"A common desire to have money cannot create a conspiracy in the absence of a meeting of minds. The facts here show two competing and mutually exclusive objects. Counsel suggested the analogy of four hungry dogs fighting over a bone. If there was agreement between Violi, Cotroni, and a reluctant Papalia on April 30 1974, it was for an object inconsistent with and, indeed diametrically opposed to the stated object of the agreement between Swartz and Papalia. Legal fiction and conceptual theory must be kept within some reasonable limits."
29 In my opinion neither the facts of that matter nor the reasons of the court for finding that there were two conspiracies assist the accused in the present proceedings. In that case the defect was an allegation of a general conspiracy committed by all five acting in a common enterprise, where the facts showed that there was no continuing enterprise at all. As I have indicated, the difference between a case involving a general allegation such as in Cotroni or Gerakiteys and the present case is that the facts relied upon by the Crown show a continuing agreement to import the cocaine although not all the accused were party to that agreement at the one time. There was a meeting of minds between all the accused and others over the period of the conspiracy to achieve its stated object, the importation of a specific and identifiable quantity of cocaine. It does not follow that there is more than one agreement simply because the minds of all the accused and others in the agreement did not come together at the one point in time.
30 Counsel relied also upon a decision of the Ontario Court of Appeal in which, applying Cotroni, the court held that there could be two conspiracies revealed by the prosecution facts even though both agreements had an identical object and a common member. In R v Handleman (1980) 57 CCC (2d) 242 the charge alleged that the accused had over a five month period conspired with Tripp, a person named Wayne and other persons unknown to commit arson with respect to certain premises. The facts showed that, although the accused had agreed with Wayne to set fire to the premises, that agreement ended in March 1977 when Wayne "walked out" without carrying out the plan. In April the accused asked Tripp to burn the premises and he agreed to so and shortly thereafter set fire to them. There was no evidence of any unknown person being party to the agreement despite such an allegation in the charge.
31 On those facts it is unsurprising that there was held to be two conspiracies: one between the accused and Wayne, and another between the accused and Tripp. In the period between the end of one agreement and the forming of the other the accused may have had a continuing intention to set fire to the premises but a conspiracy cannot continue in the absence of at least two participants. The conviction was set aside because the jury may have convicted the accused on the basis of the agreement with Wayne or the agreement with Tripp or by concluding erroneously that there was evidence linking the two agreements. But that is not the situation in the present case.
32 As I have already indicated, there may be a dispute open as to what Zapata was told by his superiors after the arrests on 19 June and it is for the jury to resolve that dispute if necessary to determine the charge. The Crown argues that it is more likely that Zapata was told that he could jettison the drugs or, being the person at the scene and in most risk, he could determine to continue with the importation if he wished to do so. Unless the drugs were imported he and his crew would not be paid for their efforts. Be that as it may, Zapata never did decide to jettison the drugs. It is open to the jury to find that he determined to continue with the conspiracy regardless of what he was told by his superiors and so he set out to find a place to leave the drugs and from where they could be later retrieved and imported into Australia.
33 It is well open to the jury to infer, and it may well be the only inference, that the members of the crew decided to continue the importation and thus the conspiracy continued. It would not matter, in my view, if Zapata's superiors had withdrawn from the conspiracy by ordering him to jettison the cocaine. Simply because one member of a conspiracy decides to quit the enterprise, it does not follow that the conspiracy is thereby brought to an end. Zapata, Govert and Rincon were participants in the conspiracy that was on foot and that conspiracy continued until they decided not to proceed with the importation.
34 It was submitted that after he received the order to dispose of the drugs Zapata was on a frolic of his own. But even if he were, provided that the frolic involved at least one other member of the conspiracy, the conspiracy was still alive. Nor would it bring the conspiracy to an end, if all the New South Wales syndicate, to use that term, had withdrawn. The nature and identity of the conspiracy does not change simply because there was a change in the manner in which the cocaine was to be brought into Australia or that there was a change in the personnel involved in that task. In my view these are simply matters of detail in the general agreement.
35 Nor, contrary to submissions made by counsel for Dicecco, is it correct to view the agreement to import the cocaine as changing into an agreement to salvage the drugs. If Francis and Dicecco knew of the existence of the cocaine on the ocean floor and intended to recover it, the only purpose was to import the drug into Australia. Although it was submitted that the jury could find that Zapata had decided to sell the drugs on his own behalf when he arrived in Australia, I do not believe that, even if that finding were open, it would be of any significance. The conspiracy charged has as its object the importation of the cocaine and it is irrelevant to the present question whether there was a change in the intended recipient of the drug once it was imported.
36 In any event there is evidence from which a jury could infer that the New South Wales syndicate had not abandoned the conspiracy. There is undisputed evidence that Lawrence was on the side of the road at Karuah at the time that Francis and Wouter went passed on their way to meet Dicecco in Coffs Harbour. Wouter noticed him there as he was driven passed by Francis. Wouter also saw Lawrence in the vicinity of a café where Wouter and Francis were having coffee a short time later. Although there is evidence before the jury that Lawrence was at Karuah for a meeting organised by another person and unrelated to the importation of cocaine, it is well open to the jury to find that it was not a coincidence that Lawrence was in those places at the same time as Francis and Wouter.
37 Further, it does not necessarily follow that, simply because there is no apparent involvement of Cornwell after 19 June, he was no longer a participant. The jury would be entitle to find on the evidence that he was a principal in the importation and that he had taken steps to ensure that he was not seen to be taking an active role in the enterprise even before 19 June. If the jury accepts the Crown submissions that Cornwell was to become the recipient of the drug and its distributor, it is open to them to infer that he was still a member after 19 June. Those arrested on 19 June became aware from an occupier's notice left by police after a search of premises at Telegraph Point that the police were aware of the possible involvement in the importation of the cocaine of a number of accused including Diez. But there was no reference in that document to Cornwell.
38 In my opinion the evidence in the Crown case leads to only one inference, being that the conspiracy remained on foot notwithstanding the arrests on 19 June 2001. I am of the view that the facts adduced in the Crown case support a single conspiracy involving each of the accused and those persons named on the indictment between the dates set out in the charge.
39 Insofar as the accused Bolus is concerned the Crown alleges that he was involved in the acquisition by the accused Lawrence of a rubber inflatable boat and a four-wheel drive vehicle that was used to tow the boat from Sydney to the Port Macquarie area. The evidence against Bolus is made up of surveillance of him in relation to the vehicle and taped conversations obtained by means of a listening device in the two vehicles used by Lawrence, one being the four-wheel drive. The Crown's case to prove his knowledge that the vehicle and boat were to be used in the importation of drugs is a circumstantial one.
40 The issue presently before me is whether it is open to the jury to infer that Bolus took part in the acquisition of the boat and four-wheel vehicle with Lawrence and the accused McDougall knowing that the boat was to be used in the importation of drugs. The fact that some other inference may also be open on the evidence does not mean that the Crown has failed to establish a prime facie case. It is for the jury to determine whether there are competing inferences and what to make of them. Because it is a circumstantial case, none of the individual matters relied upon by the Crown have to prove by themselves that the accused had the guilty knowledge and it does not follow that, simply because there may be a possible exculpatory explanation existing for each of the matters relied upon by the prosecution, the Crown case fails.
41 The submission made on behalf of the accused Bolus is that, taken as a whole, the evidence in the Crown case shows no more than that the accused knew that there was something unlawful in Lawrence's acquisition of the vehicle and the boat but there is insufficient evidence to show that he knew that the purpose for which he acquired those items was illegal let alone involved the importation of drugs. It is submitted that the facts are consistent with the accused being aware that there was something "shady" or possibly illegal in respect of the acquisition by Lawrence of the vehicle and boat without Bolus knowing the purpose for which Lawrence was to use them. It was suggested that one possible inference might be that Bolus thought that, because Lawrence was a pensioner, he was trying to hide his wealth and such personal acquisitions as might reveal that he was not entitled to the pension.
42 In my view the evidence shows that the accused acted as a confidant and advisor to Lawrence at the time of the purchase of the vehicle and the boat, he making suggestions and offering assistance as to the manner in which Lawrence could acquire the items without drawing attention to himself, either at the time of purchase or thereafter. He also knew that Lawrence was involved in planning some type of activity and that Lawrence did not want to appear to be a cheapskate to some person or persons in relation to this activity. From conversations with Lawrence, he knew that whatever the activity was, that Lawrence was the person in charge of it.
43 Insofar as the vehicle is concerned, the accused was well aware that Lawrence did not want to be involved in any way in its purchase and he assisted McDougall in securing the vehicle without Lawrence's identity being revealed to the seller or any person later investigating the circumstances surrounding the purchase. This involved the accused and McDougall taking on false identities in their dealings with the seller of the vehicle. Bolus knew that the vehicle was to be registered in the name of McDougall even though the vehicle was to be owned and used by Lawrence. He himself used the vehicle on occasions and was offered it by Lawrence. The jury might find that the suggestion he made in the recorded interview that his involvement was only to check the vehicle before Lawrence purchased it to be inconsistent with the conversations both before and after the purchase. It would be open to the jury to determine that the accused was not being frank and truthful with police as to his dealings with Lawrence at this time.
44 In respect of the purchase of the boat, Bolus paid three sums of money totalling $55,000 into an account using the name of Matthew Benns on each of the three deposit slips. The accused told police that he believed that a person by that name was to own the boat and that he saw nothing wrong in using his name as the depositor of the money. But during conversations with Lawrence the accused says something about the use of that name from which the jury might infer that he knew it was a false name used for the purpose of hiding the true purchaser of the boat. Conversations between the accused and Lawrence indicate that the accused knew that Lawrence wanted to keep his involvement in the purchase secret and that he did not even wish to be seen at the yard where the boat was being stored in Newport. The inference also arises that Bolus had been making contact with the person who brokered the purchase of the boat in Victoria and was storing it at Newport. Bolus was able to give information to Lawrence about where the boat was and when it would be available and he apparently received that information from a person the jury might find to be Mark Rowell. A person by that name was involved in the purchase of the boat on Lawrence's behalf and it was into his company's account that Bolus paid the money for the boat.
45 The jury could infer from conversations with Lawrence that the accused knew of the involvement of other persons in the use to be made of the boat, including a person named Brok, that is the accused Brokenshire, and a person up north, that is the accused Norris. Bolus told police he did not know a person by the name of Brok, notwithstanding that tapes were played to him in which he is heard speaking to Lawrence about a person by that name. It is open to the jury to find that once again the accused was not being frank with police as to his knowledge of the existence of a person by that name and his role in this enterprise. Bolus was told by Lawrence that a person named Brok was to be involved in assisting Lawrence and another person to understand the equipment on the boat and other matters to do with its operation and maritime navigation, such as a GPS. There is also a conversation from which a jury could infer that Lawrence told him that the boat and trailer are to be registered to Brok and that Lawrence has already made up a story for Brok in that regard.
46 The accused Bolus also knew that persons were to be involved with Lawrence in taking the boat away from Sydney to where it was to be used. He was also aware that Lawrence was paying McDougall, Brok and a person up north in respect of the venture in which he was involved with the boat and the vehicle. It is also open to the jury to find, from a conversation concerning the accused going to England "in style", that Bolus knew or expected that Lawrence would pay him a significant sum of money for his part in the activities involving the acquisition of the boat and the vehicle.
47 In his role as adviser, the accused gave Lawrence suggestions as to what could be done to hide the use of the boat and the identity of persons involved with it. It seems that he made inquiries on his own initiative in these endeavours such as with the Waterways Authority. Although the meaning of some of the conversation, particularly in respect of chartering is unclear, the jury could infer that it related to ways to conceal the use to be made of the boat by Lawrence or for its disposal after Lawrence had finished with it. It is certainly open to the jury to infer from this part of the conversation that it involved the fraudulent use of the name Matthew Benns, a name that Bolus had obtained from a newspaper. There is evidence before the jury of a journalist who wrote under this name.
48 It was submitted on the accused's behalf that conversation concerning how one might obtain a false passport between the accused and Lawrence, who told him that "this has gotta be done pretty smartly", leads to an inference that whatever use was to be made of the boat it involved Lawrence having a false passport. But there is no evidence admissible in the case involving the accused as to what this part of the conversation is about or whether it has anything to do with the use of the boat. It was admitted on the issue of whether the accused was a person of good character.
49 In my opinion, taking all of this material into account, it is open to the jury to infer that Bolus knew that the venture in which the vehicle and boat were to be used by Lawrence was a significantly criminal one involving the use of false identities, false registration certificates and the necessity to conceal the involvement of Lawrence in the acquisition and use of the vehicle and boat. It also necessitated the fabrication of exculpatory explanations for the involvement of other persons with those items such as the registration of the boat and trailer in the name of Brok. The activity involved considerable planning and organisation by Lawrence including payments to a number of persons for their part in the activity, including Bolus himself. The venture involved the boat being taken north, Lawrence trialing it, and the use of navigational equipment. Plans needed to be made for the disposal of the boat after the venture or the concealment of its real use. Notwithstanding that no mention is made of drugs or importation, the jury could infer that the only possible activity, in which Lawrence could be involved with the boat, and for which a not insignificant sum of money was to be paid to Bolus for his limited involvement, was the importation of drugs.
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