The case at trial
4 The Crown case was that the seven appellants and a man called Russell Douglas Bateman were all involved in the importation of the cocaine. Bateman was the organiser and financier of the Australian end of the enterprise. Mr Diez, an Australian and Colombian citizen resident in Australia, represented what may be called the Central American interest. There was no evidence who made the contract for sale and purchase of the drug or when. There was no evidence about the source of the cocaine other than such as implied that it must have been somewhere in Central America, probably Colombia. The evidence was almost all about the activities of the several appellants and Bateman in providing a vessel to which the cocaine should be transhipped for carriage to Australia, selecting a suitably remote location for transhipment, effecting the transhipment and carriage to Australia and providing a lighter for unloading.
5 The purchasers needed a vessel which would receive the cocaine in mid-ocean from the suppliers' vessel. Early in 1998 Bateman, who resided in Melbourne, and Fry, who resided in New Zealand, had arranged for Fry to purchase in New Zealand a two-masted ketch, the Lone Bird, with funds supplied by Bateman. On 12 February 1998 Fry entered into an agreement to purchase the Lone Bird in his own name for $NZ170,000 and lodged a deposit of $NZ17,000, using funds transferred into his bank account by Bateman.
6 It was no part of the Crown case, whatever Bateman's intentions might have been, that Fry carried out these activities knowing that cocaine was to be imported. He was not charged with acting knowledgeably before 1 June 1999.
7 Between 12 February and 12 March Bateman transmitted money in various names to New Zealand bank accounts controlled by Fry. Apart from the sum of $NZ45,560, which was transferred from funds in Bateman's account, the amounts transferred were all less than $A10,000. The choice to transfer amounts so small, necessitating a large number of transfers, was made so as to make it unlikely that the transmissions would be reported by the transmitting media to the Australian authorities under relevant legislation.
8 On 12 March 1998 Fry paid the vendor the balance of the purchase price, using money so transmitted to his accounts.
9 The Lone Bird lay at Gisborne, on the east coast of the North Island of New Zealand. It was in poor condition. The masts were broken, the engine was unserviceable and other work would have to be done to make it suitable for the intended carry. Attempts were made during the rest of 1998 and the better part of 1999 to make it seaworthy. Accordingly, Bateman continued to transfer monies to accounts controlled by Fry, including one in the name of Graham Streetley, an alias used by Fry. In addition to monies sent for the purchase of the Lone Bird, amounts exceeding $NZ180,000 were transmitted, again in small sums not likely to excite the attention of the authorities.
10 In May 1999 Bateman deposited into Bartle's bank account the sum of $A2,000. Further deposits in June, August, November and December totalled at least $A12,500.
11 In August 1999 Diez met Bateman in Melbourne. Late in the same month he departed Australia for Colombia, having left with Bateman particulars of the means of getting in touch with him. He arrived in Bogota on 6 September, using a Colombian passport.
12 Also in September, Fry obtained a passport in the name Graham Norman Streetley. Using that name he travelled from New Zealand to Melbourne to meet Bateman, then left for Panama, having left his contact details with Bateman. He travelled via Taipei and the United States of America, arriving on 19 September. He registered at the hotel Miramar.
13 Diez arrived in Panama from Colombia on the same day and registered at the same hotel. The purpose of Fry and Diez was to arrange a rendezvous between the suppliers' vessel and the vessel which would bring the cocaine to Australia.
14 After a few days Diez returned to Colombia.
15 Before he left Panama, Fry purchased a telephone which, by use of a satellite, could originate and receive calls at remote locations. The intention was to use it at sea. He also purchased a substantial quantity of radio equipment. He returned to Australia via Taipei and reported to Bateman in Melbourne before returning to Gisborne on 3 October.
16 On 17 October the suppliers' vessel, Bora Bora II, left Cristobal, travelled through the Panama Canal and emerged into the Pacific Ocean on its way to a rendezvous with the purchasers' vessel.
17 Communications continued between the several persons involved. In November 1999 McCaffrey, Bateman and Roberti spent a few days together at Hamilton Island.
18 On 29 November 1999 Bartle and Roberti, who used the alias Russell, travelled from Australia to Gisborne where they were met by Fry. At Fry's direction they worked on the Lone Bird. Thompson arrived on the following day. Roberti enquired of an engineer about the state of the vessel. Thompson relayed the engineer's advice to Bateman.
19 By the first week of December work was still being done on the Lone Bird and Fry purchased another engine, intending to have it installed in the vessel. However, a decision was made to abandon attempts to make it seaworthy and look for another vessel.
20 On or about 6 December Bateman gave the order to find a vessel to replace the Lone Bird. The commission was urgent because the rendezvous was imminent. Bartle, Roberti and Thompson began searching and on 8 December the Ngaire Wha was found at Auckland. They began to enquire about its availability and suitability for the job. Bartle took photographs for Bateman, who directed that enquiries continue. It was decided that if the vessel proved suitable Thompson would be the purchaser. On 9 December he paid a deposit of $NZ500.
21 Between about 8 and 13 December Bartle, Roberti, Thompson and Fry were in Auckland seeing to the trial, purchase and repair of the Ngaire Wha. On 11 December Thompson, Bartle and Fry tried the Ngaire Wha at sea. Bateman decided to purchase the vessel for $NZ157,000 and transmitted to an account maintained by Thompson in New Zealand Australian dollars worth $NZ156,990, using in part the sum of $A100,000 which McCaffrey had by arrangement transferred into Bateman's account. The need to purchase without delay a vessel to replace the Lone Bird had made it impossible to build up a purchasing bank account in New Zealand in the painstaking and ostensibly innocent manner that had been used previously.
22 On 9 and 10 December Thompson, Roberti and Fry travelled to Gisborne in a van hired by Thompson. There they collected life rafts, barrels and other equipment and supplies from the Lone Bird and brought them to Auckland. On 10 December Fry bought radio equipment and buoys and on 11 December hired storage space and moved into it that equipment and equipment brought from the Lone Bird.
23 Bartle vouched for Thompson as purchaser and kept Bateman informed of all developments. The balance of the purchase price was paid on 13 December.
24 On 12 December Fox travelled from Australia to New Zealand at Bateman's request, in return for the payment of $A1,000, and collected radio equipment and photographs taken by Roberti and Bartle for delivery to Bateman. He delivered them to him in Melbourne on 15 December. He received assistance in New Zealand from Roberti.
25 The Ngaire Wha was in need of some running repairs and Thompson saw to them.
26 Between 15 and 22 December Fry took the Ngaire Wha from Auckland to the Bay of Islands, close to the northern tip of the North Island of New Zealand, a suitable departure point for the meeting with the suppliers' vessel. He was assisted by Roberti and Bartle.
27 Throughout these events Bartle acted as treasurer, receiving funds from Bateman and distributing them to himself, Thompson, Roberti and, when he arrived at the Bay of Islands, Fox. Thompson took over that role after Bartle left New Zealand on about 23 December to visit Bateman in Melbourne.
28 On 16 December Bateman repaid McCaffrey the $A100,000.
29 McCaffrey provided money for Bartle and Roberti. He assisted in arranging flights. He maintained communication with Bateman.
30 Roberti was to crew the Ngaire Wha but Bateman thought he was unreliable because he drank too much and might say a word out of place. He dispatched Fox from Australia to keep an eye on Roberti. Fox, Roberti, Fry and Thompson remained at the Bay of Islands and there got ready the Ngaire Wha.
31 Thompson insured the Ngaire Wha. He removed self-steering gear from the vessel. The vessel needed new sails and he enquired about the probable cost. On 13 January he borrowed sails for use on the vessel. He took the self-steering gear to the storage place in Auckland. He made enquiries about repairing the radio.
32 Diez had maintained contact with Bateman since his return to Australia on 20 November. On 13 January 2000 he travelled with one Vanegas and one Escobar to meet Bateman in Melbourne. Between the dates of his return to Australia and his arrest he sent not less than $A170,000 to Colombia.
33 Having provisioned the Ngaire Wha, Fry, Thompson and Roberti sailed out of the Bay of Islands on 14 January. The late change to the use of the Ngaire Wha had caused some concern for the suppliers and in telephone calls Diez was implying that he had received a message from the captain of the Bora Bora II to the effect that that vessel had been waiting for eight days to tranship the cocaine. The transfer was made about 17 January. The Bora Bora II arrived in New Zealand on 19 January.
34 On 21 January Diez assisted Vanegas to transfer funds to two of the crew of the Bora Bora II, who were then in Auckland.
35 On 20 January and later occasions Diez and Bateman met to finalise arrangements for the importation.
36 On 21 January Bateman, Bartle and Fox, who was calling himself Darryl (unusually, because he ordinarily used his first given name), began looking for a vessel which could be used to ferry the cocaine from the Ngaire Wha to land. They found a vessel of the "Haines Hunter" class but Bateman rejected it as unsuitable. At Gladesville they found a vessel called the Salamander. During the last week of January they had it surveyed and agreed on a purchase price of $29,000. $500 deposit was paid.
37 On 27 January Bateman supplied cash to Bartle with instructions to tell Fox to have it converted into bank cheques for payment to the vendor. The balance of the purchase price was so paid on the following day.
38 Late in January a Sydney supplier of sails received a call by satellite telephone from somebody who said he was on a Nicholson 35 vessel sailing from New Zealand to Sydney. The Ngaire Wha was a vessel of that class. The caller said that sails were urgently required.
39 The appellants and Bateman made no attempt to use the Salamander for the originally intended purpose. The Crown case was that it must have been decided to land the Ngaire Wha to replace the sails, eliminating the need for a lighter.
40 On 31 January Bateman, McCaffrey, Fox and Bartle arranged to go to Parsley Bay at Brooklyn, a position in Broken Bay opposite Patonga, ostensibly to fish. Bateman, Bartle and Fox reserved rooms in an hotel there. They arranged to use three vehicles, two of them being a utility truck and another goods-carrying vehicle. At 8.40 pm the Ngaire Wha was observed twenty-five miles northeast of Port Jackson.
41 At 12.11 am on 1 February somebody using Fox's mobile telephone tried several times to get in touch with the satellite phone on board the Ngaire Wha. At 2.46 am the Ngaire Wha was stationary off Patonga Beach.
42 Fry left the vessel and gained the wharf. Police moved in and found him hiding under the wharf. They arrested him and he said that his name was Graham Streetley.
43 Roberti and Thompson were arrested on the vessel. Roberti told the police that his name was James Simmons. He had a passport in that name.
44 At 7.15 am police attended the boat ramp at Brooklyn. They arrested Bateman, who was making to leave in his car, and Bartle and Fox, who were seated in the utility truck. McCaffrey left Brooklyn, avoiding the police. He used the name William Connor. He was not arrested until 15 September 2000.
45 Those arrested were taken to Australian Federal Police Headquarters in Goulburn Street, Sydney. Some agreed to be interviewed, notably Fry, who made damaging admissions.
46 Bateman decided to admit his involvement in the importation and assist the police. Accordingly, he telephoned Diez and arranged to meet him. Diez was arrested by waiting police when he kept the appointment.
47 Bateman pleaded guilty in due course and was sentenced by James J, who made an allowance for his promise to give evidence against the appellants. However, the Crown did not call him because it considered him an unreliable witness. Counsel for Diez and Roberti adduced evidence of Bateman's promise and the resulting benefit he had received.