R -v- BOUHAMDAN [No 8] [2023] WASC 170 (23 May 2023)

Ms L Boston, Ms K A Dowling & Ms S Ramdhas (Discontinued Trial) - Mr C G Astill & Ms K A Kraus (Joint Trial)

Mr G Stanton & Ms G Harb (Discontinued Trial) - Mr I A Todd & Ms G Harb (Joint Trial)

1. On the afternoon of 18 December 2017, the MV Valkoista departed from the Batavia Coast Marina, Geraldton. Joshua Smith, Patrick Bouhamdan and Christos Cafcakis were on board the vessel.
2. The Crown alleged that:

(1) The Valkoista travelled approximately 300 nautical miles west to a point in the Indian Ocean where it met another vessel (referred to as the Asian boat).

(2) Sixty bags containing a substance were transferred from the Asian boat to the Valkoista. The gross weight of the substance was approximately 1.2 tonnes. The substance was divided into packets each weighing approximately one kilogram.

(3) The substance contained methamphetamine, a border controlled drug. Subsequent analysis indicated that the substance had an average purity of approximately 80% methamphetamine.

(4) The Valkoista returned to the Batavia Coast Marina, arriving in the early hours of the morning of 21 December 2017. The vessel was driven first to a pen and later to the public jetty at the Marina.

(5) AB, Serupepeli Rasaubale and Khalid Kaena travelled to Geraldton on about 20 December 2017 in a Fiat van and a Hino truck for the purpose of receiving and transporting the substance to Sydney.

(6) The Fiat van was driven onto the public jetty after the Valkoista had docked. Mr Cafcakis, Mr Smith, AB, Mr Rasaubale and Mr Kaena transferred the bags of substance from the Valkoista to the van.

(7) A joint task force comprising officers from the Australian Federal Police (AFP) and the WA Police (WAPOL) observed the arrival of the Valkoista. The police waited until the bags of substance had been loaded into the Fiat van and then intervened. Mr Smith, Mr Cafcakis, AB, Mr Rasaubale and Mr Kaena were arrested at the public jetty. Mr Bouhamdan was arrested while sitting in a vehicle parked nearby.

(8) Sean Dolman, Stephen Baxter, Jabour Lahood and Peter Harb were also involved in the importation. Mr Dolman and Mr Baxter were arrested on the morning of 21 December 2017 at the Hillarys Harbour Resort, Hillarys. Mr Lahood was arrested in Dural, New South Wales on 22 February 2018. Mr Harb was arrested in Sydney on 21 December 2018.

1. The Valkoista was purchased from Oceaneer Marine, Hillarys on 7 July 2017. The Crown alleged that Mr Lahood, Mr Bouhamdan, Mr Smith and others were involved in the purchase of the vessel.
2. The Crown further alleged that:

(1) Late in the afternoon of 7 July 2017, the Valkoista departed from Hillarys with Mr Smith and Mr Bouhamdan on board.

(2) The Valkoista travelled between 350 and 450 nautical miles west to a point where it met another vessel. Thirty bags of a substance were transferred from the other vessel to the Valkoista. Each bag weighed approximately 20 kgs. The substance was a border controlled drug.

(3) The Valkoista returned to the Batavia Coast Marina, Geraldton arriving in the early hours of 11 July 2017. The vessel was met by Mr Rasaubale, Rafic Kairouz and Dylan Young-Thompson. The bags of substance were loaded into a vehicle which was then driven to Sydney by Mr Rasaubale, Mr Kairouz and Mr Young-Thompson.

(4) Mr Lahood was also involved in organising the alleged July importation.

1. No charges have been made in connection with the alleged July importation.

1. On the Crown's case, Mr Smith was the 'captain' of the Valkoista when, in July and December 2017, it was driven a considerable distance off the coast of Western Australia to collect and transport commercial quantiies of a border controlled drug. On 26 June 2018, he pleaded guilty to a charge that on and about 21 December 2017, at Geraldton in the State of Western Australia and elsewhere, he imported a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity contrary to s 307.1(1) of the Criminal Code (Cth) (the Importation Charge; the corresponding offence will be referred to as the Importation Offence).
2. Mr Smith was sentenced by McGrath J to life imprisonment, with a non-parole period of 19 years. The AFP provided a letter of assistance and Mr Smith gave an undertaking to co-operate pursuant to s 16AC of the Crimes Act 1914 (Cth). Justice McGrath stated he would have imposed a sentence of life imprisonment with a non-parole period of 23 years but for the s 16AC undertaking given by Mr Smith.
3. The Crown alleged that Mr Dolman was involved in organising and assisting with the alleged July and December importations. He pleaded guilty to the Importation Charge on 16 January 2019.
4. Justice Jenkins sentenced Mr Dolman to 30 years imprisonment, with a non-parole period of 17 years. As with Mr Smith, Mr Dolman had the benefit of a letter of assistance and gave an undertaking to co-operate pursuant to s 16AC of the Crimes Act. Justice Jenkins stated she would have imposed a sentence of 34 years imprisonment, with a minimum term of 21 years, but for Mr Dolman's past co-operation, his plea of guilty and all other mitigating factors. Her Honour further reduced the sentence imposed on account of Mr Dolman's promise of future co-operation.
5. The Crown alleged that AB was a member of the 'shore party' for the alleged December importation; that is, his role was to collect and transport the border controlled drug to the Eastern States.[1] He pleaded guilty on 5 July 2019 to a charge that on 2 December 2017, at Geraldton in the State of Western Australia, he possessed a substance, being a substance that was reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity possessed being a commercial quantity contrary to s 307.8(1) of the Criminal Code (Cth) (the Possession Offence).
6. Justice McGrath sentenced AB to 21 years imprisonment, with a non-parole period of 14 years. AB had the benefit of a letter of assistance and gave an undertaking to co-operate pursuant to s 16AC of the Crimes Act. His Honour stated he would have imposed a sentence of 27 years imprisonment, with a non-parole period of 18 years, but for the undertaking.

1. An indictment was lodged on 12 May 2019 charging Mr Bouhamdan, Mr Cafcakis, Mr Rasaubale, Mr Kaena, Mr Lahood, Mr Harb and Mr Baxter with the Importation Offence. They pleaded not guilty on being arraigned. The prosecution of the Importation Charge has followed a tortuous path since that time.
2. The trial of the charge was first listed to commence on 28 April 2020. The listing was vacated as part of the court's response to the COVID-19 pandemic.
3. On 12 March 2021, the Crown discontinued the first indictment. A fresh indictment containing two counts was lodged. The first count charged Mr Bouhamdan, Mr Cafcakis, Mr Rasaubale, Mr Kaena, Mr Lahood and Mr Harb with the Importation Offence; the second count alleged that on or about 21 December 2017, Mr Baxter attempted to possess a commercial quantity of an unlawfully imported border controlled drug (the Attempted Possession Charge and the Attempted Possession Offence).
4. The trial of those charges commenced on 26 March 2021. However, the jury were discharged and the trial discontinued on 4 May 2021 (the Discontinued Trial): see R v Bouhamdan [No 5].[2] The indictment was subsequently severed to provide for a separate trial of the Importation Charge against Mr Bouhamdan. That trial commenced on 13 March 2023.
5. The trial of the Importation Charge and the Attempted Possession Charge against the accused, apart from Mr Bouhamadan, was listed to commence on 12 October 2021. However, the listing was vacated in September 2021 after the prosecutor advised it was likely the Australian Criminal Intelligence Commission (ACIC) had conducted examinations about matters relevant to the Importation Charge and it was possible the Commission held material which ought to have been disclosed. It was necessary to investigate whether that was so before the trial could proceed.
6. The trial of the Importation Charge and the Attempted Possession Charge was relisted to commence on 4 July 2022. However, the trial did not start until 1 August 2022 (the Joint Trial). The delay was caused by the disclosure of matters concerning Mr Dolman. The upshot of those matters was that:

(a) the prosecutor no longer regarded Mr Dolman as a witness of truth;

(b) as Mr Dolman's evidence was essential to the Crown's case against Mr Baxter, the Attempted Possession Charge was discontinued and Mr Baxter was discharged from the indictment;

(c) the prosecutor offered to make Mr Dolman available for cross-examination but the Crown would not rely on any evidence he might give.[3]

1. The jury delivered verdicts in the Joint Trial on 18 November 2022. Mr Cafcakis was found not guilty of the Importation Charge; Mr Rasaubale, Mr Kaena, Mr Lahood and Mr Harb were found guilty.
2. Mr Bouhamdan was found guilty of the Importation Charge by a verdict delivered on 3 April 2023.

1. The protracted history of the prosecution of the Importation Charge and the Attempted Possession Charge was marked by numerous interlocutory applications and trial rulings. Reasons for decision have been published for some of the more important applications. Those applications sought orders for:

(a) disclosure of documents relating to the sentencing of Mr Dolman, Mr Smith and AB and the determination of claims for public interest immunity (PII) over some parts of the sentencing materials: R v Baxter;[4]

(b) disclosure of the affidavit(s) relied on to obtain a s 3E Crimes Act search warrant which was issued on 21 December 2017 and which authorised the search of rooms at the Hillary's Harbour Resort: R v Baxter [No 2];[5]

(c) the exclusion of evidence seized or derived from the execution of the warrant: R v Baxter [No 2];

(d) a stay of the prosecution until the Crown provided further particulars of the Importation Charge: R v Baxter [No 3];[6]

(e) a stay of the prosecution until all material relevant to the sentencing of Mr Dolman, Mr Smith and AB had been disclosed; alternatively, orders preventing the Crown from calling Mr Dolman, Mr Smith and AB as witnesses: R v Baxter [No 3];

(f) further disclosure and for the discharge of the jury in the Discontinued Trial: R v Bouhamdan [No 5];

(g) the admission of evidence of what was referred to as the 'Other Person Importation' (an application by the Crown): R v Bouhamdan [No 6];[7]

(h) a permanent stay of the prosecution (applications by Mr Baxter and Mr Bouhamdan): R v Bouhamdan [No 6];

(i) separate trials (applications by Mr Baxter and Mr Bouhamdan): R v Bouhamdan [No 6];

(j) a conditional stay until a Basha inquiry was held: R v Bouhamdan [No 6];

(k) a stay of the prosecution until the Crown paid the costs of the Discontinued Trial thrown away (an application for a Mosely order[8]): Bouhamdan v The Queen [No 7];[9]

(l) a certificate under s 14(1) of the Suitors' Fund Act 1964 (WA): Bouhamdan v The Queen [No 7].

1. There were many other applications and decisions which are sufficiently explained by the oral reasons delivered at the relevant time or by exchanges with counsel at a directions hearing or during the Discontinued Trial and the Joint Trial. However, there are other applications or matters which require written reasons to fully explain the rulings that were made or to place some rulings recorded in the transcript in context.
2. These reasons deal with those applications and matters. They reflect the oral reasons that were delivered during the prosecution. However, they expand upon those reasons or provide some detail beyond what can be gleaned from the transcript. They were written as the prosecution progressed but settled after the trials and sentencing hearings had been completed.
3. It is convenient to refer to all accused who were initially joined in the indictment as 'the accused'. Exhibit references are to the exhibits tendered in the Joint Trial.
4. I have referred to the Crown's case as a set of allegations. That, of course, reflected the position at the time of the relevant application or issue. I made findings of fact in sentencing Mr Rasaubale, Mr Kaena, Mr Lahood, Mr Harb and Mr Bouhamdan. I have disregarded those findings in settling these reasons; they were made after the applications and related matters dealt with in the reasons were decided or resolved.

1. The Crown's case against each accused, as initially particularised, was summarised in R v Baxter [No 3]. The 'Operation Ligar Particulars' alleged that:

(a) Mr Bouhamdan, Mr Cafcakis and Mr Smith imported a commercial quantity of a border controlled drug by bringing it into Australia on the Valkoista on 21 December 2017 and by being on board the vessel, with the drug, when it arrived in Geraldton.

(b) Mr Lahood imported a commercial quantity of a border controlled drug by bringing it into Australia on 21 December 2017. He brought the drug into Australia by 'organising' its importation - that is, by planning and/or coordinating the importation.

(c) Mr Rasaubale, Mr Kaena and AB imported a commercial quantity of a border controlled drug by dealing with the drug in connection with its importation on 21 December 2017. They were on the jetty in Geraldton when the Valkoista docked with the border controlled drug; they were ready to collect the drug and they formed part of a line passing bags of the drug from the vessel to the Fiat van parked on the jetty. They comprised the 'shore party'.

(d) Each of the accused and 'unknown others' were parties to an agreement to 'import a significant quantity of a border controlled drug into Australia'. The agreement was formed prior to July 2017.

(e) The accused and others entered into the agreement at various times but they were all parties to the agreement prior to the border controlled drug being imported into Australia on about 21 December 2017.

(f) Each accused, and at least one other party to the agreement, intended that the Importation Offence would be committed under the agreement.

(g) The Importation Offence was committed in accordance with the agreement - that is, one or more parties to the agreement imported a commercial quantity of a border controlled drug into Australia and/or dealt with a commercial quantity of a border controlled drug in connection with its importation.

(h) Mr Harb aided or abetted the commission of the Importation Offence by:

• organising the shore party and recruiting AB and Mr Kaena to take delivery of a substance containing a border controlled drug;

• providing directions to the shore party to collect the substance;

• providing instructions and directions to Mr Rasaubale in order to receive the substance.

(i) Mr Baxter aided or abetted the commission of the Importation Offence by purchasing two satellite phones. The satellite phones were used by Mr Smith and Mr Dolman to communicate with, and arrange the rendezvous of, the Asian boat and the Valkoista.

1. The Operation Ligar Particulars pleaded a case in which:

(a) each accused, apart from Mr Harb and Mr Baxter, was alleged to have engaged in conduct that constituted the physical elements of the Importation Offence;

(b) each accused was alleged to have been a party to an agreement to import a commercial quantity of a border controlled drug and to be criminally responsible for the alleged importation pursuant to s 11.2A of the Criminal Code (joint commission);

(c) Mr Harb and Mr Baxter were said to also be criminally responsible for the alleged importation by aiding or abetting the other accused to commit the Importation Offence.

1. The agreement to which the Operation Ligar Particulars referred was alleged to have been formed prior to July 2017. As particularised, the Crown's case was that the alleged July and December 2017 importations were organised and undertaken pursuant to that agreement. Accordingly, the agreement was described as a 'single, overarching' agreement. The accused were alleged to have entered into the agreement at different times between about June and early December 2017.
2. The Crown revised its case in March 2021:

(a) As noted above, the Crown lodged a fresh indictment containing two counts - the Importation Charge and the Attempted Possession Charge.

(b) Although the Crown maintained that Mr Bouhamdan, Mr Cafcakis, Mr Rasaubale and Mr Kaena were parties to an agreement to import a commercial quantity of a border controlled drug, the Crown no longer relied on s 11.2A of the Criminal Code to establish their criminal responsibility.

(c) The Crown continued to rely on s 11.2A to establish the criminal responsibility of Mr Lahood and Mr Harb. The Crown also maintained the allegation that Mr Lahood imported a commercial quantity of a border controlled drug by organising the importation - that is, Mr Lahood could be found guilty of the Importation Offence as a principal offender.

(d) The Crown also continued to rely on the allegation that Mr Harb aided and abetted others to undertake the alleged December importation.

1. The revised case relied, among other things, on a separate agreement to undertake the alleged December importation (the Importation Agreement) rather than a 'single overarching' agreement that provided for the alleged July and December importations.

The s 31A application The history of the application

1. By application dated 11 March 2020, the Crown applied for a direction that evidence of the alleged July importation be admitted pursuant to s 31A of the Evidence Act 1906 (WA). The application was confined to the Crown's separate cases against Mr Bouhamdan, Mr Rasaubale, Mr Lahood and Mr Baxter (referred to in this part of the reasons as the respondents). The Crown contended that Mr Lahood, Mr Rasaubale and Mr Bouhamdan participated in the alleged July importation. Mr Baxter was alleged to have known of the importation.
2. The respondents opposed the application. As will become apparent, ultimately the application was substantially argued and determined on common law rules of evidence.
3. The application coincided with applications by the accused for a permanent stay of the proceedings and it was not until January 2021 that the Crown provided submissions in support of its application (the Crown's initial submissions).[10] The Crown served supplementary submissions[11] and the respondents to the application (apart from Mr Rasaubale) provided written submissions: Mr Lahood's submissions were dated 17 and 25 January 2021; Mr Baxter's submissions were dated 16 and 23 January and 10 March 2021; and Mr Bouhamdan's submissions were dated 17 January and 12 February 2021.
4. Mr Dolman and Mr Smith made statements to the AFP which described their involvement in or knowledge of the alleged importation. AB also referred in his statement to admissions allegedly made by Mr Rasaubale about his involvement in the alleged July importation. Those statements provided much of the evidence the Crown sought to admit under s 31A of the Evidence Act or at common law.
5. The Crown initially submitted that evidence of the alleged July importation was:

(a) propensity evidence as against Mr Bouhamdan, Mr Rasaubale and Mr Lahood - it was evidence of their involvement in the importation of illicit drugs and a tendency for each of them to be involved in such activities;

(b) evidence of the relationship between the respondents and others in a 'drug importation syndicate over time';[12]

(c) evidence of the 'true nature of the drug operation' and the role played by the respondents in that operation - the 'drug operation' being a reference to the organisation and undertaking of the alleged July and December importations;[13]

(d) evidence that the respondents were parties to an agreement to import commercial quantities of a border controlled drug;

(e) evidence of the respondents' state of mind.

1. The Crown revised its submissions in March 2021 (at the same time as it reformulated parts of its case against the accused) to contend that evidence of the alleged July importation was primarily to be used to:

(a) establish that the respondents knew that the alleged December importation involved a commercial quantity of a border controlled drug;

(b) establish the intentions of the respondents with respect to the alleged December importation;

(c) negate defences such as duress and innocent explanation.[14]

1. The application was allowed. Oral reasons were delivered on 26 March 2021.[15]

1. The Crown provided an annexure to its application which identified the evidence sought to be admitted pursuant to s 31A of the Evidence Act (the Evidence Annexure). The annexure referred to paragraphs of witness statements and documents forming part of the prosecution brief. The Evidence Annexure was amended in late January 2021 over objection by the respondents.[17] The annexure was further amended in July 2022. The respondents did not object to that amendment.
2. It was not submitted by any party that the evidence referred to in the Evidence Annexure could only be admitted under s 31A. Accordingly, the Evidence Annexure identified the evidence of the alleged July importation that the Crown contended was admissible under the Evidence Act and/or at common law.

1. Mr Smith described in his first statement how he was recruited to drive the Valkoista, his involvement in the purchase of the vessel and a voyage taken in the vessel with Mr Bouhamdan immediately after its acquisition.[19] Briefly summarised, Mr Smith's evidence was to the effect that:

(a) He was introduced to Mr Lahood by Mr Alfonso Italiano at a carpark in Dural on about 25 June 2017. He again met with Mr Lahood a few days later. Mr Bouhamdan and Mr Rasaubale were present at the meeting.

(b) There was a further meeting with Mr Lahood and Mr Bouhamdan and another meeting with Mr Lahood on the night of 4 July 2017. Mr Smith also exchanged Whatsapp messages with Mr Bouhamdan.

(c) In the course of the meetings, Mr Smith agreed he would drive a boat to collect something off the coast of Western Australia. He was to be involved in the purchase of the boat. There was discussion about the boat having a carrying capacity of 400 ‑ 800 kgs.

(d) Mr Smith flew to Perth in early July 2017. He went to Hillarys Boat Harbour and met with Mr Bouhamdan and a marine broker, 'Matt' (Matthew Lovelady). He inspected the Valkoista and a decision was made by Mr Bouhamdan to purchase the vessel. The purchase price for the vessel was paid the following day.

(e) Mr Smith and Mr Bouhamdan purchased fishing equipment and approximately 50 large sports bags. Mr Bouhamdan also introduced Mr Smith to Mr Dolman.

(f) The day after the purchase of the Valkoista was completed, Mr Smith and Mr Bouhamdan went to sea in the vessel. They remained at sea for a few days before returning to Geraldton. Mr Smith then flew back to Sydney.

1. Mr Smith did not describe in his first statement what happened when he and Mr Bouhamdan went to sea in the Valkoista. However, Mr Smith provided further detail in his second statement[20] about what he alleged occurred when he travelled to Perth in early July 2017. In summary:

(a) Mr Smith was 'under the impression' that the boat to be purchased would be used to collect cocaine offshore. He formed that impression from his conversations with Mr Lahood and Mr Bouhamdan before flying to Perth in early July 2017.

(b) Mr Smith met Mr Dolman the day after he first inspected the Valkoista at Hillarys Boat Harbour.

(c) Mr Smith and Mr Lovelady took the vessel for a sea trial after the purchase price had been paid (on 7 July 2017). They returned from the trial at around 4.30 pm. Mr Bouhamdan then said that he and Mr Smith had to leave Hillarys in the Valkoista that afternoon.

(d) Mr Bouhamdan had with him two satellite phones, a Blackberry and 'a couple of normal phones' when they left Hillarys in the Valkoista. Mr Bouhamdan provided Mr Smith with a set of coordinates after they had been at sea for about an hour.

(e) After they had travelled for approximately 56 hours, Mr Bouhamdan received a message delaying a rendezvous with another boat because of concerns about satellite imagery and being detected if the meeting occurred in daylight.

(f) The rendezvous with the other boat occurred at approximately 7.30 pm the following evening. The two boats were rafted together and drugs were transferred from the other boat to the Valkoista. The drugs were in hessian bags marked with Asian writing.

(g) Mr Smith initially plotted a course to return to Hillarys. However, he became concerned about the vessel's fuel and oil reseves and so the course was altered for a return to Geraldton.

(h) The Valkoista arrived at Geraldton in the early hours of the morning (11 July 2017). The vessel was moored at a jetty in a marina.

(i) Three men arrived in a white van an hour or two after the Valkoista had docked. The drugs were transferred from the boat to the van. Mr Smith recognised Mr Rasaubale as one of the men who arrived in the van.

1. In his third statement, Mr Smith dealt with some Whatsapp messages exchanged with Mr Bouhamdan.[21] According to Mr Smith, the messages referred to drugs that were missing from the quantity allegedly imported in July 2017 on the Valkoista. The messages also referred to events that had occurred immediately after July 2017 and to the voyage on the Valkoista.
2. In his third statement, Mr Smith also identified himself and others in CCTV footage taken at Hillarys Boat Harbour on 6/7 July 2017 and at the Batavia Coast Marina, Geraldton on 11 July 2017.
3. In his fourth statement, Mr Smith elaborated on his meetings with Mr Lahood and Mr Bouhamdan prior to travelling to Perth in early July 2017.[22] He provided further detail about his discussions with Mr Bouhamdan when they met at Hillarys for the purpose of purchasing the Valkoista and about a meeting with Mr Lahood and Mr Bouhamdan in September 2017 at a bowling centre in Hornsby (according to Mr Smith, he was told that he was to again drive the Valkoista as there was 'another half of the delivery to pick up'; Mr Lahood also made a threat about there being no disruption to the 'next load'[23]). Mr Smith referred to hiding 'the drugs' on board the Valkoista during the July 2017 voyage.
4. Mr Smith provided yet more details of his conversations with Mr Lahood, Mr Bouhamdan and Mr Rasaubale prior to July 2017 in his fifth statement.[24] Finally, Mr Smith explained in his sixth statement the contents of further Whatsapp messages which he said referred to the alleged July importation.[25]

1. The final version of the Evidence Annexure referred to other parts of the prosecution brief, including:

(a) Statements made by AB that:[26]

• He flew to Perth with Mr Kaena and Mr Rasaubale on 28 September 2017. They hired a vehicle on arriving in Perth and travelled to Geraldton where they remained for a few days. Mr Rasaubale then received a message advising that they were to return to Sydney.

• Mr Rasaubale, Mr Kaena and he drove from Geraldton to Perth where they hired another vehicle and then drove to Adelaide. As they approached the Western Australian/South Australian boarder, Mr Rasaubale said 'we couldn't pass the border checkpoint and that there was a dirt track that they had used previously with a 600-kg drug run that he did in the seventh month of 2017'.[27] Mr Rasaubale also said that 'the 600-kg from the July import all went to Harb's place and were distributed from there over about three days' and that they would use the dirt track again to avoid the border checkpoint 'for this job'.[28]

• After they returned to Sydney, Mr Rasaubale said he had done 'a previous job of 600 kg where he flew to Perth and went to Geraldton'.[29]

• In early November, he again flew to Perth with Mr Kaena and Mr Rasaubale. They returned to Sydney several days later. Mr Kaena and he then met with Mr Harb. In the course of the meeting, Mr Harb said to Mr Kaena, 'the bosses thought too much money was spent during the July 2017 import and didn't want us doing the same on this occasion'.[30]

• Mr Rasaubale told AB to count the bags that were to be transferred from the Valkoista to the Fiat van on the morning of 21 December 2017. AB asked why that was necessary. He was told by Mr Rasaubale that he did not want 'any drugs to go missing, like what happened in July, when some if the drugs were stolen by a man called Rafic'[31] and 'because we had an issue the last trip and there was some bags missing. We don't want to have the same problem.'[32]

(b) Statements by -

• Mr Matthew Lovelady, the marine broker who dealt with Mr Smith, Mr Bouhamdan and others in relation to the sale of the Valkoista. In addition to providing evidence about the negotiations for the sale of the Valkoista, Mr Lovelady referred in his statement to observations he had made about the number of hours clocked for the engines of the Valkoista when he inspected the vessel in Geraldton on 14 July 2017.

• Ms Debra Arnup, office manager for Oceaneer Marine. She produced various documents recording the sale and registration of the Valkoista and subsequent dealings with Mr Smith about obtaining a fishing tour operator's licence.

(c) Mobile phone, airline and hire car records relied on by the Crown to allege that Mr Rasaubale, Mr Kairouz and Mr Young-Thompson hired and drove the van which, on its case, collected and transported the drugs imported on the Valkoista in July 2017.

(d) CCTV film allegedly capturing Mr Bouhamdan at Hillarys Boat Harbour on 6/7 July 2017; downloads from mobile phones alleged to have been used by Mr Bouhamdan, Mr Rasaubale and Mr Harb; and maps reconstructing the location of mobile phones allegedly used by Mr Rasaubale and Mr Young-Thompson in July 2017.

(e) Recordings made by listening devices installed on the Valkoista by the AFP after July 2017. Mr Smith, Mr Bouhamdan and Mr Cafcakis were on the Valkoista while it was moored at the Batavia Coast Marina on 17 and 18 November 2017. The Crown alleged that Mr Smith and Mr Bouhamdan made a number of statements relating to the alleged July importation which were captured by the listening devices. The recordings were relied on to allege that Mr Smith and Mr Bouhamdan were involved in the alleged July importation and that Mr Cafcakis learnt of the alleged importation through what was discussed by them.

1. I considered that the evidence relied on by the Crown, if accepted by the jury, could establish that:

(a) Mr Lahood and Mr Bouhamdan were involved in 'recruiting' Mr Smith to purchase and skipper the Valkoista and that they were also involved in the acquisition of the vessel;

(b) a commercial quantity of a border controlled drug was imported into Australia on or about 11 July 2017 as alleged by Mr Smith;

(c) Mr Lahood, Mr Rasaubale and Mr Bouhamdan were involved in the importation, again as alleged by Mr Smith;

(d) Mr Lahood, Mr Rasaubale, Mr Bouhamdan and Mr Baxter knew or believed or were aware that, on or about 11 July 2017, a commercial quantity of a border controlled drug had been imported into Australia on the Valkoista;

(e) the listening device recordings made on the Valkoista on 17/18 November 2017, and the intercepted phone calls referred to in the Evidence Annexure, contained references to the alleged July importation that were consistent with the Crown's case;

(f) Mr Kaena, Mr Harb and Mr Cafcakis knew of the alleged July importation.

The effect of the Crown's decision regarding Mr Dolman

1. It was anticipated at the time the application was made that Mr Dolman would give evidence as part of the Crown's case. Accordingly, I took into account the statements made by Mr Dolman in allowing the Crown's application in March 2021. He had made six statements by that time.
2. Mr Dolman claimed that by July 2017 he was owed money by Mr Lahood, Mr Bouhamdan and Mr Baxter. He said in his first statement that he had travelled to Perth at the time of the alleged July importation as Mr Lahood had told him that he would be able to get his money back from his loan.[33] Otherwise, Mr Dolman's first statement only contained general evidence about the alleged July importation. There was no express reference to a border controlled drug being brought into Australia but there were aspects of Mr Dolman's statement which were broadly consistent with the Crown's case.
3. Mr Dolman provided more detail about his knowledge of, and involvement in, the alleged July 2017 importation in his third and sixth statements.[34] Mr Dolman stated that he was to receive some of the drugs to be imported in July 2017 in repayment of the amount allegedly owed by Mr Lahood. Mr Baxter was to assist in selling the drugs.[35] However, the focus of Mr Dolman's third and sixth statements generally remained on his attempts to recover the money said to be owed by Mr Lahood, Mr Bouhamdan and Mr Baxter and on steps he claimed he and Mr Baxter had taken in anticipation of receiving drugs from the alleged July importation.
4. Although the statements made by Mr Dolman were consistent with the Crown's case on the alleged July importation, they lacked particularity. There were matters that were left unexplained and aspects that were obviously not fully disclosed. Mr Dolman's statements about the alleged July importation illustrated why counsel for the accused had sought a Basha inquiry in relation to his proposed evidence. Taken at its highest, Mr Dolman's statements contained some admissions allegedly made by Mr Bouhamdan which assisted the Crown's case but little more that could not be proved from other sources.
5. Accordingly, Mr Dolman's proposed evidence about the alleged July importation was limited. He did not admit to participating in the alleged importation and provided only limited direct evidence of any role played by Mr Lahood, Mr Bouhamdan and Mr Rasaubale. According to his witness statements, Mr Dolman was to have been a beneficiary of the alleged importation rather than a participant and his knowledge was largely derived from what he was told by Mr Bouhamdan. Indeed, the primary purpose of his evidence was to explain how, on the Crown's case, Mr Baxter came to learn of the alleged importation.
6. Consequently, the probative value of Mr Dolman's evidence on the alleged July importation was substantially diminished by the decision to discontinue the Attempted Possession Charge against Mr Baxter. As noted earlier, that decision was made after the prosecutor had concluded that Mr Dolman could no longer be regarded as a witness of truth.
7. Following the prosecutor's decision, Mr Lahood, Mr Rasaubale and Mr Bouhamdan did not seek a reconsideration of the ruling that evidence of the alleged July importation was admissible in the Crown's separate cases against them.[36] Although a further ruling was not sought, I did not consider that the prosecutor's decisions regarding Mr Dolman affected the ruling that had been previously made given the contents of Mr Smith's statements to the AFP and the other matters on which the Crown proposed to rely to prove the alleged importation.

1. The Crown's application to admit evidence of the alleged July importation was determined immediately prior to the commencement of the Discontinued Trial. As previously noted, the evidence was said to be admissible in the Crown's separate case against each respondent.
2. However, it was alleged in the Joint Trial that Mr Cafcakis, Mr Kaena and Mr Harb knew of the alleged July importation and that their knowledge was relevant to the proof of their state of mind concerning the alleged December importation. Mr Cafcakis was said to have learnt of the alleged July importation through the recorded conversations between Mr Bouhamdan and Mr Smith on the Valkoista on 17/18 November 2017. The statements allegedly made by Mr Harb to Mr Kaena and AB - on the Crown's case, statements made some time after AB, Mr Kaena and AB returned to Sydney from Perth in mid-November - were relied on to submit that Mr Kaena and Mr Harb knew of the alleged July importation.
3. There was no application prior to or in the Joint Trial to reopen the ruling that evidence of the alleged July importation was admissible. Further, Mr Kaena, Mr Harb and Mr Cafcakis did not object to evidence of the alleged importation being admitted in the Crown's separate case against each of them.
4. The application, as originally argued and decided, concerned the Crown's cases against Mr Lahood, Mr Bouhamdan, Mr Rasaubale and Mr Baxter - 'the respondents'. It is convenient to continue to refer to 'the respondents' notwithstanding that the Crown ultimately discontinued the Attempted Possession charge against Mr Baxter and subsequently sought to establish that Mr Kaena, Mr Harb and Mr Cafcakis knew of the alleged July importation as a circumstance relevant to proof of the fault element in its separate cases against them.

1. The Crown's initial submissions alleged that the accused were participants in an 'ongoing drug operation' which was a 'continuum' from at least July 2017. The operation involved a 'syndicate' which commenced planning a second importation almost as soon as the alleged July importation had been completed. The syndicate's efforts to bring a border controlled drug into Australia were ongoing from the alleged July importation until December 2017. Evidence of the alleged July importation was relevant to proof of 'the true nature of the drug operation' and the role played by the respondents in the operation.[37]
2. Those submissions reflected the Crown's case prior to its revision in March 2021. As initially particularised, the Crown alleged a single 'overarching' agreement to undertake importations of illicit substances, with the alleged July and December importations being instances of the implementation of that agreement.[38] The accused were alleged to have been parties to the single overarching agreement at different times. On that case, evidence of the alleged July importation was arguably admissible, independently of s 31A of the Evidence Act, as evidence of the agreement and its execution.
3. As noted above, the Crown also contended that evidence of the alleged July importation was relevant to establishing the state of mind of the respondents in relation to the alleged December importation - that they knew or intended or were reckless about the possibility that the substance to be imported or possessed was a border controlled drug; that they were parties to the single overarching agreement to import commercial quantities of a border controlled drug and that they intentionally and knowingly participated in the alleged December importation.[39] It was also submitted that evidence of the alleged July importation was relevant to establishing the relationships between the respondents and the associations between the respondents and their co‑accused and others who were said to be involved in the alleged December importation.

(a) The Crown's allegations about the alleged July importation were based on the evidence of accomplice witnesses. There was no independent corroboration of their evidence. As accomplices, Mr Smith, AB and Mr Dolman could not corroborate each other.[40]

(b) The evidence was weak, vague and speculative.[41] For example, the Crown could not prove what substance had been imported if an importation had, in fact, occurred in July 2017.[42] Further, the possibility that the trip allegedly taken by the Valkoista was a 'dummy run' could not be excluded on the evidence proposed to be admitted.

(c) There was a risk that the jury would place undue weight on the allegations.[43]

(d) It was possible that the jury could become confused or distracted by focussing on whether the alleged July importation had occurred and if so, whether the respondents had been involved rather than on whether the Crown had proved that the respondents were guilty of importing a commercial quantity of a border controlled drug in December 2017.[44]

(e) The trip allegedly taken by the Valkoista in July 2017 only assumed probative significance when considered in combination with 'the knowledge that methamphetamine was landed in Geraldton on 21 December 2017'. The Crown's reliance on evidence of the alleged July importation to prove matters relating to the alleged December importation involved a form of circular reasoning.[45]

(f) The admission of evidence concerning the alleged July importation was apt to mislead and confuse the jury. The Crown relied on the evidence to support an inference that the respondents were parties to an agreement to undertake the alleged December importation. The jury were likely to confuse proof of an agreement to undertake the alleged July importation with proof that the respondents were parties to an agreement in respect of the alleged December importation.[46]

1. The Crown contended in its supplementary submissions that:

(a) There is no rule to the effect that s 31A evidence cannot be given by an accomplice or that such evidence necessarily requires independent corroboration.

(b) The respondents had not made any admissions. Consequently, the Crown was required to prove that the respondents knew or intended or believed that the substance allegedly imported in December 2017 was a border controlled drug and that they had intentionally participated in the importation.

(c) The Crown's reliance on an agreement for importing commercial quantities of a border controlled drug did not involve circular reasoning. Mr Bouhamdan and Mr Lahood were alleged to be part of a criminal enterprise to import a substantial quantity of a border controlled drug. Evidence of the alleged July importation provided circumstantial evidence of their participation in the agreement. A finding that they were involved in the alleged July importation did not mean that they must be guilty of the Importation Charge - a finding of guilt would depend on evidence about their state of mind in relation to the alleged December importation.

(d) Evidence of the respondents' participation in the alleged July importation was relevant to establishing that their involvement in the alleged December importation was not 'accidental'. As in Harriman v The Queen,[47] the evidence showed it was improbable that the respondents were associating with others for an innocent purpose rather than for the purpose of planning and undertaking the importation of a commercial quantity of a border controlled drug.

1. As noted above, the Crown revised its case in March 2021 (the revision was said to be a simplification of the Crown's case). The Crown did so in response to a document I provided to the parties. The purpose of the document was to identify some issues that were likely to arise in what would be a complex trial.[48]
2. In addition to the matters already noted about the reformulation of its case, the Crown responded to the document by submitting that:

(a) Cases concerning alleged drug importations demonstrated that propensity and relationship evidence had been admitted -

• to prove an ongoing criminal enterprise as evidence of participation in the charged offence by those involved in the enterprise;

• to establish the accused person's knowledge and to negate innocent explanations;

• to provide context for other evidence such as telephone intercept material;

• to demonstrate consistency with the evidence given by a witness.

(b) The Crown no longer proposed to rely on 'propensity' evidence 'as a circumstance relevant to the proof of the alleged offence'. Rather, evidence of the alleged July importation was relevant to establishing the context in which the events the subject of the Importation Charge had occurred - the decision of the New South Wales Court of Criminal Appeal in Masri v R[49] illustrated the basis upon which the evidence was admissible.

(c) Evidence of the acquisition of the Valkoista and the recruitment of Mr Smith to drive the vessel was admissible in any event ‑ the evidence was relevant to proof of the alleged December importation and to the knowledge, beliefs and intentions of Mr Lahood and Mr Bouhamdan.

(d) If evidence of the alleged July importation was excluded, the jury -

• would not hear important evidence relating to the issues of knowledge, belief and intention;
• would be left to speculate about aspects of the evidence - for example, why there had been a rush to purchase the Valkoista if nothing relevant had occurred until December 2017;
• would not be provided with important context for understanding what was recorded by the listening devices placed on the Valkoista by the AFP or in intercepted telephone calls - as noted above, the listening devices and intercepted calls captured conversations which, on the Crown's case, referred to the alleged July importation and were relevant to proof of the state of mind of Mr Bouhamdan and Mr Cafcakis.

The Crown's position following the revision of its case

1. The Crown's concession following the revision of its case that it did not rely on evidence of the alleged July importation as 'propensity' or 'tendency' evidence was ambiguous: did the concession relate to just 'tendency evidence' as that expression may be understood at common law or to that part of the definition of 'propensity evidence' in s 31A of the Evidence Act that refers to a 'tendency' that an accused person had or to all evidence that fell within the statutory definition of 'propensity evidence'? The gist of the Crown's position was that it would not rely on evidence of the alleged July importation to submit that the respondents had an inclination or pre-disposition to commit the offence of importing border controlled drugs or to be involved in drug dealing activities.
2. However, more generally the Crown stated that it no longer relied on evidence of the alleged July importation as evidence going to the proof of the respondents' guilt. Rather, the Crown proposed to lead the evidence as context. Consistent with that approach, the Crown made no reference to the evidence of the alleged July importation as similar fact evidence despite the similarities between that alleged importation and the alleged December importation.
3. Further, the Crown's submissions following the revision of its case focussed on common law authorities - in particular, Masri and Harriman. Relevant contextual evidence is admissible at common law; it is not necessary ordinarily to have recourse to s 31A of the Evidence Act to admit evidence that is truly contextual.

Section 31A of the Evidence Act

1. Section 31A of the Evidence Act states:

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

1. Evidence will be admissible under s 31A if:

(a) the evidence is propensity evidence or relationship evidence as defined by the section; and

(b) the evidence has significant probative value; and

(c) the probative value of the evidence, compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial.

1. R v Baxter [No 6] dealt with an application by the Crown to admit evidence of what was referred to as the 'Other Person Importation'. The Crown contended that the evidence was admissible at common law and under s 31A of the Evidence Act. My understanding of the circumstances in which evidence of uncharged criminal conduct may be admitted under s 31A was identified in the reasons given for dismissing the Crown's application. Accordingly, I do not propose to again set out the relevant principles in these reasons - in particular, to repeat what has been said by the Court of Appeal in cases such as Dair v The State of Western Australia;[50] Daniels v The State of Western Australia;[51] RMD v The State of Western Australia;[52] La Bianca v The State of Western Australia;[53] The State of Western Australia v Jackson;[54] Wark v The State of Western Australia;[55] and Hill v The State of Western Australia.[56] There have been many decisions of the Court of Appeal which have considered the meaning and effect of s 31A since March 2021. However, this section of the reasons only considers the state of the case law as at the time I allowed the Crown's application, that is, my understanding of the law at that time.
2. The definition of 'propensity evidence' in s 31A of the Evidence Act is wide - it embraces similar fact evidence; 'other evidence of the conduct of the accused person'; evidence of the character or reputation of the accused person and evidence of a tendency that the accused has or had. The word 'conduct' in s 31A refers to 'the manner in which the accused person behaves or has behaved'. The words 'a tendency' refer to a 'proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had'.[57]
3. In The State of Western Australia v Wark, Pritchard J observed:[58]

[T]he definition of 'propensity evidence' in s 31A(1) appears to be broad enough to encompass evidence which would not necessarily have fallen within one of those categories of propensity evidence which were well recognised at common law. That is so because the definition of propensity evidence includes 'other evidence of the conduct of the accused person'. Those are extremely broad words. It is clear that such 'other evidence' will be evidence which would not fall within the other forms of propensity evidence referred to in the definition of 'propensity evidence', or within the definition of 'relationship evidence'. And clearly the words 'other evidence of the conduct of the accused person' cannot simply refer to evidence of the conduct of the accused person which is directly relevant to establishing that the accused committed the alleged offence, because that evidence would be admissible in the absence of s 31A. Accordingly, having regard to that legislative context, the words 'other evidence of the conduct of the accused person' must be construed as any evidence of the conduct of the accused person which demonstrates, or is capable of demonstrating the accused's propensity - that is, an inclination to commit crime, or crime of a particular kind, or an inclination to behave in a particular way - which is capable of supporting an inference that the accused is the person, or the sort of person, likely to have committed the alleged offence.

1. Justice Hall endorsed those observations in The State of Western Australia v Edwards,[59] and, with respect, the phrase 'other evidence of the conduct of the accused person' must relate to evidence of a 'propensity' as that word is ordinarily understood - that is, other evidence of the conduct of the accused person that demonstrates a relevant predisposition or inclination. That, it seems to me, must be so as Parliament could not have intended that the expression 'other evidence of the conduct of an accused' would create a separate and independent category of evidence. The effect of that interpretation would be that s 31A would apply to any evidence of the way in which an accused person had behaved.
2. The other matter to note is that s 31A of the Evidence Act distinguishes between 'propensity evidence' and evidence of a 'tendency that the accused person has or had'. The latter form of evidence is a sub-set of the defined category of propensity evidence so that not all propensity evidence as defined by s 31A is evidence of a tendency allegedly possessed by the accused person.
3. As to the third of the requirements for admissibility, fair‑minded people are reasonable members of the general community who are not lawyers but who it must be assumed have informed themselves of at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.[60]

The admissibility of uncharged criminal conduct at common law

1. I also discussed the admissibility of uncharged criminal conduct at common law in R v Baxter [No 6]. Again, I will not repeat what was noted in those reasons.
2. Shortly stated, evidence which shows no more than the propensity of an accused to engage in criminal conduct of a particular kind, or that the accused is the sort of person who is likely to commit the offence charged, is not admissible to prove the accused's guilt.[61] However, evidence which has a high probative value and raises, as a matter of common sense and experience, the improbability of the offence charged having been committed other than as claimed by the prosecution is admissible notwithstanding that it discloses prior criminal conduct or a propensity to commit the offence.[62] Further, evidence of uncharged criminal conduct may be given if the evidence puts other evidence about the facts and circumstances of the charged offence into their proper context. The evidence is received as part of the essential background against which the prosecution's evidence and any evidence of the accused person must be assessed.
3. The admissibility of evidence which reveals uncharged criminal conduct is always subject to a discretion to exclude evidence where its prejudicial effect outweighs its probative value. It is not necessary that the evidence be proved beyond a reasonable doubt before it can be used by the jury for its admitted purpose.[63]
4. There have been numerous cases involving alleged drug importations or other dealings in which evidence of uncharged criminal conduct has been admitted on a variety of grounds and for different purposes. Reference is made later in these reasons to some of those cases to illustrate the grounds upon which such evidence has been admitted and the purposes for which the evidence has been used.

The characterisation of evidence of uncharged criminal conduct

1. Various terms have been used to describe and classify evidence which discloses uncharged criminal conduct for the purpose of determining admissibility - for example, similar fact, tendency, relationship, coincidence and contextual evidence.
2. Classifying evidence of uncharged criminal conduct according to commonly employed common law categories does not assist in determining the admissibility of evidence of uncharged criminal acts under s 31A of the Evidence Act. The question posed by the section is simply whether the proposed evidence falls within the wide definitions of 'propensity evidence' and 'relationship evidence'. If so, the evidence can only be admitted if the court is satisfied about the matters stated in s 31A(2). Classifying the evidence according to common law nomenclature distracts from the statutory task.
3. As noted above, at common law evidence of uncharged criminal acts will be admissible if the evidence is relevant and its probative value is not outweighed by its prejudicial effect. Classifying such evidence as similar fact, tendency, relationship or coincidence evidence or some other category may not be particularly illuminating. The process of classification serves the important purpose of focusing attention on the proposed use of the evidence. However, that process can be frustrated by the lack of settled terminology. As Pullin JA noted in PIM v The State of Western Australia, the law relating to propensity evidence is in a confused and uncertain state.[64] His Honour commented:[65]

In BRS v R [1997] HCA 47; (1997) 191 CLR 275 Kirby J (311) said that the 'troublesome issue of propensity evidence' is that it is 'an area of law which has been described as "confused and confusing"'. In Tully v R [2006] HCA 56; (2006) 230 CLR 234 [135] Callinan J (Heydon and Crennan JJ agreeing) acknowledged that the authorities of the High Court were 'not as clear as they might be' in relation to uncharged acts. The subject has been visited on many occasions in the High Court, most recently in HML. Unfortunately, HML has not lessened the confusion. Kirby J observed in HML that 'So much has been written' about the questions of admissibility and the directions and warnings that might be given concerning evidence of 'discreditable sexual conduct' in cases involving sexual offences committed against under‑aged children, that he hesitated 'to add to the elaboration lest what I write ends up contributing to the uncertainties' [44] ‑ [45]. Part of the problem stems from the use of adjectives or epithets of uncertain meaning. Hayne J in HML said that 'embellishing epithets' added to the word evidence are 'neither helpful nor desirable' [200]. Gleeson CJ in HML referred to the fact that the words 'relationship' and 'propensity' may 'require closer definition' [8] and that the word 'propensity' is ambiguous [12]. Hayne J in HML expressed the view that the words 'propensity' and 'disposition' are 'not helpful' [129]. Crennan J in HML noted that the expression 'relationship' is a 'vague term' [468]. Kiefel J said in HML that the expression 'relationship evidence' has 'added to the confusion as to the appropriate standard to be applied for its admissibility' [491] and that the expression 'encompasses sexual conduct which is an offence often referred to as "uncharged acts" and misconduct which may not be an offence' [492]. Callinan J in Tully said that the term 'relationship evidence' tends to elude definition or 'undesirably, to be referred to by judges and prosecutors imprecisely' [141]. The word 'propensity' at times has been further qualified by adding 'general' or 'specific' to it. This distinction creates its own difficulties as explained by Byrne AJA in R v BJC [2005] VSCA 154; (2005) 13 VR 407 at 420; [2005] VSCA 154; (2005) 154 A Crim R 109.

1. The High Court expressly acknowledged the uncertain and unsatisfactory state of the law on the admissibility of evidence of uncharged acts in R v Bauer. The difficulty can be illustrated by considering the meanings that have been attributed to the term 'relationship evidence'. The term may, for example, be used to describe evidence of the relationship between an accused person and a complainant that discloses uncharged sexual assaults and/or a sexual interest in, or sexual attraction to, the complainant and a tendency to act on the interest. Evidence of that kind may also be referred to as 'tendency evidence'. Further, this form of relationship evidence is quite different to the 'relationship evidence' which the High Court held to be admissible in Harriman (evidence of prior drug dealings between alleged co-conspirators admitted to explain aspects of their relationship and association).
2. In my view, in considering the admissibility of evidence of uncharged criminal acts under s 31A of the Evidence Act and at common law it is more helpful to focus on first, the circumstances that may be established by the evidence (considered with all other relevant evidence and taking the evidence at its highest) and second, the purpose for which the evidence is sought to be tendered. The second step will not only inform the characterisation of the evidence but will be significant for determining its probative value.[66] However, the mere fact that evidence concerns the relationship between an accused and others allegedly involved in the charged offence does not mean that it is necessarily admissible. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context: Norman v R.[67]

1. The respondents made no admissions following their arrest and no admissions had been made or foreshadowed under s 32 of the Evidence Act at the time that the Crown's application was determined. Consequently, the application was argued and decided on the assumption that the Crown would be required to prove every element of the Importation Offence against Mr Lahood, Mr Bouhamdan and Mr Rasaubale and each element of the Attempted Possession Offence against Mr Baxter.
2. The Crown submitted that evidence of the alleged July importation was relationship evidence at common law which was admissible to rebut any suggestion that the relationships between the respondents and their association with others who were said to have been involved in the alleged December importation was capable of an innocent explanation. The Crown also submitted that the evidence was admissible to rebut any suggestion that one or more of the respondents was acting under duress. The Crown relied particularly on Harriman and Masri to make those submissions.
3. The use of evidence of the alleged July importation for those purposes was contextual. It was evidence which, on the Crown's case, demonstrated the nature of the relationships between those allegedly involved in the alleged December importation. Further, the evidence was said to provide essential background to the circumstances the Crown alleged proved that the respondents were guilty of the Importation Offence or the Attempted Possession Offence.
4. The Crown also submitted that evidence of the alleged July importation was relevant and admissible to prove that:

(a) the respondents knew or believed that the substance to be brought into Australia as part of the alleged December importation was a border controlled drug or that they were aware of a substantial risk that the substance was a border controlled drug;

(b) the respondents intended to bring into Australia a substance on the Valkoista or to deal with a substance in connection with its importation.

1. The use of evidence of the alleged July importation for those purposes was not merely contextual. The evidence was, on the Crown's case, relevant to the proof of elements of the Importation Offence and the Attempted Possession Offence - that is, it was relevant to proof of the respondents' guilt.
2. In addition to those matters, I considered that evidence of the alleged July importation was relevant to:

(a) whether Mr Lahood had imported a border controlled drug given how the Crown proposed to prove that element - that he was an organiser of the importation (a 'mastermind' behind the importation);

(b) the meaning to be attributed to the recorded conversations principally between Mr Bouhamdan and Mr Smith on 17/18 November 2017, while they were on the Valkoista with Mr Cafcakis - arguably, the conversations referred to the alleged July importation and were, accordingly, relevant to the state of mind of Mr Bouhamdan and Mr Cafcakis;

(c) the meaning to be attributed to statements made in intercepted telephone calls, principally between Mr Bouhamdan and Mr Smith, which arguably referred to aspects of the alleged July importation.

Evidence of the alleged July importation as contextual evidence

1. As previously noted, there is a material distinction between contextual evidence and evidence that is relied on as proof of the guilt of an accused person. Contextual evidence is relevant to the assessment of other evidence; the evidence is not relied on to prove one or more of the elements of the charged offence. In my view, the Crown's proposed use of the evidence of the alleged July importation was both contextual and for the purpose of proving the guilt of the respondents. That was so notwithstanding the submissions made by the Crown following the revision of its case.
2. The use of evidence of the alleged July importation to interpret and assess the listening device recordings made on the Valkoista on 17/18 November 2017 and the intercepted telephone calls referred to in the Evidence Annexure was obviously contextual. I considered that:

(a) it was open to the jury to find that the recordings and the intercepted telephone calls identified in the Evidence Annexure contained references to the alleged July importation;

(b) subject to balancing its probative value and prejudicial effect, evidence of the alleged July importation was admissible at common law as contextual evidence to explain and assess what was stated in the recordings and intercepted telephone calls.

1. The use of evidence of the alleged July importation to explain aspects of the evidence such as the time between the acquisition of the Valkoista and the alleged December importation was also contextual.
2. Considered in isolation, the probative value of evidence of the alleged July importation for those contextual purposes was limited. The utility of the evidence for the purpose of understanding, on the Crown's case, the listening device recordings, telephone intercept material and aspects of the chronology depended on evidence of the alleged July importation being admitted for other purposes. That is, there would be no point in, for example, evaluating the listening device recordings if evidence of the alleged July importation was excluded - the evaluation would occur in an evidentiary vacuum and be of no relevance.
3. I held that evidence of the alleged July importation was admissible on other grounds and for other purposes. I further held that evidence of the alleged July importation had a significant probative value which outweighed the prejudicial effect of the evidence, after taking into account the kind of directions that would be required to be given to a jury about the use of the evidence. Accordingly, I concluded that evidence of the alleged July importation could be used for the purpose of explaining the meaning of statements made in the listening device and telephone intercept recordings and to avoid speculation about the chronology of events on which the Crown relied in its case against each respondent.

Evidence of the alleged July importation as relationship evidence and proof of the respondents' state of mind

The use of evidence of uncharged criminal conduct to rebut innocent association

1. As noted above, the Crown relied particularly on the reasoning of the Hight Court in Harriman and the New South Wales Court of Criminal Appeal in Masri to contend that evidence of the alleged July importation was admissible at common law to rebut any suggestion that the relationship between the respondents and their association with others said to be involved in the alleged December importation was capable of an innocent explanation. In Harriman, Dawson J observed:[68]

When a person is charged with a criminal offence, evidence is ordinarily inadmissible that he has on other occasions been guilty of behaviour indicating a criminal disposition. This is not because the evidence is irrelevant. On the contrary, it is excluded because a jury is likely to regard it as proving too much and is for that reason likely to proceed upon prejudice rather than proof. On the other hand, such evidence may in a particular case have a sufficiently high probative value to justify its admission notwithstanding its prejudicial effect. When it is admissible in this way, it is generally called similar fact evidence but that description can be misleading. Whilst it is often the case that the evidence is admissible because it is so strikingly similar to the behaviour alleged to constitute the offence as to point inevitably to the guilt of the accused, that is not the only basis upon which evidence indicating a criminal propensity is admissible. The evidence may otherwise have strong probative force justifying its admission. This case is an illustration. Evidence that the applicant had a previous relationship with the witness Martin involving dealings in drugs was clearly evidence of a disposition or propensity upon his part, indeed, on the part of both of them, to engage in dealings of that kind together with one another such as to make it highly improbable that their relationship in this case was of an innocent character. It was not so much the similarity of the previous dealings which was important as the nature of the association to which those dealings pointed.

1. In Masri, the appellant was alleged to have participated in an agreement with another (Mr Elomar) to falsely represent the contents of a container with the intention of dishonestly causing a loss of customs duty. The appellant and Mr Elomar represented that the container held float glass and aluminum frames whereas, in fact, the container was loaded with cigarettes. They used what was referred to as the 'piggyback' method to undertake the importation - that is, they used a legitimate importer with a satisfactory customs record to import the container in the expectation that this was less likely to attract scrutiny.
2. The Crown was permitted to adduce evidence of four separate occasions on which the appellant and Mr Elomar had previously used the 'piggyback' method to import cigarettes. The prosecutor asserted that the evidence was not adduced for a tendency purpose. Rather, the evidence was said to have been admitted for the purpose of showing the context in which the appellant and Mr Elomar were operating, the relationship between the two and the extent of the appellant's participation in the importation.
3. Simpson J (with whom RA Hulme & Bellew JJ agreed) concluded that:

(a) The assertion by the tendering party that evidence is not presented for a particular purpose is not conclusive - it is necessary for the court to examine the real purpose of the tender.

(b) Tendency evidence is evidence that provides a foundation for an inference that on the occasion the subject of the proceedings it is more likely that the accused acted in the way asserted by the tendering party or had the state of mind asserted by the tendering party because he or she had the relevant tendency.

(c) The evidence in this case was not tendency evidence. Further, it was admissible at common law on the principles identified by the High Court in Harriman.

Evidence about the nature of relationships and to prove an accused person's state of mind

1. As the Crown submitted, there are numerous cases involving alleged drug importations or dealings where evidence of uncharged criminal conduct was admitted to establish the nature of the relationship between an accused person and others who were also alleged to have been involved in the drug importation or dealing and/or as a circumstance relevant to proof of the state of mind of an accused person.
2. For example, in Nessim v The Queen,[69] the applicant was found guilty of one charge of attempting to import a marketable quantity of a border controlled precursor. The applicant and another were arrested following a controlled delivery of a package sent by an express mail service. Following his arrest, the applicant stated he was at the premises where the delivery occurred to provide a quote for renovation work. He claimed to have innocently received the package without knowledge of its contents. The trial judge admitted evidence of four other attempts to import a border controlled precursor through packages intended to be delivered by an express mail service.
3. The Victoria Court of Appeal held that the trial judge had not erred in admitting the evidence. That was so notwithstanding that the evidence did not establish positively that the applicant had participated in any of the four previous attempted importations. The evidence, considered as a whole, was capable of supporting inferences about the nature of the applicant's relationship with his co‑offender and his knowledge of the contents of the package which was the subject of the controlled delivery. The evidence established a prior relationship in which the applicant's co‑accused had advised the applicant of the address at which the packages were to be delivered and other details about the packages in the course of ongoing attempted importations. It was open to the jury to conclude that the co‑offender would be unlikely to do this unless the applicant was aware of the proposed importation.
4. In Cranney v The Queen,[70] the appellant was convicted of importing a commercial quantity of a border controlled precursor. Two categories of evidence were sought to be admitted pursuant to the Harriman principle. The first category was characterised by the trial judge as the appellant's participation in activities across three or four months which were directed to the attempted fulfilment of the conspiracy the subject of the indictment. The second category involved evidence of the appellant's participation in a failed importation sometime earlier than the charged offence. The trial judge admitted the evidence in both categories - it was admitted to prove the nature and scope of the relationship between the appellant and his alleged co‑conspirators.
5. On appeal, the appellant contended that the evidence could have only assisted the Crown's case if the jury had reasoned that because he had behaved in the past in a particular manner in his relationships with his alleged co‑conspirators, he was likely to have behaved in the same way at the time of the charged offence. That, so it was submitted, was tendency reasoning.
6. Price J (with whom Hoeben CJ at CL and Latham J agreed) noted what was said by Brennan J in Harriman:[71]

However, where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence, the evidence is admissible.

1. His Honour held that both categories of evidence relied on by the Crown were admissible. The evidence pointed to a substantial involvement by the appellant in the planning of importations of a border controlled precursor into Australia prior to the charged offence. That evidence, and the evidence of the appellant's participation in the earlier failed importation, supported inferences about the appellant's involvement in the conspiracy to import a border controlled precursor that was the subject of the charged offence.
2. The applicant in Wenbiao Lin v The Queen[72] was also convicted of importing a commercial quantity of a border controlled precursor. The precursor was concealed in water purifiers that were delivered to the applicant under a controlled operation.[73] The prosecution was permitted to lead evidence of the applicant's involvement in a previous importation for two purposes: first, to rebut statements made by the applicant in his recorded interview with police that he had received the package at the request and on behalf of another person and second, to prove the applicant's state of mind (that he was reckless about the risk that the package contained a border controlled precursor).
3. The Victorian Court of Appeal (Weinberg, Santamaria and Kyrou JJA) held that the evidence was admissible for those purposes. The Court observed that there are 'a number of examples of cases where evidence of prior acts of misconduct on the part of an accused was admitted, not on the basis of tendency or coincidence (or in earlier days, as similar fact evidence) but rather, because such evidence was directly relevant to, for example, the accused's knowledge and state of mind'.[74]
4. The issue in Ivanoff v The Queen[75] was whether the applicant was aware that the number of cannabis plants he had grown was likely to have exceeded a commercial quantity. Evidence to the effect that the applicant had some years earlier been a substantial dealer in cannabis, and had been convicted of trafficking, was held to be admissible as relevant to the applicant's state of mind. On an application for leave to appeal, Weinberg JA held that the trial judge had correctly allowed the evidence to be led. His Honour said:[76]

Ordinarily, evidence of the previous misconduct of an accused is regarded as inadmissible. ... As a matter of policy, the law regards such evidence as dangerous, and highly prejudicial.

There are, of course, exceptions to this exclusionary principle. The most obvious example, at common law, was what was termed 'similar fact evidence'. A similar exception, under current law, is to be found in the provisions of the Evidence Act dealing with what is now known as tendency and coincidence evidence. Such evidence must satisfy more than the ordinary test of relevance. It must have 'significant probative value', and its probative value must 'substantially outweigh' any prejudicial effect it may have on the accused.

If evidence is relevant for a use which does not fall within either of the definitions of 'tendency evidence' or 'coincidence evidence', and is not caught by any other exclusionary rule, it may be admitted, subject to the power conferred upon a trial judge to exclude evidence ... if its probative value is outweighed by the danger of unfair prejudice to the accused.

Of course, not every case in which the Crown seeks to lead evidence of discreditable past acts on the part of the accused should be seen through the prism of tendency or coincidence. For example, it has long been recognised that 'relationship evidence', outside the bounds of tendency or coincidence, may be led if relevant, subject only to the possible exercise of judicial discretion.

In the same way, evidence of previous misconduct may be relevant otherwise than via tendency or coincidence reasoning, and may therefore be admissible, provided that its probative value is greater than any likely prejudicial consequences. Self-evidently, if the evidence is admitted on a non-tendency or non-coincidence basis, it may not be used for the purpose of proving tendency or coincidence.

Some examples of non-tendency and non-coincidence use will suffice:

• evidence of previously discreditable conduct may be relevant as demonstrating a motive for the crime charged, or as rebutting a defence that is reasonably anticipated. Thus, in a trial for murder, the prosecution may be permitted to lead evidence of the accused having previously assaulted the deceased as bearing upon the question of motive. Evidence of that kind is not tendered in order to establish a tendency to engage in acts of violence....;
• evidence demonstrating opportunity, and thereby rebutting a defence such as alibi, if one is advanced;
• evidence linking the accused to the crime charged. For example, it might be that in a trial for murder evidence will be admitted which shows that some of the proceeds of an earlier robbery were found at the scene of the crime, and other parts of those proceeds were found in the accused's home. The evidence is undoubtedly prejudicial, but would certainly be admitted;

• it may be that evidence of prior exposure to the criminal law is relevant to the question whether the accused has a particular state of mind or understanding which constitutes an element of the crime charged. So, for example, an accused who wishes to raise, as a defence to a charge of theft, a genuine but mistaken belief as to a claim of right may find his defence somewhat undercut by virtue of the fact that he had, on an earlier occasion, stood trial for a similar offence, and gained an acquittal on the same basis as that for which he now contends. It is the knowledge gained, as a result of the earlier prosecution, that is significant, and not any tendency on his part to engage in the conduct alleged. ...

It is precisely this last category of non-tendency and non-coincidence reasoning that the judge in the present case adopted. His Honour took the view that the applicant's previous experience in the cultivation of cannabis bore directly upon his state of mind, as regards the size of the crop he was growing.

In my view, his Honour's analysis of the basis upon which the evidence of the applicant's previous conviction was admissible was correct. The evidence was relevant, neither as tendency nor coincidence, but because it went directly to the central issue in the trial, namely, the applicant's state of mind.

1. In a different factual context, Buss P and Sofronoff AJA in LNV v The State of Western Australia identified a variety of purposes for which evidence of an accused's criminal or discreditable conduct may be led in a trial for sexual offences. Those purposes included 'to place the offending into its true context and thereby to remove the potential implausibility of an allegation of an isolated incident'.[77]
2. As the New South Wales Court of Criminal Appeal observed in Elomar v The Queen,[78] there is a distinction between evidence that may provide the foundation for a conclusion or inference that, at a particular point in time, a person had, in fact, acted in a particular way or held a particular state of mind and evidence that a person had a tendency to hold a particular state of mind or to act in a certain way. Proof of a person's actual state of mind is not tendency evidence. Similarly, in Ivanoff,[79] Weinberg JA explained that where 'evidence of prior exposure to the criminal law is relevant to the question whether the accused has a particular state of mind or understanding which constitutes an element of the crime charged it was the knowledge gained from the past misconduct that was relevant and not any tendency on the part of the accused to engage in the conduct alleged'.[80]

1. The Crown alleged that planning for the alleged December importation commenced shortly after the alleged July importation had been completed. The plan for the alleged December importation substantially replicated the alleged July importation. The organisation and execution of the alleged December importation was said to have involved numerous communications between the respondents and their co-accused. There were, so it was alleged, meetings in Perth, Sydney, Adelaide and the Gold Coast and trips at different times to Bangkok and Perth by all of the accused except Mr Harb. Accordingly, the Crown's case revolved around the relationships and communications between the respondents and their co-accused as plans were developed for the alleged December importation and steps were taken to implement those plans.
2. The Crown's case was that the respondents and the other co-accused worked together to plan and execute the alleged December importation. Although the Crown only relied on s 11.2A of the Criminal Code (joint commission) in its separate cases against Mr Lahood and Mr Harb, it was plain that the Crown, in effect, alleged that each accused was party to an agreement to undertake the alleged December importation.[81] The accused were each alleged to have performed a designated role according to a plan for executing the alleged December importation. In particular, the Crown alleged that:

(a) Mr Lahood organised and coordinated the alleged importation.

(b) Mr Bouhamdan was also involved in planning and organising the alleged importation, as well as being a member of the 'boat crew' with Mr Smith and Mr Cafcakis.

(c) Mr Harb organised and directed the 'shore party'.

(d) Mr Rasaubale, Mr Kaena and AB formed the 'shore party'.

(e) Mr Dolman was involved in planning and organising the alleged December importation. He was also alleged to have assisted in the alleged importation by communicating with the Asian boat and the Valkoista.

(f) Mr Baxter provided satellite phones to be used in the alleged December importation. It was also alleged that it had been agreed he would receive some of the border controlled drug to be brought into Australia.

1. Simply put, the Crown's case was that Mr Lahood, Mr Bouhamdan and Mr Rasaubale performed the same roles in the alleged July importation. They allegedly did so in the knowledge that the alleged July importation involved bringing a large quantity (a commercial quantity) of a border controlled drug into Australia. Mr Baxter was also alleged to have known that the alleged July importation involved a large quantity of a border controlled drug. That knowledge, so the Crown submitted, informed the respondents' knowledge, intentions and beliefs in relation to the alleged December importation. Their involvement in the alleged December importation and their relationships and associations in connection with that alleged importation occurred against the background of their participation in the alleged July importation.
2. As for the respondent's submissions:

(a) There was evidence in the statements of Mr Smith dated 7 December 2019[82] and 21 June 2021[83] which, if accepted, could sustain a finding that the alleged July importation involved a border controlled drug. There was evidence in the statements of AB dated 5 March 2019 and 15 February 2021[84] from which it was open to infer that Mr Rasaubale admitted that, to his knowledge, the alleged July importation involved bringing into Australia and transporting to the Eastern States a border controlled drug (that evidence was, of course, only admissible against Mr Rasaubale). [85] The Crown's case on the planning and execution of the alleged July importation - for example, the purchase of the Valkoista for $350,000 - also supported an inference that the alleged importation involved bringing into Australia a large quantity of something that could not be lawfully imported.

(b) The jury could find that the alleged July importation was not a 'dummy run' having regard to the evidence of Mr Smith and the other circumstantial evidence relied on by the Crown.

(c) The Crown's proposed use of evidence of the alleged July importation did not involve circular or 'backward' reasoning. The relevance of evidence of uncharged criminal conduct is necessarily determined by the nature and circumstances of the charged offence. The fact that methamphetamine was landed at Geraldton on 21 December 2017 provided the relevant evidentiary context for the alleged July importation.

(d) The risk that the jury might place undue weight on the evidence of the alleged July importation or that they might become confused or distracted or might be mislead by the evidence is a well identified risk associated with propensity and relationship evidence: see the comments by Steytler P in Dair v The State of Western Australia concerning the prejudice that may arise from the admission of the propensity evidence and which, consequently, may risk an unfair trial.[86] There is a risk that the jury will uncritically overvalue such evidence and impermissibly reason that because an accused has committed other offences they must have also committed the charged offence. However, those concerns are not, of course, an absolute bar to the admission of propensity or relationship evidence under s 31A of the Evidence Act or at common law. Rather they are relevant to the tests prescribed by s 31A(2) of the Evidence Act, the balance between probative value and prejudicial effect in deciding admissibility at common law and the directions that might have been given about the use that can or cannot be made of the evidence by the jury.

(a) Evidence of the alleged July importation had significant probative value for the purpose of determining admissibility under s 31A of the Evidence Act and at common law. The evidence was relevant for the reasons identified by the Crown.

(b) The probative value of the evidence outweighed its prejudicial effect, taking into account the directions that would be required on the use that could be made of the evidence of the alleged July importation.

(c) For the purpose of determining admissibility under s 31A, the probative value of evidence of the alleged July importation, compared to the risk of an unfair trial, was such that fair-minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial.

(d) Evidence of the alleged July importation was admissible at common law to negate any submission to the effect that evidence of the relationships between the respondents and their co-accused had an innocent explanation. The evidence of the alleged July importation was admissible on the principles identified by the High Court in Harriman. The evidence was also 'relationship' evidence for the purpose of s 31A of the Evidence Act and was admissible for this purpose under the section.

(e) Evidence of the alleged July importation was admissible at common law as a circumstance relevant to proof of the state of mind of the respondents (and, in the Joint Trial, to the state of mind of Mr Kaena, Mr Harb and Mr Cafcakis). The cases referred to above illustrate the basis upon which the evidence was relevant and admissible for this purpose.

(f) Evidence of the alleged July importation was relevant to the nature of the relationship between the respondents and their association with the co-accused. The evidence was admissible for this purpose at common law and under s 31A of the Evidence Act.

(g) Evidence of the alleged July importation was admissible at common law to put the facts and circumstances alleged by the Crown in context - to provide essential background for the jury to be able to assess the evidence to be presented by the Crown and any evidence adduced by the accused.

1. Those conclusions were based on the premise that the Crown did not rely on evidence of the alleged July importation as tendency evidence; that is, that the evidence was admissible for the purposes identified by the Crown following the revision of its case. As Weinberg JA observed in Ivanoff, evidence admitted for a non-tendency basis cannot be used for the purpose of proving a tendency.[87]

1. There were many claims for PII made by the AFP and others over documents or parts of documents that were otherwise subject to a disclosure obligation. The first set of claims concerned documents created for the purpose of sentencing Mr Smith, AB and Mr Dolman. Those claims were dealt with in R v Baxter. Numerous claims were subsequently made prior to and during the Discontinued Trial and the Joint Trial, including by Mr Dolman and Mr Smith.
2. Justice McGrath identified in R v Baxter the relevant legal principles to be applied in determining a claim for PII. I adopted those principles in determining the claims on which I ruled.
3. The claims for PII extended to parts of recorded calls made by Mr Smith while in custody. The calls were produced in answer to summonses to produce issued on behalf of Mr Bouhamdan. Calls made by AB while in prison were also produced.
4. I reviewed transcripts and recordings of many of the numerous prison calls made by Mr Smith and AB.[88] Claims for PII were allowed over parts of the calls made by Mr Smith, with the parties being advised generally of the basis upon which those claims had been allowed given the importance of Mr Smith's evidence to the Crown's case. No claim for PII was made in relation to any call made by AB. However, I suppressed non-relevant personal and family information that was divulged in the calls made by Mr Smith and AB.
5. Mr Dolman and Mr Smith made claims for PII in statements that they made after the Discontinued Trial. The circumstances in which they made those claims are dealt with later in the reasons.

1. As mentioned earlier, AB was convicted of the Possession Offence and not the Importation Offence. It was not apparent why AB was charged with a different offence given that his involvement in the alleged December importation was not materially different to that alleged in relation to Mr Kaena and the penalty for an offence against s 307.8 of the Criminal Code is the same as for an offence under s 307.1.
2. It was mistakenly assumed from early in the prosecution that AB had been convicted of the Importation Offence: see, for example, R v Baxter[89] and R v Baxter [No 2][90]. Indeed, it appears that the CDPP had intended to charge AB with an importation offence. Exhibit 1525 was an undertaking to co-operate given by AB to the AFP. The undertaking was signed on 7 January 2019 - approximately six months before AB pleaded guilty to the Possession Offence. The undertaking did not refer to that offence; rather it referred to an importation offence contrary to s 307.1 of the Criminal Code.
3. Moreover, the statement of material facts served by the CDPP in early 2019 stated that the accused, including AB, had been charged with importing a commercial quantity of a border controlled drug contrary to s 307.1. The statement was served approximately three months before the first indictment was lodged with the court.
4. AB was cross‑examined about matters relating to his plea of guilty and sentencing. The focus was on his undertaking to co-operate and his understanding of the consequences of a breach of the undertaking.[91] AB also agreed he had described in his statements to the AFP his alleged involvement, and the involvement of others, in the importation of illegal drugs.[92] However, the actual offence for which AB had been convicted was not identified in cross-examination.
5. AB was taken to his undertaking to co-operate in re‑examination:[93]

And then on 11 October 2018, you entered a plea of guilty? --- Yes. If the record say, because I don't remember the exact date.

So you agree that you entered the plea of guilty, but you don't remember the date. Is that right? --- I think, yes. Yes.

And that the charge that you pleaded guilty to was importing a commercial quantity of a border controlled drug, namely methamphetamine? --- Yes.

And that plea of guilty was in relation to the importation on 21 December 2017?

...

On the - it was 21 December 2017. That was the offence you pleaded guilty to? --- For that - okay. Yes.

1. The error made in that exchange was not picked up by counsel for the accused. However, Mr Salter, acting for Mr Harb, wrote to the prosecutor on 5 November 2022 stating that, '[f]ollowing a review it has been discovered by the defence that the accomplice witness AB pleaded guilty and was sentenced to an offence under s 307.8 rather than the charge under s 307.1(1) of the Criminal Code as represented by the Crown at trial in evidence and via tendered exhibits'.[94] The letter stated that what had occurred had 'fundamental and far-reaching consequences', including on how a 'no case' submission previously made by Mr Harb had been argued and determined. It was also said that forensic decisions about the cross‑examination of AB had been made on an erroneous basis.
2. Ms Moss[95] replied to Mr Salter's letter the next day.[96] She advised:

(a) Documents relating to the sentencing of AB had been disclosed by the Crown in March 2020 and a signed copy of the indictment presented against AB had been provided to counsel for Mr Harb in July 2021.

(b) Counsel for Mr Harb had been provided with a copy of a letter dated 21 August 2022 from the CDPP to AB's solicitor. The letter identified the Possession Offence as the offence for which AB had been convicted.

(c) The error made in examining AB was inadvertent. Further, AB's plea and his sentencing were only relevant to his credit and the error did not have the far-reaching consequences suggested by Mr Salter.

1. The CDPP's letter to AB's solicitor dated 21 August 2022 concerned a possible appeal against sentence. The letter reproduced the charge to which AB had pleaded guilty. As Ms Moss had noted, a copy of the letter was provided to counsel for the accused. The letter was written the day before AB was called to give evidence in the trial.

1. Mr Eyers, counsel for Mr Harb, complained about what had occurred when the trial resumed on 7 November 2022.[97] Senior counsel for Mr Kaena, Mr Chadwick KC, joined in the complaint. Ultimately, Mr Harb elected not to make an application but Mr Kaena applied for the jury to be discharged. That application was refused for the reasons that follow.
2. It was contended on behalf of Mr Kaena that:

(a) AB was the critical witness for the Crown's case against Mr Kaena. The prosecution had 'fundamentally misstated' the offence for which AB had been convicted. The jury ought to have been directed on the basis that AB had pleaded guilty to the Possession Offence and not the Importation Offence.

(b) If the true position had been known, AB could have been examined about his knowledge of an importation in circumstances where he had pleaded guilty to a possession offence.

(c) The Possession Offence was 'post the offence of importation'. AB could have been cross-examined on the basis that he was involved in 'the movement of the border controlled drugs following importation', an involvement that was consistent with Mr Kaena's case that he was only concerned with transporting items after they had been imported.[98]

(d) AB's evidence would have been 'of significantly less importance to the Crown's case in respect of the state of mind of Mr Kaena' had the true position been known. That was because:[99]

[A]s it currently stands ... AB's is saying 'this is what I did. This is what Mr Kaena did in this matter relating to his actions and words,' and the evidence before the jury effectively from AB is that his actions, his words, in his own mind constituted an importation because he pleaded guilty to it.

And that flows on, of course, to say that Mr Kaena is also guilty of importation on those same facts and circumstances. Whereas to be able to say to the jury that the facts and circumstances, including utterances, that AB has given evidence for, he pleaded guilty to the lesser circumstance of possession as distinct from him acknowledging his guilt of importation.

(e) The offence to which AB had pleaded guilty had been misstated for some time.

(f) Even if the reference to the wrong offence in re-examining AB had been inadvertent, the Crown must be taken to have known the true position. The Crown had prosecuted AB and the CDPP had written to his lawyers about the Possession Offence as recently as 21 August 2022. In that sense, the misstatement was deliberate.

(g) It was impossible for any direction to cure the effect of what had occurred:[100]

[A]ny direction that your Honour might endeavour to craft is likely to be ineffective and indeed likely to be confusing to a jury at this stage of the trial, bearing in mind that your Honour has been charging for some days now. The directions that your Honour would have to give in these circumstances, which we submit are ineffective and indeed confusing, is that your Honour would have to direct the jury to ignore what has been previously said about the plea of guilty to importing entered by AB.

(h) There were references to AB's plea of guilty to an importation offence in the evidence, in the closing addresses of counsel and in the directions already given to the jury. There was a risk that the jury would not disregard those references despite a direction to that effect.

(i) It would be necessary to direct the jury that the plea of guilty was:[101]

... not the plea that's importation as has been previously put to the jury, but a direction about a new offence which is obviously of possession and to direct the jury that the - what your honour said previously and by way of direction to them about importing, has been now substituted by possession and that that's still not evidence.

That would require directions on the elements of the offence created by s 307.8 of the Criminal Code. Those directions would add to the complexity of the directions already given on AB's plea and would be confusing for the jury to apply.

(j) It would also be necessary to remind the jury that AB had agreed with the proposition that he had been convicted of the Importation Charge. That was a matter that was relevant to his credit and would add to the complexity of the required directions.

1. The Crown opposed the application contending that it was not in the interests of justice for the jury to be discharged. It was submitted that the mistake in re-examining AB was inadvertent; the mistake was not directly relevant to proof of any matter relating to the Importation Charge; and the error could be cured by a direction to the jury. In particular, the mistake did not affect evidence about AB's involvement in the alleged December importation - that is, the error made no difference to his evidence about the acts he said he performed in connection with the alleged importation, the circumstances in which he had acted or the relevance of his actions to the proof of Mr Kaena's guilt (and the guilt of the other accused). The evidence given by AB was entirely consistent with the facts upon which he had been sentenced and Mr Kaena and the other accused had not been forensically disadvantaged by the error.

References to AB's conviction in closing addresses and directions before the error was identified

1. The prosecutor referred to AB's conviction in his closing address:[102]

And so in other words, what I am pointing out to you really is in respect to both of those witnesses [Mr Smith and AB] who were clearly accomplices to the importation, both having pleaded guilty to it, a fact which you completely ignore in assessing whether or not any of the accused here are guilty, is that they were involved, they were accomplices and you need to treat their evidence very carefully because of that, I would submit to you.

Both of them received a discount off their sentence for giving evidence, as it were, or in relation to might be a better way to describe it. They received a discount having given an undertaking to give evidence which they gave before you, each of them in this court.

1. In the course of making a number of submissions about AB's credit, Mr Eyers observed:[103]

On his own admission, of course, he entered an agreement to import a border-controlled drug for money. He eventually and not immediately entered a guilty plea to the charge. He offered assistance to the police specifically in return for a benefit in reducing his sentence, a plea bargain.

And you also heard it was a benefit, in other words a less lengthy sentence, it was a benefit that he could lose if he didn't give evidence in accordance with what he had told the police in his five statements. I put to him the dates of each of his five statements.

So in other words, he had something to gain by assistance, but he also, as he gave evidence, had something to lose because he could be re‑sentenced. And you also heard that he sought to appeal or made inquiries to appeal his sentence, even the reduced sentence that he received.

1. Likewise, Mr Chadwick referred in his closing address to the undertaking given by AB and the effect of a perceived breach of the undertaking:[104]

Is the evidence of AB accurate? And what do we know about him? We know that he's a man who looks after himself. And when he [was] approached by Federal Agent Arthurs in February of 2018, effectively with the invitation to turn on your friends, give evidence for the prosecution, that's what he did. Helping himself to a reduced sentence.

He gave an undertaking which he signed voluntarily. Didn't have to. Could have pleaded guilty if that was what he wanted to do, but he gave an undertaking voluntarily. And he made multiple statements, did what the police asked him to do. Statement after statement.

And keep in mind that the sentence that he received, a sentence of some 21 years with a 14-year minimum, that is, he's not eligible for parole until some 14 years have been served, had been reduced by the sentencing judge from 27 years with an 18-year minimum term. In other words, a discount of some six years on the head sentence, on the maximum term, and four years on the minimum term. But there's a sting in the tail.

1. Mr Chadwick reminded the jury of the terms of the undertaking given by AB[105] and continued:[106]

So what that means is if AB doesn't keep the terms of the undertaking, if he doesn't please the CDPP, then he can be brought back to court, the CDPP can appeal and tell the Court of Appeal that he didn't live up to his promise and the Court of Appeal can re‑sentence.

As was made clear in evidence before you, AB well understands the consequences of not living up to his promise. That is more prison time, a bigger sentence.

...

And I'd suggest to you that it would be clear to you that AB would go out of his way to hang onto that discount like a limpet by lying, by overstating, by twisting the truth and by deceiving you as to the true nature of the activities in 2017 by downgrading his own role and elevating the role of others.

1. Mr Todd, counsel for Mr Rasaubale, also reminded the jury of his cross-examination on statements made in prison calls by AB to his father. It was suggested that AB had admitted in the calls to 'selling' something to the AFP and that he would 'try in any way possible to reduce [his] sentence'. Mr Todd submitted that AB was 'selling a story to the police about Mr Rasaubale to improve his chances of a reduced sentence'.[107]
2. The jury were given a direction about AB's plea of guilty on the day following completion of his evidence. The direction referred to the Importation Offence. The jury were directed that AB's plea of guilty to the Importation Charge, and his conviction for the Importation Offence, proved nothing against the accused - that is, those matters were irrelevant to the question of whether the accused had imported or were involved in the importation of a commercial quantity of a border controlled drug. AB's plea, his undertaking to co-operate and his reduced sentence were only relevant to an assessment of his credit.[108]
3. The jury were given a similar direction as part of the summing up.[109] The direction was given before the error concerning AB's conviction was identified.
4. Mr Kaena's application for the jury to be discharged was heard on 7 November 2022. The application was refused the next day. The jury then received further directions regarding AB's conviction.[110] The effect of those directions was that:

(a) the circumstances in which the error about AB's conviction was made, and subsequently discovered, were irrelevant to any issue that the jury was required to decide;

(b) the error was not material to the evidence and submissions by counsel concerning AB's plea and sentence (including the undertaking he had provided to the AFP) - evidence and submissions that were only relevant to an assessment of the truthfulness and reliability of AB's evidence;

(c) AB's plea and conviction could not be used as evidence that he had committed the Importation Offence or any offence pursuant to an agreement to import a commercial quantity of a border controlled drug or that Mr Harb did an act which was intended to, and did, assist AB to commit any offence;

(d) in assessing the truthfulness and reliability of AB's evidence, the jury could take into account his affirmative answer to the question put in re-examination by counsel for the Crown.

1. Section 116 of the Criminal Procedure Act 2004 (WA) (CPA) provides that:

(1) The powers in this section may be exercised at any time before a jury gives its verdict.

(2) The judge may discharge the jury from giving its verdict on a charge if the judge is satisfied it is in the interests of justice to do so.

(3) If under subsection (2) or another enactment a jury is discharged from giving its verdict in a trial of a charge, the trial is discontinued.

1. The meaning and effect of s 116 CPA was considered by the Court of Appeal in Eric v The State of Western Australia.[111] The court observed that the expression 'in the interests of justice' has a broad connotation.[112] The concept includes not only the interests of the accused but also the public interest in the proper functioning and integrity of the criminal justice system as administered in the trial of an accused before a judge and jury.[113] Consequently, it is in the interests of justice 'for a judge to discharge a jury from giving its verdict on a charge if the judge is satisfied that there is a real and substantial (as distinct from a remote) risk that in the proceedings the accused will not receive a fair trial, according to law, in respect of the charge'.[114] That 'test' reflects the fundamental proposition that it is in the interests of both the accused and the community for an accused to receive a fair trial according to law.
2. The power conferred by s 116(2) of the CPA is discretionary; it is necessary for a judge in deciding an application under the section to consider and balance all relevant factors by reference to the facts and circumstances of the particular case.

1. Counsel for Mr Kaena (and counsel for the other accused) did not state whether they had inspected the disclosed documents that identified the actual offence for which AB had been convicted.[115] Consequently, it was not clear whether they had once known but forgotten the correct offence; alternatively, whether they did not know the offence because they had not inspected the disclosed documents or had read the documents but not noted the actual offence for which AB had been convicted. In any event, I accepted that counsel for the Crown had not intended to mislead the court, the jury, the accused or counsel in re-examining AB given that the Crown had disclosed documents which identified the offence for which he had been convicted. Mr Chadwick accepted that the error made in re-examining AB was inadvertent.
2. Mr Chadwick and Mr Eyers complained that they had made forensic decisions on an erroneous basis when cross-examining AB. However, there was an unresolved issue about the extent to which any mistaken belief they held had been induced by the Crown.
3. I accepted that Mr Chadwick and Mr Eyers mistakenly believed that AB had been convicted of the Importation Offence in preparing for and in cross-examining AB. Obviously, that mistaken belief was not induced by the error made by counsel for the Crown in re-examining AB. The error may have confirmed their belief but it could not, in itself, have impacted on any forensic decisions made in cross-examining AB.
4. Moreover, any mistaken belief about AB's plea might be regarded, at least in part, as self-induced as the Crown had disclosed documents which referred to the actual offence for which he had been convicted. Against that, the undertaking signed by AB referred to the offence of importing a commercial quantity of a border controlled drug and the statement of material facts stated that AB was charged with the same offence as his co-accused - although, each of those documents had been prepared prior to the first indictment being lodged in 2019.
5. It was not necessary to resolve this issue to determine Mr Kaena's application. However, it is necessary to note that the 'fundamental misstatement' about which Mr Kaena complained had occurred after the cross-examination of AB had been completed. Further, it was suggested that the Crown ought to have put counsel for the accused on notice that AB had pleaded guilty to the Possession Offence and not the Importation Charge. However, that suggestion overlooked the fact that the Crown had disclosed documents relating to AB's sentencing which referred to the Possession Offence.
6. The submissions made on behalf of Mr Kaena for discharge of the jury concentrated on two matters: whether Mr Kaena had been prejudiced in the conduct of his defence by the error made by counsel for the Crown and whether the error could be corrected by a direction to the jury without jeopardising Mr Kaena's right to a fair trial. In this context, it was submitted that there were two aspects to the prejudice suffered by Mr Kaena. First, the jury had been misled by the error. Second, the conduct of Mr Kaena's defence had been prejudiced by an assumption made by his counsel that AB had been convicted of the Importation Offence - an assumption that was only revealed to be wrong very late in the trial.
7. I concluded that the error made by counsel for the Crown, and the assumption made by counsel for Mr Kaena, regarding AB's conviction did not prejudice the conduct of Mr Kaena's defence:

(a) AB's plea of guilty and matters relating to his sentencing were only relevant to his credit. He was cross-examined on the letter of assistance provided by the AFP, his undertaking to cooperate and the effect of s 16AC of the Crimes Act. Cross‑examination on those matters was not affected by any misunderstanding about the offence for which AB had been convicted. That was apparent from the cross-examination of AB and the submissions made by counsel in their closing addresses (there were no references to the offence). As the passages reproduced above demonstrate, counsel in closing focussed on matters directly relevant to AB's credit - his undertaking to co-operate, the possible consequences of a breach of the undertaking and the basis upon which his sentence had been reduced. The Importation Offence and the Possession Offence were not materially different in the circumstances alleged by the Crown and there was no perceptible difference in the seriousness of each offence. In my view, the fact that AB was convicted of a 'post importation' offence made no difference to the relevant evidence he could give.

(b) AB gave, and could only give, evidence of his acts and the circumstances in which he acted (for example, his dealings with any of the accused). His evidence could not differ according to whether his conduct was characterised, as a matter of fact and law, as possession of a border controlled drug or as a dealing in connection with the importation of a border controlled drug. Further, his belief and understanding about the nature of the offence he had committed was irrelevant. He could not give evidence to the effect that, to his mind, his conduct amounted to an importation or constituted a 'post-importation' possession offence.

(c) Whether an accused has, by their conduct, imported a substance for the purpose of s 307.1 of the Criminal Code is a mixed question of fact and law. It is a matter for the jury to decide by applying directions on the fault element and on the meaning of the word 'importation' to all relevant objective evidence - in this case, that included AB's evidence about his acts and the circumstances in which he had acted. Whether the accused or any witness thinks that particular conduct constitutes an importation is irrelevant.

(d) The Crown's case against Mr Kaena was that he had dealt with a commercial quantity of a border controlled drug in connection with its importation; that is, his alleged offending conduct occurred after the drug had been brought into Australia. His defence to that case was that he did not know or intend or believe that the substance he dealt with was a border controlled drug rather than that he had engaged in some form of 'post-importation' conduct.

(e) It was part of Mr Kaena's case that the Crown could not exclude as a reasonable possibility that he was engaged in a transport business and he did not know or believe that what was to be collected and transported from Geraldton was a border controlled drug. AB was cross-examined according to that case. I was unable to discern any line of cross-examination which could only have been pursued in the knowledge that AB had pleaded guilty to the Possession Offence.

1. I also concluded that it was possible to give a direction which would correct the error made in re-examining AB without prejudicing the right of the accused to a fair trial. The jury had already been instructed that AB's plea of guilty, and his conviction, did not prove, and could not be used to prove, any fact against the accused. The error could be explained as just that - an error made inadvertently while examining AB. The effect of the further directions given to the jury was summarised earlier.
2. There were three further issues I considered in determining Mr Kaena's application in addition to the above matters.
3. First, the Crown alleged that Mr Lahood and Mr Harb could be found guilty pursuant to s 11.2A of the Criminal Code as parties to the Importation Agreement. The Crown also alleged that Mr Harb could be found guilty under s 11.2 as an accessory. The Crown was required to prove that another person had committed the Importation Offence for each of those pathways - for s 11.2A, that another person, who was a party to the Importation Agreement, committed the offence in accordance with the alleged agreement; for s 11.2, that Mr Harb did an act or acts that, in fact, aided another person to commit the offence.
4. The jury had been directed that it was open to find that AB had committed the Importation Offence. The direction was given prior to when the mistake concerning his plea and conviction had been identified. The jury had also been directed that the Crown could prove AB committed the Importation Offence from his evidence that he had pleaded guilty to the offence, the plea being an admission to the elements of the offence. Obviously, it was not possible for the Crown to prove that AB had committed the Importation Offence by relying on his plea once the actual offence to which he had pleaded guilty had been identified.
5. It might have been possible to prove that AB had, in fact and in law, committed the Importation Offence on the evidence adduced by the Crown in the trial. However, I concluded that it would be unfair to invite the jury to consider whether the evidence established that AB had committed the Importation Offence. The offence was a different offence to that charged by the Crown and to which AB had pleaded guilty. It had not been put to the jury that it was open to find AB had committed the Importation Offence on a basis other than his plea and counsel for the accused had not addressed the possibility in closing.[116] The question of whether the Crown could rely on an allegation that AB had committed the Importation Offence on a basis other than his plea only arose close to the conclusion of the summing up.
6. It might also have been possible to invite the jury to consider an extended joint commission; that is, to consider the application of s 11.2A(1)(b)(ii) and s 11.2A(3) of the Criminal Code. That would have required the jury to find that:

(a) the accused whose case was being considered was a party to the Importation Agreement;

(b) AB was also a party to the agreement;

(c) the Possession Offence was committed in the course of carrying out the agreement; and

(d) the accused was reckless about the commission of the Possession Offence.

1. That was not the Crown's case as opened, presented and closed. Moreover, it would have required the jury to consider new and different issues - principally, whether AB had committed the Possession Offence[117] and if so, whether the accused whose case the jury was considering had been reckless about the risk of the Possession Offence being committed in the course of carrying out the Importation Agreement.[118] The direction would have been further complicated by the fact that the jury had already been directed on the application of s 11.2A(1)(b)(i) and s 11.2A(2) of the Criminal Code.
2. I concluded that it would have been unfair to Mr Lahood and Mr Harb to invite the jury to consider whether the Crown had established their criminal responsibility under s 11.2A on the basis that AB had committed the Possession Offence in carrying out the Importation Agreement. I came to that conclusion having regard to the matters referred to above and the point reached in the trial when the error concerning AB's plea and conviction had been identified.
3. The effect of the rulings made on Mr Kaena's application was that:

(a) The Crown could not rely on an allegation that AB had committed the Importation Offence as part of its case against Mr Lahood and Mr Harb under s 11.2A of the Criminal Code. That, of course, left open the possibility that one or more of the co-accused were parties to the Importation Agreement and had committed the Importation Offence in accordance with the agreement.

(b) The Crown also could not rely on the allegation that AB had committed the Importation Offence in its case against Mr Harb under s 11.2 of the Criminal Code. It was necessary to direct the jury that the Crown could no longer rely on an allegation that Mr Harb had engaged in conduct that aided AB to commit the Importation Offence. As a result, the Crown's case under s 11.2 was confined to an allegation that Mr Harb performed an act that assisted Mr Kaena to commit the offence.

1. A second matter I considered in determining Mr Kaena's application concerned AB's evidence in re-examination that he had pleaded guilty to, and been convicted of, the Importation Offence. That was a matter relevant to his credit, especially as it had been submitted by counsel for some accused that a reason for rejecting AB's evidence was his willingness to agree with and adopt propositions put to him by counsel for the Crown. I considered it was necessary to remind the jury of that submission and to link it to the answers given by AB in re-examination.
2. The third matter considered in determining Mr Kaena's application concerned the submission by Mr Chadwick that it was necessary to direct on the elements of the Possession Offence if the jury were not discharged. I rejected that submission.
3. As has been emphasised, AB's plea, conviction and sentencing were only relevant to an assessment of his credit. Further, the allegations in the trial made by the Crown about his involvement in the alleged December importation were, in substance, the same as the facts on which he had been sentenced. Accordingly, in my view it was not necessary to explain the elements of the offence created by s 307.8 of the Criminal Code. Rather, it was only necessary to:

(a) identify and correct the error made during AB's evidence;

(b) direct the jury that they could take into account AB's evidence in re-examination when assessing his credit;

(c) direct the jury that they could not find that AB had committed the Importation Offence when considering the Crown's case under s 11.2A and s 11.2 of the Criminal Code.

1. I considered that those directions were simple to comprehend and apply once the error concerning AB's plea and conviction had been explained. That view was reinforced by considering the wording of s 307.8 of the Criminal Code. The section states:

(b) the substance is reasonably suspected of having been unlawfully imported; and

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

(d) the quantity possessed is a commercial quantity.

(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 the border controlled drug or border controlled plant was not unlawfully imported.

1. The elements of the offence created by s 307.8 are substantially different to the elements of the Importation Offence. Directions about the section could not have assisted the jury to decide the Crown's case against Mr Kaena under s 307.1 according to law. Further, there was a risk that directions on s 307.8 might confuse the jury about what the Crown was required to prove in its case against Mr Kaena and the effect of AB's plea to the Possession Offence.

Mr Dolman The Crown's decision about Mr Dolman as a witness

1. Reference was made earlier to events concerning Mr Dolman in June/July 2022 causing a delay to the start of the trial. In summary:

(a) Prior to being sentenced, Mr Dolman gave an undertaking to cooperate pursuant to s 16AC of the Crimes Act. [Suppressed - public interest immunity].

(b) [Suppressed - public interest immunity].

(c) [Suppressed - public interest immunity].

(d) [Suppressed - public interest immunity].

(e) [Suppressed - public interest immunity].

(f) [Suppressed - public interest immunity].

(g) [Suppressed - public interest immunity].

(h) [Suppressed - public interest immunity].

(i) [Suppressed - public interest immunity].

(j) [Suppressed - public interest immunity].

(k) [Suppressed - public interest immunity].

(l) On 7 July 2022, the Crown applied to delay the start of the trial so that further inquiries could be made about the information that had been disclosed by WAPOL and the AFP.

(m) On 18 July 2022, the prosecutor advised that the Crown no longer proposed to call Mr Dolman as a witness and intended to discontinue the prosecution of the Attempted Possession Charge against Mr Baxter.

(n) On 20 July 2022, a notice of discontinuance of the Attempted Possession Charge was accepted by the court.

(o) The prosecutor subsequently confirmed that he did not intend to call Mr Dolman to give evidence for the Crown. However, he would call Mr Dolman for the purpose of making him available for cross-examination if requested to do so by counsel for the accused. Mr Bevilacqua[119] advised that he wished to cross-examine Mr Dolman.

(p) The prosecutor called Mr Dolman as a witness in the trial. Mr Bevilacqua was the only counsel to examine Mr Dolman. He was also the only counsel to make submissions to the jury about Mr Dolman's evidence.

1. There was some controversy during the trial over the reason why the prosecutor decided not to call Mr Dolman to give evidence for the Crown.[120] However, in my view it was obvious from the circumstances that Mr Dolman was not called to give evidence for the Crown as the prosecutor no longer regarded him as a witness of truth. That was the view taken, for example, by counsel for Mr Lahood in an email sent on 22 July 2022 to the court and the other parties. The prosecutor confirmed during the trial that this was the reason why he did not intend to call Mr Dolman to give evidence for the Crown.
2. The decision to make Mr Dolman available for cross-examination (rather than leaving him to be called by Mr Cafcakis) was also controversial. Mr Lahood, in particular, complained about the decision.
3. The prosecutor alone has the responsibility of determining whether a person will be called as a witness for the Crown. In Richardson v The Queen,[121] the High Court considered the role and responsibility of a prosecutor and the powers of a trial judge in relation to calling a witness. Their Honours observed:[122]

Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.

What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable. In the context the word 'discretion' signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned.

1. That passage was cited with approval by the High Court in The Queen v Apostilides.[123] The High Court further explained that it would only be in exceptional circumstances that a trial judge would exercise a discretion to call a witness, citing from the judgment of Dawson J in Whitehorn v The Queen[124] to explain why that must be so in an adversarial system of criminal justice. The High Court also observed that a decision by the prosecutor not to call a particular person as a witness would only constitute a ground for setting aside a conviction if it was seen to give rise to a miscarriage of justice when viewed against the conduct of the trial as a whole.[125]
2. Counsel for Mr Lahood recognised the force of the propositions stated by the High Court in Apostilides. He did not make any application nor did he require the court to give any direction about the prosecutor's decision to call Mr Dolman solely for the purpose of making him available for cross-examination. Consequently, it is only necessary to record the circumstances in which Mr Dolman was called as a witness by the prosecutor. However, I would add the following observations.
3. First, it was odd for the prosecutor to call a witness who he had concluded was not a witness of truth. It is to be expected that this would only occur in the most unusual circumstances. I have no doubt that the prosecutor was acutely aware in this instance that the Crown had put forward Mr Dolman as a principal witness in its case against the accused for approximately four years. Mr Dolman had made ten statements and his proposed evidence was the reason why the trial had been aborted in 2021. The circumstances in which the Crown had concluded that Mr Dolman could not be called to give evidence as part of the Crown's case were most unusual. It was plain that the prosecutor was motivated by a concern for fairness to the accused in deciding to make Mr Dolman available for cross-examination.[126]
4. Second, it was a matter for the prosecutor to form a view concerning the truthfulness and reliability of Mr Dolman as a witness. However, the prosecutor's decision could be readily understood having regard to the information provided by WAPOL and the AFP.
5. Third, Mr Lahood's concerns could also be readily understood. In my view, his counsel acted appropriately in raising those concerns.

1. As mentioned earlier, the prosecutor advised at a directions hearing held on 14 September 2021 that the CDPP had learnt it was likely the ACIC had conducted examinations about matters relevant to the Importation Charge and the Attempted Possession Charge. Consequently, it was possible the Commission held material that ought to have been disclosed.
2. The trial listing was vacated as a result of the prosecutor's advice. Subsequently, a certificate was issued under s 25A of the Australian Crime Commission Act 2002 (Cth) (ACC Act). The ACIC produced transcripts of examinations conducted with five examinees in answer to the certificate.
3. The issue to then be determined was whether it was in the interests of justice for the transcripts, or any part of the transcripts, to be made available to the accused and their legal representatives pursuant to s 25A(13) of the ACC Act. I concluded that it was not in the interests of justice for the transcripts to be made available. The reasons for that conclusion were as follows.

1. The ACIC was established by s 7 of the ACC Act. Section 7B established the Board of the ACIC. The functions of the Board include:

(a) determining national criminal intelligence priorities;

(b) providing strategic direction to the ACIC;

(c) authorising special ACIC investigations and operations;

(d) disseminating to law enforcement agencies or any other agency or body of the Commonwealth, a State or a Territory, strategic criminal intelligence assessments provided to the Board by the ACIC.

(a) collecting, correlating, analysing and disseminating criminal information and intelligence;

(b) undertaking special ACIC operations and investigations;

(c) providing reports to the Board on the outcome of those operations and investigations;

(d) providing strategic criminal intelligence assessments and other criminal information and intelligence to the Board.

1. Section 12 of the ACC Act concerns the performance by the ACIC of its operation and investigation functions. The section provides that where the ACIC, in carrying out a special ACIC operation or investigation, obtains evidence of an offence being committed against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence, the CEO must assemble the evidence and give it to a relevant law enforcement agency or any person or authority that is authorised by or under a law of the Commonwealth or the State or Territory to prosecute the offence or the Attorney-General of the Commonwealth or the State. That requirement is subject to any direction given under s 25A(9) and the CEO complying with ss 25B to 25G to the extent that the evidence is examination material or derivative material.
2. Sections 19A and following of the ACC Act confer various powers on examiners, including the power to request information from other agencies, to issue a notice requiring a person to produce a document or thing and to apply for a search warrant. Arrangements may also be made for the Board to obtain information or intelligence.[127]
3. Examinations are governed by div 2, pt II of the ACC Act. Sections 25A(6) and 25A(6A) define in wide terms the matters that may be the subject of an examination. Section 24A expressly provides that an examination may be 'pre-charge' (the examinee has not been charged with a related offence and a charge is not imminent) or 'post-charge' (the examinee has been charged with a related offence or a charge is imminent) - see also, s 25A(6A).
4. An examiner may regulate the conduct of proceedings at an examination as they think fit. An examinee may be represented by a legal practitioner. An examination must be held in private and an examiner may give directions about the persons who may be present during the examination.[128]
5. Section 25A(9) of the ACC Act provides that an examiner may direct that 'examination material' must not be used or disclosed or may only be used by or disclosed to specified persons in specified ways or on specified conditions. An examiner must give a direction under s 29A(9) about examination material if the failure to do so might prejudice a person's safety or would reasonably be expected to prejudice the examinee's fair trial if the examinee has been charged with a related offence or a charge is imminent. The CEO or an examiner can revoke or vary a direction given under s 25A(9) but cannot do so if the variation or revocation might prejudice a person's safety or would reasonably be expected to prejudice the examinee's right to fair trial.[129]
6. Section 4B(1) of the ACC Act defines what is meant by the expression 'examination material'. The expression includes:

(a) any evidence given by a person before an examiner at an examination;

(b) any information that might enable a person who has given evidence before an examiner at an examination to be identified;

(c) the fact that a person has given or may be about to give evidence at an examination.

(a) a person has been charged with an offence before a Federal Court or before a court of a State or Territory; and

(b) a court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;

the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.

(a) the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and

(b) the court, after examining the evidence, is satisfied that the interests of justice so require;

the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.

1. Section 25A(14A) of the ACC Act provides that a person commits an offence if the person uses or discloses examination material and the use or disclosure contravened a direction given under s 25A(9) and was not made under s 25A(12) or 25A(13).
2. There are other limits on the disclosure and use of examination material. Section 25B deals with the use that may be made of examination material to obtain derivative material in certain circumstances. Section 25C concerns disclosure of examination material to a prosecutor of the examinee. Section 25E provides that a court may, on an application or on its own initiative, order that examination material or derivative material be disclosed to the prosecutor of an examinee if the court is satisfied that the disclosure is required in the interests of justice. Disclosure may be ordered despite any relevant direction given under s 25A(9).
3. Section 30(2) of the ACC Act compels an examinee to answer questions required by an examiner to be answered; s 30(6) makes it an offence contravene the requirement. Section 30(5) limits the use that can be made of the answers given at an examination where the examinee claims a privilege against self-incrimination: the answers are not admissible in evidence against the examinee in criminal, penalty or confiscation proceedings.

1. By an application dated 22 November 2021, the Crown applied for orders that:[130]

(a) a certificate be given to an examiner and/or the CEO of the ACIC pursuant to s 25A(12) of the ACC Act in respect of any evidence from ACIC examinations conducted pursuant to five summonses specified in the application;

(b) following the giving of a certificate in accordance with the order, the examiner and/or the CEO make the evidence available to the court by a date determined by the court.

1. The application was supported by an affidavit made by Daniel Johns, a senior federal prosecutor employed by the CDPP. Mr Johns stated that he was a member of the CDPP disclosure team for Operation Ligar. He further stated that:

(a) He was advised by the AGS that the ACIC had in its possession evidence given before an examiner that was relevant to the allegations set out in the statement of material facts for the Importation Charge and the Attempted Possession Charge and that the evidence had been given pursuant to the summonses referred to in the Crown's application.[131]

(b) The examination material associated with the examinations was subject to confidentiality directions made under s 25A(9) of the ACC Act.[132]

(c) The CDPP disclosure team was aware of the identity of the persons examined under the summonses. The CDPP had requested that the ACIC vary the confidentiality directions to permit the CDPP disclosure team to disclose to the accused and the court the identity of the examinees. The ACIC had declined to vary the confidentiality directions to permit that to occur.[133]

1. On 25 November 2021, I granted the Crown's application and issued a certificate pursuant to s 25A(12) of the ACC Act. I subsequently received and reviewed five transcripts of examinations conducted by the ACIC.

1. The Crown adopted a largely neutral position on whether the examination material should be disclosed to the parties. The width of the expression 'in the interests of justice' was emphasised, with counsel for the Crown observing that it was clear that the court was required to have regard to the interests of the accused in determining whether examination material should be disclosed. The interests of justice might favour disclosure where the material was clearly relevant to the issues to be determined by the jury.

1. The ACIC filed two further affidavits: an open affidavit made by Jason Leigh Halls on 23 March 2022 (Mr Halls' Open Affidavit) and a closed affidavit made by Mr Halls on the same date (Mr Halls' Closed Affidavit). Mr Halls is the National Manager Examinations, ACIC. He stated in his open affidavit that he was 'responsible for managing all aspects of the ACIC's examination capability'.[134] Mr Halls has extensive experience in criminal investigations as a police officer and in the management and operations of the ACIC.
2. Mr Halls stated in his open affidavit:

(a) Five persons were examined in response to summonses S0048‑18; S0050-18; S0052-18; S0158-18 and S00218-18. The examinations were conducted in 2018 and were for the purpose of the Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No.3) 2017.[135]

(b) Mr Craig McLennan, Director Regional Legal Services (Western Australia), ACIC sent correspondence to each of the examinees the subject of the summonses enquiring about their views on making the examination evidence from their respective examinations available to the accused. Mr McLennan received correspondence from or spoke with the examinees about that matter in early to mid-December, with a further response from one examinee in February 2022.[136] The examinees' responses were disclosed in Mr Halls' Closed Affidavit. However, Mr Halls stated in his open affidavit that he believed that 'it is evident from the responses provided by the examinees that, should the evidence be made available to the defendants, the chief concern of the examinees is to the safety of themselves and their families'.[137]

1. Mr Hall stated in his closed affidavit that representatives of the ACIC had contacted the examinees to ascertain whether they objected to disclosure of the evidentiary material. Except for one examinee, the examinees objected to disclosure of the material. They expressed concerns about safety if it was known that they had cooperated in some way with law enforcement authorities.
2. Mr Hall stated that the concerns expressed by the examinees were not fanciful and the risk of reprisal was not remote. The ACIC sought non-disclosure of the examination material for that reason.
3. In summary, the ACIC submitted that:

(a) Two jurisdictional facts must be established before a court can disclose examination material to a third party. First, the court must examine the material in the light of the issues which the court understands are likely to arise at the trial; second, the court must be satisfied that the interests of justice require disclosure.

(b) Sections 25A(12) and (13) of the ACC Act provide the only lawful means by which the examination material that is the subject of a confidentiality direction can be released. The legislative scheme created by the ACC Act reflects a recognition by Parliament that examination material is highly sensitive and its confidentiality must be preserved, subject only to lawful authorised use or disclosure. Within that legislative scheme, ss 25A(12) and (13) require consideration of the 'broad and multi-faceted concept' of the interests of justice and place ultimate responsibility for the release of what is otherwise confidential examination material with a judicial officer.

(c) The effect of s 25A(13) is to provide a mechanism for the court to regulate its practice and procedure as it sees fit in determining an application for access to examination material. The confidentiality of the examination material cannot be decisive in an application for disclosure. However, the starting point for determining the application is the fact that the material is confidential.

(d) Although the expression 'the interests of justice' has a broad connotation, the phrase has long been used in statutes and case law and refers not just to the interests of one or all parties to proceedings but to the public interest in the administration of justice. What is in the interests of justice will depend upon the particular facts and circumstances under consideration. In this case, the court is required to consider, among other things, the probative and forensic value of the examination material against the risk of harm to the examinees and their families if the material was released.

1. Section 25A is designed to protect the interest of the person examined, particularly the right to a fair trial, in the context of a broader public interest in the investigation of serious and organised crime. Those interests are promoted by ensuring that, subject to ss 25A(12) and s 25A(13), examinations are not inhibited by a fear of disclosure. Accordingly, s 25A prevents disclosure of the subject matter of an examination up until the point at which a judicial officer decides to release the evidence in the interests of justice.
2. The procedure for determining an application under s 25A is necessarily imperfect: submissions by non-ACIC parties must be framed on incomplete evidence as they do not know the contents of the examination material. Self-evidently, that significantly constrains the ability of non-ACIC parties to assess and make submissions about the forensic value of information obtained by the ACIC.
3. As already noted, I concluded that the interests of justice favoured preserving confidentiality over the examination material the subject of the certificate that had been issued under s 25A(12). Accordingly, it is not possible to give reasons for that conclusion by reference to the contents of the examination material. What can be said is that:

(a) The conclusion was reached after considering a multitude of factors - the legislative objectives of the ACC Act and the scheme of the Act; the objections of the examinees to disclosure and the reasons for their objections; the nature and seriousness of the Importation Charge; the fact that the accused had not made any significant admissions at the Discontinued Trial and were unlikely to do so at the Joint Trial so that there were many issues that were likely to be contested; the Crown's case, as particularised and conducted in the Discontinued Trial; the effect of applications made following the Discontinued Trial; and the contents of the examination material.

(b) The examination material had little evidentiary value. The examinations were not primarily directed to the alleged July or December importations. Those allegations were at the periphery of the subject matter of the examinations. Any statements made by the examinees about the alleged importations were hearsay or speculation. Moreover, any admissible evidence that they could have provided would have related to matters that were already known to the parties or would not have assisted the accused in defending the Importation Charge.

1. It was held in R v Bouhamdan [No 6] that this Court retained inherent jurisdiction to conduct a Basha inquiry. The question whether there should be an inquiry was left open.
2. As previously noted, Mr Dolman had refused to state in his tenth statement all that he apparently knew about some matters referred to in the statement. It had been suggested by counsel for the AFP that a Basha inquiry might be the most appropriate means of eliciting a complete statement about those matters if his claims, or those made by the AFP, for PII where disallowed. However, the need for a Basha inquiry fell away once the prosecutor decided that he did not intend to call Mr Dolman to give evidence as part of the Crown's case. The matters stated in Mr Dolman's tenth statement were unlikely to be the subject of cross-examination by any counsel for the accused.
3. Applications for a Basha inquiry in respect of the evidence proposed to be given by Mr Smith and AB were also made prior to the Discontinued Trial and the Joint Trial. However, those applications rested principally on an assertion that there were inconsistencies between the various statements which AB and Mr Smith had provided to the AFP. I did not consider it was necessary to hold a Basha inquiry for the purpose of exploring those inconsistencies. In my view, a Basha inquiry is not to be convened simply to enable counsel for an accused person to rehearse cross-examination. That is especially in this jurisdiction where committal hearings have been abolished with the intention that pre-trial disclosure will ordinarily be sufficient to ensure that an accused person will receive a fair trial.
4. However, in his final statement dated 21 June 2021,[138] Mr Smith like Mr Dolman, claimed PII over certain matters raised in his statement. Mr Freitag SC was instructed by Mr Smith to advise on and represent him in relation to his claims for PII over parts of his recorded prison calls and his June 2021 statement. The process of reviewing and determining the claims for PII made over Mr Smith's prison calls extended into the Joint Trial. As a result, it was not possible to rule on the claims made by Mr Smith in his June 2021 statement until after the Joint Trial had commenced.
5. I held that Mr Smith's claims for PII should not be allowed: the interest in ensuring that all relevant evidence was disclosed and made available to the accused outweighed any public interest in suppression. The prosecutor and counsel for the accused then proposed that the most expeditious and efficient way of disclosing the evidence that Mr Smith had sought to suppress was to conduct a Basha inquiry. I acceded to that request, partly for the reasons identified by the parties and partly because it enabled me to control the process by which the evidence was disclosed. Mr Smith was represented by Mr Freitag at the hearing.

1. My associate received the following email on the evening of Saturday, 12 November 2022:[139]

Dear Associate

I wish to advise that on Friday during a break one of the jurors was discussing how they got one of their friends to google the five accused. They said that one of the accused stood out. They discussed his family and how they were linked to criminals. They also talked about a house. I raise this because I feel it's going to mislead them. I ask if his Honour on Monday can give directions reminding the jurors anything they hear outside the court is not evidence and should not be used as evidence.

1. The email was sent by someone identifying themselves as 'jury member' and using the email address 'memberjury8@gmail.com'. There were aspects of the email that were curious:

(a) It appeared that a Gmail account had been created specifically for the purpose of sending the email.

(b) There was no juror with the jury number 8 who had been empanelled. Juror number 8 was, however, the main protagonist in the film 'Twelve Angry Men'.

(c) The timing of the communication was unusual - the email was sent at about 9:30 pm on a Saturday night. Moreover, the jury had sent numerous notes during the trial so it was not clear why a juror might feel it was necessary to communicate by email.

(d) The email did not state precisely what had been found on the internet. Rather, the email referred to topics which were said to have been discussed by the juror who allegedly conducted the internet searches. However, the references were sufficient to identify newspaper articles that had appeared in New South Wales and Western Australia concerning the family of Mr Lahood.

(e) The request that the jury merely be given a direction was odd if the email had been sent not by a juror but by someone who wished to disrupt the trial.

1. When the trial resumed on the following Monday, at my direction the jury officer informed the jury that a juror had apparently sent an email over the weekend (the contents of the email were not disclosed). The jury officer asked whoever had sent the email to accompany her into court. However, the jury officer subsequently advised that all jurors denied having sent an email to my associate.
2. The jury were then brought into court and directions given to encourage any juror who had sent the email to identify themselves after the jury had returned to the jury room. Again, there was no response from the jury. Each juror was then separately questioned in open court but not in the presence of other jurors. The contents of the email were not disclosed.
3. Each jury member maintained they had not sent the email and denied that there had been any discussion about internet searches or that anything had been disclosed concerning the accused as a result of out of court searches. The denials were unequivocal; a consistent account was given by jury members about their deliberations.[140]
4. I accepted that all jurors had been truthful in answering my questions.
5. Mr Rasaubale made an application for the jury to be discharged. Mr Cafcakis joined in the application. The Crown and the remaining accused, including in particular Mr Lahood, considered that the trial should continue.
6. Mr Rasaubale submitted that:

(a) The information contained in the email disclosed that the author was familiar with the prosecution and court arrangements. The author knew that there was five accused who were standing trial in this court. Further, the author knew how to contact my associate by email.

(b) The email apparently referred to matters concerning, at least, Mr Lahood that were in the public domain.[141] Information suggesting that Mr Lahood was of bad character had the potential to affect the jury's consideration of Mr Rasaubale's case given that the Crown alleged that Mr Rasaubale had been at meetings with Mr Lahood and Mr Smith in June/July 2017.

(c) The email suggested that more than one juror had been exposed to the material to which it referred.

(d) There were two possible reasons for the jury's responses - either the author of the email was not a member of the jury or the author was a member of the jury but was unwilling to disclose that fact. The second possibility was more plausible - for example, a juror might not wish to reveal their authorship of the email in open court for fear of public retribution from fellow jurors given that the trial had been in progress for approximately 14 weeks at the time the email was sent.

(e) The test to be applied was whether there was a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that a juror or the jury has not or will not discharge their task impartially.

(f) The timing of the email was critical. The jury were 'on verdict' and no further evidence could be presented.

1. Mr Cafcakis relied substantially on the submissions made by Mr Rasaubale. However, Mr Cafcakis made three further short points:

(a) The email was evidence of jury misconduct and apprehended bias.

(b) The court's enquiry with the jurors had not resolved the issue of whether there was an apprehension of bias. The denial by jury members of any knowledge of the email or outside enquiries 'ought be viewed in the context of the obvious desired by the emails author to remain anonymous and the fear judicial questioning may create'.[142]

(c) The jury would speculate about the court's questions and the possible source and content of the email. Consequently, 'there is a risk that a sense of distrust now exists amongst the jurors and possibly a prejudiced view of the accused'.[143]

1. The Crown opposed the application to discharge the jury. It was submitted that the denials by each juror were credible and were consistent with the diligent attitude displayed by the jury to date in the trial. The answers to my questions demonstrated that the jury members understood the requirement to deliberate together and were conscious of their duties. Further, there was no evidence of misconduct that warranted the discharge of a juror or the jury unless it could be established that one or more members of the jury had lied in answer to my questions. The information before the court was insufficient to give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that a juror or the jury had not discharged or would not discharge their task impartially or to establish any real or substantial risk that the accused would not receive a fair trial according to law.
2. I concluded that it was not in the interest of justice to abort the trial and discharge the jury.
3. As Mason CJ and McHugh J explained in Webb v The Queen,[144]the principle behind the reasonable apprehension or suspicion test is that it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.[145] The fact that the focus is on what a fair minded and informed member of the public might apprehend or suspect indicates that it is the court's view of the public's view and not the courts own view which is determinative. Moreover:[146]

If public confidence in administration of justice is to be maintained, the approach that is taken by fair minded and informed members of the public cannot be ignored. Indeed, as Toohey J pointed out in Vakauta in considering whether an allegation of bias on the part of the judge has been made out, the public perception of the judiciary is not a dance by contributing to a fair minded member of the public and knowledge of the law and the judicial process which ordinarily experience suggests is not the case. That does not mean that the trial judge's opinion in findings are irrelevant. The fair minded and informed observer will place great weight on the judge's view of the facts. Indeed, in many cases the fair minded observer would be bound to evaluate the incident in terms of the judge's findings.

1. In this instance, a fair minded and informed member of the public would know that I had found that the jurors were truthful in reporting that they had not sent the email, had not conducted searches on the internet and were not aware of any information which was not the subject of evidence presented in the trial. The fair minded and informed member of the public would readily infer from those findings that the jury were not aware of the contents of the email sent by 'jury member 8'. It was my view that, in those circumstances, the fair minded and informed member of the public would conclude that there was no reasonable basis for an apprehension or suspicion that the jury would not discharge their duties impartially and would act only on evidence presented in the trial and the directions they were given in reaching their verdicts.

1. The Crown did not allege that Mr Harb was involved in the alleged July importation. However, it was submitted that he knew about the alleged importation. The submission was based on:

(a) Statements made by AB about the meeting with Mr Kaena and Mr Harb which the Crown alleged occurred in late November 2017. As noted previously, according to AB, Mr Harb said to Mr Kaena words to the effect, 'the bosses thought too much money was spent during the July 2017 import and didn't want us doing the same on this occasion'; 'the bosses thought too much money was spent on the job in July and didn't want us doing the same'.[147]

(b) Evidence relied on by the Crown to allege that Mr Kairouz was a member of the 'shore party' for the alleged July importation and inferences to be drawn from call charge records for his mobile phone and a mobile phone used by Mr Harb. The Crown alleged that the call charge records established that Mr Kairouz had communicated with Mr Harb around the time of the alleged July importation and it was to be inferred that they had discussed the alleged importation in the calls.

1. There was no objection to the evidence proposed to be given by AB about the meeting with Mr Kaena and Mr Harb. Plainly, what Mr Harb was alleged to have said was an admission against interest. However, Mr Harb objected to evidence of the calls with Mr Kairouz being admitted in support of an inference that he knew about the alleged July importation. It was also submitted that there was insufficient evidence from which it could be inferred that Mr Kairouz had participated in the alleged importation.
2. As to Mr Harb's objection:

(a) I held that there was sufficient evidence from which the jury could infer that Mr Kairouz had been a member of the shore party for the alleged July importation.[148] The evidence relied on to establish Mr Kairouz's involvement was summarised in a submission by the Crown dated 18 July 2022.[149] The evidence primarily consisted of travel and call charge records which tracked Mr Kairouz's movements into, within and out of Western Australia around the time of the alleged July importation.

(b) The evidence of phone calls made between Mr Harb and Mr Kairouz only comprised call charge records maintained by the service provider for Mr Kairouz's phone. Consequently, there was no direct evidence of what had been communicated in the calls. The call charge records merely established the date and the time of the calls and their duration.

(c) It was accepted that Mr Harb knew Mr Kairouz prior to July 2017.

(d) The Crown submitted it could be inferred that Mr Harb and Mr Kairouz had discussed the alleged July importation in the calls made in July 2017 from evidence of the alleged importation and Mr Kairouz's involvement; Mr Harb's relationship with Mr Kairouz; and the timing of the calls made between Mr Harb and Mr Kairouz.

(e) It was, of course, possible that Mr Harb and Mr Kairouz had discussed the alleged July importation during the calls but it is also possible that they had not discussed the matter. In my view, there was insufficient evidence from which a jury could make a positive finding that the alleged importation had been discussed without speculating about what had transpired during the calls.

(f) Accordingly, I held that the Crown could not lead evidence of the calls for the purpose of submitting that Mr Harb and Mr Kairouz had discussed the alleged July importation.

1. AB stated in his first statement to the AFP:[150]

(a) In early November 2017, Mr Kaena, Mr Rasubale and he flew to Perth. They met a person in Perth, who he knew only as 'Michael', and who gave Mr Kaena a Blackberry phone. Mr Kaena retained the blackberry.

(b) On 17 December 2017, Mr Kaena called him and said he had received a message from Mr Harb that they were to go to Perth.

(c) He saw a message on Mr Kaena's Blackberry phone which was from Mr Harb. He could not recall exactly when he had seen the message. The message read '6 Albert Road, Croydon Park. Bring this with u bro'.

(d) Mr Kaena told AB that the message referred to Mr Harb's address. They went to Mr Harb's house and Mr Harb told Mr Kaena that 'the job was on for sure this time and that we had to do what the bosses said'. Mr Harb drove Mr Kaena and AB to the airport and they flew to Perth 'that day'.[151]

1. In his evidence, AB stated that Mr Rasaubale, Mr Kaena and he travelled to Perth on 5 November 2017. They subsequently met a person who AB did not know (he was told by Mr Kaena that the person was 'Michael'; he was told that while he and Mr Kaena were in prison following their arrest).[152] The person gave Mr Rasaubale a new Blackberry phone. Mr Rasaubale gave the phone to Mr Kaena.[153]
2. AB further stated that he saw a message on the Blackberry; he thought he saw the message at his coffee shop. He could not recall the entire message:[154]

I remember number 6 and I think C-y-1 something. It was (indistinct) at the end of it. It was: ''Bring this with you bro.''' Mr Kaena said that the message was Mr Harb's address. The message contained a street number and a suburb. The suburb commenced with the letter 'C'.

1. The Crown alleged that a Blackberry phone was located and seized during a search of the Fiat van on 21 December 2017 and that:

(a) the Blackberry was located in a black suitcase belonging to Mr Kaena;[155]

(b) the Blackberry had been used by Mr Kaena - it was, on the Crown's case, the Blackberry which AB stated had been given to Mr Kaena by Michael;

(c) data downloaded from the Blackberry included three messages from someone using the handle 'Bornin2money':[156]

• message sent on 17 December 2017 at 3:55 pm - '6 albert rd Croydon park. Bring this with u bro'.
• message sent on 21 December 2017 at 5:31 am - 'Hey bro What's happened';
• message sent on 21 December at 7:08 am - 'Bro please answer me!! Are u ok??'.

(a) Mr Harb resided at 4 Albert Road Croydon Park;

(b) intercepted telephone calls captured Mr Harb telling Mr Rasubale on 9 November 2017 to provide Mr Kaena and AB with a Blackberry, consistent with AB's evidence that Mr Kaena was provided with a Blackberry;[157]

(c) other messages indicated that Mr Harb used the letter 'u', the word 'bro' and double punctation marks '!!' and '??' when communicating by text;

(d) Mr Harb had sent another message to Mr Kaena containing an address that was similar to his actual residential address - the message stated '10 Albert Road Croydon Park!!' and was sent on 10 December 2017 from a mobile phone used by Mr Harb.

1. The Crown contended it was open to infer that Mr Harb was the person who had used the 'Bornin2money' handle. It was submitted that text messages sent using the handle were consistent with the Crown's case that Mr Harb was responsible for organising the shore party and were relevant to proof of his knowledge of the alleged December Importation.
2. Mr Harb objected to evidence of the 'Bornin2money' text messages being admitted for the purpose of inviting the jury to infer that he was person who had sent the messages. The objection was foreshadowed prior to commencement of the trial but was not finally determined until after AB had given evidence.
3. However, I made some preliminary observations on the objection immediately prior to AB being called by the prosecutor. In particular, I noted that evidence to the effect that AB was told by Mr Kaena that a message using the 'Bornin2money' handle had been sent by Mr Harb was, prima facie, admissible in the Crown's case against Mr Kaena but inadmissible in the case against Mr Harb.[158]
4. Mr Harb maintained his objection to any submission by the Crown that he was the person who had used the 'Bornin2money' handle following AB's evidence. It was submitted that AB did not, and could not, give direct evidence that the message was sent by Mr Harb and the fact that it contained an address which was said by Mr Kaena to be that of Mr Harb did not prove that the message had been sent by Mr Harb. Further, a Blackberry phone had not been found when Mr Harb's house was searched following his arrest.
5. It was also submitted on behalf of Mr Kaena that the evidence did not establish that he was the person who had used the Blackberry on which the 'Bornin2money' messages had been received. The phone, so it was submitted, was actually located in a bag belonging to AB when it was seized by police (a submission that was disputed by the Crown). Further, AB had been able to give the police the PIN for the phone following his arrest, suggesting that he had used the phone.[159] AB stated that he had learnt the PIN because he thought Mr Kaena would not be able to remember the number.
6. I concluded that the questions whether Mr Harb was the person who had used the 'Bornin2money' handle and whether the Blackberry phone on which texts were received from someone using that handle had been in the possession of, and used by, Mr Kaena or AB were questions for the jury to determine. There was, in my view, sufficient evidence from which the jury could draw the inferences for which the Crown contended.
7. AB did not give evidence that Mr Kaena had said that the message AB claimed to have seen on Mr Kaena's phone had been sent by Mr Harb. He did give evidence that Mr Kaena had said that the message contained Mr Harb's address. He made that statement before counsel for Mr Harb could object.[160] That part of AB's evidence was not subsequently referred to by the prosecutor in his closing address. The message itself was, of course, admissible. It was not in issue that Mr Harb's address at the relevant time was 4 Albert Road, Croydon Park. The message and Mr Harb's address were the facts that constituted the relevant evidence.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] On the Crown's case, AB was to collect and transport the drugs with Mr Rasaubale and Mr Kaena.

[2] R v Bouhamdan [No 5] [2021] WASC 209.

[3] In the Joint Trial, only counsel for Mr Cafcakis required Mr Dolman to be called for the purpose of being cross-examined.

[4] R v Baxter [2020] WASC 73.

[5] R v Baxter [No 2] [2020] WASC 343.

[6] R v Baxter [No 3] [2021] WASC 9.

[7] R v Bouhamdan [No 6] [2021] WASC 293. The 'Other Person Importation' is a reference to an allegation made by Mr Dolman that in mid to late 2017 he and Mr Bouhamdan were planning an importation of a border controlled drug with a third, unidentified, person. The allegation was first expressly made during the Discontinued Trial.

[8] R v Mosely (1992) 28 NSWLR 735.

[9] Bouhamdan v The Queen [ No 7] [2022] WASC 147.

[10] Crown's 'Outline of Submissions in Support of Application to Lead s 31A Evidence', 8 January 2021.

[11] Crown's 'Supplementary Submissions in Support of Application to Lead s 31A Evidence', 19 February 2021.

[12] Crown's initial submissions, par 34.

[13] Crown's initial submissions; par 38.

[14] 'Crown response to trial note and to objections as to evidence', 15 March 2021.

[16] The evidence summarised in this section of the reasons is evidence that was contained in the prosecution brief; that is, evidence that the Crown proposed to present in the Discontinued Trial and/or the Joint Trial rather than the evidence that was actually adduced in those trials.

[17] The respondents objected that the Crown was expanding its application; that the Crown was seeking by the amendments to address deficiencies that had been identified by the respondents; and that the Crown had not explained how it proposed to deploy the additional material referred to in the amended Evidence Annexure - see, for example Mr Baxter's supplementary submissions, 23 January 2021 and the supplementary submissions of Mr Lahood, 25 January 2021. In my view, it was not unfair to the accused to permit the Crown to add to the evidence that it contended was admissible under s 31A. The amendments were relatively minor and merely picked up further material that was part of the prosecution brief and which, if accepted, formed part of a body of evidence from which it could be inferred that the alleged July importation had occurred and that the respondents had been involved in or, in the case of Mr Baxter, knew of the importation.

[18] Obviously, the application concerned the admissibility of evidence the Crown proposed to adduce in the trial of the Importation Charge. Accordingly, the summary in this section is taken from the statements made by Mr Smith to the AFP prior to the trial.

[19] Dated 8 February 2018; PB 0593.

[20] Dated 17 December 2019; PB 0794.

[21] Dated 17 December 2020; PB 0843.

[22] Dated 17 March 2021; PB 0882.

[23] Mr Smith's statement dated 17 March 2021; PB 0882, pars 66 and 72

[24] Dated 2 April 2021; PB 0902.

[25] Dated 2 April 2021; PB 0902.

[26] Statement dated 5 March 2019; PB 0636

[32] Statement dated 15 February 2021; PB 0862 [36].

[33] Statement of Mr Dolman dated 15 February 2018, PB 0083, par 16.

[34] Statement dated 18 December 2019, PB 0793; statement dated 10 March 2021, PB 0880.

[35] Statements of Mr Dolman dated 18 December 2019 and 15 December 2020; PB 0793 and 0842.

[36] Mr Bouhamdan did not make an application in his separate trial.

[37] Crown's initial submissions, pars 35 - 38.

[38] A difficulty with the Crown's initial formulation of its case concerned whether each importation was alleged to have been undertaken pursuant to a single, continuing agreement or whether there were separate agreements to undertake each importation - the separate agreements being made within a broad understanding or arrangement among the accused, or some of them, to participate in importations generally. This ambiguity was apparently one reason why the Crown reformulated its case shortly prior to the Discontinued Trial.

[39] The Crown's initial submissions also referred, of course, to Mr Baxter. I have not referred to the allegations made against him in light of the subsequent discontinuance of the Attempted Possession Charge.

[40] Mr Lahood's submissions, 17 January 2021, pars 36 - 38 and 58; Mr Baxter's submissions 16 January 2021, pars 4 and 16; Mr Bouhamdan's submissions 12 February 2021, par 36.

[41] Mr Bouhamdan's submissions 17 January 2021, pars 17 and 21; Mr Bouhamdan's submissions 12 February 2021; Mr Lahood's submissions 17 January 2021, par 31; Mr Baxter's submissions 16 January 2021, par 11 and following, especially at par 23.

[42] ;Mr Lahood's submissions 17 January 2021, par 32.

[43] Mr Bouhamdan's submissions 12 February 2021, par 42. Mr Lahood's submissions 17 January 2021, par 29; Mr Baxter's submissions 16 January 2021, par 31.

[44] Mr Bouhamdan's submissions 12 February 2021, pars 41 - 42.

[45] Mr Lahood's submissions, 17 January 2021, pars 31 - 35.

[46] Mr Bouhamdan's submissions, 12 February par 40. Mr Bouhamdan and Mr Lahood also made submissions about whether particular parts of the evidence identified in the Evidence Annexure were admissible when considered independently of the Crown's application - that is, objections about the form of the evidence.

[47] Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590.

[48] 'The Queen v Bouhamdan & Others - Trial Notes'.

[49] Masri v R [2015] NSWCCA 243; (2015) 255 A Crim R 1.

[50] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.

[51] Daniels v The State of Western Australia [2012] WASCA 213.

[52] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185] (Mazza JA agreeing). Beech J's statement of the relevant principles was recently adopted in The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [18].

[53] La Bianca v The State of Western Australia [2019] WASCA 105.

[54] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285.

[55] Wark v The State of Western Australia [2020] WASCA 19.

[56] Hill v The State of Western Australia [2019] WASCA 209.

[57] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [20].

[58] The State of Western Australia v Wark [2017] WASC 154 [45].

[59] The State of Western Australia v Edwards [2019] WASC 87 [25].

[60] Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [47] ‑ [49]; Preston v The State of Western Australia [2012] WASCA 64 [45]; DKA v The State of Western Australia [2017] WASCA 44 [30]; RMD v The State of Western Australia [49] ‑ [50].

[61] Harriman v The Queen, 613 (Gaudron J); Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461.

[62] Harriman v The Queen, 613 ‑ 14 (Gaudron J) and see Brennan J at 594; Pfennig v The Queen; Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292.

[63] R v Bauer [2018] HCA 40; (2018) 266 CLR 56.

[65] PIM v The State of Western Australia [118].

[66] See The State of Western Australia v Jackson [2019] WASCA 118 [22].

[67] Norman v R [2012] NSWCCA 230 [33].

[69] Nessim v The Queen [2016] VSCA 46.

[70] Cranney v The Queen [2017] NSWCCA 234; (2017) 325 FLR 173.

[72] Wenbiao Lin v The Queen [2018] VSCA 100.

[73] The package containing the purifiers was delivered to the applicant after Customs officers had replaced the precursor with an inert substance.

[74] Wenbiao Lin v The Queen [73]. The Court cited R v Leask [1999] NSWCCA 33, O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566 and R v Evans [1950] 1 All ER 610 as examples of cases where evidence of discreditable conduct had been properly led not as tendency or coincidence evidence but as evidence directly relevant to proof of a fact in issue or to rebut an anticipated defence.

[75] Ivanoff v The Queen [2015] VSCA 116.

[76] Ivanof v The Queen [14] - [21].

[77] LNV v The State of Western Australia [2019] WASCA 180 [66].

[78] Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206.

[79] Ivanoff v The Queen [2015] VSCA 116.

[81] That was recognised by the Crown in the submissions made following the revision of its case. However, the Crown did not expressly allege that each accused was party to an agreement in the Discontinued Trial. On the other hand, the Crown did make that allegation as part of its case against the accused in the Joint Trial.

[85] At the time that the decision to permit the Crown to lead evidence of the alleged July importation was first made there was also evidence in the statements of Mr Dolman that the drugs were to be imported in the alleged July importation. That evidence had to be ignored in determining admissibility in the trial. However, the evidence proposed to be led by the Crown from Mr Smith provided a sufficient basis for the Crown alleging that a border controlled drug was brought into Australia pursuant to the alleged July importation.

[86] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [62] - [67].

[88] Some recordings were produced in answer to a summons issued to Corrective Services and made available to counsel for the accused before the recordings had been reviewed by the AFP. I did not review those recordings as no claim for PII was made by the AFP.

[91] See s 16AC(3) of the Crimes Act 1914 (Cth).

[92] Ts 5527; answers given to questions asked by Mr Eyers, counsel for Mr Harb.

[94] Letter dated 5 November 2022 from Mr Salter (Gregory J Goold, Barristers and Solicitors) to Mr O'Donnell SC.

[96] Email sent on 6 November 2022 from Ms Moss to Mr Salter.

[97] 5 and 6 November 2022 were Saturday and Sunday. Directions to the jury had commenced but not been completed by that time.

[110] 8 November 2022; ts 8533 and following.

[111] Eric v The State of Western Australia [2019] WASCA 101.

[112] Eric v The State of Western Australia [40].

[113] Eric v The State of Western Australia [41].

[114] Eric v The State of Western Australia [42].

[115] The indictment, sentencing materials and the CDPP's letter dated 21 August 2022.

[116] Consequently, the accused had not been required to consider whether the Crown could or should be permitted to submit that AB had committed a different offence to the Possession Offence.

[117] AB's plea was no more than an admission by him. Further, his conviction was only conclusive in proceedings between him and the Crown; it was not conclusive against the world of the facts on which it was based so that the Crown would be required to prove by evidence that AB committed the Possession Offence: see Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 [35] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[118] The Crown case did not require the jury to consider recklessness. The fault element that the Crown was required to prove beyond a reasonable doubt was knowledge or belief that the substance allegedly imported was a border controlled drug. That was so because of the Crown's allegation that each accused was a party to an agreement (the Importation Agreement) and not withstanding s 307.1(2) of the Criminal Code.

[121] Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116.

[123] The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563 (573).

[124] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657.

[126] The prosecutor did not seek to re-examine Mr Dolman and he made no submission concerning Mr Dolman's evidence in his closing address.

[128] Sections 25A(1), 25A(2) and 25A(3), ACC Act.

[129] Section 25B deals with using examination material to obtain 'derivative material' (defined by s 4 to mean 'any evidence, information, document or thing obtained directly or indirectly from examination material').

[130] The Crown's standing to make an application was recognised by Refshauge J in R v Munro [2013] ACTSC 14. It should be noted that the prosecutor, junior prosecuting counsel and their instructing solicitors did not take part in the application and have no knowledge of the contents of the examination transcripts..

[135] Halls' Open Affidavit, pars 5 and 20.

[136] Halls' Open Affidavit, pars 26, 28 and 29.

[139] The email was sent after I had commenced directing the jury.

[141] Articles concerning Mr Lahood and members of his family had been published in the Sunday Times and the Daily Telegraph and the Daily Mail Australia in February 2020. I made a suppression order as a consequence of publication of those articles.

[142] Email from Timpano Legal, 14 November 2022.

[144] Webb v The Queen (1994) 51 CLR 41.

[147] Statements of AB dated 5 March 2019, PB 0636, par 53 and 22 May 2021, PB 0918 par 18.

[149] 'Crown's supplementary submissions in response to Notice of Objection filed 7 April 2021 - Kairouz evidence'.

[150] 5 March 2019; PB 0636.

[151] Statement of AB dated 5 March 2019; par 44 and par 57 and following.

[155] The Blackberry was given recorded as DT017 in the property seizure record that was exh 323 - see ts 4094.

[156] Exh 1287. AB was cross-examined about this evidence at 5238 - 5242; 5470; 5473 and following; and 5492 - 5493.

[159] See, for example Mr Chadwick's closing address at ts 7750 and following.