R v Osborne; R v Dayaratne; R v Leahy [2025] QSC 243

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY - where the defendants were jointly charged on the indictment that they carried on the business of unlawfully trafficking in dangerous drugs, with a serious organised crime circumstance of aggravation pursuant to s 161Q of the Penalties and Sentences Act 1992 (Qld) - where the defendants pleaded not guilty to the offence of trafficking in dangerous drugs with a serious organised crime circumstance of aggravation, but guilty to the offence of trafficking in dangerous drugs - where the Crown did not accept their guilty pleas - where the trial proceeded as a judge-alone trial - whether the Crown has proved beyond reasonable doubt the elements of the circumstance of aggravation - whether the Crown has proved beyond reasonable doubt that in the relevant period each of the defendants were participants in a "criminal organisation" as defined by s 161O of the Penalties and Sentences Act 1992 (Qld) and knew, or ought reasonably to have known, that the offence was being committed in association with participants in a criminal organisation

Criminal Code Act 1899 (Qld), s 575, s 615, s 615B, s 615C

Drugs Misuse Act 1986 (Qld), s 5

Penalties and Sentences Act 1992 (Qld), s 161N, s 161O,

s 161P, s 161Q

R v Hill (No 2) [2020] QSC 309; (2020) 6 QR 1

R v Hilton (2020) 3 QR 260

R v Simpson [2024] QSC 295

R v Stasiak and Turkyilmaz [2019] QSC 260; (2019) 2 QR 533

The State of Western Australia v Bell [No 3] [2014] WASC 341

Office of Director of Public Prosecutions (Qld) for the Crown

Hounsell Cunningham Lawyers for the first defendant

• [1] The defendants, Matthew Brett Osborne ("Osborne"), Kushan Thosainge Thanuj Dayaratne ("Dayaratne") and Garth William Leahy ("Leahy"), are jointly charged on indictment 1275 of 2022 that between 8 April 2019 and 25 June 2019 they carried on the business of unlawfully trafficking in dangerous drugs, with a serious organised crime circumstance of aggravation pursuant to s 161Q of the Penalties and Sentences Act 1992 (Qld) ("PS Act").
• [2] The defendants each pleaded not guilty to the offence of trafficking in dangerous drugs with a serious organised crime circumstance of aggravation, but guilty to the offence of trafficking in dangerous drugs when arraigned on 23 June 2025. The Crown did not accept their guilty pleas.
• [3] The trial commenced on 23 June 2025 and concluded on 26 June 2025. It proceeded as a judge-alone trial in accordance with an order made on 22 May 2024 pursuant to

s 615(1) of the Criminal Code Act 1899 (Qld) ("Criminal Code").

• [4] The real issue for determination is whether the Crown has proved beyond reasonable doubt the elements of the circumstance of aggravation. That is, whether the Crown has proved beyond reasonable doubt that in the relevant period each of the defendants were participants in a criminal organisation and knew or ought reasonably to have known that the offence was being committed in association with participants in a criminal organisation.

• [5] In this case, the singular count on the indictment allows for alternative verdicts. This is by reason of s 575 of the Criminal Code, which provides as follows:

"575 Offences involving circumstances of aggravation

Except as hereinafter stated, upon an indictment charging a person with an offence committed with circumstances of aggravation, the person may be convicted of any offence which is established by the evidence, and which is constituted by any act or omission which is an element of the offence charged, with or without any of the circumstances of aggravation charged in the indictment."

• [6] Accordingly, the offence of trafficking in dangerous drugs[1] is an alternative to the offence of trafficking in dangerous drugs with a serious organised crime circumstance of aggravation.
• [7] I am required to give my verdict first on Count 1 on the indictment, namely trafficking in dangerous drugs with a serious organised crime circumstance of aggravation. It is only if I return a verdict of not guilty on that count that I will need to return a verdict on the alternative offence of trafficking in dangerous drugs.

• [8] I turn next to the statutory provisions which underly the count on the indictment. Section 5 of the Drugs Misuse Act 1986 (Qld) ("Drugs Misuse Act") deals with the trafficking simpliciter offence and relevantly provides:

(1) A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.

(2) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an offence against this section.

• [9] The serious organised crime circumstance of aggravation is dealt with in Part 9D, Division 1 of the PS Act.
• [10] Section 161Q within Part 9D Division 1 of the PS Act provides:

"161Q Meaning of serious organised crime circumstance of aggravation

(1) It is a circumstance of aggravation (a serious organised crime circumstance of aggravation) for a prescribed offence of which an offender is convicted that, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender -

(a) was a participant in a criminal organisation; and

(b) knew, or ought reasonably to have known, the offence was being committed -

(i) at the direction of a criminal organisation or a participant in a criminal organisation; or

(ii) in association with 1 or more persons who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation; or

(2) For subsection (1)(b), an offence is committed for the benefit of a criminal organisation if the organisation obtains a benefit, directly or indirectly, from the commission of the offence.

(3) To remove any doubt, it is declared that a criminal organisation mentioned in subsection (1)(b) need not be the criminal organisation in which the offender was a participant."

• [11] Schedule 1C of the PS Act provides that trafficking in dangerous drugs under s 5 of the Drugs Misuse Act is a "prescribed offence" for the purposes of s 161N of the PS Act.
• [12] Section 161O of the PS Act then defines a "criminal organisation" as follows:

(1) A criminal organisation is a group of 3 or more persons, whether arranged formally or informally -

(a) who engage in, or have as their purpose (or 1 of their purposes) engaging in, serious criminal activity; and

(b) who, by their association, represent an unacceptable risk to the safety, welfare or order of the community.

(2) For subsection (1), it does not matter whether -

(ii) is capable of being recognised by the public as a group; or

(iii) has an ongoing existence as a group beyond the serious criminal activity in which the group engages or has as a purpose; or

(i) have different roles in relation to the serious criminal activity; or

Of the persons comprising a methylamphetamine syndicate, different persons are responsible for supplying the cold and flu tablets, extracting the pseudoephedrine from the tablets, supplying other necessary ingredients, and cooking the ingredients to produce methylamphetamine.

(ii) have different interests in, or obtain different benefits from, the serious criminal activity; or

Of the 3 persons comprising a group that engages in serious criminal activity, 1 person obtains the profit from the activity and pays the other 2 persons an amount for engaging in the activity.

engage, in serious criminal activity, includes each of the following -

(a) organise, plan, facilitate, support, or otherwise conspire to engage in, serious criminal activity;

(b) obtain a material benefit, directly or indirectly, from serious criminal activity."

• [13] The meaning of "participant" is defined by s 161P of the PS Act as follows:

(1) A person is a participant, in a criminal organisation, if -

(a) the person has been accepted as a member of the organisation and has not ceased to be a member of the organisation; or

(b) the person is an honorary member of the organisation; or

(c) the person is a prospective member of the organisation; or

(d) the person is an office holder of the organisation; or

(e) the person identifies himself or herself in any way as belonging to the organisation; or

• using a theme-based naming convention or icon to establish a screen name or profile for an online child exploitation forum

• wearing or displaying the patches or insignia, or a version of the patches or insignia, of a criminal organisation

(f) the person's conduct in relation to the organisation would reasonably lead someone else to consider the person to be a participant in the organisation.

doing any of the following for a criminal organisation involved in the production and sale of cannabis -

• tending the cannabis plants
• packaging the cannabis for sale
• selling the cannabis
• laundering the profits from the sale of the cannabis

• managing the day-to-day business of the organisation

(2) For subsection (1)(a), a person may be accepted as a member of a criminal organisation -

(b) through a process set by the organisation, including, for example, by paying a fee or levy."

• [14] I had the benefit of the considered reasons from four judge-only proceedings which have interpreted the above provisions. They are:

(a) R v Stasiak and Turkyilmaz [2019] QSC 260; (2019) 2 QR 533 (Henry J), a 590AA application;

(b) R v Hilton (2020) 3 QR 260 (Henry J), an application for a permanent stay brought in trial;

(c) R v Hill (No 2) [2020] QSC 309; (2020) 6 QR 1 (Applegarth J), trial reasons; and

(d) R v Simpson [2024] QSC 295 (Williams J), trial reasons.

• [15] Those reasons contain substantive conclusions on the proper construction and operation of the relevant provisions. I will identify the relevant conclusions below.
• [16] In accordance with the statutory definition of "criminal organisation," an essential element of the circumstance of aggravation is that the person be a "participant" in a "group" which qualifies as a "criminal organisation".
• [17] The word "group" in s 161O of the PS Act should be given an ordinary meaning, the choice of which is influenced by:
  • its immediate statutory context derived from s 161O(2), namely that a "group" may lack or have certain features and be a "criminal organisation";
  • its broader statutory context, and the fact that the word falls to be applied in respect of a group of three or more persons who engage in, or have as their purpose engaging in, serious criminal activity; and
  • consideration of appropriate extrinsic material.
• [18] The words "by their association" in s 161O(1)(b) of the PS Act are not a reference to the entity or organisation but, rather, are a reference to the act of associating. Acts of association can occur without necessarily there being evidence of direct contact between two persons alleged to be associating.[2]
• [19] The word "group" in the statutory context in which it appears is not concerned simply with persons who may be related in some way or who may be classified together on the basis of certain shared characteristics, such as their preparedness to engage in criminal activity. Instead, the word "group" in its statutory context connotes some association of persons to form "a collective unity".[3]
• [20] There must be some unifying combination or relation between persons for them to constitute a "group".
• [21] It is not sufficient to attract the consequences of being a "group", that three or more persons are merely connected together in some way in a serious criminal activity. By way of example, two persons working in concert in the supply side of drugs trafficking who sell to a customer will not, without more, constitute a "group" of three persons. There is a connection between the pair of sellers acting in concert and the customer in relation to serious criminal activity, but the connection lacks the type of collective unity of association to which the legislation is aimed. They must constitute a "group" and "by their association" represent an unacceptable risk to the safety, welfare or order of the community.

"[82] If required to resolve any ambiguity about the purpose of

ss 161O(1) and 161O(2) in particular, regard may be had to the Explanatory Notes to the Serious and Organised Crime Legislation Amendment Bill 2016:

"The new definition of 'criminal organisation' is intended to be sufficiently broad enough to capture both traditional and hierarchically structured criminal groups; as well as shape-shifting, opportunistically formed and flexible criminal groups. This enhancement acknowledges that while [outlaw motorcycle gangs] have traditionally favoured hierarchical and highly visible models of organisation, other crime groups are now frequently informally arranged and adaptable in their structure ...In framing the new definitions, the Bill takes into account the recent decision of the Honourable Justice Peter Lyons in R v Hannan, Hannan, Gills, Murrell & Hannan [2016] QSC 161; to ensure the scenario illustrated by that case is captured by the definition."

This suggests that the section did not intend to adopt an artificial meaning of the word "group", but to ensure that an available meaning of "group" is not adopted which prevents the section from applying to criminal groups which are "shape-shifting, opportunistically formed and flexible". It still must be a group, but it may be "informally arranged and adaptable" in its structure and as a result may not be capable of being recognised by the public as a group.

[83] In any case, and without reference to the Explanatory Notes,

s 161O(2) is not a mandate to give the word "group" some unusual or technical meaning not associated with its ordinary usage. Instead, it guides the choice of relevant ordinary meanings and emphasises that, in the present context, a group may lack things like a name or other features which enable it to be recognised by the public as a group." (footnotes omitted)

• [27] Accordingly, the word "group" ought to be construed as including a group which is formed opportunistically and does not require an ongoing existence beyond the criminal activity engaged in.

• [28] In a trial by judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.[10]
• [29] If an Act or the common law requires information or a warning or instruction to be given to the jury in particular circumstances, or prohibits a warning from being given to a jury, the judge in a trial by a judge sitting without a jury must take the requirement or prohibition into account if the circumstances arise in the course of the trial.[11]
• [30] The judge in such a trial may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury. Any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.[12]
• [31] These reasons must include the principles of law that I have applied and the findings of fact on which I have relied.[13]
• [32] I note the observations of McKechnie J in The State of Western Australia v Bell [No 3] [2014] WASC 341 at [8]- [14] concerning the nature of the task of a judge in a judge-alone trial. They are as follows:

"[8] A jury is required to return a verdict if it is able to achieve unanimity. A jury is not required to provide reasons for its verdict.

[9] A judge is required to set out the principles of law that have been applied and the findings of the fact that have been made...

[10] Reaching judgment is an evolving process. Testimonies of witnesses are absorbed and initial impressions formed. These initial impressions are then subjected to analysis and comparison with other testimony and physical evidence. Initial impressions may be altered as the trial proceeds and more evidence becomes available.

[11] When the trial has finished a judge embarks upon a reflective consideration. Principles of law are identified or revisited and the evidence evaluated against these principles. The submissions of counsel are important in highlighting their respective cases and are given careful analysis.

[12] A jury has the inestimable advantage of discussion and sharing of views and opinions. Twelve people can share with each other their impressions and views, acknowledge contrary opinions, and alter their stance accordingly.

[13] A judge has no such equivalent but works in the solitude of chambers. A judge can discuss a case with no-one lest the judge be subject to unconscious influence. For that, among other reasons, it is important for a judge to take time to reflect on the evidence and to test possible theories and assumptions against the framework of legal principles.

[14] The physical act of writing and explaining the reasons for a decision also concentrates the mind. Errors of reasoning may be identified and corrected."

• [33] In coming to my verdict, I have engaged in a deliberative process which reflects his Honour's observations.

• [34] I turn now to the specific directions I must give to myself in respect of my deliberations. These directions were formulated and agreed to by each of the Crown and the defendants but were articulated in respect of only one of the defendants. It is agreed by all parties that these are the relevant specific directions I should make. Having reviewed the directions, I am satisfied that I should make the directions. Accordingly, and with appropriate modifications to ensure that the directions apply to each of the defendants, I direct myself in the following terms.
• [35] Each element of the offence simpliciter and the circumstance of aggravation must be proved beyond reasonable doubt before a conviction for the offence is achieved by the Crown.
• [36] The Court must dismiss all feelings of sympathy or prejudice, whether for Osborne, Dayaratne or Leahy, or any other person. The Court must approach its duty dispassionately, deciding facts upon the whole of the evidence.
• [37] The Court must decide the case on the evidence and only the evidence. The evidence consists of the testimony of the witnesses that have been called, the exhibits and the formal admissions. The Court must not act on any outside information or other outside influence. The Court must not make its own inquiries or investigations about the case, or anyone connected with it.
• [38] The Court must approach the task of reaching a verdict on the basis that the Court may accept evidence in whole or in part. It is for the Court to decide whether it accepts the whole of what a witness says, or only part of it, or none of it. It is for the Court to decide whether a witness is telling the truth and correctly recalls the facts upon which he or she has testified.
• [39] The Court may draw inferences from the evidence. The inferences must be reasonable ones to draw from the facts that the Court finds have been established by the evidence. Whilst it is up to the Court to decide whether it accepts particular evidence, and if so, the weight or significance to be attributed to it, the Court must not speculate or conject to fill in any gaps in the evidence.
• [40] This is a circumstantial case. It is not for Osborne, Dayaratne or Leahy in the case brought against each of them to prove that inferences against themselves should not be drawn. A verdict of guilty cannot be returned against a defendant unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of that defendant.

(a) that the defendant in fact spoke the words attributed to him and he was thereby making an admission against interest; and

(b) that what the defendant said was true.

• [57] If the Court accepts that the statement or statements were made by the defendant and that they were true, then it is up to the Court to decide what weight they are to be given, and what the Court thinks they prove.
• [58] Finally, in respect of each individual defendant, the Court must decide the case solely on the evidence against that defendant. The evidence in relation to the other two defendants must be considered separately from the evidence against the individual defendant and separate verdicts must be returned in respect of each individual defendant.

• [59] The Crown must prove beyond reasonable doubt that each of the defendants were trafficking in dangerous drugs and there was a serious organised crime circumstance of aggravation.

• [60] The Crown must prove in respect of each of Osborne, Dayaratne, and Leahy that the defendants were each trafficking in dangerous drugs.
• [61] The Crown must then prove that Osborne, Dayaratne and Leahy were "a group of 3 or more persons," whether arranged formally or informally:

(a) who engaged in, or had as their purpose (or one of their purposes) engaging in, serious criminal activity; and

(b) who, by their association, represented an unacceptable risk to the safety, welfare or order of the community.

• [62] Finally, the Crown must prove, in respect of each defendant, that he knew or ought reasonably to have known that the trafficking offence he was committing was being committed in association with the other two defendants in a criminal organisation.

• [63] I am satisfied beyond reasonable doubt, based on the formal admissions made in the trial, that each of the defendants unlawfully trafficked in dangerous drugs in the period between 8 April 2019 and 25 June 2019. That finding is also supported by:

(a) the pleas of guilty to the trafficking simpliciter offence at the start of the trial;[14] and

(b) counsel for each defendant informing me on behalf of their respective client that their client had committed the trafficking simpliciter offence in the relevant period.

• [64] I will set out in full the formal admissions which I have relied upon for this finding.

"It is formally admitted by the defendants and the prosecution as evidence in the trial that

1. Between 8 April 2019 and 25th June 2019 Matthew Brett Osborne, Kushan Thosainge Dayaratne and Garth William Leahy carried on the business of unlawfully trafficking in dangerous drugs.

2. Operation Papa Montana 2 commenced in 2019 to investigate a criminal network trafficking dangerous drugs in Brisbane.

3. The operation involved a number of investigative and surveillance strategies: telephone intercept warrant on the first defendant's mobile phone, covert surveillance, tactical intercepts and interactions with three Law Enforcement Participants ("LEP").

4. The first defendant is Matthew Brett Osborne (DOB: 24 October 1983).

5. The second defendant is Kushan Thosainge Dayaratne (DOB: 11 July 1991).

6. The third defendant is Garth William Leahy (DOB: 5 September 1986).

7. The offending includes nine (9) transactions which occurred between 9 April 2019 and 24 June 2019.

8. During these transactions drugs (cannabis, cocaine and MDMA) were supplied to three to LEPs.

9. The first eight transactions involved supplies to LEP68 (Transactions 1 to 8). The final transaction (Transaction 9) involved a supply to LEP71 and LEP73.

10. Osborne was introduced to LEP68 through an associate who had already negotiated with Osborne for the purchase by LE68 of cannabis (5 pounds) on behalf of LEP68 (Transaction 1) at a price of $14,750. Transaction 1 occurred on 9 April 2019.

11. On 10 April 2019, Osborne met LEP68 and supplied a sample (1 gram) of cannabis at no cost (Transaction 2). Osborne and LEP68 exchanged cipher CID numbers. Osborne identified himself as "fendi" on cipher.

12. After Transaction 2, Osborne created a group chat in cipher between himself, Leahy "bobthewolf" and LEP68 called "Coco drop".

13. In the "Coco drop" group chat Osborne directed Leahy to deliver drugs to LEP68 and collect the money on his behalf. LEP68 and Leahy would arrange to meet in a car park, or the park, in Poppy Street, Hemmant, and each transaction occurred in or around Leahy's car. Transactions 3, 4 and 5 occurred in this way. Specifically:

(a) Transaction 3 occurred on 11 April 2019 and involved the purchase by LEP68 of one ounce of cocaine (27.695 grams of substance, 75.5% purity, so 20.909 grams of pure cocaine) and 1,343 grams (2.96 pounds) of cannabis for $17,350;

(b) Transaction 4 occurred on 12 April 2019 and involved the purchase by LEP68 of an ounce of MDMA (26.828 grams of substance, 71% purity, so 19.101 grams of MDMA) for $1,000;

(c) Transaction 5 occurred on 26 April 2019 and involved the purchase by LEP69 an ounce of cocaine (27.599 grams of substance, 76.5% purity, so 21.113 grams of pure cocaine) for $8,500.

14. In organising Transaction 6, which occurred on 30 April 2019, Osborne included LEP68 in another cipher group chat called "Coco Md" which included another user called "DMT". It is not alleged that DMT is any of the defendants. After a series of messages, the transaction was completed. It involved the purchase by LEP68 of 892 grams of cannabis and an ounce of MDMA (28.021 grams of substance, 68.8% purity, so 19.278 grams of MDMA) for $6,900.

15. On 2 May 2019, Osborne changed his profile from "fendi" to "acacia88".

16. Transaction 7 occurred on 16 May 2019. It was arranged in a similar way to Transactions 3, 4 and 5. It involved the purchase by LEP68 of one ounce of cocaine (27.823 grams of substance, 70.3% purity, so 19.559 grams of pure cocaine) for $8,500.

17. Transaction 8 was arranged in the following circumstances. On 16 May 2019, in the evening after the Transaction 7 had been completed, Osborne and "DMT" agreed to supply LEP68 with two ounces of MDMA the following day. This negotiation occurred within the "Coco Md" group chat. DMT arranged to get another person who was added to the group, "Youngblood", to deliver drugs. Youngblood is Samuel Hodge ("Hodge"), who is not a defendant on this indictment. The following day, on 17 May 2019, Transaction 8 occurred. LEP68 nominated the meeting location (the carpark at a soccer club at 108 Fairly Street, Indooroopilly) where Hodge met LEP68 and supplied him with two ounces of MDMA (55.862 grams of substance, 70.9% purity, so 39.606 grams of MDMA) for $2,600.

18. The following table summarises the drugs supplied in transactions

19. What became Transaction 9, which occurred on 24 June 2019, was negotiated between 27 May 2019 and 24 June 2019 between LEP73 (with the username "samboy95") and Osborne (with the username "acacia88") on the "Wickr" application. LEP73 requested Osborne to supply 100 pounds of cannabis, half a kilogram of cocaine and a cipher phone. Osborne indicated that for this, "350K should be enough". LEP73 subsequently sought from Osborne "a sample of md" also. Osborne said he could supply at "1k for an oz". LEP73 requested "10oz" of MD and the total price of $360,000 was agreed.

20. On 22 June 2019 Osborne received the half kilogram of cocaine and sent a message to LEP73 on Wickr of a photo of it.

21. On 23 June 2019 Alan Wong ("Wong") and Richard Nguyen ("Nguyen") (neither are defendants) travelled from Sydney to Brisbane with three suitcases with a total weight of 63 kilograms. Wong travelled with the three suitcases to 143 Payne Street, Indooroopilly ("143 Payne Street"), which was Dayaratne's home address. Nguyen returned to Sydney. The suitcases contained the cannabis which was to be supplied.

22. On 24 June 2019 LEP73 booked a hotel room at the Coopers Colonial Hotel in Acacia Ridge ("Coopers Colonial Hotel"). LEP73 subsequently informed Osborne (via Wickr message at 12:06pm) that this hotel was where they were to meet.

23. On 24 June 2019, surveillance of Osborne, Dayaratne, Leahy and Hodge showed the following movements:

(a) at 8:37am Leahy, travelling in a white Mitsubishi Outlander, left 56 Violet Street, Hemmant ("56 Violet Street"), his home address, and travelled to 37 Barton Road, Hawthorne;

(b) at 9:08am, Leahy leaves Barton Road wheeling a suitcase which he puts into his car;

(c) at 10:08am Hodge arrives at 56 Violet Street in his car (black Ford Focus);

(e) at ll:22am Dayaratne arrives at 56 Violet Street in his car (silver Toyota Corolla);

(f) at 11:39am Osborne and Dayaratne depart 56 Violet Street in Osborne's car, a Toyota Hilux Dual cab utility;

(h) at 12:12pm Hodge leaves 56 Violet Street in his car and surveillance is not maintained on him;

(j) at 12:46pm Osborne and Dayaratne arrive at Coopers Colonial Hotel;

(k) at 12:55pm Hodge arrives at the Coopers Colonial Hotel;

(m) at 1:09pm Hodge leaves the Coopers Colonial Hotel; and

(n) at 1:36pm Leahy arrives at the Coopers Colonial Hotel.

24. After they arrived at the Coopers Colonial Hotel, Osborne and Dayaratne went into room 40 where LEP71 and LEP73 were located. The interactions were captured by surveillance, audio and some audio visual.

25. At approximately 1pm, Hodge arrived at the hotel in the Ford Focus. He delivered samples of cannabis (446g) MDMA (27.290grams/ 19.376g pure), and cocaine (27.521g/18.93 grams pure) in vacuum sealed bags. He then left.

26. When Leahy arrived at the hotel (at approximately 13:36) he delivered three suitcases.

28. The MDMA was not in the suitcases. It was brought in by Leahy in a separate small bag. There were 279 grams of substance, 192 grams was pure (68%).

29. At 1:45pm police entered room 40 and arrested Osborne, Dayaratne and Leahy. During the arrest the following items were seized:

Search warrants executed at defendants' addresses after arrest

143 Payne Street, Indooroopilly (Dayaratne's address)

Cannabis in Tupperware container- personal use quantity

Large black suitcases, large plastic vacuum bags, unused cryovac plastic, heavy weight baggage tags

In luggage locked utility room, had a 26kgs Qantas excess baggage tag

Luggage tag for flight QF546 dated 23 June 2019, in the name of "Nguyen"

Glass jar in second draw of computer desk, Osborne's room

Several places in Osborne's room: Miniature bin container

7 x boxes with vials of Cannabis Vaper "Dank Vaper"

33. Flight records reveal that Dayaratne boarded a flight to Darwin on

34. When police executed the search warrant at 143 Payne St, Indooroopilly, Wong told police them a friend called 'Curry' lived there.

35. Samuel Paul HODGE pleaded guilty on 18th May 2021 to two counts of supplying a dangerous drug (in relation to transactions 8 and 9) and was sentenced by Judge Dearden to 2.5 years imprisonment with immediate parole release. 4 days of presentence custody was declared.

36. Alan WONG pleaded guilty on 14 April 2021 to one count of supplying dangerous drugs, and one count of possession dangerous drugs in excess of 500grams (Cannabis) and was sentenced by Judge Sheridan to 3 years imprisonment wholly suspended for an operational period of 4 years"

• [65] For the purposes of the remaining part of these reasons, I will define the various police officers as follows:

(a) LEP68 involved in Transactions 1 - 8 will be "Undercover Officer A";

(b) LEP73 involved in Transaction 9 will be "Undercover Officer 1"; and

(c) LEP71 involved in Transaction 9 will be "Undercover Officer 2".

Element 2: Participants in a "group" which qualifies as a criminal organisation

• [66] This element requires the Crown to prove beyond reasonable doubt for each defendant that at any time in the period from 8 April 2019 to 25 June 2019, that the defendant in question was a participant in a "group" which qualifies as a "criminal organisation."

• [67] The Crown contended that, as in most organisations, each of the defendants played a different role in relation to the trafficking.
• [68] In relation to Osborne, his role was said to include:
  • negotiating drug supplies, both in person and by messages;
  • adopting a usual practice where he and his partner would come to the first transaction and then send runners on subsequent transactions;
  • sourcing drugs from interstate;
  • showing photographs of drugs from Melbourne and Sydney to potential purchasers;
  • directing runners to deliver drugs;
  • apologising for poor quality drugs and offering refunds;
  • supplying cipher phones to potential customers to avoid detection;
  • storing significant amounts of cash at his house in a concealed safe;
  • using multiple safe houses to store drugs;
  • offering to courier drugs and a cipher phone to Cairns for a potential customer and detailing how he would send drugs by suitcases with the codes to unlock them;
  • discussing how business class flights were used for runners carrying drugs so they could use higher weight limits and take two suitcases;
  • expanding operations to Darwin and telling Undercover Officer 1 that he had just sent 100 pounds of cannabis to Darwin;
  • offering to supply MD,[16] rack[17] and acid in bulk;
  • sourcing cocaine from Sydney or Melbourne;
  • having more than one business partner;
  • during Transaction 9 stating, "All I want to do is just get the coin back to our other, our other partner...in Sydney";[18]
  • regularly flying drugs to Brisbane from Sydney;
  • offering a guarantee to Undercover Officer 1 regarding the quality of the cannabis.
• [69] In relation to Leahy, his role was said to include:
  • that he physically supplied drugs at the direction of Osborne during various of the Transactions 1 to 9;
  • his physical supply of drugs at the direction of Dayaratne during Transaction 9;
  • storing commercial quantities of drugs and cash at his residential premises;

(a) the sourcing of large amounts of drugs from interstate on a regular basis using couriers on commercial airlines;

(b) the supply of commercial quantities of a variety of drugs;

(c) sending money to Sydney with couriers;

(d) the use of encrypted phones; and

(e) large amounts of cash stored at the homes of the defendants.

• [88] The Crown's contention was that the defendants had worked together to carry on that business. There was a collective unity in their approach and direct association with each other, as they came together to participate in a very significant trafficking operation. The evidence was said to establish that the three defendants were each participants in a criminal organisation who engaged in serious criminal activity, being trafficking in dangerous drugs. The Crown acknowledged that the case against the defendants in regard to the circumstance of aggravation was a circumstantial one, and the Court should not return a verdict of guilty unless the circumstances were such as to be inconsistent with any reasonable hypothesis other than guilt. However, it was submitted that when each piece of circumstantial evidence was combined, the strength of the evidence removes any reasonable hypothesis other than guilt, and proves each defendant's guilt beyond reasonable doubt.
• [89] The Crown concluded that the Court would be satisfied beyond reasonable doubt that the three defendants were a criminal organisation who engaged in a significant trafficking business, and the Court would be satisfied that the carrying on of the business of trafficking represents an unacceptable risk to the safety, welfare or order of the community.

• [90] The submissions on behalf of Osborne commenced with identifying what the Crown had to prove beyond reasonable doubt.
• [91] First, the Crown had to prove that the defendants were "a group of three or more persons" arranged informally who:

(a) engaged in, or had as their purpose engaging in, serious criminal activity; and

(b) who, by their association, represented an unacceptable risk to the safety, welfare or order of the community.

• [92] It was then emphasised that if that threshold issue is proved beyond reasonable doubt, the Crown must also prove beyond reasonable doubt that Osborne himself:

(a) was a participant in that "criminal organisation"; and

(b) knew, or ought reasonably to have known, that the offence was being committed in association with one or more persons who were, at the time the offence was being committed, or, at any time during the commission of the offence, participants in a criminal organisation.

• [93] It was said on behalf of Osborne that it was not sufficient that three or more persons associate together in serious criminal activity. It was submitted that what must be proved beyond reasonable doubt was that the three persons, by their association, formed a collective unity, such that there must be some unifying combination or relation between persons for them to constitute a "group".
• [94] This collective unity which must exist between the persons who are alleged to be a part of a criminal organisation requires evidence of an association between all members; that is, a connection or relationship between them as a group, not as individuals.
• [95] Counsel for Osborne expressly indicated that he adopted all of the written submissions that had been made on behalf of Dayaratne.
• [96] In his written closing address, counsel for Osborne referred to specific parts of the evidence. They were:
  • certain conversations where Leahy sometimes used "we", but counsel pointed out that the only time Leahy gave more details was in the conversation on 26 April 2019, where he made references to Osborne, when he referred to "the boss", "Chef" and "Matt";
  • certain conversations between Osborne and Undercover Officer A on 10 April 2019, where in the context of moving the drug MD, Osborne had referred to his business partner in Sydney. It was pointed out by counsel that there is no suggestion that either Leahy or Dayaratne resided in Sydney;
  • text conversations exchanged between Osborne and Undercover Officer A in relation to the period of Transactions 1 to 8. These included a text message which indicated more than one source for the supply of cannabis, and text messages where Osborne referred to meeting his "runner," being a reference to Leahy. The exception to this was Transaction 8, when Hodge delivered the drugs. In relation to Hodge, it was pointed out that there was no allegation that he formed part of the alleged criminal organisation, despite Hodge dropping off drugs on that abovementioned Transaction 8 and during Transaction 9 at the motel room;
  • a text message on 16 May 2019, where Osborne had included on a group chat a "DMT", where "DMT" was inferentially the supplier of MD. It was noted that it is not alleged that "DMT" was any of the defendants. It was also noted that in the group chat it was "DMT" who indicated that he would get "Youngblood" to deliver the drugs. It was pointed out that on the next day, being 17 May 2019, Hodge delivered the drugs to Undercover Officer A. There is no dispute that Hodge went by the moniker "Youngblood" on the cipher phone group chat;

27 May 2019 and 24 June 2019. On 8 June 2019, Osborne used the generic term "we" and "us". On 19 June 2019, he said "We come for the run; me and one of my business partner...". On 20 June 2019, he used the generic term, "we" and "us". On 22 June 2019, he used "I", "we" and "our". On 23 June 2019, Osborne referred to "my safie" and "I got everything". On 24 June 2019, Osborne used the words "my crew", and "me and my business partner". Again, it was pointed out that sometimes the words indicated the plural, and sometimes they indicated the singular;

• the various movements of Osborne, Dayaratne, Leahy and Hodge for Transaction 9 as they are set out in the agreed admissions document;
  • the recorded conversations on 24 June 2019 were capable of showing that at that time Osborne and Dayaratne were in company for the purpose of the drug deal. But, it was pointed out that Osborne spoke of "both my runners walking up now", "you'll meet most of the crew now" and spoke of "our other partner in Sydney".
• [97] The references to these particular forms of evidence were then the introduction to submissions that were made on behalf of Osborne to the following effect.
• [98] In Transactions 1 and 3 to 7, it was conceded that Leahy was clearly acting as the runner for Osborne, who Leahy referred to as "the boss".
• [99] It was also conceded that through that period there was a relevant "association" between Leahy and Osborne.
• [100] It was submitted that Osborne had a number of different suppliers for at least cannabis. This was said to be apparent from the evidence in relation to those transactions, and that the person referred to as "DMT" supplied MDMA to Undercover Officer A via the runner, Hodge. The submission was made that "DMT" only appeared by reference to Transaction 8 when "DMT" inferentially organises Hodge to bring the MDMA to Undercover Officer A on 17 May 2019. It is noted that Hodge appeared again at the motel room on 24 June 2019 (as part of Transaction 9), but Hodge had not been indicted as being part of the alleged serious criminal organisation. Likewise, it was pointed out that the courier who had brought the cannabis up from Sydney, Wong, was also not indicted as part of the serious criminal organisation.
• [101] The contention was made on Osborne's behalf that the Crown's case failed to show a sufficient nexus between Dayaratne and Leahy to prove beyond reasonable doubt that, together with Osborne, the three of them constitute a "group" pursuant to s 161O of the PS Act.
• [102] It was submitted that the movements of Leahy on 24 June 2019 were inferentially consistent with no more than his continued use, by Osborne, as a runner, picking up and delivering drugs.
• [103] It was said that there was nothing in the material which shows any knowledge as between Leahy and Dayaratne of each other prior to 24 June 2019, at least to the requisite standard required.

• [113] It was submitted that Dayaratne's admission of trafficking only related to his involvement in Transaction 9, and that there was no suggestion nor evidence that he had any knowledge of, or participated in, Transactions 1 to 8.
• [114] Reference was made to Transaction 7 specifically, which occurred on 16 May 2019. It was pointed out that the recording of that transaction had Leahy speaking of himself and "Chef", and that "Chef" was also referred to as "the boss". Reference was also made to "Chef" being known as "Matt" and that Leahy was using the name "Chef" because he did not want to use the other's real name.
• [115] It was submitted that this evidence was consistent with Osborne and Leahy working together as a pair in these earlier transactions, and that Leahy made no mention of any other person, and certainly not Dayaratne.
• [116] It was submitted that the evidence concerning Transactions 1 to 8 was consistent with Osborne sourcing drugs from multiple people. In support of that submission, extracts from relevant messages on 10 April 2019 between Osborne and Undercover Officer A were referred to, and to the evidence concerning Transaction 3.
• [117] This evidence showed that there were multiple suppliers of cannabis, as the relevant messages refer to Osborne sourcing cannabis "from another guy", because a load did not come through.
• [118] It was also submitted that Osborne had more than one supplier for MD, and in this respect, extracts from the audio of Transaction 5 on 26 April 2019 were pointed to specifically. It was noted that the Crown did not appear to contend that Dayaratne had any knowledge or involvement in Transactions 1 to 8. The concession by the Crown that it did not contend that Dayaratne was properly characterised as Osborne's "business partner" was also pointed to. That concession had related to the text messages sent by Osborne to Undercover Officer 1 on the morning of Transaction 9 on 24 June 2019, prior to the attendance at the motel room later in the day.
• [119] It was submitted by Dayaratne's counsel, in a similar way to the submission that had been made on behalf of Osborne, that Osborne was not a person who could be relied upon for accuracy and the Court should readily accept that he was prone to exaggeration and embellishment. It was submitted that on the various recordings Osborne sounded intoxicated. Specifically, during Transaction 9 on 24 June 2019, Osborne was seen to vape from a device which, it was submitted, contained cannabis oil. Osborne was described by counsel for Dayaratne as appearing on the 24 June 2019 video recordings to be edgy, constantly moving his arms in a theatrical-style manner which was consistent with intoxication. To the extent that the undercover officers disagreed with this under cross-examination, it was said that the undercover officers' evidence that Osborne did not appear intoxicated ought to be rejected as inherently implausible. In oral closing submissions, Osborne was referred to as being, "edgy", "sketchy", "speaking in grandiose terms" and, to use the common vernacular, "being off his face", not necessarily coherent and being repetitious. It was submitted that Osborne was a man who was not reliable in terms of his evidence.

(a) being present with Osborne and Dayaratne at 56 Violet Street (noting the Crown described it as a "meeting"); and

(b) Leahy travelling to 143 Payne Street, Indooroopilly (Dayaratne's home) after all three were at 56 Violet Street.

• Secondly, Dayaratne contacting Hodge about bringing the drugs to the motel, and stating that he was bringing "rack" and "bud".
• Thirdly, Dayaratne:

(a) contacting Leahy to bring the remainder of the drugs to the motel room; and

(b) telling Osborne that Leahy was still packing, getting ready and that then Leahy would come to the motel.

• Fourthly, the presence of all three defendants in the room when the suitcases containing the drugs were opened.
• Fifthly, Dayaratne and Leahy knowing the codes to open the suitcases.

• [127] Having identified the above matters, it was submitted that some form of association between Osborne and Dayaratne may be accepted. Similarly, it was accepted that an association between Osborne and Leahy obviously existed.
• [128] However, the critical contention from Dayaratne's counsel was that there was no satisfactory evidence (that met the burden of proof) of association between all three defendants so as to make them anything more than three people associated together in serious criminal activity. By reference to the authorities, it was said that the evidence was insufficient. Specifically, it was said that Leahy's involvement in Transaction 9 on 24 June 2019 was consistent with no more than his continued use by Osborne as a runner picking up and delivering drugs. The matters relied upon by the Crown were said to not materially alter this characterisation. The five alleged categories of evidence referred to above were then addressed in more detail.
• [129] First, it was said that the agreed facts only showed that there was a period of 17 minutes when Osborne, Dayaratne and Leahy were at the same address, being 56 Violet Street, Hemmant. It was pointed out that there was no evidence that:

(a) Dayaratne actually entered the house;

(b) Osborne, Dayaratne and Leahy were in the house together or spoke, alone or in committee at that time;

(c) Dayaratne saw or spoke with Leahy; and

(d) Dayaratne was seen with anyone other than Osborne at 56 Violet Street on that occasion.

• [130] Secondly, the proposition that Dayaratne contacted Hodge required the Court to be satisfied that the surveillance recording supported what was contended for by the Crown to the required standard. It was said that this could not be done. While Osborne could be seen using his phone on the recording immediately after he [Osborne] speaks of runners, it cannot be proved that Dayaratne communicated with Hodge. Further, accepting that Dayaratne can be heard to refer to "rack" and "bud", he was corrected by Osborne. Thus, Dayaratne is said not to be familiar with what is being brought, contrary to the Crown's contention.
• [131] Thirdly, the submissions dealt with the Crown's proposition that Dayaratne contacted Leahy to bring the rest of the load, and then communicated to the others in the motel room that Leahy was still packing and getting ready and then he would come to the motel room. Again, it was submitted that this required the Court to be satisfied that the surveillance supported what the Crown contended it did. It was submitted that there were multiple people speaking at the time the Crown points to, and Osborne's back is to the camera.
• [132] Dayaratne is said to be out of sight at the relevant time, and counsel submitted that he could not have used his own phone for these communications, as no phone was seized from him. It was submitted that Osborne had three phones that were seized. In oral submissions, these phones were identified as one on the person of Osborne and two in the console of Osborne's car.
• [133] It was accepted that the footage does depict Dayaratne using a phone, but it is said that this cannot have been his, otherwise it would have been seized. It was said that what this means is that if, in fact, Dayaratne was communicating with Leahy or Hodge, then it cannot have been on his phone. This was said to be consistent with Dayaratne not otherwise having contact details or any means of contact with Leahy or Hodge.
• [134] Fourthly, it was accepted that all three defendants were in the room when the suitcases were opened.
• [135] Fifthly, it was submitted that it was not accurate to describe Dayaratne and Leahy as knowing the codes to open the suitcases. It was submitted the accurate position was that:

(a) Dayaratne knew the code to the first suitcase opened; and

(b) Leahy knew the code to one of the subsequent suitcases opened.

• [136] Continuing on in dealing with this fifth point, the following points were also made.
• [137] Leahy had another suitcase in his car which was independent of any suitcases he may have collected from Dayaratne's residence at 143 Payne Street, Indooroopilly.
• [138] The MD was not taken to the motel room in any suitcase. It was carried separately from the suitcases. Osborne had asked Leahy about the MD when he entered the room, and Leahy had then identified that he had left it in the car.
• [139] Further, it was said that none of the bags that Dayaratne had at his residence, at the time of the search warrant, had contained anything other than cannabis. It was submitted that the likelihood was that the bag that Dayaratne knew the code to; that is, the first bag which had been opened, was one which contained cannabis only. That was said to be consistent with what was discovered on the execution of the search warrant at his Indooroopilly residence, and was consistent with, and only with, the storage of cannabis.
• [140] Dayaratne's submissions then turn to the alleged statements made by Dayaratne that the drugs were the best in "Brissie" and Sydney, and that Dayaratne allegedly confirmed that he had taken the cocaine sample, brought to the room by Hodge, off the brick. It was submitted that neither of those statements was evidence of an association between three or more persons.
• [141] The overall submission was that on a consideration of what occurred in Transaction 9, the Crown could not exclude the possibility that Dayaratne's role was simply to supply cannabis on that day, and that involved a unity between Dayaratne and Osborne only. It was said that what was found at Dayaratne's residence at 143 Payne Street, Indooroopilly was consistent with this. It was also consistent with Dayaratne talking, seemingly exclusively, about cannabis.
• [142] It was submitted that Leahy's involvement was, as it always had been, as the runner for Osborne. It was said there was no unity between Leahy, or Hodge, and Dayaratne. It was submitted that neither greeted nor even acknowledged Dayaratne. It was submitted that there was no suggestion that Hodge or Leahy had any means of communicating independent of Osborne. It was pointed out that one of the undercover officers recalled Osborne directing both Leahy and Hodge.

• [154] Counsel for Leahy accepted the submissions made on behalf of each of Osborne and Dayaratne, and adopted them to the extent they related to whether there was any unifying combination or connection with Leahy.
• [155] Counsel for Leahy had obviously had the opportunity to read the written submissions made for Osborne and Dayaratne, and hear the further oral submissions which were made. Quite appropriately, counsel did not seek either in writing or orally to merely repeat all of the identical submissions which had been made and which Leahy adopted.
• [156] Rather, a number of points were highlighted on behalf of Leahy.
• [157] It was submitted that the Crown had not established beyond a reasonable doubt that:

(a) there was any "unifying connection" or "unifying combination" between the three defendants;

(b) Leahy knew or ought reasonably to have known that Dayaratne was a participant in a criminal organisation; or

(c) Dayaratne knew or ought reasonably to have known that Leahy was a participant in a criminal organisation.

• [158] It was noted that Wong was an associate of Dayaratne, and Hodge was an associate of Osborne. Yet there was no suggestion that either of those two persons were participants in a criminal organisation.
• [159] It was submitted that given what was said to be a unifying combination between Osborne and Dayaratne, it would have been expected that there would have been evidence of some connection between Leahy and Dayaratne, other than on the day of Transaction 9. In a similar way, it was said given the alleged unifying combination between Osborne and Dayaratne, it would have been expected that there would have been some evidence of connection between Wong and Osborne or Leahy, but there were no such associations.
• [160] In a similar way, it was said that it would have been reasonable to expect that Hodge would have had some association with Dayaratne or Wong, but again, there was no evidence of such an association.
• [161] It was said that the allegation that Osborne, Dayaratne and Leahy were participants in a criminal organisation was despite the fact that:

(a) there was no reference by Leahy to "Curry" in the first eight transactions;

(b) there was no reference to Wong in the first eight transactions;

(c) there was no reference by Hodge to "Curry" in the first eight transactions; and

(d) there was no mutual acknowledgement by Leahy or Dayaratne to the other in the motel room, or any evidence of familiarity between them.

• [162] Further, there was said to be no evidence that Leahy's contact details were added to the cipher phone given to Undercover Officer 1 who received the cipher phone during Transaction 9.
• [163] It was noted that Leahy had never spoken about his "bosses" in Transactions 1 to 8, but rather spoke of his "boss" and used the word "Chef" and "Matt" when he was clearly referring to Osborne. Undercover Officer A in Transactions 1 to 8 was said to have known nothing of Dayaratne or "Curry" being involved.
• [164] It was also noted that in the agreed admissions that the individual identified as "DMT" was not any of the defendants. It was noted that "DMT" was not alleged to be a criminal participant with Leahy. It was said that "DMT" may have even been fictional, and that there was no evidence that "DMT" was an actual person.
• [165] It was noted that Osborne spoke of one of his business partners in Sydney, and that there was no evidence that Dayaratne was from, or living in, Sydney.
• [166] In relation to Osborne's evidence, it was said that in the video footage of Transaction 9 on 24 June 2019, Osborne was clearly intoxicated, and that this could be seen from how he was acting and his movements. In relation to the formal admissions in respect of Transaction 9 on 24 June 2019, when all three defendants and Hodge were said to be at Leahy's residence at 56 Violet Street, Hemmant, there was no evidence:

(a) of Dayaratne having entered that residence; or

(b) of Dayaratne having spoken with Leahy at that residence.

• [167] It was also submitted that it was apparent that later in the day Leahy was taking instructions from Osborne. Although Leahy went to Dayaratne's residence at 143 Payne Street, Indooroopilly, it was submitted that it could not be said who had directed him to that address, or that Leahy knew of any connection between that address at Payne Street, Indooroopilly and Dayaratne.
• [168] Further, the items found at Leahy's address on the execution of a search warrant did not assist in resolving the primary issue.
• [169] The cash found at Leahy's address provided no connection to Dayaratne, the tick sheet showed nothing and was undated. It was submitted that Leahy was a street dealer in his own right. The amounts on the tick sheet were consistent with that. Further, there was no evidence of who lived with Leahy, or that the handwriting was consistent with Leahy's. The tick sheets simply did not assist at all on any of the critical issues.
• [170] It was emphasised from Leahy's perspective, that a person who obtains a material benefit from serious criminal activity may be found to have engaged in that serious criminal activity and to have done so as part of a group, but not every person who obtained a material benefit from serious criminal activity undertaken by a group will thereby be part of that group and part of a criminal organisation. It was submitted that the glaring feature here was that Dayaratne had not been involved in the first eight transactions. The hypothetical question was then posed: how could Leahy, on the evidence, be found to have known or ought reasonably to have known, that either Dayaratne or himself was a participant in a criminal organisation?
• [171] It was ultimately submitted that the Court would not be satisfied beyond a reasonable doubt that Leahy was a participant in a criminal organisation, and the Court in that circumstance is bound to acquit Leahy of the circumstance of aggravation.

(f) Transactions 1 to 8 and the relationship between Osborne and Leahy

• [172] The evidence establishes that Osborne and Leahy had an established relationship for the purposes of Transactions 1 and 3 to 7.
• [173] Transaction 1 involved Osborne supplying cannabis to Undercover Officer A. An associate, on behalf of Undercover Officer A, had negotiated with Osborne. Leahy delivered the cannabis to Undercover Officer A on that occasion.
• [174] Transaction 2 involved Osborne meeting and supplying directly to Undercover Officer A a sample of cannabis. On that occasion, Osborne exchanged cipher phone identities with Undercover Officer A. Osborne identified himself as "fendi" in the cipher communications.
• [175] Importantly, after Transaction 2, Osborne created a group chat in the cipher phones called "Coco drop" between himself and Undercover Officer A, who was known on that cipher phone as "coconutcowboy69". Leahy had the identity "bobthewolf" within the same cipher phone group chat.
• [176] In that group chat, Osborne directed Leahy to deliver drugs to Undercover Officer A and collect the money on behalf of Osborne. Undercover Officer A and Leahy arranged to meet in the carpark or the park in Poppy Street, Hemmant, with each transaction occurring in or around Leahy's car. This process was followed for Transaction 1, Transaction 3, Transaction 4, Transaction 5, Transaction 6 and Transaction 7. Those transactions variously included the trafficking of cocaine, cannabis and MDMA.
• [177] In an audio recording which was made in respect of one of those transactions, Leahy spoke of "his boss", "Chef" and "Matt". The content of that audio recording made clear that all of those descriptors applied to the same person, and I am satisfied that they were all a reference to the defendant, Osborne. This was accepted to be the case by each of the defendants.
• [178] I am satisfied on the evidence that Osborne had the relationship of a superior to Leahy in a dangerous drug trafficking business. Whilst the trafficking was occurring for Transactions 1 and 3 to 7, Leahy was receiving and following the instructions he received from Osborne.
• [179] In terms of my being satisfied beyond reasonable doubt of the circumstance of aggravation described in the indictment, I find that the agreed facts, the screenshots from the cipher phones and the audio recordings which relate specifically to Transactions 1 and 3 to 7 only prove that Osborne and Leahy were working together in the undertaking of those transactions. I find that none of the identified categories of evidence which related specifically to Transactions 1 to 8 contained any reference to Dayaratne, or "Curry".

Normal I can do cheaper but our bug[37] loads have been delayed just getting local".[38]

• [184] Similarly, with the supply of cocaine and cannabis for Transaction 5 on 26 April 2019 in the relevant audio recording, Undercover Officer A asked Leahy whether Leahy was going to "muck around"[39] around with "him" again. Contextually, the word "him" was a reference to the person who had previously supplied allegedly poor quality MDMA in a previous transaction. Leahy informed Undercover Officer A "we do have some real good MD coming through, not through this guy, from a completely different chain", but "I don't know any pricing or anything like that."[40]
• [185] Secondly, when organising Transaction 6, which ultimately occurred on 30 April 2019, Osborne included Undercover Officer A into a new cipher group chat which included a person with the username "DMT". That was a cipher group chat known as "Coco Md".[41]
• [186] By 16 May 2019, "DMT" had also been added to the "Coco drop" cipher group chat. This can be seen in the screenshots from the cipher phone of Undercover Officer A at Exhibit 6.
• [187] "DMT" arranged for another person to be added to the relevant cipher phone group chat, and that person was known as "Youngblood" in the cipher phone group chat. "Youngblood" delivered the drugs and collected the money on 17 May 2019 for Transaction 8. It was an agreed admission that "Youngblood" was Hodge, who is not a defendant on the indictment, but is the same person who delivered the samples of the drugs to the motel room on 24 June 2019 for Transaction 9.
• [188] Thirdly, whilst Leahy had the cipher phone username "bobthewolf", he was simply referred to as "Bob" in the body of the cipher text messages which came from Osborne.
• [189] Fourthly, there was no mention of the names "Dayaratne", "Curry", "Namo" or "Wong" at any time during the period when Transactions 1 to 8 occurred.
• [190] Fifthly, during the recorded conversations, Osborne did refer to having "safies". I find that contextually this was a reference to having various houses which were used in some way in the dangerous drug trafficking business which Osborne was involved in undertaking. The concept of a safe house is not a term of art, and may well mean different things to different persons. The use of that word and its meaning adds little to answering the critical questions that are before the Court.

• [194] I start the examination of this factual issue from the position that I accept the defendants' submissions that the particular evidence concerning Transactions 1 to 8 tells the Court nothing of the relationship between Dayaratne on the one part, with either Osborne or Leahy on the other part. Whilst there was reference to multiple suppliers of cannabis, and multiple suppliers of MDMA, of "safies", of a partner in Sydney and the use of plural words such as "we" on occasions, none of those matters identified a connection between Dayaratne, and either of Osborne or Leahy in respect of Transactions 1 to 8.
• [195] As will be seen, I am satisfied that there was an established association and collective unity between Dayaratne and Osborne prior to the meeting in the motel room on 24 June 2019 in relation to the sourcing and selling of dangerous drugs, however that evidence does not allow for a finding to the high standard required that this extended to Transactions 1 to 8.
• [196] Ultimately, any finding in respect of the association and collective unity between Osborne and Dayaratne is to be derived from the formal admissions made in relation to Transaction 9, and the recordings in Exhibit 24 which relate to Transaction 9.
• [197] An analysis of that evidence, and in particular the video recordings of Transaction 9, supports an inference, which I draw, that a close association and collective unity existed between Dayaratne and Osborne in relation to the cannabis, cocaine and MDMA trafficking constituted by Transaction 9.
• [198] Aspects of this relationship have been accepted by each of the defendants to some extent. In the written closing submissions for Dayaratne, which Osborne and Leahy by their counsels accepted and adopted, the following submission was made at paragraph [69]:

"An association between Osborne and Dayaratne may readily be accepted. The pair travelled together to the Cooper's Colonial Hotel together. It must, of course, be said that they knew one another before 24 June 2019."

• [199] In a similar vein, at paragraph [74], the submission included:

"As noted, some form of association between Osborne and Dayaratne may be accepted. Similarly, an association between Osborne and Leahy obviously existed."

• [200] Lastly, at paragraph [86], it was submitted:

"Overall, when considering what occurred during Transaction 9, it is submitted that the prosecution cannot exclude the possibility that Dayaratne's role was to supply cannabis on that day. That involved a unity between Dayaratne and Osborne. What was found at 143 Payne Street is consistent with this. It is also consistent with Dayaratne talking, seemingly, exclusively about cannabis in Exhibit 24 Part 2 at 3.45."

• [201] Whilst I find that there was an association between Osborne and Dayaratne which pre-existed 24 June 2019, and that it did involve cannabis, the evidence also establishes that the association also involved cocaine and MDMA. The relevant evidence supporting this is as follows.
• [202] First, the evidence established that Dayaratne had a role in the supply of cannabis. Dayaratne's residence had a locked storage room with empty suitcases and towels bearing the same unusual pattern as the towels which were present in all three suitcases produced in the motel room at Transaction 9. In the locked storage room of Dayaratne's residence, there were also boarding passes and heavy luggage labels, and a number of empty suitcases.
• [203] It was an agreed fact that Wong had transported the cannabis supplied in Transaction 9 to Dayaratne's residence on 23 June 2019 and then stayed overnight at the residence. Wong referred to the residence as being that of his friend "Curry", where the obvious inference was that this was a reference to Dayaratne, who has a South Asian appearance. Undercover Officer 1 gave evidence that Dayaratne was introduced to him as "Curry" at the motel room.
• [204] On the execution of a subsequent search warrant of Dayaratne's residence on 24 June 2019, 16.5 pounds of cannabis was found at his residence in circumstances where Dayaratne had told Osborne at the motel during Transaction 9 that he still had 17 pounds of cannabis that he needed to dispose of.
• [205] All of this evidence established that Dayaratne's role, at the very least, included involvement in the supply of cannabis for Transaction 9. That evidence did not prove, however, that this was the limit of Dayaratne's involvement.
• [206] I pause to note again that this evidence does not link Dayaratne to any of Transactions 1 to 8.
• [207] Secondly, I will pause here to deal with the defendants' submissions to the effect that the Court ought to be very cautious in accepting the reliability of what Osborne said at the motel during Transaction 9. I do so as I subsequently rely on aspects of what Osborne said and did at the motel room as truthfully indicating particular things.
• [208] The defendants say that Osborne was drug-affected by, at least, vaping on cannabis oil at the motel, which is said to be seen to occur during the video recordings. It is said that he was erratic, both in his jerky gestures at times, and in his conversation. It was submitted there was a level of incoherency and, to use the defendants' descriptor, that he was "off his face".

(a) he did remember Osborne vaping in the motel;

(b) he did not recall a conversation about what Osborne was vaping;

(c) cannabis oil was then suggested by counsel to have been the topic of this conversation, and Undercover Officer 2 was asked if this refreshed his mind; and

(d) Undercover Officer 2 replied, "Um, yeah, he might've mentioned something along those lines."[42]

1. My review of the video recording of Transaction 9 did reveal a short discussion between Osborne and Undercover Officer 2 in the motel room about whether Osborne was vaping cannabis oil. The exchange can be heard at Exhibit 24 Part 1 at approximately 6.31: [43]

"UO2: [addressing O] What's that, the cannabis oil or whatever in there?

[Osborne then goes on to another topic and does not say what the vape is]

• [212] There is no reason to doubt the truth of Osborne's response to the effect that the vape did not contain cannabis oil.
• [213] I accept that at various times on the video, Osborne is moving around in an active way; making gestures, stretching his legs by bringing his knee up to his chest and the like. I also accept that at various stages Osborne makes boastful comments in relation to the quality of the drugs that are being supplied, and how good they will be and how happy the recipients of the drugs will be. There are also times when Osborne speaks with excitement and with a higher intensity. One such example of this is towards the end of the video at Exhibit 24 Part 2 when the drugs are unpacked and the deal is concluding. At that point, the parties are generally exhibiting excitement, both by the cadence of their speech (which quickens and increases in volume), and their actions which includes hugging and clasping each other's hands.
• [214] However, Osborne was not constantly doing these things for the entire time he was in the motel room. At times, he can be seen to be silent. He is often operating his cipher phone, including to access photos or to find information, or for the purpose of seeking to communicate with someone such as Leahy.
• [215] The type of discussions Osborne was having with Undercover Officer 1 were coherent and appropriate to the occasion. For example, in one conversation in the motel, which occurred in conjunction with the use of his cipher phone, Osborne was speaking about and then producing photos of cocaine and cannabis for Undercover Officer 1 to view. He was doing so in relation to discussions which were obviously about the potential for future supplies of bulk dangerous drugs.
• [216] As part of this exchange, Osborne sought assistance from Dayaratne in respect of pieces of information, such as identifying what the next brick of cocaine to be delivered was, or where the prices for the cocaine were to be found on the chat groups which were able to be accessed by the cipher phones. I note both Osborne and Dayaratne had what were obviously cipher phones.
• [217] Whilst Osborne was excited at times, boastful at times and exaggerated in bodily gestures at times, this did not obviously point to his being drug-affected.
• [218] This was an occasion where Osborne was engaged in a significant event of trafficking in dangerous drugs with an individual he had only met once before. The types of verbal and physical activities apparent on the recordings are all consistent with a nervous participant. The boastfulness and banal banter about the drugs and partying at the Versace or in Townsville are not logically out of place in the type of transaction being undertaken.

"O: [to D]: That was the brick there fucking - did you just chip that off the side?

D: [to O]: Yeah, I chipped that off - that - that was part of the [indistinct]. Yeah, I held it together and just shook and shook.

O: [to UO1]: I'll show the brick so you can see it."

• [224] I find that the above extract involves Osborne asking Dayaratne whether he had "chipped" the one ounce cocaine sample he had been pointing to from the half brick of cocaine that had been delivered on 22 June 2019, and that Dayaratne confirmed that he had physically done that.
• [225] I am satisfied that Dayaratne was telling the truth in this exchange. There is no reason why he would not have been answering honestly. This evidence establishes that Dayaratne interacted with the cocaine being supplied prior to attending the motel. The submission put forward by the defendants that the Crown cannot exclude the possibility that Dayaratne's role was limited to just supplying the cannabis cannot be accepted in light of this evidence.
• [226] Fourthly, it was submitted by the defendants that Dayaratne had stated on the video recording at the motel room in relation to the $360,000 cash, "I've never seen that much money in my life." In cross-examination of Undercover Officer 1, it was put to him that this is what Dayaratne had said, as opposed to Undercover Officer 1's evidence-in-chief that what Dayaratne had said was, "I've never seen that many hundreds in my life."[45]
• [227] The version which the defendants put forward as having occurred was said to support the submission that Dayaratne's role had only been in respect of the supply of cannabis. The inference being that the $360,000 involved in Transaction 9 was much more than Dayaratne would have ever seen in respect of the supply of cannabis only.
• [228] I find that the defendants are incorrect as to what was said in this conversation, and that Undercover Officer 1 was correct as to the effect of what was said. The relevant exchange in Exhibit 24 Part 1 at approximately 16.54 was as follows:

[The context of the conversation is that Osborne has said he is going to count the cash and Undercover Officer 1 is then showing Osborne the various bundles of cash which are in a bag.]

UO1: Because - that's the thing, like, if we are doing this shit, because it's the same sort of, like, we are in the same sort of realm. They don't want too big, so, like, I don't ask any questions, and they sort us out with the hundreds.

• [229] Undercover Officer 1's evidence on this issue was sought to be criticised because it was said to have been given some six years after the event. However, there was good reason for Undercover Officer 1 to have recalled this particular exchange.
• [230] In his evidence, he identified that there had been large bundles of $100 notes in the $360,000 which was to be exchanged for the drugs in Transaction 9.
• [231] The evidence-in-chief of Undercover Officer 1 was that from the outset Osborne was not comfortable with the denominations of the money which the undercover officers had for the payment of Transaction 9. Undercover Officer 1 said it was unusual to have the majority of the denominations in the form of $100 notes. He said that he understood why Osborne was a little bit unhappy about it. He said that to be honest he was too. Undercover Officer 1 said it was brought up a couple of times around "that's a lot of $100 notes".[46] Undercover Officer 1 stated that there was a cover story around the $100 notes and he gave this to Osborne. This evidence from Undercover Officer 1 accords with what I heard and saw in the video recordings.
• [232] A further extended exchange about the hundreds can be heard on the video recording starting at Exhibit 24 Part 2 at approximately 13.20, commencing with Dayaratne mentioning the hundreds, and Osborne saying shortly thereafter, "That's weird, bro. How the fuck do you get so many hundred dollar notes?" Undercover Officer 1 then goes on to talk about the money guy for his crew.
• [233] The statement as I have found it does not support the inference sought by the defendants in aid of the submission that the Crown cannot exclude the possibility that Dayaratne's role was limited to just supplying cannabis.
• [234] Fifthly, there were exchanges on the video recording of Transaction 9 involving both Osborne and Dayaratne which further support a finding that both were involved in the supply of cocaine for Transaction 9.
• [235] In Exhibit 24 Part 1 at approximately 24.58, it can be seen that Osborne shows Undercover Officer 1 the screen of his cipher phone, at which time the following exchange then occurs:

D: [to UO1]: You got the 'TM' part. [Indistinct]

UO1: I'm sure we'll be going to bricks fucking soon, bro."

• [236] I find that in this conversation both Osborne and Dayaratne were truthfully informing Undercover Officer 1 that the photo was of the full brick of cocaine stamped "TMT" from which the half brick of cocaine being supplied had been taken. This indicates that both Osborne and Dayaratne shared this knowledge at the time it was stated to Undercover Officer 1. It again supports the inference that Dayaratne was involved in the supply of the cocaine as well as the cannabis.
• [237] In the context of a discussion about possible future supplies for cocaine, in Exhibit 24 Part 1 at approximately 28.35, there was a conversation between Osborne and Dayaratne, which included discussion about what the next brick of cocaine to be sent to Brisbane was, and what the potential price was for further bulk supply of cocaine. As part of that discussion, the following exchange occurred:

"O: [to UO1]: We will send you through the [indistinct] of what bricks are coming up. The next lot of bricks as well so you could - the next lot of bricks.

[to D]: What was the next brick that were gonna come?

O: [to D]: Oh [indistinct]. Do you know if it was in the group? They must have sent it to him. And you can go to the next brick. I think we got a better price for that one. We can work out a better price for that one, hey.

O: [softly to himself]: Um, so - I will just hook you up with some prices.

D: [to O]: What chat was it in? It was in - in Sydney? A?

• [238] What can be seen and heard on the video recording is that Osborne asked the question of Dayaratne as to what was the next brick of cocaine that was going to come to Brisbane. Dayaratne was able to give an answer which was, "AK".
• [239] I find that Dayaratne was truthfully answering Osborne on this issue. There is no reason to doubt that he was telling the truth when Osborne was asking for this factual information. This evidence supports the inference, which I draw, that Dayaratne had pre-existing knowledge of cocaine supplies which were anticipated to be available and could communicate a descriptor, AK, which Osborne would understand referred to a particular brick.
• [240] Further, as this discussion takes place, each of Osborne and Dayaratne can be seen to have cipher phones which they are looking at and operating.
• [241] I find that the discussion in conjunction with the video recording of Osborne and Dayaratne operating their cipher phones supports the inference, which I draw, that Dayaratne and Osborne were each examining chats, including at least one linked to Sydney, which they both had access to and understood. It is unclear exactly whether the descriptors "A" and "BR" referred to an individual's identity in a chat or the name of a chat group, however, what is clear as an inference is that the "A" and "BR" were descriptors associated with that part of a "Sydney" chat where the prices for cocaine were to be found and were descriptors which were understood by both Osborne and Dayaratne. I draw this inference.
• [242] The mutual access of Osborne and Dayaratne to these cipher chats, and their mutual knowledge that the potential availability of cocaine bricks and the pricing of cocaine were to be found in the cipher chats, illustrates the collective unity of association between Dayaratne and Osborne in relation to cocaine being sourced from Sydney. It again shows that Dayaratne's role was not limited to the supply of cannabis.
• [243] Sixthly, after Osborne had supplied a cipher phone to Undercover Officer 1, Osborne helped him to open it and commence operation of it. Osborne then had a conversation with Undercover Officer 1 where Osborne identified that he had the username "Shadow" in the cipher chat.
• [244] The relevant exchange occurs at Exhibit 24 Part 1 at approximately 24.49:

O: [to UO1]: Yeah. Yeah, that's me. That's me. He's Namo."

• [245] I find the reference to "Namo" was to Dayaratne for the following reasons. There were only ever five people in the motel room over the full course of the meeting for Transaction 9. Undercover Officer 1 had only just been supplied with the cipher phone and had only previously communicated with Osborne through the telephone app Wickr. Logically the reference to "he's" was a reference to someone other than Undercover Officer 1 to whom Osborne was then speaking. There was no suggestion that Undercover Officer 2 had any communication with Osborne by a mobile phone device. The reference to "Namo" was obviously not a reference to Undercover Officer 1 or Undercover Officer 2.
• [246] By the time of the relevant exchange, Hodge had left the motel room, as is evident from Exhibit 24 Part 1 starting at 20.03 through to 20.33. At this point of the recording, Hodge says, amongst other things, "See ya, guys" and Dayaratne says, "See you soon" and Hodge briefly hugs Osborne before leaving. The reference to "Namo" was obviously not to Hodge.
• [247] Leahy had not yet arrived. The reference to "Namo" was obviously not a reference to Leahy.
• [248] That inevitably means that the statement "He's Namo" could only have been a reference to Dayaratne who was present but was not in the frame of the video recording at that time.
• [249] I note the submission made on behalf of the defendants that no screenshot or other photograph was presented from the cipher phones showing the use of the word, "Namo." That is true. The evidence was silent on the issue. This silence also extended to whether there was such evidence available. I would be speculating if I were to ponder on the reason why such evidence was not before the Court, or if such evidence existed at all. I should not speculate.
• [250] The absence of that evidence does not alter my view that Osborne was identifying that Dayaratne was known as "Namo" on the cipher phone. The statement was made as a matter of fact by Osborne and was referring to someone.
• [251] In addition to my assessment of the video recording on this issue, I also had the evidence of the Undercover Officer 1. He gave evidence that Osborne had confirmed that he was "Shadow" on the cipher phone, and said that Dayaratne was "Namo" on the cipher phone by Osborne pointing to Dayaratne and saying, "He's Namo."

(h) Relationship between Osborne, Dayaratne and Leahy at the time of Transaction 9

• [255] The evidence supports that there was a relationship between all three of Osborne, Dayaratne and Leahy at the time of Transaction 9.
• [256] It was a relationship where there was a collective unity of association between all three, which ultimately establishes beyond reasonable doubt a finding that the three of them were a "group" within the meaning of the relevant sections of the PS Act. My finding is based on the following.
• [257] First, the pre-existing relationship between Osborne and Leahy continued in Transaction 9. The matters which gave rise to their association and collective unity for Transactions 1 and 3 to 7 supports the continuity of that collective unity of association for Transaction 9.
• [258] A continued association was accepted by all of the defendants in the terms that I have previously identified above.
• [259] Secondly, under the previous heading, I have set out my findings in support of the existence of the association and collective unity which existed between Osborne and Dayaratne during Transaction 9. It pre-existed the meeting at the motel room on 24 June 2019. The association and collective unity was linked, not just to cannabis supply by Dayaratne, but to an association and a collective unity in relation to their involvement with cocaine and MDMA as well. An association was accepted by all of the defendants, but limited on the defendants' case to one which involved cannabis.
• [260] Thirdly, Leahy was actively involved in Transaction 9. On the evidence, Leahy was fulfilling a role within Transaction 9, which relevantly included:
  • the picking up and transportation of the bulk of the MDMA;
  • the packing of at least one of the large suitcases containing cannabis;
  • the picking up and the transportation of the bulk of the cannabis and cocaine to the motel room in the three large suitcases;
  • the taking possession of and the commencement of the transportation of the $360,000 as proceeds of trafficking to other premises at the conclusion of Transaction 9, although the transportation was interrupted at an early stage when police made arrests at the motel.
• [261] That active involvement was undertaken in a unified and coordinated way with Osborne and Dayaratne. Osborne and Dayaratne were in more senior positions and were performing other roles, but their unified and coordinated conduct was designed to bring about the trafficking of a large amount of dangerous drugs to what was understood by all three defendants to be actual purchasers of the drugs.

"O: Once youse is hooked up on cipher we can get fucking anything, bro. I'll just get my - get our runners to fucking bring everything here. Samples and that. We're going have both my runners rocking up now.

D: He's got the oz of the rack and I forget - a pound/a kilo of bud and whatever MD [indistinct].[47]

• [264] The inference which I accept is that the contact would be made via the phone which Dayaratne individually possessed. This conversation also establishes the following facts.
• [265] Dayaratne was aware that Hodge was bringing sample drugs. Dayaratne knew the sample included an ounce of cocaine, referred to as an "oz of the rack", a pound or a kilogram of "bud", meaning a pound or kilogram of cannabis and an amount of MDMA. The sample, when brought by Hodge, included approximately an ounce of cocaine, a pound of cannabis and an ounce of MDMA. Dayaratne also knew that all of the drugs would be brought after the sample. This, in fact, occurred. It illustrated his understanding of how Transaction 9 was to be physically undertaken by those involved on his side of the transaction. This knowledge supports the inference that Dayaratne was not simply involved in the supply of cannabis but was also involved in the overall supply of cannabis, cocaine and MDMA to the Undercover Officers 1 and 2 in Transaction 9. The defendants' submission that Dayaratne only ever spoke of cannabis is incorrect. He spoke of cocaine and MDMA and knew that they were also being supplied both by sample and then in bulk.
• [266] Then, later in the video, it is evident from an exchange between Osborne and Dayaratne, that Dayaratne has been communicating with Hodge and Leahy. The exchange is at Exhibit 24 Part 1 at approximately 10.30:

"O: The blokes here and ready. Oh. Nah. Nah. [to D]: Is that work?

D: No, work was...I told them I'm not coming in. Bob...

[While the video does not capture much of D at this point as he is mostly standing off screen to the right, there is enough video to identify that as D says "Bob" to O, he holds up the phone he has been operating and shows O the screen].

D: Yeah. Just a couple of minutes off to eh Youngblood.

D: Bob's still packing and getting it ready. He's getting it ready now and then he'll come.

• [267] The inferences from this call which I accept are as follows:
  • Dayaratne has made contact with Hodge and is able to communicate to Osborne that Hodge is a couple of minutes away.
  • Dayaratne knows who Osborne is referring to when he uses the descriptor, "Bob".
  • Dayaratne knows that "Bob" is a reference to Leahy.
  • Dayaratne has also been in communication with Leahy by his phone. Dayaratne is able to inform Osborne of Leahy's current status.
  • Leahy has told Dayaratne that he is still packing and will come to the motel when he is ready.
  • The packing is a reference to packing dangerous drugs.
• [268] There is then a further exchange before Leahy arrives, principally between Osborne and Dayaratne which again supports the inference, which I accept, that Dayaratne had previously been communicating with Leahy through Dayaratne's phone. The exchange is at Exhibit 24 Part 2 at approximately 1.51 and is as follows:

[O is typing on his cipher phone whilst saying the numbers above and being given the room number from UO1]

D: My phone's not connecting. Is your phone working?

• [269] The inferences which I have drawn are:
  • Dayaratne knows who Bob is and that Bob is Leahy. Dayaratne has had a prior communication with Leahy, but he forgot to give Leahy the room number at the motel.
  • Dayaratne goes to communicate with Leahy to give the relevant information but then realises that at that particular time he does not have internet connection.
  • Osborne then gives directions to Leahy on the phone via a typed message, being what is probably the street number for the motel, but is certainly the room number which Undercover Officer 1 supplies, namely room 40.
  • Shortly thereafter, Dayaratne can be seen to be texting on his phone so that it can be inferred that his phone has re-established internet connection.
• [270] I pause here to deal with the submissions advanced by all three defendants that I could not be satisfied on the evidence that Dayaratne was using his own phone. This was said to be because the agreed facts recorded a phone was seized from Osborne at the motel room, and two phones seized from the centre console of Osborne's car, and a phone was seized from Leahy, but no phone was recorded as being seized from Dayaratne.
• [271] With respect, this submission goes nowhere. It can clearly be seen on the video recording (eg at Exhibit 24 Part 1 at approximately 3.17) that Dayaratne possesses and uses a phone separate to the phone which Osborne possesses and uses, and which is separate again to the cipher phone which was supplied by Osborne to Undercover Officer 1.
• [272] Dayaratne refers to it as "his" phone. While actual ownership of that phone by Dayaratne is not established by the fact that he possessed and used it in the motel room, what is clear and I find, is that during Transaction 9, whilst in the motel room, Dayaratne possessed a phone which he was exclusively using, and used it to do a whole range of things, including looking at cipher chats, inferentially contacting Hodge and Leahy in relation to the drop off of drugs, and seeking to contact Leahy about the motel room number. The fact that no phone was seized from Dayaratne by the police simply means one of two things. Either Dayaratne successfully concealed the phone when the police came onto the scene at the time when the arrests took place, or the phone had been taken out to Osborne's car and it was one of the two phones sitting in the centre console. It makes no difference which of those two scenarios occurred, or indeed whether there was some other scenario I have not contemplated.

(a) that Dayaratne had possession of a phone during Transaction 9;

(b) it was separate to Osborne's phone and the cipher phone given to Undercover Officer 1; and

(c) Dayaratne was actively using the phone in the motel room to the exclusion of others.

• [274] Fifthly, Dayaratne knew it was "Bob" who was delivering the bulk of the drugs and that Bob was Leahy. That is an inference which I have drawn from the evidence referred to in the last point dealt with above. However, there is further evidence to support this finding. At a time after Hodge had been and gone from the motel room, a knock on the motel door occurs and the following can be heard on the video recording at Exhibit 24 Part 2 at approximately 15.10:

• [275] It is evidently Dayaratne who meets Leahy in the vicinity of the entry to the motel room. This is so as Osborne remains in frame on the video. Then at Exhibit 24 Part 2 at approximately 15.21, the following exchange occurs:

D: Bring it in. Yeah, I'll come with you. You alright?

• [276] I note a submission was made on behalf of all the defendants that it could not be seen or heard from the video recording that Dayaratne greeted Leahy when he arrived.
• [277] In response to that submission, I note as follows. The video recording of Transaction 9 is of the bedroom portion of the particular motel room. It does not show the area where the front door is located. There is no plan of the motel room in evidence to fully understand its layout. The audio recording of what is happening at the door is fainter than the recording of what is happening in front of the camera in what is a bedroom. At the time of Leahy's arrival, Dayaratne is not in shot. I am not able to determine from the video recording what, if anything, might have been said or done between them in terms of a greeting at the point when Leahy first enters the front door. What is clear is that Dayaratne at one stage tells "Bob" to "bring it in". This evidence is consistent with and supports the earlier inferences which I have drawn that Dayaratne knows who Bob is, knows that Leahy is Bob and that Dayaratne has previously been communicating with Leahy.
• [278] There was nothing in the video's visual or audio recording at this point which suggests that Dayaratne and Leahy do not know each other. They speak in normal tones to each other. It is Dayaratne who goes to the vicinity of the entry to meet Leahy. That would be odd if Leahy did not know Dayaratne, given the size of this drug deal. Dayaratne addresses Leahy as Bob. All of this is consistent with and supports the earlier inference that I have accepted, that Dayaratne and Leahy knew of each other prior to Leahy's physical attendance at the motel room.
• [279] Sixthly, at the motel, Leahy was instructed to do things by Osborne. Leahy would duly do what he was told. An example of this was in the motel room, when Transaction 9 was largely completed, Osborne handed the bag containing the $360,000 to Leahy. The following exchange then occurred in Exhibit 24 Part 2 at approximately 18.44:

L: You're going to follow me home? All right, cool."

• [280] I find the reference to "we will follow you home" was a reference to both Osborne and Dayaratne following Leahy. Leahy then confirms by restatement that he understands that is what is going to happen.
• [281] Seventhly, Dayaratne conversed with Leahy whilst they were in the motel room in a way which was consistent with their having previously communicated. The conversation in the motel room was in relation to the codes for the locks on the three suitcases. The exchanges which occurred involved Osborne, Dayaratne and Leahy, and concerned different suitcases. The first exchange can be seen and heard in Exhibit 24 Part 2 at approximately 16.27, when Leahy brings in the first suitcase and Osborne is attempting to unlock it. The exchange is as follows:

O: You do it. [at this point, D takes over the unlocking of the first suitcase] [to L]: Hey, bro, you right?

L: Oh, yeah. Nervous. The whole not eating things just getting to me.

O: As soon as we do this, we'll grab the coin and fucking---

D: [to L] What did it end up being? 639, 639. Oh yeah, 639. [as D says "639" for the second time, he opens the lock]

[at this point, D then places the opened suitcase 1 on the bed and unzips].

• [282] During this exchange, Dayaratne had taken over the opening of the first suitcase. At one stage, he asks Leahy what the code on the suitcase lock ended up being. Dayaratne eventually successfully opens it, thereby illustrating his pre-existing knowledge of the code to the combination lock.
• [283] The second exchange then occurs at Exhibit 24 Part 2 at approximately 17.17, at a time after the first suitcase has been opened. Dayaratne is attempting to unlock another second suitcase next to the far bedroom wall, and Osborne and Undercover Officer 1 have brought the third suitcase in and situated it on the floor nearest to the camera. The following exchange then occurs in respect of the code to unlock the third case:

D: That'll be 639. That'll open it. [D at this time points at the third suitcase]

UO1: [UO1 briefly moves to the third suitcase lock and then says] All you, bro." [as UO1 says this, he then moves away and O starts to try and unlock the third suitcase]

• [284] This again supports the inference which I accept that Dayaratne knew one or more codes for the suitcase locks.
• [285] The third exchange then occurs at Exhibit 24 Part 2 at approximately 17.28. Dayaratne at this time is still trying to open the second suitcase:

"D: What was the code on the rack[48] one? 689?

L: I don't know if I actually looked in that one. Didn't look at that one sorry. You can tell the one I opened is that one, 'cause it's, like, completely destroyed.

UO1: [at this point, D has opened the second suitcase which contains cannabis and the bulk of the cocaine] Oh, yeah, all vacced[49] up. [UO1 says this whilst looking at the cocaine in the yellow plastic bag that had been in the second suitcase opened by D].

UO1: Fuck yeah, cunt. Get that MD and we'll get out of here man.

• [286] This evidence supports the inferences which I accept that:
  • Leahy had actually opened at least one of the suitcases with cannabis in it prior to attending the motel room. This was entirely consistent with Dayaratne's previous statements about "Bob" packing the bags.
  • Leahy had personal knowledge of at least one suitcase lock code.
  • Dayaratne had personal knowledge of at least two suitcase codes, as he opened two suitcases, and had not been told the codes by the others on the recordings.
  • Dayaratne knew that suitcase 2 had the "rack", that is the cocaine packed in it.
  • Leahy had packed at least one of the suitcases with cannabis.
• [287] Eighthly, I accept that Wong and Hodge were not charged on the indictment as being part of the "group". The fact that they were not charged says nothing of the association and collective unity between Osborne, Dayaratne and Leahy that may be established on evidence which was before the Court.
• [288] Ninthly, I accept that the agreed facts do not establish that each of Osborne, Dayaratne and Leahy actually met all together between 11.22 am and 11.39 am on 24 June 2019, when they were all at the 56 Violet Street address, which was Leahy's residence. However, on the facts set out previously, I find that each of Osborne, Dayaratne and Leahy knew each other and had communicated with each other prior to Leahy going to the motel room on 24 June 2019. Their mutual presence at the address on the morning of Transaction 9 is consistent with this finding. Not knowing exactly what happened at 56 Violet Street during this period does not in any way detract from the other evidence which I have relied upon.

• [289] I am satisfied that the evidence summarised above shows that at least for Transaction 9, each of Osborne, Dayaratne and Leahy were in an association with the required collective unity to constitute them a group of three persons who were informally:

(a) engaged in the serious criminal activity of trafficking dangerous drugs; and

(b) who, by their association, represented an unacceptable risk to the safety, welfare or order of the community.

• [290] In forming this conclusion, I note that I do not need to find that this group had an ongoing existence as a group beyond the serious criminal activity in which the group was engaged. Further, as the relevant explanatory memorandum to the Serious and Organised Crime Legislation Amendment Bill 2016 made plain, the new definition of "criminal organisation" applied to a group which was opportunistically formed.
• [291] Whilst the evidence does not allow me to conclude to the requisite high standard that the three defendants were constituted within a "group" prior to the undertaking of Transaction 9, the evidence is sufficient to establish that such a "group" did exist for Transaction 9, and was, at the bare minimum, an opportunistically formed group.
• [292] In respect of each Osborne, Dayaratne and Leahy, I find that they were each participants in the criminal organisation which I have already found existed.
• [293] The conduct of each of the defendants, which I have dealt with above, in relation to the criminal organisation was such that it would reasonably lead someone else to consider each of them to have been a participant in the criminal organisation.
• [294] For the purposes of Transaction 9, I will point to conduct of each defendant which establishes that finding.
• [295] In relation to Osborne, his conduct relevantly included:
  • negotiating the trafficking deal which initiated Transaction 9;
  • communicating with Undercover Officer 1 to facilitate the meeting at the motel room on 24 June 2019;
  • directing Leahy during the meeting at the motel room in relation to facilitating Transaction 9; and
  • actively participating in the underlying sale of the dangerous drugs in the motel room on 24 June 2019, including by way of:
    • liaising with Undercover Officers 1 and 2;
    • communication with Leahy by cipher phone during the transaction for the purpose of facilitating Transaction 9;
    • in person, liaising with Dayaratne and Leahy during Transaction 9 in the motel room;
    • helping to open and unpack the suitcases containing the dangerous drugs during Transaction 9 in the motel room;

Element 3: 'defendant knew, or ought reasonably to have known that the offence was being committed in association with one or more persons who were at the time of the offence participants in a criminal organisation'

• [299] The third element requires the Crown to prove beyond reasonable doubt that each of the defendants knew, or ought reasonably to have known, that the trafficking of dangerous drugs was being committed in association with participants in a criminal organisation.
• [300] I am satisfied that for each of Osborne, Dayaratne, and Leahy, that each knew that the trafficking offence was being committed in association with each of the other two defendants who were, at the time that offence was being committed, participants in the criminal organisation that I have found.
• [301] Each of the defendants knew of the other defendants' existence both before and at the time when they were all physically present at the motel room for Transaction 9. At the time when that knowledge was held, each of the defendants knew that each of the other defendants were participating in association with the others in a coordinated and unified way, as participants in the criminal organisation that I have found. I have made findings about their conduct and their states of mind under the "Element 2" heading.
• [302] I pause to re-emphasise the finding that Leahy and Dayaratne had such knowledge of each other. Dayaratne and Leahy communicated prior to Leahy's arrival at the motel room. Dayaratne knew of Bob and that Leahy was Bob. Dayaratne was the person who initially met Leahy in the vicinity of the door to the motel room and then directed Leahy to bring in the bags. Leahy complied with that direction. Leahy and Dayaratne shared knowledge concerning the drug suitcase codes and Dayaratne knew to seek information from Leahy about the suitcase codes.
• [303] I am satisfied that the requirement in s 161Q(1)(b)(ii) of the PS Act has been made out by such actual knowledge.
• [304] Even if I was not satisfied about the position of actual knowledge, I am satisfied that each defendant ought reasonably to have had that knowledge.
• [305] The evidence, the findings and the inferences which underly my conclusions set out above are those expressed under the Element 1 and Element 2 headings.
• [306] Based on the findings I have made above, I find that Count 1 of the indictment has been proved by the Crown beyond reasonable doubt in respect of each defendant.

• [307] My verdict is as follows:
  1. Matthew Brett Osborne is guilty of trafficking in dangerous drugs and guilty of the circumstance of aggravation (serious organised crime).
  2. Kushan Thosainge Thanuj Dayaratne is guilty of trafficking in dangerous drugs and guilty of the circumstance of aggravation (serious organised crime).
  3. Garth William Leahy is guilty of trafficking in dangerous drugs and guilty of the circumstance of aggravation (serious organised crime).

[1] That is, simpliciter (being the first five lines of Count 1 on the indictment).

[2] R v Stasiak and Turkyilmaz [2019] QSC 260; (2019) 2 QR 533 at [31] per Henry J.

[3] R v Hill (No 2) [2020] QSC 309; (2020) 6 QR 1 at [96] per Applegarth J.

[4] R v Hill (No 2) [2020] QSC 309; (2020) 6 QR 1 at [90] per Applegarth J.

[5] R v Simpson [2024] QSC 295 at [108] per Williams J.

[6] R v Stasiak and Turkyilmaz [2019] QSC 260; (2019) 2 QR 533 at [30].

[7] [2020] QSC 309; (2020) 6 QR 1.

[8] Explanatory Notes to the Serious and Organised Crime Legislation Amendment Bill 2016, p. 19.

[9] R v Hill (No 2) [2020] QSC 309; (2020) 6 QR 1 at [82]- [83].

[10] See s 615B(1) of the Criminal Code.

[11] See s 615B(3) of the Criminal Code.

[13] See s 615C(3) of the Criminal Code.

[14] Albeit the plea was not accepted by the Crown.

[15] The agreed admissions between the Crown and defence are Exhibit 1 [previously marked for identification "A"] and have been faithfully replicated in this judgment, including any errors.

[16] The initials "MD" and "MDMA" in this judgment refer to 3,4-Methylenedioxymethamphetamine.

[17] The word "rack" in this judgment refers to cocaine.

[21] Exhibit 7, Transaction 5 at 17.16.

[26] The word "bud" in this judgment refers to cannabis.

[28] Exhibit 24, Recording of meeting with Undercover Officer 1 on 27 May 2019 at 5.26.

[37] This appears to be a typographical error of the word "big" or "bud".

[39] Exhibit 7 Transaction 5 Recording 26 April 2019 at 6.45.

[40] Exhibit 7 Transaction 5 Recording 26 April 2019 at 9.22 - 9.32.

1. [43] In the exchanges which I will set out in these reasons, O will refer to Osborne, D will refer to Dayaratne, L will refer to Leahy, UO1 will refer to Undercover Officer 1 and UO2 will refer to Undercover Officer 2. Where I have not been able to determine who the speaker was of particular words, I will put a [?].

[44] Presumably, this is a reference to the hotel previously known by this name located on the Spit at the Gold Coast.

[47] This is the conversation which shows Dayaratne was aware of the three types of drugs being supplied.

[48] The reference to 'rack' is a reference to cocaine.

[49] The inference is that the term "vacced" is a reference to vacuum sealed, given the cocaine was wrapped in vacuum sealed plastic bags.