//
[2016] ACTSC 333
General information, not legal advice.
Supreme Court of the ACT
2016-11-18
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Andrew John Connors is not guilty of trafficking in a large commercial quantity of a controlled drug other than cannabis, namely methylamphetamine.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Trial - trial by judge alone - verdict - trafficking in a large commercial quantity of a controlled drug other than cannabis, namely methylamphetamine - elements of the offence - joint commission - covert surveillance - recorded conversations - beyond reasonable doubt - consideration - not guilty - Criminal Code 2002 (ACT)
EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - Judicial notice - evaluation of evidence - acceptance of witness evidence - reliable witness - evidence of acts in furtherance of the joint criminal enterprise - Evidence Act 2011 (ACT)
EVIDENCE - GENERAL PRINCIPLES - Circumstantial evidence - surveillance material - admissions - relevance - hearsay - direct evidence - evidence by closed circuit television - privilege in relation to self-incrimination in other proceedings - evaluation of evidence - probative value - accumulation of evidence
Criminal Procedure Act 1986 (NSW), s 33
Courts (Remote Participation) Act 2010 (NZ), s 12
Evidence Act 1995 (NSW)
Supreme Court Act 1933 (ACT), ss 68B, 68C
Criminal Code 2002 (ACT), ss 18, 20(2), 20(3), 20(4), 22, 24, 45A, 48(2)(c), 600, 601(1), 602, 603(1), 603(2), 604,
Criminal Code Regulation 2005 (ACT), ss 5(1), Sch 1, Pt 1.1, Item 44
Dictionary to the Evidence Act
Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87
Aslett v The Queen [2006] NSWCCA 49
Astill (1992) 63 A Crim R 148
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Davies v Director of Public Prosecutions [1954] AC 378
Elomar v The Queen [2014] NSWCCA 303; [2015] 316 ALR 206
Fleming v The Queen (1998) 197 CLR 250
Fletcher v The Queen [2015] VSCA 146
Galvin v The Queen [2006] NSWCCA 66; 161 A Crim R 449
Jenkins v The Queen [2004] HCA 57; (2004) 79 ALJR 252
Kanaan v The Queen [2006] NSWCCA 109
Kirsch v Dolman [2001] VSC 234; (2001) 123 A Crim R 331
Mifsud v Campbell (1991) 21 NSWLR 725
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Perish v The Queen [2016] NSWCCA 89
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
P v R (No 2) [2016] NSWCCA 44
Roach v The Queen [2011] HCA 12; 242 CLR 610
Ross v The Queen [2012] NSWCCA 207
R v Baden-Clay [2016] HCA 35; 334 ALR 234
R v Chai [2002] NSWCCA 512
R v Chamberlain (No 2) [1984] HCA 7; (1984) 153 CLR 521
R v Diane [2003] EWCA Civ 1044; [2010] 2 Cr App R 1
R v DM [2010] ACTSC 137
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Himbert [2015] ACTSC 6
R v Macraild (Unreported, New South Wales Criminal Court of Appeal, Sully, Dunford and Simpson JJ, 18 December 1997
R v Masters (1992) 26 NSWLR 450
R v Massey [2000] ACTSC 107
R v Massey (2016) 309 FLR 299
R v Mulcahy [2010] ACTSC 98
R v Roux [2015] ACTSC 307
R v Smellie (1920) 14 Cr App R 128
R v Smith [2000] NSWCCA 202
R v Yates [2002] NSWCCA 520
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Sio v The Queen [2016] HCA 32; 90 ALJR 963
Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965
Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1
Velkoski v The Queen [2014] VSCA 121
W C v The Queen [2015] NSWCCA 52
Judicial Commission of New South Wales, Criminal Trials Bench Book (Judicial Commission of New South Wales, 2016)
J D Heydon, Cross on Evidence (LexisNexis Butterworths, 1996) (at service 178)
S J Odgers SC, Uniform Evidence Law (Law Book Co, 12th ed, 2016)
1. On 27 August 2015, Andrew John Connors, the accused, was charged in the ACT Magistrates Court with trafficking in a large commercial quantity of methylamphetamine and remanded in custody.
2. After a number of adjournments, he was, on 6 October 2015, committed to this Court for trial on that charge. An indictment was filed on 3 December 2015.
3. On 15 December 2015, Mr Connors signed an election under s 68B of the Supreme Court Act 1933 (ACT) to be tried by a judge alone.
4. The trial commenced on 20 June 2016 and Mr Connors was arraigned on the one count on the indictment, namely:
THAT between about 1 September 2014 and 24 October 2014 at Canberra in the Australian Capital Territory ANDREW CONNORS trafficked in a large commercial quantity of a controlled drug other than cannabis, namely methylamphetamine.
5. He pleaded not guilty to that charge and, as a result, the trial began.
6. Under s 68C of the Supreme Court Act a judge who conducts a trial of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as the verdict of a jury.
7. The judgment of the Court in such a case must include the principles of law that I, as the judge, apply and the findings of fact on which I rely. Though on appeal from a trial conducted under procedure regulated by s 33 of the Criminal Procedure Act 1986 (NSW) (a similar provision to s 68C of the Supreme Court Act), the High Court in Fleming v The Queen (1998) 197 CLR 250 at 263; [28] stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and which justifies the process and, ultimately, the verdict that is reached. In R v Massey [2000] ACTSC 107, Einfeld J held at [44]-[47] that the obligations stated by the High Court in that decision set out the obligations of a judge conducting a trial by judge alone under s 68C of the Supreme Court Act. These principles have been applied regularly in this Court since then. See, for example, R v Roux [2015] ACTSC 307 at [9]- [21].
8. That section also requires me, as the trial judge when considering my verdict, to take into account any warning, direction or comment that any Territory law requires to be given or made to a jury in such proceedings.
9. There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.
10. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw any relevant inferences from them, as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence, view it clinically and dispassionately, and not let emotion enter into the decision-making process. Both the Crown and Mr Connors are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must thus deliver my verdict according to the evidence.
11. The Crown bears the onus of proving the guilt of Mr Connors at all times. Mr Connors does not have to prove he did not commit the offence charged.
12. If Mr Connors does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the Crown to disprove it or to show that it is irrelevant, otherwise the Crown will not have proved its case
13. The standard of proof of the Crown case is proof beyond reasonable doubt, and Mr Connors cannot be found guilty of the offence, unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.
14. Mr Connors is presumed by law to be innocent of the offence with which he has been charged unless and until the evidence I accept satisfies me that each and every element of the offence charged has been proved beyond reasonable doubt. Mr Connors then loses the presumption of innocence and I must find him guilty.
15. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, then he remains presumed innocent and I must find a verdict of not guilty.
16. If I am satisfied that there may be an explanation consistent with the innocence of Mr Connors of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find Mr Connors not guilty.
17. I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives, and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence, or accept or reject it all.
18. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my commonsense, experience and wisdom in assessing the evidence.
19. The terms of the indictment have been set out above (at [4]). The offence is contrary to s 603(1) of the Criminal Code 2002 (ACT). That section provides that:
[a] person commits an offence if the person traffics in a large commercial quantity of a controlled drug.
20. The term "trafficking" is defined in s 602 of the Criminal Code, which provides:
602 Meaning of trafficking
For this chapter, a person traffics in a controlled drug if the person -
(a) sells the drug; or
(b) prepares the drug for supply -
(i) with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(c) transports the drug -
(i) with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(d) guards or conceals the drug with the intention of -
(i) selling any of it; or
(ii) helping someone else to sell any of it; or
(e) possesses the drug with the intention of selling any of it.
21. A controlled drug is defined in s 600 of the Criminal Code to mean "a substance prescribed by regulation as a controlled drug, but does not include a growing plant". The Criminal Code Regulation 2005 (ACT) provides in s 5(1) that a substance mentioned in Sch 1 to the Regulation is a prescribed drug. Amongst the substance mentioned in Pt 1.1 to Sch 1 in item 44 is methylamphetamine.
22. Section 601(1) of the Criminal Code defines a large commercial quantity of a controlled drug to be:
a quantity of the drug that is not less than the quantity prescribed by regulation as a large commercial quantity of the drug.
23. Item 44 of Pt 1.1 of Sch 1 of the Criminal Code Regulation specifies 6 kilograms as the large commercial quantity for methylamphetamine. Under s 603(2) of the Criminal Code, absolute liability (see s 24 of the Criminal Code) applies to the circumstance that the quantity of a drug that is the subject of an offence of trafficking is a large commercial quantity.
24. The Crown's allegation is that Mr Connors agreed with Alexander Hagan to traffic in methylamphetamine. Under s 45A of the Criminal Code a person commits an offence if he or she enters into an agreement and the offence is committed in accordance with the agreement. The section relevantly provides:
45A Joint commission
(1) A person is taken to have committed an offence if -
(a) the person and at least 1 other person enter into an agreement to commit an offence; and
(b) either -
(i) an offence is committed in accordance with the agreement; or
(ii) an offence is committed in the course of carrying out the agreement.
(2) For subsection (1) (b) (i), an offence is committed in accordance with an agreement if -
(a) the conduct of 1 or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct - the result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance - the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.
....
(4) A person commits an offence because of this section only if the person and at least 1 other party to the agreement intend that an offence will be committed under the agreement.
(5) An agreement -
(a) may consist of a non-verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in.
...
(7) A person may be found guilty of an offence because of this section even if -
(a) another party to the agreement is not prosecuted or found guilty; or
(b) the person was not present when any of the conduct making up the physical elements of the joint offence was engaged in.
(8) Any special liability provisions that apply to the joint offence apply also for the purposes of deciding whether a person commits the offence because of the operation of this section.
25. There are, accordingly, various physical elements to be proved; these being physical elements of conduct (the entry into the agreement, the actions taken to implement the agreement) and elements of circumstance (that the drug is methylamphetamine).
26. Under s 22 of the Criminal Code, unless another fault element is specified for an offence, the fault element for a physical element of conduct is intention and the fault element for a physical element of a circumstance is recklessness. The offence with which Mr Connors has been charged does not specify any fault elements so the elements as specified under s 22 apply.
27. Section 18 of the Criminal Code provides that a person has an intention in relation to conduct if the person means to engage in the conduct.
28. Section 20(2), (3) and (4) of the Criminal Code provides in respect of recklessness in relation to a circumstance as follows:
20 Recklessness
...
(2) A person is reckless in relation to a circumstance if -
(a) the person is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is a question of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
29. Finally, so far as proof of intention is concerned, s 604 of the Criminal Code provides:
604 Trafficking offence - presumption if trafficable quantity possessed etc
(1) If, in a prosecution for an offence against section 603, it is proved that the defendant -
(a) prepared a trafficable quantity of a controlled drug for supply; or
(b) transported a trafficable quantity of a controlled drug; or
(c) guarded or concealed a trafficable quantity of a controlled drug; or
(d) possessed a trafficable quantity of a controlled drug;
it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.
30. Applying the provisions, I consider that the elements of the offence charged for the purpose of this trial are:
1. Mr Connors and at least Mr Hagan entered into an agreement to traffick in a controlled substance.
2. One or more of the parties to the agreement did traffick in a substance in accordance with the agreement
• that Alexander Hagan concealed the substance in his car;
• that Alexander Hagan caused the substance to be transported in his car for the purpose of delivery to another person.
3. Mr Connors and at least one other party to the agreement intended to traffick the substance
• that the substance the subject of the trafficking was more than a traffickable quantity.
• the substance was methylamphetamine which, under Item 44 of Pt 1.1 of Sch 1 of the Criminal Code Regulation, is a controlled drug.
5. Mr Connors was reckless as to whether the substance was a controlled substance.
6. The amount of the substance the subject of the trafficking was a large commercial quantity
• the amount of the substance trafficked was 30.1638 kilograms;
• the large commercial quantity of methylamphetamine under the Criminal Code Regulation is 6 kilograms.
7. When Mr Connors was involved in the agreement to traffick the substance, he had an intention of supplying some or all of it to another person or had a belief that someone else intended to supply some or all of it to another person.
31. Insofar as these elements are more extensive than those identified in R v Himbert [2015] ACTSC 6 at [5], the Court there did not include the fault elements in its description of the elements of the offence. That may not have been in issue in those proceedings. It was also the state of affairs that, in that case, there was not a Crown allegation of joint commission of the offence and, therefore, this makes the elements here somewhat more complicated. Nevertheless, it is required that the fault elements of an offence be proved.
32. This case was conducted generally on the basis that there was no issue as to whether Mr Hagan had trafficked in methylamphetamine.
33. Largely because of admissions made by Mr Connors under s 184 of the Evidence Act 2011 (ACT), the real issue in the case was whether Mr Connors was party to the trafficking by an agreement that justified his guilt by virtue of s 45A of the Criminal Code.
35. A number of records of covert surveillance and other similar material was adduced in evidence. This material included telephone records of calls made between Mr Connors and other people, particularly Mr Hagan, said to be a participant in the alleged joint criminal enterprise.
36. The police also used Wayne Meaker, an acquaintance of Mr Connors and Mr Hagan, to record conversations between himself and Mr Hagan.
37. Most of this material is referred to in relevant detail in connection with other evidence of a relevant witness below.
38. I mention three items here. The first was a conversation recorded on 11 September 2014. On that date, Mr Meaker recorded a conversation with Mr Hagan and other people. The conversation lasted for nearly two and a half hours. It was said by Mr Meaker that the purpose he had was to record conversations with Mr Hagan and Slavco Popovki. I do not need to summarise the whole of the recording.
39. During the conversation, Mr Hagan told Mr Meaker that Mr Connors' wife had just given birth to a baby boy, a fact that features later in the trial. It is clear that Mr Hagan, as a friend of Mr Connors, was quite interested in that event.
40. There was, in the conversation, a good deal of conversation about drugs and drug dealing. Thus, Mr Hagan discussed with Mr Meaker how to prepare cocaine by "cooking" it. Mr Meaker asked him about buying drugs in bulk and how to get a sample. Mr Hagan told him how easy that was, that it was just necessary to get a sample, and that he would do so especially if "paying ... top dollar" and Mr Meaker asked "Even if it's from Andrew?" and Mr Hagan answered, "Yeah", adding that Andrew (presumably, Mr Connors) did not bake the drugs, but "just gets it", but did not check because he could take it back.
41. There was some talk of the purity of drugs. Mr Hagan also said that he wanted to show Andrew (presumably Mr Connors) and George (otherwise unidentified) something. The Crown suggested that what was to be shown was how the drug was cooked, though it was not entirely clear.
42. There was then conversation apparently about drug deliveries. Mr Hagan mentioned a "big trip to Melbourne" on which "Slav's working". Mr Hagan also said that he "went to Sydney last week". Mr Meaker asked whether he was to go to Sydney and Mr Hagan seemed to agree. He also referred to other trips, saying, "either you'll go to Sydney, and Melbourne. I reckon". He then suggested that he might actually go to Sydney, then to Canberra and on to Melbourne, where he would stay a night before returning. He would be taking "coke or pills", which would be in hard plastic sealed bags.
43. Mr Hagan refers to "Matty" (Barbaro) as the recipient of the drugs from the drug run. Mr Meaker, however, expresses a preference for meeting someone he knows, like Mr Popovki.
44. There was some conversation suggesting that Mr Meaker would be given a Blackberry phone device. A car would be hired but the organiser would "just make up a name", though it could be hired once in Mr Meaker's name. There were, Mr Hagan said, "always spare cars ... in Sydney" and referred to some makes, including "Andrew's fucking-big black (indistinct) hanging round somewhere", presumably a reference to Mr Connors' Land Rover.
45. Mr Hagan told Mr Meaker that he may have to pick something up when the money is dropped off, but he should not be in a rush, saying, "Just take your time".
46. Clearly, Mr Popovki was said to be involved. Mr Hagan said, "every time you give Slav money he will count it in front of you".
WAYNE MEAKER: And what's the payment, Sydney to Melbourne? You wouldn't know. I've got to ask Slav, don't I?
WAYNE MAKER: I've got to ask Slav what the payment is for me to do it.
ALEXANDER HAGAN: Yeah, I don't know. I was doing three grand when I done it.
WAYNE MEAKER: Yeah, that was Sydney-Canberra though.
ALEXANDER HAGAN: I went to Melbourne once. (indistinct)
ALEXANDER HAGAN: (Indistinct) That's six grand in your pocket. (Indistinct) Do you know what I mean? (Indistinct)
WAYNE MEAKER: He did say to me, the more I'm carrying the more I get.
WAYNE MEAKER: And you know my thoughts. I'd rather carry a bucket load of it than fucking pissy little amounts.
ALEXANDER HAGAN: Me too. (Laughs) No, it won't be - never a pissy amount. It always be, like, a kilo plus. Like, always. (indistinct) But yeah, I would do three grand from here as well because then I would go and see (indistinct) (indistinct).
WAYNE MEAKER: All right. So you reckon within the week? I'll let you finish that.
48. Later Mr Popovki joined them and when he asked, "What's going on?", Mr Hagan said, "We were just talking about when this trip might happen ...". Mr Popovki said, "It's a bit of a mission. They're trying to tee up something a little bit bigger".
49. There was some discussion about the name Mr Connors gave his new son. It is clear that Mr Popovki knew at least who Mr Connors was. Mr Hagan then arranged to purchase some drugs from Mr Popovki, though the suggestion was that he may be a middleman.
50. There was further conversation about a possible "drug run" to Sydney the next day. Mr Hagan also mentioned that if something goes wrong, the people involved would find a way of getting their money back.
51. The Crown submitted that this conversation was able to be led in part to rebut any evidence of good character asserted by Mr Connors. It was also submitted that it explained the circumstances of the offence as a form of relationship evidence, as described in Roach v The Queen [2011] HCA 12; 242 CLR 610 at 624; [42].
52. It seemed to me that it also raised some questions about who were the organisers of the drug delivery trips, inculpating Mr Popovki but without any relevant association with Mr Connors.
53. A further conversation was recorded by Mr Meaker with Mr Hagan on 1 October 2014. There was some conversation about Mr Connors, including that he drove to Melbourne and incurred fines in Mr Hagan's car, and about his baby which he had brought to Canberra. There was a mention also that Mr Connors had lost his phone and his wallet. It was, it was said, his second phone. Mr Connors had got a job in Melbourne doing electrical work.
54. Later, Mr Hagan expressed anger to Mr Meaker because Mr Connors was upset when Mr Hagan bought some drugs from what in the transcript is transcribed as "Slad" but which I infer was Mr Popovki. Mr Hagan suggested that "there [sic] a big war" and Mr Meaker thought it a "bit rude" for Mr Connors to get upset, because people can get it "wherever they ... want". Mr Hagan agreed and then described Mr Connors as "a standover man" who thought he was big and hard and "wants to kill everyone". He added, "That's how he resolves everything, with violence".
55. Mr Meaker said that "if Mr Connors" cannot keep the supply up ... anyone who [sic] can do what they want anyway". There was then some reference to the Comancheros Outlaw Motorcycle Gang.
56. There was later further discussion about Mr Connors being involved in fighting with Mr Popovki. Mr Meaker said he would "back" Mr Connors in such a fight and Mr Meaker suggested that Mr Popovki and Mr Connors "need to sit down and sort their fucking shit out", though Mr Hagan suggested that Mr Connors would not listen. There was a suggestion that Mr Connors was "in the wrong" and "does it to everyone", including Mr Popovki.
57. What exactly he would do was not entirely clear. However, Mr Hagan said that it was all about money and when Mr Connors was not making any he would get very upset. Mr Meaker commented that Mr Popovki "can buy and sell" what he wants.
58. While there was no objection by defence counsel to the admission of this evidence, it has to be treated with some care. It is not, for example, any kind of admission by or on behalf of Mr Connors. Nor was it admitted as tendency evidence and cannot be used in either of these ways. I will not use it to find that Mr Connors had any tendency to traffick in drugs.
59. The Crown submitted that part of it was admitted on the question of Mr Hagan's credit. I deal with that later.
60. Nevertheless, the admission of this evidence makes the contents of the recording available as part of the evidence to prove the truth of the assertions made. See, for example, Aslett v The Queen [2006] NSWCCA 49 at [71], applying Adam v The Queen (2001) 207 CLR 96 at 105-9. Thus, it is some evidence that Mr Connors was involved with Mr Hagan in the use and distribution of drugs.
61. The transcripts of some telephone conversations between Mr Hagan and Mr Connors on the afternoon of 23 October 2014 were also admitted into evidence. In one, there was a discussion of the extension of the hire contract for a car Mr Connors had hired on 22 October 2014 when he came to Canberra. In the other, there was a discussion of money Mr Connors owed to a gardener who had worked on his house and whom he asked Mr Hagan to pay. This latter conversation was consistent with Mr Connors' activity as an owner-builder.
62. A conversation between Mr Hagan and the car company in which he extended the hire contract was also admitted into evidence.
63. None of these telephone conversations were inculpatory of Mr Connors. Indeed, there are no recorded conversations between Mr Connors and Mr Hagan that are inculpatory at all, even indirectly, such as to show any arrangements for the two to meet on 22 or 23 October 2014.
64. A number of persons who were involved in or had knowledge of the trafficking were called to give evidence.
65. The first witness was Wayne Stephen Meaker. He was what is known as a "Human Source". That is, he was a person who voluntarily assisted police by participating in the conduct the subject of this trial and provided information to the police about that conduct and the people engaged in it. He had assisted police [redacted for legal reasons] from about April 2010 [redacted for legal reasons].
66. Mr Meaker gave his evidence by closed circuit television under s 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). That Act does not make any express reference to any warnings or directions about the evidence being given in this way by a witness such as Mr Meaker, as, for example it does in s 46 of the Act, where evidence is given by audiovisual link in sexual and violent offence proceedings. In this respect, it differs from the legislation in some other jurisdictions, such as s 42V of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) or s 12 of the Courts (Remote Participation) Act 2010 (NZ).
67. It seems to me, however, that, in a criminal trial, where the principle that ordinarily all witnesses are present in Court when giving their evidence orally (see, e.g. Astill (1992) 63 A Crim R 148 at 157) and, in particular, the recognition that, while there is no unqualified right that an accused person has to face his or her accusers (R v Smellie (1920) 14 Cr App R 128), there are limits so that, absent statutory provision, this would not justify a witness giving evidence by audio-visual link (R v Diane [2003] EWCA Civ 1044; [2010] 2 Cr App R 1), as a witness giving evidence in this way is not the usual way of doing so.
68. Given that, despite the evidence being given in that way under legislative authority, the use of audio-visual link for witnesses to give evidence from a location outside the physical court room is unusual in cases other than sexual or violence offence cases, where mandated warnings are required, it seems to me that I should give myself a warning and in terms that I would have given were a jury empanelled to try the case.
69. In this case, I warn myself that no adverse inference should be drawn against Mr Connors from the fact that Mr Meaker gave evidence by audio-visual link. His evidence given in that way is evidence the same as all the other evidence in this case and should be given no less or more weight because it is given by audio-visual link.
70. Mr Meaker also admitted that he had been given an immunity from prosecution. This was relevant as, it appears below, he was involved in drug dealing. It seems to me that I am required also to give myself a warning in this respect. See Kanaan v The Queen [2006] NSWCCA 109 at [165]- [167].
71. I warn myself that Mr Meaker's evidence must be scrutinised with care because of his status as an indemnified witness and a participant in the criminal activity that has led to the charge Mr Connors faces. As such, there may be pressure on Mr Meaker to minimise his involvement when speaking to police, to feel obliged to repeat to the Court the version of events he gave to them and to do so as a matter of self-protection to avoid prosecution for his own criminal activity. Thus, Mr Meaker had his own interests to serve in relation to the events of which he gave evidence and I must take this into account when assessing his evidence.
72. He gave evidence that he had met Mr Connors and Mr Hagan in a bar in Manuka where he worked. He seemed to have met Mr Connors at about the same time that he met Mr Hagan, but he became friendly with both of them, though he described them as "acquaintances". He saw Mr Hagan socially from time-to-time.
73. At some stage, Mr Hagan suggested to him that he may be able to assist Mr Meaker with earning some money. As a result, Mr Meaker began helping Mr Hagan to distribute drugs within Canberra. He said that he distributed about 80 "eightballs". An eightball, he suggested, may be drugs supplied in portions of about a gram. He sold the substance for $1000 and received $200 per sale. He did that despite his evidence to me that he had a "hatred" of drugs and its effects, especially on young women.
74. Mr Hagan, at some stage, also suggested to Mr Meaker that he might assist him further with interstate deliveries to Melbourne, Sydney and Brisbane and Mr Meaker agreed.
75. He reported this to police and was then provided by them with a recording device so that he could record conversations between himself and Mr Hagan.
76. At 12:30pm on 23 October 2014, he was summonsed to Mr Hagan's house. This was despite his wish, expressed to Mr Hagan, that he would have some days' notice before undertaking an interstate drug delivery or "drug run". He then arranged to be fitted with a recording device before attending at Mr Hagan's house.
77. When Mr Meaker arrived at Mr Hagan's house, he found Mr Hagan nervous, sweating and on edge. Mr Hagan told him that he was to drive to Melbourne that day to deliver drugs to Mr Connors.
78. During the conversation, the following was said:
ALEXANDER HAGAN: Just keep following the highway till you get to Cooper Street.
WAYNE MEAKER: Yep, in Melbourne?
ALEXANDER HAGAN: Right. In Melbourne.
WAYNE MEAKER: Yep.
ALEXANDER HAGAN: Chuck a right and there's a fucking shopping centre just up the road. Andrew's going to meet you there.
WAYNE MEAKER: Okay.
ALEXANDER HAGAN: All right. Then you can stay there for the night if you want to. You can go and see your nephew if you want. It's up to you. He's going to give you five grand to drive down there and then come up. You can stay there if you want.
WAYNE MEAKER: I'd rather come straight back.
ALEXANDER HAGAN: (indistinct).
WAYNE MEAKER: Nah, nah. I'll do that another time, Alex. I'd rather do this fucking properly (indistinct). Now, am I right to take a driver with me?
ALEXANDER HAGAN: Probably not. Andrew will get the shits.
WAYNE MEAKER: You reckon he'll get the shits?
ALEXANDER HAGAN: Fuck yeah.
WAYNE MEAKER: Even if I left her a bit before I get to him or?
ALEXANDER HAGAN: You can't take your phone with you, either.
WAYNE MEAKER: No. I'll leave it at home.
ALEXANDER HAGAN: Yeah,
...
ALEXANDER HAGAN: It's (indistinct) six hours to get there to where you've got to go from here. So, don't speed. Just go down there. Don't speed.
WAYNE MEAKER: I know ---
ALEXANDER HAGAN: Meet Andrew. I know. Meet Andrew. Come home.
WAYNE MEAKER: All right.
...
ALEXANDER HAGAN: When he meets you down there he's just going to say, "I'll be back in thirty minutes or an hour" and he'll be back and you can have some lunch or dinner or whatever. Okay?
WAYNE MEAKER: Yep.
...
WAYNE MAKER: So, he's giving me five K is he?
(Background noise)
ALEXANDER HAGAN: (Indistinct)
WAYNE MEAKER: That is good money.
ALEXANDER HAGAN: It's fucking awesome (indistinct) five grand.
(Background noise)
79. Mr Meaker was told to use Mr Hagan's car, a Volkswagen Sedan, to drive to Melbourne and Mr Hagan showed him how to drive it. Mr Meaker saw another car, a Holden Commodore Storm, in the driveway of Mr Hagan's home.
80. He did not see any of the drugs that he understood were in the car. He said that Mr Hagan seemed nervous, more so than when they had discussed other drug deliveries.
81. Mr Meaker understood from the conversation that he was going to meet Mr Connors in Melbourne at a suburban shopping centre. He understood that Mr Connors would meet him there and he would not have to find him. He also understood that Mr Connors would take the car for a time, return it, inferentially after the drugs had been removed from it, and send Mr Meaker "on [his] way". Mr Hagan gave Mr Meaker $150 for the trip.
82. Mr Meaker then left. Instead of driving to Melbourne, he drove to where he met police officers at the Burns Club, followed them to the AFP Forensics Centre Weston and left the car with them.
83. In cross-examination, Mr Meaker admitted that he had a criminal history. He had referred to that in his police statement, but it was not complete because, he said, of his memory. He had admitted to police that, apart from Children's Court matters, he had "minor matters of ... urinating in the street and things of that kind". He also admitted to having been convicted of drink-driving in 1997. He did not recall, however, a conviction for fraudulent misappropriation and passing a dishonoured cheque together with a "traffic record [that] is absolutely extensive" but, when confronted with his record, admitted to these convictions.
84. It became clear in cross-examination that Mr Meaker had gained some personal profit from his association with Mr Hagan. He agreed that he had sold about "50 eightballs" for Mr Hagan and, as noted above (at [73]), that he would sell each one for $1000 and retain $200 for himself. He agreed he had earned about $10 000 from his dealing which he spent on some bills he had, general living expenses and some debts to people who had supported him while he was out of work. His first objective, however, was to help the police, though he did not tell them until later that he was selling drugs.
85. In relation to the proposed drug delivery to Melbourne, Mr Meaker said that he had never been to the Canberra or Melbourne homes of Mr Connors, but did know that he used to visit Canberra and then return to Melbourne. He had no communication with Mr Connors on 23 October 2014 at all.
86. He was told by Mr Hagan that Mr Connors did not have a phone and so he could not contact him, but Mr Hagan gave him his own phone number. He made no contact with Mr Connors at all.
87. The Crown next called SI, who was a friend of Mr Connors and of Mr Hagan. He had known Mr Connors for about four years at the time of the trial and Mr Hagan for about three and a half years. He was a closer friend with Mr Connors than with Mr Hagan.
88. As it appeared that some of his evidence may incriminate him, I issued a certificate to SI under s 128 of the Evidence Act for portions of his evidence.
89. Because of the allegation that Mr Hagan's car was packed with drugs at SI's home and partly in his presence, his evidence was significant. Although it was not suggested that he was an accomplice and, although neither counsel asked me to give myself a warning under s 165 of the Evidence Act, it seems to me that I should treat his evidence with care.
90. In the circumstances, SI may be said to have a reason to minimise his involvement in the conduct constituting the criminal conduct and to distance himself from it. As a result, I consider that it is appropriate to treat his evidence with caution and to scrutinise it carefully.
91. SI's evidence was as follows. He received a telephone call from Mr Hagan at about 8:35am on 23 October 2014 asking him to call at Mr Hagan's house. Mr Hagan told him it was "important". He went to Mr Hagan's home and Mr Hagan was present there with Mr Connors. SI was glad to see Mr Connors for he had a present for Mr Connors' new born son, which he wanted to give him. It appears he mentioned that at the time.
92. Mr Hagan explained that he had asked SI to come to his home as he wanted to ask his permission to use SI's garage as, he said, he was having some "car troubles". Mr Hagan appeared to SI to be quite normal in his demeanour at this time.
93. SI then returned home and, some time after his wife and children had left, Mr Hagan and Mr Connors arrived. SI did not see them arrive, but they did come separately to his front door, about five minutes apart. SI offered them some refreshments and a little later Mr Hagan asked if he could put his car in the garage as he needed a flat floor. SI agreed and Mr Hagan put his car in the garage, returning inside the house.
94. SI gave Mr Connors the present for the baby as he had intended. Mr Connors, it emerged in cross-examination, put it on the bench in the kitchen, but, when SI came home at the end of the day, it had gone; he assumed Mr Connors had taken it.
95. A little later, Mr Hagan or Mr Connors, SI could not say which, received either a telephone call or a text message and walked down the hall of the house and had some conversation on the phone. The hall leads to the garage which is entered by a door at the end of the hall.
96. SI then went with the other person into the garage and saw Mr Hagan's car there, parked front end into the garage, with the boot open. A utility was driving up the driveway into the garage near the car. SI recognised the driver of the utility who, it appears, was a Tristan Waters. It seems likely that, as he knew who Mr Waters was, he would know that he was involved with drugs, but he was not asked about that. SI was unaware that the utility was to be coming to his house.
97. Despite saying that the utility was driving along the drive and into the garage when he first saw it, SI also said that, when he first entered the garage, the driver was chatting with either Mr Hagan or Mr Connors who had first gone down to the garage after receiving the text or telephone call. I could not make these consistent.
98. SI asked what Mr Hagan and Mr Waters were doing and one of them said "We're just catching up". They then had a chat and took four plastic boxes from the utility and placed them on the garage floor.
99. SI said that Mr Hagan took two of the boxes from the utility and Mr Waters the other two. At the time, he said that Mr Connors was with him, standing beside Mr Hagan's car. While it is not certain, this seems to suggest it is more likely than not that it was Mr Hagan who first went into the garage and was talking with Mr Waters. That is reinforced by the evidence he gave that, when he first went into the garage, SI saw the boot of Mr Hagan's car open. I am satisfied that it was Mr Hagan, not Mr Connors.
100. SI said, "What's going on?" and was told "Just relax", but was not certain who said it, either Mr Hagan or Mr Connors.
101. The boxes were put on the passenger side of Mr Hagan's car on the garage floor. Mr Waters then left in the utility and SI said that Mr Hagan closed the garage door. This makes sense, as the boxes contained illicit drugs which were to go into Mr Hagan's car, but it does not seem to fit with what SI later said.
102. Following the luncheon adjournment, SI indicated that he wanted to "correct" some of his evidence. He then referred to an incident involving Mr Connors. It was referred to outside his chronological narrative and seemed a little odd in the chronology in the context of his primary narrative. He said that, initially, Mr Connors was in the garage. He said that either Mr Connors or Mr Hagan noticed a car parked some distance away on the Cotter Road, a main road near SI's house and able to be seen from the garage. Mr Connors got into a car, not Mr Hagan's car, so it must have been the car in which he separately arrived at SI's place. He then drove to inspect the car on the Cotter Road. He returned and said that it was "no-one". There was no evidence as to what Mr Hagan or SI were doing while Mr Connors was inspecting the supposedly suspicious car.
103. SI said that, at some stage, he returned to the kitchen to clear up but later went back to the garage to see Mr Hagan on his knees pulling at the mudguard of his car and wearing gloves. SI saw that the boxes contained packets of what looked like broken glass, which he recognised as the drug Ice (the "street name" for methylamphetamine, also known as methamphetamine). SI said that he got quite upset and asked Mr Connors, "What is going on?" Mr Connors told him "Calm down, don't worry about it. Just forget everything that's here". Mr Connors became quite "forceful" and appeared to be nervous but raised his voice to reassure SI and calm him down. He also said "Don't say anything." That did not assuage SI's concern and he continued "yelling and carrying on" telling Mr Hagan and Mr Connors that he was leaving.
104. He saw Mr Hagan putting the packets of drugs into the car where he had pulled off the mudguard. SI said, "Oh you just can't have this kind of stuff here. What are you doing?" He told them he was leaving and went over to where his car was parked, telling them to close the garage door when they left. They agreed to do so. SI said that Mr Hagan replied, "Okay, we won't be much longer". The Crown put reliance of the use of "we". I am not convinced that SI could be sure of the exact words or, in the circumstances, that the words had the import for which the Crown contended.
105. SI then drove to work. He was so stressed when he got there that he vomited in the staff toilet. At about 11:20am, he received a phone call from Mr Hagan. The call was recorded as follows:
Hagan Big man.
[SI] How are you, mate?
Hagan Yeah, good, good. How are you?
[SI] Yeah, good. You finished your meeting?
Hagan Yep. All done.
[SI] Oh ... (indistinct) ... no dramas.
Hagan Fuckin' nightmare.
[SI] (laugh) Ah mate.
Hagan Oh. I'm fuckin' sweatin' my balls off, mate. Anyway it's all done.
[SI] ... (indistinct) ...
Hagan Thank you very much for your assistance this morning'. It was much appreciated.
[SI] No, mate, I'm happy to refer any more - any clients I'm happy to refer to you, mate.
Hagan Beautiful.
[SI] So ... (indistinct) ... I hope they - I hope they get the loan through, that's good.
Hagan Thanks, mate.
[SI] All right.
Hagan All right well, um, we'll catch up later on today or somethin', uh?
[SI] Yeah, that'd be good, mate. I got to catch up with Fatso today.
Hagan Oh yeah?
[SI] Well hopefully, ah ---
Hagan Get - get hold of that little fat fucker.
[SI] Correct.
Hagan Yeah.
[SI] Correct.
Hagan Actually are you goin' to have a drink with him or anything?
[SI] Eh?
Hagan Are you goin' to have a drink with him or anything?
[SI] Ah, nah, fuck, I can't, I got to fuckin' drop the kids to fuckin' sport and I got all this shit to do. If I do I'll call you.
Hagan Yeah, okay.
[SI] All right.
Hagan Let me know if you do and I'll come over.
[SI] All right, buddy. No worries.
Hagan All right, mate. No worries.
[SI] Bye. See - see you.
Hagan Cheers, mate. Bye bye.
106. When asked about this call in cross-examination, SI said that the mention of referring clients was in relation to SI, a property manager, referring clients to Mr Hagan in his capacity as a mortgage broker who could arrange loans for his clients.
107. In his evidence, SI said that he was very unhappy with Mr Hagan and arranged to have a coffee with him later that day. When they met, he told Mr Hagan how unhappy he was at the position in which Mr Hagan had put him. He told him that Mr Hagan should have explained to him what was really happening and then SI told him that he did not want to have any further contact with him.
108. Mr Hagan said he was overreacting and that he should relax. He asked SI how much he thought that the drugs may have been worth and then put a figure into his phone which he showed SI; it was "26 million" (presumably dollars).
109. Mr Hagan told him that the drugs were "going down south" but did not say where. There was no conversation about the arrangements for the transportation and delivery.
110. Mr Hagan mentioned that Mr Connors had left Canberra but did not mention why he had come to Canberra.
111. That evening, SI had contact with Mr Connors. He said that he had initially received a telephone call from a friend who had been driving past Mr Hagan's house where he saw what he believed were a number of unmarked police cars outside. SI then tried to ring Mr Connors. When he did not answer, he sent him a text saying "Grandpa [by which, he explained, he meant Mr Hagan] has lots of police cars outside the front of his house."
112. Mr Connors then called him and SI told him who it was that had informed him about the police cars and added, "I think it is about what happened today". Mr Connors said, "Okay, that's fine. Don't worry about it". He thanked SI for telling him about it. SI was worried, but could not recall if he told Mr Connors that he was. SI said that Mr Connors seemed very quiet in this conversation.
113. In cross-examination, SI was asked about the phone calls with Mr Connors on the night of 23 October 2014. He was referred to a call of about 300 seconds from Mr Connors' phone at 7:21pm. He could not recall it. It was put to him that Mrs Connors had rung him to thank him for the present for her son. He then recalled such a conversation but could not recall that it was that one.
114. He agreed that Mr Connors came to his house, separately, by arrangement made earlier that morning to collect the present for his son.
115. He was asked about the arrangements at Mr Hagan's place and described there being a carport, which he said had a roller shutter and two windows.
116. He said he did not ask Mr Hagan what was wrong with his car that required use of the flat floor on SI's garage.
117. SI was asked about a conference he had had with the Crown Prosecutor and staff from the Office of the Director of Public Prosecutions in the presence of his counsel and solicitor.
118. He agreed that, at that conference, he had said that Mr Hagan had told him at the meeting on the afternoon of 23 October 2014 that the drugs were going to Melbourne but not to whom they were going. That was curious if the drugs were going to Mr Connors, whom SI knew and knew was involved with illicit drugs.
119. He further agreed that there was no mention in the record of that conference of his telling the prosecutors that Mr Connors had said, "Don't say anything". SI agreed also that he had not told his solicitor that he wanted to add anything to what he had told the prosecutors or that he had remembered anything different from what he had told them in the conference.
120. He did, however, deny that Mr Connors had said, "I don't know anything" while they were in the garage; he said all Mr Connors told him was "to calm down and stop stressing". He also rejected the assertion that Mr Connors had not said, "Don't say anything", asserting that he did say it.
121. SI was asked about the phone call with Mr Hagan later in the morning of 23 October 2014. He agreed that, despite saying that he was very distressed about the events in his garage, he did not seem the least bit annoyed in the conversation and that he was still happy to refer clients to Mr Hagan to obtain bank loans. He said that he moderated his language because he thought that the phone might be subject to surveillance, despite his mention in it of a drug dealer.
122. It was suggested that he did not swear at Mr Hagan as he had said, but was friendly, and he agreed, but said that he would not "start yelling and swearing at him about something that happened that morning when I have a fear that he's [sic] phone's being tapped". He had, however, told the prosecutors that he had told Mr Hagan on the phone, "How dare you put me in this position". He agreed that he was wrong on that point.
123. He agreed that, when he and Mr Connors were in his garage, he did not see Mr Connors touch any of the boxes or their contents, he did not see Mr Connors move Mr Hagan's motor vehicle, that Mr Connors had nothing to do with the arrangements for Mr Hagan to use his garage nor that the car belonged to Mr Connors. He agreed that Mr Connors arrived in a separate motor vehicle and that Mr Hagan told him that he did not know to whom the shipment was being sent. He agreed that Mr Connors came to his house at his invitation to get the present for his baby and he was not surprised to see him then.
124. He also said that sometime (said to be some months) after 23 October 2014, he had a conversation with Mr Connors who told him that he did not know anything about the delivery of the drugs to Melbourne. This evidence was objected to by the Crown as inadmissible hearsay. I admitted it provisionally.
125. There is no doubt that the evidence is hearsay evidence; it is not being adduced to prove the fact that it was said, but for the truth of what was said: Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 at 970.
126. Generally, hearsay evidence cannot be effectively evaluated because there is no means of assessing whether the maker of the statement believed or knew what was asserted and, indeed, there is the added uncertainty of whether the witness perceived the hearsay correctly. If the maker does not give evidence at the trial, none of these matters can be tested either by assessing the demeanour of the person who is the maker of the hearsay evidence, or by cross-examination of him or her.
127. Some hearsay is admissible and there are exceptions set out in the Evidence Act. The relevant ones are in ss 65 and 66 which apply when, in criminal proceedings (which, of course, these are), the maker is unavailable (s 65) or where the maker is available (s 66).
128. It is an interesting point as to which section applies where the maker of the representation is the accused. The accused is, of course, not compellable to give evidence: s 17 of the Evidence Act. That suggests to me that he or she is, at least in the Crown case, "a person [who is] not ... available to give evidence". I do not share, with respect, the somewhat corporeal construction of that phrase given it by Priest JA in Fletcher v The Queen [2015] VSCA 146 at [1]; it seems to me that the person must be available to give evidence, that is not just personally present but in a position where the evidence can be compelled if necessary. For the reasons below, however, I do not have finally to decide that issue.
129. In any event, neither counsel submitted that s 66 of the Evidence Act applied.
130. Mr W Terracini SC, Counsel for Mr Connors, submitted initially that s 65 of the Evidence Act did not apply either, for he said that where an accused is prosecuted as a participant in a joint criminal enterprise, the Crown may lead conversations with one participant in the absence of another if the alleged conversation is in furtherance of the enterprise. Such conversations, however, must be inculpatory - that is, in furtherance of the enterprise. Those, however, would constitute admissions, admissible under s 87(1)(c) of the Evidence Act. This does not apply to exculpatory evidence.
131. Mr Terracini then submitted that "it would be unfair under the basic principles of how a criminal trial operates that [the Crown] are only allowed to lead inculpatory material." He instanced the record of a formal interview with police. That may often include exculpatory material within the interview which is regularly adduced before the jury.
132. The admission of such exculpatory material is usually on the basis that, as a matter of fairness, the Crown should adduce it both because it emanates from the police interrogation but also because it would be distorting were only inculpatory material to be adduced when there were also exculpatory statements made. While arguably inadmissible on a strict view of the Evidence Act, it is admissible unless objection is taken: W C v The Queen [2015] NSWCCA 52 at [20]- [21]. One can understand that an accused's counsel would not object to such evidence. In any event, the admissibility may be on the basis that was explained in Ross v The Queen [2012] NSWCCA 207 at [51]- [53], though this decision relied to an extent on the common law prior to the operation of the Evidence Act 1995 (NSW). That is, it was said that such exculpatory evidence is admissible to show the fairness of the police processes. In that case, there was no objection to the record as there was a forensic advantage to the accused in its admission.
133. When I turn to s 65 of the Evidence Act, then, I could find no ground in s 65(2) that applied. Clearly s 65(2)(a) did not apply as Mr Connors was not under a duty to make the representation. It did not seem to me that s 65(2)(b) applied and Mr Terracini agreed. I did not consider that s 65(2)(c) applied as there was every reason to think that Mr Connors may well have been trying to distance himself from the offence for which Mr Hagan had already been arrested, especially as he was talking to his friend who had expressed such distress about being forced into the events. Finally, s 65(2)(d) did not apply as the representation was not inculpatory or otherwise against Mr Connor's interests.
134. Accordingly, I reject the evidence and will not rely on it.
135. The Crown prosecutor then called Alexander Scott Hagan, who was, at the time, a remandee at the Alexander Maconochie Centre. He had, however, pleaded guilty to certain drug offences, including the trafficking of methylamphetamine on this occasion, and was awaiting sentence.
136. As is clear from the above evidence, Mr Hagan was an accomplice or a fellow participant in the criminal enterprise of trafficking by transporting more than a traffickable quantity of drugs to Melbourne. Accordingly, his evidence must be treated with caution. It is, for example, dangerous to convict a person on the evidence of an accomplice unless corroborated. The evidence of an accomplice is frequently unreliable. Nevertheless, I may accept and rely on the evidence or parts of it, if I consider it proper to do so.
137. Mr Hagan, though he had pleaded guilty to the offence arising out of these events by admitting to arranging Mr Meaker to drive his car containing drugs to Melbourne, had not admitted to any other involvement, such as being the organiser of the delivery of drugs. As a result of the risk his answers may implicate him further than this, he objected to some questioning and I directed him to answer the relevant questions, but gave him a certificate under s 128 of the Evidence Act.
138. Mr Hagan gave evidence as follows. He said that he was, before his incarceration, a mortgage broker.
139. He recalled 23 October 2014. He awoke to what he thought was a normal day and prepared to go to work when he had a visit by someone who told him that the person who had sent his visitor needed to use his car. He did not know the purpose at that stage but assumed it was about drugs. He did not know this person but he did know the person who had sent him because he had bought cocaine from him. In the proceedings, the man who came to see Mr Hagan was called Person A and the person who sent him was called Person B. I shall use these descriptions, even though it appears that Person A seems to have been Mr Waters.
140. Mr Hagan agreed to the use of his car by Person A. He was told that further contact would be made. What he said he was told, or more accurately not told, makes some of his subsequent conduct curious. Despite his evidence, he had either been told more than he said, or he was more involved than he admitted.
141. In any event, as a result, he called SI and asked him to come over. Mr Connors appears to have arrived shortly after Person A had left. Mr Hagan and Mr Connors had known each other for a long time and were friends. Mr Hagan said that when Mr Connors arrived they talked about "life in general".
142. SI then arrived and stayed for about five minutes. As Mr Connors had to collect a present from SI, they all agreed to go to his house. Mr Hagan then drove to SI's house shortly afterwards. Mr Connors drove a separate car.
143. At SI's house, they had some refreshments and then Mr Hagan asked him if he could use his garage to do something.
144. He said that the drugs that were to be packed in his car were delivered in a four-wheel drive and that, when the drugs came, SI left. He said that the drugs arrived in "two buckets". He thought that SI and Mr Connors were inside the house when the drugs arrived. He said that the driver of the four-wheel drive vehicle had followed him to SI's place as he saw him pulling up at his house as he was leaving.
145. That seemed a little inconsistent with his earlier evidence that he and Mr Connors were at SI's house for "a good 10 to 20 minutes" having refreshments, smoking a cigarette, and looking at his pool before the drugs arrived. It was only then that he put his car in the garage and after that when the drugs arrived.
146. When the drugs arrived, Person A told Mr Hagan that they were in the back of the vehicle and he said, "This is what we want to put in your car". Mr Hagan said, "Well put it in there and I want nothing to do with it". That, again, was a curious comment in the light of what then happened.
147. SI and Mr Connors then came into the garage and both said (presumably separately), "I'm outta here" and SI left; about 30 seconds later, Mr Connors left also. Mr Hagan stayed there, waiting for Person A to return (though he had not mentioned him leaving or intending to return until then).
148. Mr Hagan described the drugs as packed "[i]n a box ... big black plastic containers", which contained "[b]ags of white - look like bloody ice ya get from the fridge". He knew the drugs were Ice packed in clear plastic bags.
149. Person A told him that the drugs needed to go into Mr Hagan's car. Person A then left and Mr Hagan packed the drugs in his car, in the boot and under the bumper bar. He said that SI and Mr Connors had left before then.
150. Mr Hagan then waited and Person A returned with another person, called in the proceedings Person C. They drove his car back to Mr Hagan's house and he drove their car. He then rang Mr Meaker and asked him to come and collect the car and drive it to Melbourne where someone would meet him; they would recognise his car. He said he told Mr Meaker to meet Mr Connors "in the street". He said Mr Meaker would be paid $5000 for the delivery trip.
151. He explained that he told Mr Meaker that Mr Connors was going to meet him "because if he didn't know who it was, he would have been very uncomfortable and he wouldn't have went [sic]". He mentioned Mr Connors' name because he was the only person he knew in Melbourne. He denied that Mr Connors was actually involved.
152. Mr Hagan said he had spoken to Mr Connors earlier but not after he had spoken to Mr Meaker. He did afterwards speak to SI. He said he did not recall what it was they spoke about or SI's demeanour. As a result of some of this evidence, the Crown applied under s 38 of the Evidence Act for leave to question Mr Hagan as though in cross-examination. I heard the Crown Prosecutor and Mr Terracini. I also heard counsel for Mr Hagan: R v Massey (2016) 309 FLR 299 at [9]-[14]. I permitted the Crown to proceed in that way.
153. Part of the Crown's examination as though in cross-examination related to Mr Hagan's knowledge of the person I have described as Person A and the events surrounding his directions to Mr Hagan. It also related to Person B. I do not have to address in these reasons all that evidence, although, of course, as with all the evidence, I take it into account.
154. It is, perhaps, relevant that Mr Hagan said that Persons A and B at least, and possibly Person C, were associated with Outlaw Motorcycle Gangs.
155. Mr Hagan said that he had owed money to Person B for his cocaine purchases and that this was why he considered he was bound to do what he was told. He said that this would be paying off the debt. He was told to have the car that was filled with the drugs driven to Melbourne to a named shopping centre where the car would be met.
156. Initially he did not know what was to be in the car but he "didn't think it was going to be anything good" and he told Person A that he would not be driving but, seemingly, that he would get someone else to do so. He wrote down the address of the shopping centre to where the drugs were to be delivered. Later, Mr Hagan suggested that he had seen Person A actually first on 22 October 2014, that is the day before. In some ways, that makes some sense, though it was not his original evidence. He then was asked when he saw Person A on 23 October 2014 and he said in the morning. He saw him driving down his street; they stopped and Mr Hagan said that he was going to SI's house and Person A said that he would follow him there.
157. He next saw Person A at SI's house. He said it was somewhere between 30 minutes and an hour later. He was shown what was in the four-wheel drive vehicle. He said he got a shock but was told that this was what was to be taken to Melbourne. He and Person A unloaded the drugs onto the garage floor. At this stage, he said, that Person A was alone.
158. He then saw Person A return while he was finishing packing the drugs into his car. This time Person A was accompanied by Person C, though Mr Hagan did not speak to him. He agreed that one of the parcels of drugs was later put in his refrigerator. He said it was put there by Person A and Person C.
159. Despite having admitted it earlier, Mr Hagan then denied that the delivery he had arranged with his car was in payment of his drug debt. That seemed to make the placing of a packet of drugs in his refrigerator even more curious. He did then say, however, that someone was going to come round to his place later in the afternoon to pick the parcel up, but they did not do so because the police had, by then, come to his home. The police, however, arrived at about 6:55pm that evening. Mr Hagan seemed a little unsure about when the parcel was put in his freezer; he seemed to think that it happened when he, Person A, and Person C returned to his home from SI's home.
160. Mr Hagan denied that the parcel was payment by Mr Connors for arranging delivery of the drugs; he denied that Mr Connors had anything to do with it.
161. It was suggested by the Crown to Mr Hagan that his story was incredible; that Mr Meaker would not be prepared to hand over the drugs if anyone but Mr Connors met him in Melbourne and that the arrangements he described were to occur in Melbourne were fanciful. He rejected the assertion.
162. Mr Hagan agreed that he was "mates" with Mr Connors and had been for a long time, but denied that he was covering up for him. He said, again, that Mr Connors had nothing to do with the delivery.
163. Mr Hagan was played part of the covert recordings of his conversations with Mr Meaker. He agreed that the recording was of him and Mr Meaker speaking. In the recording, he is heard to agree that he had spoken to Mr Meaker about doing drug deliveries before but said that he actually had not done any.
164. Nevertheless, he then explained to Mr Meaker how he had concealed the drugs for those deliveries. He also told Mr Meaker that Mr Connors would pay him $5000 for doing the delivering. In Court he agreed that this was untrue as, on his version, Mr Connors was not going to meet Mr Meaker. Mr Hagan said, however that the people who were going to meet Mr Meaker would pay him $5000. Mr Meaker could then stay in Melbourne and possibly visit his nieces and nephews there. Mr Meaker, however, had told him that he would come straight back.
165. Mr Meaker asked if he could take a driver with him, but Mr Hagan said no, that "[Mr Connors] will get the shits". Again, in Court, he stated that it was not actually Mr Connors who would be upset but "anyone" who was to meet Mr Meaker.
166. It was also suggested to Mr Hagan that the version he was giving was nonsense. For example, it was pointed out that his story depended on people he did not know relying on him to cause Mr Meaker, whom they also did not know, to transport close to 29 kilograms of methylamphetamine to Melbourne. This, it was suggested, could not be believed.
167. Despite the fact that, in the conversation that was recorded, Mr Hagan made it quite clear that it was Mr Connors to whom the drugs were to be delivered, Mr Hagan was adamant in his evidence to me that Mr Connors had nothing to do with the delivery and that he had only used his name because he was certain that Mr Meaker would not have driven to Melbourne if he had not known that he would be met by Mr Connors. He gave no reason or explanation as to how Mr Meaker would be in contact with the people whom he was to meet.
168. Unfortunately, because of the way the proceedings were conducted, this version of events was never put to Mr Meaker and no application was made to re-call him.
169. Mr Hagan also told Mr Meaker not to take his phone, but could not explain why he did so. He also told him not to speed. He explained in Court that he did not want Mr Meaker to be intercepted by police. He told Mr Meaker that he did not know what was in the car, though he clearly did know.
170. Mr Hagan is heard telling Mr Meaker that Mr Connors would take the car away for about 30 minutes to an hour; he said that, during that time, Mr Meaker could have lunch or dinner.
171. Mr Hagan was unable to explain to me how Mr Meaker would be contacted by the recipients of the delivery. The Crown Prosecutor pointed out that he had not told Mr Meaker to park the car (though I would agree with Mr Hagan that it would have been a obvious thing to do) but also how, at a busy shopping centre, Mr Meaker, without a phone, would be making contact following a long trip from Canberra with a somewhat uncertain time of arrival and handing over to someone he did not know, the shipment of drugs, which no doubt have a very large value.
172. Mr Meaker did not give any evidence that would have resolved any of these doubts. He gave no evidence that was any more specific than that he was to meet Mr Connors. That made it slightly more possible as at least Mr Meaker and Mr Connors did know each other but the vagueness of the location meant that there was very little specificity about the proposed meeting.
173. He was asked by the Crown Prosecutor a number of times why he had told Mr Meaker that Mr Connors would meet him, and said, on each occasion, that it was because he felt that Mr Meaker would not drive the car to Melbourne if he did not know who was going to meet him in Melbourne.
174. He denied being the original organiser of the drug delivery or that Mr Connors was either.
175. After Mr Meaker had left, Mr Hagan did not tell anyone that he had left. He could not explain how anyone would know when to meet Mr Meaker in Melbourne. There was no evidence, however, to suggest that there was any relevant communication with Mr Connors once Mr Meaker had left for Melbourne.
176. Mr Hagan also told Mr Meaker not to write anything down, such as the name of the shopping centre, though he said in evidence to me that he did not know why he said that and what the problem was in writing anything on paper, despite he himself having written down the name of the shopping centre. Later, he agreed that he told Mr Meaker that he could write his phone number down on his hand so he could rub it off if necessary.
177. He was asked some questions by the Crown Prosecutor about his direction to Mr Meaker not to take a phone with him but gave no satisfactory explanation.
178. He told Mr Meaker that he was to leave at about 1:30pm from Canberra and that he would be in Melbourne by about 7:30pm. Mr Meaker is then heard asking what Mr Connors had said when he was told that it was him and not Mr Hagan who was to drive to Melbourne. Mr Hagan told Mr Meaker that he just told Mr Connors that Mr Meaker was doing the delivery even though, in his evidence to me, he continued to deny that Mr Connors had anything to do with the drug delivery.
179. There was further conversation with Mr Meaker recorded about Mr Hagan meeting Mr Connors the previous day. In it, Mr Hagan suggests that he and Mr Connors had a big discussion about "he's acting and everything". In his evidence, however, Mr Hagan simply said that he had seen Mr Connors briefly the previous day on a purely social basis and had invited him to visit again before Mr Connors returned to Melbourne. This evidence was quite inconsistent with the recorded conversation.
180. Mr Hagan agreed that Mr Connors had left his hire car with Mr Hagan. It was rather unclear how Mr Connors had left SI's house and what had then happened. Mr Hagan said that, at SI's house, he had told Mr Connors to leave the car at his place in Curtin and that he would take it to the airport where it was to be returned at the end of the hire. On the covert recording, he is heard saying to Mr Meaker that, when Mr Meaker returned from Melbourne, Mr Hagan could then take the hire car left by Mr Connors back to the airport.
181. Mr Hagan confirmed that, despite an earlier denial, he later had had a conversation with Mr Connors in which he arranged to have the period of hire for the car extended by a day. That conversation was also recorded and is consistent with his evidence. Indeed, Mr Hagan was also recorded having a conversation with the car hire company, extending the hire of the car.
182. The Crown Prosecutor spent some time questioning Mr Hagan about what Mr Connors and SI did at SI's house and their reaction to finding Mr Hagan packing his car with drugs. Thus, it was put to Mr Hagan that Mr Connors lending him the hire car was inconsistent with the reaction he described that Mr Connors had to Mr Hagan loading the drugs into his car. Mr Hagan denied that, stating that there was no reason why Mr Connors would not lend the car, despite his alleged concern about Mr Hagan packing his own car with drugs and Mr Connors not wanting to be associated with that.
183. Mr Hagan denied that they had seen at any stage what was thought to be a suspicious car down the street and denied that Mr Connors had driven down to check on it.
184. He agreed that he used gloves when packing the drugs into his car to avoid leaving his fingerprints on the packets. He agreed that neither SI nor Mr Connors touched the drug packets. He said he did not recall Mr Connors trying to calm SI down. He agreed that Mr Connors stayed for a short time after SI had left, but that he left before Mr Hagan had finished packing the drugs into his car.
185. On the recording, Mr Hagan discussed the hire car with Mr Meaker and agreed that it could have been used and dumped in Melbourne. In evidence to me, he denied the suggestion that the use of the hire car would implicate Mr Connors in the drug delivery. He agreed that he told Mr Meaker to put a jacket on his window and carry a bag so that it looked like he was travelling. He denied suggestions from the Crown Prosecutor that the use of the hire car, with Queensland number plates, would be suspicious in Melbourne, where the drugs were to be delivered. I have to say that I could not see why it would have been suspicious.
186. There was also some conversation about the contact Mr Hagan had with Person A. It emerged that he had visited Mr Hagan on two occasions, on 22 and 23 October 2014. Mr Hagan's original evidence did not seem to admit of that possibility and it was only in the course of his evidence that it seemed he considered mentioning this to address otherwise unresolved issues.
187. Mr Hagan's attention was also drawn to telephone calls he had with Mr Connors in September 2014 and October 2014. He appears to have had telephone contact with him 39 times in that period. Mr Hagan suggested that it was "a very small amount of phone calls for someone that is building a house".
188. Mr Hagan was also questioned about a further part of the recorded conversation he had with Mr Meaker when he told Mr Meaker that the drugs would be wrapped in plastic. He said he knew that, not because he had done some other "drug runs", which he denied doing, but because "[a]ll drugs do" come wrapped in plastic.
189. The conversation included some comments about "drug runs" but Mr Hagan said he was describing his assumptions, not his own knowledge. He also denied ever having a Blackberry telephone device, even though there was a reference to such a device in the conversation.
190. Mr Hagan, in that conversation, told Mr Meaker that he was likely to get "three or four days notice for a "drug run"; Mr Hagan denied that he said this because he had done "drug runs" before but because, somewhat unconvincingly, he said it was "[j]ust a guess".
191. Similarly, a reference to the "drug run" taking "a bit more planning than a day's notice" was an assumption he had made.
192. In the conversation, Mr Hagan mentioned a number of car models and made express reference to the "big black car" of Mr Connors, but he could only say that he mentioned that car and Mr Connors name because Mr Meaker knew him.
193. Mr Hagan was also questioned by the Crown Prosecutor about his conversation with Mr Meaker on 11 September 2014, particularly his asserted experience of doing "drug runs", including with Mr Connors' car. He denied that he had ever done a "drug run" and said his statements were based on assumption.
194. While the Crown's assertion that Mr Hagan had previously carried out "drug runs" did seem to have some force, it did not seem to me that it was particularly relevant to whether Mr Connors was guilty of the offence charged. There was no evidence that any such deliveries were done with Mr Connors; that could only be, at best, speculation.
195. Mr Hagan agreed that the police did not locate any Blackberry phone, even though Mr Hagan had had no advance warning that the police were coming to his house that day.
196. Mr Terracini cross-examined Mr Hagan. Mr Hagan confirmed to him that he was a drug dealer, but with a legitimate job as a mortgage broker and, in that latter capacity, organised some finance for Mr Connors to assist in building his house. As a mortgage broker, he spoke to people from his home office every day. He had no staff. A fair percentage of his work time was spent on the phone.
197. Mr Hagan also confirmed that the recorded conversation with Mr Meaker took place after he had put the drugs into his car. He said that the car was registered and insured in his own name and at his home address in Canberra.
198. He said that Person A had been in his car, without him. He said that his car registration had not been disguised in any way. Thus, Person A had full details of his car or, at least, access to them. He did know the name of Person B who, he said, was organising the drug delivery, but declined to name him.
199. Mr Hagan confirmed that he had given Mr Meaker his phone number and asked him to write it on his hand so that it would be rubbed off, but told him it could be used if Mr Meaker encountered a problem with which he needed assistance. He did not give him any telephone number for Mr Connors. He told him that Mr Connors did not have a phone, which was untrue. He agreed that he was not always honest with Mr Meaker. This is some proof, though very limited support, for Mr Hagan's assertion that he lied to Mr Meaker about the involvement of Mr Connors.
200. Mr Hagan was asked about the cars he mentioned, but this seemed to have little or no relevance to the issues in this case; the reference was to cars that were around in September 2014.
201. In reference to some of the conversation with Mr Meaker, Mr Hagan said that he had been told by Person A or one of the others that Mr Hagan had to use his own car to transport the drugs. He agreed with Mr Terracini that he had not planned the drug delivery and that the conversation was consistent with that.
202. He said that he did not tell Mr Connors why he wanted to borrow the hire car, though it was clear that his car "was being used". A legally obtained telephone intercept showed Mr Hagan's contact with the hire car company, extending the hire of the car. The contract for the car was in evidence and it showed that it was hired in Mr Connors' name.
203. Mr Hagan admitted that he had earlier employed Mr Meaker from time-to-time to supply drugs to other people for him. He said that he shared the proceeds equally with him. He said that Mr Meaker never expressed to him any strong feelings or grave concerns about the supply of drugs or the effects that drugs have on teenagers, especially females; he agreed that Mr Meaker "was doing financially very well" from this work.
204. He further denied that SI was agitated when he was in the garage, swearing at Mr Connors and using very strong language about him. He also denied that anyone told SI to "calm down, relax ... [or] words like that"
205. He again said that Person A followed him to SI's place on 23 October 2014. The chronology, however, does not fit easily with that. He explained why Mr Connors came, too, namely to collect his present for the new baby and Mr Hagan denied that he had told Mr Connors anything about the drugs that were to be placed in his car.
206. He confessed that he made no arrangements for Mr Meaker to contact Mr Connors during the journey to Melbourne, nor that there were any arrangements to that effect.
207. Mr Hagan was also asked about the mid-morning telephone conversation he had with SI, set out above (at [105]). He agreed that, in it, he referred to completion of the packing of the drugs into the car. He said that he thanked SI for the use of his garage. He acknowledged that during the telephone conversation, SI did not swear at him, complain to him or insult him about placing him in "this terrible position of using his garage to load the drugs into his car. He agreed that SI said he would refer further clients to him to obtain loans through Mr Hagan's mortgage broking; the reference to clients was not code for drug customers.
208. Detective Senior Constable Geordy Araya-Bishop was the informant in the proceedings, that is, he was the police officer responsible for the investigation of the offence and the coordination of that investigation, and then for the commencement of the proceedings initially in the Magistrates Court. See Kirsch v Dolman [2001] VSC 234; (2001) 123 A Crim R 331 at 337; [50]- [52].
209. He outlined the investigation that was conducted, particularly as to the collection and consideration of various items of evidence.
210. His evidence was not precise, but it appears that, shortly after Mr Meaker had driven Mr Hagan's car to the Weston AFP Forensics Science Centre, it was searched. The search was recorded by a video camera and the video footage was played while Detective Senior Constable Araya-Bishop was in the witness box.
211. It showed packets of drugs being located in various places in the car, including behind the front wheel guard. The search took approximately three hours, but I did not watch the whole of the three hours of video.
212. One of the bags had some gaffer tape stuck to it. Police also located a roll of gaffer tape in the boot of the car which appeared to be of the same type.
213. Detective Senior Constable Araya-Bishop attended Mr Hagan's house on 23 October 2014 at about 6:55pm. A search was conducted of the premises and a bag of methylamphetamine was found in the refrigerator. The drug purity was 77 per cent, similar to that of the drugs found in Mr Hagan's car.
214. Fingerprints and a sample of DNA were obtained from Mr Hagan and Detective Senior Constable Araya-Bishop checked the transcript of the covert recording of the conversation between Mr Meaker and Mr Hagan earlier that day and found it to be correct.
215. Detective Senior Constable Araya-Bishop later arrested Mr Connors on 24 August 2015 and obtained a sample of DNA from him and his fingerprints.
216. The bag with gaffer tape, seen in the video recording of the search of Mr Hagan's car, was subject to forensic examination and showed quite a very low reading or match for Mr Hagan's DNA.
217. During the search of Mr Hagan's house, his mobile phone was seized and later searched which showed a number of communications referred to in various parts of the evidence.
218. Police had also conducted a covert surveillance of Mr Hagan's house and showed the hire car rented by Mr Connors at the house.
219. A map of part of Melbourne showing the Epping Shopping Centre, to which Mr Meaker was directed to deliver the drugs, was also prepared by Detective Senior Constable Araya-Bishop and, on tender, admitted into evidence. It also showed where Mr Connors lived, about 20kms away from the shopping centre. He agreed that it would take 30 minutes to drive from Mr Connors' house to the shopping centre.
220. Detective Senior Constable Araya-Bishop obtained an expert opinion about the value of the drugs found in Mr Hagan's car. That estimation gave a street value for all the drugs if sold in different quantities. If sold in individual doses of a "point", that is 0.1 gram, the value would be $11.191 million; if sold in amounts of an ounce or 28 grams, the value would be $5.126 million.
221. In cross-examination, Detective Senior Constable Araya-Bishop agreed that the only prior convictions recorded against Mr Connors were two drink driving offences, one in 2004 and the second in 2012.
222. He acknowledged that no fingerprints of Mr Connors or traces of his DNA were found by police in connection with the investigation.
223. Detective Senior Constable Araya-Bishop was also asked about other persons. He said that the name "Tristan Waters" had only been mentioned in the proceedings and so no investigation had been carried out about him. He had also not taken a statement from SI who had declined to give one to police.
224. The evidence of Detective Senior Constable Araya-Bishop concluded the Crown case.
225. Mr Connor's wife, Nadia Connors, was called. She was currently living in Canberra, to where she had moved in July or August 2015. She and Mr Connors have two children.
226. She said that Mr Connors moved to Melbourne in about May 2013 when he moved into her home unit in Glenroy. They decided, however, to build a home in a Canberra suburb and Mr Connors purchased a block of land for that purpose. Mrs Connors had some medical problems and remained in Melbourne, while Mr Connors would travel to Canberra from time-to-time from about May 2013 to check progress of the construction of their house. He was, in fact, an owner-builder.
227. The couple married in 2013 and the baby son referred to earlier in these reasons a number of times was born in September 2014. They then moved into a rented town house in an outer Melbourne suburb.
228. When the house that they had been building had been completed in about September 2014, they decided to sell it, but the sale fell through. As a result they thought of moving into the house. Mrs Connors was granted 12 months maternity leave at the time. Mrs Connors' parents live in Canberra as does Mr Connors' mother. His mother lives in a suburb relatively near to where SI lives.
229. Mrs Connors recalled that the proposed move meant that Mr Connors travelled to Canberra a little more frequently to prepare the house for the family. She recalled that, returning from one trip, he brought home a present from SI for their son. She recalled that, on the night that happened, she called SI and spoke to him to thank him for the present. She said that Mr Connors and SI were friends.
230. The family then moved into Mr Connor's house in November 2014 as the new home was then being rented. After six months, however, they moved into the home where Mrs Connors is now living.
231. In cross-examination, Mrs Connors agreed that Mr Connors came to Canberra in connection with the building of their new home more frequently from about mid 2014 as the final touches were given for the new house. She also agreed that, while she had contact with him when he was in Canberra, she did not know to whom he would talk while he was present in this city.
232. She was asked how she recalled the telephone call with SI on 23 October 2014. She said that it was because it was probably the last time she had spoken to him. She said that the evening was "just a usual evening at home; sitting on the couch watching TV". She could not recall anything else about the evening apart from a phone call to SI. She said that Mr Connors plans for the evening were to be home with her. This was the usual pattern for them; she denied that he would "pop out at night" or that he would "make an excuse to say that he needed to go to the shops", though she said that, if she needed something, she would ask him to go so that she could stay home and care for the baby.
233. She said that the arrest of Mr Connors came as a shock to her. She was, at the time, pregnant with their second child. She was aware of the allegations against her husband but she had not seen a copy of the police Statement of Facts. She had not been told that the telephone conversation with SI might be an important conversation to remember. She had no knowledge of her husband dealing with illicit drugs, which so far as she was aware, he did not do. She had no knowledge of Mr Hagan dealing in illicit drugs either.
234. In re-examination, Mrs Connors said that she had been subpoenaed by the Crown to appear at the trial. She had not been called by the Crown to give evidence.
235. She also said that she had received gifts for their first child from other people who gave them to Mr Connors to bring back from Canberra and she telephoned those people also and thanked them for their gifts. She recalled, too, that when she spoke with SI on the evening of 23 October 2014, Mr Connors was standing next to her.
236. I note that Mr Connors did not give evidence. He was, of course, not bound to do so and I accept that there may be many reasons why he did not. As suggested in Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 at 70; [51], I warn myself that his silence is not evidence against him, does not constitute an admission by him, and may not be used to fill any gaps in the evidence tended by the Crown. It may not be used to make weight in assessing whether the Crown has proved its case beyond reasonable doubt.
237. I cannot, of course, speculate on what Mr Connors may or may not have said were he to give evidence as such speculation is not evidence.
238. While Mr Terracini sought in cross-examination to create some doubts about the honesty of Mr Meaker, this did not seem to me to be a crucial matter. There were some curious aspects of Mr Meaker's conduct. For instance, he said that he was very opposed to drugs, yet he seemed content to make a considerable amount of money in the dealing of the drugs he did for Mr Hagan.
239. Nevertheless, Mr Meaker's evidence was largely uncontroversial. He verified the covert recordings he had facilitated at the request of the police and it was what was recorded rather than what Mr Meaker said that was the substance of his evidence. He also gave an account of the actual events involving the drug delivery intended to be for Melbourne and this was not challenged in any significant way.
240. In all, I am happy to accept Mr Meaker's evidence, subject to further consideration of the admissibility of the covert recording he made on 23 October 2014.
241. The Crown relied heavily on the evidence of SI and, in a number of areas, the actual words he said had been spoken by Mr Connors and Mr Hagan.
242. While SI gave the impression of trying hard to tell the truth, there were some concerning aspects of his evidence. He did not give a statement to police and only spoke to the prosecutors from the Office of the Director of Public Prosecutions half way through his evidence. Thus, he appeared not to have been asked to set down his memory of the events, including conversations, about which he was to give evidence, until about 20 months after the event. This was not insignificant, for, after conferring with the prosecution, he then later wanted to add some further matters that had not been canvassed with the prosecutors in conference.
243. The most significant of such evidence concerned the alleged sighting of a car on the Cotter Road, down from SI's house. SI said that Mr Connors was concerned about it and went to investigate. This, he said, was after the vehicle, that had brought the drugs to his house so that they could be packed into Mr Hagan's car, had left. Indeed he said that it happened when the drugs were on his garage floor about to be packed into Mr Hagan's car.
244. This event, however, did not fit with SI's original chronology, which was that when he first came into the garage, he saw Mr Hagan packing the drugs into his car and it was then that he asked what was going on. At that time, he behaved so excitedly that he had to be told to calm down. He said that he "then basically told [Mr Hagan and Mr Connors] that he was leaving". He said he left almost immediately. Indeed, he was so upset at what was happening that, according to him, when he got to work later, he vomited.
245. It seems quite unlikely that, if SI was, as his evidence was clearly intended to show, removing himself from what he saw as a damaging and risky situation as quickly as possible, he would have waited around while Mr Connors drove down the road to check out the car said to be suspicious.
246. Either SI was not as concerned as he said about the packing of the drugs into Mr Hagan's car and did not leave as quickly as he suggested, or this event concerning the suspicious car did not occur. The two do not seem to me to be able to stand together.
247. In his evidence, SI also said that Mr Connors told him, "Just forget what you've seen" and, "Don't say anything". He accepted that he had also not told the prosecutors about this when they conferred with him.
248. Another piece of evidence given by SI was also directly inconsistent with other evidence he gave. When he was asked about the telephone call between himself and Mr Hagan at 11:21am on 23 October 2014, in which the reference to him referring "more clients" to Mr Hagan he said:
... when I said to him on the phone, "happy to refer you more clients", that's what I used to say to him because he did mortgage loans, and that was just rubbish I just used to say to him as a sort of a kind of ah - I don't know, you could call it a cover I suppose...
249. Given his involvement with Mr Hagan over drugs, the reference to "cover" can only mean that he was referring to persons to whom Mr Hagan might supply drugs. Thus, he was referring to the use of what might be called a code.
250. In cross-examination, however, he said that the reference to loans in that conversation was to actual loans that he would ask Mr Hagan, in his business of a mortgage broker, to effect. That was a direct contradiction, apparently made to preserve his position that he was distressed by what he witnessed on the morning of 23 October 2014.
251. Finally, the recording of a telephone conversations between SI and Mr Hagan on 23 October 2014 was said to have taken place after SI had said that he had been so shocked about what he had seen at his house that he had vomited at work, and that he later had coffee with Mr Hagan when he told him that he was "very unhappy with the position" that Mr Hagan had put him in and that he did not want to have any more contact with him. He said that, indeed, Mr Hagan had tried to make contact from him while in custody at the Alexander Maconochie Centre but he had declined.
252. The conversations as recorded, however, sound very friendly and, indeed, involve some social chit-chat of a kind that seemed to me to be quite inconsistent with the impression SI intended to give of his attitude to Mr Hagan as a result of what he had seen at his home. He did not swear at Mr Hagan as he had told the prosecutors. Conversations immediately prior to the meeting for coffee where SI said that he broke off all relations with Mr Hagan were also friendly and showed no hint of rancour.
253. I formed the impression that SI was prone to exaggeration, that he was trying to distance himself from the events that had taken place at his home and that I should be very circumspect about reliance on his evidence and, in particular, upon the precise words he recounted either Mr Hagan or Mr Connors had used on 23 October 2014.
254. I am not satisfied beyond reasonable doubt that the precise words recounted by SI would necessarily be the words that were actually used by either man.
255. Clearly, as noted above (at [166]-[167]), Mr Hagan was involved in the proposed delivery of the methylamphetamine to Melbourne and so would be an accomplice in any offence committed by Mr Connors in relation to that delivery. As such, his evidence should be scrutinised carefully and considered with caution.
256. Usually the evidence of a person who may be an accomplice, if the accused has committed the offence, is regarded as potentially unreliable because he or she may have "a motive to shift blame to the co-offender": Sio v The Queen [2016] HCA 32; 90 ALJR 963 at 974; [65]. That, however, is only one basis for the unreliability of the evidence because of the risk of falsification.
257. In this case, Mr Hagan's evidence was entirely exculpatory of Mr Connors. In that sense, it was not relied on by the Crown. Indeed, the Crown sought that I reject it. It has been suggested that, where the Crown does not rely on the evidence said to be unreliable, a warning is not appropriate: Judicial Commission of New South Wales, Criminal Trials Bench Book (Judicial Commission of New South Wales, 2016) at 691; [4-380]. The decision relied on, P v R (No 2) [2016] NSWCCA 44, however, related to the evidence of the accused which is, of course, in a different position to that of an alleged accomplice. I am not satisfied that it establishes the principle suggested.
258. It may be that the reference to the Crown not relying on the evidence is simply that the evidence was not adduced in the Crown case. Here, had Mr Hagan not been called by the Crown, which very properly it did, as he was inextricably involved in the events that founded the charge against Mr Connors, the defence may well have done so.
259. Unlike the warning about the unreliability of the evidence of accomplices at common law (see Jenkins v The Queen [2004] HCA 57; (2004) 79 ALJR 252 at 257; [27], relying on Davies v Director of Public Prosecutions [1954] AC 378 at 399), the more general warning about unreliable evidence under s 165 of the Evidence Act 2011 (ACT), does not require a reference to the need for corroboration (see s 164), though, of course, this may be a matter that is mentioned by the judge if the occasion arises as confirmation of the evidence of a witness rather than corroboration in the common law sense. See Galvin v The Queen [2006] NSWCCA 66; 161 A Crim R 449 at 457-8; [32].
260. Neither counsel, however, sought a direction under s 165 of the Evidence Act in relation to the evidence of Mr Hagan. The Crown, however, submitted that Mr Hagan was not a credible or reliable witness and that I should reject his evidence, save that the statements he made that were covertly recorded on 23 October 2014 and on the earlier occasions should be accepted as unguarded, genuine statements which accorded with the events that actually happened.
261. For Mr Connors, Mr Terracini pointed to elements of Mr Hagan's evidence which he said were true or confirmed. For example, on 23 October 2014, when Mr Hagan met Mr Meaker prior to Mr Meaker driving away in Mr Hagan's car, filled with drugs, he said:
ALEXANDER HAGAN: Yeah. Them cunts steal my shit and then doesn't bring it back, and (indistinct) take my car down there.
WAYNE MEAKER: Your car?
ALEXANDER HAGAN: You've got to go down the highway.
262. Mr Terracini pointed out that this was consistent with what Mr Hagan said in the witness box, namely that other people, that is Person A, compelled Mr Hagan, on behalf of unnamed other people (including Person B), to arrange the delivery of drugs on that day and one of the conditions with which he had to comply was that he use his car.
263. Mr Terracini also said Mr Hagan's evidence showed that the drug delivery to Melbourne had nothing to do with Mr Connors. That is certainly an available inference. Mr Hagan had no hesitation, as shown in the extracts reproduced earlier (at [78]) in mentioning Mr Connors as the recipient of the drugs. Thus, there is no suggestion that he was being coy with Mr Meaker. There is no clear explanation why he would not mention to him at that point if Mr Connors was actually involved.
ALEXANDER HAGAN: Just keep following the highway till you get to Cooper Street.
WAYNE MEAKER: Yep, in Melbourne?
ALEXANDER HAGAN: Right. In Melbourne.
WAYNE MEAKER: Yep.
ALEXANDER HAGAN: Chuck a right and there's a fucking shopping centre just up the road. Andrew's going to meet you there.
265. Two things are relevant here; in the first place, in the first extract (at [261]), he did not mention Mr Connors, suggestive that the persons compelling the delivery did not include Mr Connors and, in the second extract (at [264]), he gave wrong directions. That is to say, the shopping centre required Mr Meaker to turn left in Melbourne not right. Of course, that Mr Connors was said to be the person meeting Mr Meaker to whom the drugs were delivered, suggests his involvement. On the other hand, were he involved, he would have known that, in Melbourne, Mr Meaker had to turn left and not right.
266. As noted above (at [151] and [162]), Mr Hagan denied in the witness box that Mr Connors was involved and gave an explanation of why he used his name. He said that Mr Meaker would not have driven to Melbourne if he did not know who he was going to meet. This, it was noted, was in one sense confirmed by the fact that, in the covertly recorded conversation on 11 September 2014, Mr Meaker is recorded as expressing a concern that he be met by someone that he knew as mentioned above (at [43]).
267. It was also clear that other people, not including Mr Connors, were involved, for Mr Hagan was recorded on 11 September 2014 making comments about the arrangements that would be made for a proposed delivery from Sydney to Melbourne. It was said that the delivery was being organised by Slavco Popovki.
268. It seemed, in that case, however, that Mr Meaker would take money to Sydney, purchase drugs and deliver them to Melbourne, unlike this situation.
269. The Crown submitted that Mr Hagan's evidence was inherently incredible. It was submitted that Mr Hagan had initially said that Person A, whom he did not name, had come to his place on 23 October 2014, saying that he needed to borrow Mr Hagan's car that day. He later changed this to an event that happened on the previous day. He then said that Person A came over the next day as well, namely 23 October 2014, and asked to borrow his car. I did not see that as particularly inconsistent, but Mr Hagan's version of events was very hard to follow. Thus, he said that Person A simply wanted to borrow his car. That, of course, is not what Mr Hagan said then happened. Person A seemed to want Mr Hagan, or his associate, Mr Meaker, actually to use the car. They, or one of them, were to deliver the drugs, but Mr Hagan did not say that this was said by Person A. Indeed, he was pressed as to the conversation but did not suggest that Person A had told him to do what actually happened, namely to fill the car with drugs and for himself (or, presumably, with Person A's knowledge, someone else, namely Mr Meaker) to deliver the drugs to Melbourne.
270. Further, Mr Hagan did not suggest that Person A was at his place when Mr Connors or SI were there; SI said nothing about someone other than Mr Connors and Mr Hagan being there. There was, however, no conversation that Mr Hagan recounted between himself and Person A that the car was to be moved to SI's place to be filled with drugs and, indeed, that Person A would deliver the drugs there and then pick up the car from that place.
271. Further, Mr Hagan said that when he and Mr Connors went to SI's house, though in separate cars, they had some coffee, had some general conversation, went and looked at his swimming pool and other things, which took "a good 10 to 20 minutes". It was, on Mr Hagan's version then that he asked to use SI's garage.
272. Mr Hagan then said, most curiously, that he had not told Person A where they were going with his car, namely to SI's house. He said that Person A simply "followed [him] there". Indeed, he said that he had "seen him pulling up behind [him] when [he] left [his] house". How Person A could have followed Mr Hagan but not arrive until 10 to 20 minutes later was left unexplained.
273. I found it very difficult to make sense of all this. There seemed to be a complete disconnect between Mr Hagan's version of the events involving Mr Connors and SI on the one hand and those involving Person A and delivery of the drugs on the other hand without making the two consistent.
274. All in all, I found Mr Hagan to be an unimpressive witness. I do not reject all his evidence, but I am not prepared to rely on it to find any element of the offence with which Mr Connors has been charged without confirmation from other evidence.
275. That, of course, does not mean that the opposite of what Mr Hagan says is proved. That is to say, that I reject his evidence on most matters does not mean that the opposite of what he says is proved.
276. I accept Detective Senior Constable Araya-Bishop's evidence and all of his evidence. There was little that was controversial about it.
277. The defence called Mr Connors' wife, Nadia Connors. Ms Connors impressed me as truthful and honest in her evidence. She gave her evidence carefully and did not appear to exaggerate or express confidence in her memory beyond what was reasonable. It was suggested by the Crown Prosecutor that "she didn't really have a clear memory of other things that happened that night", namely 23 October 2014, when she called SI to thank him for the present for their son that he had given Mr Connors to bring back from Canberra. At one level that was true, but it was clear to me that this was because nothing unexpected, such as her husband leaving home during the evening, had likely happened.
278. I am prepared to accept Ms Connors evidence entirely.
279. There was an objection to the admissibility of the covert recording of the conversation between Mr Meaker and Mr Hagan on 23 October 2014.
280. The nature of the objection was not entirely clear when first articulated. It was not more clearly articulated in final submissions. Indeed, Mr Terracini actually relied on passages from it when making his closing submissions.
281. The question of admissibility and the use to be made of this recording seems to me to have four aspects:
(c) was the probative value outweighed by its prejudicial effect?
(d) was it an admission or evidence of acts in furtherance of the joint criminal enterprise by Mr Connors?
282. Treating each of these matters separately, I make the following findings.
283. The Crown case was essentially a circumstantial case. Such a case is one where there is no direct testimony of the existence of the essential elements of an offence but where other evidence will permit a court to draw inferences that such elements exist. As J D Heydon, Cross on Evidence (LexisNexis Butterworths, 1996) (at service 178) at 1040; [1100], explains that in such a case:
resort almost always has to be had to 'circumstantial evidence', which may be defined as any fact (sometimes called an 'evidentiary fact', factum probans or 'fact relevant to the issue') from the existence of which the judge or jury may infer the existence of a fact in issue (sometimes called a 'principal fact' or factum probandum). See Festa v The Queen (2001) 208 CLR 593 at 597; [5].
284. To be relevant, evidence must pass the test in s 55 of the Evidence Act. That is to say, it must be evidence which, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. That is to say, it provides the basis for an inference that an essential fact exists.
285. It need not, however, be the only piece of evidence which can found such an inference. As the Court pointed out in Elomar v The Queen [2014] NSWCCA 303; [2015] 316 ALR 206 at 258; [240]:
The very point of a circumstantial case, as this was, is that it creates a mosaic of sometimes apparently tiny items of evidence, that, when put together, make up a whole picture. The tiniest fragment of evidence might, on completion of the mosaic, be shown to have significant relevance. It is a mistake, particularly in a circumstantial case, to attempt to determine the relevance of each individual item of evidence in isolation from all of the other evidence.
286. There can be no doubt that Mr Hagan's reference to Mr Connors as being the person who would meet Mr Meaker in Melbourne would, if accepted, permit a jury properly instructed to infer that Mr Connors was a participant in the trafficking of the methylamphetamine.
288. The evidence, however, is hearsay. That is to say, it is evidence of a representation made principally by Mr Hagan, but also Mr Meaker, but representations not made by them in Court. That is to say, they are previous representations: Dictionary to the Evidence Act. They are adduced in order to prove the fact of Mr Connors' participation in the trafficking, that is the truth of their content..
289. As such, these statements are inadmissible unless there is an exception under the Evidence Act which would permit them to be adduced: s 59 of the Evidence Act. The Crown submitted that they were admissible as admissions by Mr Connors. I shall deal with that below.
290. Mr Terracini did not address this issue in his closing submissions; while he did not expressly eschew the objection to the evidence that he had earlier made, he did not elaborate on it or support it with argument.
291. It was held in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 287; [149], that "not admissible" means "not admissible over objection". Although a civil case, that construction of the phrase was affirmed in R v Chai [2002] NSWCCA 512 at [41] and, more recently, in Perish v The Queen [2016] NSWCCA 89 at [270]. Thus, inadmissible evidence is admissible if no objection is taken to it.
292. I note that in S J Odgers SC, Uniform Evidence Law (Law Book Co, 12th ed, 2016) at 28-31; [EA.Intro.350], the learned author gives what, with respect, seems a trenchant and cogent critique of such an interpretation. He notes the maintenance of the view by the courts, however, and indeed, despite the hesitation of the Victorian Court of Appeal in Velkoski v The Queen [2014] VSCA 121 at [200] about adopting that construction, that Court declined to depart from that construction.
293. In the light of these authorities, and in the absence of clarification by the High Court, which Mr Odgers suggests is necessary, I regard myself as bound by these views unless convinced that they are wrong. I am not so convinced, though troubled.
294. In any event, it seems to me that the state of the proceedings is such that I should not, in any event, rely on this approach in determining the admissibility of the evidence. It seems to me that, so far as it is hearsay, the evidence would be inadmissible. Thus, unless it was admissible under an exception to the hearsay rule, it was not admissible for the purpose of proving the truth of what was stated in it.
295. Thus, on one view, the evidence was, unless constituting acts in furtherance of the joint criminal enterprise or admissions made on Mr Connors' behalf, as explained below (at [307]-[317]), not admissible.
296. There is, however, another basis on which it would be admissible, namely as part of the circumstances from which the joint criminal enterprise could be inferred and, if so, the nature of that enterprise and the participation of Mr Connors in it.
297. In this sense, the evidence is not hearsay but direct evidence. See R v Masters (1992) 26 NSWLR 450 at 461.
298. Thus, the admissibility is quite separate from the use as hearsay, admissible for the purpose of proving the truth of what was said.
299. I am satisfied that the recording was admissible on this basis.
300. It seems to me, as a matter of fairness in the context of what was argued before me, however, that, unless it is admissible as hearsay on the basis discussed above (at [289]), I should make a direction under s 136 of the Evidence Act that the evidence not be used as evidence of the truth of the representations, that is as evidence of acts in furtherance of the joint criminal enterprise or admissions by Mr Connors, unless I am so satisfied independently of that.
301. Under s 137 of the Evidence Act, I must exclude this evidence if the danger of its unfair prejudicial effect outweighs its probative value.
302. In this case, the probative value is high; it was a statement by Mr Hagan, a key participant in the offence of trafficking in methylamphetamine, that another person, namely Mr Connors, was also a participant, in circumstances where Mr Hagan was not aware that his statement was being recorded and where Mr Meaker, to whom the statement was made, was also, at least to Mr Hagan's belief, a willing participant.
303. Unfair prejudicial effect means unfair prejudice to an accused, that is that the evidence may be misused by the tribunal of fact, usually in criminal cases by a jury. See R v Yates [2002] NSWCCA 520 at [252].
304. No unfair prejudice was suggested by Mr Terracini. The only unfair prejudice I can identify may be that a jury (though there was none here) may think that Mr Connors has authorised the statement by Mr Hagan. That seems to me to be quite unlikely and a direction could easily be crafted to be comprehensible to a jury which would resolve that issue.
305. I will give myself that direction, namely that, merely because Mr Hagan has referred in the covertly recorded conversation to Mr Connors meeting Mr Meaker in Melbourne and then taking possession of the drugs from Mr Hagan's car, this evidence does not by itself mean that Mr Connors is going to do that or has authorised Mr Hagan to say so on his behalf.
306. I am satisfied that, with this direction, the probative value of the evidence is not outweighed by the danger of unfair prejudice to Mr Connors. I am prepared, accordingly, to admit the recordings.
(d) Use as statements in furtherance of the enterprise or admissions
307. Having decided that the recording is admissible, the next issue raised by the Crown is whether any inculpatory statements in it are admissions or are acts in furtherance of the joint criminal enterprise it alleged against Mr Connors and Mr Hagan.
308. Counsel for the Crown submitted that the approach taken to the offence of conspiracy was relevant and applicable.
309. Mr Terracini submitted to the contrary; indeed, he submitted "vehemently" that conspiracy and joint criminal enterprise were "very, very different". He submitted that conspiracy required "overt acts" (s 48(2)(c) of the Criminal Code) which a joint criminal enterprise did not require and that there were other differences. He agreed, however, that there were similarities and these included some similarities in relation to the admission of evidence.
310. The Crown relied on two bases for the admission of the recorded conversation as inculpatory. This mirrored the approach taken by the Crown in Elomar v The Queen at 262; [268]-[269], where it was described as follows:
311. Thus, the Crown particularly relied on the approach of the High Court in Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 and, in particular, what has been called the
co-conspirator's rule, which was summarised in Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 at 94-5, as follows:
when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi, [at 7]. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business ...
312. That rule, however, is subject to limitations. Thus, as the Court said in Ahern v The Queen at 100:
In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant ... [emphasis added.]
313. If it is accepted that the co-conspirator's rule applies to the joint commission of offences, then it is necessary to be satisfied first of the existence of the agreement that is fundamental to a finding that the offence committed was part of a joint criminal enterprise before any acts by one party outside the presence of an accused can be said to be acts of the accused in furtherance of the enterprise, or admissions by one party outside the presence of the accused, can be said to be admissions of the accused.
314. While I was not benefitted with full argument on the matter, it seems to me that there is much to be said for this approach to a joint criminal enterprise and I am prepared to proceed accordingly.
315. The other basis, namely under s 87(1) of the Evidence Act, needs also to be considered. That section is as follows:
87 Admissions made with authority
(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that -
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. [emphasis added]
(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove:
(a) that the person had authority to make statements on behalf of another person relation to a matter; or
(b) that the person was an employee of another person or had authority otherwise to act for another person; or
(c) the scope of the person's employment or authority.
316. Section 87(1)(c) of the Evidence Act is accepted as a statutory form of the
co-conspirators' rule: R v Macraild (Unreported, New South Wales Criminal Court of Appeal, Sully, Dunford and Simpson JJ, 18 December 1997).
317. Thus, before I can rely on anything said by Mr Hagan as recorded in the covert recording made on 23 October 2014, I have first to find that there was a joint criminal enterprise.
318. For the reasons set out below, I am not so satisfied and, accordingly, I will, in admitting the recording, give myself the direction foreshadowed above (at [305]).
319. In general terms, the facts were not difficult to find. There was not much challenge to many of the facts of which evidence was given, as opposed specifically to the inferences to be drawn from these facts. I make the following findings beyond reasonable doubt.
320. I am satisfied that Mr Meaker became an informant for the police and, as such, used his friendship with Mr Connors, with whom he had been a friend the longest, and Mr Hagan, to supply police with information about drug dealing.
321. Although Mr Hagan conducted business as a mortgage broker, he was also engaged in dealing in illicit drugs, specifically cocaine and methylamphetamine.
322. Mr Connors and Mr Hagan were also friends and, although Mr Connors used Mr Hagan to arrange funds for the construction of his new house in Canberra, he was also engaged with him in drug dealing, though the evidence does not permit me to find the actual extent of such dealings. I am satisfied that, between 3 September 2014 and 23 October 2014, Mr Connors and Mr Hagan had many communications electronically, by phone or short messaging service (SMS) on 39 occasions.
323. Although he denied it, I am satisfied that Mr Hagan had been involved in the delivery of drugs to or from interstate from time-to-time. He was, it seems to me, not the source of the drugs in which he dealt, but that he obtained the drugs from someone else as the delivery to him of the drug shipment on 23 October 2014 shows and has to be inferred from the conversations recorded on 11 September 2014. There is also nothing in the covert recordings to show that Mr Hagan was the source of the drugs that he supplied and, indeed, the involvement of others, including the persons identified as Matt and Slav and, indeed, the reference to another dealer in the telephone conversation he had with SI later in the morning on 23 October 2014, confirms my view.
324. Mr Hagan's evidence about how the arrangements were made for the drug delivery was very unsatisfactory. For example, he was clear, indeed insistent, that Person A had simply said to him, on instructions from Person B, that he wanted "to borrow his car". Of course, that is not what Person A wanted. He wanted Mr Hagan or someone else, such as Mr Meaker arranged through Mr Hagan, to drive the car, full of drugs to Melbourne. In one very colloquial sense that may be "to borrow his car", but unless there had been similar events in the past, and Mr Hagan seemed to deny that, it would be difficult from the bald statement to imply what Mr Hagan said happened.
325. Despite insisting that all he was told was that his car was to be borrowed, Mr Hagan seemed to know that it was to be packed with drugs, not something he said he had been told, but which was the only intention consistent with his actions.
326. He then gave no explanations as to how the recipient of the drug delivery would know that Mr Meaker and not he would be driving the car, nor how anyone would know when it would arrive in Melbourne.
327. I cannot accept that such casual and almost incompetent arrangements would have been made for the delivery of such a large quantity of drugs worth millions of dollars.
328. Although I have a suspicion, I cannot and do not find that Mr Connors came to Canberra on 22 October 2014 in order to arrange the delivery of drugs or in connection with it. The construction of his house, the use of his own name for booking the flight and the hiring of the car, and the conversations reported by SI are sufficient for me not to be satisfied that this was the purpose of intent of his visit. It is also unclear why, on the Crown case, he needed to do so.
329. In particular, SI, whose evidence was relied on heavily by the Crown to show that, in his garage, Mr Connors made inculpatory statements, did not suggest in his evidence to any extent that, until then, there was any expression by Mr Connors of involvement in the drug delivery or in any of its preparation. Thus, he did not report that Mr Hagan had told him, when he asked him to come over early in the morning, that Mr Connors was there. He did not suggest that Mr Connors was in any way involved in Mr Hagan wanting to use his garage for his car or, indeed, knew that.
330. I am satisfied that, as SI clearly said, the reason Mr Connors came over to SI's place was because Mr Connors had forgotten on a previous occasion to collect the gift SI and his wife had bought for Mr Connors' new child.
331. I am also satisfied that Mr Hagan was approached by someone else to arrange the drug delivery on 23 October 2014. His evidence was very unsatisfactory, but I am able to make this finding for the following reasons.
332. The recorded conversations show that Mr Hagan is well aware of the risk that police, even merely traffic police, may intercept a car delivering drugs. The use of his car would clearly implicate him and, therefore, I think it likely that there was pressure placed upon him. The use of SI's garage shows signs of lack of pre-planning. The recorded conversations also showed that Mr Meaker asked for and it was agreed that he would receive some days' notice for a "drug run" but, here, Mr Hagan gave him none, further suggesting pressure on him. Mr Connors used his own name to hire the car, whereas it would it seemed likely that, if he had known of the delivery, he could have hired it in another name, even Mr Meaker's name as he was to be the driver, and so insulate himself and Mr Hagan from discovery. Further, Mr Hagan received a packet of drugs himself as police found in his refrigerator. Mr Waters delivered the drugs; they did not come from the apparent possession of either Mr Hagan or Mr Connors.
Mr Connors did not seem on any version to have any involvement in the unloading of the drugs.
333. SI was not clear, but suggested that, at his house, either one of Mr Connors or Mr Hagan went from inside the house to the garage just about the time the drugs were being delivered and before he, SI, and the other of the two later followed. From the chronology set out in his evidence, I am able to conclude that it must have been Mr Hagan who went there first and that Mr Connors accompanied SI there later, by which time the drugs were out of the vehicle in which they had arrived. That is also consistent with Mr Hagan's evidence. While I have some hesitation in accepting most of his evidence, I consider this likely to be correct in this case.
334. I find that Mr Hagan asked to use SI's garage and he put his car there. Mr Hagan then took a call on his phone. Later, Tristan Waters came in a vehicle to deliver the drugs which he and Mr Hagan unloaded onto the garage floor. This is when, I find, SI and Mr Connors arrived in the garage.
335. SI said that either Mr Hagan or Mr Connors spoke to Mr Waters but then the two unloaded the drugs. SI said that Mr Hagan did the unloading and that Mr Connors did not. This confirms my view that Mr Hagan was directly involved and that Mr Connors took no step so far as the physical delivery or, indeed, any knowledge of the drugs was shown on the evidence.
336. Mr Hagan packed the drugs into his car. Mr Connors had no part in this. All SI saw was that they were packed into the area under the front passenger's side mudguard. The police search shows, however, that they are packed in the boot and elsewhere in the car.
337. SI gave evidence that, when he saw the drugs, he was upset and that Mr Connors calmed him down. Mr Hagan, however, was asked no questions about that by the Crown. In particular, he was not asked whether Mr Connors had tried to calm SI down or whether Mr Connors had told SI not to say anything about what was happening. Mr Hagan was, however, asked in cross-examination by Mr Terracini and denied that SI was very agitated or that Mr Connors had to calm him down.
338. SI said that Mr Connors not only told him to calm down but said, "Don't say anything" and that was when he left and asked Mr Hagan to close the garage. Mr Hagan answered, "Ok, we won't be much longer". These statements were relied on by the Crown as significantly inculpatory. Given the concerns I have expressed about SI's evidence, I am not satisfied to the requisite degree that these exact words were said or that other words inculpatory of Mr Connors were said.
339. SI also recalled, rather out of the blue, that Mr Connors noticed a car he thought may have been suspicious on the Cotter Road. Mr Connors then drove down to see if it was. I noted earlier (at [244]), that this does not fit with SI's chronology and his alleged extreme distress at seeing his garage used for Mr Hagan's car with a large amount of drugs.
340. On the other hand, SI's telephone conversations with Mr Hagan later that morning are entirely cordial and, contrary to his later evidence, indicative of an ongoing relationship. That clearly terminated with Mr Hagan's arrest and, it would appear, SI's entirely understandable efforts to distance himself then from Mr Hagan. I am not satisfied that SI was as distraught as he said he was while in the garage and later on the morning of 23 October 2014. That would, to some extent, support the truth of the incident about the allegedly suspicious car. Mr Hagan denied the incident. He had no advance warning about this matter and that it was to have been given in evidence as SI only told anyone about it shortly before he actually gave that evidence. In denying that it happened, Mr Hagan seemed genuinely as though he had no knowledge of such an incident. I am suspicious but not satisfied that it occurred. Accordingly, I decline to draw an inference from it that Mr Connors was involved in the drug delivery to Melbourne. Had it occurred, it would not be the only logical inference that could have been drawn. There is no reason not to suppose that Mr Connors may well have wished to protect his friend, even if not involved in the enterprise.
341. Later in the morning, SI and Mr Hagan had a telephone conversation. It did not seem to me to show any animosity and, indeed, showed a good deal of friendliness. I am not satisfied that SI's explanation that he thought the authorities might be intercepting the telephone calls explained this. It is, however, not necessary to make final findings as to whether SI told Mr Hagan, when they did meet later that afternoon, that he wanted no more to do with him.
342. There were two calls that afternoon between Mr Connors and Mr Hagan. In neither of them, even subjecting them to the most sceptical scrutiny, can I find any suggestion of the apparently necessary requirement for Mr Hagan, on the Crown's case, to tell him that Mr Meaker had left and where there was to be a meeting in Melbourne and, more importantly, when and with whom.
343. I find that Mr Meaker left Mr Hagan's house at some time shortly before 1:30pm and drove to the Weston AFP Forensic Science Centre, where the car was searched and, taking about three hours, the drugs were located.
344. I do find that later that night, SI spoke to Mrs Connors, who thanked him for the gift for her son and that Mr Connors was with her at that time. I am satisfied that Mr Connors did not leave the house that night.
345. I am satisfied that, sometime later, probably around 7:45pm, SI told Mr Connors that Mr Hagan's house had been raided by the police.
346. As noted, this is a largely circumstantial case. This requires a special approach by the Court. In R v Baden-Clay [2016] HCA 35; 334 ALR 234 at 242; [46]- [47], the High Court explained:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.
347. The Crown relied on the following matters to show that the only inference that could be drawn from the evidence was that Mr Connors did have an agreement with Mr Hagan to traffick in the methylamphetamine:
(a) his friendship with Hagan including regular phone contact;
(b) evidence pointing to the accused's involvement with Hagan in the drug trade and transportation by at least 11 September 2014;
(c) his travel to Canberra on 22 October 2014;
(d) his presence at Hagan's house on the morning of 23 October 2014;
(e) his presence in [SI's] garage with the drugs combined with talking to the driver of the ute who delivered the drugs, leaving the garage briefly to investigate a car down the street, and telling [SI] to 'calm down' when Hagan was pulling the mudguard down to pack the drugs into the car;
(f) [SI] using the plural when telling both Hagan and the accused to lock the garage in a way which suggested that at the time he regarded the accused was a participant in the enterprise;
(g) The accused returning to Melbourne prior to the delivery of drugs;
(h) Leaving his rental hire car for Hagan to use while Hagan's car was used to deliver the drugs;
(i) Instructions by Hagan in the surveillance recording to WM telling him to drive to Melbourne and deliver the drugs to the accused in his big black Range Rover;
(j) The inherent improbability of WM delivering an enormous quantity of drugs to a shopping centre in Melbourne without knowing when and who to meet;
(k) Registration records showing the accused owned a black Range Rover;
(l) Driver's licence record showing accused lived at Glenroy (or on wife's evidence at Keilor), VIC near the shopping centre where WM was to deliver the drugs;
(m) Phone call with [SI] at about 7:21pm or 7:40pm that day where [SI] told him police cars were at Hagan's house and the accused said, 'thanks for telling me' and was quiet.
348. I did not, however, make a finding about all the facts alleged at (e) or the facts alleged at (f).
349. To these matters, however, may be added that Mr Connors lived relatively close to the shopping centre where Mr Meaker was to deliver drugs in Melbourne, a large city, though it was not a complicated place to find when simply following the highway and turning just off the highway as it nears its termination.
350. In addition, the evidence of Mr Hagan about the arrangements for the drug delivery were so skimpy that they implied greater knowledge by him of the details than he suggested he had and which could found an inference of Mr Connors' involvement. For instance, Mr Hagan made no mention of being told about the place where Mr Meaker was to deliver the drugs in Melbourne or how to get there.
351. On the other hand, Mr Terracini drew my attention to a number of other matters that needed to be taken into account. These were as follows.
352. The association Mr Connors had with Canberra. Mr Connors' mother lived in Canberra, in fact, in Curtin, a suburb not very far from where SI lived. Mrs Connors' parents also lived in Canberra. He had bought a block of land in an outer suburb of Canberra and from about May 2013 was building a house on it. He and his wife were contemplating moving into the house when built. As virtually an owner-builder, Mr Connors came frequently to Canberra to attend to the work on the house.
353. Mr Connors and Mr Hagan were long-time friends. Mr Hagan, as a mortgage broker, arranged finance for the building of Mr Connors' house. The 39 phone calls between them, to which the Crown referred, were consistent with these relationships. In particular, there were no such communications between 16 and 23 October 2014, the period immediately preceding the packing of the drugs into Mr Hagan's car, which also supports Mr Hagan's evidence that he was not aware that Mr Connors was in Canberra until Mr Connors visited him on 22 October 2014.
Mr Connors' attendance at Mr Hagan's house on 23 October 2014
354. The two men had met briefly on 22 October 2014 and Mr Hagan asked him to come over the next day. Mr Connors was staying with his mother in the same suburb as Mr Hagan at the time. There was no communication other than that which was in evidence, despite the extensive telephone interception records that was conceivably relevant to these attendances. There is no evidence to suggest that the attendance of Mr Connors was other than as explained by Mr Hagan.
355. The express evidence of SI was that Mr Connors came to his house for the purpose of collecting a gift for his son which SI had bought and which Mr Connors had forgotten to take home on an earlier occasion. Mr Connors and Mr Hagan drove to SI's house in separate cars. Mr Connors had, according to SI, no part in Mr Hagan asking to use SI's garage for his car.
356. The evidence of the use of Mr Hagan's car and the involvement of Mr Meaker without any real notice suggests a lack of detailed preparation by Mr Hagan in a way expected were he, or, indeed, Mr Connors, the organiser. To this must be added the suggestion made in the covertly recorded conversation of 11 September 2014 that "Matty" (Mr Barbaro) was the potential recipient without any suggestion of Mr Connors being involved.
The evidence about the execution of the drug delivery
357. Apart from the comments made above (at [353]), about the communications between Mr Connors and Mr Hagan immediately prior to 23 October 2014, there was no other relevant evidence. There was no evidence to suggest that Mr Connors knew of Mr Meaker's involvement in the delivery. Despite Mr Connors being in an aeroplane when Mr Meaker left Mr Hagan's house, there was no evidence of any communication with Mr Connors about this important fact. Indeed, there was important evidence of two telephone conversations between Mr Hagan and Mr Connors after they had left SI's house. They had been covertly recorded. One was at 3:50pm and the other at 4:22pm. In neither of these conversations was there any mention of the events of the morning (other than that Mr Hagan was going to extend the hire of the car Mr Connors had driven and had left for Mr Hagan to drive) and no mention of Mr Meaker, his time of departure or estimated time of arrival. There was an unanswered call between those times and an SMS message neither of which related to the drug delivery.
358. Perhaps most significantly is the evidence of what happened that evening. Mr Meaker is likely, on the evidence, to have arrived at the delivery place between 7:30pm and 8:00pm. The evidence was that it would take Mr Connors about 30 minutes to drive from his home to the delivery place. Thus, to get there to meet Mr Meaker, Mr Connors would have had to leave home at about 7:00pm. The telecommunications records, however, show that at 7:22pm, Mrs Connors was speaking to SI. Her unchallenged evidence was that Mr Connors was with her when she did so. At this time, Mr Connors had no knowledge that Mr Hagan had been arrested by police and, even when he was told that, he was not told that Mr Meaker had not driven to Melbourne, so there was no basis for him to assume that the drugs were not at or going to be at the delivery place.
359. Mr Terracini also relied on what Mr Hagan had said in evidence. While I have expressed grave reservations about his evidence, I am, of course, required to consider it as part of the "accumulation of the evidence": R v Chamberlain (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 535. Indeed, there is a judicial duty on me to consider all of the evidence: Mifsud v Campbell (1991) 21 NSWLR 725. See also R v Smith [2000] NSWCCA 202 at [79]- [86].
360. The events in Melbourne, Mr Terracini suggested, were consistent with Mr Hagan's evidence that he lied to Mr Meaker about Mr Connors meeting him at the delivery place, a lie he told because, he said, based on the earlier conversations with Mr Meaker, he knew that he needed to be told who was to meet him when delivering drugs and Mr Connors was the only person both of them knew in Melbourne.
361. Further, he submitted that Mr Hagan did leave open the possibility in his conversation with Mr Meaker that Mr Connors would not be there. This was said to have been found from the following exchange:
ALEXANDER HAGAN: Okay. And to meet you at the entrance in Cooper Street. So, if he's not there ---
WAYNE MEAKER: Yep?
ALEXANDER HAGAN: You'll see a big black Range Rover. You know his black Range Rover he drives?
WAYNE MEAKER: Yeah. Well, I'll find that.
ALEXANDER HAGAN: If you don't see that just keep following that road. You'll see it because you (indistinct).
WAYNE MEAKER: All right. Easy.
362. Strictly speaking, what Mr Terracini submitted is correct, but the inferences do not seem to me to be what he would want me to draw. That is, I do not see this as suggesting that Mr Connors may not be there and someone else would be there; rather it suggests that Mr Connors may be late. The big black Range Rover was, on the evidence, a car driven by Mr Connors. Either Mr Connors would be in it, or the only other reasonable interpretation is that he had given it to someone else for the purpose of meeting Mr Meaker. In that event, there is an available inference that Mr Connors was involved in the drug delivery.
363. On the other hand, Mr Hagan did allow Mr Meaker to take Mr Hagan's phone number just in case he needed to contact him and this provided a mechanism for him to contact Mr Hagan if he was unable to find Mr Connors as, on Mr Hagan's evidence, he would not be able to do, as Mr Connors was not involved.
364. Further, Mr Meaker did not have a telephone contact for Mr Connors and no means to contact him.
365. Finally, Mr Terracini raised issues related to the planning compared with the execution of the plan for the delivery of the drugs. His submission, as a series of questions, was as follows:
The totality of the evidence demonstrates that the Crown cannot exclude that the Accused was not party to an agreement to transport drugs to Melbourne.
367. This is, of course, the test for a circumstantial case, as this case is, and as set out by the High Court since Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634. It has been restated many times since then: Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 243; Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104-5; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 578.
368. I have considered carefully the evidence adduced. It is summarised above and although obviously I have not repeated every piece of evidence, I have considered it all.
369. The Crown's circumstantial case is strong. I found Mr Hagan's evidence hard to accept and it left unanswered many questions that left me with grave suspicions.
370. It is not a matter of me considering each piece of circumstantial evidence separately or in isolation to see if there is a reasonable inference that is consistent with Mr Connors' innocence: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638-9; [48]- [52]. While, for example, the presence of Mr Connors at his own home at about 7:30pm on 23 October 2014 is powerful evidence consistent with his innocence, I cannot merely rely on that.
371. It is not enough. I have to be satisfied that, on the whole of the evidence, including the powerful countervailing matters on which the Crown relies, there is no rational explanation inconsistent with the innocence of Mr Connors.
372. I have carefully considered the Crown case and the matters raised by Mr Connors in answer to see whether, taking all of that evidence and the inferences to be drawn from it into account, I can be satisfied that the Crown case excludes any rational explanation consistent with the innocence of Mr Connors.
373. I am not so satisfied and, accordingly, the verdict must be one of not guilty. I will so order.
I certify that the preceding three hundred and seventy-three [373] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Connors
(2001) 207 CLR 96
(1988) 165 CLR 87
(2001) 205 CLR 50
(1975) 133 CLR 82
(1998) 197 CLR 250
(2004) 79 ALJR 252
(1991) 21 NSWLR 725
(1911) 13 CLR 619
(1963) 110 CLR 234
(1984) 153 CLR 521
(2007) 228 CLR 618
(1992) 26 NSWLR 450
(2016) 309 FLR 299
(2000) 49 NSWLR 262
(1990) 170 CLR 573
(1961) 104 CLR 1
(2001) 208 CLR 593
WAYNE MEAKER: What did he say when you told him it was me?
ALEXANDER HAGAN: (Indistinct) I said, "Fuck off. He's doing it. He needs money". I said, "He's in shit. He needs money". He didn't ask me why and I didn't tell him. I don't tell Andrew anything (indistinct).
WAYNE MEAKER: You told me that.
ALEXANDER HAGAN: (Indistinct) mixed around (indistinct).
WAYNE MEAKER: Stirs him up.
ALEXANDER HAGAN: You should've seen him at the wedding. Fucking nightmare. He was here all day yesterday. We had the biggest fucking discussion about how he's acting and everything he goes, "I'm fucking sorry". I go, "Don't be sorry, cunt". Cause I am your mate, bikies are fucking idiots. And you're dumping your mates for bikies. He says, "Bullshit" and he got self-defensive.
WAYNE MEAKER: I'm glad you told him.
ALEXANDER HAGAN: I had to.
WAYNE MEAKER: Fuck.
ALEXANDER HAGAN: I had to, mate.
...
WAYNE MEAKER: You paid all Andrew's fines have ya?
...
ALEXANDER HAGAN: (Indistinct) You can remember that stuff, can't ya?
WAYNE MEAKER: Yeah. I can remember it. (Indistinct) remember it because of Coopers beer.
ALEXANDER HAGAN: Yeah. (Indistinct).
WAYNE MEAKER: It's a little suburb. Starts with E, you said?
ALEXANDER HAGAN: I think it's E. I can't remember. But what I'll do is I'll tell Andrew that you're leaving at 1:30pm.
WAYNE MAKER: Yep.
ALEXANDER HAGAN: Okay. And to meet you at the entrance on Cooper Street. So, if he's not there ---
WAYNE MEAKER: Yep?
ALEXANDER HAGAN: You'll see a big black Range Rover. You know his black Range Rover he drives?
WAYNE MEAKER: Yeah. Well, I'll find that.
...
ALEXANDER HAGAN: That will get you all the way down there and all the way back I reckon.
WAYNE MEAKER: Yep.
AEXANDER HAGAN: Pretty close anyway (indistinct).
WAYNE MEAKER: All right.
ALEXANDER HAGAN: And if you - when you get there, if you think you're not going to have enough (indistinct) to get home, say: "Andrew, I need you to fill the car up".
WAYNE MEAKER: (Indistinct).
ALEXANDER HAGAN: Yeah, he will (indistinct).
WAYNE MEAKER: No, I won't.
ALEXANDER HAGAN: (Indistinct).
WAYNE MEAKER: I'm not fucking stirring him.
ALEXANDER HAGAN: I told him that (indistinct) recently it's fuck all.
WAYNE MEAKER: Yep.
ALEXANDER HAGAN: And I said, "Wayne knows you don't (indistinct)". I've told him a fucking thousand times. I've said the coppers aren't asking about (indistinct).