mr Lawrence might participate in. It's my contention that those facts and others that I will outline shortly allow a conclusion that in order to obtain the warrant for Brougham Street the investigators had to establish a relevant connection between Lawrence and the Brougham Street premises. It was crucial for them and without being able to demonstrate a sufficient nexus between Lawrence and the Brougham Street premises the NCA investigators realised that they were unable or unlikely to be able to convince the relevant member of the AAT that a warrant should issue in relation to the Brougham Street premises. Knowing that and being aware of the significance of the having to establish a connection between Lawrence on the one hand and the Brougham Street premises on the other hand, I contend that the officers who prepared and presented the application for the Brougham Street warrant deliberately overstated the true nature of the evidence that they were aware of that connected Mr Lawrence to the Brougham Street premises. The evidence is likely to establish, I expect it will, that there were two officers who had responsibility for compiling the application for the Brougham Street warrant. They were the case officer, the man who was responsible for the investigation, Mr McMahon, and Agent Rebecca [Welsh]. The application for the warrant took the form of an affidavit. The affidavit was sworn by Ms [Welsh]. The contents of the affidavit were though a joint effort. It was drafted by both Mr McMahon and Ms [Welsh]. Mr McMahon would in evidence claim primary responsibility for the contents of the affidavit… One of the deputy presidents of the Administrative Appeals Tribunal issued the warrant after having been presented with Ms [Welsh's] affidavit. The warrant was issued on the afternoon of 27 February 2001. A listening device was first installed at Brougham Street pursuant that warrant on 7 March 2001… The assertion, on oath, in an application for a listening device warrant that surveillance had established that Lawrence was staying at the Cornwell residence was wrong. The surveillance had not established that at all. The surveillance of Lawrence in the period prior to the issue of the warrant had shown him in the vicinity of the Brougham Street units, a very large Housing Commission block of units comprised of more than sixty separate apartments. There had been no confirmation that Mr Lawrence was staying at the Brougham Street units. What's more, in order to prove to the deputy president of the AAT the assertion that surveillance had identified Lawrence to be staying at the Brougham Street unit, the affidavit specifically included the fact of observations which had never taken place, false assertions that police had seen things that police had not seen. In particular the affidavit asserted that on the morning of 27 February 2001 at about 8.50am Lawrence was observed walking away from the unit block at 79 to 85 Brougham Street. Lawrence walked along the footpath, entered his vehicle, which was parked in McIlone Street, and then drove to the Botany area. … I want to prove that the surveillance that took place during that period revealed that he was not staying, that is John Lawrence was not staying at the Brougham Street premises. Then, once the listening device was installed at the Brougham Street premises, police continuously monitored the product of the listening device warrant for many months. There was another warrant obtained subsequently to as it were roll-over the original warrant, the listening device remained in the premises until the accused was arrested in August 2001. Significantly, for this application, in the period immediately following the installation of the device on 7 March 2001, the product of the device revealed that Jack Lawrence was not staying." 149 When application for exclusion of the recordings was made during the appellant's trial before Howie J, two investigating officers responsible for the warrant application, Federal Agents McMahon and Welsh, were cross-examined on the voir dire. 150 The application for the warrant had been supported by an affidavit sworn by Agent Welsh. She agreed in evidence that she may have been assisted by Agent McMahon, the officer in charge of the operation. Defence counsel subpoenaed the Australian Crime Commission (ACC), previously the National Crime Authority, to produce the affidavit. The ACC produced the affidavit to the court, but objected to access to it on the basis that a legitimate forensic purpose had not been established, and foreshadowed an intention to claim public interest immunity in relation to the information. 151 Howie J ruled that no legitimate forensic purpose had been established. Notwithstanding this ruling, counsel for the National Crime Authority permitted Federal Agent Welsh to read from the affidavit and one passage was read to the court. It was in these terms: "On the morning of 27 February 2001 about 7.00 am NCA surveillance observed vehicle RX1979 parked in McElhone Street, the laneway beside 79 Brougham Street, Woolloomooloo. About 7.56 am Cornwell was observed to depart the premises. About 8.50 am Lawrence was observed walking away from the unit block 79-85 Brougham Street. Lawrence walked along the footpath, entered his vehicle which was parked in McElhone Street, and then drove to the Botany area." 152 The relevance of this passage can be seen in the judgment of Howie J where his Honour ultimately refused the application for exclusion of the evidence (See R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82). His Honour said:

The relevant principles 166 I reviewed the relevant principles in Travel Compensation Fund v Blair [2002] NSWSC 1228 as follows:

"[20] The principles to be applied in the present circumstances are well known. ( The Commissioner for Railways v Small (1938) 38 SR(NSW) at 564). A subpoena may not be used by a party to litigation for the purpose of fishing ie "endeavouring not to obtain evidence to support his case, but to discover whether he has a case at all." (p 575). This principle requires careful consideration depending on the circumstances. In particular, a subpoena is less likely to be set aside if the information which it seeks is exclusive to the other party. Newcastle City Council v Kern Land Pty Ltd & Anor, NSWSC, unreported, 9 December 1996, McLelland CJ in Eq, and Schutt v Queenan [2000] NSWCA 341, Mason P para 14.

[21] In NSW Commissioner of Police v Tuxford & Ors, [2002] NSWCA 139, Brownie AJA said: "… it is plain beyond argument that, if documents are produced on subpoena, and objection is taken to their being inspected, inspection should not be permitted unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose. In that context it is said that a party is not entitled to go on a fishing expedition, nor should the court do so: Small at 575; R v Saleam (1989) 16 NSWLR 14 at 17-18; and Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681. See too Air Canada v Secretary for State for Trade [1983] 2 AC 394 at 439 and 453 and Alister v The Queen (1984) 154 CLR 404 at 414.

[23] The party issuing the subpoena must be able to show that it is "on the cards" that the documents will bear on and have relevance to the issues in the case: Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667." 167 These principles have been applied in criminal proceedings, where the concept of a "fishing expedition" and the application of the "on the cards" test have been considered: R v Saleam [1999] NSWCCA 86 at [11]; Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536 at 550-555 [58]-[80]. 168 I have reviewed the affidavit of Federal Agent Welsh and the evidence given on the voir dire. I have also compared the affidavit with the surveillance log. I am satisfied that the movements of Lawrence on the relevant day apart from the reference to Lawrence being seen in the courtyard are accurately recorded in the affidavit. 169 In relation to the evidence that Lawrence was actually living at the appellant's premises, I am not satisfied that this evidence was of great weight. As the trial judge said: "Now whether he lived there or he lived elsewhere is not the primary concern. I accept that if that was a principle piece of evidence relied upon to establish that this premise was related to a customs offence then [the appellant's] case would be much stronger but it was only one of a number of pieces of evidence so relied upon." 170 The issue which gave rise to the subpoena in the present case was whether the listening device warrant was obtained as a consequence of impropriety by the relevant officers. The foundation of the appellant's argument was that the surveillance log did not confirm the movements of Lawrence alleged to have been observed on 27 February 2001 which associated him with Cornwell's premises. The appellant asserted that at the very least it raised a legitimate question as to whether the evidence sworn by the officer was consistent with the true facts. The suggestion, not expressed in terms, was that evidence may have been fabricated. 171 It was in this context that the trial judge was asked to determine that there was a legitimate forensic purpose in the appellant's counsel having access to the whole of the sworn material, subject always to any claim for public interest immunity. His Honour ruled that there was not. 172 It would seem that the debate in the trial court may have proceeded on a wrong footing. The initial question for the trial judge was not whether the affidavit contained material which would ultimately assist the appellant's case but rather whether, given the nature of the affidavit, it was on the cards that the documents will bare on the issue of the propriety of the officer's conduct. Because a discrepancy had been identified the issue was raised and there was proper reason to pursue it. By seeking access to further material the appellant was not fishing in the dark. Rather he was seeking further material in order to determine whether there was matters which could add weight to the submission which he sought to make. 173 As it happens consideration of the further material does not add substance to the appellant's submission as Howie J made plain in his judgment on this issue. Notwithstanding the issue which had been identified by the appellant there was in my view sufficient material in the affidavit to justify the issue of the warrant. The critical issue was whether the Federal Agents had information which justified a suspicion that Lawrence was in contact with the appellant and may have had conversations with him at the appellant's premises. A reading of the relevant material makes plain that even if Lawrence was not living with the appellant there was evidence which, at the very least, indicated that he was likely to be a visitor at the appellant's house.

The question of jurisdiction 188 The Crown submitted that this Court does not have the "power/jurisdiction to permit the appellant to raise fresh grounds of appeal." It was submitted that this Court's jurisdiction is confined to determining the grounds of appeal remitted to it from the High Court. 189 It was submitted that pursuant to s 37 of the Judiciary Act 1903 (Cth) the court is limited to giving effect to the High Court's judgment. It was submitted that this position was confirmed by the decision of the Victorian Court of Appeal in R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454. where the court said: "99 The order remitting the matter to this Court is to be understood as having been made in exercise of the power conferred on the High Court by s 37 of the Judiciary Act 1903. That section provides that: "37. The High Court in the exercise of its appellate jurisdiction my affirm, reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance, and if the cause is not pending then the High Court may in its discretion award execution from the High Court or remit the cause to the Court from which the appeal was brought for the execution of the judgment of the High Court ; and in the latter case it shall be the duty of that Court to execute the judgment of the High Court in the same manner as if it were its own judgment." (Emphasis added) 100 It was established very early in the life of the Commonwealth that the imposition on a State Supreme Court of the duty of executing a judgment of the High Court was a valid exercise by the Commonwealth Parliament of the power conferred by s 51(xxxix) of the Constitution. It was also established at about the same time that, upon such a remitter, the Supreme Court has jurisdiction to make any order consequent on the order of the High Court for the purpose of executing the latter order but that the Court ought make no order inconsistent with the High Court's order. 101 It follows that our task in this matter is limited to a reconsideration of the exercise of the proviso, in the light of the High Court's decision and in accordance with the approach there prescribed. The High Court's refusal to entertain an appeal on the "misconduct of counsel" ground leaves undisturbed the conclusion arrived at on the appeal to this Court, namely, that there was one error - and one error alone - which fell within s.568(1). 102 Were it otherwise, and this Court were to revisit the question of error, the possibility would exist of a different decision being arrived at (as to the presence or absence of one or more errors) from that arrived at on the first occasion, the latter decision not having been appealed." 190 The Crown submitted that it was not necessary for the determination of the grounds of appeal remitted by the High Court to permit the appellant to raise new grounds. It was further submitted that this Court's jurisdiction was spent when it upheld the appeal which may not now be reopened. 191 The appellant submitted that the Crown's argument was erroneous. It was submitted that by its decision the High Court set aside the orders of this Court which upheld the appellant's appeal and ordered a new trial. It was submitted that the order remitting the matter to this Court re-enlivened the court's jurisdiction to hear and determine the appellant's appeal. Neither the terms of the remitted order nor the provisions of the Criminal Appeal Act,1912, deprived the court of its jurisdiction to determine the appellant's appeal, which includes the power to grant leave to the appellant to argue further grounds of appeal. 192 In Elliott v The Queen; Blessington v the Queen [2007] HCA 51; (2007) 234 CLR 38 at 47-48 Gummow, Hayne, Heydon, Crennan and Keifel JJ discussed the powers of this Court pursuant to the Criminal Appeal Act 1912. Their Honours concluded that this Court may exercise any powers which may for the time being be exercised by the Supreme Court on appeals, "if it thinks necessary or expedient in the interests of justice" [30]. Their Honours confirmed that the Supreme Court has a power to "reopen" a proceedings until judgment in the case in question has been drawn up, passed and entered (DJL re Central Authority (2001) 201 CLR 226 at 244 [34] see also the discussion in Burrell v The Queen [2008] HCA 34; [2008] 238 CLR 218). 193 In R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454 Hodgson JA said at [40]: "The authorities make it clear that, if an application to reopen an appeal is made before the judgement dealing with the appeal has been perfected, the court has jurisdiction to reopen its consideration of the appeal, and that denial of procedural fairness will be a ground on which the court may take that course." 194 When this matter was first determined in this Court, with the agreement of the parties, the Court determined only grounds 1 and 5 and having determined that ground 1 should be upheld ordered a new trial. If before that order had been perfected application had been made to amend the grounds of appeal it would have been considered by the Court on its merits. As it happens the Court's decision has been set aside by the High Court. The matter has been remitted to this Court. Although this Court has no capacity to further consider ground 1, it has jurisdiction in the interests of justice to grant leave to amend the Notice of Appeal and consider any further grounds raised by the appellant. This Court is not being asked to determine any ground of appeal previously considered by this Court or resolved by the High Court. 195 Proposed grounds 9 and 10 are raised by the appellant as a consequence of the recent disclosure of further information to the appellant in the affidavit of Federal Agent Welsh. The appellant seeks to raise arguments in support of a submission that because that information was not previously made available to him by the Crown his trial miscarried. Because the information was not previously available to the appellant and has only been disclosed after the matter was remitted to this Court it is submitted that leave to raise this ground of appeal is justified "in the interests of maintaining procedural fairness." 196 There was no suggestion that the appellant finds himself in its present position because of any failure to efficiently prosecute his appeal. It was further submitted that the information which is now available is of such significance that the original trial miscarried. It is open to this Court to allow the appellant to rely upon the additional grounds of appeal and it is appropriate in this case that he be allowed to do so. 197 It is convenient to deal with grounds of appeal 9 and 10 before considering matters of sentence.

The Crown's position on this issue, asserted both at trial and in this Court, is that the Lawrence-Bennett brothers activities have no relevance to the particular conspiracy charged by the Crown (ie the evidence is a "red herring"). This position does not satisfy fundamental disclosure requirements: R v Reardon (No 2) (2004) 60 NSWLR 454. It is inconsistent with the Commonwealth Director of Public Prosecutions' disclosure policy. The prosecution duty of disclosure is not confined to the manner in which the Crown chooses to particularise its case. The Commonwealth DPP's "Statement on Prosecution Disclosure" requires that "unused material" be disclosed to the defence well before trial. 'Unused material" is defined as "information relevant to the charge/s against the defendant which has been gathered in the course of the investigation and which (a) the prosecution does not intend to rely on as part of its case, and (b) either runs counter to the prosecution case (ie points away from the defendant having committed the offence) or might reasonably be expected to assist the defendant in advancing a defence." The trial of the appellant unquestionably concerned the maritime activities of Lawrence, Brokenshire and their associates in early to mid 2001. The information on oath indicates that investigators believed that these activities were relevant to the appellant and his alleged involvement in a cocaine importation conspiracy. The appellant ultimately sought to advance arguments as part of his defence which relied on those fragments of the Lawrence-Bennett brothers material that were disclosed to him. The Lawrence-Bennett brothers material should have been disclosed to the appellant in full well in advance of his trials, so that he could properly investigate and conduct his defence. Failure to do so is a further reason by the trial of the appellant miscarried. 206 The Crown submitted that the appellant's submissions must be rejected. It was submitted that there was no obligation on the Crown to disclose the fact that the Australian Crime Commission were carrying out an investigation in which they identified that there was contact between Brokenshire, Lawrence and the Bennetts. In any event because the information was contained within the information on oath that was subject to a claim for public interest immunity by the Australian Crime Commission there could have been no obligation on the Crown to disclose it. 207 The Crown submitted that it is plain that the observations reported in the information on oath had nothing to do with the conspiracy in which the appellant was allegedly involved. With respect to the complaint that some of the information was only disclosed to the appellant at a late point in his trial the Crown submitted that this submission is without substance. No complaint was made at the trial and the appellant cannot point to any prejudice which has been suffered. 208 I am satisfied that the appellant's submission should be rejected. It was always the case that the authorities had initiated investigation of Lawrence with respect to possible drug related criminal activity. After all this was the purpose for which the listening device warrant was obtained. The information placed before the authorising officer inevitably detailed the movements of Lawrence, and his associates as they were known to be, for the purpose of the original investigation. It was only when the listening device was put in place that suspicion arose with respect to the appellant. However, beyond the fact that the appellant obviously had dealings with Lawrence there is nothing to connect the material with the appellant and the enterprise the subject to the present proceedings. In particular in so far as the Bennett brothers were referred to in the information there is nothing to suggest that they were involved in the conspiracy the subject of the charge or in a conspiracy involving the appellant. 209 Disclosure of the information placed before the authorising officer presented other difficulties of unknown dimension. The authorities were engaged in covert activities which could be compromised by disclosure. It was for this reason that the Crime Commission foreshadowed that if necessary they would argue against disclosure. As it happened that argument was avoided. It is only that by the time the issue had been ventilated in this Court the reasons for keeping the information confidential have passed that the Commission did not resist disclosure of the information. 210 In R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 Hodgson JA discussed the Crown's duty of disclosure. His Honour said: "46 It has been said that the inequality of resources as between the Crown and the accused "is ameliorated by the obligation on the part of the prosecution to make available all material which may prove helpful to the defence": McIlkenny (1991) 93 Cr.App.R 287 at 312. The content of that obligation has been considered in a number of English cases.

48 In R v. Keane [1994] 2 All ER 478, the Court of Appeal held that, subject to the question of public interest, the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v. Brown (Winston) [1998] AC 367 at 376-7, with the comment that "an issue in the case" must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence.

50 In R v. Mills [1998] AC 382, it was held that the duty extended to disclosure of statements taken by the prosecution authorities from witnesses not called by the prosecution, and not merely to the disclosure of the identity of such witnesses.

52 There has been some discussion of the English cases in other States of Australia. R v. Mills was distinguished in R. v. Reci (1997) 70 SASR 78, and its statement of principle was not adopted. However, in other respects the few Australian cases that have commented on the English cases have not suggested they are not applicable in Australia: see in particular R v. Garofalo [1999] 2 VR 625 at [58]-]63], Easterday v R. [2003] WASCA 69 at [194], [390].

[2004] SASC 280

(2007) 231 CLR 260

(2001) 201 CLR 226

(1985) 63 ALR 181

(2007) 234 CLR 38

(1998) 194 CLR 106

(1911) 13 CLR 619

(2003) 57 NSWLR 82

(2004) 89 SASR 406

(2004) 60 NSWLR 454

(1989) 16 NSWLR 14

(2005) 224 CLR 300