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[2003] NSWSC 661
procedural. Howie J determined the proposed jury directions. He rejected the submission that reasonable doubt about the Kelso Bank placement required acquittal of all accused. He stated that Francis and...
The ruling addressed jury instructions, not the ultimate guilt or innocence of the accused. The Crown alleged one continuing cocaine-importation conspiracy, first involving New South Wales participants and later involving people from Victoria. The key question was whether the Colombian crew had left the drugs at Kelso Bank for later importation. If the jury accepted that account, the judge considered there was one conspiracy as charged. If the jury reasonably doubted it, the Colombians' original plan might already have ended before Francis and Dicecco became involved. In that event, the later alleged plan could not be the same conspiracy charged, and Francis and Dicecco should be acquitted on that basis. The judge did not consider that the same reasoning automatically required acquittal of the New South Wales participants. The judgment does not report the jury's verdict.
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In R v Bolus and Others [2003] NSWSC 661, Howie J considered proposed jury directions in a multi-accused conspiracy trial. The ruling was delivered in the Supreme Court of New South Wales on 29 May 2003, before jury addresses. It was not a judgment recording verdicts or determining the accused's guilt.
The indictment alleged that, between about 1 January and 6 August 2001, the nine accused conspired with one another and other people to import a commercial quantity of cocaine. The Crown case described a planned importation from Colombia aboard a yacht, The Flaning, carrying 120 kilograms of cocaine. The Crown alleged that the planned offshore transfer near Port Macquarie was interrupted when police and National Crime Authority agents arrested John Lawrence, David Norris and Wouter van Bommel on 19 June. [1]-[3]
According to the Crown account, the crew subsequently took the cocaine to Kelso Bank, about 300 miles off the Queensland coast, and sank it in containers. The Crown alleged that the drugs were to be recovered later and brought into Australia. Vincent Francis and David Dicecco became involved in a later recovery attempt, alongside others. That attempt ended after the boat used for the journey proved unsuitable. The Colombians and the accused were later arrested. [4]-[5]
At the close of the Crown case, the accused sought directed verdicts of acquittal. Their argument was that the evidence disclosed two conspiracies: an initial one involving the New South Wales participants, and a later one involving the Victorian participants. Howie J rejected that application, but left open the need to decide precisely how the jury should be directed about the consequence of a reasonable doubt concerning the drugs' placement at Kelso Bank. [6]-[8]
The ruling therefore addressed a narrower question: if the jury were not sure the drugs had been left at Kelso Bank for importation, would that mean all accused had to be acquitted, or would the consequence differ for different accused? Howie J decided that it would not require the jury to acquit everyone. [15], [23]-[24]
The judge treated the Colombians' continuing participation as central to the Crown's allegation. On the Crown case, they were part of the conspiracy throughout the relevant period and were named in the indictment. The indictment's theory was not simply that various people had, at different times, made agreements relating to cocaine. It alleged a particular conspiracy, involving the Colombians and the other participants. [17]-[19]
Howie J set out two possible paths for the jury. If the jury were satisfied beyond reasonable doubt both that the Colombians were members of a conspiracy to import cocaine and that the crew put the drugs at Kelso Bank intending to import them, the judge considered that the evidence disclosed one conspiracy, the one alleged in the indictment. [19]
If, however, there were a reasonable possibility that the drugs were not left there for importation, the original conspiracy might have ended before the Victorian participants appeared. The judge described two possibilities: the crew may have jettisoned the drugs, thereby frustrating the original plan, or may already have imported them, completing it. On either possibility, the Colombians could no longer be conspiring to import those same drugs when later discussions or arrangements occurred. [20]
That distinction mattered for Francis and Dicecco. Even if they believed that drugs remained at Kelso Bank and intended to recover them, the later plan could not involve the Colombians in the conspiracy charged if the Colombians knew there were no drugs left to import. Howie J therefore said that Francis and Dicecco should be acquitted if the jury's findings placed them in a later conspiracy outside the indictment. [21], [23]
The judge did not extend that reasoning to the New South Wales participants. He considered that a participant's involvement could end after completing an assigned task without that fact alone providing a basis for acquittal. He saw no relevant legal difference between the conspiracy ending around 19 June and a particular New South Wales accused ceasing to participate at that time. [23]
The ruling's key analytic move is thus the distinction between the scope of the charged agreement and the time at which individual participants joined or left it. The question was not simply whether an accused had stopped participating by a particular date. It was whether the Crown could prove the charged conspiracy, including the alleged continuing participation of the Colombians, on the relevant view of the evidence.
The judgment does not announce a new general rule or purport to change the law. It applies a multiple-conspiracy concern to the particular indictment and evidence before the trial court. Howie J accepted, for present purposes, that where there is a reasonable possibility of two or more conspiracies, each falling within the wording of a count, a jury should acquit because it cannot be sure which conspiracy the prosecution has charged. [13]
That qualification matters. The judge did not present the proposition as a comprehensive final ruling on every multiple-conspiracy case. Rather, he used it as the premise for analysing the competing possibilities in this trial. He was initially attracted to the argument that uncertainty about Kelso Bank meant acquittal for all, but ultimately concluded that this was not the correct approach on these facts. [13]-[15]
Howie J discussed R v Bengert (No 5) as an example involving a broadly framed conspiracy charge and evidence of subsidiary agreements using different methods to import drugs. He described the issue there as whether the evidence disclosed one overall conspiracy or smaller, discrete conspiracies. The jury had convicted, and the court held there was no error in how that issue had been left to it. Howie J also referred to R v Greenfield, Saffron v The Queen and Caratti v The Queen as raising similar considerations, without setting out their detailed reasoning. [15]-[16]
The judgment also mentioned whether a conspiracy could concern an impossible act. Howie J referred to R v El Azzi and Nock v DPP, and expressed a provisional view about when an impossibility argument might be available. But he expressly declined to decide the current state of that law, because he considered that no factual situation in this trial would allow the issue to be raised with the jury. [22] It would therefore overstate the decision to treat its comments on impossibility as a settled holding.
No later cases or appellate treatment are included in the material provided. The judgment cannot, by itself, establish how subsequent courts treated it or whether its approach was later adopted, limited or distinguished.
At [13], Howie J stated that if the evidence raised a reasonable possibility of multiple conspiracies, all within the count, “the jury should acquit all the accused.” In plain English, the concern is that a jury cannot convict on a charged agreement if it cannot be sure which of several possible agreements the charge refers to. The judge expressly framed this as what he was prepared to accept “for present purposes”, so it should be read as a working premise for the ruling, not an unqualified restatement of all conspiracy law.
At [19], the judge said that if the jury were satisfied that the Colombians remained part of the conspiracy and that the drugs were left at Kelso Bank for importation, “there is but one conspiracy” on the Crown's case. In plain English, those two findings would connect the earlier and later events as parts of one continuing plan.
At [20], the judge reasoned that if there were a reasonable possibility the drugs were not left at Kelso Bank for importation, the original plan might have been completed or frustrated. In plain English, a later effort to retrieve supposed drugs would not necessarily be part of the earlier plan if the drugs were already gone and the Colombians knew that.
At [23], Howie J said that a conspiracy after that point would not fall within the indictment if the Colombians were no longer participants. He added that the Victorian participants, Francis and Dicecco, should be acquitted on that basis. But he rejected a blanket acquittal for the New South Wales participants, explaining that there was no basis to acquit them merely because their participation may have ended around 19 June. The distinction is that the later alleged agreement could fall outside the particular charge, while earlier participation in the charged agreement was not erased simply because it later ended.
The reasoning is most relevant to a conspiracy prosecution where an indictment alleges one agreement over a period of time, but the evidence may support different accounts of whether that agreement continued. The case involved distinct participant groups who became involved at different stages, and an alleged event, the placement of drugs at Kelso Bank, that linked the earlier and later stages. [1]-[5], [17]-[20]
A lawyer or researcher applying the reasoning would likely examine whether the prosecution's alleged agreement is defined by common participants, a continuing objective, or another feature identified in the indictment and the evidence. In this judgment, the named Colombians' continuing membership was significant because the Crown relied on it to connect the New South Wales and Victorian participants to a single charged conspiracy. [17]-[19]
The reasoning also addresses a case in which a later group may have acted on a mistaken belief that the object of an earlier plan still existed. Here, the judge considered that Francis and Dicecco might have believed drugs remained at Kelso Bank, but that belief would not make the Colombians participants in a later agreement if they knew there were no drugs there to import. [20]-[23]
The ruling does not establish that every change in participants, method, location or timing creates a separate conspiracy. Howie J's conclusion depended on the Crown's particular allegation and the possible findings about whether the cocaine was left for later importation. He also said that he remained unpersuaded that a separate conspiracy arose if the drugs were left at Kelso Bank for importation. [24]
The judgment text supplied here contains no decisions from later courts and no account of any appeal from the ruling. It is therefore not possible, on this source alone, to say whether later courts followed, applied, distinguished, criticised or overruled Bolus.
The judgment itself refers to earlier decisions, including Bengert, Greenfield, Saffron, Caratti, El Azzi, Nock and Griffiths. Those references are part of Howie J's reasoning in 2003, not evidence of later treatment of Bolus. [13]-[16], [22], [24]
For research purposes, the limits of the source are important: this was a trial-level ruling on directions, and it records the judge's intended approach to the jury, not the jury's eventual decision or any later appellate review. The provided text therefore supports an account of the ruling's reasoning, but not conclusions about its subsequent precedential status.
The first unresolved issue is how broadly the multiple-conspiracy proposition at [13] should be understood. Howie J accepted it “for present purposes” but did not finally analyse its limits. The judgment identifies the potential problem, but does not provide a general test for deciding when multiple alleged agreements are sufficiently distinct to require acquittal.
Second, the judgment does not decide how to identify the relevant conspiracy in every case where participants join or leave at different times. Its conclusion turned on the specific role assigned to the Colombians in the indictment and the Crown case. [17]-[23] The extent to which another indictment's wording or evidence would produce the same analysis cannot be determined from this ruling alone.
Third, the court did not determine the broader law of impossible conspiracies. Howie J expressly left that question open, despite referring to El Azzi and Nock. [22] The judgment should not be relied on as a final resolution of that issue.
Finally, the text does not say what directions were ultimately delivered in full, what verdicts the jury returned, or whether any appeal followed. Those questions require sources beyond the judgment provided. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
CITATION : R v Bolus and Others [2003] NSWSC 661 revised - 19/08/2004 HEARING DATE(S) : 04/02/03 - 10/07/03 JUDGMENT DATE : 29 May 2003
JUDGMENT OF : Howie J at 1 DECISION : Directions to be given to the jury as to the consequence of certain findings of fact.
CATCHWORDS : Criminal Law and Procedure - Jurisdiction, Practice and Procedure - Judge's Summing Up - Directions as to the consequence of certain findings by the jury. R v Bengert (No. 5) (1980) 53 CCC (2d) 481 R v Greenfield [1973] 1 WLR 1151 Saffron v The Queen (1988) 17 NSWLR 395 CASES CITED : Caratti v The Queen (2000) 22 WAR 527 R v El Azzi [2000] NSWCCA 397 Nock v DPP [1978] AC 979 Regina v Griffiths [1966] 1 QB 589 PARTIES : Regina v James Herbert Bolus, Regina v Dominic Darrington Brokenshire, Regina v Bruce Cornwell, Regina v David Paul Dicecco, Regina v Juan Guillermo Diez-Orozco, Regina v Vincent Francis, Regina v John Lawrence, Regina v Daniel Patrick McDougall, Regina v David George Norris FILE NUMBER(S) : SC 70061/02, 70066/02,70223/02, 70219/02, 70221/02, 70225/02, 70220/02, 70224/02, 70222/02 P. Roberts with I. Bourke - Crown S. Kluss - Accused Bolus G. Whitehead - Accused Brokenshire P. Boulten with P. Williams - Accused Cornwell COUNSEL : P. Hogan - Accused Dicecco P. Young - Accused Diez-Orozco R. Cooley - Accused Francis C. Waterstreet - Accused Lawrence B. Rigg - Accused McDougall C. Loukas - Accused Norris Commonwealth DPP - Crown Graham W. Howe & Co., Solicitors - Accused Bolus King's Lawyers - Accused Brokenshire Paul Hardin, Solicitor - Accused Cornwell SOLICITORS : Peter Ash, Solicitor - Accused Dicecco Neil J. O'Connor & Assoc., Solicitors - Accused Diez-Orozco Morgan Ardina Solicitors - Accused Francis Kings Lawyers - Accused Lawrence Barry Watterson, Solicitor - Accused McDougall Rigelsford Jenson & Co., Solicitors - Accused Norris
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
THURSDAY 29 MAY 2003 70061/02 R v James Herbert BOLUS 70066/02 R v Dominic Darrington BROKENSHIRE 70223/02 R v Bruce CORNWELL 70219/02 R v David Paul DICECCO 70221/02 R v Juan Guillermo DIEZ-OROZCO 70225/02 R v Vincent FRANCIS 70220/02 R v John LAWRENCE 70224/02 R v Daniel Patrick McDOUGALL 70222/02 R v David George NORRIS
JUDGMENT: see p 4674 of transcript. 1 HIS HONOUR: The accused were indicted that between about 1 January 2001 and 6 August 2001 they conspired between themselves and other persons to import a commercial quantity of cocaine. There were three named persons with whom the accused are alleged to have conspired, being Jaimie Giraldo Rincon, Govert van Bommel and Wouter van Bommel. I will refer to these persons as the Colombians. The Crown alleges that the Colombians and a fourth person, Adolfo Zapata, all entered the conspiracy in Colombia and were participants throughout the period alleged in the indictment until the Colombians were arrested in early August 2001. Zapata was permitted to leave Australia shortly before those arrests were made. 2 The Crown case is that two of the Colombians, that is Rincon and Govert van Bommel, left Panama in a yacht, The Flaning, with 120 kilograms of what they believed to be cocaine. The third person on the boat was Zapata, who on the Crown case was in charge of the delivery of cocaine from Panama to persons in Australia. The third named person, Wouter van Bommel, travelled to Australia by air and was to help organise persons in this State to meet The Flaning off the coast of New South Wales and transfer the drug to another boat for transportation to shore. The Crown case is that The Flaning was to arrive at an area in international waters off Port Macquarie where it was to be met by Lawrence and Wouter van Bommel in a rigid inflatable boat purchased by Lawrence for that purpose. This rendezvous was to occur some time after 19 June 2001. 3 The Crown alleges that the accused Cornwell, Diez, Lawrence, Bolus, Brokenshire, McDougall and Norris, whom I shall call the New South Wales participants, were all involved in the conspiracy up until this point in time. It is not necessary for present purposes to indicate the roles, which the Crown alleges, were played by each of those persons in the conspiracy up until that date. However, on 19 June NCA agents and police intervened and arrested Lawrence, Norris and Wouter van Bommel in the belief that they had travelled to meet The Flaning and had received the drugs from it. There is no evidence of the involvement of any of the New South Wales participants in the conspiracy thereafter except for some evidence that might suggest that the accused Lawrence was still interested in the importation. 4 Shortly after 19 June the persons on The Flaning learned that the situation was not suitable for their arrival in Australia as planned. On one view of the evidence, Zapata was told by some person in authority in Colombia to dump the drugs into the sea. The Crown asserts that the better view of the evidence is that Zapata was informed that it was for him to decide what course should be adopted, and he determined not to jettison the drugs but to attempt to complete the importation. The Crown case is that to this end The Flaning travelled to a location called Kelso Bank, about three hundred miles off the coast of Queensland, where the drugs were placed by the crew in containers and sunk on to the shelf, which was only 20 metres below the surface. On the Crown case the crew hoped that, after they reached Southport, Zapata could organise the recovery of the drugs to be taken into Australia and hence they could be paid what they were owed for their part in the venture. 5 According to the Crown case this is what occurred and Zapata made contact with persons who were in control of the importation and indicated to them what course he had adopted. Eventually the accused Francis and Dicecco became involved through the agency of a person in Manila in an attempt to recover the drugs. These persons I shall refer to as the Victorian participants. Francis met with Zapata and Rincon in Sydney where he received charts, a GPS, and information to assist him in finding Kelso Bank and to recover the drugs. Wouter van Bommel was once more recruited to assist in this task. He travelled to the north of this State with Francis and they there met up with Dicecco, who had brought a boat with him from Victoria. Dicecco and Wouter left Coffs Harbour in the boat to travel to Kelso Bank but made it no further than Byron Bay where they called off the venture as the boat proved inadequate for the task. Shortly after their return to Coffs Harbour they, the Colombians and the New South Wales participants, were arrested. 6 At the end of the Crown case a submission was made that I should direct verdicts of acquittal in respect of each accused on the basis that the evidence in the Crown case gave rise to two conspiracies rather than the one conspiracy alleged in the indictment. A submission was made that after 19 June the alleged conspiracy involving the New South Wales participants, the three Colombians and Zapata, had come to an end and a new conspiracy involving the three Colombians, the Victorian participants and Zapata commenced. The argument was that as the evidence in support of the charge gave rise to two different conspiracies, none of the accused could be convicted on the counts in the indictment. 7 I rejected that submission. It was my opinion that, provided the jury were satisfied beyond reasonable doubt that the crew of The Flaning had not jettisoned the drug but had proceeded to Kelso Bank intending to complete the importation into Australia, there was a single conspiracy to import the cocaine from The Flaning revealed by the evidence in the Crown case. It was my tentative view that it was not open to the jury to conclude that there was any other conspiracy arising from the evidence. However, it was not necessary to determine that issue in deciding the fate of the application for verdicts by direction. 8 The evidence has now been completed and addresses will shortly commence. The issue has now been raised again, not in order to seek directed verdicts, although defence counsel do not accept that I was correct in the view that I formed, but rather for me to indicate how I will direct the jury on the question of the consequence of a finding by them that they are not satisfied beyond reasonable doubt that the drug was placed on Kelso Bank for importation into Australia. Such a possibility might arise either because there is a reasonable possibility the drugs were dumped at sea, or because there is a reasonable possibility that they were imported into Australia by The Flaning's crew. 9 There may be other inferences arising from the evidence that the jury will have to consider in determining whether the Crown has proved beyond reasonable doubt that the drugs were placed on Kelso Bank for importation into Australia. There is precious little, if any, evidence that the cocaine was not placed on Kelso Bank, as Govert and Rincon said it was. But defence counsel intend to submit to the jury that they could not be satisfied beyond reasonable doubt of the account of the Colombians in this and in other respects, such was their lack of credibility. On that basis I am prepared to leave it open to the jury to conclude that they could not be satisfied beyond reasonable doubt that the drugs were placed on Kelso Bank for importation into Australia, notwithstanding what appears to me to be strong evidence that The Flaning did in fact go there. So strong is that evidence that the only suggestion that was made to the members of the crew who gave evidence, that is Rincon and Govert, during cross-examination of them by the nine defence counsel, was that they did in fact visit that spot but left no drugs there. There has on this and other matters been, in my view, somewhat disconcerting reticence by most counsel to squarely and fairly put matters to witnesses that are apparently going to be the subject of address. 10 Be that as it may, the issue will be left to the jury and the question then arises as to what is the consequence if the jury are left with a reasonable doubt as to whether the drugs were placed on Kelso Bank for importation into Australia. The submission made on behalf of the New South Wales participants is that all accused should be acquitted because there would be the reasonable possibility of two different conspiracies arising on the evidence and encompassed by the charge, that is one before 19 June and one after that date. The submission is that unless the jury can be satisfied beyond reasonable doubt that there was a meeting of minds by all the conspirators, or as was put to me today by Mr Hogan, that there was an awareness by all the conspirators of the existence of the role being played by others in the conspiracy, the Crown case cannot succeed on the basis of the conspiracy alleged in the indictment. Those appearing for the Victorian participants, that is Mr Cooley and Mr Hogan, submit that at least their clients should be acquitted because they would not be party to the conspiracy alleged in the indictment. 11 It was submitted on behalf of Francis and Dicecco that the jury should be directed that there could be further possibilities open on the evidence relating to Kelso Bank. When police and NCA agents went to that location on 6 August after the arrest of the accused there was no sign of the drugs or the containers in which the crew of The Flaning allegedly placed them. It is suggested that one inference open is that Zapata arranged independently for some other persons to retrieve them despite the apparent evidence that he had contacted his superiors to notify them that they were there. In all of the conversations recorded after the crew arrived in Australia there does not seem to me to be any firm inference that Zapata did not believe that at the time he was dealing with Francis that the drugs were on Kelso Bank. 12 In my view it is not a matter of available inference open to the jury but simply idle speculation that some other person retrieved the drugs at Zapata's instigation. It seems to be no more open on the evidence than the possibility that the drugs were taken off the bank by natural forces. One could possibly speculate about other explanations for the disappearance of the drugs at some time before 6 August if in fact The Flaning's crew had placed them there. It is at least equally open that some other person who was acting as a participant in the conspiracy recovered the drugs after the failed attempt by Dicecco. However, it will ultimately be a matter for the jury as to what reasonable inferences are open on the evidence before them and what the meaning of those inferences will be to the conspiracy alleged by the Crown. 13 I am prepared to accept for present purposes that, if on a trial for a charge of conspiracy, the evidence before the jury indicates a reasonable possibility that more than one conspiracy arises and that both conspiracies could be included within the terms of the count in the indictment, that the jury should acquit all the accused. This is referred to in Canadian cases as the defence of multiple conspiracies, see for example R v Bengert (No 5) (1980) 53 CCC (2d) 481. In effect such a finding would be that that jury were not satisfied beyond reasonable doubt that the accused were all party to the single conspiracy charged in the indictment and so could not be found to have conspired with one another to commit that offence. Because each conspiracy came within the scope of the offence charged the jury could not say which conspiracy was being alleged by the Crown. 14 Before me the argument is that, if the jury concluded that there were two conspiracies revealed in the evidence, one occurring before 19 June and one after that date, all accused must be acquitted in accordance with what has been decided in cases like Bengert. It is argued that, although all accused might have been found beyond reasonable doubt to have been guilty of the two conspiracies revealed by the evidence, the jury could not determine to which of the two conspiracies the charge related. The jury could not determine whether in this case the charge related to the conspiracy involving the New South Wales participants or the Victorian participants. The argument is that this issue could not be decided simply by reason of the fact that the former group were participants in a conspiracy at an earlier time than the latter group. 15 Initially I was attracted to this argument and had indicated a preliminary view that I would direct the jury that if they were not satisfied beyond reasonable doubt that the drugs were placed in Kelso Bank for later importation, the jury should acquit all accused. However, I have finally determined, not without some considerable thought about the matter and some very helpful submissions made by all counsel in this matter, that this is not the correct approach to take in this particular case. I have in fact been confirmed in that view by the decision of Bengert. That case seems to me to be an example of a problem that arises when the Crown elects to frame a conspiracy in general terms extending over a lengthy period and involving a number of persons, each acting in an agreement with themselves in the wider conspiracy alleged. Similar considerations arose in R v Greenfield [1973] 1 WLR 1151, Saffron v The Queen (1988) 17 NSWLR 395 and Caratti v The Queen (2000) 22 WAR 527. 16 In Bengert the conspiracy charged was the importation of drugs over a period of two years. The evidence revealed that within the general agreement to import drugs there existed a number of subsidiary agreements each involving the importation of drugs by using a different stratagem. The question ultimately left to the jury was whether the evidence revealed a single conspiracy as alleged in the charge or the smaller discrete conspiracies each involving an agreement to import the drugs in a particular way. The jury convicted all accused and it was held that there was no error in the way the issue was left to the jury. 17 As I have already indicated the count before me alleges that the accused conspired between themselves, with the Columbians and other unnamed persons. Those persons include Zapata, a person in the Philippines, who on the Crown case recruited Francis and Dicecco, and sundry other persons in Columbia and Panama who were either principals or instrumental in the proposed importation. The Crown case is that all accused were participants in a conspiracy to import the drug arriving from Columbia on The Flaning. The conspiracy alleged necessarily involved the Columbians and they are named on the indictment. Apparently the particulars furnished by the Crown asserted this to be the fact and that is how the Crown opened the case to the jury. The Columbians gave evidence to that effect. It may be the case that another essential person in the conspiracy alleged by the Crown was Zapata, but the resolution of that question does not seem to me to advance the argument in the present case. 18 Of course it is not asserted that each and every accused actually came to an agreement with the Columbians that the drug on The Flaning should be imported into Australia. But that is, in my view, irrelevant to the proof of the charge, generally or in respect of any particular accused. The Crown case is that the Columbians remained participants in that conspiracy until their arrest. They were participants when, on the Crown case, each of the accused participated in the conspiracy no matter when it was that a particular accused entered into the enterprise to import the drugs. Each accused conspired with the Columbians named in the indictment either directly, as in the case of Diez and Francis, or indirectly, as in the case of Bolus and McDougall. In some cases the Crown case is that the accused conspired with Wouter van Bommel as well as with one or more co-accused. 19 Thus the Columbians are central to the allegation contained in the charge in the indictment. The Crown allegation is based upon an acceptance by the jury that the Columbians were members of a conspiracy to import cocaine into Australia and, if the jury were left in any doubt about that matter, notwithstanding that such a proposition was never put to any of the witnesses, the accused would all be acquitted. However, in my view if the jury are satisfied beyond reasonable doubt that the Columbians were participants in such a conspiracy and if the jury are satisfied beyond reasonable doubt that the crew of The Flaning placed the drugs on Kelso Bank intending that it be imported into Australia, then there is but one conspiracy arising on the facts of the Crown case and this is the one alleged in the indictment. 20 However, if there is a reasonable possibility that the crew of The Flaning did not leave the cocaine on Kelso Bank for importation into Australia, it follows that there is a reasonable possibility that, when the Victorian participants came onto the scene, the Columbians were no longer conspiring to import cocaine. This is because there is a reasonable possibility either that they jettisoned the drug and thus frustrated the original conspiracy, or that they actually imported the drug themselves, in which case the conspiracy had been completed. On either scenario, when the crew arrived in Southport and led others to erroneously believe that the drugs were at Kelso Bank, any agreement that they thereafter entered with any persons could not have been for the importation of drugs. It was a scam of some sort and designed to obtain money on the basis of holding out that the drugs were in existence on the ocean floor when they were not. At that stage there were no drugs to import and the Columbians knew that to be the case. 21 Although it may be that on the Crown case the Victorian participants believed that there were 120 kilograms of cocaine from The Flaning on Kelso Bank and intended to recover and import it, any conspiracy to do so could not involve the Columbians. Any charge alleging that Francis and Dicecco either between themselves or with others conspired to import the cocaine from The Flaning after 19 June 2001 could not allege that the Columbians were participants in that conspiracy. They were not. If the drug had either been thrown away or imported by the time the Victorians came onto the scene, then it follows that the Columbians never intended that an agreement to import drugs would be carried through. It was impossible for them to do it. 22 It may be the case that Francis and Dicecco could conspire between themselves or with other persons to import drugs even though those drugs did not the exist, see R v El Azzi [2001] NSWCCA 397. But the evidence in this matter could not lead to a finding that the conspiracy entered into by Francis and Dicecco with the Columbians was a conspiracy that was impossible to perform, that is that it was a conspiracy falling within the class of cases where the conspiracy would not be an illegal one. In my view the law now is such that arguably the only basis upon which an argument such as found favour in Nock v DPP [1978] AC 979 would be available is if the conspiracy agreed to by the participants in the conspiracy was to do an act which in fact was not illegal. If the act agreed to and intended to be performed was in fact an illegal act, it does not matter that the act could not be completed for some reason unbeknown to persons entering into that agreement. However, I do not have to determine what is the present state of the law in relation to a conspiracy to do the impossible. In my view there is no factual situation that can arise in the present case which would permit such an argument to be raised with the jury. 23 In my opinion on the assumption that it is open to the jury to conclude that the conspiracy involving the New South Wales participants concluded sometime about 19 June either by reason of the fact that the crew either jettisoned the drugs or imported them, any conspiracy thereafter is not a conspiracy falling within the scope of the indictment. The Columbians were not thereafter participants in the conspiracy alleged and, therefore, Dicecco and Francis should be acquitted. However, there does not seem to me to be any legal difference between a finding that the New South Wales participants were not members of the conspiracy after 19 June and a finding that any of the accused might not have been members of the conspiracy at that date because they had completed the task assigned to them and no longer wished to participate in it. I do not believe that there is any basis upon which the jury can acquit any of the New South Wales participants simply because the conspiracy in which they were involved may have concluded on or about 19 June and did not involve Francis or Dicecco. 24 I should add that during argument I was asked to reconsider the decision I had reached that it was not open to the jury to find that another conspiracy arose on 19 June even though they found that the drugs were retained by the crew of The Flaning and placed at Kelso Bank for importation into Australia. In the course of that submission I was referred to the decision of Caratti v The Queen and most recently the decision of Regina v Griffiths [1966] 1 QB 589. I do not find that the statements of principal recited in either of those cases or the factual circumstances there considered bear on the present facts. I am unpersuaded that I am wrong in the view I have expressed and I intend to direct the jury accordingly. **********
Last Modified: 12/24/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
R
Bolus and Others
Howie J determined the proposed jury directions. He rejected the submission that reasonable doubt about the Kelso Bank placement required acquittal of all accused. He stated that Francis and Dicecco should be acquitted if the jury's findings meant the Colombians were no longer part of the charged conspiracy when the Victorian participants became involved, but that the New South Wales participants were not to be acquitted simply because their involvement may have ended around 19 June. [19]-[24]