Cornwell v R

(a) a telephone call between the appellant's mother (Mrs Lois Cornwell) and Lawrence's partner (Yvonne Keane) in which Ms Keane had "indicated" a belief that Lawrence was living at the appellant's unit; and

(b) that Lawrence had been sighted in the courtyard of the appellant's unit on the morning of 26 February.

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.

Q During the course of that conversation Mrs Cornwell was heard to ask Miss Keane if he was still there, a reference apparently to John Lawrence? A Yes.

Q Miss Keane was heard to tell Mrs Cornwell that she had a big fight with Mr Lawrence last night and kicked him out? A Yes.

Q So actually he is over at Bruce's? A Yes."

(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 …

61. 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:

(para 55) On 15 February 2001 Lawrence telephoned the appellant. The appellant told him that he had seen "the little bloke" the other day and that "the stuff" was "marked up a bit" and that it had been tampered with. Agent Welsh said that she believed this to be a reference to narcotics, and "the little bloke" to be another of the suspected conspirators. The appellant said that he would see Lawrence on the weekend;

On 19 February 2001 Ms Keane told Mrs Cornwell that the appellant had been around looking for Lawrence and she complained that Lawrence had contacted the appellant from Queensland, but had not contacted her. 291 In the context of this evidence, the asserted misstatement is quite minor. It can hardly have made the difference between the issue or non-issue of the warrant. I am satisfied that it is unlikely that it operated on the mind of the AAT member. 292 Accordingly, I agree with Howie J and Blackmore DCJ that the necessary causal connection between the misstatement and the issue of the warrant has not been established. 293 I have not overlooked the significance of the time at which it was said Lawrence left the appellant's unit - 8.50am. That certainly is capable of suggesting that he had spent the night in those premises. In that context it must be recalled that the surveillance evidence indicated that his car was parked nearby at an even earlier hour. 294 I would reject ground 6.

Ground 9: the trial of the appellant miscarried due to the non-disclosure or late disclosure of material relevant to his defence

Ground 10: the learned trial judge erred when he refused to grant the appellant access to undisclosed material concerning the Bennett brothers and Lawrence 295 It is worth saying at the outset that these grounds are founded upon a false factual premise. That false factual premise concerns the nature of the defence sought to be made by the appellant in the first trial. 296 Following the disclosure of additional paragraphs of the information sworn in support of the warrant application (see ground 6), application was made to add these grounds to the grounds previously filed, and remitted by the High Court for consideration by this Court. Written submissions dated 7 July 2009, signed by senior and junior counsel, were filed. 297 In R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454, this Court adopted the principles concerning the prosecution duty of disclosure stated by the English Court of Appeal in R v Keane [1994] 1 WLR 746; [1994] 2 All ER 478, to the effect that: "… The prosecution must disclose documents which are material; … 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)."

and a rider added by the House of Lords in R v Brown (Winston) [1998] AC 367, to the effect that the words "'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. See also R v Spiteri [2004] NSWCCA 321 at [16] and following. 298 A prosecuting authority will be expected voluntarily to disclose material in its possession that, "on a sensible appraisal", can be seen to come within any of the three identified categories; it will be expected to produce, on request by an accused, or subpoena issued by the court, such material, if a "legitimate forensic purpose" for requiring its production is demonstrated: Saleam v R (1989) 16 NSWLR 14. It is hardly necessary to say that if, "on a sensible appraisal", material the subject of request or subpoena, not previously recognised as coming within any of the three categories, can be seen to do so, a "legitimate forensic purpose" will have been demonstrated. 299 The material the subject of these grounds falls into two categories:

(i) material that was not disclosed at all to the appellant at or during his trial (but which has since been disclosed);

(ii) material that was disclosed "very late" in the second trial. 300 The material in the first category (material disclosed post-trial) is identified in the appellant's written submissions dated 7 July 2009 as: "(i) The terms of the warrant application, with the exception of those portions which were disclosed during the voir dire hearings before Howie J and Blackmore DCJ … The following matters were not disclosed to the appellant in any form: The fact that the Bennett brothers were referred to in the warrant application;

That Brokenshire was 'known to facilitate contact with Lawrence for Rodney Bennett and others' (paragraph 19);

the matters set out in paragraph 34 [of the information] with the exception of the final sentence (which was disclosed to the appellant late in the trial in the form of a surveillance running sheet);

(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

"It was the appellant's case that the conversations recorded on the listening device … did not relate to the charged importation." 308 It was then put, in the written submissions: " In the appellant's evidence , which was tendered in the retrial, it was asserted that when the appellant did speak about drug related matters with Lawrence and Diez [Juan Guillermo Diez Orozco], he was either discussing a different or 'parallel' importation to the one particularised in the prosecution case , or was referring to domestic drug distribution activities that were quite separate to the charged importation. The 'parallel' importation concerned a shipment of cocaine from an island in the Pacific Ocean a few weeks away by boat, possibly Fiji." (italics added)

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:

in a conversation between the appellant and Diez on 24 March, at a time when relations were strained (for reasons it is not necessary here to detail - see paras 18 to 24 of the judgment of McClellan CJ at CL), Diez said: "Now tell me how you gonna justify when the big one is coming here buddy. What are we going to do with that, with the big one?";

in a conversation with Lawrence on 12 April, the appellant said: "I said you've got eighty four, I said out of that money we're putting in thirty three each for the tools, he said yeah fine with me, just give me fifty and he said it's here in five weeks on the twenty sixth or twenty seventh, the Dutchman'll be here then.";

in the same conversation, the appellant said: "I reckon if you were on that, just to tell you what my thoughts are, hear me out okay … people on the farm next week … if you get that … craft boat conditions are okay if you just … twenty five mile out to sea straight out, right? And once you're within fuckin five mile you can see a bit of light, just go out, boom, pick 'em up, drop the heavy fuckin thing in, come down the coast all the way in that fuckin thing …"

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:

the importation of cocaine originating from sources in South Africa.

He did, however, make reference to a proposed importation of cocaine from "an island", and he made reference to "South Africans". The overall tenor of, and the constant refrain in, his evidence, was in two parts:

(i) to assert that he was heavily involved, with Lawrence and Diez, in the widespread distribution of cocaine in Sydney;

(ii) to assert that, although he had been aware of an importation proposal, and had engaged in discussions about it, he had never reached the point of agreeing to participate. 353 The transcript of counsel's closing address in the Howie J trial is not available to this Court. His (the appellant was represented by the same highly experienced senior counsel in both trials) opening in the Blackmore DCJ trial is available and relevant. It was short and pointed. The following are the salient features (for the purposes of the present grounds of appeal): "The evidence will demonstrate that Mr Cornwell ultimately did not participate in the agreement which is the subject of this charge ";

"… when push came to shove Bruce Cornwell did not participate in the conspiracy ";

"It is fundamental that they [the Crown] prove beyond reasonable doubt, that Mr Cornwell did actually agree to take part in the venture, which is said to be the subject of this charge ";

"It will be anticipated that Mr Cornwell was involved in discussions about a possible venture. Whether it is a venture which the Crown says is the one which they must prove or not, Mr Cornwell did have some knowledge about the possibility of something happening in the future . He did discuss the possibility of becoming involved in the venture and he did discuss it with Mr Lawrence, in particular whether or not he should become involved in the mechanics of a future importation, but ultimately he bowed out of it";

"… Diez involved him [the appellant] and Mr Lawrence in some localised drug dealings. There is no getting around that";

"… the Crown are charging my client with participating in a conspiracy to import drugs from South America ";

"That is, he put his little toe in the water to feel the temperature, found that it was a bit too hot, and pulled it out. He did not dive in and did not participate in the venture." (italics added) 354 There is no hint in this that the appellant's defence (either in whole or in part) would be that he was involved, or considering being involved, in an importation different from that in which the Crown alleged he was involved - that is, the importation from South America. 355 I have read the entirety of the appellant's evidence in chief given in the trial before Howie J (as read by Blackmore DCJ to the jury in the second trial). Given that the examination I am conducting is to determine whether he raised any issues that ought to have alerted the Crown to the need to disclose further documentation, and given that any such issues would be expected to be raised in his evidence in chief, I have not considered it necessary to explore the cross-examination. This Court was not directed to any evidence given by him in cross-examination that would throw light on the resolution of these grounds of appeal. I will return to the appellant's evidence. 356 I have also read much (although not the entirety) of senior counsel's closing address in the second trial. He began that address by saying: "… the accused takes issue with the Crown's assertion that he ever became involved in a legal sense, in a real sense and actual involvement in the importation which is the subject of the charge.

Although he talked to Diez and to Mr Lawrence about being involved about the prospects of pulling it off, although he clearly demonstrated a desire to be part of it, ultimately there were quite a few issues that were left unsettled so far as he was concerned . He was not satisfied about security arrangements. He was not satisfied about the amount of money that was going to be paid to him and to Lawrence. He was not satisfied about who was going to have control over the cocaine when it got here and all of these issues were left unsettled.

Then after he did get involved in a business arrangement with Diez it soured. The local distribution of cocaine proved to be too much of a stumbling point …

… The Crown, therefore, would have you believe that serious hardball players like John Lawrence and Juan Diez would agree with [the appellant] that [the appellant] would be in on the importation when basically [the appellant] had demonstrated already that he would do nothing … could do nothing to advance the interests of the venture, and that the only role that he was prepared to play was to sit back and count the money when it was all sold." (italics added) 357 A little later, he said: "But even before 20 April there is much to demonstrate that there were signs that the relationship between [the appellant] and Mr Diez, and [the appellant] and Mr Lawrence was completely dysfunctional … … [the appellant] was showing a complete ambivalence about the proposed importation. He couldn't care less one way or the other, according to some of the conversations … And that's just his relationship with Diez … 358 Again, there is nothing in this to suggest that the appellant's defence was that he had been indicted in respect of the wrong conspiracy. 359 Some considerable time later, senior counsel said: "For the Crown to simply shrug his shoulders and say that it was [the appellant] who did that, the Crown prosecutor has just ignored another reasonable possibility . In fact I would argue it is something that's just as likely, more than likely, that Lawrence was involved in the acquisition of the RIB for some other purpose, not the purposes associated with this venture. That's the second reason that the Bennett evidence has been tendered.

This is the third. The Bennett evidence is some foundation for accepting that Jack Lawrence had some venture happening at a later point in time than January 2001 probably with Diez. There was evidence that I will take you to that demonstrates the real possibility that Diez and Lawrence were involved in more than one scheme to import drugs.

This is very important when you consider whether [the appellant] was talking to Lawrence and/or to Diez about this venture on the tapes. Or could it have been something different?

[The appellant] has always maintained that he was told that the venture that he was aware of was something that involved bringing drugs from an island in the Pacific you might think.

If you accept the Colombians - a big ask - but if you accept the Colombians and accept them as even reasonably possibly telling the truth, that's not the venture that they were involved in, at least it doesn't sound like it. There is a mile of evidence in this case about Fiji. Too much to ignore as being totally irrelevant …" (italics added) 360 The italicised passages, which put the appellant's present contention at their highest, are no more than speculation. * * * 361 Against that background, it is now necessary to be more specific about the documentation the non-production or late production of which is now the subject of the present complaint, the efforts made on behalf of the appellant to obtain it, and his explanation for his claim that it was relevant to his defence. In what follows I have relied heavily upon the chronology that is set out in the written submissions dated 7 July 2009 provided in support of these grounds on behalf of the appellant. 362 The relevant chronology appears to be as follows:

(i) as early as 2002, in preparation for committal proceedings, the appellant's legal representatives, by subpoena, sought production of, inter alia : certain surveillance running sheets revealing the whereabouts of the appellant, Diez and Lawrence during a specified period;

all running sheets relating to "Operation Swiftlet";

all photographs and video footage obtained during the course of Operation Swiftlet depicting the appellant, Diez and Lawrence. "Operation Swiftlet" was identified in the information sworn in support of the listening device warrant as the investigation into the suspected drug importing activities of Lawrence and his (then) suspected co-conspirators - the Bennett brothers, Brokenshire, Scanlon and Pavan. In answer to this subpoena the NCA produced certain material, but required, before production of other material, that the appellant establish a legitimate forensic purpose for seeking it. The documentation produced contained, inter alia , a reference to "the Bennetts"; an assertion that Lawrence was considered to be involved in an importation of cocaine from Fiji; and a reference to an importation of cocaine from Fiji involving Lawrence, Brokenshire and the appellant;

(ii) during the course of the committal proceedings, senior counsel for the appellant called for "the warrant application", which, it seems, all parties treated as a reference to the sworn information. The end result of that call can be seen in the consideration of ground 6. At both trials, only paragraph 62 was made available. The legitimate forensic purpose identified in the claim for access to "the warrant application" was to ascertain whether the warrant had been issued on the basis of incorrectly stated facts. No other basis for production was mentioned;

(iii) proceedings before Blackmore DCJ began on 27 January 2004, with two weeks allowed for the resolution of outstanding legal issues before a jury was to be empanelled. The Crown opened to the jury on 17 February. The trial concluded with a verdict of guilty against the appellant on 8 June 2004;

(iv) by 23 April the trial was well under way and 36 of the 40 proposed Crown witnesses had given evidence. But some time shortly before that date, and in circumstances of which this Court is unaware, the Australian Crime Commission ("the ACC") disclosed to the appellant some additional material concerning Lawrence, the Bennett brothers, and Brokenshire. Following that, and probably as a result of what was contained in that material, on 23 April counsel for the appellant sought leave to issue a further subpoena, with short service upon the ACC, requiring production of further material. This was identified in the chronology to which I have already referred as the "Bennett brothers material". The basis on which access was claimed at that time was identified in written submissions provided to Blackmore DCJ. Those submissions contained the following: "It will be suggested that [the appellant] was acting in furtherance of the conspiracy when he contacted [the boat dealer] and that [the boat dealer] bought the vessel so that it could be used for the purposes of the conspiracy. But it is the Crown case that Lawrence did not enter the conspiracy until after 7 March 2001. Thus any evidence that suggests that inquiries about vessels were made by or in conjunction with Lawrence earlier than 7 March must have been for a different purpose. The recently produced material demonstrates that Lawrence and Rodney and Tony Bennett were as early as 19 January: (i) Inspecting boats.

(iii) Planning for the Bennetts to be away for some weeks.

(iv) Discussing a boat and trailer. 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 that [the appellant] or Lawrence had with boats prior to 7 March was not about the instant conspiracy. If so, then any contact that [the appellant] had with boats (if in conjunction with Lawrence) could also have been for purposes unrelated to the conspiracy charged.

If it is reasonably possible that [the appellant] was discussing a topic or topics that concerned a different venture than the one which is the subject of the charge, it is more likely that he is not a party to the instant conspiracy. [The appellant] has always maintained that he understood the venture to involve a vessel coming from an island 3 weeks' voyage from Australia. This is not consistent with the evidence concerning the voyage of the Flaning.

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.

It seems to me that it is very much stating the proposition at its highest. The evidence against [the appellant] is, in effect, a series of recorded conversations between himself, a man named Diez and Lawrence. It is suggested that if there was a concurrent importation and it involved the use of a boat, then it is possible that [the appellant] was not discussing with Lawrence the conspiracy the subject of the present charges, but the other conspiracy ." (italics added) His Honour rejected the suggestion as unsupported by the evidence he had seen to date. He referred to the conversations recorded by the listening device tapes, noted that in his evidence in the previous trial the appellant had made no suggestion that what he was discussing with Lawrence was some other importation, and observed that the recorded conversations did not involve the Bennetts;

(v) On 27 April senior counsel again raised the matter. On 28 April Blackmore DCJ (without opposition from the representative of the ACC who was then present) granted short service of a subpoena and the following day the ACC produced material in answer to it. On 30 April Blackmore DCJ delivered a judgment concerning the issues that had arisen. The present significance of that judgment is to indicate the basis upon which senior counsel then sought access to the material. Relevantly to that issue, his Honour said: "3. Firstly it is said that the material … includes information that … Lawrence was in the market for a boat … in at least January 2001. Why he might have wanted such a boat is not clear. However in the context of the Crown case that was two months before the Crown alleges Lawrence became involved in this conspiracy.

4. The significance of the evidence, if it be established, is said to be that it might tend to affect the jury's decision on the question of whether it was [the appellant] who originally contacted a boat dealer … It is submitted that the jury might accept that it was not [the appellant] who contacted [the boat dealer] about the purchase of the boat but Lawrence …

5. … The Crown alleges that the original contact with [the boat dealer] originated from [the appellant] and it alleges that is an overt act in the case …

9. A second issue raised by [the appellant] is that there is material … which suggests that Lawrence was dealing with two brothers named Bennett …

10. … It is submitted that if access is given to this material it might be possible to show that there was a concurrent importation being organised by Lawrence and the Bennetts using a boat. If that could be established then, it is said, that it has important implications for the defence of [the appellant] because it might be that when [the appellant] was talking to Lawrence in March and April 2001 he was not talking about this conspiracy but some other transaction altogether . Moreover it is possible that [a] conversation … could be read in the light of this new material and therefore the jury might conclude that what Lawrence and [the appellant] were discussing was some other concurrent importation, possibly with the Bennetts, and not the importation the subject of this charge ." (italics added) 363 Again, to the extent that a "concurrent" or "parallel" importation was mentioned, it was framed in the language of speculation and theorising. No mention is made of a positive assertion by the appellant that his involvement was in a different importation. 364 Why the ACC began providing additional material, at the late stage that it did, is not clear to me. The transcript suggests that there were negotiations between the appellant's legal representatives and the ACC, and that there was a degree of co-operation between the two.

The argument regarding production 365 The entire focus of the argument put on behalf of the appellant in respect of the production of the "warrant application" was on the possibility of identifying further errors or misstatements that would or could amount to impropriety. That has been fully advanced in the consideration of ground 6, and there is no need to say more about it. That that was the basis for which production of the balance of the sworn information was sought merely reinforces the conclusion that a "parallel importation" was not an issue. 366 I have said above that these grounds (grounds 9 and 10) as presented are founded upon a false factual premise. That false factual premise is that, in the course of his evidence in the trial before Howie J, the appellant: "… asserted that when [he] did speak about drug related matters with Lawrence and Diez, he was either discussing a different or 'parallel' importation to the one particularised in the prosecution case …"

This is simply factually incorrect. The appellant gave no such evidence. There is not a word in the evidence in chief of the appellant that suggests that his defence was that he was involved, not in the Flaning conspiracy, but in a similar conspiracy involving:

different participants, including, importantly, the Bennett brothers;

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:

overlooked eliciting direct evidence to that effect from the appellant in the first trial;

overlooked alerting the jury to that in his opening in the second trial;

overlooked mentioning that circumstance (and stressing its importance) to Blackmore DCJ in the various arguments concerning access to material in the second trial;

overlooked referring to it (other than by way of speculation) in his final address in the second trial;

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. **********

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