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Texts Cited: Nil.

Category: Principal judgment

Parties: Aaron James Pearce (Applicant)
Rex (Respondent)

Representation: Counsel:
T Kent (Applicant)
P J Doyle SC / K L McCann (Respondent)
Solicitors:
Inner City Lawyers Pty Ltd (Applicant)
Solicitor for Public Prosecutions (Cth) (Respondent)

File Number(s): 2022/00211541

HEADNOTE

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

Mr Pearce (the applicant) sought leave to appeal against his conviction and sentence for the offence of aiding, abetting, counselling or procuring the offence of attempting to possess a commercial quantity of cocaine (the drug charge) pursuant to subsections 11.1(1) and 307.5(1) of the Criminal Code (Cth).

The applicant was charged alongside two co-accused, Mr Jones (who pleaded guilty in the Local Court of New South Wales to the drug charge) and Mr Skaines (who was initially tried alongside the applicant but pleaded guilty to the drug charge on the ninth day of the trial with a jury at the District Court of New South Wales). The applicant was found guilty of the drug charge by the jury and was sentenced to 6 years and 3 months imprisonment with a non-parole period of 3 years and 6 months.

The issues arising on the appeal were whether:

1. The jury’s verdict was unreasonable on the basis that it was not open to the jury to find, beyond reasonable doubt, that the applicant believed he was aiding or abetting an offence of the type that the co-offenders committed.
2. The applicant has a justifiable sense of grievance having regard to the sentences imposed on the co-offenders.

Appeal against conviction

Held per McNaughton J (Free JA and Campbell J agreeing) granting leave to appeal but dismissing the appeal:

3. When all the circumstances of the case are viewed together rather than piecemeal it was well open for the jury to find beyond reasonable doubt that the applicant knew, or believed, he was aiding or abetting an offence of the type that the co-offenders committed. The circumstances included the highly sophisticated, organised, and expensive nature of the venture, the high value of the cocaine, the applicant’s exclusive possession of a phone containing only an encrypted application with a group chat established at a time closely proximate to criminal conduct by the co-offenders, and the actions of the applicant on the day of the offence (including counter-surveillance). The verdict was not unreasonable: per McNaughton J at [88]-[93] (Free JA agreeing at [1] and Campbell J agreeing at [2]).

Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29; Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433*; The Queen v Baden-Clay* (2016) 258 CLR 308; [2016] HCA 35; Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51; The King v ZT (2025) 281 CLR 137; [2025] HCA 9; Wiggins v R [2020] NSWCCA 256, applied. Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, distinguished.

Appeal against sentence

Held per Campbell J (Free JA and McNaughton J agreeing) granting leave to appeal but dismissing the appeal:

4. Practical difficulties arise where co-offenders are sentenced on a different factual basis, which is common where one pleads guilty and another stands trial. However, the sentencing judge must pass sentence on the evidence led before them: Campbell J at [25], Free JA at [1], McNaughton J at [30].

PG v R [2017] NSWCCA 179 applied. Warne v The King [2023] ACTCA 1 considered.

5. The parties represented before Culver DCJ all embraced the submission that there had been an “evening out” of objective seriousness among the three co-offenders. The applicant has not established that he is permitted to resile from this concession: Campbell J at [26], Free JA at [1], McNaughton J at [30].

Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460 applied.

6. Her Honour had regard to the similarities and differences between the respective offending and the subjective cases for the co-offenders. No justifiable sense of grievance is established: Campbell J at [27]-[28], Free JA at [1], McNaughton J at [30].

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 applied.

JUDGMENT

1. FREE JA: In relation to the conviction appeal, I have had the advantage of reading in draft the reasons of McNaughton J. Having assessed the evidence and the applicant's arguments, I agree with her Honour's conclusion and with her Honour's reasons for dismissing the appeal. In relation to the sentence appeal, I agree with Campbell J.

2. CAMPBELL J: I have had the considerable benefit of reading McNaughton J’s judgment in draft. I agree with the orders proposed by her Honour for the reasons that her Honour gives. From my own review of the agreed facts, evidence and arguments at trial, I agree that it was open to the jury to find beyond reasonable doubt that the applicant was guilty of the offence charged.

3. As McNaughton J has pointed out, the applicant has also sought leave to appeal from the sentence passed upon him by Culver DCJ of 6 years and 3 months’ imprisonment with a non-parole period of 3 years and 6 months. The sole ground relied upon is that the applicant has “a justifiable sense of grievance” having regard to the sentences imposed on his co-offenders, Jones and Skaines. In short, the applicant raises a parity ground.

4. In her Honour’s judgment dealing with the conviction ground, McNaughton J has summarised the evidence at trial and the case for the prosecution and the defence. It is unnecessary therefore for me to go over the same ground and my judgment assumes familiarity with that of McNaughton J.

5. However, by way of introduction, it is necessary to reiterate that the applicant and the co-offenders, Jones and Skaines, were participants in a joint criminal enterprise related to the attempted possession of a commercial quantity of an unlawfully imported border controlled drug, namely cocaine. The amount involved was at least 9.82kg, and perhaps as much as 69kg, either way considerably in excess of the commercial threshold of 2kg.

6. The actual drugs had been intercepted by police in the United Kingdom, from whence they were to be imported into Australia. An inert substance was substituted by British police. Each of the three co-offenders had a different part to play in the enterprise, although the criminal activities of Jones and Skaines substantially overlapped.

7. Jones entered a plea of guilty in the Local Court to the charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth). This charge carried a maximum penalty of life imprisonment. Jones was sentenced by Kumar DCJ in the District Court on 22 March 2024 to a term of imprisonment of 5 years and 3 months, with a non-parole period of 3 years, after a discount of 25% for the utilitarian value of his early plea of guilty. But for his plea, the head sentence would have been one of 7 years.

8. The applicant and Skaines were committed for trial in April 2024 on a joint indictment, with separate charges preferred against them. Skaines was charged with the same offence as Jones and an additional charge of using an offensive weapon with intent to prevent his lawful apprehension, contrary to s 33B(2) of the Crimes Act 1900 (NSW).

9. The applicant was charged with the offence of aiding, abetting, counselling or procuring Skaines and Jones in attempting to possess a commercial quantity of the unlawfully imported border controlled drug, contrary to ss 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code (Cth). This charge also carries a maximum penalty of life imprisonment.

10. As McNaughton J has recounted, Skaines pleaded guilty to the drug importation charge on the ninth day of the trial (9 May 2024) and the Crown withdrew the s 33B(2) charge. The trial continued and the jury returned a verdict of guilty in relation to the charge against the applicant.

11. Following the applicant’s guilty verdict, he and Skaines were sentenced by Culver DCJ together on 30 April 2025. Skaines was afforded a discount of 5% on the sentence that would otherwise have been passed to take account of the utilitarian value of his late plea of guilty. After the discount, her Honour sentenced Skaines to a term of imprisonment of 64 months and 15 days (5 years, 4 months and 15 days), with a non-parole period of 36 months (3 years). I repeat that the applicant was sentenced to a term of imprisonment (without discount) of 75 months (6 years and 3 months), with a non-parole period of 42 months (3 years and 6 months).

Principles

12. The resolution of the present appeal does not call for a detailed exposition of that part of the law of sentencing dealing with the parity principle. But some references to authority are necessary. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green v The Queen”), French CJ, Crennan and Kiefel JJ (at [28]) explained that the parity principle is a manifestation of the fundamental “norm expressed in the term ‘equality before the law’” (footnote omitted). Their Honours continued:

“It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law.

….

Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.”

(Footnotes omitted.)

13. As I have pointed out, Jones was the first of the co-offenders sentenced and by a different judge. He was sentenced on the basis of agreed facts, supplemented by his oral testimony in the proceedings on sentence, which was accepted by Kumar DCJ in material respects. These matters provided a basis more favourable to Jones than the evidence led at the applicant’s trial. For this reason, the principles discussed by the majority in Green v The Queen at [31]-[33], and the authorities establishing them, need to be borne in mind. I will not set out the whole of that long passage, but the following matters are salient:

(a) The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. (b) A court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. (c) That there are differences in the sentences passed on co-offenders is not of itself unjustifiable disparity, but where unjustifiable disparity is apparent it is not necessary that the sentence under appeal is otherwise excessive before a court of criminal appeal will intervene. (d) Disparity itself can be an indicator of appealable error: “[u]njustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed.” Parity does not require identity of punishment. (e) A sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 (Gibbs CJ at 610), (Mason J at 613-614), (Dawson J at 623 and 616, by Wilson J agreeing with the latter) (“Lowe v The Queen”). The existence of this discretion does not equate with an obligation to exercise it: R v Steele (Court of Criminal Appeal (NSW), 17 April 1997, unrep) (Simpson J at 8-11, Sheller JA and Grove J agreeing).

14. A particular case in point illustrating the practical difficulties which may attend the application of the parity principle where co-offenders are sentenced on different bases is PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 (“PG v R”). There, each co-offender was sentenced by the same judge, but on the basis of differing statements of agreed facts and different evidence. Basten JA (Button and N Adams JJ agreeing) said (at [23]-[24]):

“[23] It is by no means uncommon that, where pleas are negotiated and the basis of the plea is agreed, A will be sentenced on the basis that B was the principal and A played a lesser role, whereas B will be sentenced on the basis that A was the principal and it was B who played the lesser role. Usually, there will be no mechanism by which a sentencing judge can resolve such contradictory propositions*.* Nor is it open to this Court to do so. Accordingly, two co-offenders may be sentenced on entirely different bases. It is not open to A (having been sentenced first) to say, ‘I was sentenced on the basis that B was the principal, but B got the same sentence that I did and therefore my sentence must be reduced.’

[24] Sentencing does not take place on the basis of objective singular established truth, but on the basis of the evidence before the sentencing judge. Where, as is desirable, the one judge sentences all co-offenders, the urge for equal justice may seem to be frustrated by such factual inconsistencies, that does not give rise to a basis for intervention by this Court.”

(My emphasis.)

In the case at hand, while Culver DCJ fully summarised the findings made by Kumar DCJ relevant to sentencing Jones (remarks on sentence (“ROS”) [211] – [223]), her Honour made her own assessment of the relativities among the three co-offenders for sentencing purposes ROS ([232] – [236]).

15. PG v R was followed by the Court of Appeal of the ACT in Warne v The King [2023] ACTCA 1. There, the Court (Mossop P, Kennett and Bromwich JJ) held (at [72]):

“72․ In the present case, Murrell CJ did not find in terms that the appellant was the principal offender. However, it does appear that the agreed facts on which her Honour proceeded painted a different picture of Mr Andy’s involvement (and accordingly of his and the appellant’s relative levels of culpability) from the findings of the primary Judge in the present case. In so far as the ground 3 depends on the roles played by him and Mr Andy, therefore, the appellant’s complaint mirrors that which Basten JA described as ‘not open’ in PG. Mr Andy, having pleaded guilty and had a chance to negotiate agreed facts with the prosecution, was sentenced on the basis that he was not the principal offender. The appellant, having gone to trial, was sentenced on the basis of evidence which showed Mr Andy to have been the instigator of the offending. The appellant cannot use the sentence imposed on Mr Andy (which appears lenient compared to his role as found at the trial) as a benchmark in order to argue that, having played a lesser role, he must receive a lesser sentence*. To accede to such an argument would disconnect the sentencing of the appellant* from the normal application of sentencing principles and be apt to produce a sentence that was not proportionate to the seriousness of the offending (cf R v Pan [2005] NSWCCA 114, [35] (Johnson J, Giles JA and Hoeben J agreeing)).”

(My emphasis.)

Summary of submissions on the appeal

16. The gravamen of the applicant’s complaint is that his role in the offending was “substantially less serious” than that of the co-offenders: Applicant’s Written Submissions [87]. The applicant submits that to the extent that her Honour made a finding contrary to that, such a finding is erroneous.

17. The applicant developed this submission by putting that his role is best described as that of a “spotter”. He had no contact with the generator in which the putative drugs were hidden, nor with the drugs themselves, although it is properly conceded that he must have known that a substantial amount was involved, having regard to the level of sophistication of the operation.

18. The Crown submits that the disparity is justified on three bases. First, the differing factual basis upon which Mr Jones and the applicant were sentenced. Secondly, the applicant knew or believed he was assisting his co-offenders in an attempt to possess an unlawfully imported border controlled drug, whereas Mr Skaines had been found to have been “merely reckless”. Thirdly, the applicant’s subjective case was less favourable than that of his co-offenders. It was put that no justifiable sense of grievance exists in these circumstances.

The sentencing judge’s findings

19. It should be said at the outset that her Honour was not mistaken about the nature of the applicant’s role. Her findings in that regard were as follows (at ROS [90] – [91]):

“90. Accordingly, the Court finds that Pearce’s role is limited to 18 July 2022, when he made internet searches for the two vans, and on 19 July 2022 when he provided countersurveillance and was part of a spotters’ group. There is not sufficient evidence to establish that Pearce knew the extent of the operation. He never saw the bricks or had interaction with the generator. Whilst the Crown submitted that distance form [sic] the drugs might indicate Pearce was higher up in the syndicate, as submitted on behalf of Pearce, that finding cannot be made beyond reasonable doubt. Instead, it also is an available rational inference in the circumstances of this case that he was recruited the day before and was less hands on because he was less involved.

91. Pearce was an aider and abettor, not in a managerial, supervisory or organisational role. As submitted on behalf of Pearce, he was a spotter or lookout. This allows a conclusion that although he performed an important role in a sophisticated operation, he was towards the lower part of the enterprise. It cannot be established that he knew the precise quantity of drugs involved other than that it was a substantial quantity. As outlined above, articulation of the degree of criminality on a range is unnecessary, but to the extent it has been addressed in submissions, it is found that Pearce’s criminality for an inherently serious offence falls under the mid range but is not at the bottom of the range.”

20. Moreover, it needs to be borne firmly in mind that at first instance (remembering that Jones was not represented before the sentencing judge because he had been dealt with) the Crown Prosecutor, counsel for the applicant and counsel for Skaines proceeded on the common ground that there had been an “evening out” of the objective seriousness of the offending among the three co-offenders. From the transcript of the proceedings on sentence, it is more than tolerably clear that counsel for the applicant (9.42-43.3T), counsel for Skaines (6.45-7.10T) and the learned sentencing judge herself (4.35-39T), all employed this terminology. It was embraced by the Crown Prosecutor (4.45-47T). The phrase, and the approach to the assessment of objective seriousness of each of the co-offenders, was adopted by all parties and, I infer, understood by them.

21. In this context, counsel for the applicant said the following (at 9.49-10.3T):

“So, in terms of the parity and what my learned friends say in relation to the evening-out, in my submission, Mr Jones is slightly above Mr Pearce, in relation to the role played and, therefore, what your Honour needs to consider in relation to parity.”

And at 10.38-48T:

“The facts as established in the trial certainly put Mr Jones at a higher level, but it is acknowledged that Kumar DCJ sentenced Mr Jones on a different basis, on facts agreed. There’s certainly some levelling-out, or evening-out, in relation to the co-offenders, but, in my submission - and it is a difficult exercise, because it's somewhat artificial, when your Honour needs to compare the facts in this trial to the facts agreed for Mr Jones, but, whilst there is some evening-out, it's submitted that Mr Jones played a more active role. Your Honour simply needs to take that into account when looking at the sentence imposed in relation to Mr Jones and finding the appropriate role and, therefore, the appropriate sentence in relation to Mr Pearce.”

22. The applicant’s position from these extracts as it relates to parity is clear. Mr Jones played a more active role, and the sentence imposed upon him should be considered in that light when passing sentence upon the applicant. Both of those submissions were accepted by the sentencing judge and are referred to in the ROS. But learned counsel, quite properly, also accepted while there was some degree of levelling out among the three, Mr Jones’ offending involved a more active role than the applicant’s. Her Honour gave effect to the submission (ROS [236]).

23. It is understandable then that her Honour adopted that approach, but, naturally, this was but one factor to which her Honour had regard. As I have already said, her Honour fully summarised the findings made by Kumar DCJ when sentencing Jones. Bearing that in mind, however, she made the following determinative findings in relation to parity (at [232]-[236]):

“232. All parties now agree that there is a levelling of circumstances contributing to the objective seriousness as between Skaines and Pearce and, on the basis on which he was sentenced, Jones.

233. However, on behalf of Skaines, (MFI 5 at paras 6 and 8), it is submitted that his subjective features, including the discount for his plea of guilty, his moderated culpability in light of his life experiences, mental state, and need for and steps towards rehabilitation, would result in a sentence that is shorter than the sentence that would have been imposed on Jones before he received a 25% discount for his plea of guilty, namely imprisonment comprised of a total term of 7 years and a non-parole period of 4 years.

234. On behalf of Pearce, it also is submitted that the combination of his circumstances would result in a lower sentence than that which would have been imposed on Jones before the discount of 25% had been applied.

235. In the Court’s assessment, the following observations can be made about some of the subjective features of the three co-offenders.

- Skaines has the most compelling subjective circumstances of the three co-offenders. Whilst the moral culpability of all three co-offenders was reduced to an extent by virtue of their Bugmy and mental health features, such as to render them inappropriate vehicles for the full emphasis of general deterrence, Skaines’ life experiences, mental state and vulnerability through reduced cognitive capacity most significantly reduce his moral culpability. Unlike Skaines and Jones, Pearce's moral culpability was aggravated by his breach of parole.

- Whilst three offenders could establish evidence of remorse, Skaines evidenced the greatest insight into his offending.

- Whilst Skaines and Jones have been found to have very favourable prospects of rehabilitation, the prospects of Pearce’s rehabilitation are guarded.

- All co-offenders were of a similar age.

- Whilst all co-offenders had some criminal history, Pearce’s criminal history with prior custody was the most serious.

- Whilst all three co-offenders were assessed as experiencing custody in a more onerous fashion due to mental health issues, this particularly has been exacerbated for Pearce whilst on lengthy remand.

- Whilst there is an adverse impact on Pearce's finance, family and business by being in custody, the hardship to be experienced by Skaines’ mother is particularly onerous.

- Whilst delay has adversely impacted on Skaines and Pearce, it has been most onerous on Pearce by virtue of his very restrictive remand conditions.

236. It is found that the balance of all the relevant objective and subjective features renders the appropriate sentences as warranting some differential in the sentencing outcomes of the three co-offenders. In overall parity terms, Jones’ sentence, prior to the application of his 25% discount, occupies the most serious sentencing position, then below him is Pearce, then below Pearce is Skaines.”

Consideration

24. It is clear that the parity principle is concerned with outcomes, by which I mean the sentences finally imposed. The comparison required to be made by the Court of Criminal Appeal is between or among the sentences actually imposed upon each co-offender by reference to the facts, matters and circumstances relevant to the sentence passed on each. It is by this means that the similarities and differences relevant to a parity question are identified. It is not necessary that each fact, matter and circumstance should be picked over minutely. The application of the parity principle is concerned with “marked disparity”: Lowe v The Queen at 609-610, by Gibbs CJ. As the majority in Green v The Queen pointed out (at [31]), the court will refuse to intervene where disparity is justified by differences between co-offenders such as “age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise”: Lowe v The Queen at 609 (Gibbs CJ).

25. Practical difficulties arise where, as here, co-offenders are sentenced by different judges on different facts. At first instance, it was common ground that the relevant comparison between Jones, on the one hand, and Skaines and the applicant on the other (at least so far as the part each played in the enterprise was concerned) should be determined by reference to the findings made by Kumar DCJ, even though they were more favourable to Jones than the evidence in the applicant’s trial suggested. This approach at first blush may be contrary to the principle discussed in PG v R (at [23]-[24]; above at [14]). A sentencing judge passes sentence on the evidence led in the case at hand. However, Kumar DCJ’s reasons were put before Culver DCJ without objection. This was a practical approach if for no other reason than there had to be some material by which Culver DCJ could gauge Jones’ subjective case. Counsel for the applicant addressed Culver DCJ by reference to Kumar DCJ’s findings, arguing allowance should be made for the consideration that the evidence at the trial established that Jones “played a more active role”. It is evident from her Honour’s reasons and the result that she accepted and acted upon this submission. Despite his subjective case being superior to the applicant’s, Culver DCJ placed Jones in “the most serious sentencing position” but for the discount for his early plea to which the applicant was not entitled.

26. While even on the findings made by Kumar DCJ, the part each co-offender had played differed inter se, this did not necessarily mean that the assessment of the objective seriousness of their respective offending necessarily differed. Indeed, that each represented party through counsel accepted and embraced the “evening out” or levelling position, establishes not only that it was open to the sentencing judge to apply that proposition as part of her Honour’s overall assessment, but also that it would have been erroneous for her Honour not to have done so. Nor should this Court permit a different position to be adopted by the applicant on appeal: Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [80]-[82] (Johnson J). In my opinion, this Court should exercise appropriate restraint and decline to entertain an argument that seeks “to resile from [a concession] made below or [is] a contradiction of submissions previously made”, bearing in mind the discretionary nature of the sentencing power exercised at first instance. I am not satisfied that the applicant has established any “exceptional circumstance”, pointed to any “compelling material” that was overlooked or established the requisite “miscarriage of justice” (at [81]).

27. In any event, it is clear that assessing the offending of each co-offender as involving in broad terms equivalent objective seriousness by reason of the “evening out” was not determinative of the parity question. Her Honour’s conclusions as set out (at [23] above) demonstrate that by passing sentences which involved a degree of disparity among the co-offenders, her Honour had regard to and assessed the significance of the similarities and differences between the respective offending and the co-offenders’ circumstances in accordance with Lowe v The Queen (at 609) and Green v The Queen (at [31]). Having done so she established a “hierarchy” for parity purposes in the following terms (ROS at [236]), which I repeat:

“It is found that the balance of all the relevant objective and subjective features renders the appropriate sentences as warranting some differential in the sentencing outcomes of the three co-offenders. In overall parity terms, Jones’ sentence prior to the application of his 25 per cent discount, occupies the most serious sentencing position, then below him is [the applicant], then below [the applicant] is Skaines.”

28. I see no error in her Honour’s approach, and I am not satisfied that the applicant has established a justifiable sense of grievance on parity grounds.

29. For these reasons, the orders I propose which should be cumulative upon the orders proposed by McNaughton J are:

(3) Leave to appeal against sentence granted;

(4) Appeal against sentence dismissed.

30. McNAUGHTON J: Following a trial held before a jury and Culver DCJ between 29 April 2024 and 17 May 2024, the applicant was convicted of aiding, abetting, counselling or procuring the offence of attempting to possess a commercial quantity of cocaine pursuant to subsections 11.1(1) and 307.5(1) of the Criminal Code (Cth). He was sentenced to 6 years and 3 months imprisonment with a non-parole period of 3 years and 6 months. The applicant appeals against his conviction and his sentence.

The appeal against conviction

31. The case brought against the applicant was circumstantial. The conviction appeal is brought on the basis that it was not open for the jury to find beyond reasonable doubt that the applicant was guilty because the evidence was not capable of establishing to the criminal standard that the applicant knew, or believed, he was aiding or abetting an offence of the type that the co-offenders (Mr Jones and Mr Skaines) committed. The Crown contends that it was open for the jury to find the applicant guilty.

32. For the reasons set out below, I am of the view that the circumstantial case brought by the Crown was such that it was open for the jury to find the applicant guilty beyond reasonable doubt.

Trial background

33. The trial commenced with the applicant appearing alongside his then co-accused, Mr Skaines. Count 1 (attempted possession of a commercial quantity of cocaine) and Count 2 (use offensive weapon) on the indictment were brought solely against Mr Skaines and Count 3 was brought solely against the applicant.

34. On the ninth day of the trial (9 May 2024), counsel for the co-accused indicated that his client would be entering a plea of guilty to Count 1, with Count 2 being withdrawn by the Crown on entry of that plea. The plea was entered in the absence of the jury and the jury was later informed, by way of an agreed facts document (Exhibit 57) tendered at the end of the Crown case, of Mr Skaines’ plea of guilty. The trial continued with the applicant alone, following an unsuccessful application by the applicant for the jury to be discharged.

35. The Crown case closed on 14 May 2024 and the applicant called no evidence. The jury returned its verdict of guilty on 17 May 2024, and the applicant was sentenced on 30 April 2025.

36. The single count of which the applicant was convicted was that:

“Between about 20 February 2022 and about 19 July 2022 at Cawdor in the State of New South Wales and elsewhere, [he] aided, abetted, counselled or procured the commission of an offence by Daniel John Skaines and Corey Benjamin Jones against subsections 11.1(1) and 307.5(1) of the Criminal Code (Cth), namely that Daniel John Skaines and Corey Benjamin Jones attempted to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity attempted to be possessed being a commercial quantity”.

Relevant legislative provisions

37. The charge was brought pursuant to s 11.2(3)(a) together with s 307.5(1) of the Criminal Code. It is convenient to set out s 11.2 in full:

11.2 Complicity and common purpose

(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.

(2) For the person to be guilty:

(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b) the offence must have been committed by the other person.

(3) For the person to be guilty, the person must have intended that:

(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

(3A) Subsection (3) has effect subject to subsection (6).

(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:

(a) terminated his or her involvement; and

(b) took all reasonable steps to prevent the commission of the offence.

(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.

(6) Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).

(7) If the trier of fact is satisfied beyond reasonable doubt that a person either:

(a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or

(b) is guilty of that offence because of the operation of subsection (1);

but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.

38. It was therefore necessary for the Crown, amongst other things, to prove that the applicant “must have intended that his conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed”.

39. It is also convenient to set out s 307.5 of the Criminal Code:

307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

(c) the substance is a border controlled drug or border controlled plant; and

(d) the quantity possessed is a commercial quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.

Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).

40. Further, s 6.2 of the Criminal Code provides that “absolute liability” is, relevantly:

6.2 Absolute liability

…

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

(3) The existence of absolute liability does not make any other defence unavailable.

41. Under Division 5, “Fault elements”, the following is set out:

5.1 Fault elements

(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

5.2 Intention

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

5.3 Knowledge

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

5.4 Recklessness

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

…

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

42. The jury was directed that there were three elements of the offence.

43. As to the first element, there was no dispute that Mr Skaines and Mr Jones committed the offence of attempted possession of a substance having been unlawfully imported, being a border controlled drug, namely a commercial quantity of cocaine (the first element).

44. The other two elements were in dispute before the jury. These were that the accused engaged in conduct that in fact aided or abetted the commission of the offence of attempted possession of a border controlled drug; and that the accused intended that his conduct would aid or abet “the commission of any offence (including its fault elements) of the type” committed by the co-offenders, or more particularly, the offence of attempted possession of a border controlled drug.

45. It is only the third element which is the subject of this appeal. In proving that the applicant intended that his conduct would aid, abet, counsel or procure “the commission of any offence (including its fault elements) of the type” committed by the co-offenders, the Crown set out to prove that at the time of the applicant’s conduct, the applicant intended to aid or abet the commission of an offence of possessing a border controlled drug. This included that the Crown needed to prove, beyond reasonable doubt, that at the time of his conduct, the applicant knew or believed that Mr Skaines or Mr Jones (or both of them) were engaged in the attempted possession of a substance, being some type of border controlled drug.

46. It was made clear to the jury that the Crown did not need to prove either that the applicant was aware of the precise type of border controlled drug that Mr Skaines and/or Mr Jones were attempting to possess was cocaine, nor that it was in a commercial quantity.

47. No issue is taken in this case with the elements of the offence as they were put to the jury (although I note in passing that the Crown took on the task of proving more than strictly required).

Summary of the evidence at trial

48. The background to the offending including the detail of the activities of the co-accused was largely dealt with by way of agreed facts, to the following effect.

49. From January 2022, law enforcement authorities in the United Kingdom (UK) identified and modified five large consignments bound for Australia by airfreight. The first consignment was comprised of air-conditioning parts. The remaining consignments were each comprised of a large industrial generator. The first four consignments were test runs for a future importation of cocaine.

50. On 13 July 2022, the UK authorities intercepted and examined the fifth consignment. That examination revealed a welded metal box hidden within a cavity within the generator which contained 112 1-kilogram brick-shaped wrapped objects containing a substance. Testing of the contents of a sample of bricks returned a positive result for cocaine.

51. The bricks were seized by UK authorities and replaced with 100 wrapped bricks (that is, 12 fewer than the original consignment) of approximately the same size containing an inert substance (small rocks). By arrangement with Australian law enforcement, the consignment was sent to Sydney where it was intercepted by the New South Wales Police Force (NSW Police). NSW Police installed optical and surveillance devices within the generator and on 18 July 2022, the consignment was delivered to a warehouse at Port Botany and made available for collection. In addition to the surveillance installed within the consignment, NSW Police coordinated on-ground and air surveillance to track the delivery of the consignment to assist in identifying its intended recipients.

52. The consignment was collected from Port Botany at 10:54am on 19 July 2022 by a third-party truck driver working for a legitimate company called “Monstar Transport” and delivered it to a depot used by that company at Bonnyrigg.

53. From there, a co-offender, Corey Jones, collected the consignment at approximately 2:25pm the same day in a Mitsubishi Fuso Pantechnicon truck (Mitsubishi Pantech) with registration plates CL66FZ and drove it to a rural property at 50 Westbrook Road, Cawdor (Cawdor property), which had been leased earlier, on 1 July 2022, by Mr Skaines. Mr Jones and Mr Skaines unloaded the consignment into a blue shipping container at the property.

54. Using electronic and physical surveillance, police observed Mr Jones and Mr Skaines gain access to the generator using tools, load the substituted bricks from within the cavity into the rear of the Mitsubishi Pantech truck and leave the Cawdor property in that truck.

55. Police conducted on-ground and air surveillance from the time the consignment was collected from Bonnyrigg.

56. Police stopped the Mitsubishi Pantech a short time after it had left the Cawdor property and Mr Jones and Mr Skaines were arrested.

57. Further evidence was adduced at the trial linking Mr Jones and Mr Skaines to the attempted importation, including:

58. A lease agreement commencing on 1 July 2022 for one year for 50 Westbrook Road, which was found during a search of Mr Skaines’ residence;

59. In the days leading up to and including 19 July 2022, Mr Skaines had purchased tools later found at the Cawdor property in the shipping container where optical surveillance had shown Mr Skaines and Mr Jones deconstructing the generator;

60. A search of a vehicle associated with Mr Skaines produced a hand drawn diagram of a generator with Mr Skaines’ DNA found on the document; and

61. Phones and other evidence located in the possession of Mr Jones established his involvement with the importation of the various consignments, including the use of false identities.

Outline of the Crown case against the applicant at trial

58. As noted above, the Crown case against the applicant was circumstantial. The Crown alleged that the applicant intentionally aided and abetted Mr Jones and Mr Skaines by providing what was described as anti-surveillance and counter-surveillance on 19 July 2022. The ultimate contention was that the applicant was part of a sophisticated operation involving significant investment and organisation including expensive practice runs involving four generators, leasing a property from early July 2022, setting up fake companies in Australia, Mr Jones adopting a fake name, and the use of fake employees with fake addresses. As put by the Crown, the job given to the applicant was “not going to be left in the hands of just any ‘schmo’”. Rather, it was contended, the job was given to a person who knew what they were doing and why they were there.

59. The Crown relied upon a combination of facts from which the ultimate inference of guilt was asked to be drawn.

60. On 18 July 2022, the applicant searched for the exact two vehicles that were said to have been used for counter-surveillance on the following day – a Mercedes Sprinter van and a Toyota HiAce van.

61. The sophisticated nature of the operation was not only to be inferred from the pre-planning, showing an investment of time, money and energy, but also from the switching of the consignment from the Monstar truck to the Mitsubishi Pantech on 19 July 2022. The Crown contended that the Mitsubishi Pantech had provided counter-surveillance at the time the Monstar truck was travelling to Bonnyrigg, but then the Mitsubishi Pantech peeled off and waited for two hours in a car park before being loaded with the consignment which it conveyed to Cawdor. In that time a Sprinter van and a HiAce van were seen in the area. The Mitsubishi Pantech travelled to the Cawdor property with the Sprinter van driving in convoy (behind and in front) of the Pantech truck.

62. The number plates CL66FZ and CR84FP (associated with the Mitsubishi Pantech and the Sprinter van respectively) were cloned plates. This means that the number plates were not registered to the vehicles to which they were attached. The HiAce van observed by police was also observed driving to the Cawdor area. It had registration plates CZ98FR. A record of this number was found during the search of Mr Jones’ residence. The HiAce van was ultimately lost by police and the occupants were not arrested.

63. Earlier on 19 July 2022, the applicant met Mr Skaines, a man he apparently did not know – at 8:30am at Kurri Street in Lane Cove. From this it could be inferred there had been prior contact between the applicant and someone involved in the venture as this meeting was not at the applicant’s house, but rather, near where the Sprinter van had been parked. Mr Skaines handed the applicant a bag of tools which the applicant took to the Sprinter van. The applicant entered the Sprinter van with Mr Skaines. The applicant was seen driving it from at least the time Mr Skaines was seen at the Cawdor property. The applicant did not drive his own car.

64. Further, the applicant packed his backpack with what was termed “his surveillance sustenance kit” suggesting he knew what he was tasked with that day. This kit contained food, water, hat, sunglasses and gloves. It was an agreed fact that Mr Jones also lived in Lane Cove.

65. The applicant also left behind his personal phone (as did Mr Jones and Mr Skaines) and took a “covert” phone with the highly encrypted application, “Threema”. It was an agreed fact that the applicant had exclusive use of the phone service ending in 460 (460 phone) from 1 July 2022, including on 18 and 19 July 2022. The Crown contended he used the Threema application (which was the only application on the phone) to communicate with others on 19 July 2022.

66. The applicant’s personal phone showed no record of calls between him and the co-offenders. The only direct evidence which indicated prior contact between the applicant and Mr Jones was that they each had each other’s numbers saved as a contact in their regular mobile phones.

67. The applicant was part of a group on Threema called the “Spotters” group (along with “Sully” and “Tommy”), which was set up 10 minutes before the consignment was loaded on the Mitsubishi Pantech. The Threema usage log indicated it had been used by a human on 19 July 2022 because it was open or in the foreground – leading to an inference it was used to communicate with others. The phone was used to take a photo of where the applicant was parked in the Cawdor area. The 460 phone also showed that there had been a search on the phone for an address of Kurri Street. It was from this information that police were subsequently able to recover CCTV from the general area of Kurri Street which showed Mr Skaines and the applicant meeting up at around 8:30am on 19 July 2022.

68. The 460 phone had also been used to search for certain number plates between 10:46am (that is, from well before the applicant arrived in the Cawdor area) and 3:04pm. Some were in fact associated with police surveillance vehicles on 19 July 2022, but notably, the registration number associated with the HiAce van, also seen in the area, was not searched, with the inference available that the applicant knew the HiAce was part of the operation.

69. The applicant engaged in acts consistent with counter-surveillance including being observed driving in and around the Cawdor area during the period of time, from about 3:30pm to 5:00pm when the co-offenders were extracting the substituted bricks in the shipping container. The Crown contended that this was a lengthy and risky time which required a spotters’ crew to be operating. The Crown submitted that when the extraction crew realised the number of bricks and packaging were not right (and it can be inferred from the evidence that they opened a brick and discovered it was not cocaine) they left. Within a minute or so of that occurring, the applicant left his location, leading to the inference that he must have been told something.

70. The Cellebrite summaries included information about a phone service ending in 201 (201 phone). This was found in the Mitsubishi Pantech with the handle of the Threema user being “Bazza”, a name seen written down on a piece of paper at Mr Jones’ house. Further, the 201 phone was involved in a Threema chat with the 460 phone (used by the applicant), who was using the Threema handle of “Jeff Buckley”.

71. The co-offenders finished the extraction of the substituted bricks and they became concerned about the difference in the consignment they were extracting compared to what they were expecting. Within minutes of their discovery, they commenced their journey back to Sydney, and at almost the same time the Sprinter van driven by the applicant was observed to also commence travelling back to Sydney, by a different route.

72. Police separately intercepted both vehicles on different motorways. The Crown contended that the applicant shifted his behaviour – from counter to anti-surveillance (indicating in both directions without changing lanes and then pulling into an emergency bay) – at the time when the Mitsubishi Pantech was stopped by police indicating that there must have been communication.

73. Later found within the Sprinter van driven by the applicant was another generator that had been imported in one of the earlier practice runs and some plastic tubs like the ones seen at the Cawdor property. There was no evidence that the applicant was aware of those items, but there was a window between the driver’s seat and the back cargo area, and thus opportunities for the applicant to have seen the generator. That is, the items were not concealed from view.

74. It was an agreed fact that the applicant had not been involved in the importation of the four “test” consignments prior to 19 July 2022. Further, the Crown did not contend that the applicant was involved in the pre-planning for, or importation of, the generator containing the substituted drugs.

75. The applicant did not give or call evidence at trial. He exercised his right of silence on arrest.

Defence submissions at trial

76. At trial, the defence submitted that it was Mr Skaines who was driving the Sprinter van from Lane Cove, and that it was only known definitively that the applicant was driving it from later that day after Mr Skaines arrived at the Cawdor property. The defence queried the evidence which showed that the Sprinter was around Bonnyrigg, although the defence conceded the Sprinter was driving in convoy with the Mitsubishi Pantech at Cecil Hills at 2:30pm. The defence conceded that it could be concluded that at 3:08pm, Mr Skaines was driving (with the applicant as passenger) and that at 3:20pm Mr Skaines got out of the car at the Cawdor property, as shown on the covert camera.

77. The defence suggested that the applicant was just passively waiting and then left at 5:00pm because “it simply got to the end of the day, 5pm, and [the applicant] just started to drive home”. It was also submitted that this was a case of the applicant just being available and sitting there waiting for further instruction in the event that he was to be called upon. The defence disputed that there was any countersurveillance or anti-surveillance.

78. The defence contended that the HiAce was suspicious but noted it was never intercepted. As to the applicant looking up the registration of the vehicles, the defence submitted to the jury that a registration check did not reveal much information and “he may have just been killing time”. It was also submitted that the taking of a photo of a van does not mean anything. It could mean that the applicant was bored. Further, his looking at vans could mean “he’s just interested in buying a van”.

79. The defence at trial conceded that the Threema application was open on the applicant’s 460 phone, and that “looking at the usage log, realistically, you might accept that [the applicant] was using Threema on that day”, but that the police did not know what he was doing with that application. The defence pointed out that Mr Skaines did not have Threema on his phones. Whilst Mr Jones had it on one of his three phones, there was no usage data.

80. The defence also submitted to the jury that the Spotters group “could be workmates”, and that spotters were people employed to assist operating cranes, or a footy club looking for fresh talent. It was observed that “Bazza” (Mr Jones) was not a member of the Spotters group.

81. It was also submitted that the applicant was never seen anywhere near Botany or a freight carrying service, and nor was he anywhere near the consignment. The defence contended that even if the applicant saw the generator, there was nothing to suggest it was a container for border controlled drugs.

82. It was also asked rhetorically by the defence how would the applicant know the plates were cloned?

83. The defence conceded that Mr Jones and the applicant had each other’s phone numbers saved in their personal phones.

84. The essential and critical submission by the defence was that there was no direct evidence that the applicant knew Mr Skaines and Mr Jones were involved in drugs, submitting “What single piece of evidence can the Crown point to in order to prove that crucial fact?”

85. I note at this point, and will return to the issue below, that this submission made at trial encapsulates precisely the approach a jury is directed not to take in a circumstantial case.

86. The defence continued with the submission “Let us assume that he knew or suspected that something dodgy was going on with Mr Skaines” and that he knew that the bag he was given contained tools. The “dodgy” examples suggested were: some kind of theft, or some kind of sabotage of some agricultural or industrial machine, stating, “helping somebody possess a border-controlled drug just is not up there on the list”. Further, the defence submitted, towards the very end of the defence closing address:

“There’s no evidence [the applicant] was this trusted member of anything. Any kind of organisation. You might conclude that, essentially, at the end of the day, [the applicant] was just a guy, just a lackey, told to knock off at 5 o’clock and drive a van back to Sydney”.

Was the verdict of the jury unreasonable?

87. It is first convenient to set out the principles in relation to unreasonable verdicts specific to cases involving circumstantial (or largely circumstantial) evidence.

Unreasonable verdicts: legal principles

88. Where, as here, a jury verdict based on a circumstantial case is challenged as being unreasonable, an assessment of the sufficiency of the evidence requires this Court to assess the whole of the case and “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and to assess whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”: Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [12]; Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 at [143]; Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 at [82].

89. Further, as explained in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47]:

“For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.” (Citations omitted.)

90. The exercise undertaken by an appellate court involves a question of fact not law. As stated in Dansie at [15]:

“In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty.” (Emphasis added.)

91. It is also important to remember, as observed in Doney v The Queen (1990) 171 CLR 207 at 214; [1990] HCA 51:

“… the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters.”

92. This important observation was cited by the High Court in The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [9] where it was also observed:

“… the jury's advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors' collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters…”. (Citations omitted.)

93. Finally, as stated in Wiggins v R [2020] NSWCCA 256 at [65]:

“Where an accused person, in answer to a circumstantial case, advances ‘an hypothesis consistent with innocence’, the hypothesis must be consistent with the evidence in the case and go beyond ‘mere conjecture’. That does not entail any obligation on the accused person to adduce evidence to prove or support the hypothesis. It is sufficient if such an hypothesis can be derived, reasonably, from the evidence in the Crown case. No standard of proof applies. All that is necessary is that the hypothesis be such as to raise a reasonable doubt that the accused person has been proved guilty. Nor is it incumbent on an accused ‘to establish that some inference other than that of guilt should reasonably be drawn from the evidence[’]: [Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42].” (Emphasis added.)

Submissions on the conviction appeal

Applicant’s submissions on appeal

94. The applicant’s sole contention on the appeal against conviction is that the evidence was not capable of establishing to the criminal standard that the applicant (knew or) believed he was aiding or abetting an offence of the type that the co-offenders Mr Jones and Mr Skaines in fact committed. (I accept the proposition put by the Crown on appeal that belief rather than knowledge is the relevant state of mind, given the substitution of the substance by the authorities.)

95. On appeal, the applicant accepted that it was open to the jury to find that the applicant by his conduct on 19 July 2022 intended to aid and abet Mr Skaines in committing some offence.

96. The applicant further submitted that the following “primary facts” were uncontroversial:

(a) On 18 July 2022, the applicant used the 460 phone to search for two types of van – Toyota HiAce and Mercedes Sprinter; (b) CCTV showed the applicant and Mr Skaines meeting at Lane Cove, a few streets away from the applicant’s apartment, at about 8:30am in the morning of 19 July 2022, and Mr Skaines handed the applicant a bag which the applicant carried into the Sprinter van (in which he would remain as either a passenger or driver throughout the day until his arrest at approximately 5:40pm); (c) Police surveillance captured an unidentified Mercedes Sprinter van driving on Bonnyrigg Road while the consignment was at the adjacent Monstar depot. There was no evidence of the registration or occupants of this vehicle; (d) A Toyota HiAce with two occupants was seen by police near the Bonnyrigg depot and driving in the vicinity of the Mitsubishi Pantech and the Cawdor property. A shortage of resources resulted in police losing sight of the vehicle after 5:00pm; (e) The Sprinter van was seen by police at 2:30pm at Cecil Hills in close proximity to the Mitsubishi Pantech driven by Mr Jones containing the consignment picked up from the Monstar depot at Bonnyrigg. It travelled with the Mitsubishi Pantech via Elizabeth Drive and the M7 motorway; (f) At about 3:30pm, the Mitsubishi Pantech stopped at the Cawdor property where Mr Jones and Mr Skaines unloaded the consignment into a shipping container; used tools to access the generator and handled the substituted bricks. They left the Cawdor property in the Mitsubishi Pantech at 4:59pm. During this time the Sprinter van was seen either driving around the Cawdor area or was parked on the side of the road; (g) The Sprinter van left the Cawdor area at 5:02pm, shortly after Mr Jones and Mr Skaines left the property in the Mitsubishi Pantech to travel via the M7 motorway; (h) The Sprinter van was seen on the M5 motorway indicating in both directions without changing lanes or turning before pulling over to stop in an emergency bay, where the applicant was arrested by police; (i) A backpack containing food and some bottles of water was found in the Sprinter van; (j) A generator was found in the rear of the Sprinter van, being from one of the previous importations, but there was no forensic evidence linking it to the applicant; (k) On his arrest the applicant had a mobile phone (the 460 phone) with Threema (an application with a high level of encryption often used by organised crime groups) installed and no other relevant application. A group chat including the user of that phone was set up on 19 July 2022 at 2:13pm with the title “Spotters”. The Threema application had been open at certain times during the afternoon but no data was able to be obtained as to what occurred whilst it was open; (l) That 460 phone had been used to take a photograph of the roadway through the windscreen at 3:04pm. It had also been used to conduct registration searches of a number of car registrations and vehicle types and to search “Curry Street, Lane Cove” (the meeting place with Mr Skaines that morning) as well as “50 Westbrook Road” (the address of the leased property at Cawdor where the consignment was taken); (m) The applicant’s regular mobile phone was found at his apartment, but nothing else of relevance was found; and (n) The applicant and Mr Jones had each other’s name and mobile phone number saved in the contact lists on their regular mobile phone. There was no other evidence of contact between the applicant and Mr Jones or Mr Skaines prior to 19 July 2022.

97. The applicant submitted that save for an internet search for types of vans on 18 July 2022, there was no evidence establishing that the applicant had any knowledge of the operation or any role prior to 19 July 2022. The internet search for the vans is consistent with the applicant having first been told of what he was to do on that date, causing him to look up the vans.

98. There was no evidence linking him to procuring the vehicles, tools or cloned number plates.

99. The applicant submitted on appeal that there was “nothing to exclude the possibility that the applicant believed Mr Jones or Mr Skaines were dealing with some form of property other than a border controlled drug, such as stolen property or illegal tobacco”. The applicant further submitted that the evidence did not “establish” that there must have been communication with the co-offenders when they were at the Cawdor property, but that even if such communication occurred, “there is no evidence establishing that any communication necessarily evidences knowledge in the applicant as to what was occurring in the shipping container”.

100. The essential argument made by the applicant was that while the importation was “undoubtedly a sophisticated and organised operation, it is entirely speculative to suggest that a person involved in the manner the applicant was would inevitably have known the specifics of what Mr Skaines and Mr Jones were doing. It is equally plausible to assert that those carrying out a sophisticated and organised drug importation operation may conceal the specifics from those with peripheral roles such as the applicant who was said to be a mere ‘spotter’.”

Respondent’s submissions on appeal

101. The respondent contended that in considering all of the circumstantial evidence led by the Crown, the jury was entitled to reach a series of conclusions about intermediate facts which justified the ultimate inference of guilt. It contended that it was open to the jury to conclude that the applicant knew:

(a) He was assisting in an enterprise which involved the retrieval of items or substances from the consignment; (b) The retrieval operation was high-risk, and likely to attract covert monitoring by law enforcement; (c) The operation had been carefully pre-planned in detail, and involved co-ordination between people in at least three vehicles; (d) The recovery of the items or substances required the use of tools, and would take time; (e) What was being retrieved had been secreted within the consignment and was a highly valuable commodity concealed in a confined space; (f) The commodity needed to be recovered without those involved being seen; (g) The participants in the enterprise had agreed to alert one another to detection, or a heightened risk of detection, by law enforcement; (h) The applicant’s role in providing counter-surveillance and anti-surveillance was very important, in the context of a high-stakes operation; (i) The applicant could, and did, communicate with other participants over the heavily encrypted Threema messaging application, confident that communications sent and received would not later be discovered; (j) Others involved in the operation were aware of his involvement and role and knew that he was aware of theirs (and could identify them); and (k) The nature of the operation was, in fact, a venture involving a large amount of cocaine with a high value.

102. The respondent noted that the Crown at trial put to the jury that it could conclude to the criminal standard that the applicant was a trusted participant in a sophisticated operation. The conclusion that he was an unwitting participant, because he was either duped or kept in the dark, was not one the jury was bound to accept was reasonably open.

103. The issue is narrow: whether the Crown established beyond reasonable doubt that the applicant believed he was aiding an attempt to possess a quantity of drugs.

104. The Crown on appeal submitted the applicant’s approach suffers from the vice the authorities caution against, that is, it adopts a piecemeal approach to the Crown’s circumstantial case.

105. The Crown points to the following matters showing the nature, value and risk of the operation:

(a) Each of the four industrial sized generators used as test cases must have been costly; (b) The lease documentation on the Cawdor property showed the agreed rent was $2,166.66 per month; (c) The use of false company and employee details, as well as other assumed identities for the purposes of arranging the consignment; (d) The organisation of several vehicles for the purposes of the venture including the Mitsubishi Pantech, the Sprinter van and the HiAce, and the arranging for cloned plates to be affixed; (e) The possession of several mobile phones by the various participants in the venture; (f) The purchase of tools and equipment to undertake the extraction process on three separate dates (14 and 16 July 2022 and the morning of 19 July 2022); (g) Organising for a small group to be involved in the execution, including the applicant to be part of a “spotters” group providing counter-surveillance and anti-surveillance; (h) It was a matter of common sense that a significant financial dividend would be expected by those who planned the operation. The concentrated weight of cocaine was 9.82 kilograms, and the potential street value was at least $2.5 million. The value of the drugs aligns with the sophistication of the operation to recover them.

106. The Crown noted that the hypothesis that the applicant may have thought the consignment involved tobacco was not raised before the jury, but even if it had been raised (in evidence or argument) the jury would be entitled to doubt that an attempt to retrieve tobacco products from the confined space of the consignment was likely to be financially worthwhile, given the risks the participants knew they were taking. Rather, the risks would make sense in the context of a valuable drug importation.

107. The jury could conclude that the applicant was trusted, and that the other members were not concealing the group’s activities from him. For instance, the applicant was involved in conducting registration checks and other searches on vehicles involved in the operation on 18 July 2022. When police examined the Sprinter van, they located the same plastic tubs found in the Mitsubishi Pantech, and one of the earlier test-run generators. These were left in the effective possession of the applicant. Further, not only were the applicant and Mr Jones saved as contacts in each other’s phones, the applicant spent the first half of the day of 19 July 2022 in the company of Mr Skaines, who was not disguised.

108. Further, the Crown contended, there was nothing peripheral about the applicant’s role. As part of the “spotters” group, he was integral to a critical part of the operation that day.

109. It was also contended by the Crown that a central aspect of trust in the context of criminal activity is a shared belief that members will not turn on each other in the event their activities were exposed by law enforcement. As a matter of common sense and human experience, if a duped participant found out the true nature of a criminal enterprise, this would heighten the risk of exposure.

110. The contention that the applicant was a trusted participant is reinforced by the nature of the assistance he provided. The first, his use of Threema, the second the significance of his role and, third, the associated risk.

111. First, the use of Threema meant that those who had it could communicate candidly. This available inference was strengthened by the departure of the applicant within minutes of the co-offenders’ departure from the Cawdor property, from which it could be inferred the applicant was told to leave following the discovery of the substituted bricks.

112. Second, the role of counter-surveillance or anti-surveillance would clearly be enhanced if those employed to conduct it had knowledge of why they were being employed.

113. Third, the applicant was exposing himself to considerable risk, which was something he would be inherently unlikely to do unless he knew why he was doing it and he knew his likely reward.

114. I note, for completeness, that the Crown also submitted that the applicant should not be able to rely upon the potential competing inference of tobacco on appeal, as he chose not to at trial, citing Baden-Clay at [46] and Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228; [1993] HCA 65. However, in my view, the facts of the present case are far from the rare and exceptional situations which existed in Baden-Clay and Weissensteiner and it is not necessary to further consider this argument.

115. Rather, this case involves standard circumstantial reasoning, as set out in [88] above. Further, as noted in Wiggins at [93] above, it is not incumbent upon an accused in a circumstantial case to proffer positive evidence of an alternative inference. It is merely necessary that it not be “mere conjecture”, and that it be derived reasonably from the evidence in the Crown case.

Consideration

116. As foreshadowed at the beginning of my judgment, having reviewed the evidence in detail, I am of the view that it was well open to the jury to find, beyond reasonable doubt, that the applicant believed he was aiding or abetting an offence of the type that the co-offenders Mr Jones and Mr Skaines in fact committed.

117. The underlying venture was an expensive, highly planned, sophisticated attempt to import a highly valuable commodity. It was agreed that the applicant had exclusive use of the 460 phone from 1 July 2022, which was the same day the lease for the Cawdor property was signed. There was no attempt to shield the applicant from Mr Skaines’ identity, nor hide either the nature of the tools or the address of the property where the extraction of the consignment worth several millions of dollars at street level was to take place.

118. It was open to find, from surveillance and phone cell-tower evidence, that the applicant was involved in counter-surveillance from the vicinity of the depot (containing visible shipping containers) in Bonnyrigg, and then to follow the Mitsubishi Pantech to a remote rural property (the address of which he knew) whilst travelling with Mr Skaines, with whom he spent several hours on a very critical day. It is also open to find that the applicant knew it would take some time for the extraction process to take place, as he had appropriate refreshments with him. It is also open to infer that he was told by his co-accused to leave the Cawdor area within minutes of them discovering the substituted bricks. He left his regular car and phone at home, and used an encrypted communications application.

119. When all of the circumstances are viewed together rather than piecemeal, I am of the view that it was well open for the jury to infer guilt beyond reasonable doubt that the applicant knew, or believed, he was aiding or abetting an offence of the type that the co-offenders committed. On a consideration of the whole of the case, it was open for the jury to find that Mr Jones and Mr Skaines used a trusted person to do exactly what they needed, when they needed it, with full understanding of the nature of the venture, using appropriate encrypted communication tools. It was thus open for the jury to find the applicant guilty beyond reasonable doubt.

120. The conviction appeal should be dismissed.

121. The orders I propose are:

122. Leave to appeal against conviction granted.

123. Appeal against conviction dismissed.

124. I have had the benefit of reading the draft judgment of Campbell J in relation to the appeal against sentence. I agree with the orders his Honour proposes for the reasons he has set out.

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