R v CAMPILLO VAQUERE

60067/01 IPP JA HULME J HOWIE J

Friday, 13 August 2004 Jose Manuel CAMPILLO VAQUERE v REGINA Judgment

1 IPP JA: I agree with the orders proposed by Hulme J and with his Honour's reasons. 2 HULME J: On 6 November 2000, following a 5 week trial, the abovenamed Appellant was convicted of being knowingly concerned in the importation into Australia of not less than a commercial quantity of cocaine. On 9 February 2001, Judge Keleman sentenced the Appellant to imprisonment for life, commencing on 7 December 1988, such term to included a non-parole period of 24 years. 3 The Appellant has appealed against both his conviction and the sentence imposed. On the appeal against conviction he represented himself. On the appeal against sentence he was represented by Mr Paul Byrne SC and Ms Bashir. A convenient introduction to the issues which arise in the appeal is to quote from Judge Keleman's remarks on sentence. As one of the issues on sentence is parity with co-offenders, it is convenient to quote at somewhat greater length than might otherwise be necessary. The importation in which the prisoner was knowingly concerned occurred on 5 December 1998 when the yacht, the Maeva, captained by Gregory Meggett, entered Coffs Harbour following a lengthy voyage across the Pacific Ocean from Central America, carrying on board a Boston Whaler dinghy which contained, concealed within its fibreglass sandwich hull, 225 brown plastic packages. The contents of one of the packages had apparently dissolved and leaked out… The total weight of the white powder found in the 224 packages was 224.8 kilograms, and a subsequent analysis of representative samples of the powder revealed that it contained 171.2 kilograms of pure cocaine, with an estimated value of 40 to 50 million dollars. The amount of pure cocaine in the dinghy was more than eighty-five times the prescribed commercial quantity for cocaine. At the time of that importation, the quantity of cocaine concealed in the dinghy was the largest importation of cocaine into Australia that had been detected. The Prisoner was arrested on 7 December 1998 at a boat ramp at Coffs Harbour, together with co-offenders Beatriz Gonzales-Bates Suarez and Gregory Meggett, shortly after the Prisoner towed the dinghy from the water and up the boat ramp… At about the same time another co-offender, Robert Flavel, was arrested as he attempted to leave Coffs Harbour from the airport. Meggett, following his arrest, pleaded guilty to importing the cocaine into Australia, and was duly sentenced. He gave evidence against Gonzales and Flavel in a joint trial… (and) also gave evidence in the Prisoner's trial… A person known as Julian Del Prado, a resident of Spain, was the principal organiser and financier of the importation… Flavel's role was to arrange for the Boston Whaler containing the cocaine to be loaded on the Maeva prior to it navigating the Panama Canal from the Caribbean, to supervise and assist Meggett during the Maeva's voyage to Australia, and to ensure the safe arrival of the Maeva in Australia and the delivery of its cargo of cocaine concealed in the dinghy to Gonzales and the Prisoner… The role of Gonzales was to take delivery in Australia of the cocaine concealed in the dinghy and supervise the early stages of its transportation and storage in Australia. She was also involved at an early stage in the venture of the importation. The Maeva originally belonged to Gonzales and her husband, and was berthed in Cuba where Gonzales and her husband ran a para-sailing business called "Sky-Rider". In a transaction, the nature of which there is insufficient evidence to determine, the Maeva was transferred from Gonzales and her husband to Del Prado by way of sale or as agent for sale. When Meggett… flew… to Cuba in early January 1998 to pick up the Maeva, he was met by Gonzales at the airport, and stayed with her and her husband until she and her husband helped Meggett sail the Maeva from Cuba… in the second week of February 1998. A week later, Gonzales and her husband left Meggett in Bonnaire, but not before they provided him with funds to pay for berthing expenses. I am satisfied… that by the time Meggett arrived in Cuba, Gonzales was fully aware that the Maeva was going to be used by Del Prado to import into Australia an illicit cargo of cocaine… The Prisoner's knowing participation in the venture of the importation commenced in early 1998. Del Prado… arrived in Sydney on 18 January 1998. Eleven days later, on 29 January 1998 the Prisoner arrived in Sydney from Spain where he had been living since 1993… The Prisoner had met Gonzales and Del Prado while he was in Spain. On 9 February 1998 at Taree, Del Prado and the Prisoner inspected residential premises with an attached garage which the Prisoner rented that day in his name, paying rent in advance with cash. On the following day… the Prisoner, accompanied by Del Prado, purchased… a 12ft boat trailer and a trolley that permitted the trailer to be moved by hand. The trailer was registered in the Prisoner's name. The Prisoner paid for the trailer, trolley and registration with cash. The Boston Whaler… was an 11ft dinghy. Del Prado left Australia on 12 February 1998… … in late February 1998 the Prisoner purchased furniture and began furnishing the residential premises at Taree, and on 12 March 1998 he rented two storage sheds at Taree. The Prisoner then travelled regularly to Taree during the course of 1998 in order to pay the rent for the residential premises and storage sheds which he paid personally with cash. During this period the Prisoner was living in Adelaide. The cash used to pay for these various expenses had been provided to the Prisoner by Del Prado. I am satisfied… that Del Prado, in order to succeed with the planned importation, required a representative here in Australia to do whatever was necessary, in advance of the actual importation, to establish facilities for the early stages of the transport and storage of the cocaine following its planned arrival. I am satisfied… that the Prisoner was that representative, and that it was clearly necessary for the success of the importation to set up these facilities at Taree and establish the regular presence of the Prisoner there, well in advance of the arrival of the cocaine, in order to minimise any suspicion and detection when the Boston Whaler dinghy was to be transported to and stored at Taree by the Prisoner and Gonzales." … The Maeva did not leave Balboa until late August or early September 1998… … Gonzales and Flavel arrived in Sydney separately from overseas to play their respective roles …. Gonzales arrived in Sydney on 16 November 1998 from Spain, with an airline ticket that was paid for by the prisoner on the instructions of Del Prado. She was picked up from the airport by the Prisoner. …a few days later the prisoner accompanied Gonzales on a trip to Lord Howe Island in order to meet the Maeva and ensure there were no problems with it, or its illicit cargo. On 4 December 1998, the Prisoner and Gonzales left Coffs Harbour in the prisoner's Range Rover towing the trailer. … Prior to their departure, the Prisoner provided Flavel with the sum of $20,000 which they had discussed earlier (to pay the crew and Meggett). These funds were part of the money Del Prado had entrusted to the prisoner to pay for expenses associated with the importation. … I am satisfied beyond reasonable doubt, from all the evidence, that while Gonzales was the main conduit for communicating with Del Prado following her arrival in Australia in November 1998, and from that time she had a supervisory role in relation to the early stages of the transportation and storage of the cocaine in Australia, the Prisoner was clearly not her subordinate in the organisation involved in the importation. It is apparent from the recorded conversations that she was clearly dependent upon the Prisoner in order to carry out her supervisory role, and it was the Prisoner who was in fact responsible for the actual arrangements to transport and store the cocaine following its arrival and, in that regard, she largely deferred to his judgment in respect of these matters and other matters associated with the importation, including precautions that should be taken to avoid them being compromised or connected with the illicit importation. In addition, the Prisoner and Gonzales jointly implemented and managed the strategy to ensure that Flavel stayed at Coffs Harbour to unload and arrange for the delivery of the dinghy to them, and it was the Prisoner whom Del Prado selected to confront Flavel to carry out his agreed role in this part of the venture of the importation… In addition to the Prisoner's role in relation to the early stages of the transport and storage of the cocaine in Australia, I am also satisfied beyond reasonable doubt that the Prisoner was responsible for the payment of the various expenses associated with the Australian end of the importation, and these payments were made with money that had been entrusted to him for that purpose by Del Prado… I am satisfied beyond reasonable doubt that throughout the course of the Prisoner's participation in the venture of the importation, from when he arrived in Australia on 29 January 1998 to his arrest on 7 December 1998, the Prisoner was Del Prado's agent or representative in Australia, whose principal role was to organise the early stages of the transport and storage of the cocaine in Australia, and to pay for the expenses associated with the Australian end of the venture. … I am also satisfied beyond reasonable doubt that the role the Prisoner played in the importation was solely based on greed, that is commercial profit, and had nothing to do with his intimate relationship with Gonzales. While it is always possible to envisage a worse case, having regard to the magnitude of the quantity of cocaine involved in the importation, the level at which the Prisoner operated within the organisation responsible for that importation, the substantial degree and duration of his involvement and the grave consequences to the community had the importation not been detected, this case falls within the worst category of cases. The substantial degree of involvement by the Prisoner, in a crime of such gravity and heinousness, requires, despite the Prisoner's subjective circumstances, the imposition of the maximum penalty which is imprisonment for life.

The Conviction Appeal 4 The written submissions of the Appellant commenced with the following summary:- 1. Admissibility of evidence given by the crown witness Mr Greggory Meggett, whether failure to disclose all previous contradictory statements constitute a miscarriage. 2. Admissibility of evidence given by the crown witness Mr Greggory Meggettt, whether the prejudicial nature of the evidence outweighs the probative value of the evidence. 3. Admissibility of evidence given by the crown witness Mr Greggory Meggett, whether Mr Greggory Meggett's guilty plea illegally induced. 4. Admissibility of evidence given by the crown witness Mr Greggory Meggett, whether Mr Greggory Meggett's guilty plea admissible as argued in R v Brown (1989) 17 NSWLR 472, and as argued by Roden J in R v Smith (Arthur) (NSWCCA, 25/5/79). 5. New evidence discrediting the crowns hypothesis concerning alleged illicit substances being allegedly contained in a tender. 6. Whether tampering of trial transcripts by trial judge constitute a miscarriage of justice. 7. Whether failure of prosecution to disclose all documents to the court constitute a miscarriage of justice. 8. Admissibility of transcripts, whether incomplete transcripts admissible. 9. Whether the actions of the trial Judge constitute a bias in favour of the prosecution. 10. Whether the failure of the prosecution to establish knowledge constitutes a miscarriage. 5 Page 2 was an index. The 35 or so pages which followed were somewhat discursive and, as is not uncommon in the case of submissions of persons not legally qualified, to some degree reflected a lack of understanding of many of the principles and statutory provisions to which reference was made. It is unnecessary that I set out these submissions in detail. I have considered them all and will seek to deal with the substance of the points made. 6 The Appellant also filed submissions in reply containing detailed responses to many of the paragraphs of the Crown's submissions. Again, I do not regard it as necessary to necessary to deal with these seriatim or indeed with all of them. Many repeat the substance of submissions made in chief. Some deal with matters in the Crown submissions which I do not regard as relevant to the determination of the appeal. Some refer to inconsistencies in the evidence, inconsistencies which may have been relevant before the jury but which are not of such a nature or degree as to make them significant in an appeal. All have been considered and to the extent appropriate are reflected in what follows.

Appellant's Submissions pages 3 -7 7 Points sought to be made in these pages were:- (i) The trial judge routinely inserted questions and answers during the daily correction of the transcript, such insertions favouring the prosecution (ii) His Honour had doubts about the prosecution case since he said that "the only way the Crown could establish his knowingly concern is circumstantially" (iii) Thus the knowledge which the Crown alleged was hypothetical and not actual as was required. (iv) Prosecuting Counsel are obliged to act fairly "and always with the objective of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of seeking to ensure that the accused's trial is a fair one". (v) Defence counsel must adequately defend an accused and a trial judge has an onus to make the defence (counsel) aware of his obligations. (vi) The Crown Prosecutor had deliberately misled Judge Keleman by saying that an earlier trial of the Appellant, Flavel and Gonzales had been aborted as a result of counsel for the Appellant asking certain questions of Federal Agent Corrigan when the real reason was because of a deliberate untruth by that person apparent in the following passages:- "Steirn SC Q. Is your information that Mr Del Prado has involved himself in other illegal importations apart from this one? A. Yes, that's correct. Q In Australia? A That's correct. Q Other countries overseas? A So far as I'm aware, yes. Q How many times has Mr Del Prado involved himself in such importations? A I think the total count at the moment is nine actual and one attempted." And on the following day:- "Steirn SC Q. But are you telling this court and listen carefully, Mr Meggett told you that in relation to each of those trips the dinghies contained illegal drugs? A. No he didn't Q. No he didn't? A. And in reply to that first question of yesterday I understood the question to be what information. Now I did not take that as a fact. Information to me is an amalgamation of many sources and so I answered that on the basis that I have now. That may not be of beyond belief but it is information available to me and I answered the question in that manner." 8 These matters were not developed in any significant way in these pages of the Submissions and they may be dealt with briefly. 9 So far as item (i) is concerned, the transcript makes it apparent that his Honour gave meticulous attention to its terms and on most days there were numerous corrections. The vast majority were simply the change from one word to another or the insertion of one or a few words. None seem to me to be of any significance so far as the substance of the trial is concerned and none strike me as supporting the proposition that the judge favoured the prosecution. The one specific instance given by the Appellant of the insertion of a complete question and answer is the only instance where that occurred. There is nothing to indicate that counsel for the Appellant was not then present or that he raised any objection to the change. 10 The passage cited in (ii) does not carry the implication suggested and even if it did, it would not matter. The jury was the tribunal whose decision on the Appellant's guilt was important. In fact, in the passage from which the words quoted were taken, his Honour was simply seeking confirmation that the Crown case on the topic of "knowing(ly) concern" was circumstantial. 11 Nor does the passage cited in (ii) carry the implication asserted in paragraph (iii). 12 The proposition in (iv) may be accepted. Those in (v) are not correct although it may be accepted that a trial must be fair. 13 So far as paragraph (vi) is concerned, the appeal books contained extracts from the earlier trial. Those extracts show counsel for the Appellant asking questions of Federal Agent Corrigan, including the first 4 quoted by the Appellant and counsel for Flavel and Gonzales asking for separate trials of their clients because of the evidence given in response to those questions. The full reports of the judgments given on those applications were not before this Court but included in the extracts to which I have referred, are recorded remarks of Judge Holt indicating that the reason he had aborted the trial of the Appellant and Messrs Flavel and Gonzales was that group of questions. 14 Furthermore, the second of the passages quoted from the Appellant's submissions does not demonstrate that anything in the first was false. The questioner's inclusion of the word "information" in the first question in the first passage, meant that the witness was entitled to answer on that basis.

Appellant's Submissions pages 8-11 15 Attention was drawn to a passage from the Crown Prosecutor's opening to the jury:- "I should indicate in relation to Mr Meggett that he does not give evidence of any significance in this trial against Mr Campillo in the sense that he doesn't claim to have met Mr Campillo before 7 December 1998 when the Boston Whaler was actually retrieved." 16 It was submitted that this passage demonstrated that Mr Meggett's evidence was tendency evidence at best and sections 95, 97, 101, 135 and 137 of the Evidence Act should have applied. 17 A consideration of Mr Meggett's evidence shows that it was not tendency evidence. It's significance was that, if accepted, it showed the importation of what was established to be cocaine, and delays in the voyage of the "Maeva", delays which helped to put into context some of the Appellant's activities. 18 The Appellant also submitted that some of Mr Meggett's evidence had been shown, by the evidence of another witness in an earlier trial, to be a fabrication. That conclusion, of course depends on a number of factors, not the least of which is whether the evidence of that other witness was accurate and whether there was some explanation, e.g. honest mistake, to explain any inconsistency. Furthermore, this Court sits to see whether there was error in the trial under appeal. Except in unusual circumstances - and there do not seem to be any here - error is not shown by the mere existence of evidence not called in the particular trial. Any evidence in an earlier trial was presumably available to be called in the trial of the Appellant if that evidence, or the differences between it and the evidence in the Appellant's trial was significant. It is not a good ground of appeal to merely show that 2 different witnesses gave different or inconsistent evidence in 2 different trials.

Appellant's Submissions pages 12-24 19 The next group of complaints was that the Crown had failed to refer to all of the statements Mr Meggett had earlier made inconsistent with his eventual plea, that Mr Meggett had given evidence at one time indicating that he had been threatened and coerced to plead guilty and that, in the circumstances, his plea should not have been accepted. Reference was made to, inter alia, the Barristers' Rules, The Solicitors' Rules, the Prosecution Guidelines published by the Director of Public Prosecutions, Kenny's Outlines of Criminal Law, a number of authorities, s165 of the Evidence Act and a number of sections of the Crimes Act dealing with the giving of false evidence. Attention was directed to various passages in Mr Meggett's evidence before Judge Keleman, evidence he had given in the committal proceedings and evidence which had been given in the earlier trial of Flavel and Gonzales-Betes. 20 It was submitted that, in these circumstances, for the Prosecution to call Mr Meggett was an abuse of process and the prejudicial value of his evidence outweighed any probative value it might have had. 21 The first point which may be made about these submissions is that it is not unusual for persons called by the Crown and who are said to have been co-offenders with an accused, to have made statements inconsistent with the evidence they ultimately give, it being left to the jury to determine to what extent their evidence, particularly that inculpatory of an accused, should be accepted. The inconsistency commonly provides fertile grounds for cross-examination, but except in degree, the inconsistency is not inherently different from what occurs whenever any witness, known to have at sometime made a statement inconsistent with the evidence expected to be given, is called. The Crown is not restricted to calling witnesses whose credibility is beyond reproach. 22 Secondly, the obligation of fairness to which the Crown is subject does not oblige it, in the case of a witness who has given inconsistent versions, to place all of those versions before the jury. The Crown must, pursuant to its obligation of full disclosure to the defence, make the defence aware of any different accounts of which the defence may be ignorant, but so long as that occurs, there is no unfairness in the Crown not going further. A fortiori is this so if the Crown has reason to believe that the inconsistent versions are false. 23 The information placed before this Court which, it was suggested, indicated that Mr Meggett had been threatened and coerced to plead guilty was as follows. It was said, and I accept, that during Mr Meggett's cross-examination during the proceedings against Flavel and Gonzales, the following questions and answers occurred:- Q. There was some sort of off the record conversation was there where the police explained to you, my term, the facts of life as to what position you were in? A. Yes there were. And later, "Q. The questions say, 'Do you understand what we mean by inducement?' Do you see that A. Yes. Q. Your answer was? A. I think, yeah, like you guys are going to beat me up to say the truth,' Q. And the question was, 'Well we didn't coerce you', and you said 'No, you guys have been', and you were cut off, and Kelsey said, 'Promised you anything in any way' and you said, 'No you've been very, very good, thank you', is that true? A. Yes. 24 I have recorded this exactly as it appears in the Appellant's submissions. It seems clear that what purports to be the penultimate answer included both an answer and a question. But be that as it may, the statement "I think, yeah, like you guys are going to beat me up to say the truth" was, it seems to me, a statement by the witness as to his understanding of what an inducement was, and not a statement that in fact there had been any actual or threatened beating. 25 Furthermore, the questions contained within the last 2 questions and answers seem clearly to have come from some other document - one would infer a record of a conversation between police or Federal Agents and Mr Meggett. Counsel cross-examining was obviously aware of the document and, conscious of the mention of beating up, would have been alive to any possibility of that having occurred. It is a legitimate inference that if there was any further reference to the topic the Appellant would have drawn it to our attention and the fact he did not suggests strongly that there was none and this also is an indication that my interpretation of the passage "I think, yeah, like you guys are going to beat me up to say the truth" is correct. If there was any reasonable possibility that Mr Meggett's evidence in favour of the Crown was the result of an actual or threatened beating, it is inconceivable that it would not have been fully explored in, not just one, but both of the trials. Accordingly I conclude that there is no substance in the suggestion that Mr Meggett had been threatened and coerced. (I may add that, although this is not determinative of the matter, it would seem likely from a reference to counsel in the report of R v Meggett (1999) 107 A Crim R 257, that Mr Meggett's plea was after he had received legal advice.) 26 The Appellant also relied in this connection on the fact that the Crown Prosecutor during the trial the subject of this appeal elicited from Mr Meggett the fact that he had received a discount from the sentence which would otherwise have been imposed and that the sentence imposed on him was liable to be increased. It was important to the jury's assessment of Mr Meggett's credibility that such evidence be adduced. It provides no basis for the suggestion that threats to Mr Meggett were being reinforced. Indeed, it was probably obligatory for the Crown to adduce this evidence - see R v Beatriz Gonzales-Betes [2001] NSWCCA 226 at [47]. 27 Reliance was also placed on evidence given in the previous trial by a Mr Crooks which tended to indicate that Mr Meggett was wrong in saying that the Maeva had been taken away for a few days during which the Boston Whaler that was brought to Australia was substituted for one previously on the Maeva. I have dealt with a similar submission when considering pages 8-11 of the Submissions and need not repeat what I said there. I may add however that this evidence in some form or other must have been available to be adduced by the very experienced Queen's Counsel who appeared for the Appellant in the trial under appeal had counsel wished to do so. It should be recorded also that the Crown submitted that when Mr Crooks' evidence is considered in totality, it does not contradict Mr Meggett. However, in light of the conclusion I have reached on other grounds, I need not pursue this aspect. 28 Attention was drawn also to some evidence where Mr Meggett was asked whether he believed the Boston Whaler contained cocaine and answered "Yes. I hadn't known for sure, but I did believe it." This was said to be inconsistent with earlier statements he had made and insufficient to establish knowledge on his part. I have dealt with the topic of inconsistencies in Mr Meggett's evidence. In any event, the relevant issue concerning knowledge in the Appellant's trial was whether he knew, not whether Mr Meggett did. 29 It was also contended in the Submissions that at the very least the jury should have been cautioned in accordance with s165 of the Evidence Act in relation to some of Mr Meggett's evidence. Although his evidence clearly indicated that he was involved in the importation and thus, according to the Crown case, an accomplice, no warning was given. 30 However the possibility of a warning was raised between the commencement of counsels' addresses and the commencement of the summing up. The transcript at that stage (1/11/00 page 8) makes clear that the Appellant's counsel never suggested that Mr Meggett's evidence wasn't truthful and records counsel saying expressly that he was not asking for an accomplice warning. Nor was any other warning sought. 31 No doubt the explanation lies in the fact that, as his Honour told the jury:- "I should stress, although it is no doubt apparent to you, that the evidence of the facts and circumstances upon which the Crown seeks to rely to prove that the accused was knowingly concerned in the importation are not disputed in any significant way. However, what is very much in dispute are the inferences which the Crown seeks you to draw from those facts and circumstances." 32 In that statement his Honour echoed a statement of Mr Stratton QC recorded at page 448 of the transcript as follows:- "Mr Stratton advised his Honour that there was no dispute about the following facts: that Mr Meggett did all the things he said he did; that the police officers made all the observations they said they made; and the things that were said in the telephone calls. However, what will be in dispute is the inference to be drawn, ie, that the accused was knowingly concerned in the importation, because that is not the only rational inference." 33 In these circumstances, no warning under s165 or concerning Mr Meggett's evidence was required. 34 The Appellant concluded this part of his submissions by saying that:- "One must question why a witness like Mr Meggett was used in this trial considering that the witness Mr Meggett admitted to having no knowledge. It is clear that that truth was perverted by this witness, therefore one can only assume that the prosecution's tactic was not one of obtaining the truth but rather one of convincing a jury to think that the accused had a tendency to think in a particular manner due to the crown witness' evidence on the stand. This truly is an abuse committed deliberately by the prosecution with the malicious intent of securing a conviction at all costs. The evidence from this witness should never have been allowed in accordance with s97, 98, 101, 135 137 of the Evidence Act. His prejudicial value clearly outweighed any probative value that he might have had. Serious indictable offences were committee in court by this witness those that come to mind are as follows: …(Reference is then made to ss327, 328 and 330 of the Crimes Act (NSW). Yet all concerned (especially those with the appropriate knowledge) turned a blind eye to all. One must question the lack of honesty, morality and ethics within the legal fraternity in allowing such blatant abuses to go unhindered. At the very least the jury should have been warned, an application of s165 of the Evidence Act of 1995 should have been directed, or at the most the perpetrators should have been charged with the corresponding charges for the crimes they committed. If the judiciary is not willing to apply its civic duty and charge those who blatantly perverted justice then the defendant certainly will. 35 At the risk of having my "honesty, morality and ethics" questioned, I should say that, having considered the detail of the Appellant's complaints, I see no substance whatsoever in these propositions. 36 In his submissions in reply the Appellant asserted that there must have been evidence before the judge who sentenced Mr Meggett of Mr Meggetts' guilt, including, one may infer, evidence of knowledge that the Boston Whaler contained cocaine and, on this basis, it appears that the Crown has not disclosed all the information in its possession. The premise in this proposition is wrong. A guilty plea itself is an admission of all the ingredients essential to the offence involved: No further evidence is required.

Appellant's Submissions pages 25-27 37 Recordings of telephone and other conversations formed a significant part of the Crown case. Some of the conversations had been in English and some in Spanish. Though these are not all his words, the Appellant's criticism of the admission of the recordings seems to be as follows:- (i) Some recordings were in part inaudible or unintelligible. These should not have been admitted as they can be interpreted in any way shape or form. (ii) The AFP (Australian Federal Police) had stated that the "recordings contained no criminality". (iii) As the transcripts were admitted as an aide-memoire, the Crown should not have read the transcripts to the jury. It appears that this reading was done to impose the prosecutor's version or interpretation of the transcripts. The effect was to give undue credibility to incomplete transcripts. 38 If the whole of a sound recording were inaudible or unintelligible it would be inadmissible as irrelevant because it could not rationally affect the assessment of the probability of the existence of a fact in issue - see Evidence Act, s55. However, if part of the recording is not inaudible or unintelligible and its contents otherwise relevant, this cannot be said and contents can be proved by the tender of the document - for that is what it is under the expanded definition of that term in the dictionary in the Evidence Act - see s48. The Court of course has power under a number of sections of the Evidence Act to exclude evidence, particularly in criminal proceedings. However, if the evidence is otherwise admissible such powers to exclude should not be used except for proper reasons. 39 There is no more reason to think that a jury would interpret or misinterpret an unintelligible or inaudible part of a tape recording than there is to think that they will take into account irrelevant considerations extraneous to the courtroom. Thus, unless there is some positive reason to exclude inaudible or unintelligible portions of a tape recording or the like which is otherwise admissible, there is no error in allowing such a document, including the inaudible or unintelligible portions into evidence. Accordingly the first complaint in this group fails. 40 Where or in what form the Australian Federal Police are said to have stated that the "recordings contained no criminality" was not disclosed in the Appellant's submissions. Given that the Crown wished to tender them, counsel for the Appellant did not suggest they were irrelevant, the judge does not seem to have thought so, I am not persuaded that they provide no evidence of the Appellant's criminality. 41 The Appellant contends that portions of the transcripts were ruled inadmissible by Judge Holt (who presided over the earlier trial). In its submissions the Crown asserts that it did not seek, in the trial before Judge Keleman, to have those portions admitted. The evidence before this Court does not enable the Court to form a view on that but it does seem from the transcript that what was ultimately tendered was the subject of agreement between counsel - seeT397. 42 In this regard it may be freely acknowledged that, considered in isolation, at least very many of the tapes do not contain any overt indications of criminality. They do not contain references to "cocaine" or "drugs" or "importation". However, the Crown case was circumstantial. It sought to prove the Appellant's guilt by showing many aspects of the activities of the Appellant and others said to be involved and asking that from the totality of these the Appellant's guilt be inferred as the only reasonable inference. In such a case, it is nothing to the point that much of the evidence, considered in isolation, is not incriminatory. This complaint also does not argue in favour of the success of the appeal. 43 Prior to the recordings and transcripts of them being admitted, Judge Keleman told the jury that the transcripts were being tendered solely by way of assistance and that, in the case of tapes recording conversations in English, the evidence of the conversations was what was recorded on the tapes. The jury were also informed that in the case of conversations which had occurred in Spanish, the evidence of them would be given by an interpreter, although again there would be transcripts to assist the jury. In the case of the conversations in Spanish, that was not what occurred. 44 Federal Agent Corrigan gave evidence that warrants had been issued, that conversations had occurred and that these had been recorded, that only parts of the conversations were relevant and, by inference, editing had occurred, and that some of the conversations were in Spanish and these had been interpreted. A folder of transcripts was then tendered. It became Exhibit S but its contents were not immediately made available to the jury. An interpreter was called and gave evidence that some of the transcripts in Exhibit S were of conversations in Spanish and accurately reflected those conversations. 45 While the interpreter was in the witness box the Crown Prosecutor informed the Court that the first conversation dealt with had been in Spanish. There was then made available to the jury copies of 4 pages of transcript of this conversation and the Crown Prosecutor also read aloud those pages, presumably from the exhibit or another copy of it. Then copies of another 2 pages, apparently of another conversation were given to the jury and again read aloud. This procedure was repeated for some 7 conversations. 46 There seem to have been 644 pages of transcript in total although the number tendered seems to have been substantially fewer, presumably because irrelevant pages had been removed. Thus the first conversation was represented by pages 1, 10, 11 and 12, the second by pages 14 and 17 and the third by pages 20 to 23. There remained however some hundreds of pages of transcript. 47 The eighth conversation seems to have been in English. A tape recording, which became Exhibit T1, of this was admitted, a copy of the transcript provided to the jury and the tape played. This procedure was repeated for the 9th and 10th conversations. The 11th to 14th conversations seem to have been in Spanish and the procedure described above for Spanish conversations followed. 48 On the following morning, his Honour again addressed the jury on the use to which the transcripts could be put. He informed them that the transcripts of the conversation in English could only be used to assist in understanding what was on the tape recordings but the transcripts of the Spanish conversation would be the only evidence of what was being said in Spanish and could be used "as to what was being said in the Spanish language". 49 The balance of the conversations were dealt with by one or other of the methods I have described although there was also some evidence from the interpreter wherein she corrected or added to transcripts of translated conversations. The interpreter was in the witness box while all the transcript of the Spanish conversations were read. There was no objection to the procedure which I have described. 50 One may accept that instead of the Crown Prosecutor, the interpreter could have been allowed to read the transcript of the translations she had carried out. Alternatively the judge or his Associate could have been given the task. However, that does not make what was done inappropriate. There was no suggestion by counsel for the Accused that in his reading of the transcripts the Crown Prosecutor distorted the text of what was recorded. Alternatively the jury could just have been left to read the transcripts for themselves but that is not a practice generally followed when there are large number of pages involved. There was no error in what occurred and, given the jury had copies of the transcripts, no basis for the conclusion "that this reading was done to impose the prosecutor's version or interpretation of the transcripts (or that) the effect was to give undue credibility to incomplete transcripts".

Appellant's Submissions page 28 51 On this page of his submissions, the Appellant referred to a deal of statistics including the load capacity of the Boston Whaler, the suggested weight of the cocaine, an estimated range of weights for a 5 to 8 horsepower outboard motor and fuel, an assumed weight for the occupant of the Whaler, and for the size of the swell in Coffs Harbour at the time the Boston Whaler, complete with cocaine, was said to have traversed it. The weight of cocaine was also mentioned. The main point sought to be made in these references seems to have been that the vessel could not have crossed Coffs Harbour as alleged by the Crown, at least not carrying cocaine of the weight suggested, and that all of this meant that any reasonable mind must have had doubt (about the Appellant's guilt). 52 In the page to the submissions to which I have just referred, it was also asserted that a Boston Whaler had gone missing from a yacht at Forster (in circumstances not disclosed) and that there was evidence given in the committal proceedings that the Whaler from the Maeva had for some time been abandoned in an area accessible to others. It is a sufficient answer to these propositions to say that the mere fact that there was evidence given in the committal proceedings arguing against a verdict of guilty provides no ground for setting aside a conviction in a trial where that evidence was omitted. Presumably its omission was the deliberate result of decisions by those conducting the trial. Furthermore, there was clear evidence in the trial upon which the jury were entitled to act that it was the Boston Whaler from the Maeva which contained the drugs. 53 The Crown contented itself in it's response to the submissions on page 28 with the statement "The Appellant has not referred to any relevant or admissible evidence in this section of the written submissions". 54 That proposition is not correct although there does seem to be a deal of assumption or assertion in the details the Appellant sought to rely upon. 55 However, a major problem with the Appellant's contention arises from the following. In his evidence in chief he agreed that Mr Meggett drove the Boston Whaler across Coffs Harbour and also with the question, "Now, we all know now, of course, that that dinghy that you picked up was full of cocaine. That's right, isn't it?" Crown witnesses had also given evidence of these events and that the dinghy was found to contain about 224 kg of impure cocaine and this evidence had not been challenged. This ground of complaint fails.

Appellant's Submissions pages 29-30 56 In this part of the Appellant's submissions, a deal of criticism is made of the conduct of the trial judge. He was said to have been biased in favour of the prosecution. More particular complaints were:- (i) Alterations were made to the trial transcript. (ii) These altered texts were forwarded to the jury, thereby unduly influencing them. (iii) In the presence of the jury Judge Keleman attempted repeatedly to interpret audio recordings of transcripts. (iv) His Honour failed to give adequate directions concerning inconsistent statements of Mr Meggett. (v) There was no stenographer for the first half hour of the trial (vi) a statement of his Honour that he accepted all of the circumstantial evidence and if he did not the Crown would not have a case. (vii) His Honour informed the defence that the in house recording system was not working due to some unknown malfunction. This situation was contrasted with the terms of s70(4) and (5) of the Justices Act 1902. 57 It was also said that State legislation was passed to enable the Appellant's trial to be held in the District Court and that this was of doubtful legality. The legislation was not identified. Trials of the nature of that in which the Appellant was involved have been heard in the District Court for many years and I am not aware of any basis for this complaint. 58 I have dealt with the topic of alterations or corrections to the transcript above and there is no need to repeat what I have said. There was nothing in the complaints of alterations to the transcript to indicate any bias on the part of Judge Keleman. Although it is unusual for transcripts to be provided to a jury during a trial as occurred in this case, there is not ground for the suggestion that they were unduly influenced thereby or by the alterations which had been made to them. 59 The playing of the audio recordings and reading of transcripts commenced at page 410 of the transcript and concluded at about page 513, although between these pages there are recorded a number of matters which did not occur in the presence of the jury. The first observations of Judge Keleman which could conceivably come within the complaint that he "attempted repeatedly to interpret audio recordings of transcripts" occurred at T431 where his Honour sought to clarify an issue as to the time at which conversation or recording occurred. Between about pages 475 and 490 his Honour intervened on about 9 occasions, most of which were to ask questions which seem to me proper attempts at clarification. There were a few interventions by his Honour thereafter but none which provide any cause for complaint. Furthermore, defence counsel made none. 60 So far as the complaint I have numbered (iv) is concerned, given the issues at trial raised by counsel for the Appellant, there was no occasion for his Honour to say more than he did concerning Mr Meggett's evidence. 61 I do not know the basis for the Appellant's complaint that there was no stenographer for the first half hour of the trial. The transcript, in the usual brief way, shows the arraignment of the Appellant and the empanelling of the jury. There then appears what seems to be a verbatim account of an introductory address of the trial judge informing the jury of the general form of a trial, of the Crown Prosecutor's opening, one by counsel for the Appellant and the commencement of Mr Meggett's evidence. I see no basis for any thought that if there was no stenographer for a period, that fact had any relevant impact on the trial. 62 The Appellant does not identify the passage referred to in the paragraph I have numbered (vi) and I am not aware of any to the effect suggested. Possibly the Appellant had in mind that to which reference was made under the heading "Appellant's Submissions, pages 3-7" above although that passage does not fully answer the description given in this section of the Appellant's submissions. As has been said, the jury was the tribunal that had to decide whether it accepted the circumstantial evidence and, if so, how much and any statement by his Honour to the effect suggested would not provide grounds for a successful appeal. 63 Again, the Appellant did not identify the statement by his Honour that the "in house recording system was not working" and I am not aware of any such statement. Furthermore, although I have not examined every page of the transcript, I have read a very substantial number of them and that review does not show any problems with the preparation of the transcript, other than, perhaps, an unusually high number of corrections. I have referred to the transcript of the opening stages of the trial. Counsels' closing addresses were not recorded. That was common in 2000 when the Appellant's trial was held. The summing up seems to be reproduced in full. 64 It may be that if there was a statement by his Honour to the effect suggested, his Honour was referring to the recording equipment used to play the video or sound tapes. Be that as it may, I am satisfied that the recording of the trial was sufficient to enable one to be confident that any defects did not invalidate the trial. Sections 70(4) and (5) of the Justices Act 1902, to which reference was made by the Appellant, of course apply to proceedings in a Local Court and have no application to the District Court.

Appellant's Submissions pages 30-31 65 The Appellant asserted that the alleged cocaine was destroyed by order of the Minister, without the consent of any judicial officer and before an independent analysis by an independent expert could be made and that in all of the circumstantial evidence, there was no "mention or notion of knowledge either directly or indirectly of any illicit narcotic being imported". This, it was submitted, was reinforced by an answer during the committal proceedings given by former Federal Agent Corrigan who, in answer to a question concerning the contents of the Boston Whaler, said that "We didn't know because the Defendant didn't know". Although not enunciated, it may be inferred that the Appellant was submitting that the evidence did not justify his conviction. 66 In what sense Federal Agent Corrigan was using the expression "know" in the answer upon which reliance is placed, is not apparent. Upon the reasonable assumption that he had not seen the drugs placed in the Boston Whaler and had not analysed them prior to their importation, he did not "know" what was there even if he was, upon the basis of information supplied and inference, virtually certain. So far as the Appellant is concerned, his Honour correctly directed the jury that to convict, they had to be satisfied that the Appellant "knew that the goods that were being brought into Australia included or were likely to include narcotic goods" and knew "that the dinghy was being imported into Australia and it was going to contain or did contain or was likely to contain narcotic goods" - see R v Vergara [2001] NSWCCA 24. 67 The jury were obviously so satisfied and there was a wealth of evidence that entitled them to reach this conclusion. It was not disputed that the evidence established that the principal organiser of the importation was a Mr Del Prado. In company with Mr Del Prado the Appellant had inspected accommodation in Taree. He rented that accommodation in early 1998 in his name and continued paying rent on it up until his arrest. He also acquired storage facilities there adapted for storage of the Boston whaler. In company with Mr Del Prado he inspected and then had acquired a boat trailer and was present to take delivery of the Boston Whaler. In the rented premises were found tools, including a circular saw, appropriate for dismantling the boat so as to give access to the drugs which were ultimately found to be concealed within it. 68 As is apparent from what has been said, the Appellant had been the subject of a deal of surveillance, both visual and electronic. It was shown that he had exhibited an extraordinary interest in the movements of the Maeva prior to its arrival in Australia. He had also participated in conversations wherein he was heard to say "We have to be careful with telephones …" and "Telephones are very dangerous" and talked about hiding the dinghy. In another conversation he expressed concern that if the crew of the Maeva left on the day after they arrived, this would attract suspicion. There were numerous other conversations the terms of which indicated the Appellant's involvement with something clandestine involving the Maeva or its crew and with others who were in contact with Del Prado. On the day before the dinghy was picked up, the Appellant himself spoke to Mr Del Prado. 69 As had been indicated, the Appellant himself gave evidence and provided explanations for much of the evidence upon which the Crown relied. The jury were entitled to disbelieve him. 70 Nor, so far as the result of the appeal is concerned, is there any substance in the suggestion that the alleged cocaine was destroyed by order of the Minister, without the consent of any judicial officer and before an independent analysis by an independent expert could be made. Such destruction does not preclude the conviction of someone in the position of the Appellant. In any event there was no challenge to the evidence of analysis of the material seized and, indeed, the analyst was not even required to be called, her certificate being tendered through another witness.

Submissions page 33 71 This page headed "Closing Argument" commences with the remark that:- "It is a sad day when the judiciary systematically fails to give defendants their basic rights to a fair trial. The judiciary is supposedly an independent entity, but by my own personal experience with the judiciary that notion of a fair unbiased entity is a fallacy, especially when the judiciary is far more concerned in appeasing political and policing entities rather than fulfilling its primary functions." 72 There follows a complaint about the blind acceptance of circumstantial evidence, "evidence whose prejudicial nature far outweighs its probative value". No material was provided in support of the proposition that the judiciary was concerned in appeasing political and policing entities. 73 As I have sought to indicate above, the Appellant's conviction was because the jury accepted that the circumstantial evidence in the case established his guilt. They were well entitled to do so.

The Sentence Appeal 74 The application for leave to appeal against sentence was based primarily on suggested error in his Honour's finding that the case fell within the worst category of cases and on issues of parity. 75 I see no error in his Honour's finding. Although the Appellant was found not to be the principal - a role filled by Mr Del Prado - the Appellant's role and participation was high. That, his activities, and the fact that his participation was for simple monetary gain, and the enormous quantity involved well justified his Honour's conclusion that the Appellant's offending fell within the worst case category. Although weight is not the only factor, it is not without significance that, at the time of the Appellant's offending, Parliament had prescribed a penalty of about 16½ years (25 years less about one-third pursuant to s16G of the Crimes Act) imprisonment for a worst case offending involving (merely) 2 kilograms. As Judge Keleman pointed out, the quantity with which the Appellant was involved was 85 times that much 76 In support of the submission that the Appellant was not in a worst case category, Mr Byrne SC, eschewing reference to first principles or the general body of sentences in this area, sought to make a comparison between the Appellant and one particular offender Mandagai, the result of whose appeal to this Court is to be found in R v Mandagai [2002] NSWCCA 57. Mandagai was the captain of a ship in which had been brought to Australia some 252kg (pure weight) of heroin. His role was described as "pivotal" but his criminality was regarded as falling short of a worst case. This Court quashed a sentence of life imprisonment including a non-parole period of 25 years and substituted a sentence of 27 years with a non-parole period of 19 years. 77 This Court has said on many occasions that it is not a proper approach to sentencing to seek to compare a sentence under challenge directly with that imposed on another offender (who is not a co-offender) simply because the 2 offenders may have similar characteristics and may have committed similar crimes - see e.g. Morgan (1993) 70 A Crim R 368 at 371; R v Lawson (1997) 142 FLR 323 at 324, per Hunt CJ at CL; R v Speechley [2002] NSWCCA 300 at [39]; R v Merritt [2004] NSWCCA 19 at [62]; R v Trevenna [2004] NSWCCA 43 at [50, 89 and 99]. It is equally, or more, inappropriate to seek to compare fact findings or characterisations under challenge with those made in one or a few of the thousands of past cases and, upon the basis that there are similarities between the cases, urge that the same findings of fact or characterisation are required. Invariably of course, differences between the case where the sentence is being challenged and the one or few in the past are ignored. 78 The approaches referred to in the immediately preceding paragraph are what senior counsel for the Appellant seeks that the Court do here. In conformity with the decisions to which I have referred, I decline to carry out the examination required by the submission beyond observing that the Appellant's role was appreciably more responsible than that of Mandagai. Mandagai's role may have been "pivotal", but the same can be said of every courier who brings prohibited drugs into Australia: But for the carriage of the drugs, there would be no importation. 79 I am satisfied by reference to first principles - See e.g. Veen v R (No 2) [1987-1988] 164 CLR 465 at 478, R v Peel [1971] 1 NSWLR 247 at 262, that the Appellant's offending fell into a "worst case" category. In this regard I agree with Greg James J and the other members of the Court in R v Flavel [2001] NSWCCA 227 at [46] that the fact an offender may be only at a mid-management level does not require that a sentence be lower than the maximum. Insofar as the majority of this Court in R v Stanbouli [2003] NSWCCA 355 at [3] and [179] (without reference to R v Flavel) may have indicated the contrary, I prefer to follow what was said in R v Flavel. I am also satisfied that, having regard to my conclusion that the Appellant's offending brought him into a "worst case" category, the sentence imposed was not excessive. I am further satisfied that, by reference to the body of cases in this area, the sentence was not excessive. (It is not necessary for present purposes to detail these cases. Many were referred to by me in R v Spiteri [1999] NSWCCA 3. Others were reviewed in R v Stanbouli. See also R v Bartle [2003] NSWCCA 329.) 80 Before I leave entirely the decision in R v Mandagai, I should observe that the report of that case indicates that Judge Keleman was wrong in referring to the importation with which the Appellant was involved as being, at the time, the largest importation of cocaine into Australia that had been detected. Although it was not argued, I have considered whether this error should affect the result of this appeal. In my view it should not. 81 In support of the parity argument, the Court's attention was drawn to the sentences imposed on the co-offenders Gonzales-Betes and Flavel, although the argument centred around the former. In R v Beatriz Gonzales-Betes [2001] NSWCCA 226 an appeal against a sentence of imprisonment for life with a non-parole period of 22 years was dismissed. In R v Flavel [2001] NSWCCA 227 an appeal against a sentence of imprisonment for life with a non-parole period of 25 years was dismissed. 82 Each of those offenders had been regarded by Judge Ainslie-Wallace who sentenced them as a "mid-level executive", a description which this Court found not to be erroneous. In this Court, Greg-James J, with whom Dowd and Barr JJ agreed said of the former that she "involved herself early, and (her) activities seem to be such as to be essential to the operation of this small group of criminals bringing into Australia a very large quantity" of the drug. With similar concurrence, his Honour accepted that Flavel "supervised the importation and reported to Del Prado from time to time". 83 Judge Keleman concluded that the Appellant "was a middle level executive or organiser … at a level of culpability equivalent to that of Gonzales, although their roles were clearly different" and that there was little to distinguish between their subjective circumstances, apart from the Appellant's prior criminal history which should be taken into account. (In 1992 the Appellant had received a suspended sentence of 9 months imprisonment and been ordered to perform community service in respect of "offences of producing cannabis, involving 33 plants, and possessing cannabis for sale involving a quantity of dry cannabis weighing 84 grams". Judge Keleman recorded that, based on the remarks on sentence relevant to those offences, both offences were committed for the purposes of sale and involved sophisticated equipment and careful planning.) 84 Both aspects of the findings I have quoted at the beginning of the immediately preceding paragraph were the subject of challenge. 85 It was pointed out that, as Judge Keleman found in a passage quoted near the commencement of these Reasons that Gonzales-Betes had been involved earlier than the Appellant and in the initiation stages of the scheme while the Maeva was still in the Atlantic Ocean and prior to it going to Central America where the cocaine and the Boston Whaler containing it were obtained. Reliance was placed also on the fact that after Gonzales-Betes arrived in Australia she, rather than the Appellant, was the main conduit for communications with Del Prado. As his Honour found, "Gonzales was responsible for ensuring from that time that Del Prado was kept informed of the progress of the importation, and that his instructions were being followed." 86 However this second stage of Gonzales-Betes involvement, it seems, did not occur until she arrived in Australia in mid-November 1998. In the intervening period the Appellant had been active. Having met Gonzales-Betes in Spain during a 5 years absence from Australia she, towards the end of that period introduced Mr Del Prado to the Appellant, according to the latter, as someone who was an investor. Mr Del Prado arrived in Australia on 18 January 1998, and the Appellant returned 11 days later. In early February the men met in Sydney and the two then embarked on the purchase of the boat trailer and renting of residential premises to which, in quoting from Judge Keleman's remarks on sentence, I have referred. After Del Prado's departure the Appellant carried out the other tasks to which reference has been made. 87 After Gonzales-Betes arrived in Sydney she and the Appellant, as has been said, went to Lord Howe Island. In fact, the Maeva did not call at Lord Howe Island before it reached Coffs Harbour. The Appellant and Gonzales returned from Lord Howe Island on 25 November 1998. 88 Between then and the arrest of the Appellant and Gonzales, they spent much time in each other's company, waiting for the arrival of the Maeva, and involved in discussing the venture. Each had significant input into these discussions and, as Judge Keleman's findings make clear, significant responsibility in the course of the events that followed. 89 It was submitted on behalf of the Appellant that his actions were entirely under the instruction of others and that Judge Keleman was in error in concluding that the Appellant "was clearly not her (Gonzales-Betes') subordinate". I do not agree. I am unpersuaded by the evidence that the first of these propositions is made out. I am satisfied that the events and actions of the Appellant to which his Honour referred entitled his Honour to find that the Appellant was not subordinate to Gonzales-Betes. 90 Nor do I see any significant error in the further finding "that the Prisoner was a middle level executive or organiser within the international organisation involved in the importation of the cocaine into Australia, at a level of culpability equivalent to that of Gonzales, although their roles were clearly different". That said, as was made clear in R v Flavel at [46] - see also R v Beatriz Gonzales-Betes at [69] - more important than any concise description or label is what an offender does. I see no difference in the involvement of the Appellant on the one hand and Gonzales-Betes on the other, significant enough to require that the Appellant be treated more leniently than she was. The fact that her sentence was less than his arises from the fact that Gonzales-Betes was entitled to some credit for the fact that she had no prior criminal record. The Appellant was not so entitled. 91

In my view the appropriate orders are:- (i) Dismiss the appeal against conviction.

(iii) Dismiss the appeal against sentence. 92 HOWIE J: I agree with Hulme J.

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